The Military Consilium in Republican Rome 9781463211585

Table of contents :
TABLE OF CONTENTS
PREFACE
ACKNOWLEDGMENTS
ABBREVIATIONS
1. THE NATURE OF THE CONSILIUM
2. THE COMMANDER’S CONSILIUM IN ACTION
3. THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE
4. THE CONSILIUM OF THE PROVINCIAL GOVERNOR
5. THE COMMANDER’S CONSILIUM: CONCLUSIONS
SELECTED BIBLIOGRAPHY
INDEX

Citation preview

The Military Consilium in Republican Rome

Gorgias Studies in Classical and Late Antiquity

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Gorgias Studies in Classical and Late Antiquity contains monographs and edited volumes on the Greco-Roman world and its transition into Late Antiquity, encompassing political and social structures, knowledge and educational ideals, art, architecture and literature.

The Military Consilium in Republican Rome

Pamela Delia Johnston

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34 2013

Gorgias Press LLC, 954 River Road, Piscataway, NJ, 08854, USA www.gorgiaspress.com Copyright © 2013 by Gorgias Press LLC

All rights reserved under International and Pan-American Copyright Conventions. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise without the prior written permission of Gorgias Press LLC. 2013

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ISBN 978-1-59333-373-7 Second Printing

Library of Congress Cataloging-in-Publication Data A Cataloging-in-Publication Record is Available from the Library of Congress. Printed in the United States of America

Martiali

[The general] should either choose advisors to take part in all his counsels and share in his decisions, who will accompany him for this purpose, or summon the most estimable commanders to deliberate with, since whatever someone decides alone, on his own judgment, should not safely be adopted. Onasander, The General 3.1

TABLE OF CONTENTS Table of Contents..................................................................................................vii Preface......................................................................................................................xi Acknowledgments .................................................................................................xv Abbreviations .......................................................................................................xvii 1. The Nature of the Consilium ............................................................................1 1.1 The Consilium: an Overview .................................................................1 1.1.1 Summary of the Work..........................................................................2 1.2 Ancient Sources for the Commander’s Consilium .............................3 1.3 The Members of the Commander’s Consilium...................................6 1.3.1 Terminology of membership ..............................................................7 1.3.2 The Military Tribunes...........................................................................7 1.3.3 The Quaestor.........................................................................................8 1.3.4 The Prefects.........................................................................................10 1.3.5 The Centurions....................................................................................12 1.3.6 The Legates..........................................................................................13 1.3.7 The Cohors Amicorum...........................................................................17 1.3.8 The Consilium as Training Camp ....................................................19 2. The Commander’s Consilium in Action........................................................25 2.1 The Two Basic Types of the Commander’s Consilium...................25 2.2 Location of the Deliberative Consilium .............................................25 2.2.1 Seating in the Deliberative Consilium .............................................27 2.2.2 Outline of the Deliberative Consilium ............................................28 2.3 Location of the Ceremonial Consilium ..............................................31 2.3.1 Seating in the Ceremonial Consilium...............................................32 2.4 Strategy and Tactics ...............................................................................34 2.4.1 The Deliberative Consilium in Action ............................................34 2.4.2 The Commander’s Consilium and Military Justice........................42 2.4.3 Reception of Foreign Legates by the Ceremonial Consilium ......49 2.4.4 The Ceremonial Consilium as the Commander’s Witness...........57

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2.4.5 The “Consilium that Convened Itself”: The Caudine Forks Disaster .................................................................................................59 2.5 Conclusions.............................................................................................61 3. The Decem Legati as Consilium of the Magistrate Militiae............................63 3.1 Introduction............................................................................................63 3.2 Commissions of Ten in Peace Negotiations .....................................63 3.3 The Commission of Ten Sent to C. Lutatius Catulus in 241..........65 3.4 The Commission of Ten sent to P. Cornelius Scipio Africanus in 201 .....................................................................................................69 3.4.1 Activities of the Commission of 201 ...............................................72 3.5 The Commission of Ten sent to T. Quinctius Flamininus in 196..........................................................................................................73 3.5.1 Activities of the Commission of 196 ...............................................80 3.6 The Commission of Ten sent to Cn. Manlius Vulso in 188 ...........87 3.6.1 Activities of the Commission of 188 ...............................................90 3.7 The Commission of Ten sent to L. Aemilius Paullus in 167 ..........92 3.7.1 Activities of the Commission of 167 ...............................................94 3.8 The Commission of Five sent to L. Anicius in 167 .........................96 3.8.1 Activities of the Commission of L. Anicius ...................................97 3.9 The Commission of Ten sent to L. Mummius in 146 .....................98 3.10 The Commission of Ten sent to Scipio Aemilianus in 146 ..........99 3.11 The Commission of Ten sent to P. Rupilius in 132.....................101 3.12 The Commission of Ten sent to M’. Aquiliius in 129 .................101 3.13 The Commission of Ten sent to T. Didius, cos. 98.......................103 3.14 An Institution in Flux: Decem Legati in the Late Republic ...........103 3.14.1 The Eastern Consilia of L. Cornelius Sulla.................................103 3.14.2 The Commission of Ten sent to L. Licinius Lucullus ..............107 3.14.3 Julius Caesar and his “Decem Legati” ............................................109 3.14.4 The End of an Era: the Legations to Antony in 43 ..................110 3.15 Conclusions.........................................................................................111 4. The Consilium of the Provincial Governor................................................113 4.1 Introduction..........................................................................................113 4.2 The Provincia of the Magistrate Militiae..............................................114 4.3 The Staff of the Provincial Governor...............................................115 4.4 The Consilium of the Magistrate Militiae in Criminal Proceedings ........................................................................................116 4.4.1 The Trial of Philodamus of Lampsacus ........................................117 4.4.2 The Sopater Scandal and the Character of the Consilium .........122 4.4.3 Further Responsibilities of the Magistrate Militiae.......................125 4.5 The Consilium in Civil Procedure Militiae .......................................128

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4.6 Collection of Revenues .......................................................................129 5. The Commander’s Consilium: Conclusions ..............................................133 5.1 The Commander’s Consilium in Context ........................................133 5.2 Depictions of Foreign Consilia..........................................................134 5.3 The Commander’s Consilium: a Pragmatic Compromise.............136 Selected Bibliography..........................................................................................139 Index......................................................................................................................145

PREFACE I first encountered the consilium while investigating the development of the Roman province of Asia for my master’s thesis. Exactly when the lands bequeathed to Rome by Attalus III of Pergamum became a provincia—that is, the yearly responsibility of a magistrate with imperium—depended in the main on the dating of a Greek inscription preserved in two fragmentary copies. The Senatus Consultum et Consilium de Agro Pergameno, as it has come to be called, records a recommendation of the Roman Senate (senatus consultum) at the behest of a magistrate, whose name unfortunately does not survive. The inscription also contains a list of the magistrate’s advisory council, or consilium, containing (at least) fifty-five members, presumably all senators. The dating of the original document, the reason for such a large consilium, and the identity of its members has made this document of particular interest ever since the discovery of Copy A in 1877. 1 I thought that a better understanding of advisory groups in general might provide insight into this particular document. A search for further information on consilia, however, brought disappointing results. There currently exists no full-length study of the consilium of Republican Rome. Although the consilium seems omnipresent in Roman society: in the political, military, domestic, and even religious spheres, modern authors seem to have taken it for granted, much as (for example) Roman senatorial procedure has been accepted at face value without closer scrutiny. There is ample explication of the consilium during the Empire (after the beginning of Augustus’ reign) in J. Crook’s Consilium Principis (1955) and F. Amarelli’s more recent work, Consilia principum (1983). These focus on the so-called “privy council” of the emperor and mention the consilium during the Republic only in passing. A massive bibliography exists—the most convenient overview is in R. Sherk’s Roman Documents from the Greek East (Baltimore 1967) 63-73, supplemented by T. C. Brennan, The Praetorship in the Roman Republic (Oxford 2000) I 348 n. 80, and II 671, summarizing arguments for the date of 101. 1

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Scholarship on the Republican consilium tends to be limited to short treatments such as the four-page entry by W. Leibenman in the RealEncyclopädie (1901), little more than a list of the best-known examples. Mommsen’s Römisches Staatsrecht (1885-87), the monumental work on Roman public law, devotes only thirteen pages to the consilium. Smith’s entry in his Dictionary of Greek and Roman Antiquities, although dated, is a convenient summary of the topic, based primarily on Mommsen. 2 None of the three editions of the Oxford Classical Dictionary lists an entry for the Republican consilium. Although W. Kunkel treats aspects of the consilium in several different works, his ideas are deeply influenced by his controversial interpretation of the development of Roman judicial procedure, and have since been rightly challenged. 3 The most recent studies have focused on specific incidents, mainly in domestic law. 4 No one, however, seems to have questioned why the consilium loomed so large in Roman society, or how exactly the process worked. Therefore, when it came time to choose a topic for my dissertation, the idea of the consilium came readily to mind. The Romans used the word “consilium” in many different ways. 5 With the aid of computerized wordsearching it was possible to locate over four thousand citations of the Latin word consilium alone, and Greek equivalents such as óõìâïýëéïí and óõíÝäñéïí add hundreds more. These citations appeared most frequently in W. Smith, A Dictionary of Greek and Roman Antiquities (London 1890) s.v. “consilium.” 3 For the most convincing refutation of Kunkel’s theories, see P. Garnsey, “The Lex Iulia and Appeal under the Empire” JRS 56 (1966) 177-80. 4 For example, B. Frier and T. McGinn in their Casebook on Roman Family Law (Oxford 2004) present two case studies which treat the domestic consilium in reference to the father’s right of life or death (vitae necisque potestas): Case 90, the famous trial of the son of L. Gellius, cos. 72, for immoral behavior (specifically, sleeping with his stepmother) and planning the death of his father. Case 91 treats the domestic council called by L. Tarius Rufus, suff. cos. 16, notable mainly for the presence of Augustus Caesar on the consilium. 5 The Oxford Latin Dictionary entry on consilium gives eight separate categories of definitions: “1. debate, discussion, deliberation. A meeting for deliberation. 2. advice, counsel. 3. a deliberative or advisory body, council. A counsel of state. 4. A decision, resolution, measure. The taking of a decision, deciding. 5. An intent, purpose, an intended effect, an intended course of action, plan, policy. A plot, scheme, stratagem. 6. A deliberate action or choice. 7. The exercise of judgment or discernment, diplomacy, strategy. 8. A capacity for judgment or invention, mental ability, intelligence, sense, rationality, reason.” 2

PREFACE

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history writers such as Livy, but also in biography, antiquarian compilations, philosophy, and even comedy. I limited my study to those citations dealing with “a deliberative or advisory body, council.” Overall, I identified three basic categories of the consilium: that of private citizens (also known as the consilium domesticum); the consilium of the magistrate at Rome (domi); and the consilium of the magistrate militiae (that is, on campaign, outside the pomerium, the sacred boundary of the city). For each of these categories I sought to answer certain basic questions, such as in what situation a consilium would be deemed necessary; the procedures for summoning and conducting the advisory group; how members were chosen; when and where they met; the social and political relationship of the members to the individual asking advice; and how the verdict of the consilium was given. I soon realized why the consilium had been largely overlooked—very few of these citations were detailed enough or compelling enough in themselves to have attracted notice. Analyzed as a group, however, they offer a fairly coherent picture of this important institution. At an early stage, it became clear that some narrowing of the topic was necessary. Therefore, I chose to concentrate on what I have termed “the commander’s consilium”—that is, the consilium of the magistrate militiae, encompassing all functions that a magistrate with imperium or his designated subordinate might undertake when outside the city of Rome. To my knowledge no one has outlined in detail its specific functions and composition and this is what I consider to be the chief original contribution of this work. As such, my goal is a modest one: to provide a broad picture of the workings of the military consilium in the Republican period, focusing on its composition and activities from its first appearances in the fourth century BC down to the end of the Republic. The arrangement of the book has changed considerably from its original form as a dissertation submitted to Bryn Mawr College in 1997. Much of the material on other types of consilia has necessarily been omitted, and the sections on the two main types of commander’s consilia expanded and updated. I hope to return to my wider theme and treat the consilia of the magistrate domi and that of private individuals, as well as revisit several discrete problems concerning the consilium in general, at a later date. 6 Among these is the knotty problem of the etymology of the Latin word consilium, and the difficulty of distinguishing between the terms “consilium” and “concilium” in the ancient sources. 6

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In general, I have endeavored to make the work accessible to those who may not have facility with the original Latin and Greek, in the hopes that it can serve as a resource not only for specialists whose interests lie mainly in Roman political and military history, but for anyone who wishes to find out more about the military consilium and the role it plays in Roman society. Pamela D. Johnston

ACKNOWLEDGMENTS I owe my advisor T. Corey Brennan a great debt of gratitude for his guidance—not only of this work in its original inception as a doctoral thesis, but also in the transformation into its present form, and for his generous and gifted mentorship throughout my scholarly career. Everything that is useful in this work can trace its genesis to work done under his direction. Its many shortcomings, however, are mine alone. I thank the Mrs. Giles Whiting Foundation for its assistance in advancing this project: first, through a Whiting Dissertation Fellowship in 1996–97 and a Whiting Post-doctoral Fellowship at Bryn Mawr College in 2001– 2002. Bryn Mawr College was indeed a locus amoenus at which to work. My professors Julia Gaisser, Richard Hamilton, Mabel Lang, and Darby Scott were wonderful examples of academic rigor combined with comity. I thoroughly enjoyed my coursework with them. I’m very grateful to my publisher George Kiraz for taking on this project and his patience as it stretched out longer than expected. Katherine Stott at Gorgias Press was a godsend—her careful editing and cheerful forbearance improved this manuscript greatly. On a more personal note, I am grateful to Gage Johnston and Jack Jallo for their hospitality during my post-doc year, and their constant love and support. My appreciation to Keith Axberg for looking at an early draft of this work and making several helpful suggestions to improve its readability. To my colleagues Honora Chapman, Nathan Orgill, Richard Rawls and William Skuban—fellow toilers in the vineyard—deep appreciation for years of encouragement and warm collegiality. And finally, to my friend, my colleague, my husband, Marshall, this book is lovingly dedicated—for years of joy and homophrosyne.

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ABBREVIATIONS All ancient dates are BC unless otherwise stated. Abbreviations of periodicals follow those of L’Année Philologique. Abbreviations of Latin authors and texts are those of the Oxford Latin Dictionary. Abbreviations of Greek authors and texts follow those of Liddell, Scott, and Jones, Greek-English Lexicon, 9th edition except for Polybius, abbreviated Polyb. The following additional abbreviations are used throughout: Epit. Oxyr. Eutrop. Just. Obseq. Oros. Per. Ruf. Fest. Vir. Ill.

Oxyrhynchus epitome of Livy Eutropius Justin Obsequens Orosius Livian Periochae Rufius Festus “Victor,” De Viris Illustribus

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1. THE NATURE OF THE CONSILIUM 1.1 THE CONSILIUM: AN OVERVIEW 7 As head of the family, or pater familias, a Roman father held the power of life or death over those in his household. This idea of absolute paternal authority, known as patria potestas, is one of the most fundamental in Roman society—in fact, the authority of kings and magistrates can be seen as its ultimate extension. But alongside this tendency toward absolute individual authority, it was customary for any person, whether private citizen or public magistrate, to consult a suitable group of advisors, a consilium, before making a major decision. In the case of a private individual, one’s friends and relatives would give advice; the members of the consilium of a magistrate, whether in Rome (domi) or outside its boundaries (militiae), would either be appointed by the Senate for the purpose or (occasionally) chosen by the magistrate himself. Perhaps the best-known consilium of all is the Roman Senate itself, which expressed its advice to magistrates (and hence to the People) 8 in the form of an official decree known as a senatus consultum (henceforth SC). As the orator Cicero proclaims, “the Senate is the highest consilium of the Roman people, and of all peoples, races, and kings.” 9 The Senate itself was not a legislative body—it had no power to pass laws—although this is too often misunderstood: ancient authors, especially Livy, took for granted that the Senate’s recommendations would be approved by the People and therefore rarely mentioned the legislation which naturally would have followed an SC. Indeed, there are very few instances when the People assembled as a legislative body failed to act on the Senate’s recommendations, such as their initial refusal to go to war against Philip V of Macedon in the final wearying

All translations unless otherwise stated are the author’s. By “the People” I mean adult male citizens meeting in voting assemblies such as the comitia centuriatia and (for plebeians only) the concilium plebis. 9 Dom. 73: summum est populi Romani populorumque et gentium omnium ac regum consilium senatus. 7 8

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years of the second war against Carthage. 10 This brings up perhaps the most striking issue concerning the consilium: even though the moral obligation to convene a consilium and then at least seriously to consider (if not accept) its decision was very strong, the advice it rendered had no legally binding force. Of course, those who failed to employ a consilium ran the risk of being thought arrogant, even tyrannical—an attitude Livy put to good use in his characterization of the legendary Roman king Tarquinius Superbus, who, we are told, had a habit of judging capital cases by himself, without recourse to a consilium. 11 1.1.1 Summary of the Work The first chapter gives an overview of the main sources for the commander’s consilium. It then introduces the members of the consilium and the basic terminology used. I discuss the participation of foreigners in the commander’s consilium and then turn to the concept of the consilium as a training camp for young members of the aristocracy. The second chapter defines and illustrates the two main types of military consilia—what I have termed the “deliberative” and the “ceremonial” consilia. I conclude by showing the importance of the ceremonial consilium as a witness to the activities of the commander—in fact, the consilium could later be summoned by the Senate to provide more information if necessary. I show evidence that while the commander was in no way bound to accept the advice of his consilium, there was nonetheless a strong moral imperative to do so. The decem legati form the focus of the third chapter. I illustrate how these Senate-appointed commissions of ten men acted as consilia to magistrates assigned to various tasks such as peace negotiations and the settlement of newly acquired territories, noting the many correlations between the terminology used by our sources to describe their activities and those of the commander’s consilium of the previous two chapters. Lastly, I discuss evidence for the changing role of the decem legati in the last days of the Republic. In the fourth chapter, I discuss the remaining duties of the magistrate militiae aided by his consilium: criminal and civil proceedings concerning See Livy 31.6.1–8.1. There, we are told, P. Sulpicius Galba, who as consul for the year 200 had received Macedonia in the sortition, managed to gain approval for the war after his stirring speech in a public meeting (contio) before a second vote. 11 Liv. 1.49.4: (cognitiones capitalium rerum sine consiliis per se solus exercebat). 10

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those in his province and (although the evidence is much more scarce) the role of the consilium in collection of provincial revenues. Here the chief source of information comes from the Verrines—Cicero’s polemical account of C. Verres’ activities as governor pro praetore in Sicily in the late seventies. These speeches can be viewed as a veritable handbook on how not to use a consilium. In the last chapter, I discuss how the Romans adapted the institution of the consilium to fill their changing needs. I consider briefly how the depiction of foreign consilia by Roman sources illuminates how the Romans felt about their own society and the ways in which they felt it to be superior to all others. In conclusion, I reflect on the idea of the commander’s consilium as a pragmatic compromise between the desire for competent leadership and personal ambition on the one hand, and the fear of tyrannical behavior (if not actual tyranny) coupled with the envy towards those too successful on the other hand.

1.2 ANCIENT SOURCES FOR THE COMMANDER’S CONSILIUM Much of the information we have on the commander’s consilium comes from Livy’s history, the Ab urbe condita. As the title states, the work begins from the founding of the city, and continues to 9 BC in 142 books. Of these, only 1–10 and 21–45 are extant in full, books 41 and 43–5 with some omissions. The first ten books (referred to as the “first decade”) contain very little useful information for the commander’s consilium. Less than a half-dozen citations, the first dating to 340, the last to 293, point to little more than Livy’s assumption that commander’s consilia would have played a role at this early date. 12 The loss of the second decade (dealing with the years 292–219) prevents us from making any conclusions concerning Livy’s treatment of the consilium during this period. However, with the third decade (covering the years 218–201) the situation changes dramatically. Livy’s increased focus on the commander’s consilium during this decade is undoubtedly a function of the material covered—the Hannibalic War would have provided numerous opportunities (and richer source material) for its participation. The earlier Greek historian Polybius wrote a history in forty books attempting to explain to non-Romans the reasons for Rome’s rapid rise to world dominance in the fifty-three-year period from 220 to 168, from Hannibal’s attack on the Iberian city of Saguntum to the Roman victory at 12

Liv. 8.6.14 (for the year 340); 9.2.15 (321); 9.15.1 (320); 10.44.6 (293).

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Pydna on the north-eastern coast of Greece. 13 Polybius later expanded the scope of the work to include events down to 145. Given his express purpose, one would think that an institution as important as the commander’s consilium would figure prominently in his work, especially in the section on the Roman military system in Book 6. This is not the case—the section contains only three references to the commander’s consilium: the inclusion of the first centurion in the consilium; 14 the guards placed outside the tents of the members of the consilium; 15 and the consilium of the military tribunes, a tribunal which tried cases of negligence on the part of soldiers. 16 In fact, Polybius does report meetings of the general with his military tribunes in these earlier books; however, he does not explicitly identify these meetings as consilia (óõíÝäñéá) even though they clearly are. 17 It is not until Book 11 that Polybius refers to a consilium by the term óõíÝäñéïí. 18 How do we explain this apparent omission on Polybius’ part? Two factors, I believe, are in play: first, in the early Republic the role of the legates is slight—it is not until the Second Punic War that we really see the presence of legates (legati) in the commander’s entourage. 19 Thus we may see in the early period the infancy of the military advisory council, consisting primarily of the military tribunes alone. In addition, Polybius covers in greater detail the activities of those leaders he is most familiar with, and interested in—P. Cornelius Scipio Africanus, cos. 205, is a good example. 20 As for Livy, he frequently mentions the consilium even in his account of the regal period, but the vast majority of his references are very brief, noting merely that a consilium was held, and nothing further. This is not problematic when one considers that his Roman readers would have been

13 As he himself states at 1.1.5 and elsewhere—see F. W. Walbank, A Historical Commentary on Polybius I (Oxford 1957) 40. 14 Polyb. 6.24.2. 15 Polyb. 6.35.5. 16 Polyb. 6.37.1. 17 As at Polyb. 1.49.3 and 3.41.8. 18 Polyb. 11.26.2. He does, however, use the participle óõíåäñåýóáíôåò (literally, “having sat down together”) in reference to a consilium convened by Ap. Claudius Pulcher (pr. 215, cos. 212, pro pr. or legatus under M. Claudius Marcellus in 213) at the siege of Syracuse in 213 (8.7.5). 19 For legates in the consilium, see below at 1.3.6. 20 For the use of the consilium by Scipio Africanus see (inter alia) Polyb. 11.26.2, 14.2.11, and 15.1.6.

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quite familiar with the institution. They could easily supply in their own minds the details that we must extrapolate from Livy’s casual references. For the mid-first-century Roman historian Sallust, the characterization of the political elite he portrays is an important part of his monographs. How a general uses or abuses the consilium can shed light on his character. For example, in his account of the war against the Numidian prince Jugurtha, Sallust generally portrays Q. Caecilius Metellus (cos. 109, the later Numidicus) in a favorable light. At one point, Metellus is described as “a harsh man, and although an adversary of the populist faction, nevertheless his reputation was just and unimpeachable.” 21 Shortly afterward, Sallust remarks about Metellus that “I found him to be a great and wise man.” 22 Thus it comes as little surprise to see Metellus later depicted as acting more maiorum ex consili decreto (“according to accepted custom and upon his consilium’s advice”) in arranging the demands for Jugurtha’s surrender. 23 Metellus’ behavior is thus contrasted to that of his predecessor L. Calpurnius Bestia, who used his consilium not as a witness of his proper actions, but (so Sallust tells us) as a cover for his own misdeeds. 24 In addition to Livy, Polybius, and Sallust, there are scattered references to commander’s consilia in later works: in Plutarch’s biographies of Roman generals (written in Greek ca. AD 100) and in the Greek historian Appian’s (mid second-century AD) accounts of Roman wars. These are especially valuable for the period between 167, where Livy’s narrative breaks off, and the (comparatively well-documented) time of Cicero. One final source deserves special comment: in Julius Caesar’s commentaries on the Gallic and Civil Wars we have an account written by an experienced Roman general himself. The consilia depicted in Caesar’s narrative are consistent in their procedure with the earlier consilia found in other writers—a good indication that these earlier depictions (if not entirely historical) at least represent what the author thought could plausibly have occurred. Additionally, the presence of the commander’s consilium in Caesar shows its continuation into the late Republic. There is one noticeable difference between the commander’s consilia found in Caesar and those found in authors treating earlier periods of Ro21

lata.

BJ 43.1: acri viro, et quamquam advorso populi partium, fama tamen aequabili et invio-

BJ 45.1: magnum et sapientem virum fuisse comperior. BJ 62.5. 24 BJ 29.6. 22 23

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man history, however. As the leadership role of the legate expanded greatly during the last half-century BC, we see that individuals such as Caesar’s legate T. Labienus hold virtually independent (although still delegated) commands and therefore also convene consilia of their own. 25 Of the dozen or so consilia reported in the Bellum Gallicum and Bellum Civile, half are convened by legates having received imperium delegated by either Caesar or Cn. Pompeius Magnus (Pompey the Great). Interestingly, only two consilia of Caesar himself are reported, both in the Bellum Gallicum. 26 The purpose of these two meetings is not to solicit advice, but to pass on information. Throughout his commentaries Caesar provides much information on his mental processes, plans, and fears. Yet even in situations where he presents himself as in doubt as to what to do, 27 the decision made in the end is represented as his alone, with no mention of the employment of a consilium. It is difficult to see past the filter of Caesar’s own account. Perhaps he did consult his consilium and simply omitted any record of its participation, possibly in order to place greater emphasis on his own role. In any case, the picture that emerges is that of a supremely confident commander.

1.3 THE MEMBERS OF THE COMMANDER’S CONSILIUM We have very little explicit testimony to aid us in reconstructing the membership of the commander’s consilium. Livy seldom lists the members of the commander’s consilium by rank. But he was writing for Romans who would have been very familiar with the composition of the commander’s consilium, so there would have been little need for such details. Nevertheless, from an examination of numerous recorded commanders’ consilia we can acquire a reasonably secure idea of who would (and would not) have been admitted to the deliberations of the general.

Commands delegated to legati were not entirely unknown in earlier periods. For example, during the Second Hannibalic War men such as L. Cornelius Scipio and C. Laelius (later to serve as colleagues in the consulship of 190) and the notorious Q. Pleminius (legate of Scipio Africanus in 205) were entrusted with commands more extensive than those usually given to legates. We do not, however, find evidence of consilia summoned by these subcommanders. 26 BG 1.40 and 4.23. 27 For example, at BG 7.10: “this (the activity of the Gallic chief Vercingetorix) caused Caesar much difficulty in formulating a course of action” magnam haec res Caesari difficultatem ad consilium capiendum adferebat. 25

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1.3.1 Terminology of membership In the brief reports given in our sources, there are several different ways in which members of the consilium can be listed, for example, by name with the phrase “(to be) present in the consilium.” 28 Often, an ablative absolute with the verb adhibere (to summon) is used. 29 In place of their specific rank, the members of the consilium can also be listed by generic title (i.e. “officers” or “leaders”) or simply and most frequently as “those in the consilium.” 30 While consilium members are often referred to in Greek as óýìâïõëïé (advisors), the corresponding Latin term consiliarius is rarely used in the Republic to describe a member of the consilium. 31 1.3.2 The Military Tribunes The first reference by Polybius to military tribunes (÷éëéÜñ÷ïé) in the commander’s consilium occurs during his account of the First Punic War. 32 We are told that P. Claudius Pulcher (cos. 249) called together a meeting of the military tribunes and informed them of his intention to lead the Roman fleet against the city of Drepana (located on the western side of Sicily). Polybius also reports the presence of military tribunes in the consilium of P. Cornelius Scipio, cos. 218, near Massilia; 33 Ap. Claudius Pulcher, pr. 215, at the siege of Syracuse; 34 P. Cornelius Scipio Africanus, privatus with consular imperium for 206 in Spain; 35 T. Quinctius Flamininus, cos. 198 in Greece, 36

28 adesse (in consilio): Liv. 27.46.5: consilium habitum, cui et L. Porcius Licinus praetor adfuit (a consilium was held, at which L. Porcius Licinus, the praetor, was present). 29 Cf. Liv. 25.31.3, adhibitis etiam Syracusanis; 34.33.5, sociorum etiam principibus adhibitis; 37.19.1, adhibitis et Rhodiis; Caes. BG 1.40, adhibitis centurionibus. 30 Listed by generic title: “leaders” ìåôN ô§í ½ãåìïíéê§í Plut. Cor. 34.1; ½ãåìüíáò App. Pun. 19; ìåôN ô§í Pñßóôùí Pun. 53. “Those in the consilium/advisors”: ïj dí ô² óõíåäñßv, Polyb. 14.2.11, 15.1.7, 18.47.9, 21.16.10, 29.20.1, Diod. Sic. 30.23.1; óýìâïõëïé Polyb. 6.35.5 and 6.37.1, Cass. Dio 8.36.31. 31 The rarity of the term consiliarius cannot be due solely to chance, but shows a conscious avoidance of the term by Roman authors, likely due to its commercial connections, i.e., “advice-monger.” 32 Polyb. 1.49.3 (for the year 249). The meeting is not explicitly referred to as a consilium, but can be easily identified by the format. 33 Polyb. 3.41.8 (for the year 218). 34 Polyb. 8.7.5 (213). 35 Polyb. 11.25.8 and 11.26.2 (206). 36 Polyb. 18.34.5 (197).

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and M’. Acilius Glabrio, cos. 191 in Greece. 37 Livy specifically mentions military tribunes in the consilium at the Caudine Forks 38 and that of T. Quinctius Flamininus. 39 Military tribunes also appear in the consilium of two of Caesar’s legates, Q. Titurius Sabinus and L. Aurunculeius Cotta in 54. 40 1.3.3 The Quaestor The office of quaestor was traditionally the lowest rung of the Roman public career ladder (cursus honorum), normally held after the military tribunate. Two of these minor magistrates would remain in the city; the rest would each be attached to the staff of a magistrate in the field, to act as a sort of financial officer for the army. There can be little doubt that the quaestor would have served on the consilium of the magistrate militiae. And yet, substantial evidence is lacking. It is difficult to believe that we do not have one single explicit attestation of a quaestor participating in the commander’s consilium, but such is the case. E. Badian notes the general tendency for quaestors militiae to escape notice in our sources: unfortunately quaestors hardly ever get into the record at all, and those in the city are more likely to than those militiae… In the long commands of the Hannibalic War, in the great Eastern commands of the second century, and in the prolonged campaigning in Spain, hardly a single quaestor is attested. 41

The following citations make a good case for the presence of the quaestor in the consilium: Cicero refers to C. Verres, when serving as quaestor to Cn. Papirius Carbo in 84, as particeps omnium rerum consiliorumque, 42 but this use of consilium could be taken figuratively as well: “a participant in all (his) affairs and plans.” Along the same lines, in the Pro Sestio Cicero makes the claim that the defendant P. Sestius was by lot the quaestor of C. Antonius, his partner in the consulship of 63, but by virtue of Sestius’ participation in Cicero’s counsels (societate consiliorum) he became Cicero’s quaestor. 43 Cicero also takes C. Verres to task for failing to summon his quaestor T. Vettius to his consilium in the infamous trial against Sicilian Polyb. 20.10.10 (191). Liv. 9.2.15 (321), see 2.4.5. 39 Liv. 34.35.1 (195). 40 Caes. BG 5.28; see 2.2. 41 “The Silence of Norbanus” AJPh 104 (1983) 164. 42 Verr. 2.1.40. 43 Sest. 8. 37 38

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naval commanders in 71. 44 If it had not been the custom for quaestors to participate in the consilium of the provincial governor, Cicero’s criticism would be difficult to understand. Another instance: among the partisans of the defeated general L. Domitius Ahenobarbus whom Caesar ordered to assemble before him in the town of Corvinum in 49 is one Sex. Quinctilius Varus, the quaestor for that year. Can those so assembled be regarded as the members of Domitius’ consilium? I believe so. 45 Likewise, the presence of the quaestor M. Claudius Marcellus Aeserninus in the consilium of Q. Cassius Longinus, pro praet. in 48, is implied but not certain. 46 In addition to his financial duties, the provincial quaestor clearly also served as military aide-de-camp. He was probably next in official rank to the commander. Supporting evidence comes from Polybius, who notes that while the quaestor’s tent receives three guards, those of the legates serving on the consilium receive only two. 47 Also in support of the quaestor’s preeminence is the general tendency for a magistrate of consular imperium to appoint his quaestor to serve pro praetore (that is, with the delegated imperium equal to that of a praetor) in his absence. 48 In the event of the magistrate’s death, the quaestor might replace

44

126.

Verr. 2.5.114. For the date, see T. C. Brennan, PRR II 491 with nn. 95 and

Caes. BC. 1.23. [Caes.] B. Alex. 57.4: "having hastily held a consilium, he [Longinus] sent the quaestor M. Marcellus to Cordoba" celeriter habito consilio Marcellum quaestorem Cordobam….mittit. 47 Polyb. 6.35.4: ãßíïíôáé äE ©ò dðßðáí ôñåsò öõëáêár ðáñN ô’í ôáìßáí, êár ðáñE fêáóôïí ô§í ðñåóâåõô§í êár óõìâïýëùí äýï, “There are generally three guards at the quaestor’s tent and two at [the tents] of each of the legates serving on the consilium.” Along with Walbank (I 718) I interpret the Greek phrase ô§í ðñåóâåõô§í êár óõìâïýëùí not as two separate entities, “of the legates and of the members of the consilium,” but as one single term, following the analogy discussed below under legati in the consilium. Paton’s translation of “each of the legates and members of the council” in the Loeb edition is less accurate. H. J. Mason, Greek Terms for Roman Institutions (Toronto 1974) 153, also notes the tautology of Polybius’ usage here. 48 As J. P. V. D. Balsdon, “Roman History, 65–50 B.C.: Five Problems” JRS 52 (1962) 134, notes. L. A. Thompson, “Cicero’s Succession Problem in Cilicia” AJPh 86 (1965) 374, cites Cicero’s letter to Q. Minucius Thermo (ad Fam. 2.18.2) as support for this, adding, however, that in the choice between a quaestor and a legate of higher than quaestorian status, the magistrate “would normally give preference to the legate.” 45 46

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him. 49 The Romans considered the relationship between the magistrate and his quaestor to be a close one, resembling that between a father and son. 50 This relationship continued even after the term of duty came to an end. Thus Cicero was able to claim that Q. Caecilius Niger ought to be rejected as Verres’ prosecutor, because Caecilius had served as quaestor to Verres in Sicily in 72. 51 These ties of obligation appear to have extended to all the members of the consilium. Cicero rails against C. Appuleius Decianus for prosecuting L. Valerius Flaccus, pro cos. in Asia in 62, because Decianus had been a member of Flaccus’ military consilium (although their fathers had been enemies). Cicero clearly portrays Decianus’ actions here as a violation of his previous relationship with Flaccus: quae quidem quam sancte solita sint observari scitis omnes. nunc accusamur ab eis qui in consilio nobis fuerunt (“Indeed, you all know how religiously these customs are followed. Now we are being accused by those who served on our consilium”). 52 1.3.4 The Prefects In Latin, the term praefectus denotes anyone placed in charge of a given task or group. In the Roman Republican army, prefects were those placed in charge of certain specific contingents: allied troops (the praefectus socium), cavalry (praefectus equitum), engineers (praefectus fabrum), and fleet (praefectus classis). On the presence of prefects (praefecti) in the commander’s consilium, J. Suolahti states, “Since the military tribunes and the prefects are mentioned as members of the council of the commander (consilium), as well as in many other connections, their military rank seems to be approximately equal.” 53 As evidence in support of this statement he cites four passages,

As Badian, AJPh 104, 161, notes. For example, at Cic. Div. Caec. 61: sic enim a maioribus nostris accepimus, praetorem quaestori suo parentis loco esse oportere, “Indeed, we have received from our forefathers (the notion that) a praetor ought to be in the role of a parent to his quaestor.” This quasi-familial relationship was not limited to magistrates and their quaestors. At Liv. 4.42.7, four cavalry decuriones describe their former commander as someone “who was in the role of a parent to them” (qui sibi parentis esset loco). 51 See L. A. Thompson, “The Relationship Between Provincial Quaestors and Their Commanders-in-Chief” Historia 11(1962) 339–355. 52 Cic. Flac. 77. 53 J. Suolahti, The Junior Officers of the Roman Army in the Republican Period: A Study on Social Structure (Helsinki 1955) 201. 49 50

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two from Livy and two from Appian. 54 Of the four citations, two have nothing to do with the presence of praefecti in the consilium. 55 First, at Liv. 42.58.4 we learn that the tribunes, praefecti and centurions attached to P. Licinius Crassus (cos. 171) ran to the praetorium in alarm after a surprise attack by Perseus’ army. No consilium is mentioned. 56 Next, Appian relates how C. Terentius Varro, cos. 216, complained about his colleague, L. Aemilius Paullus, in the presence of “those from the Senate, the centurions, and the military tribunes” (ðáñüíôùí hôé ô§í ôå Pð’ âïõëyò êár ôáîéÜñ÷ùí êár ÷éëéÜñ÷ùí). From the narrative which follows, it becomes obvious that a consilium is in fact in session, but there is no mention at all of the presence of praefecti. 57 Liv. 26.15.6, although somewhat ambiguous, can probably be taken for proof of the presence of the praefecti in the consilium: “[Q.] Fulvius [Flaccus, the cos. of 212], so that [the letter from Rome on the fate of the Capuan senators] not prove to be an obstacle to his undertaking, dismissing the council, gave orders to the military tribunes and praefects of the allies…” (ne id ipsum impedimentum incepto foret, dimittens praetorium tribunis militum ac praefectis socium imperavit). The present participle dimittens does suggest that the dismissal of the consilium was simultaneous with the order given to the officers (and therefore that they were present). 58 Of the four examples, App. Hisp. 79 is the only clear evidence for the participation of the praefecti in the consilium: when Q. Pompeius, (cos. 141 and pro cos. 140– 139) in Spain, began to deny that he had made any arrangement with the Numantines in 139, they introduced as witnesses “those who had been present [at the negotiations], senators, and prefects of the cavalry and military

Liv. 26.15.6, 42.58.4, App. Hisp. 79 and Hann. 19. There are similar inconsistencies in Suolahti’s treatment of the commander’s consilium. His index cites references to the general’s council on pages 191 and 217; no such references occur. On page 215, Suohlati refers to the summoning of junior officers to the concilium (sic) of the commander-in-chief (again citing as proof Liv. 42.58.4, among other passages). 56 Although the praetorium was the location where military consilia were normally held, the simple statement that these officers ran towards the praetorium is not in itself evidence of their participation in the commander’s consilium. 57 Hann. 19. 58 This is the only occurrence in Livy of the present participle of this verb. The ablative absolute is more common, as at 27.46.12 consilio dismisso signum pugnae proponitur and 42.57.4 consilio dismisso signum extemplo datur (action subsequent to the dismissal of the consilium). 54 55

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tribunes of Pompeius himself.” 59 The most convincing evidence for the inclusion of praefecti in the consilium of a magistrate militiae comes from Cicero’s Verrines: when Cn. Cornelius Dolabella, pro cos. in Cilicia in 80, travels to Asia to join the consilium of C. Claudius Nero in the trial of Philodamus of Lampsachus, he brings his praefecti and military tribunes to take part as well, at Nero’s request. 60 1.3.5 The Centurions One other member of the commander’s consilium should be noted here. In his section on the Roman military system, Polybius notes that the first man elected to the post of centurion (whom Walbank identifies as the primus pilus prior) takes part in the consilium. 61 In the later army of the cohort, however, the first centurion from each of the primi ordines (that is, the first maniple of the hastati, principes, and triarii) would take part in the consilium. 62 All these members of the consilium would participate by virtue of their elected or appointed position. But there would have been additional advisers present solely at the behest of the commander. These legates (legati, from the Latin verb, “to choose”) were an increasingly important component of the commander’s consilium in the period following the Second Punic War. Before I examine the presence of legati in the consilium, first it is necessary to discuss briefly the term itself. 63

59 …ôïsò ôüôå ðáñáôõ÷ï™óéí Pðü ôå âïõëyò êár jððÜñ÷ïéò êár ÷éëéÜñ÷ïéò ášôï™ Ðïìðçßïõ. For the importance of the consilium as a witness during these types of

negotiations, see 2.4.4. 60 Verr. 2.1.73. Verres himself, legate to Dolabella, went as well. To be sure, Cicero faults Dolabella for leaving his provincia to attend the consilium, but shows no explicit disapproval about the participation of his praefecti, even though they are later depicted as “fighting alongside Dolabella” for Philodemus’ conviction (Verr. 2.1.74). For further discussion of the trial, see 4.4.1. Liv. 24.28.8 (for the year 214) adds an interesting comparandum: as the Carthaginians deliberate, adiectum est praetoribus ac delectis senatorum militare etiam consilium; iussi et duces ordinum praefectique auxiliorum simul consulere (“to the ‘praetors’ and selected senators was added also a military consilium; both the commanders of the units and the prefects of the auxiliaries were ordered to attend”). 61 Polyb. 6.24.2. 62 Walbank, I 707, citing Caesar BG 5.30 and 6.7. 63 The lucid discussion of J. Linderski, “Roman Officers in the Year of Pydna” AJPh 111 (1990) 53–71 (= RQ 301–319) is closely followed here.

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1.3.6 The Legates Varro in his de Lingua Latina defines legates as “those men, having been selected publicly, whose services and advice the magistrate in the field uses, or those who serve as messengers for the Senate or People.” 64 Cicero gives a similar list of functions: the legati announce peace and war, they serve as envoys and interpreters, they give military advice, they carry out administrative duties in the provinces. 65 It is important to remember that the Romans saw no difference constitutionally between legates who fulfilled advisory roles, for example, and those who were dispatched on diplomatic missions. The methods of appointment would have been identical, and both would have been given the same designation of legati. Furthermore, any legate could carry out more than one of these functions at any given time. Broughton, in his Magistrates of the Roman Republic, divides all publicly selected legati into three categories based on function (“Ambassadors,” “Envoys,” and “Lieutenants”). He defines the three categories as follows: “…Ambassadors, who were sent officially by the Senate to deal with foreign powers; Envoys, who were sent by the Senate to magistrates or officials, or by these to the Senate or each other; and finally, Lieutenants, who served with definite military functions.” 66 Greek writers also use several terms to translate the Latin word legatus based on their awareness of the different functions of these men: ðñåóâõôÞò or the equivalent for ambassadorial functions; óýìâïõëïò for a legatus serving as a counselor; and ›ðïóôñáôçãüò or Píôéóôñáôçãüò for a legatus acting as lieutenant. 67 Combinations of these designations are then used to indicate when a legatus performs more than one of the three functions simultaneously. 68 If one keeps in mind that the Romans themselves did not recognize these same distinctions, and avoids the pitfall of treating an “envoy” (for 64 LL. 5.87: qui lecti publice, quorum opera consilioque uteretur peregre magistratus, quive nuntii senatus aut populi essent. 65 Vatin. 35. 66 MRR I x. 67 The various terms (with citations) are conveniently outlined in B. E. Thomasson, Legatus: Beiträge zur römischen Verwaltungsgeschichte (Stockholm 1991) Appendix I. 68 i.e., ðñåóâåõôÞò ôå êár óýìâïõëïò at Diod. Sic. 37.8.1; Píxñ ðñåóâåõôxò óôñáôçãéêüò at Plut. Sulla 6.9. Cassius Dio (frag. 36.30–31) reports that in 292, Q. Fabius Maximus Rullianus served as legate to his son Q. Fabius Maximus Gurges during the Samnite War. The elder Fabius is termed not only ›ðïóôñáôçãüò, but also óýìâïõëïò and ›ðáñ÷üò.

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example) as a different office from that of “advisor,” then such subdivisions can be useful in organizing the vast amount of information on the legati. The mode of appointment for legati lecti publice was most likely a SC recommending legati to be chosen from the Senate, or alternatively, authorizing the magistrate to appoint his own, although the subsequent approval of the Senate was still probably formally obtained. 69 Polybius refers to these publicly selected legates as “nominated by the consuls.” 70 Of course, a magistrate presiding over the Senate would have had the power to select his own legati for a subsequent campaign. 71 These legates were in all probability selected exclusively from the senatorial class. 72 The precise number of legati assigned to a consul increased over the course of the Republic. Originally, it appears that a consul received three legati, a praetor, two. 73 Five legati appears to be the normal number during the first century. Appian records five legati assigned to each consul during the Civil War. 74 Thus Cichorius ranks the first five members of the consilium of Cn. Pompeius Strabo in 89 as legati. 75 Occasionally during the Republic the number would be increased via special legislation—Pompey is said to have eventually received a total of twenty-five legates for his campaign against the pirates through the lex Gabinia of 67, Julius Caesar re-

Liv. 33.24.7: the Senate appoints P. Sulpicius Galba Maximus, cos. 200 and P. Villius Tappulus, cos. 199 as legates to T. Quinctius Flamininus, cos. 198); 43.1.10: Senate decrees that the praetor urbanus C. Sulpicius (Galba, pr. 171) choose legates; 44.18.2: L. Aemilius Paullus, cos. desig. 168, asks the Senate to send legati to Macedonia to inspect the army and the fleet, and the Senate gave the task to the current cos. Cn. Servilius Caepio. For senatorial approval of a magistrate’s legati, see Schol. Bob. on Cic. Vat. 35. 70 Polyb. 35.4.5: ôï˜ò åkóöåñïìÝíïõò ›ð’ ô§í ›ðÜôùí. 71 Sall. BJ 28: Calpurnius [consul] parato exercitu legat sibi homines nobiles, “Calpurnius, with the army in readiness, chose for himself [as legates] men of noble rank” (i.e., from consular families), cf. Plut. Flam. 3, Cic. Att. 2.18.3. 72 Cic. Att. 13.20.3, Vat. 35, Sest. 66, Lig. 20. See Willems, Sénat II 608, maintained by Linderski, “Roman Officers,” 54. Schleussner disagrees. Many nonsenatorial legati appear in his appendix of all known legates in the period 218–49. The problem here of course is where to draw the line—for example, would the members of the cohors amicorum (see below at 1.3.7) be considered “legati”? 73 See Willems, Sénat II 611–2. 74 BC 1.40. 75 Cichorius, Römische Studien 137. 69

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ceived ten for Gaul via the lex Vatinia of 59, and in 55 the lex Pompeia Licinia again allotted him ten (later increased to twelve). 76 The publicly-appointed legati make their first definite appearance in the assignments for the year 197. 77 Livy notes: Macedoniae legatos P. Sulpicium et P. Villium, qui consules in ea provincia fuerant, adiecerunt. Livy also states that at a joint consilium convened in 211 by the prorogued consuls of 212, Ap. Claudius Pulcher and Q. Fulvius Flaccus, “legates” of both the consuls were present. 78 And yet “legati” in the consilium are attested by Livy as early as 321. 79 Who are these “legati” who appear in Livy’s narrative prior to the Second Punic War? The answer lies in the anachronistic tendencies of our sources and their imprecision concerning the word “legatus.” As Linderski points out, legati were selected by the Senate to aid the magistrate militiae in specific military operations. 80 However, the commander was not limited in his entourage to these senatorial, i.e. publicly-appointed legati. He could, and often did, select other men (including military tribunes) to carry out tasks on an ad hoc basis. Apparently, Livy’s annalistic sources also called these men legati, from the verb legare, “to choose.” 81 As one might expect, this imprecise annalistic usage causes confusion, not only between those legati chosen by the Senate and those picked personally by the magistrate, but also between legati and other military officers. According to this usage any man chosen for any task could be termed a legatus, even one already holding an office such as the military tribunate. An example of the confusion caused can be seen in the case of Q. Mucius Scaevola (cos. 174). In his description of the consul P. Licinius Crassus’ departure from Rome in 171 (42.49.9), Livy notes that two consulares 76 Pompey: Plut. Pomp. 25, App. Mith. 94. Caesar: see MRR II 190 for the year 59 under P. Vatinius, tribune of the plebs, for the sources on the lex Vatinia; on the lex Pompeia Licinia, see MRR II 215 under the consuls for the year 55. For Caesar’s innovative use of this increased complement of legati, see 3.14.3. 77 Liv. 32.28.12. 78 Liv. 26.15.1 and 26.33.7. M. Atilius Regulus (pr. 213) is listed as a legate of Flaccus, and Q. Minucius Rufus (cos. 197) and L. Venturius Philo (cos. 206) as legates of Claudius. 79 9.2.15, in the army of the coss. T. Veturius Calvinus and Sp. Postumius Albinus. 80 “Roman Officers,” 53. By “senatorial” legates, Linderski means those men chosen by the Senate, i.e., the legati lecti publice. 81 On the terminology, see Mommsen, R.-St.R. 2.676f.

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were sent with Crassus as military tribunes: C. Claudius (Pulcher, cos. 177) and Q. Mucius (Scaevola). But Scaevola appears later in Livy’s narrative as a legatus, sent by Licinius with two thousand men to hold the town of Ambracia. 82 Similarly, Livy at one point calls P. Cornelius Lentulus (pr. 165, cos. suff. 162) “tribunus militum” but later terms him a “legatus.” 83 In the case of L. Valerius Flaccus (cos. 195), attached to the consul M’. Acilius Glabrio in 191, evidence from other authors shows that Livy is employing the looser annalistic definition of legatus. Flaccus’ office was clearly that of military tribune—he is not only labeled as such by Polybius, 84 but Appian also calls both Flaccus and his colleague in the consulship, M. Porcius Cato, “military tribunes.” 85 Additionally, Cato’s election to the military tribunate is recorded by both Cicero and Frontinus. 86 But Livy calls both Flaccus and Cato “legati.” 87 The problem of distinguishing senatorial vs. non-senatorial legati has no simple solution. The best that we can do is be aware of the anachronistic tendency of our sources to introduce “legati” into military events prior to the Second Punic War, and realize that in the absence of additional clarifying evidence there is no clear way of distinguishing between senatorial and non-senatorial legati in the subsequent period of Roman history. Where there is reason to believe that the sources are using the term anachronistically, I will so indicate, but generally I reserve the term “legatus ” by itself to mean those men publicly appointed by the Senate to assist the magistrate, and use the term “personal” or “unofficial” legate to indicate those members of the general’s entourage who were selected by him on an unofficial basis. These “unofficial legates” became more and more common as the Republic grew, and eventually developed into a sort of private retinue, as the following section shows.

Liv. 42.67.9. “tribunus militum”: 42.49.9; “legatus”: 42.56.4. 84 20.10.10 (191): ¿ äc Ëåýêéïò êáß ôéíåò fôåñïé ô§í óõìðáñüíôùí ÷éëéÜñ÷ùí (“Lucius and certain others of the military tribunes also present”). 85 Syr. 18. 86 Cic. Sen. 32; Frontin. Str. 2.4.4. 87 Liv. 36.17.1 (191): consulares legatos. The context appears to support the annalistic usage. Flaccus and Cato have each been ordered by the consul M’. Acilius Glabrio to lead a detachment of two thousand men against specific strongholds of the Aetolians during the battle at Thermopylae in 191. Their designation as legati here may refer strictly to this specific assignment. 82 83

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1.3.7 The Cohors Amicorum The private retinue of the magistrate militiae as a group was generally referred to by the term cohors amicorum (“troop of friends”) or occasionally cohors praetoria. 88 The term comites is also used as a synonym for cohors amicorum. 89 The phrase cohors amicorum appears to have been applied first to the large retinue that P. Cornelius Scipio Aemilianus took with him to Numantia in 134. 90 Of course, generals certainly brought informal entourages with them to their provinciae before Scipio. 91 According to Sallust, when Q. Caecilius Metellus (cos. 109) received word that the Numidian prince Jugurtha was ready to surrender, he ordered all those of senatorial status summoned from winter quarters to attend a consilium, as well as “others whom he considered suitable.” 92 Likewise, C. Marius (pro cos. 105) summoned all persons of senatorial rank to a consilium in Cirta when he received the envoys from King Bocchus of Mauretania. 93 In fact, it seems to have been the custom for the commander to invite to the (ceremonial) consilium all persons of senatorial rank (and perhaps their sons) who happened to be in the area, including magistrates in charge of nearby provinciae. However, no such restriction appears to have been placed on the socalled “personal” legati of the magistrate. He could choose companions from among his relatives, friends, and their sons. Even foreigners were sometimes invited to attend. Appian tells us that Scipio Africanus included Syphax, the Numidian chief, in at least one consilium, on the grounds that

88 RE s.v. cohors amicorum. The term cohors praetoria derives from the headquarters tent, the praetorium, and reflects the primarily military function of these companions. 89 While Cicero also uses the terms comites and cohors praetoria to refer to the general’s personal employees, such as his lictors, accensi and scribae, it is usually sarcastic and pejorative. The members of the general’s personal staff clearly did not have the same status as his friends, and were not normally members of the consilium per se. See section 4.4.2. 90 App. Hisp. 84 preserves the Greek translation “ößëùí nëç.” 91 See Badian, OCD3 s.v. “provincia.” 92 Sall. BJ. 62.4. It follows logically that these other suitable advisors would not be of senatorial status. 93 Sall. BJ. 104.1–2. His consilium also included the governor of the nearby provincia of Africa, the praetor L. Bellienus.

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Syphax had shown himself to be intelligent and knew the country. 94 Another Numidian, Jugurtha, was a member of the cohors amicorum of Scipio Aemilianus. According to Plutarch, L. Licinius Lucullus, cos. 74, made a certain Dandarian by the name of Olthacus a member of his consilium, who later showed his loyalty by attempting to assassinate Lucullus while he slept. 95 M. Licinius Crassus, pro cos. against the Parthians in 53, unwisely allowed Andromachus of Carrhae to share in his deliberations, and was betrayed by him to the Parthians and killed. 96 It appears that allowing foreigners into one’s consilium carried its risks. If the participation of such literary figures as Q. Ennius (in the entourage of the consul M. Fulvius Nobilior in Aetolia in 189) 97 and Catullus (comes of C. Memmius, pr. 58, in Bithynia-Pontus) is any indication, military experience did not always appear to be of primary importance in choosing one’s comites. 98 In Carmen 28 Catullus has some entertainment at the expense of his friends Fabullus and Veranius, whom he styles “the companions of Piso, the empty-minded cohort” (Pisonis comites, cohors inanis). Piso is probably to be identified with L. Calpurnius Piso Caesoninus, cos. 58, who governed Macedonia in 57–6. 99 What did these literary types do on campaign? One doubts whether they played much of a role in the deliberations of the camps. Perhaps they, like certain of Caesar’s companions in Gaul, accom-

App. Pun. 28 (203). It seems likely that here Appian is referring to the consilium held at Scipio’s camp to which Syphax is brought as a captive (Liv. 30.13.1ff.), for according to Livy, shortly after his surrender Syphax was sent to Rome (30.16.1). Livy tells us that Syphax addresses Scipio at this consilium, but only to place the blame for his actions on Sophroniba, his Carthaginian wife, who had driven him mad. Whether Appian’s report is inaccurate or not, it does show that the presence of a foreign king at a Roman consilium was not thought totally implausible. 95 Plut. Luc. 16.3. The Dandarians were a tribe from the area of the Bosphorus. The same story is told by Appian at Mith. 79, but here the assassin is a Scythian named Olcaba. The attempt is averted by Lucullus’ guards. 96 Athen. 6.252D [Nic. Dam. FGrH 2A. 378]. 97 See G. B. Conte, Latin Literature: a history (Baltimore 1994) 75. 98 Cat. Carm. 10; 46. See R. Syme, “Piso and Veranius in Catullus” C&M 17 (1956), 129–34. The poet Horace at least served as a military tribune under M. Iunius Brutus (pr. 44) in Asia Minor in 43–42—see Satire 1.6.48 and esp. 1.7.22f, where he describes a judicial consilium held at Clazomenae. 99 See MRR II 202–3 on Piso and K. Quinn, Catullus: the Poems (New York 1970) 172–175. 94

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panied the general for personal reasons and not for any great enthusiasm for military life. 100 1.3.8 The Consilium as Training Camp There are three ways in which those who aim for a thorough knowledge of generalship may reasonably hope to obtain it, first through military memoirs and the preparation derived from them, second, through methodology transmitted by experienced men, and third, through the routine of the matter itself. 101

The above passage gives Polybius’ view on military training. Military success was of paramount importance for the Roman senatorial class. 102 By Polybius’ day, every Roman aristocrat was required to fulfill ten years of military service in order to be eligible for political office. 103 It is difficult, however, to determine how much of the ten years would be spent in actual campaigning, let alone in a leadership position, and how much opportunity there would be to gain first-hand experience in high-level strategy-planning, the sine qua non of any competent general. To be sure, a commander could delegate imperium to a subordinate, thereby allowing legates and military tribunes to serve as sub-commanders (a phenomenon that became increasingly more frequent towards the end of the Republican period) but these duties did not always ensure that they would gain the sort of independent command experience necessary to mount a large-scale campaign successfully. 104 Leading a cohort against the 100 Caes. BG 1.39.2: “[those] who having followed Caesar from the city out of friendship did not have a great deal of experience in military matters,” ex urbe amicitiae causa Caesarem secuti non magnum in re militari usum habebant. 101 Polyb. Histories 11.8.1–2. E. Shuckburgh. translator. (London, New York 1889. Reprint Bloomington 1962). 102 See W. V. Harris, War and Imperialism in Republican Rome, 327–70 B.C. (Oxford 1979), 10ff. 103 Polyb. 6.19.5. This assumes service in the cavalry (the normal branch in which a young nobilis would serve) rather than the infantry, which carried a sixteenyear term of service. 104 As F. E. Adcock, The Roman Art of War Under the Republic Martin Classical Lectures v. 8 (Cambridge 1940) 102, points out: “For centuries the normal Roman commander was a magistrate or ex-magistrate in his thirties or forties, who had seen a very few years of military service perhaps in no campaign of moment, whose preoccupations had been civilian in the main, who usually had little if any knowledge of formulated military science and no more training than he could derive from

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enemy was one thing; devising long-term strategy for an entire legion or more was another. So how could the enterprising young military tribune or legate gain this knowledge? In the mid-to-late Republic there were several military handbooks to which the fledgling leader might turn for guidance. 105 These would have included Polybius’ own Treatise on Tactics, no longer extant, and the De re militari of the early historian L. Cincius Alimentus. 106 M. Porcius Cato the Elder, censor in 184, produced a military textbook, also called the De re militari. In addition, there were several other military guidebooks written by Greek authors. 107 It has been suggested that Polybius relied on a textbook for military tribunes to aid him in his reconstruction of the Roman camp. 108 Nonetheless, no amount of research could have compensated for actual leadership experience. Cicero praises those generals who got their military knowledge not from books, but from military accomplishments and victories. 109 The limitations of the Roman Republican system of government often exacerbated this problem. Consuls and praetors were elected to one-year terms, which could be spent either in Rome or on campaign, or both. These terms could be prorogued, and the imperium of the magistrate extended for an additional year or more, but often it was the case that a general would be replaced at the end of the campaign year. His provincia would be passed on to his replacement, but not the experience gained in the year of campaigning: the new commander would begin from square one. In this scenario, the commander’s consilium would play a crucial role: to advise the new commander in all levels of strategy. Surely this is one explanation for the prevalence of the consilium in every type of military situation. generals of his own family or generals under whom he may have served.” The point is also made by B. Campbell, “Teach Yourself How to Be a General” JRS 77 (1987) 20 n. 42. 105 As W. J. Tatum points out in AJPh 113 (1992) 639. 106 RE s.v. “Cincius” 5. He was praetor in 210 (for Sicily) and was captured by Hannibal (Liv. 21.38.3). His military treatise is quoted at Gell. 16.4. 107 Sallust (BJ 85.12) portrays C. Marius as ridiculing those who, upon reaching the consulship, read the Greek military handbooks for the first time: “For (Sallust has Marius continue) although the duties which the office requires follow one’s election temporally, in real life they (should) come first.” 108 See Walbank, I 711, on Polyb. 6.27f. 109 Font. 43: non litteris homines ad rei militaris scientiam, sed rebus gestis ac victoriis eruditis.

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Could it really be the case, however, that a Roman could reach the consulship with little or no previous command experience? When we look for proof of this phenomenon of the “inexperienced general” in the ancient sources, it is not so easy to find. Although we have references to inexperienced commanders in Appian, 110 both Polybius and Livy, our main sources on military matters during the Republic, are curiously silent on the subject. N. Rosenstein has proposed that there existed a “myth of universal aristocratic competence” propagated by the Roman elite, from which pool the commanders would be drawn. According to his theory, it was thought necessary for the public to believe that all those who might be called upon to serve as generals would be equally competent, to prevent a small number of men with extensive military experience from gaining an unfair advantage at the polls. 111 This would thereby prevent a dangerous concentration of power into the hands of a few individuals. Rosenstein’s theory is novel and intriguing, but not easily provable. As W. V. Harris points out, evidence for this “myth of universal aristocratic competence” exists nowhere in our ancient sources, and tends to be contradicted by the election of men of proven military accomplishment in times of war. 112 Furthermore, if the main purpose of the commander’s consilium was to guide an inexperienced commander, we might therefore expect to find it less commonly depicted in the passages that detail the activities of skilled generals such as P. Cornelius Scipio Africanus and L. Aemilius Paullus. This is not the case. In fact, the direct opposite is true—a large percentage of our knowledge of the commander’s consilium comes from these very accounts, showing that Livy and Polybius (at least) saw nothing unusual in an experienced commander’s frequent employment of the consilium.

110

For example, at App. Mith. 51 L. Valerius Flaccus, cos. suff. 86, is termed

Pðåéñïðüëåìïò, “ignorant of war”; C. Aurelius Cotta, cos. 74, Póèåíxò ôN ðïëÝìéá ðÜìðáí “totally without strength in warfare” (App. Mith. 71); M’. Manilius, cos. 149, ïšäc ôTëëá −í dìðåéñïðüëåìïò “not experienced in war” (App. Pun. 102).

N. Rosenstein, Imperatores Victi. Military Defeat and Aristocratic Competition in the Middle and Late Republic (Berkeley 1990) 173. See also his similar arguments in CPh 85 (1990) 255–265, esp. 257–8. 112 W. V. Harris, CPh 85 (1990) 289. As examples, he cites Scipio Africanus (granted consular imperium although a privatus in 210) and Scipio Aemilianus (elected consul in 147, although not yet eligible). See also W. J. Tatum, AJPh 113 (1992), where he cites the elections of Scipio Africanus, C. Marius, and Pompey the Great as proof that military glory was often an important factor in winning election. 111

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So we are left with two important questions: where did these commanders gain the requisite leadership experience, and what role (if any) did the commander’s consilium play in providing this experience? A close look at the evidence shows that the military consilium was not only a resource for valuable advice for the commander, but also a “training camp” for those making their way up the cursus. The sons of senators often found themselves unofficially attached to the staff of a general, usually a relative or family friend. 113 These young members of the elite (often called tirones, “raw recruits” or contubernales, lit. “tentmates”) would see first-hand the workings of war by their presence at the general’s planning sessions, and thereby acquire the skills necessary for later military success. 114 For example, Q. Fabius Maximus Aemilianus served with his father the consul L. Aemilius Paullus at Pydna in 168. He would have been about eighteen at the time. Tiberius Gracchus served as a young man under Scipio Aemilianus in Africa in 146, sharing his commander’s tent and (allegedly) quickly understanding his nature (Plut. TG 6.4). The experience (according to Plutarch) provided many great opportunities to emulate Scipio’s excellence. C. Marius, aged about twenty-five, was part of the large cohors amicorum of Scipio Aemilianus at Numantia (Cic. Balb. 47). Q. Caecilius Metellus Pius, cos. 80, served on the personal staff of his father Q. Caecilius Metellus Numidicus, cos. 109, during the Jugurthine War at about the age of twenty (Sall. BJ. 64.3). Cn. Pompeius (Pompey the Great), son of Cn. Pompeius Strabo, cos. of 89, was a member of his father’s consilium at Asculum, although he was only seventeen years at the time (ILS 8888). At twenty M. Caelius Rufus joined the staff of Q. Pompeius Rufus, pro cos. in Africa 62–

113 This type of assignment is not listed in MRR, as the tirones would naturally not be considered to have held magistracies of any kind. E. Gardner, Speeches of Cicero (Cambridge, Mass. 1958) vol. 2, notes on Cic. Cael. 73: “It was common for a young man after his tirocinium fori to go as an aide-de-camp or companion (comes) to a provincial governor to gain knowledge of war, or experience in administration. This attachment was called contubernium militare.” Livy notes (21.59.10) that among those Romans captured by the Ligurians in 217 were five members of the equestrian order, most of them senators’ sons. 114 A. K. Goldsworthy, The Roman Army at War (Oxford 1996) 169, notes the importance of first-hand experience for military leaders: “The ability to ‘read’ a battle and direct reserves accordingly could only have been learnt by experience. Service in subordinate ranks or as a contubernalis of another commander could contribute towards this experience.”

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61, as a contubernalis, perhaps due to his father’s property in the area. 115 When Caesar ordered the entourage of L. Domitius Ahenobarbus at Corvinum to appear before him, the group included the sons of senators. 116 Not surprisingly, the lessons young Romans learned while attending the consilium of the general included more than military expertise. According to Livy, L. Aemilius Paullus presented the situation of the defeated Macedonian king Perseus as an example of the mutability of human affairs, directing his lecture specifically to the young men in the consilium: “Exemplum insigne cernitis,” inquit, “mutationis rerum humanarum. Vobis hoc praecipue dico, iuvenes. Ideo in secundis rebus nihil in quemquam superbe ac violenter consulere decet nec praesenti credere fortunae, cum quid vesper ferat incertum sit. Is demum vir erit, cuius animum neque prosperae res flatu suo efferent nec adversae infringent.” “You see before you,” he said, “a striking example of the mutability of human affairs. I say this chiefly to you young men. Therefore, it is fitting in prosperous circumstances to counsel neither arrogantly nor forcefully against any man, nor to trust in the good fortune of the present day, when what evening brings is yet uncertain. The true man will be he whose disposition is neither made fierce by the winds of success nor crushed by those of adversity.” 117

When the magistrate in charge of a campaign lacked extensive previous command experience, he tended to surround himself with seasoned staff officers. The most famous example is Marcus Tullius Cicero. At about seventeen years of age, Cicero served as a contubernalis, first to Cn. Pompeius Strabo and then to L. Cornelius Sulla in 89. 118 This appears to be his only foray into military matters for nearly forty years. When in 51, Cicero was finally compelled by the lex Pompeia de provinciis to take up Cilicia as his province, two of the four legates attached to Cicero were men of considerable military experience: Cicero’s brother Quintus 119 and the triumphator C. Cic. Cael. 73. Caes. BC 1.23. Besides Domitius’ son, Caesar states that there were “many other young men” (aliique complures adulescentes). 117 Liv. 45.8.6–7. In Plutarch’s account of this incident (Aem. 27.1–6) Paullus actually takes his sons, sons-in-law, and some of the younger officers into the praetorium and lectures them in order to curb their pride. 118 For Cicero’s service as a tiro on Pompeius’ staff, see Phil. 12.27. For service under Sulla, Plut. Cic. 3.2, Cic. Div. 1.72, and 2.65. 119 As praetor in 62, Q. Tullius Cicero led troops against adherents of Catiline in Bruttium (Oros. 6.6.7, Cass. Dio 37.41). In 54–early 51, he took part in Caesar’s 115 116

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Pomptinus. 120 Cicero (or the Senate) must have realized his inadequacies in this area. To summarize, the commander’s consilium appears to have played an invaluable role as a “training camp” for the staff of the general. While participating in the deliberations of the general, the members of the consilium could acquire first-hand experience in planning strategy that would otherwise be difficult to acquire. Not only military tribunes, and senatorial legates, but also young members of the Roman elite would benefit from this exposure. But the benefits of the consilium were not entirely on the side of the staff officers. For a less-than experienced commander such as Cicero, having capable military men as members of his consilium and taking advantage of their accumulative expertise, could mean the difference between victory and defeat.

Gallic campaign as one of Caesar’s legates (Caes. BG. 39–52). On Cicero’s provincial staff in general, see L. A. Thompson, “Cicero’s Succession-Problem in Cilicia” AJPh 86 (1965) 375–385. 120 Pomptinus, termed a “homo militaris” by Sallust (Cat. 45.1) served as a legate under M. Licinius Crassus Dives in 71 (against Spartacus). After his praetorship in 63 (in which he and his colleague L. Valerius Flaccus skirmished against Allobrogians allied with Catiline) Pomptinus campaigned in Transalpine Gaul against the Allobroges 62–59, for which he finally celebrated a triumph in 54. See D. R. Shackleton Bailey, Cicero’s Letters to Atticus, vol. 2 (Cambridge [Eng.] 1965), 223, on ad Att. 4.18.4.

2. THE COMMANDER’S CONSILIUM IN ACTION 2.1 THE TWO BASIC TYPES OF THE COMMANDER’S CONSILIUM I have found it a useful tool to divide the commander’s consilia into two basic categories based on function, keeping in mind that the division is an artificial one—Romans themselves would not have made such a division, just as they would not have recognized Broughton’s separate categories of legates discussed in Chapter 1. The first, and the most common category, I term the “deliberative” consilium. It tended to be confidential in nature, and normally included only the magistrate and the members of his advisory council. Its main purpose was to provide advice and serve as a sounding board for the commander in planning strategy. The second type, which I call “ceremonial,” can be distinguished from the deliberative consilium in three ways. First, its purpose was not generally to plan strategy, but to document events—that is, the members of the consilium served as witnesses to the general’s dealings with foreign dignitaries, for example, or his dispensation of military justice. Second, it was naturally more public than the deliberative council—usually (but not always) taking place on the tribunal of the magistrate. Third, it was not strictly limited to those who participated in the daily deliberations of the commander (i.e. his staff officers and close friends) but included other senators or equites in the area, visiting dignitaries—in short, any persons whose presence might be seen to enhance the importance of the particular occasion.

2.2 LOCATION OF THE DELIBERATIVE CONSILIUM The deliberative consilium was usually convened in camp (in castris; consilium castrense), and would normally take place in the praetorium (Greek óôñáôÞãéïí), the headquarters tent of the camp. 121 In fact, the word praeto-

121

Liv. 26.15.6, 45.7.5, App. Hann. 19.

25

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rium itself is occasionally used as a synonym for consilium. 122 Polybius tells us that the area allotted for the praetorium extended one hundred (Roman) feet on all four sides from the center point. 123 This open space, and the enclosure of the commander’s tent itself would have provided a certain measure of privacy. Additionally, Polybius mentions a constant guard that was placed around the commander’s tent to “protect him from plots and enhance the dignity of his command.” 124 This guard may also have been employed to ensure the confidentiality of the consilium proceedings. However, the following passages show that soldiers congregating in the surrounding area (perhaps the guards themselves) could have overheard the discussions of the consilium. Appian tells us that in 216 the consul C. Terentius Varro complained to the members of his consilium (gathered in the óôñáôÞãéïí) that his fellow consul L. Aemilius Paullus had only pretended to observe an evil omen, in order to prevent Varro from engaging Hannibal in battle. Varro carried on so loudly (Appian continues) that soldiers standing around the tent heard him and joined in slandering Paullus. 125 In one case, we are told, a general actually took advantage of the possibility that soldiers might overhear the deliberations of the consilium. In 54, during the Gallic War, troops under the command of Q. Titurius Sabinus and L. Aurunculeius Cotta, legates of Caesar, were in winter quarters in the region of the Eburones. The army received news of a large group of German mercenaries coming their way. Ambiorix, one of the local chiefs of the Eburones, sent word that if they wished to remove the troops to safety, he would allow safe passage. Sabinus and Cotta brought the matter before their consilium. The question was whether to wait for Caesar’s orders before quitting winter quarters, or to retreat without delay in order to escape the approaching hostile force. Cotta, along with several others, thought they should wait for Caesar’s order before quitting winter quarters; Sabinus, on the other hand, was for immediate withdrawal. When Cotta’s group voiced See, for example, Liv. 26.15.1, 30.14.4, and 37.5.4. Polyb. 6.27.2. Walbank remarks ad loc that “this square enclosure, with sides of 200 ft., recalls the templum inaugurated at the centre of a city.” It is certainly interesting that the military consilium would meet in an area resembling the templum; as it was a requirement that Senate meetings take place in a templum. The area surrounding the praetorium is called the principia (Liv. 7.12.14, 28.24.10 and 28.25.5) where most of the official camp activities took place (See Walbank on Polyb. 6.33.3). 124 Polyb. 6.33.12. 125 App. Hann. 19, cf. Liv. 22.44.5-7. 122 123

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opposition to Sabinus’ plan, Sabinus raised his voice so that those outside the consilium could hear, and said, in effect, “Stay—your deaths will not trouble me.” This created an uproar (as intended), and helped to sway opinion eventually over to the side of Sabinus. 126 2.2.1 Seating in the Deliberative Consilium Many similarities exist between the procedure of the Roman Senate and the procedure of the commander’s consilium. This is not surprising, given that the Senate was in essence the consilium of the magistrate, as I have previously mentioned. To put it a different way, the commander’s consilium functioned as a “mini-Senate” away from Rome. Nonetheless, there are obvious differences. For example, the smaller size of the commander’s consilium would tend to allow greater opportunity for discussion by virtually all of the members of the consilium, whereas in the Senate it would have been almost unthinkable for any debate to continue long enough for every senator to express an opinion. As to how much actual participation the youngest members of the consilium, the tirones, would have in the deliberative consilium as a general rule, if we continue the analogy of the consilium as a “mini-Senate,” they could well be equated to the pedarii, the so-called “backbenchers,” who lacked the right to express their opinions vocally (the ius sententiae dicendae), but were allowed to be present during deliberations. One similarity that is stressed is the notion of proper protocol, including seating. In fact, the connection between being seated and deliberating can clearly be seen in the Greek word used for both Senate and consilium, óõíÝäñéïí (from óõì + fäñá, seat). 127 The members of both the Senate and the deliberative consilium would be seated while in session. The precise mode of seating seems to have been an important part of the consilium. A large number of consilium terms refer to seating, such as adsidere, considere, and in consilio sedere. Just as in the Senate, the members of the commander’s consilium rose to give their opinions one by one in order according to seniority and resumed their place

Caesar BG 5.28. The term óõíÝäñéïí is also used for the seat of judgment at App. BC 4.42. Other Greek terms for seating: êáèßæïìáé (Polyb. 6.37.1; Plut. Cor. 34.1); ðñïêáèßæïìáé (App. Pun. 49). 126 127

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when finished. 128 Within this set protocol, the act of standing or sitting contrary to expectation could have great impact. For example, the members of the consilium could rise en masse in entreaty, as in 54 when (according to Caesar) during a particularly contentious meeting the entire consilium of two of Caesar’s legates, Q. Titurius Sabinus and L. Aurunculeius Cotta, rose up together to entreat them to resolve their differences. 129 Polybius tells us that when a member spoke out of order in the consilium of T. Quinctius Flamininus, the magistrate angrily rebuked him without rising from his seat—a distinction Polybius surely wished to bring to our attention by his careful emphasis on the observance of proper protocol by the other members of the consilium. 130 Flamininus’ refusal to observe the custom of rising when speaking apparently would have been considered a great insult. 2.2.2 Outline of the Deliberative Consilium Unfortunately, nowhere in our sources do we find a complete description of a commander’s consilium in action. I have compiled the outline that follows from numerous brief references. The vast majority of these references come from Livy. One imagines that the procedure of the consilium would have been so familiar to Livy’s Roman readers as to preclude the necessity of further information. The convener of the commander’s consilium was normally a magistrate with imperium or the equivalent, although there are several instances in Caesar of legati with delegated imperium convening consilia. 131 It was also not uncommon for two commanders to convene a joint consilium with the combined staff officers of both Roman armies. 132 In any event, the con128 For the practice in the Senate, see Cic. Att. 1.14.2–3, Q. fr. 2.1.2, Liv. 27.34. For the commander’s consilium, see Polyb. 18.36.2–12. 129 Caesar, BG 5.28.2. Note the similar action by the members of the Senate in Cic. Fam. 4.4.3. Rising was also a way to signal the end of a meeting—see Cic. Verr. 2.4.147. 130 Polyb. 18.36.12. 131 See e.g. Caes. BC 1.67 (49), consilium of L. Afranius and M. Petreius, legati pro praetoribus under Pompey; BC 2.30 (49), consilium of C. Scribonius Curio, legatus pro praetore under Caesar (granted praetorian imperium by Caesar’s senate at BC 1.30); B. Alex. 57 (48) consilium of Q. Cassius Longinus, legatus pro cos. under Caesar; and BG 6.7 (53), consilium of T. Labienus, legatus pro praetore under Caesar. 132 Joint consilia: Liv. 8.6.12–14 (340) conveners coss. T. Manlius Torquatus and P. Decius Mus; 9.15.1 (320) conveners coss. L. Papirius Cursor and Q. Publilius

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vener would summon the members of the consilium (advocare consilium or advocare in consilium, óõãêáëåsí ô’ óõíÝäñéïí) to solicit advice. 133 Livy and Caesar also indicate that a consilium took place using phrases in the ablative absolute such as consilio habito, consilio advocato, or consilio adhibito. 134 After the members of the consilium were summoned, the convener would put the matter requiring deliberation before the consilium (rem ad consilium referre). 135 The matter could be very general or quite specific. 136 The formula in which general questions would be introduced was usually de + the ablative, e.g. de bello, de summa rerum. 137 Although the introductory speech of the convener is sometimes omitted in our sources, it appears to have been the custom for the convener of a meeting to speak first. 138 Specific questions were often couched in an alternative form using utrum…an or enclitic -ne…an. For example, Livy reports that the coss. of 320, L. Papirius Cursor and Q. Publilius Philo, convened a consilium on whether to press the siege of Luceria with all their available resources, or to make trial of the Apulians in the nearby area with a single army under a single

Philo; 10.44.6 (293) conveners coss. L. Papirius Cursor and Sp. Carvilius Maximus; App. Hann. 18 (216) conveners coss. C. Terentius Varro and L. Aemilius Paullus; Liv. 25.32.2–8 (212) conveners P. Cornelius Scipio Africanus (cos. 218) and his brother Cn. Cornelius Scipio (cos. 222); 26.15.1 (211) conveners Ap. Claudius Pulcher and Q. Fulvius Flaccus (coss. 212). 133 advocare in consilium or advocare consilium: Liv. 9.2.15, 33.12.1, 34.26.4, 37.14.4, 37.39.1. óõãêáëåsí ô’ óõíÝäñéïí: Polyb. 14.9.1; similarly, êáëåsí dðé ôxí óêÝøéí App. Pun. 49. 134 consilio habito: Liv. 24.34.16, 25.25.7; consilium habitum: 9.15.1, 10.44.6, 27.20.1, 27.46.5, 37.5.4, 37.13.5; consilio advocato: 10.17.1; 25.31.3, 34.30.5, 37.35.1 44.2.1, 44.26.12 45.7.1; consilium advocatum: 25.32.2; consilio adhibito: 42.57.1. Caesar also uses the phrase convocato consilio (BG 1.40.1, 3.3.1, 7.60.1). 135 Liv. 24.45.2: eam rem ad consilium rettulisset; 30.4.9, cum relaturum se ad consilium dixisset; Caes. BG 5.28, ad consilium rem deferunt. The Greek equivalent Píåêïéíï™ôï ô² óõíåäñßv appears at Polyb. 11.26.2. 136 See 2.1 for the situations in which the commander’s consilium was convened. 137 Liv. 27.20.1, de bello; 41.1.1, de Histrico bello; 42.62.3, de summa ; 44.2.1, de summa gerendi belli; Caes. BC 2.30, de summa rerum. 138 Liv. 32.33.1 (although not directly in reference to a consilium, it does show the general point of view): secundum haec silentium fuit, cum Romanus eum aequum censeret priorem dicere qui petisset colloquium, “after this there was silence, since the Roman considered it fair for the one who requested the meeting to speak first.”

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general: consilium habitum omnibusne copiis Luceriam premerent an altero exercitu et duce Apuli circa…temptarentur. 139 After the matter was placed before the consilium, the convener would solicit the opinions of its members (sententias rogare or exquirere), 140 and the members of the consilium would then speak (sententiam dicere). Just as in the Senate, it seems that the members of the consilium delivered their sententiae in ranked order. 141 At all times the convener was in control of the procedure, and could exercise that control if a member of the consilium became unruly. For example, as I have mentioned above in the discussion on seating in the consilium, Polybius reports that T. Quinctius Flamininus rebuked an unruly member of his consilium for speaking out of turn. 142 The person convening the consilium seems to have the authority to guide the discussion, reply to sententiae given, and, if someone interrupts or gives an opinion that he believes is irrelevant, cut him off. Often during the course of the deliberations, one single opinion would gain the support of the majority: we find such phrases as “this opinion gained the most support,” haec sententia maxime movit or “the opinion of the largest group,” maximae partis sententia. 143 Or it could garner no support at all—Livy reports a plan of C. Livius Salinator to close off the harbor at Ephesus by means of cargo boats filled with sand. As it turns out, this idea pleased no one (nulli ea placere sentential). 144 The language of the debate itself is often pugnacious. The members sometimes are said to wage war with their very opinions (certabatur sententiis, disputatur in consilio) until one opinion grows stronger and finally wins the battle (sententia vicit). 145 It appears that these debates grew very lively at times. As often as we hear of meetings in Liv. 9.15.1. Other examples of alternative questions in Livy: 32.6.3; 32.9.8, 37.5.4, 37.13.5. 140 rogare: Liv. 37.14.4. exquirere: Caes. BG 3.3. 141 Livy explicitly tells us at 37.14.4 that C. Livius Salinator (pr. 202 and 191) was first to be asked his sententia in the consilium convened by his successor, the praetor L. Aemilius Regillus in 190. Cf. also Liv. 9.4.8 where the highest ranking member, L. Cornelius Lentulus, cos. 327, gave his sententia first. 142 Polyb. 18.36.12. Livy also reports the incident with slight variation at 33.12.1–13. 143 multorum sententiae inclinant: Liv. 46.7.1; maximae partis sententia: 33.6.1; haec sententia maxime movit: 37.14.4. 144 Liv. 37.14.4, 190. Salinator was praetor in the previous year. 145 certabatur sententiis: Liv. 28.26.1; disputatur in consilio: Caes. BC 1.67; sententia vicit: Liv. 28.26.3, 41.1.1, Caes. BC 1.67. 139

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which a consensus is reached by the members of the consilium, 146 it is important to remember, however, that it was not necessary for the consilium to come to a unanimous decision. Quite the contrary—there would be no point in mentioning occasions when the consilium unanimously endorsed a verdict, if at times this consensus did not occur. It may have been a matter of a simple perceived majority, although we have no references to an actual vote by show of hands or any other method. In any event, the recommendation of the consilium is often reported using the verb placere (Greek äïêåsí) just as it is in senatus consulta. 147 After the consilium has recommended a course of action, it is up to the commander whether or not to accept its advice. Often this acceptance is implied rather than explicitly stated in our sources—that is, the decision of the consilium is followed by the execution of that particular course of action. 148 This would seem to indicate that the advice of the consilium was usually (but not always) followed. But although there was certainly an expectation that the commander would follow the recommendation of his consilium (and as we will see, a shrewd commander could take advantage of this expectation), the commander was in no way bound to do so.

2.3 LOCATION OF THE CEREMONIAL CONSILIUM For the ceremonial consilium, in which the magistrate appeared publicly, usually with his staff, a large platform (tribunal in Latin; âÞìá in Greek) would normally be erected. 149 Administration of military justice (both to Roman soldiers and foreigners), audiences granted to foreign ambassadors, and general military addresses (adlocutiones, contiones, colloquia) would all be conducted from this tribunal. 150 The tribunal was usually located directly in

146 Liv. 10.17.3, adprobantibus cunctis, “with everyone in agreement”; 25.25.7, ex omnium sententia “according to the opinion of everyone”; 25.32.2 omniumque in unum congruerunt sententiae “the opinions of everyone agreed”; 34.30.5 omnes dandum colloquium censuissent, “everyone judged that a meeting should be given.” 147 placere: Liv. 24.34.16, 30.4.9, 32.9.11, 37.13.6, 37.15.1, 37.39.5, 42.62.12, Caes. BC 3.3.1. äïêåsí: Polyb. 11.26.3, 15.2.4, App. BC 3.72. 148 As at Liv. 25.32.2–8, 37.35.7, and 37.39.5–6. 149 For the Roman tribunal in general, see the brief but informative study by H. D. Johnson, The Roman Tribunal (diss. Johns Hopkins 1927). 150 Administration of justice: Liv. 26.15.8, Plut. Ser. 20. Division of booty: Liv. 27.19.11. Military assemblies: Liv. 8.32.2, 26.48.11, 28.26.12, 30.15.11. Terms given by L. Aemilius Paullus and his decem legati to the Macedonians in 167 were also de-

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front of the praetorium of the Roman camp. 151 In temporary camps, it would be constructed of sod; in permanent camps, of stone. 152 During the public ceremonies, the army would gather in the large area of open space in front of the tribunal, known as the forum. Ad hoc tribunals could also be set up on the actual site of a battle for administration of justice and division of booty. 153 Permanent tribunals were set up in the fora of occupied towns or urban areas in Roman provinces. 154 Evidence shows that ceremonial consilia occasionally took place on the battlefield itself. During the Third Punic War, a Carthaginian who planned to defect along with his officers led them into the ìåóáß÷ìéïí (literally “the space between the two armies”) “as if to conduct a consilium,” that is, a parley between the two enemy generals, with their respective present as witnesses to the meeting. 155 2.3.1 Seating in the Ceremonial Consilium Seating was equally important in this type of consilium as well, for upon the tribunal would be placed the camp chair (sella castrensis) of the general, along with sellae (Greek äßöñïé or óõíÝäñéá) for the members of the consilium. The sella castrensis differed slightly in construction from the curule chair normally livered from the tribunal: ipse (Paullus)…cum decem legatis circumfusa omni multitudine Macedonum in tribunali consedit (Liv. 45.29.1, see 3.7). 151 Liv. 28.27.15. In the De munitionibus castrorum, a (prob.) third-century AD work attributed to Hyginus Gromaticus, the location of the tribunal is given as on the left-hand side of the praetorium facing the via principalis (De mun. cast. 11). For an illustration showing the location of the praetorium in the Roman camp as described by Polybius, see Walbank, I 710 fig. 13. 152 Tac. Ann. 1.18 describes the construction by rebellious soldiers of a temporary sod tribunal, which was chest-high (iamque pectori usque) before being abandoned. Occasionally improvisation must have been necessary—Pompey announced the death of Mithridates from a tribunal hastily constructed from packsaddles (Plut. Pomp. 41). On the various materials used in constructing other tribunals, see H. D. Johnson, Roman Tribunal 34–35. 153 On the battlefield: Liv. 27.19.11. 154 In the forum (at Cales): Liv. 26.15.8. The large stone tribunal in the Roman forum at Corinth, where the apostle Paul was brought before the Roman proconsul Gallio in A.D. 52, is still extant. 155 App. Pun. 16.108. For such battlefield colloquies, see App. Mith. 56 (between Sulla and Mithridates) and BC 2.43 (between Caesar and the two Pompeians, Afranius and Petreius). See also App. BC 1.85 for a secret conference on the plain of battle in 83 between Sulla and the consul L. Cornelius Scipio Asiaticus in which Appian tells us “only three from each side conferred.”

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used in Rome. Whereas the folding legs of the curule chair were curved, those of the sella castrensis were straight, perhaps to make a sturdier chair, perhaps to allow the chair to be stored flat. 156 When L. Aemilius Paullus received King Perseus in the presence of his consilium, Livy tells us that Paullus specifically ordered his officers seated inside the praetorium not to rise when Perseus entered. Paullus alone rose to meet the king. 157 A calculated insult? It was a standard custom among the Romans to rise at the entrance of those whom one wished to honor. For example, the Senate rose upon the entrance and exit of the magistrates, and any of those senators to whom they wished to pay special respect. 158 Almost certainly the king himself would have come to expect the same honor. The seating arrangements during the famous ceremonial consilium held by L. Cornelius Sulla, pro cos. in Cilicia on the banks of the Euphrates River in 96 cost one of the Parthian legates his life. The mere fact that Sulla had placed his own chair between those of Orobazus and Ariobarzanes (thus showing his own prominence) so enraged the Parthian king that he had Orobazus put to death. 159 The difference in the location and seating of these two types of consilia underscores the difference in their purpose. The chief consideration for the deliberative consilium was confidentiality—thus the need for a meeting place such as the praetorium, where the commander could be relatively sure that his deliberations would be unheard unless he desired otherwise. The 156

“sella.”

A good illustration can be found in Daremberg-Saglio, vol. 4 pt. 2 1180 s.v.

Liv. 45. 7.4–5 (168). Cf. App. BC 1.80: Sulla held Pompey in great esteem and would rise only upon his entrance. 158 Cic. Pis. 12.26, Har. 1.2; Plut. Brut. 17. The importance which the Romans placed upon such matters of protocol can be seen in a discussion reported by Gellius (2.2.1–13) on the rules of courtesy (including seating) to be observed when the father is a private citizen and the son is a magistrate. 159 Plut. Sulla 5.4. For ceremonial seating, see also Sall. BJ 65.2 and Dio 26 F 89.4. An anecdote told by the annalist L. Calpurnius Piso (preserved in Aulus Gellius) is another good example of how important seating protocol was (Gell. 7.9 = Peter, HRR2 fr. 27). In 304, Cn. Flavius, who (although the son of a freedman) had achieved the office of curule aedile, went to the house of a sick friend to pay a visit. When a group of scornful young nobiles refused to rise upon his entrance, Flavius ordered his curule chair to be brought and had it placed it upon the threshold, thus preventing the young men from leaving and forcing them to look at him as he sat upon his official seat. 157

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whole point of the ceremonial consilium, on the other hand, was to be seen. It was a visual spectacle. The raised tribunal provided a stage, so to speak, for this spectacle. The difference between the two types will be emphasized again in the following sections on the consilium in action.

2.4 STRATEGY AND TACTICS The previous sections examined the location and seating of the commander’s consilium. Now I would like to focus on the situations in which the commander convened his advisory council. In the first section, I examine consilia that assisted in determining day-to-day military policy. We shall see the commander’s consilium participating in a wide range of activities, from the start of a new campaign to victory (and defeat) on the battlefield. But the usefulness of the commander’s consilium went beyond military strategy. In subsequent sections I discuss how this body assisted the magistrate militiae at certain official ceremonies, such as the dispensation of military justice and the reception of foreign legates. 2.4.1 The Deliberative Consilium in Action At the beginning of the campaign season, whether upon arrival in his province (in the case of a newly assigned commander) or upon removal from winter quarters (in the case of a magistrate whose imperium had been prorogued), the general would undoubtedly spend a good deal of time in consideration of the battle plan for the coming year. One would expect to find the commander’s consilium taking part in these deliberations. Livy portrays one such “proactive” consilium in fairly detailed fashion. 160 The year was 212. The Hannibalic War was being fought on three fronts: Sicily, Italy, and Spain. P. Cornelius Scipio (cos. 218) and his brother Gnaeus (cos. 222) had recently taken Saguntum. The loss of this strategically placed town dealt a severe blow to Carthaginian forces in Spain. Subsequently, however, the campaign had slowed to a lethargic pace. From their respective winter quarters, the two brothers joined forces and held a consilium. Livy’s account of this consilium covers all the areas one would expect to find discussed in a first meeting out of winter quarters. The long-term goal was set. The time had come to end the war in Spain—everyone was agreed on that. Reinforcements of twenty thousand Celtiberians would allow Rome to achieve this goal. Next, we are told, the strength and positions 160

Liv. 25.32.2–8.

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of the three Carthaginian commanders were given. Then Livy outlines the general battle plan. First, they discussed a plan to overcome Hasdrubal, son of Hamilcar—an experienced commander whose army was located near the city of Amtorgis. If this objective was achieved, however, the other two commanders, Hasdrubal (son of Gisgo) and Mago, might escape into the forested hills and prolong the war. Therefore, Livy tells us, the consilium reached the following decision: they would divide the Roman forces into two armies, with the campaign to embrace all of Spain. Publius would take two-thirds of the Roman and allied forces against Mago and Hasdrubal, Gnaeus the remaining third (including the Celtiberian reinforcements) against Hasdrubal Barca. Objective, logistics, strategy—all three elements were discussed and arranged. While it is not possible to determine how factual Livy’s account is, we can be fairly certain that it would have been based on actual Roman practice. Yet even in this fairly detailed description of a commander’s consilium, we still are not given any indication of opinions expressed, or the length of the debate, or even who was present in addition to the two Scipios. Upon arrival in his provincia, a new magistrate would also hold general deliberations concerning the coming campaign. In the spring of 169, the consul Q. Marcius Philippus arrived in Thessaly to take over the campaign from A. Hostilius Mancinus, consul of the previous year. 161 Accompanying Philippus was M. Popilius Laenas, the consul of 173, and several young military tribunes. Although Hostilius, as Livy tells us, had not accomplished any military feats of note, he had nonetheless returned the troops to a state of top military discipline. Upon hearing of Philippus’ approach, Hostilius conducted an inspection of the men in arms, and met his successor with proper ceremony. In fact, according to Livy, the relations between the two were so harmonious that Hostilius remained with the army. 162 After an encouraging speech to the army, we are told that the new commander began to hold consilia concerning the conduct of the war. 163 He would have had a large pool of experience on which to draw—not only was the ex-consul M. Popilius Laenas surely in attendance, but Hostilius was probably still in the camp, and the praetor C. Marcius Figulus arrived Liv. 44.1.1. We do not know exactly how long Hostilius remained in camp. There is no further mention of him in the remainder of Book 44, nor does Polybius give any information on his departure. 163 Liv. 44.2.1: consultare de summa gerendi belli coepit. 161 162

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shortly after having picked up the fleet at Chalcis. According to Livy, it was decided not to delay any longer in Thessaly, but to proceed immediately into Macedonia, at the same time as Marcius attacked the coast held by the enemy. 164 When two generals combined forces, there was a need for consultation and coordination—how would the two armies unite and work as one? In 207, Livy tells us, the consul C. Claudius Nero had brought his army under cover of night to the camp of his colleague, M. Livius Salinator, at Sena, in Picentine Gaul. This was a daring course of action, for in his own camp in Italy Nero left behind a reduced army commanded by Q. Catius, Nero’s legate, as the sole defense against Hannibal. 165 The two armies were silently integrated, each entering soldier from Nero’s army being received into the tent of a soldier of like rank, in order to keep the size of the camp constant and disguise the numbers of the doubled force. The next day, a consilium was held. In addition to the two consuls, L. Porcius Licinus, the praetor, was there, whose camp adjoined that of the consuls. According to Livy, many of those present at the consilium thought that battle ought to be postponed several days until Nero’s troops, worn out by their march, should have time to recover. This would also give Nero himself the opportunity to familiarize himself with the enemy. But the sententia of Nero as portrayed by Livy was for immediate action. What swiftness had made safe, he said, delay would make foolhardy. For (he continued) Hannibal would soon discover that he had been deceived, and the Roman camp, left without its commander, would pay the price. Nero’s insistent pleas must have carried the day—we hear next that the consilium was dismissed and the signal for battle given. In addition to its role in general deliberations at the beginning of campaigns, the consilium was also employed to assist the commander in planning specific details. In his account of the Second Samnite War, Livy portrays the consuls of 319 as debating with their consilium whether to press the siege of Luceria (in Apulia) with their full forces, or employ a single army with its general to make trial of the surrounding inhabitants, whose loyalties were still uncertain. In a consilium reportedly held by P. Decius Mus (cos. 312, IV 295) during the same war, Livy places the following Liv. 44.2.2–3. Liv. 27.44.1. Livy reports panic and confusion in Rome as a result of this bold move. 164 165

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speech in the mouth of the consul: “Why do we wander through the fields bringing war, village by village? Why do we not attack cities and walled towns?” His suggestion was approved unanimously, both, Livy tells us, because of the army’s affection for their general and the greater possibility of booty. 166 Another topic of deliberation in the consilium was the selection of routes along which the army would move. L. Aemilius Paullus, cos. 168, referred to his consilium for consideration both the routes to be taken and the plan of action for the campaign against Perseus, the Macedonian king. 167 Our two sources on this consilium, Livy and Plutarch, offer slightly different accounts of the proceedings. According to Livy’s account, two plans of action were suggested by members of the consilium: a direct assault across the river Elpeüs, and a diversionary attack along the coast of Thessalonike by the praetor Cn. Octavius, commander of the Roman fleet. Livy tells us that Paullus rejected the suggestions offered in the consilium, already having in mind a different plan. After he had dismissed the consilium, he summoned two merchants whom he trusted, and secretly inquired about the passes into Perrhaebia. 168 Having learned that the area was held by the king’s forces, Paullus devised a plan in which five thousand men would be sent, ostensibly to carry out the second of the two plans mentioned at the consilium (i.e. to ravage the coastal area of Macedonia). These troops he placed under the command of P. Cornelius Scipio Nasica, one of the military tribunes, and Q. Fabius Maximus Aemilianus (Paullus’ own son and presumably his legatus). Meetings held in secret and decisions made without proper consultation were among the standard devices used by Roman writers to characterize foreign kings. Paullus’ secret meeting with the merchants, although uncharacteristic of the Roman way of deliberation in general, 169 was completely in character with Livy’s previous portrayal of Paullus. Note especially the speech in which Livy has Paullus declare, “There ought to be one commander in the army to make provision and take Liv. 10.17.1. This consilium is reported by both Livy (44.35.6, a fairly detailed account) and Plutarch (Aem. 15.1–3, focusing mainly on the mission of Scipio Nasica and Fabius Maximus). Both accounts were probably based on a passage from Polybius, Book 29, no longer extant. Plutarch at Aem. 15.3 says that Aemilius gave the two officers not as many men as Polybius states, but as many as Nasica himself states in a letter. 168 Liv. 44.35.10. 169 See Chapter 5 on Roman depictions of foreign consilia. 166 167

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counsel about what should be done, at times by himself, at times with those whom he has summoned into his consilium.” 170 However, in the comparatively compressed account presented by Plutarch, there is no mention of alternative plans or of Paullus’ secret meeting with the merchants; and the mission of Nascia and Fabius Maximus was apparently presented at the consilium. When T. Quinctius Flamininus (cos. 198) arrived in Epirus to take up the war against Philip V from P. Villius Tappulus, his first action after the arrival of his troops was apparently to convene a consilium concerning the route to be taken into Macedonia. 171 Now, this same question had also occupied the previous commanders in this area. In 200, the consul P. Sulpicius Galba had entered Macedonia via the Dassaretii range near Lyncus, a circuitous but relatively safe route. 172 His successor, Villius, after his removal from winter quarters, had spent several days deliberating on whether to take the same route that Sulpicius had, or to attempt to force his way directly through the valley held by the enemy. In fact, Villius’ consilium was still in session when (according to Livy) he heard the news that Flamininus had been elected consul, had obtained Macedonia as his province, and had already arrived at Corcyra. 173 Livy’s depiction of this consilium, if correct, is an important piece of evidence, for it shows that these meetings could cover a wide stretch of time. In the consilium of Flamininus, it was decided to take the more dangerous and difficult path directly through enemy territory. Although Livy does not tell us exactly how long the deliberations took, he does remark that it was decided more that this should be done, than how it actually would be done. 174 Much more detailed is the consilium of Q. Marcius Philippus, cos. 169, reported by Livy at 44.2.5. Ten days after assuming command (as discussed Liv. 44.34.2. Liv. 32.9.8. In addition to the two legions that Villius had turned over to him, Flamininus had also been followed by 8,000 infantry and 800 cavalry troops. On the campaigns of Villius and Flamininus, along with detailed description of the topography of the area, see N. G. L. Hammond, “The Opening Campaigns and the Battle of the Aoi Stena in the Second Macedonian War” JRS 56 (1966) 39–54. 172 Liv. 31.18.9. 173 Liv. 32.6.4. It appears that both Sulpicius and Villius had reached the province only to retire immediately into winter quarters. According to Plutarch, the two men had wasted (most of) the year of their consulship in Rome, and only later set off for their campaigns (Flam. 3.2). 174 Liv. 32.9.11. 170 171

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above) and one day’s march from the camp, he called a consilium. Philippus brought before the consilium guides for various routes into Macedonia, and ordered each one to explain the route by which he would lead them. The guides were then dismissed, and Philippus brought before the consilium the question of which route to choose. After some discussion, it was decided to postpone deliberation for a time. All the suggested routes used the same road up to a certain point. Accordingly, a second consilium was held further down the road between Azorus and Diche. Here, it was decided to proceed along the pass near Ottobolus (near Lake Ascuris) and in addition to send out a force of four thousand men to secure strategic advance positions. The practice of admitting outsiders to the commander’s consilium (in this case, the guides) and then dismissing them after they have given information is also seen in the reception of foreign legates. 175 In this case, it made good strategic sense to dismiss them before the deliberations—the chosen route was not known until the last minute, which forced Perseus to allot men to cover all the passes. 176 A consilium might also be called to determine whether to join battle or delay. These consilia might take place in the Roman camp, 177 or even on the site of the proposed battle. 178 Livy relates the following incident during the war against Antiochus in 190. 179 After waiting five days for the king to engage the Romans in battle, L. Cornelius Scipio convened a consilium on the sixth day. The topic to be discussed: what was to be done if Antiochus did not give an opportunity for battle? The consul reportedly stated that either they would be forced to keep the troops under tents in the field, or return to winter quarters and postpone the war until summer. After this (perhaps disingenuous) statement, all those present cried out for him to lead them out to fight. In Livy’s depiction of the consilium of C. Flaminius (cos. 217), held in the Roman castra near Arretium in 217, all others suggested a policy of safe measures: wait for Flaminius’ colleague Cn. Servilius [Geminus] to arrive, and unite forces. 180 Flaminius, who wanted to engage the enemy immediately, was angered at this advice and stormed out of the consilium—and See 2.4.3. Liv. 44.2.9. 177 Liv. 22.3.8; 27.46.5 (discussed above in text). 178 Liv. 37.13.5 (off the coast of the island of Aethalia, near Ephesus); App. Pun. 101 (enroute to engage the enemy, then on the site of the engagement itself). 179 Liv. 37.39.1. 180 Liv. 22.3.8–9. 175 176

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straight to his death on the battlefield, ignoring, as Livy is careful to point out, two adverse omens in the process. 181 This behavior is entirely in keeping with Livy’s characterization of Flaminius’ character as a man who sought advice from neither god nor man. 182 It is also important evidence for the non-binding force of the commander’s consilium. Flaminius may have suffered a punishment inflicted by the gods, but Livy does not mention (and it is likely that he would) any possible mortal repercussions for his neglect of his council’s advice. In a similar situation in 49, the Pompeian L. Domitius Ahenobarbus, pro cos. in Gaul, was trapped by Caesar’s forces in the town of Corfinium along with his troops. He sent messengers to Pompey asking for his assistance. Although he received word that Pompey would not come to his aid, Domitius nonetheless mendaciously pronounced in his consilium that Pompey would swiftly come to their aid. 183 Having pulled the ruse off successfully, Domitius met secretly with his friends to arrange his own escape, but his nervousness gave away the plan and his men, angered by the deception, surrounded him, locked him up, and sent word to Caesar that they were ready to surrender and hand over Domitius to him! The previous consilia I have discussed could all be termed “proactive”—that is, they were convened to plan for an unspecified future situation that might or might not occur. A careful general would, of course, examine all angles of the military situation and determine a plan of action for every possible scenario. Here the experience of the seasoned members of the consilium would be a real asset, for they would have encountered the vicissitudes of fate in many a previous campaign. Conversely, the next group of consilia might be termed “reactive”— they were summoned to deal with an event or situation that had just occurred. For example, new information—reports from scouts, allies, or local inhabitants—could rapidly change the status quo, rendering previous plans obsolete. Often speed was of the essence. In these cases it was not uncommon for the commander to convene a consilium on the spot to discuss the information and adapt his strategy in light of the new intelligence. In these

181 Liv. 22.3.11–13: his horse stumbles and throws him, and the standardbearer is unable to pull the standard from the ground. 182 Liv. 22.3.5, nec deos nec homines consulentem. 183 Caes. BC 1.19.1: Domitius dissimulans in consilio pronuntiat Pompeium celeriter subsido venturum.

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cases it was quick and innovative thinking that was of the utmost importance. Appian reports one such situation during the siege of Utica in the Second Punic War. 184 Syphax, the Numidian prince, and the Carthaginians had planned a two-pronged attack, with Syphax attacking the Roman force that was besieging Utica, and Hasdrubal attacking the camp of P. Cornelius Scipio Africanus. That night, Scipio found out what was being planned through Masinissa, a Numidian prince and ally of Rome. Scipio at once summoned his officers to a night council. Scipio’s plan for the attack was unanimously accepted. He dismissed the consilium and sent his officers to ready the troops for an immediate assault. Night consilia appear to be a rarity among the Romans—another quality the consilium shared with the Senate. The timing of this particular consilium is testament to the importance of the intelligence received and the need for immediate reaction. The incident shows that the consilium could be convened at a moment’s notice and swiftly come to a course of action, obviously two very desirable qualities for a commander’s council. Besides intelligence gained through the usual channels, chance discoveries could also change the situation. Livy relates the following incident in the war against Antiochus in 190. 185 The Roman fleet under the command of C. Livius Salinator (pr. 191) was active in the waters off the harbor at Ephesus. Unfavorable conditions at sea had forced Livius and the fleet to take shelter in a deserted port in the area of Samos when they learned from local inhabitants that a fleet commanded by Antiochus’ general Polyxenidas was nearby, off the small island of Aethalia. In light of this unexpected information, a consilium was held to decide whether they should fight immediately or wait for the Rhodian fleet. It was decided to postpone battle. As we have seen above, the ability to adapt to changing circumstances was crucial to success as a commander. The success or failure of a single engagement could alter the battle plan. Therefore, it should come as no surprise that our sources depict the Roman commander relying on his consilium to aid him in vital decisions after both successful and unsuccessful tactics. For example, during the siege of Syracuse in 213, Livy reports, all the efforts of M. Claudius Marcellus (cos. 214) and his army to take the city had failed. Therefore, Marcellus called a consilium, in which it was decided

184 185

App. Pun. 19 (203). Liv. 37.13.5.

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to give up the assault. Instead, they would cut off the flow of supplies by land and sea (and presumably starve the inhabitants into a surrender). 186 Livy tells us that during the war with the Aetolians and Antiochus in 190, M’. Acilius Glabrio, cos. 191, held two consilia, one after the unsuccessful attack on the town of Lamia, and another after having successfully taken the town. 187 These two consilia reflect the difference between the two situations. After the unsuccessful attempt to take Lamia, Acilius delivers an ultimatum to his officers: he will not lead them back to camp unless they take the city. After a victory, the question put to the consilium was most likely to be, “what do we do next?” Livy tells us that after Lamia was taken Acilius held a consilium to determine just this question. 188 In the consilium held by Scipio Africanus after the Battle of the Great Plains in 203, the topic brought before the consilium was likewise what should be done next (ôß äÝïí ƒí ðïéåsí). 189 According to Livy, the consilium held after Scipio Africanus’ victory at Baecula in 209 dealt with simply, “the conduct of the war” (de bello), which is essentially equivalent. 190 Although strategy decisions were ultimately the responsibility of the commander himself, the input of his staff officers was of paramount value. The numerous and varied situations in which the general sought their advice show that the employment of the commander’s consilium was not merely an empty nod to convention, that is, to prevent charges of imperious behavior, but a real asset in combat. But as we shall see in the following sections, the usefulness of the commander’s consilium went far beyond the battlefield. 2.4.2 The Commander’s Consilium and Military Justice The magistrate in the field, by virtue of his imperium, possessed the power to administer justice to both citizens and subjects. This power included the ability to inflict capital punishment (as indicated by the presence of the axes in the fasces of the magistrate militiae). Just as in other spheres of military Liv. 24.34.16. According to Liv. 37.4.8, Acilius had decided to attack Lamia, which lay on a hill immediately to the northwest of Thermopylae, because the Aetolians expected him to attack Naupactus instead. 188 Liv. 37.5.4 (mentioned above): consilium habitum quid deinde faceret. 189 Polyb. 14.9.1. 190 Liv. 27.20.1. 186 187

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activities, it was expected that the general would not act without due consideration when imposing sentence upon those under his jurisdiction. In this section I examine the role of the commander’s consilium in dispensation of military justice and other related matters. Military judicial procedures normally would have been divided into two parts: the deliberations concerning the sentence to be meted out, and the public execution of the sentence. In both these components the members of the general’s advisory council would have played a role. The deliberations would have taken place in the usual site for such confidential meetings, i.e., the praetorium. 191 The normal procedure for deliberative consilia seems to have been followed: the magistrate brought the matter before the members for debate, and after the presentation of sententiae and discussion, the matter was decided upon. The process is illustrated in Livy’s account of the fate of a certain Dasius Altinius of Arpi. 192 After the Roman defeat at Cannae in 216, Arpi, a town in northern Apulia east of Luceria, had gone over to Hannibal, who made it the site of his winter quarters in 215. 193 In 213 Dasius Altinius, a leading citizen of Arpi, came to the camp of the consul Q. Fabius Maximus and offered to betray the town for a price. It appears that earlier, Dasius had played a role in the town’s defection to Hannibal. Fabius brought the matter before his consilium. Some members (so we are told) thought that Dasius ought to be scourged and put to death as a deserter. Livy represents Fabius’ father, the consul of the previous year, as the voice of reason. 194 First, he reminded the members of the consilium that wartime justice was a different matter from cases judged in peace—the most important consideration was to prevent Rome’s allies from leaving her. Furthermore, if it were permitted for communities to leave the alliance of the Romans, but not to return (after reconsideration), soon Rome, bereft of her allies, would see all Italy joined in Carthaginian treaties. Instead, Fabius advocated a middle course: Dasius should be treated neither as an enemy or ally, but put into protective custody until the end of the war. At that time they would deliberate further concerning his fate. The members of the consilium agreed

As at Liv. 26.15.1–6. Liv. 24.45.1. 193 Liv. 23.46.8. 194 Liv. 24.45.4–8. Q. Fabius Maximus Verrucosus (Cunctator), an experienced general and (ultimately) five-time consul, was serving as legate to his son. 191 192

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with this plan, not surprisingly considering the tremendous authority the elder Fabius undoubtedly possessed. At about the same period, the fate of the Senate of the town of Capua rested in the hands of two Roman generals and their consilium. Livy tells the story: in 216, the Campanian town of Capua had gone over to Hannibal, on the instigation of its senate. 195 When in 211 it became clear that Capua would no longer be able to hold out against the Roman siege headed by the consuls of the previous year, Ap. Claudius Pulcher and Q. Fulvius Flaccus, Livy tells us that twenty-eight Capuan senators committed suicide, fearing Rome’s punishment for their betrayal. The rest of the senators were rounded up after the fall of the city and twenty-five were sent to the town of Cales, twenty-eight to the town of Teanum. 196 At this point the two consuls met with their staff officers to discuss how the Capuan senators should be punished. According to Livy’s account of the meeting, Ap. Claudius Pulcher was more inclined to pardon. He wanted to refer the decision to Rome, where the Capuans could be questioned concerning their dealings with other Latin allies (and valuable information perhaps obtained). Fulvius, Livy tells us, gave a harsher opinion (durior sententia): the faithful allies should not be subjected to doubtful charges brought by informers who would say anything. The consilium was dismissed. It appears that the consilium advised the consuls to refer the matter to Rome—at any rate, Appius is portrayed as believing that his colleague would in fact wait for a letter from Rome before acting. Livy depicts Fulvius, however, as eager to carry out his plans before word arrived. Accordingly, he set out for Teanum with two thousand select cavalry and arrived at dawn. There in the forum he had the Capuan senators scourged and beheaded. From there, Livy tells us, Fulvius proceeded at a gallop to Cales, where he mounted the tribunal and prepared to administer the same punishment on the remaining Capuans. We are told that just as the senators were being bound to the stakes, a letter arrived from C. Calpurnius Piso, the urban praetor, containing a decree of the Senate. A rumor swept through the assembled crowd that the matter had been referred to the Roman Senate. Fulvius, however, placed the letter in the fold of his garment, seal intact, and ordered the lictor to continue the legal punishment. Only after the Capuans had been executed did he open the letter to find (contrary to no one’s expectations) the decree prohibiting the execu195 196

Liv. 26.15.1–6. Liv. 26.14.9.

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tions. If Fulvius had opened and read the letter prior to the executions, his actions would have been contrary to the express wishes of the Senate. A general could act without authorization from the Senate (for it was in essence strictly the advisory body of the magistrates), but acting in direct conflict of its express will could lead to serious repercussions; which Fulvius knew all too well. By waiting until after the capital sentence had been passed to open the letter, Fulvius had hit upon a convenient loophole. We learn, however, that this incident did not go unchallenged by the Senate, which later investigated (and luckily for Fulvius) ultimately approved his actions. 197 The dilemma of what to do with traitors may have been a matter frequently brought before the military consilium. Cicero tells how L. Opimius, pr. 125, and his officers deliberated on a similar case: Q. Numitorius Pullus was a native of Fregellae who was said to have betrayed his town to Opimius during the Fregellan revolt. The question before the consilium: should Numitorius be punished as a traitor or pardoned for his services to Rome? 198 As E. Gabba points out, there was probably more to the Fregellae incident than the “traitor or patriot?” question so beloved of the rhetoricians: “At the moment of the violent breach with Rome the city must simply have shattered in two, nor will it have been a question only of the ‘betrayal’ of the city to Rome by Q. Numitorius Pullus, i.e. by an aristocracy linked in one way or another to Rome. Every social, and indeed ethnic, group of the city must have been involved…” 199 In the end, Numitorius’ service to Rome was considered to have outweighed his previous actions. In any event, the Numitorius affair seems to have been a familiar set-piece for rhetorical debate in Cicero’s lifetime. 200 The military treason trial of T. Turpilius Silanus, praefectus fabrum in 109, is likewise notorious. According to Plutarch, Q. Caecilius Metellus Numidicus put this Turpilius (a guest-friend of his) in charge of the African city of Vaga. 201 When the inhabitants admitted Jugurtha into the city, they released Turpilius unharmed (according to Plutarch because of Turpilius’ Liv. 26.33.7. Cic. Invent. 2.105. 199 CAH IX2 105. 200 Cic. Fin. 5.62: Quis Pullus Numitorium Fregellanum proditorem, quamquam rei publica nostrae profuit, non odit? “Who does not hate Q. Numitorius Pullus, the betrayer of Fregellae, although he benefited our country?” 201 Plut. Mar. 8.1–2, cf. App. Num. 3. Guest-friendship, or îåíßá, carried with it certain important reciprocal obligations. 197 198

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previous mild treatment of them). He was subsequently brought before Metellus’ consilium on a charge of treason. C. Marius was a member of the consilium, and spurred on the others against Turpilius so that Metellus reluctantly passed the death penalty upon him. Here we see the enormous influence of the consilium’s opinion upon a commander. 202 Incidentally, when the charge was later proven to be false, the other members of the consilium sympathized with Metellus, but Marius rejoiced and said that he had fastened a “demon” on Metellus for the murder of a guest-friend. Plutarch reports that it was Marius’ upright judicial decisions that pleased his soldiers the most (a surprising statement, if one takes into consideration the previous incident), and gives the following illustration. 203 Marius’ nephew, C. Lusius, who had a command under him, had a weakness for pretty youths. One such young man, Trebonius, had caught his eye, but Lusius had been so far unsuccessful in his attempts to seduce the youth. One evening while Marius was away from the camp (so Plutarch relates), Lusius summoned Trebonius to his tent. The young man reluctantly obeyed the summons of his commanding officer, but when Lusius made his move, Trebonius drew his sword and killed him. Upon Marius’ return the matter came before the military tribunal. Plutarch says there were “many accusers, but not a single advocate”—not surprising when one considers that the slaughter of a commanding officer was not something a consilium composed of such officers would tend to treat lightly. Nonetheless, after the truth of the matter came out through Trebonius’ testimony, Marius awarded the young man the crown normally given for brave exploits. As we have seen in these trials, although the members of the consilium obviously played an important role in the proceedings, the final verdict is given by the commander alone. As I have previously mentioned, 204 the general would normally issue formal declarations from the tribunal while seated in his curule chair, attended by the members of his consilium. The two phases of the military justice process, the confidential deliberations and the public deliverance of sentencing, are illustrated by an incident related by both Polybius and Livy concerning a mutiny of Roman soldiers at the Roman camp near Sucro (in 202 In a similar instance discussed at 4.4.2, I argue that the influence of two members of the consilium of C. Claudius Nero, pro cos. in Asia in 80, was so strong that Nero apparently acted contrary to the advice of the majority of his consilium in condemning a certain Philodamus and his son. 203 Mar. 14, cf. Cic. Mil. 4. 204 See 2.3, on the location of the ceremonial consilium.

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Spain) during the Hannibalic war. 205 The mutiny apparently started due to exaggerated rumors about the illness of P. Cornelius Scipio Africanus, promagistrate in Spain in the year 206. A consilium was held at the camp at New Carthage to determine the fate of the mutineers. According to Livy’s account, the question under deliberation was whether the leaders of the mutiny alone or a larger number of soldiers should be punished. It is interesting to see how the two accounts differ in their treatment of the same consilium. In Plutarch’s version, Scipio summons the tribunes and presents his plan to them—no deliberation is mentioned. The plan called for the tribunes to go out and collect monies in order to pay the amount owed to the army, and to go about this in a very obvious fashion. They were then to return to the troops, ask them to return to order, and request that they present themselves to be paid the money owed. Plutarch has Scipio say that once the plan had been put into effect, then they would deliberate concerning what to do next. And in fact, as far as we can tell, Scipio did consult with his consilium immediately after his plan was put into action. 206 It was decided in this second meeting that the ringleaders of the mutiny would be severely punished. Livy does not mention the first consilium related by Polybius, where the tribunes are told to collect the payroll, although he gives Scipio’s decision. Both accounts mention a sham mission against Andobales, the brother of Mandonius, which Scipio devised as a way to explain the absence of his loyal soldiers (who were to surround the mutineers when they arrived for their pay). 207 Livy’s treatment of the second consilium is more detailed than that of Polybius—there were conflicting opinions on whether the leaders of the mutiny alone should be punished, or whether such a serious crime warranted a wider punishment. We are told that the more lenient opinion won out (vicit sententia lenior). 208 Livy notes that after the consilium was dismissed, the expedition against Mandonius was announced to the The mutiny: Polyb. 11.25.1; Liv. 28.24.5–25.3. Scipio’s deliberations with his men concerning the mutiny: Polyb. 11.25.8 and 26.2–3; Liv. 28.26.1–3. The sentence: Polyb. 11.29.12–30.4; Liv. 28.27.7–30.12 (speech of Scipio and punishment). 206 Walbank (II 307) notes that there seems to be a lacuna in Polybius’ text immediately preceding this second consilium. 207 Andobales (Latin Indibilis) was the ruler of the Ilergetes, a small tribe who had joined Hannibal’s forces. See Walbank I 410. His defeat at the hands of Scipio is recounted at Polyb. 11.31–33. 208 Liv. 28.26.3. 205

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soldiers at New Carthage, to give the impression that this was the matter discussed in the consilium. We can imagine that the soldiers in the camp would have noticed the deliberations in process and would have been curious as to their purpose. Obviously the fact that the consilium had been held was no secret to the soldiers, but its specific advice and the commander’s decision was. The officers were concerned enough (according to Livy) to invent an excuse for the consilium in order to allay suspicion. If we keep in mind that military consilia were often followed by an informative address to the army, the announcement of the sham mission is completely in context. 209 If an anecdote by Appian is any indication, military verdicts were sometimes dispensed on the spot, without confidential deliberations. In a section detailing extraordinary examples of familial devotion during the Civil Wars, Appian tells the story of the Metelli, father and son. 210 The father held a command under M. Antonius at Actium, the son, a command under Octavian. After the battle, Appian tells us, Octavian decided the fate of the prisoners at Samos. The son served as a member of the consilium (óõíÞäñåõåí). When the elder Metellus was brought before Octavian, his son did not recognize him because he was so filthy. When the herald read out the name, the son leapt from his seat (óõíÝäñéïí) and hugged him. The younger Metellus pleaded with Octavian either to spare his father, or to permit him to die at his father’s side. Octavian promptly pardoned the elder Metellus, although (according to Appian) Metellus had been very hostile to him. It is unclear in cases like this whether the members of the consilium actually assisted the magistrate in his decisions, or simply took their seats beside him to avoid the appearance of autocratic behavior on his part. 211 In addition to the jurisdiction of the magistrate, there is also evidence for a limited military jurisdiction by the military tribunes. According to Polybius, the military tribunes convened a consilium (óõíÝäñéïí) to try cases of negligence on guard duty. 212 We see another glimpse of this tribunal at Liv. 28.24.11. Livy tells us that the soldiers mutinying in the Roman camp at Sucro in 206 still permit the military tribunes to render judgment in the area Caesar’s legate T. Labienus performs a similar ruse, reported at BG 6.7.6. Civ. 4.6.42. 211 At Liv. 8.32.14 (325), the legati stand, not sit, around the chair of the dictator L. Papirius Cursor as he was administering judgment. 212 Polyb. 6.37.1. Polybius later states (6.37.7) that while the soldiers are subject to the military tribunes, the tribunes themselves are subject to the consuls. 209 210

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of the praetorium. Josephus also refers to this military jurisdiction in his account of the bellum Iudaicum. 213 In summary, the judicial functions of the magistrate on campaign consisted of two basic components. The first component consisted of confidential deliberations with the members of his consilium, which would have taken place in the praetorium. This would be followed by the public delivery of the verdict reached in those deliberations. The magistrate pronounced his decision on the tribunal (pro tribunali, dðr ôï™ âÞìáôïò) seated in his curule chair. His advisors often, but not always, would be seated with him. Although the magistrate was expected to consult with his advisors before passing judgment (especially in the case of capital sentences), he was in no way legally required to do so. 2.4.3 Reception of Foreign Legates by the Ceremonial Consilium The presence of the members of the commander’s consilium at formal ceremonies such as the dispensation of justice was a highly visible reminder that the magistrate was not acting solely according to his personal interests in judicial matters—not as an individual, but as a representative of the Senate and People of Rome. This same concept also comes into play in situations when the magistrate receives foreign ambassadors. The attention given to matters of diplomacy reflects the notion, common to both Romans and Greeks alike, that ambassadors were to be treated with respect. Their person was to be considered sacred and inviolate. 214 The members of the consilium also act as official witnesses of the business transacted at these meetings, thus preventing any secret agreements between the magistrate and the foreign power. 215 The presence of the magistrate’s consilium is not explicitly attested in every situation in which foreign legates are received. 216 However, I believe that it would have been considered imperious behavior, if not actually a violation of mos maiorum, for the magistrate to hold such receptions alone. The way these private meetings are contrasted with correct procedure is BJ 7.3.83. He mentions both tribunes and centurions as taking part. Willems, Sénat 2 487, T. R. S. Broughton, “Mistreatment of Foreign Legates and the Fetial Priests: Three Roman Cases” Phoenix 41 (1987) 50 with n.1. 215 I treat this aspect of the commander’s consilium at greater length at 2.4.4. 216 Space does not permit an examination of every audience granted to foreign dignitaries. In this section I treat only those audiences in which the presence of the commander’s consilium is indicated. 213 214

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perhaps the strongest indication that they were the exception rather than the norm. 217 For example, Appian tells how during the Numantine War Q. Pompeius (cos. 141, pro cos. 140 in Spain) carried on secret negotiations with the Numantians to try to end the war. When Numantian legates arrived to arrange a peace, Pompeius publicly advised the legates to agree to a complete surrender at the discretion of the Roman people. Privately, however, he promised that he would do what he could. We lack any information on the nature of these private assurances. In any event, Pompeius later denied making any arrangement at all with the Numantians and the matter was brought before the Senate, who decided to continue the war. 218 In a similar incident, we learn from Sallust that Jugurtha, the Numidian king, came to the camp of the consul L. Calpurnius Bestia in 111 in order to arrange a surrender. 219 The meeting quite properly took place in the presence of Bestia’s consilium. Jugurtha asked to be received in deditionem, a condition of total surrender. Later we hear that the public arrangements (pro consilio) included a payment by Jugurtha of thirty elephants, as well as cattle, horses, and silver. 220 However, Sallust reports that a secret meeting took place immediately between Jugurtha and Bestia, during which the rest of the details were arranged. The only other person present at this meeting, according to Sallust, was Bestia’s legate, M. Aemilius Scaurus (cos. 115). Now, Sallust has previously characterized both Bestia and Scaurus in unflattering terms—Bestia as a man whose good qualities have been overwhelmed by avarice 221 and Scau217 For a depiction of how a proper Roman ought to act when privately approached by a foreign representative, note P. Cornelius Scipio Africanus’ conduct in 190 when privately offered a large bribe by Antiochus’ envoy Heraclides (Liv. 37.36.1–9, Polyb. 21.15.1–11). Livy tells us that Africanus accepted the return of his son (who had been held as a hostage), but as for the bribe, he refused it and advised Antiochus to comply with the peace terms. 218 App. Hisp. 79. 219 BJ 29.5: Igitur rex, uti constiturent, in castra venit ac pauca praesenti consilio locutus de invidia facti sui atque uti in deditionem acciperetur reliqua cum Bestia et Scauro secreta transigit. “Thus the king, as they had decided, came into the camp and, in the presence of the consilium, spoke briefly about the displeasure concerning his conduct, and that he wished to be handed over in complete surrender, the rest he arranged in secret with Bestia and Scaurus.” The “secret consilium” is a topos in Roman writers often used (pejoratively) of the advisory councils of foreigners—see 5.2. 220 BJ 29.6. 221 BJ 28.5, animus aeger avaritia facile convortus est. Cf. 29.1.

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rus as greedy for power, honors, riches, but able to conceal his vices through his cleverness. 222 Bestia’s exclusion of the other members of his consilium in this secret meeting is consistent with Sallust’s portrayal of him as a corrupt and greedy magistrate. Bestia’s overall conduct is later strongly condemned in a speech given by Sallust to the tribune of the plebs, C. Memmius. 223 There may have been similar suspicious dealings in the case of the envoy Calidius, who was sent to L. Licinius Murena, pro. pr. in Asia in 82, with a public message from the Senate to desist in attacking King Mithridates, who had complained of Murena’s activities against him. 224 Appian reports that after announcing in the consilium that the Senate had ordered Murena to discontinue hostilities against the king, Calidius then met with Murena alone. What was the secret message given to Murena? We only know that Murena abated his activities against the king not a whit. As I have mentioned above, correct protocol required that legates be received by the magistrate and his consilium. These receptions appear to have been conducted according to set procedures. Not all reports of these audiences contain every element, but by collating the evidence we can arrive at a hypothetical format. As we have seen in the procedure of the deliberative commander’s consilium, there are parallels between the reception of foreign delegations by the commander’s consilium and by the Roman Senate. My purpose in examining these audiences is not so much to treat how the Romans and their enemies arranged truces and peace treaties. Such a discussion is outside the scope of this study. Instead, I intend to focus on what can be learned about the commander’s consilium from its role as an official participant in these proceedings. The arrival of a defeated enemy into the Roman camp would have been a cause for celebration among the soldiers. The higher the status of the foreign dignitary, the greater ceremony one might expect to find in his reception. Livy’s account of the arrival of the Numidian chief Syphax in the camp of P. Cornelius Scipio Africanus in 203 gives us some idea of such a BJ 15.4, avidus potentiae honoris divitiarum ceterum vitia sua callide occultans. BJ 31. Among other reproaches, Memmius proclaims, “Nam impune quae lubet facere, id est regem esse.” (“For to do what one wishes with impunity, that is to be a king.”) Again we see the idea that following one’s own inclination is viewed as imperious behavior. 224 App. Mith. 65. On the identity of this Calidius (either M. Calidius, the moneyer of c. 116 or more likely Q. Calidius, the praetor of 79) see MRR III 45 on Calidius (RE 1). 222 223

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spectacle. 225 We are told that when the arrival of Syphax was announced, a large crowd (of soldiers) poured out, as if to view a triumph. 226 The first sight they saw was Syphax in chains, followed by a group of elite Numidians. As Syphax was paraded through the camp, the soldiers extolled his accomplishments in order (so we are told) to make their victory all the more impressive. One can imagine that such events would have a very beneficial effect on army morale. Compare this reception with that of the Macedonian king Perseus by L. Aemilius Paullus in 168. After the king had surrendered to Cn. Octavius (pr. 168, commanding the fleet), he was sent to the Roman camp. Paullus dispatched Q. Aelius Tubero to escort the king. Tubero was an interesting choice for escort. He had no official title that we know of and may not even have been a senator at this time. 227 Officers of higher rank would almost certainly have been present—L. Postumius Albinus, cos. 173, for example, serving (probably) as military tribune. 228 Or C. Cluvius Saxula, pr. 173, legatus in charge of the praesidium at the Roman camp during Pydna. 229 C. Sulpicius Galus, praetor 169, had served under Paullus at Pydna as a military tribune. 230 Or even P. Cornelius Scipio Nasica Corculum, aed. cur. 169, the “celebrated young man” (clarus adulescens) who along with Q. Fabius Maximus Aemilianus executed the flanking movement which forced the Macedonian stand at Pydna. 231 Paullus must have sent Tubero for a reason—perhaps because as a relative, he knew he could trust him. Or perhaps Tubero was chosen for his Greek-speaking ability. He may have had previous contact with the king. This association would also explain his being chosen as guard. Once again, the arrival of the king was a spectacle to be witnessed by the troops—Livy tells us that Perseus was unable to make his

Liv. 30.13.1–14. Liv. 30.13.1. 227 Aelius (RE 154) Tubero was (according to Plut. Aem. 5) the son-in-law of Paullus. He may be the Q. Aelius who was tr. pl. in 177. Tubero was also assigned the later task of guarding the king (45.8.8). Contrast the senatorial procedure of assigning a quaestor as escort to foreign deputations of high rank (as seen at Liv. 45.13.12 and 45.44.7). 228 See Linderski RQ 67–8. 229 Liv. 44.40.6. 230 Liv. 44.37.5. He is termed legatus at Cic. Rep. 1.23 and V. Max. 8.11.1. 231 Plut. Aem. 15–17, possibly based on Nasica’s own account. See Walbank III 378 for other possible sources on the incident. 225 226

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way to the praetorium on account of the throngs of celebrating soldiers until Scipio sent lictors to clear the way. 232 While Tubero was escorting the king, Paullus ordered the rest (of the officers) to remain at the praetorium frequentes “at full strength.” 233 It is most interesting that the other four military consilia described by Livy as frequens also deal with the reception of foreign legates—the arrival of Massinissa to P. Cornelius Scipio Africanus’ camp, 234 two audiences of Antiochus’ ambassadors before the consilium of L. Cornelius Scipio (cos. 190), 235 and a delegation from Perseus to P. Licinius Crassus, cos. 171. 236 This word of course is also used of meetings of the Senate. According to Willems, the Senate is termed frequens when the number (of senators) is considered satisfactory for transacting the business at hand, infrequens when there are few members present, but these terms are ordinarily used in a general way. 237 The frequens consilium in connection with the reception of foreign dignitaries should be taken as an indication of the seriousness of the Romans towards this practice. Just as in other ceremonial consilia, it appears that the tribunal would have been the customary location for the commander and consilium to sit for audiences granted to foreign personages. 238 This use is consistent with the idea of the tribunal as the official seat of the magistrate militiae, figuratively and literally, for upon the tribunal would be placed the sella castrensis, the military equivalent of the magistrate’s curule chair. The height of the tribunal would have served to emphasize the authority of the magistrate. 239 If privacy was desired and the size of the delegation permitted, the audience could be held in the praetorium. The chairs of the members of the consilium would be placed around that of the magistrate. The delegation would either address the magistrate and his consilium standing in front of the tribunal (and hence forced to look up, a distinct psychological disadvantage) or in cases when the magistrate wished to beLiv. 45.7.4: prae turba occurrentium ad spectaculum. Liv. 45.7.1. 234 Liv. 30.14.4, described as a frequens praetorium. 235 Liv. 37.35.1; 37.45.7. 236 Liv. 42.62.10. 237 Sénat II 168–9, with references. See also R. J. A Talbert, The Senate of Imperial Rome (Princeton 1984) 137 n. 19 and J. P. V. D. Baldson, JRS 47 (1957) 18–20. 238 As implied at App. Pun. 49. 239 For the tribunal as one of the symbols of military authority, see Liv. 28.2715. For the height of the tribunal, see 2.3. 232 233

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stow honor upon his guests, they would be seated as well, as was Perseus when he was brought to the tent of L. Aemilius Paullus in 168. 240 The apparel and actions of the foreign envoys might be calculated to elicit pity from their audience. 241 They might wear fillets and woolen bands (the traditional trappings of the suppliant) 242 or dark-colored clothing. 243 They might plead, 244 weep, 245 cast themselves upon the ground before the members of the consilium, 246 extend their hands in a gesture of supplication, 247 clasp the knee of the general, 248 or even kiss the feet of the members of the consilium. 249 The size of the deputation varied from a single envoy to as many as thirty. 250 We can perceive two different types of procedure in these audiences. When a defeated ruler is brought before the general and his consilium, he is questioned concerning his previous actions toward Rome. Thus in 203 we are told that P. Cornelius Scipio Africanus repeatedly asked the Numidian chief Syphax why he had not only rejected the alliance of the Romans, but moreover had instigated a war against them. 251 Livy relates how in 168 L.

Liv. 45.7.5. For example, Liv. 30.36.5: (the legates) cum ad puppim praetoriae navis accessissent velamenta supplicum porrigentes, orantes implorantesque fidem ac misericordiam Scipionis. “When they approached the stern of the flag-ship extending the rods of supplicants, praying and invoking the protection and mercy of Scipio…” 30.36.9: et illi quidem multo miserabilius quam antea, quo magis cogebat fortuna, egerunt, “And these men, indeed, acted much more wretched than before, to the extent that misfortune compelled them further.” At 45.7.4, we learn that Perseus, on the other hand, although dressed in dark clothes and attended by his son, deliberately came to the Roman camp unaccompanied by any other companion who might have added to the wretchedness of his condition by sharing his misery. 242 Liv. 25.25.6, 30.36.4 (ship of the Carthaginian envoys adorned with fillets and olive branches). 243 Liv. 45.7.4. Soiled clothing: Liv. 45.4.2. 244 Liv. 25.25.6, 30.36.9. 245 Liv. 45.4.2, App. Pun. 49. 246 Polyb. 15.1.7 (also reported at Liv. 30.16.3), Liv. 45.7.5, App. Pun. 49. 247 Liv. 30.36.5, App. Pun. 49, 53. 248 Liv. 45.7.5 (attempted). 249 Polyb. 15.1.7. 250 Single envoy: Polyb. 21.14.1–9 = Liv. 37.35. Two: Polyb. 27.8.5–6, Liv. 37.45.5. Three: Polyb. 18.34.4. Ten: Liv. 30.26.4. Thirty: Liv. 30.16.4, 30.36.9. 251 Liv. 30.13.9–10. 240 241

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Aemilius Paullus conducted a lengthy questioning of the Macedonian king Perseus. 252 When envoys seeking a truce or peace terms are received, they are normally given the opportunity to deliver their prepared speech according to their instructions. 253 They are then usually asked to withdraw (if necessary) while the consilium deliberates concerning their request. 254 In one audience, Appian tells us, the Romans had already made up their minds in favor of one legation, but made a pretence of listening to the argument of the opposing embassy! 255 When a decision has been reached, the envoys are recalled, the decision of the consilium presented, 256 and the envoys are dismissed to deliver the terms home. 257 On one occasion we are told that the consilium has previously decided on the matter; in this case there was no need for the envoys to retire. The entire process may take more than one day. 258 Of course, the commander could refuse to grant an audience. When C. Fulvius Fimbria (who had previously taken over the army of the cos. L. Valerius Flaccus and had him killed) requested a colloquy with Sulla, the latter refused to grant it and instead sent one of his subordinates with conditions. 259 According to Appian, Fimbria was disappointed that he was not considered worthy of an interview (although it had been granted to the enemy) and he subsequently committed suicide. A newly discovered inscription from Spain records the deditio (unconditional surrender) of a people near the area of modern Alcántara to the general L. Caesius in 104. 260 Caesius, who is not previously attested as a

Liv. 45.8.1–7. Polyb. 17.8.6, 21.14, Liv. 37.35.1. Note the similarities throughout the procedure with that followed in the Senate—see Willems, Sénat II 488–9. 254 Polyb. 17.8.6–7, Liv. 42.62.11. The withdrawal of the legates is not always mentioned, as at Liv. 37.35.1–10. 255 App. Mith. 14: Roman generals M’. Aquillius and C. Cassius receive legates from Nicomedes and Mithridates in 88. 256 App. Pun. 53. 257 Polyb. 17.8.11–12, Liv. 30.37.7, 42.62.13, App. Pun. 55. 258 Liv. 30.36.5, 30.37.1. 259 App. Mith. 60. 260 First published by R. López Melero, J. L. Sanchez Abal, and S. García Jiménez, “El Bronce de Alcántera: una deditio del 104. a.C.” Gerion 2 (1984) 265–323. Text and discussion in J. S. Richardson, Hispaniae: Spain and the development of Roman 252 253

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commander in Spain, may be the moneyer of 112/1. 261 The inscription, whose upper, lower, and left hand-margins are preserved, records that Caesius, after receiving the people of SEANOC[ (line 2, the name cannot be recovered) in deditio, brought the matter before his consilium. (lines 3–6, with Richardson’s supplements): L. Caesius C. F. imperator postquam [eos in deditionem accepit ad consilium retolit quid eis im[perandum censerunt. De consilii sententia imperav[it ut omnes captivos, equos, equas quas cepisent [traderunt L. Caesius, son of Gaius, imperator, after he had received them in complete surrender, brought before his consilium what they thought should be dictated to them. Upon consultation with his consilium he ordered that all the prisoners, horses, and mares which they had taken be handed over…

The wording of the inscription shows standard consilium terminology: ad consilium referre for the matter brought before the consilium, quid censere (consilium) for their decision, and the notification that the commander acted de consilii sententia. The last lines, which are poorly preserved, may record that legates from the Spanish people were sent to Rome to obtain the Senate’s approval of the deditio. 262 The inscription provides decisive evidence from another quarter that the members of the commander’s consilium played an important role in the reception of foreign legates for treaty purposes. L. Caesius was apparently careful to assure that the role of his consilium was documented in the deditio process. In this section I have shown that the reception of foreign legates by the magistrate militiae and his consilium followed a set procedure, which in many ways paralleled that of the Senate. Although the consilium is not always mentioned when foreign delegations are reported, I believe that it was common practice for these meetings to take place in its presence. Just as in the dispensation of military justice, the reception of foreign legates combines the ceremonial duties of the consilium (as witness to the interaction between the magistrate and the foreign representative) and its deliberative function (as represented by the deliberations conducted in the absence of Imperialism 218–82 (Cambridge 1986) Appendix V 199–201. On the identification of Caesius, see T. C. Brennan PRR II 746 with note 239. 261 RE 4, Crawford RRC no. 298. 262 lines 12 and 13: eire iussit vac legatos Cren[us (?)….f. | Arco Cantoni f. vac. legates (sic).

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the foreign deputation). In chapter three, which deals with the decem legati sent by the Senate to assist the magistrate militiae, we will see yet another instance of this dual role. 2.4.4 The Ceremonial Consilium as the Commander’s Witness In the above section we saw how it was the custom for a Roman general to receive foreign ambassadors in the presence of his consilium. The reason for this goes beyond mere courtesy or formality. In fact, the consilium of a magistrate militiae served as a living record of his actions. At a later time, the consilium could be, and often was, summoned to relate their account of what had transpired. This could work in three different ways: to bear witness to a foreign party who had acted in violation of previously agreedupon arrangements, to inform Rome officially concerning the actions of a commander, and to act as a check upon the commander himself. The following examples illustrate these three principles. After an audience given by the Senate in 210 to the defeated Campanians during the Hannibalic war, it was debated whether or not Q. Fulvius Flaccus should be summoned from Capua, so that discussion concerning the Capuans could be conducted in the presence of the general who had fought the campaign. 263 Seeing those present who had been with Flaccus (and not wishing to recall Flaccus) the Senate asked for their opinion. M. Atilius Regulus, pr. 213, a legate of Flaccus (who Livy tells us had the greatest influence of all those who had been at Capua) testified that he had been in the consilium held at Capua and explained the decisions made there by Flaccus. 264 Here we also learn of other participants of the consilium: Q. Minucius Rufus and L. Veturius Philo, legates of Ap. Claudius Pulcher (cos. 212); and C. Fulvius Flaccus, the brother of Quintus and the commander of the allied cavalry. 265 Upon the testimony of Atilius (and perhaps other members of the consilium, although Livy does not mention their participation) the decisions taken by Flaccus in the matter of the Campanians were approved by the Senate. In 203, during the Second Punic War, three legates of Scipio Africanus, L. Sergius, L. Baebius, and L. Fabius were sent to the Carthaginians to discuss the breach of the agreement between the two peoples that had Liv. 26.33.7. Livy notes that the same procedure was followed in the case of M. Claudius Marcellus and the Sicilians. 264 Liv. 26.33.7–9. 265 Liv. 26.5.8. 263

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occurred when the Carthaginians captured ships bearing Roman supplies. The legates also informed the Carthaginians that the Roman people had ratified the peace treaty. The legates reminded the public assembly how previously a Carthaginian embassy had come to Tunis and appeared before Scipio’s consilium asking for mercy in the most humble fashion possible and claiming sole responsibility for the breaking of the truce. Now (they continued) after this shocking attack on the Roman supply ships, the general and those who had been present at the consilium, in light of what had taken place there, were amazed that the Carthaginians were now ignoring what they had said at the consilium and breaking the treaties. 266 The three legates themselves would no doubt have been present at this earlier consilium, and may even be recognized by those Carthaginians who had participated in the embassy. In 187, Cn. Manlius Vulso arrived in Rome and asked that he be awarded a triumph for his actions in Greece. But according to Livy, the majority of the commission of ten sent to aid him in 189, especially L. Furius Purpurio and L. Aemilius Paullus, opposed his request, saying that he had actually done his best to break the peace with Antiochus. 267 Livy then portrays Manlius as offended that his legates were the very ones obstructing his triumph. One of the duties of the consilium, Manlius claims, should have been to act as witnesses to the acta of the general: if the tribunes of the plebs were preventing him from triumphing, he would have called the members of his consilium as witnesses to his accomplishments. 268 But, he complains bitterly, “I am pleading my case with my legates as accusers.” 269 In other words, the consilium can act not only as witness, but as prosecution! Perhaps the most explicit example of the practice comes from the Verrines. Cicero cites the members of the consilium of C. Verres as witnesses to the guilty verdict passed by Verres de sententia consilii against the participants of a slave revolt—a verdict which Verres later reversed. 270 In 53, the general M. Licinius Crassus Dives is said to have made the following speech to his legati and other officers when it became clear that he had been deceitfully trapped by the enemy at Carrhae: “Octavius and Polyb. 15.1.6–9. Liv. 38.45.9. For an overview of this commission, see 3.6. 268 Liv. 38.47.3: si tribuni triumphare me prohiberent, testes citaturus fui rerum a me gestarum. 269 Liv. 38.47.7: sed causam apud vos, patres conscripti, accusantibus meis ipse legatis dico. 270 Verr. 2.5.10: testes enim sunt qui in consilio fuerunt. See section 4.4.3. 266 267

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Petronius and as many of you Roman commanders present, you see the necessity of my path, and being present you know the shameful violence I suffer—tell all other men, having escaped yourselves, that Crassus perished at the hands of the enemy, not because he had been given up by his fellowcitizens.” 271 The dying wish of Crassus—and his last instruction to the members of his consilium—was for them to report to Rome the true story of what had happened. 2.4.5 The “Consilium that Convened Itself”: The Caudine Forks Disaster The story of this military disaster is well known: in 321 during the Samnite War, the coss. T. Veturius Calvinus and Sp. Postumius Albinus with their entire army became trapped in the Caudine Forks, a narrow defile, and were forced to pass under the yoke to save the army. 272 As one of the earliest reported consilia, the disaster at the Caudine Forks holds several items of interest, including the members of the consilium acting as official witnesses to the defeat of the army. First, there is what we might call the “consilium that summoned itself.” Livy tells us that after the full realization of their hopeless situation sinks in, the army stops of its own accord, and begins to make camp without anyone urging or ordering them (nec hortante ullo nec imperante). 273 The consuls Veturius and Postumius themselves appear paralyzed. Their despair is so great that they do not even call a consilium, for “it was not the place either for consilium or auxilium.” 274 But, Livy reports, the legates and the military tribunes meet on their own initiative (sua sponte legati ac tribuni convenient). 275 The disaster has caused the complete reversal of the normal order. The consuls are no longer acting as leaders, in the sense that they do not do what is expected of them: call a consilium. Just as the soldiers stop of their

Plut. Crass. 30.5. For sources on the Caudine Forks disaster, see MRR I under the consuls for the year 321. 273 Liv. 9.2.13. 274 Liv. 9.2.15. The juxtaposition of consilium, counsel, and auxilium, aid, is a common one: see e.g. Plautus Truc. 216, Ter. Andr. 319, Cic. Flacc. 3, Sest. 52, Pis. 64; Liv. 1.54.10 and 8.23.5. 275 On the probable anachronism of legati in the consilium in this period, see 2.7.2 below. 271 272

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own accord and make camp sua sponte, the legates and military tribunes call themselves to a consilium, so to speak. 276 The situation worsened, and soon lack of supplies forced the Romans to send envoys to the Samnite camp. They were instructed first to treat for an equal peace, if refused, to provoke the enemy to fight. The Roman envoys received the following dismaying reply: the war was already won, but because they did not know to confess when they were beaten, they would be “sent under the yoke”—a humiliating ritual where the defeated soldiers are forced to march under a wooden structure representing the yoke of subjection. Additionally, the Samnites set the following terms: the Romans must evacuate Samnite territory and evacuate their colonies. Henceforth, the two peoples would share a treaty of equality. In the discussion among the Roman officers that followed this baneful announcement, L. Cornelius Lentulus (cos. 321), whom Livy describes as the legate with the most courage and highest rank (princeps legatorum virtute atque honoribus), pragmatically advocated acceptance of the terms, arguing that with the destruction of the army, Rome would be left defenseless. 277 According to Livy, all the members of the consilium: the consuls, legates, quaestors, and military tribunes consequently took the oath, and the names of those who did so were extant. 278 Appian is even more precise: the two consuls, Postumius and Veturius, the two quaestors, the four legati of the legion, and twelve tribunes—all of the officers who had survived. 279 There are other examples of the members of the consilium taking the initiative. Plut. Sert. 22.6: Sertorius is so demoralized after the death of his mother that he stays for seven days in his tent without giving the watchword or being seen by his friends. The members of his consilium surround his tent and convince him to come out and assume his official duties. Cic. Att. 6.5.3: M. Calpurnius Bibulus, pro cos. 51 in Syria, is grief-stricken by the death of his sons in Egypt. His legates, quaestor, and friends write to Cicero asking him to come to their aid (for the province is “burning with war”). 277 Lentulus would have been the ranking staff officer, as it appears he offered his sententia first. Note that here honores equals “magistracies,” a common usage. 278 Liv. 9.5.4: spoponderunt consules, legati, quaestores, tribuni militum, nominaque omnium qui spoponderunt exstant. 279 App. Samn. 6: ïk FÑùìáßùí œðáôïé, äýï –íôåò Ðïóôïýìéïò ôå êár Ïšåôïýñéïò, 276

êár ôáìßáé äýï êár ôáîéÜñ÷áé ôÝóóáñåò êár ÷éëßáñ÷áé äþäåêá, óýìðáíôåò –óïé ìåôN ôï˜ò äéåöèáñìÝíïõò ƒñ÷ïí. Mason, Greek Terms 91 and 164, translates ôáîßáñ÷ïò here as

legatus legionis because of its location between the quaestors and the military tribunes on the list, and the presence of legati in Livy’s account, but he also notes the anachronism of the presence of legati in this early period.

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In the senatorial consilia held in the aftermath of this incident, Zonaras reports that the two consuls involved were compelled to attend the Senate’s deliberations, and Postumius was asked for his opinion first of all. 280 Now, as we have seen, the right of giving one’s sententia first was normally given to the ranking member of the Senate or consilium. According to Zonaras, however, this was done so that Postumius would first have the chance to pass judgment upon himself. Livy tells us that all the guarantors of this sponsio were delivered over to the Samnites for having made a treaty without the consent of the Roman people. 281 The disaster at the Caudine Forks shows that the mechanism of the commander’s consilium was thought to be firmly in place even at this early period. The paradox of “the consilium that summoned itself” displays Livy’s expectation that generals would normally summon their staff officers in such situations. Granted, this portion of the incident may have been creative fiction. We must also be aware that many of the details of the sponsio and the later surrender of the Roman guarantors may have more to do with the retroactive influence of the Mancinus affair of 137 than with the actual situation in 321, although Livy reports that the names of the Roman staff officers who signed the sponsio as guarantors were still extant in his time. What we can derive from this incident is the prevailing Roman belief that as early as the fourth century the members of the general’s consilium took an active part in peace proceedings and shared the responsibility along with the consuls themselves.

2.5 CONCLUSIONS In this chapter I have shown that the advisors of the magistrate militiae played a major part in many specific military situations. In conclusion, I would like to pose a question—how great a responsibility did the individual members of the consilium take upon themselves by their role as advisors to the magistrate? Certainly, the Romans of Livy’s time believed that the staff officers in the Caudine Forks disaster were just as culpable for the disgraceful terms of the treaty as were the consuls, but then they were represented as actual guarantors of the pact. Appian claims that in the Sullan Civil Wars, severe court judgments were handed down against those Italians who gave

280 281

Zon. 7.26. Liv. 9.10.9.

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counsel to Sulla’s opponents. 282 But surely these were extraordinary circumstances. What, then, was the duty of the consilium member? A passage from Cicero’s letters may prove illuminating. In the troubled period following the assassination of Julius Caesar in 44, Cicero had decided to go abroad, a plan that his close friend Atticus had approved of. However, good news reached Cicero that made him change his mind and return to Rome. He later learned through a letter sent by Atticus that his friend had subsequently thought better of the plan. Surprised by Atticus’ change of heart, he chides him, but then adds: etiam si non prudenter, tamen PíåìÝóôçôá sunt, primum quod de mea sententia acta sunt, deinde etiam si te auctore, quid debet qui consilium dat praestare praeter fidem? even if (you advised) unwisely, nevertheless you are not liable to blame. For first of all, I acted on my own initiative, second, even if I had followed your advice, what is incumbent upon one who gives advice, except to show good faith? 283

Cicero states here an extremely important general principle regarding the consilium in general: “the counselor is not to be held responsible for the advice given.” All that a member of a consilium should be required to offer was his honest assessment of the situation, and honest advice based on that assessment. 284 In fact, we can see a corollary between these expectations and those placed upon the actions of the magistrate himself—hence the formula commonly found in inscriptions: “to act in accordance with the public interest and one’s own good faith.” 285

App. Mith. 96. Cic. Att. 16.7.2. Cf. Liv. 30.31.1. On the concept of fides in general, see J. Hellegouarc’h, Le Vocabulaire Latin des Relations et des Partis Politiques sous la République (Paris 1963) 23–40. 284 Shackleton Bailey, in his commentary on this passage, cites as support for this idea Quint. Inst. 7.4.35: an fidem praestare debeat (sc. tutor) tantum, non etiam consilium et eventum, “whether the guardian ought to display good faith alone, and not also sage advice and a favorable outcome.” 285 For example, the lex Iulia agraria (Roman Statutes no. 54), line V.15: ita uti e re publica fideque sua videbitur. For other examples (there are many), see TLL vol. 679 s.v. fides and the discussion of T. Quinctius Flamininus’ consilium (Liv. 34.33.9) at 3.5. 282 283

3. THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 3.1 INTRODUCTION In the previous chapters, I examined the instances in which the provincial magistrate would be assisted in his duties by the members of his consilium. In this chapter I look at how commissions of legati sent by the Senate to magistrates with imperium also function as consilia. I limit my treatment here to those instances in which the legates can be seen to have a truly advisory capacity, as opposed to those who are sent for other purposes, for example, to convey information between magistrate and Senate, to accompany personnel or supplies to and from Rome, or to attempt to prevent a magistrate from performing a certain action. I will illustrate how these commissions fulfilled many of the same functions as the commander’s consilium— including assisting the magistrate in deliberations and the reception of foreign legates.

3.2 COMMISSIONS OF TEN IN PEACE NEGOTIATIONS Commissions sent to assist magistrates in peace negotiations usually consisted of ten members (if the magistrate was a consul) or five members (if a praetor). Why ten? The rationale is never explicitly stated. 286 At any rate, the Romans seemed to have a fondness for ten-member committees. According to popular Roman tradition, the group of laws known as the Twelve Tables was composed by two panels of ten in the years 451 and 450. 287 286 One obvious explanation is the counting limit imposed by ten fingers. The number ten may have had symbolic importance. R. A. Larouche, “Popular Symbolic/Mystical Numbers in Antiquity” Latomus 54 (1995) 572, notes that ten, as the sum of the first four numbers 1+2+3+4 (known as the “tetraktys”), was considered by the Pythagoreans as the most perfect number, symbolizing perfect harmony. 287 See MRR I 45–46 for the sources. The original set of laws was inscribed on ten tablets, to which two more tablets were added by the second panel.

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Other groups of ten include the decemviri stlitibus iudicandis (“board of ten for judging lawsuits”) and the decemviri sacris faciundis (first attested ca. 236 and later increased to fifteen men), who kept the Sibylline Books. Willems, discussing delegations sent to foreign entities, makes the following observations on the number of members: the default number is three members. Two members indicate a mission of lesser importance. A delegation of four members is quite exceptional. The number is increased to five or ten when the mission is of a religious nature requiring a greater degree of diplomatic prestige, when the delegation is required to visit several states in succession, when conducting important peace negotiations with an enemy outside Italy, or when organizing a territorial province. 288 No group larger than ten is attested. In the case of commissions sent to Roman magistrates, we can see that the Senate considered peace negotiations of the utmost importance, that is, if the size of the delegation indicates its relative importance, as Willems suggests. The Senate always assigns a commission of ten to assist a consul in these duties, and a commission of five to praetors. Because most major wars (and hence the subsequent post-war arrangements) were assigned to consuls, the vast majority of delegations sent to oversee peace arrangements were composed of ten members. 289 The context, function, and composition of these commissions will be discussed below. Although these commissions are clearly sent to assist a magistrate, Broughton lists them under the heading “Legates, Ambassadors” rather than “Legates, Envoys,” apparently because of their later dispatch to foreign states. We can see here that although the categorization of legati by function is useful for modern scholars, it is nevertheless an artificial construct alien to the Romans’ concept of legati. Now, as is well known, the magistrate himself did not have the authority to conduct final peace negotiations. Any arrangements he made were subject to approval both by the Senate and People. 290 In Chapter Two, I 288 Willems, Sénat II 508. For examples of embassies of 2 to 10 members, see Willems, Sénat II 495–507. 289 One very important exception was the five-member commission sent to aid L. Anicius, pro praetore in Illyricum in 167, discussed below in this section. 290 Cf. Liv. 9.5.1 on the Caudine Forks sponsio of 321: [Consules] negarunt iniussu populi foedus fieri posse, “the consuls declared that a treaty could not be made without the consent of the People”; Polyb. 15.4.8 on the treaty between Carthage and Rome in 202 (subsequently violated by the Carthaginians): [Scipio] äéáêïýóáò ô§í

ðáñáãåãïíüôùí ”ôé ðñïèýìùò { ôå óýãêëçôïò ” ôå äyìïò PðïäÝîáéíôï ôNò ãåíïìÝíáò äéE ášôï™ óõíèÞêáò ðñ’ò ôï˜ò Êáñ÷çäïíßïõò, [Scipio], having heard from the legates that

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 65 discussed the format for the reception of foreign legates by the commander and the members of his council. 291 When an audience was granted to arrange peace terms, it was common for the commander (advised by his consilium) to propose preliminary terms, which the foreign legates would then refer to their authorizing bodies for deliberation. If these terms were accepted, then an armistice was usually arranged to allow the foreign state to send a delegation to Rome to appear before the Senate. If the Senate were in favor of the peace terms, a senatus consultum would be issued recommending that the question be placed before the People. After the People had voted in favor of peace, an additional senatus consultum would be formulated, naming a commission of ten senators, on whose advice the general would make the peace. 292 One can see how such a lengthy and repetitive procedure might suffer compression in the sources, so that an author might speak of the People sending a commission (the direct and normal result of the People’s approval of the peace).

3.3 THE COMMISSION OF TEN SENT TO C. LUTATIUS CATULUS IN 241 The earliest reported instance of the dispatch of such a commission occurs in 241 at the conclusion of the First Punic War. Livy’s account of this period is unfortunately lost. Polybius gives a brief account in his introductory summary of the events of the years 264–220, 293 but with few details: after losing a decisive sea-battle at the Aegates Islands (located off the western side of Sicily), the Carthaginians instructed their general Hamilcar Barca to both the Senate and the People had willingly accepted the treaty that he had made with the Carthaginians…” and Sal. BJ. 39.3 (possible treaty between Jugurtha and Rome): senatus, ita uti par fuerat, decernit suo atque populi iniussu nullum potuisse foedus fieri, “the Senate, as was proper, decreed that no treaty could be made without its consent and that of the People.” The approval of the Senate alone is explicitly mentioned at Liv. 32.36 and Polyb. 18.9.8 (both referring to the negotiations of T. Quinctius Flamininus at the council of the Greeks in 197). Referral to the People alone is mentioned at Polyb. 15.8.13 (the speech of Scipio Africanus reportedly given immediately before the battle of Zama in 202). On the Senate as final arbiter of the general’s decisions, see Eckstein, Senate and General 134 and 312–313. 291 Section 2.4.3. On the format for the peace process, see Willems, Sénat II 472–479, which is summarized here. 292 Plutarch (Luc. 35) records that L. Licinius Lucullus (cos. 74, pro cos. 73–69) requested from the Senate the dispatch of a commission (discussed below). 293 Polyb. 1.63.1.

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come to terms with the Romans. C. Lutatius Catulus, the consul of 242, agreed to negotiate (so Polybius tells us). A provisional treaty was arranged containing the following conditions (pending the approval of the Roman people): the Carthaginians were to vacate Sicily and refrain from making war with Hieron, or from bearing arms against the Syracusans or their allies. They were to deliver all prisoners without ransom. They were to pay 2,200 Euboean talents to the Romans in installments in twenty years. 294 Polybius reports that when this arrangement was made known in Rome, “the People did not accept the treaty, but sent ten men to deliberate (dðéóêåøïìÝíïõò) concerning the affairs.” 295 The omission of any mention of the Senate’s role in this matter led Mommsen (who rightly considered election by the People the specific criterion for a magistracy) to view the position of these ten men as a sort of extraordinary magistracy elected by the people, that is, a decemvirate (thus eliminating any participation by the Senate in the selection of the commission). He cites the usage of Tíäñáò äÝêá (equating it to the Latin decem viri) in place of äÝêá ðñåóâåõôÜò in support of his argument. 296 Willems strongly disagrees with Mommsen’s conclusions. 297 As he notes, in every subsequent dispatch of decem legati for this purpose, the Senate first proposes general guidelines for the peace arrangements. After they are adopted by the People, then the Senate names ten commissioners to assist in establishing the details. 298 This case, the first time that peace negotiations are being conducted with a people outside the limits of Italy, provides the precedent. Willems therefore considers it very odd to have such a dramatic change in procedure in subsequent commissions. Willems’ arguments are strengthened by the wording of Livy’s report of the establishment by the Senate of a commission of ten to assist T. Quinctius FlaminPolyb. 1.62.8–9. Polyb. 1.63.1: ïš ðñïóåäÝîáôï ôNò óõíèÞêáò ¿ äyìïò, PëëE dîáðÝóôåéëåí Tíäñáò äÝêá ôï˜ò dðéóêåøïìÝíïõò ›ðÝñ ô§í ðñáãìÜôùí. We have seen the verb óêïðÝù and related forms previously in reference to the deliberation of consilia, e.g. at App. Pun. 19, 108, and Dion. Hal. 11.4.2. 296 Election by the people the specific criterion for a magistracy: R.St. I 8. On the decem legati of 241 as extraordinary decemviri, see R.St. II 642ff and 692. 297 Willems, Sénat II 475–6 n. 4. Another opponent can be found in E. A. Thurm (De Romanorum legatis reipublicae liberae temporibus ad externas nationes missis, [Diss. Leipzig 1883]) 131ff, as echoed at Schleussner 10. See also Walbank, I 127 on Polyb. 1.63.1, citing relevant bibliography. 298 Willems, Sénat II 475–6 n. 4. 294 295

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 67 inus in 197: ten legates, according to accepted custom and precedent, were decreed, with whose advice T. Quincitus was to offer terms of peace to Philip. 299 The term more maiorum, “according to accepted custom and precedent” is a strong indication that (in Livy’s eyes, at any rate) this was the way these commissions had long been established in the past. I find Willems’ arguments very convincing, especially when we take into consideration the nature of the source material. As I have suggested above, in Polybius’ report we have an example of the compression of information which both Polybius and Livy employ when reporting matters which would have been quite familiar to their readers. Procedures are omitted—not because they did not occur, but because it was obvious that they did occur. Although Polybius does not mention it here, we can be fairly certain that a SC naming the commissioners would have directly followed the vote of the people. 300 As for the usage of Tíäñáò äÝêá, so important for Mommsen’s argument, Willems points out that Polybius later uses the term to refer to the members of a commission clearly sent by the Senate. 301 To be sure, the period of the Senate’s actual ascendancy does not really begin until the Second Punic War. Nonetheless, Livy’s omission of the Senate’s role, even at this early date, cannot be taken as sure proof of its noninvolvement. The scenario proposed by Eckstein 302 is logical and would account for Polybius’ phrasing: Catulus’ agreement was approved by a majority of the Senate, but when it passed to the comitia centuriata for approval, the People did not accept it (Polybius’ ïš ðñïóåäÝîáôï ôNò óõíèÞêáò ¿ äyìïò) and so the Senate officially delegated responsibility for drafting an acceptLiv. 33.24.7: decem legati more maiorum, quorum ex consilio T. Quinctius imperator leges pacis Philippo daret decreti. Livy later (33.31.4) refers to the SC under which the commissioners were sent: in senatus consulto, quo missi decem legati ab urbe… 300 Sometimes the compression worked the opposite way, that is, the activity of the Senate is reported, while that of the People is omitted—as J. Linderski notes in “Roman Officers in the Year of Pydna” AJPh 111 (1990) 65, on the change in the format for electing military tribunes in 169: “senatus decrevit says Livy, but again legislative action must have followed…” Linderski also points out Livy’s habit of omission with regard to the reporting and treatment of prodigia in “Roman Religion in Livy” 53–64 (= RQ 608–619) esp. 57–8 (612–3). See also Mackay 81 on similar omissions of procedural elements by Livy. 301 Polyb. 18.42.5. Cf. App. Ib. 99, where the commission of ten sent to arrange the peace after the Numantian War is also termed Tíäñáò äÝêá. (On this commission in general, see below.) 302 Senate and General 133. 299

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able peace to a commission of ten (Polybius’ PëëE dîáðÝóôåéëåí Tíäñáò äÝêá ôï˜ò dðéóêåøïìÝíïõò šðÝñ ô§í ðñáãìÜôùí).

According to Polybius, the commissioners modified the treaty to cut the time of payment in half, raised the payment to 3,200 Euboean talents and demanded that Carthage evacuate all islands between Sicily and Italy. We know nothing else about the activities of the commission as a consilium. Polybius’ compressed account gives the impression that the members of the commission worked independently of Catulus. Zonaras is vague as to the working relationship between the commission and the consul, except to note that they seem to have rapaciously exceeded the terms of the original treaty imposed by the consul—which would also argue for some independent action. 303 Münzer has suggested on the basis of Polybius 1.62 that Catulus’ brother Q. Lutatius Cerco, the consul of 241, may have been one of the members (and perhaps headed the commission). If so, this would be a strong factor in favor of cooperation. 304 But Cicero, in a letter to Atticus discussing the members of the commission of 146 (discussed in turn below), states that it was not the custom for a relative of the imperator to be chosen as one of the decem legati. 305 If this tradition extended as far back as the First Punic War, then it would militate against Cerco serving on the commission. Broughton, at any rate, did not consider Cerco to be a member, for there is no listing for the commission under the “Legates” category for 241, as there would be if at least one of the members was identified. So much for this first commission, which has given us little information for the decem legati as consilium. It is not until the end of the Second Punic War that another similar ten-member commission is dispatched.

303 Zon. 8.17: êár ô§í ðñÝóâåùí dëèüíôùí ïšêÝôé êáôÝ÷åéí dáõôï˜ò ½äýíáíôï, êár ôxí Ëéâýçí h÷åéí Rðáóáí }ëðéæïí. äé’ ïšäc ôásò ôï™ šðÜôïõ ¿ìïëïãßáéò díÝìåéíáí, PëëN êár ÷ñÞìáôá ášôï˜ò ðïëë² ðëåßù ô§í ½ðåó÷çìÝíùí dðñÜîáíôï, “and after the legates

had arrived, they could no longer restrain themselves, and hoped to hold all of Libya. For this reason they did not stick to the consul’s terms, but demanded even more money than had been promised.” The loss of Livy’s second decade is sorely felt here. 304 Münzer in RE s.v. “Lutatius” 13. Zonaras states merely that Q. Lutatius, with his brother, established order everywhere in Sicily (ðÜíôá ôN dêås êåôåóôÞóáôï). 305 Ad Att. 13.6.4: atque hoc etiam accepi, non solitos maiores nostros eos legare in decem qui essent imperatorum necessarii.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 69 Here, too, the details given on the commission’s activities are sketchy, as we shall see below. 306

3.4 THE COMMISSION OF TEN SENT TO P. CORNELIUS SCIPIO AFRICANUS IN 201 In order to place this commission and the ones that follow in the context of the peace negotiation process, I will preface my examination of the actual commission with a short discussion of the procedures followed at the end of the Second Punic War. After Rome’s victory at the Battle of the “Great Plains” in 203 and the subsequent capture of the Numidian king Syphax, Livy reports that the morale of the Carthaginians deteriorated to the point where they sent a delegation of thirty senior statesmen, their sanctius consilium, as he terms it, to the camp of P. Cornelius Scipio Africanus, then serving pro cos. 203, to seek peace terms. 307 Livy records the terms of this preliminary treaty: the Carthaginians were to withdraw from Italy, Spain, and (Cisalpine) Gaul, and relinquish their claim to the islands between Italy and Africa. They were to turn over all but twenty long ships and a payment of silver and grain. Scipio gave them three days to deliberate on the terms. The Carthaginians agreed to these terms, arranged a truce (indutiae) with Scipio, and sent legates to Rome. 308 According to Livy’s account, the Romans, distrusting the motives of the Carthaginian legates, sent them away without having arranged a peace. 309 Polybius, however, reports that the Senate accepted the terms, but

Sources on the commission’s activities: Liv. 30.43.10–13 and 44.12–45.2; Val. Max. 2.7.12; App. Pun. 65; Cass. Dio fr. 57.83–6; Zon. 9.14; cf. Polyb. 15.18– 19. 307 Liv. 30.16.3–14, discussed above in 2.4.4. Cf. also App. Pun. 31, who includes among the events of this meeting the dispatch of legates from Rome to assist Scipio, apparently confusing it with the later dispatch of decem legati. Polybius’ account of the negotiations is missing. For the capture of Syphax, see Liv. 30.13 and CAH2 VIII 62–63. 308 Liv. 30.16.10–14. App. Pun. 32 gives additional demands and raises the number of ships to thirty; see Walbank, II 441 on Polyb. 15.1.2. Livy here characterizes the Carthaginians as interested not so much in arranging a lasting peace as in buying time for Hannibal to cross over to Africa (cf. 30.9.7). 309 Liv. 30.22–23. Livy reports that the Romans were offended by the low status of the Carthaginian envoys and annoyed that they were too young to remember the details of the first treaty, made with C. Lutatius Catulus in 241 (dis306

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that the Carthaginians then violated the treaty by attacking Roman supply ships and subsequently doing violence to legates sent by Scipio to complain of the attack. 310 Thus ended the first attempt at peace. A second attempt also failed, this one apparently involving a face-to-face colloquy just before the battle of Zama between Hannibal and Scipio, reported by both Polybius and Livy. 311 After Scipio’s victory, the Carthaginians sent a delegation to his camp at Tynes (modern Tunis) to seek peace and were given preliminary terms. 312 The standard procedure was then followed: the envoys conveyed the terms back to Carthage for deliberation, the Carthaginians voted to accept the terms, and messengers were sent to report (to Scipio) the acceptance. 313 Appian reports in addition that Scipio sent envoys to Rome to announce the preliminary arrangements. According to Appian, Scipio instructed them to say that if those at Rome were dilatory, he would conclude the peace himself. 314 Here Polybius’ treatment of the negotiations breaks off. Livy reports the dispatch of Carthaginian ambassadors to Rome, escorted by L. Veturius Philo (cos. 206), M. Marcius Ralla (pr. 204), and L. Cornelius Scipio Asiaticus, the brother of Publius. 315 Shortly after the arrival of the Carthaginian delegation, Cn. Cornelius Lentulus and P. Aelius Paetus were elected consuls for the year 201. It was decided to wait until after the Carthaginians had been heard before determining their provinciae. Lentulus (so Livy tells us) thereupon declared that he would not allow any business to be transacted until the Senate decreed him the province of Africa, looking for either an easy victory if hostilities con-

cussed earlier in the text) rendering negotiations difficult. The incident shows that the Romans took seriously such matters as the status of the members of legations. 310 Polyb. 15.1.1–4; 2.6–3.4. Livy does report the attack on the supply ships and the mistreatment of the Roman legates, placing the two incidents during the armistice arranged by Scipio with the Carthaginians (Liv. 30.24.5–12). 311 Polyb. 15.6.4–8.14, Liv. 30.30–31. 312 The conditions are given by Polyb. 15.18, Liv. 30.37.1–6. App. Pun. 54 and Cass. Dio 17.82. See Walbank II 466 ad loc. 313 Polyb. 15.19.1–9; Liv. 30.37.7–13. 314 App. Pun. 49–56. A surprising statement, but we are later given a rationalization of it in Appian’s account of the Senate’s debate over the peace (Pun. 60). In a speech given to one of Scipio’s friends, Appian portrays Scipio as fearing that the Carthaginians still had substantial means with which to continue the war. 315 Liv. 30.38.4, cf. Appian Pun. 56 Their arrival is reported at Liv. 30.40.4.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 71 tinued, or the glory of finishing off the war during his consulship. 316 After much debate, the Senate decided that the two consuls should decide, either by mutual agreement (comparatio) or by the lot (sortitio), who should have Italy and who the fleet of fifty ships. If a peace settlement should not occur, the commander of the fleet was to cross over to Africa to provide support at sea to Scipio, who would retain the same ius imperii as he previously had. If, however, the conditions for peace were agreed upon, then the question would be brought before the People as to who would administer the peace and bring back the army, the consul or Scipio. 317 In any event, Scipio’s imperium was prorogued. Then the Carthaginian delegation was heard. Appian reports a lengthy debate on the part of the Senate, Livy merely that all were in favor of peace—except Lentulus, who had been assigned the fleet as his province. 318 He vetoed the decree of the Senate, still hoping, no doubt, for a chance to finish the war himself. Therefore two questions were brought before the People: first, was it their will and command that the Senate decree that peace should be made with the Carthaginians, and second, whom did they order to transact the peace and lead the army back from Africa? Not surprisingly, all tribes voted for peace and for Scipio. In response to this rogatio, the Senate decreed that Scipio make peace with the Carthaginian people on the advice of ten legates upon such conditions as he should see fit: ex hac rogatione senatus decrevit ut P. Scipio ex decem legatorum sententia pacem cum populo Carthaginiensi quibus legibus ei videretur faceret. 319 The phrase ex decem legatorum sententia merits discussion. In every subsequent dispatch of a commission of ten for this purpose, this phrase (or a close variant) appears. The phrase is analogous to that found both in the Liv. 30.40. Considering that Scipio owed his command to a vote of the People in the first place, there would appear little doubt that the vote would turn in his favor. 318 App. Pun. 57–64; Liv. 30.43.1. 319 Liv. 30.43.5. Appian (Pun. 32) uses very similar phrasing when he refers to the sending of legates to Scipio, but in reference to the earlier negotiations; the ones that had been violated by the Carthaginians: “the Senate sent advisors to Scipio, with whom he should deliberate and do whatever he considered would be profitable” (½ âïõëx óõìâïýëïõò hðåìøóå ô² Óêéðßùíé, ìåèE ®í hìåëëå êñéíåsí ôå êár ðñÜîåéí ” ôé äïêéìÜóåéå óõíïßóåéí.) As no other extant source mentions the sending of legates for this purpose before this commission of ten, we must consider the possibility that Appian has confused the sequence of events in the peace process. Cf. Zon. 9.14, where it is the People who vote to send the commission. 316 317

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pronouncements of the magistrate militiae after consultation with his war council and in official documents which refer to the actions of a magistrate domi taken on the advice of his consilium. 320 This analogy is vitally important for the understanding of how these commissions interacted with the magistrate, for if the commission of ten functions analogously to the consilium of the magistrate militiae, as I believe it does, then (unless evidence to the contrary is found) we would expect its advice not to be binding upon the magistrate. The phrase ex decem legatorum sententia would refer not to the acknowledgement of a decision made by the commissioners themselves, 321 but to the fact that the magistrate’s decision was issued after receiving their advice. The magistrate would of course have been free to accept or reject the advice as he saw fit. However, I would argue that the moral obligation to accept the advice would have been even stronger in this case—namely, a senatorial commission acting as a consilium, appointed by the Senate for this purpose, carrying its instructions, and thus in a sense representing its express will. Eckstein, attempting to make sense of the Livy passage quoted above using Kunkel’s interpretation of the phrase ex decem legatorum sententia, admits that it appears to contradict Scipio’s evident domination of the proceedings. 322 So, then what was the purpose of the Ten? Eckstein correctly identifies the presence of the commissioners as a way to ensure that the peace that Scipio had made was in Rome’s best interests. They themselves did not actually make the decision (for in that case, what need would there be for later ratification of the general’s acta taken de sententia consilii?) but they served both as an advisory body and also as a reminder of the Senate’s wishes. 3.4.1 Activities of the Commission of 201 In the events that follow, Livy clearly portrays Scipio as the man in charge and auctor of the peace arrangements. At the crucial point when the peace is actually made, Scipio alone is mentioned: after the Carthaginians return to Africa they came to Scipio, and made peace on the terms previously

For example, Liv. 25.25.7 (ex omnium sententia), Cic. Balb. 11, 19, and 38, (de consilii sententia). 321 Kunkel’s interpretation of ex consilio sententia, Untersuchungen 80f. 322 Eckstein, Senate and General 265. 320

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 73 stated. 323 Livy then turns to details: Scipio gave orders for the Carthaginian warships to be burned. He summoned a contio and presented Masinissa with land, the former holdings of Syphax. He ordered Cn. Octavius to lead the fleet back to Sicily and hand it over to the consul Cn. Cornelius Lentulus.324 He punished runaway slaves and deserters. 325 Finally, he ordered the Carthaginian envoys to travel to Rome, so that what he had accomplished upon the advice of the decem legati could be ratified by the authority of the Senate and the order of the People. 326 This statement and the one above concerning the decree of the Senate 327 are the only indications Livy gives for the involvement of the decem legati in the peace process. What have we learned from the accounts of this second commission? We still have no information about the composition of such a commission or its interaction with the magistrate. It is clear that both Senate and People have a part in the dispatch of the commission and the ratification of the acta of the magistrate, carried out consistent with the advice of that commission, ex decem legatorum sententia. Livy illustrates how Scipio retained complete control to do whatever he saw fit concerning the arrangements (indeed, as was explicitly stated in the decree of the Senate, quibus legibus ei videretur faceret). Fortunately, we learn more about the members of the commissions of ten legates from Livy’s report of the exploits of T. Quinctius Flamininus, cos. 198, pro cos. in Greece and Macedonia during the war against Philip V. 328

3.5 THE COMMISSION OF TEN SENT TO T. QUINCTIUS FLAMININUS IN 196 After Flamininus’ victory, Philip asked for peace terms. Flamininus granted a truce of fifteen days, and convened a consilium of his officers and the Greek leaders to deliberate on what terms to propose to Philip. At the end

323 Liv. 30.43.10: ita dimissi ab Roma Carthaginienses cum in Africam venissent ad Scipionem, quibus ante dictum est legibus pacem fecerunt. 324 Octavius, , Cn. (cospr. for Sardinia in 205, had been in charge of the fleet pro praetore since 204. 325 Cf. Val. Max. 2.7.12. 326 Liv. 30.44.13: ut quae ab se ex decem legatorum sententia acta essent, ea patrum auctoritate populique iussu confirmarentur. 327 Liv. 30.43.5. 328 Briscoe, Livy XXXI-XXXIII, is useful for Livy’s account of this commission, although relying heavily (and sometimes unnecessarily) on the factional theory of Roman politics.

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of this truce, Philip was to come to the area of Tempe to discuss the terms of the peace. 329 After much discussion, reported by both Polybius and Livy, the two parties came to an agreement that the question would be submitted to the Senate in full. A further truce of four months was granted in order to allow a Macedonian legation to travel to Rome. 330 At either the end of 197 or the beginning of 196, the Macedonian legation arrived in Rome, and (as was customary) was housed outside the pomerium in the Villa Publica in the Campus Martius. 331 In addition, an embassy from Flamininus and the Greek allies also arrived in Rome. 332 In the audience before the Senate in the temple of Bellona, the message of the Macedonian legation was brief: the king would do whatever the Senate deemed fit. 333 We have seen how in 201, the incoming consul Cn. Cornelius Lentulus attempted to block the peace process hoping (so we are told) to receive the command if the war were continued. 334 Now M. Claudius Marcellus, the incoming consul for 196, attempted a similar gambit for similar reasons. But Marcellus’ undertaking likewise failed, due (according to Livy) to the threatened veto of Marcellus’ actions by two tribunes of the plebs, Q. Marcius Ralla and C. Atinius Labeo. 335 The Senate accordingly submitted to the Liv. 33.11.3, 12.1, 13.1. On the war in general and Flamininus’ aims in particular, see R. M. Errington, CAH2 VIII, 261–270. 330 Polyb. 18.39; Liv. 33.13. Willems, Sénat II, 506 notes the same procedure in the peace with Antiochus in 189 (Polyb. 21.17, 24, 45, and 48; Liv. 37.44–5, 55–6, 38.38–9). 331 Liv. 33.25.4, cf. Polyb. 18.42.1. According to Polybius’ account, the vote in the Senate and Marcellus’ attempt to forestall the peace process (see below in text) both occurred after his election to the consulship, while Livy, who must be following an annalistic source, places Marcellus’ interference in the beginning of 196, after the Senate’s vote for peace and the appointment of the commissioners at the end of 197, but before the People had been given an opportunity to ratify the peace. The chronology problem is complicated by the fact that at this point in time, the Roman year was some two to four months ahead of the solar calendar; that is, March 15 (when Marcellus entered office) would have corresponded to DecemberJanuary of the (correct) seasonal calendar. See Walbank, II 605. 332 Polyb. 18.42; Liv. 33.24. Presumably they would act as witnesses of the earlier negotiations if confirmation should prove necessary. 333 Liv. 33.24.6. 334 Liv. 30.40, as discussed above. 335 Liv. 33.25.6. 329

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 75 People a senatus consultum in favor of the peace and dispatched a commission of ten senators, to put the conditions into effect with Flamininus. 336 Included in the senatus consultum was a clause stipulating that the commission include as members P. Sulpicius (Galba Maximus, cos. 200) and P. Villius (Tappulus, cos. 199), the other two men who had held the province of Macedonia as consuls in this war, and had also served as legates to Flamininus in 197. 337 The senatus consultum (as ratified by the People) determined the principal conditions, leaving the details up to the general. This commission is the first whose composition we are able to discuss in any detail. Space does not permit a complete prosopographical excursus on the membership of every commission. However, I am interested mainly in determining (if possible) the rationale behind the composition of such commissions in order to shed further light on their function. Polybius, Livy, and Plutarch give the names of six members of Flamininus’ commission at various points in their accounts (listed here in alphabetical order by nomen): Cn. Cornelius, 338 P. (Cornelius) Lentulus, 339 L. Stertinius, 340 P. Sulpicius (Galba Maximus), 341 L. Terentius, 342 and P. Villius (Tappulus). 343 Of these six members, five can be identified with reasonable

336 Livy’s carefully phrased report no doubt closely follows the original wording of the SC: decem legati more maiorum, quorum ex consilio T. Quinctius imperator leges pacis Philippo daret, decreti, adiectum ut in eo numero legatorum P. Sulpicius et P. Villius essent, qui consules provinciam Macedoniam obtinuissent, “Ten legates were decreed according to accepted custom and precedent, on whose advice T. Quinctius, imperator, should set terms for Philip, and it was added that among the number of the legates should be P. Sulpicius and P. Villius, who as consuls had received Macedonia as their province” (33.24.7); Polyb. 18.42: ½ óýãêëçôïò Tíäñáò äÝêá êáôáóôÞóáóá ô§í dðéöáí§í

dîÝðåìðå ôï˜ò ÷åéñï™íôáò ôN êáôN ôxí FÅëëÜäá ìåôN ôï™ Ôßôïõ êár âåâáéþóïíôáò ôïsò HÅëëçóé ôxí dëåõèåñßáí, The Senate, having appointed ten men from the most dis-

tinguished [senators], sent them to manage the affairs of Greece with T. and to safeguard the freedom of the Greeks.” 337 Liv. 33.24. 7. In the phrase quorum ex consilio, “on whose advice” we see terminology similar to that used in the commission of 201, as discussed above. 338 Polyb. 18.48.2; Liv. 33.35.2–12. 339 Polyb. 18.48.2, 18.50.2; Liv. 33.35.2, 33.39.2; Plut. Flam. 12.1. 340 Polyb. 18.48.2; Liv. 33.35.2; Plut. Flam. 12.1. 341 Liv. 33.24.7. 342 Polyb. 18.48.3 and 50.32; Liv. 33.35.2 and 39.2. 343 Polyb. 18.48.2; Liv. 33.24.7, 33.35.2 and 39.2; Plut. Flam. 12.1.

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security (listed below in order of seniority); for the first, Cn. Cornelius, two different identifications have been proposed. 344 1. Cn. Cornelius Cornelius was sent to Philip of Macedonia to advise him to send a legation to Rome to request an alliance (and thus preventing any coordination with Antiochus). 345 Broughton has identified him with Cn. Cornelius (RE 176) Lentulus, cos. 201. 346 In 199 that man headed a commission of three men (including his brother Publius, who may also have been a member of this commission—see no. 7; and Sextus Aelius Paetus) to increase the number of colonists in Narnia. 347 We know of no previous Macedonian experience. Another possibility is Cn. Cornelius (RE 74) Blaesio, who as a privatus had been given consular imperium via a plebiscite to govern Hispania Citerior in 199. 348 Blaesio remained there until 196, celebrating an ovatio on his return to Rome. L. Stertinius, Blaesio’s counterpart in Hispania Ulterior, was also a member of the commission (see below); this relationship might support the identification. However, the important diplomatic mission to Philip later assigned to the Cn. Cornelius of this commission seems more appropriate for an ex-consul such as Cornelius Lentulus than for Cornelius Blaesio, who had held no previous office that we know of before his governorship. 349 However, one cannot exclude him solely on that ground—it is difficult to determine exactly what the status would have been of a privatus who had held consular imperium—and who had celebrated an ovatio to boot. Certainly he would not have been considered on a level with a mere pedarius, a low-ranking member of the Senate, sitting in the back benches. 350 Their subsequent actions as members of the commission will be discussed below in the narrative. 345 Polyb. 18.48.4. 346 MRR I 337. Willems, Sénat II 505 with n. 3, does not attempt an identification, remarking merely that “plusieurs sénateurs de cette époque portent ces noms.” 347 See MRR I 329 under “triumviri ad colonos scribendos.” 348 He is mistakenly given the cognomen “Lentulus” at Liv. 31.50.11, but correctly identified at Liv. 33.27.1 and Degrassi, Inscr. Ital. XIII 1 78f, 552. 349 For comparison, note that of the two legati sent to Antiochus (Liv. 33.35.2), one was a consular (no. 3, P. Villius Tappulus, cos. 199), the other an aedilician (no. 5, L. Terentius Massaliota, pl. aed. 200). Plutarch mentions only Tappulus. 350 The term pedarius (“foot-senator”) signifies one who lacked the right of giving his opinion by voice in the Senate—he and the other pedarii would vote by their 344

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 77 2. P. Cornelius (RE 214) Lentulus Caudinus, pr. 203 Both Polybius and Livy call him “Publius Lentulus.” 351 Acting pro praetore in Sardinia in 202, Lentulus brought reinforcements (in the form of fifty warships and a hundred cargo vessels loaded with supplies) to Scipio Africanus at Utica. 352 He may possibly be the same P. Lentulus who served on the commission of ten in 189 (on which see below). 3. L. Stertinius (RE 5) pro cos. 199–6. L. Stertinius, although a privatus, governed Hispania Ulterior (Further Spain) from 199–196, having also been given consular imperium via a plebiscite. 353 Unlike Cn. Cornelius Blaesio, his counterpart in Hispania Citerior (Nearer Spain), Stertinius did not celebrate an ovatio upon his return to Rome, although he was given the right to set up arches with golden statues—the first known instance of the “triumphal arch.” 354 Of his career subsequent to this commission nothing is known. 4. P. Sulpicius (RE 64) Galba Maximus, cos. 200. Securely identified by Livy as one of two legati whose presence on the commission was stipulated by the Senate. 355 One of the most experienced of the “eastern experts,” Galba had fought against Philip in the First Macedonian War as consul in 211 and pro cos. 210–6. In 200, Galba was assigned the war with Philip and Macedonia as his province and continued to campaign there until his successor P. Villius Tappulus arrived (see below on no. 6). 356 Galba was not entirely successful in this campaign, but did score a small victory at Ottobolos against Philip. Galba and Tappulus were later assigned as legates to Flamininus in 197. 357 Apparently they were both on

feet, literally, by walking to one side or the other of the Senate house, depending on whether they wished to vote yes or no on any order of business. 351 Polyb. 18.48.2 and 50.2. 352 Liv. 30.36.2. 353 Liv. 31.50.11, 33.27.3–4. 354 Liv. 33.27.3. See T. C. Brennan, “Triumphus in Monte Albano,” Transitions to Empire: Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian, edd. R. W. Wallace and E. M. Harris (Norman, OK 1996) 326. 355 Liv. 33.24.7. 356 On Galba, see Münzer, RE s.v. “Sulpicius” no. 64 and Badian, T. Quinctius Flamininus: Philhellenism and Realpolitik. Semple Lectures (Cincinnati 1971) 31, 34–35. On Galba’s campaign in Macedonia, see N. G. L. Hammond, JRS 56 (1966) 39–54. 357 Liv. 32.28.12.

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friendly terms with Flamininus. 358 By including the two on the commission, the Senate arranged that all three Roman magistrates who had campaigned against Philip would be present at the peace proceedings. 359 5. L. Terentius Massaliota (pl. aed. 200) At the games given by Terentius and his colleague Cn. Baebius Tamphilus the Sticchus of Plautus was presented. In 187 he was praetor for Sicily. He served as military tribune with Q. Fulvius Flaccus in Hispania Citerior from 182–180. 360 6. P. Villius (RE 10) Tappulus, cos. 199 Securely identified by Livy. If Galba had had little success in the war against Philip, his successor Villius was even less effective, at least according to Livy’s account. It appears that directly upon his arrival, Villius immediately retired into winter quarters in Corcyra. Livy tells us that he was still deliberating on which route to take into Macedonia when he heard the news that Flamininus had already arrived at Corcyra. 361 However, Livy also includes an alternate account by Valerius Antias that tells how Villius traveled along the Aous river valley, bridged the river, and successfully engaged Philip in battle. 362 In addition to the above members, the following identifications have been proposed: 7. ?P. Aelius Paetus (cos. 201):

358 J. P. V. D. Balsdon, “Titus Quinctius Flamininus,” Phoenix 21 (1967) 185–6, notes that the working relationship between Flamininus and these two legates appears to have been quite harmonious, even though (as he points out), the potential for discord was there: two very senior consulars, who had both achieved little success in the war against Philip, had been assigned to an underage consul who had accomplished what they had not. 359 On the speech of Sulpicius which convinced the centuriate assembly to vote for war, see Liv. 31.7 and Briscoe, Livy XXXI-XXXIII 20 and 71–6. 360 Games: Liv. 31.50.3, Didasc. for Plaut. Stich. (with incorrect praenomen C.). Praetorship: Liv. 38.42.4 and 6. Military tribunate: Liv. 40.35.3, MRR I 383. 361 Liv. 32.6.4. On the chronology of Villius’ arrival, see Plut. Flam. 3.2. We do not find the answer for his late arrival in the asynchronism of the Roman calendar to the seasons for the year 198. According to the table found in P. Derow, “The Roman Calendar 218–191 B.C.,” Phoenix 30 (1976) 272–3, in 198 the Roman calendar was almost exactly two months ahead of the seasons. By this reckoning, the consuls would have entered office in mid-January of the Julian calendar, thus giving them an even longer campaign season than normal. 362 As told by Liv. 32.6.5.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 79 Livy mentions that some of Flamininus’ decem legati, namely (in the order he names them) P. Lentulus (no. 2 above), Villius (no. 6), and L. Terentius (no. 5) went to meet with Antiochus of Syria at Lysimachae in 196. He also states that L. Cornelius came from Selymbria to Lysimachae. 363 Later, in his narrative for the year 193, Livy notes that the same legates were sent to Antiochus at this time as had previously (in 196) been dispatched to him at Lysimachae, namely (in the order in Livy’s narrative), P. Sulpicius (Galba, no. 4), P. Villius (Tappulus, no. 6), and P. Aelius. 364 The problem is that only one name occurs on both lists: Villius. Did Livy accidentally omit Aelius and Galba from the list of those present at the earlier meeting in 196? 365 Or did he incorrectly identify them as members of the later 193 embassy? Given that (if we trust Livy’s account) Villius and Galba were without a doubt members of the commission of 196, Broughton has tentatively listed Aelius as a member as well. 366 Another point in favor of Aelius’ inclusion is his previous connection with the best candidate for no. 1 on the list, Cn. Cornelius Lentulus—Aelius was Lentulus’ colleague in the consulship of 201 and two years later again worked with Lentulus on the three-member commission in Narnia. 367 Therefore, Broughton’s conjecture seems reasonable. 8. ?M. Caecilius Metellus (pr. urb. 206): Broughton places him on the list (following Münzer’s suggestion) on the basis of a statue dedication to a M. Caecilius L. f. Metellus by the Koinon

363 Liv. 33.39.2. decem legati P. Lentulus a Bargyliis, P. Villius et L. Terentius ab Thaso Lysimachae petierunt. Eodem et ab Selymbria L. Cornelius…. On L. Cornelius, see further 33.41.2: L. Cornelius, cui legatio ad duos reges Antiochum Ptolomaeunque, mandata erat, “to whom the delegation to the two kings Antiochus and Ptolomy, had been given.” Identifying this L. Cornelius as the consul of 199, Broughton remarks, “the need for a man of seniority and distinction for this commission suggests that he was Lentulus” (MRR I 339 n. 5). Note the ubiquity of the Cornelii Lentuli in Macedonian affairs of this period: P. Cornelius Lentulus, pr. 203, L. Cornelius Lentulus, cos. 199, and (most likely) Cn. Cornelius Lentulus, cos. 201, all played some part. 364 Liv. 34.59.8. 365 As suggested by Holleaux, Études d’Epigraphie et d’Histoire Greques V (Paris 1938) 166–75. 366 MRR I 337 and 339 n. 6. Briscoe, Livy XXXI-XXXIII, does not treat the problem. 367 Of course, the connection is relevant only if we identify no. 1, Lentulus, as the consul of 201.

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of the Thessalians. 368 Livy does not mention him by name. This Metellus was one of five legates sent to escort the Magna Mater stone to Rome in 205. 369 If we accept the above identifications, the commission as we have it breaks down according to rank as follows: two known consulars (nos. 4 and 6), two possible consulars (nos. 1 and 7), one previous holder of consular imperium (no. 3), one known praetorian (no. 2), one possible praetorian (no. 8), one known aedilician (no. 5). Analysis is hampered by the fact that the members are listed here and there, with no single complete ordered list of all the members. Such a list might have aided us in determining (at least) consulars and non-consulars, for elsewhere Livy tends to divide his lists into these two groups. 370 3.5.1 Activities of the Commission of 196 The purpose of the commission as given by Livy was to provide advice to Flamininus while he delivered the terms of the peace to Philip. 371 Polybius gives their duties as twofold: to manage affairs in Greece along with Flamininus and to secure the peace for the Greeks. 372 It is the second part of the task that sets this commission apart from the known activities of earlier ones. 373 So far as we know, the duties of the two previous commissions ended with the arrangement of the peace. The commissioners arrived in late winter or early spring of 196, bearing a senatus consultum containing the details of the peace arrangements. According to Polybius, the principle clauses were as follows: Philip was to hand over to Rome those (Greek) cities subject to him and those garrisoned by him before the Isthmian Games, and also the cities of Euromus, Pedasa, Bargylia, and Iasus, likewise Abydus, Thasos, Myrina, and Perinthus. All 368 Eph. Arch. 1910, 374f, cited in MRR I 337; and Münzer, RE s.v. “Caecilius” nos. 73 and 76 with Suppl. III col. 222. 369 See MRR I 304 for the sources. 370 See, for example, Livy’s list of the commissioners of Cn. Manlius Vulso at 3.6 below, divided into consuls and praetorians (the praetorians are not listed in ranked order), and the list of the commissioners of L. Aemilius Paullus at 3.7, where Livy makes three divisions: censorians, consulars, and the remainder, not listed in order of rank. 371 Liv. 33.24.7, as discussed above. 372 Polyb. 18.42.5. 373 Of course, as legati, their responsibilities would naturally have encompassed such a diplomatic mission.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 81 other Greeks in Asia and Europe were to be free and employ their own laws. Concerning Cius, Flamininus was to write to Prusias (the king of Bithynia) according to (the suggestions contained in) the senatus consultum. Philip was to restore all prisoners and deserters to Rome within the same time-period, likewise also all decked ships except five light crafts and his “sixteener.” 374 He was to pay 1,000 talents, one half immediately, and the other half in installments over ten years. 375 Livy’s version differs slightly, including a clause restricting Philip’s army to a maximum of five thousand men and no elephants, and one prohibiting him from waging war outside the boundaries of Macedonia without permission of the Senate. Livy then lists annalistic variants and concludes with arrangements for the exchange of hostages (also omitted by Polybius). 376 In Livy’s version of the senatus consultum, Flamininus was to inform Prusias of the decision of the Senate and the decem legati (quid senatui et decem legatis placuisset) in the matter of Cius. 377 This term, placere, (or its Greek equivalent äïêåsí) is commonly used in reports to indicate the decision of the magistrate, aided by his council. 378 The terminology used here by Livy is slightly inaccurate, 379 for up to this point there has been no deliberations involving the commissioners, no opportunity for any sort of a decision which could be referred to as that “of the decem legati.” He subsequently tells us that the Aetolians criticized “the decision of the decem legati.” 380 Now, Livy’s use of the phrase may simply indicate the close relationship between the Senate and the decem legati, and not refer to any specific deliberations at all. For if (as I have previously suggested) one aspect of the commission’s role is to protect the official interests of the Senate, then a phrase such as quid senatui et decem legatis placuisset is logical, and corresponds with Polybius’ statement that Flamininus was to write to Prusias instructions contained in the SC brought by the decem legati. 381 In other words, the decem legati should

On this ship, Philip’s royal vessel, see Walbank, II 611. Polyb. 18.44.2–7, Liv. 33.20.2–12. 376 Liv. 33.30.2–12. Polybius does mention the exchange of hostages earlier at 18.39.5. 377 Liv. 33.30.4. 378 placere: Liv. 24.34.16, 30.4.9, 32.9.8, 37.13.5, 37.14.4, 42.62.10; Caes. BG 3.3.1. äïêåsí: Polyb. 11.26.2, 15.1.6; App. BC 3.72. 379 As Briscoe laconically points out, Livy XXXI-XXXIII 306 ad loc. 380 Liv. 33.31.1: Aetoli decretum decem legatorum…carpebant. 381 Polyb. 18.44. 374 375

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be viewed as official representatives of the Senate, and thus it could be said that the instructions were quid senatui et decem legatis placuisset. In any event, Livy’s general usage of phrases such as decem legatis placuisset or decretum decem legatorum is technically inaccurate. Even though Livy may speak of “the decision of the decem legati,” it would be incorrect to view this usage as anything more than a convenient shorthand for “the decision of Flamininus, taken on the authority of the decem legati.” Just as in the commander’s consilium, where one may speak of the “decision of the consilium,” meaning “the magistrate, as advised by his consilium,” here it is vital to remember that the decem legati, in and of themselves, have no imperium, nor any legal authority upon which to issue a mandate. The magistrate is the only one who has been authorized to make the arrangements (and furthermore his acta are subject to subsequent ratification). 382 However, the opinion of the commission (which would have always included consulars) would hardly be ignored. Indeed, the ubiquity of the phrase ex decem legatorum sententia in these contexts shows the importance of the presence of a consilium (in this case the decem legati) as an aid to the magistrate. 383 As can be imagined, this decree created a sensation in Greece. Polybius tells us that all the Greeks were “of good courage and overjoyed” at the report of the senatus consultum, except for the Aetolians, who, disappointed at not receiving what they had expected, dismissed it as all talk and

382 Liv. 30.43.5, reporting the decree of the Senate in 201, shows that the control of the situation was clearly in Scipio’s hands: senatus decrevit ut P. Scipio ex decem legatorum sententia pacem cum populo Carthaginiensi quibus legibus ei videretur faceret, “the Senate decreed that P. Scipio should make peace with the Carthaginian people on the advice of the decem legati, with such terms as he sees fit.” Compare the terminology used at Liv. 33.24, discussed above, naming Flamininus as the auctor of the peace arrangements. 383 The idea that a magistrate could be legally bound to follow the advice of his consilium is put forward by Kunkel, Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (Munich 1962), 79ff, and was challenged first by P. A. Brunt, in Tijdschrift Voor Rechtsgeschiedenis 1964, 441f (a review of Kunkel’s work), then by P. Garnsey, “The Lex Iulia and Appeal Under the Empire” JRS 1966 168–180. C. Mackay “The Judicial Legislation of C. Sempronius Gracchus” (diss. Harvard 1994) presented a thorough overview of the case against Kunkel’s view. On the Gracchan jury (also termed a consilium) whose verdict was binding on the praetor who presided over it, see the concise treatment by T. C. Brennan, PRR I 237–239 with n. 124.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 83 no action. 384 They complained that although the cities in Asia which were to be set free had been named in the SC, those in Europe were unnamed, giving rise to the suspicion that they were to become property of the Romans. Livy adds that the complaints may have had some merit, because though many cities were declared free by name in the SC, the commission had been ordered to act as the situation demanded in the matter of Corinth, Chalchis and Demetrias, the so-called “Fetters of Greece.” 385 After the initial arrival of the commissioners at Elatia, the entire group moved south to Anticyra and from there across to Corinth. Here Flamininus met with the counselors almost daily (according to Livy), discussing the plans for the liberation of Greece. 386 Polybius uses standard consilium terminology in his description of the meetings: Flamininus “consulted with his consilium and pronounced concerning the overall situation.” 387 According to both sources, the topic of Flamininus’ addresses was unvarying. It was up to the commissioners to convince all Greeks that the Romans had involved themselves in the war against Philip for the sake of the Greeks, not for their own advantage. Therefore, not only must they withdraw totally from Greece, but also the cities held by Philip must be freed, including the Fetters. We are told that the commissioners hesitated to relinquish the Fetters out of fear of Antiochus, who had slowly been strengthening his position in Asia. Indeed, Polybius states that the Fetters were the only item about which the commissioners had not received definite instructions from Rome, in order that they might make the best decision based on the present 384 18.45.1. The Aetolians had assumed that the terms of their previous treaty with Rome (established in 212) would still be in effect, granting them all cities that the Aetolians and Romans conquered together. Thus, they had suffered a rude awakening when told by Flamininus (in the conference held after the Battle of Cynoscephalae, reported at Polyb. 18.38–39) that contrary to their expectations, they would not receive Larisa Cremaste, Pharsalus, and Echinus, but only Pthiotic Thebes. 385 Liv. 30.31.1. Plutarch’s highly-compressed account (Flam. 10.1) mentions only that the ten commissioners advised Flamininus to retain the Fetters. 386 Liv. 33.31.7. 387 Polyb. 18.45.7: óõíÞäñåõå ìåôN ôïýôùí êár äéåëÜìâáíå ðåñr ô§í ”ëùí. For the terminology, see 1.3.1. On the phrase ðåñr ô§í ”ëùí, “concerning the overall situation” cf. Polyb. 18.39.5–6. The phrase is seen more frequently in its Latin translation de summa rerum or merely de summa, as at Liv. 44.2.1, Caes. Civ. 2.30.1, Justin 13.6.10. The use of the imperfect verbs óõíÞäñåõå and äéåëÜìâáíå are indications of the lengthy process.

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circumstances. 388 Finally, a compromise was reached. Flamininus managed to persuade the commissioners that Corinth should be returned to the Achaeans, but he would remain in temporary possession of Acrocorinth, Demetrias, and Chalcis. In Livy, the decision is introduced by the phrase ita decretum est, one of the two most common ways that Livy reports the decision of a magistrate aided by his consilium (the other being the verb placere in the impersonal construction). This is an important passage for our understanding of the interaction between the magistrate and his consilium. Flamininus’ lengthy speeches to persuade the commissioners show that he considered it of the utmost importance to have their approval—even though it was possible for him to act against their wishes. The main difference between the decem legati as consilium and the consilium of the military camp is that the role of the decem legati as official representatives sent directly by the Senate insures (as we see here) that their input will be seriously considered, and their approval sought at the cost of great effort. 389 Correspondingly, the approval of the senatorial commission must have had greater weight in Rome, not only because of the stature of the commissioners, but also because of their position as watchdogs for the Senate. Hence Flamininus’ efforts to win over the decem legati. After the ceremonial announcement of the “Freedom of the Greeks” at the Isthmian Games, 390 the next phase of the commission’s activities began. As we have previously seen, the reception of foreign legations was an important part of the duties of the magistrate’s consilium. 391 The commission, acting as Flamininus’ consilium, was naturally present as various delegations were received. First, legates from Antiochus arrived. As was customary, the foreign legates were given the opportunity to speak first. The legates were given a warning that they were to deliver to Antiochus: Antiochus was not to make war on any of the autonomous states in Asia, to

Polyb. 18.45.10. Pace Schleussner (51ff.) who argues that (unlike other instances of military consilia) Flamininus was not able to contradict the decisions of the decem legati, as if they had special powers somehow delegated to them by the Senate. The magistrate was bound by neither the commission nor the Senate to rule one way or another. 390 Recounted at Polyb. 18.46 and Liv. 33.32. Note that in the official proclamation there is no reference to the commission’s role in the proceedings, only that of the Senate and Flamininus. 391 The format of the reception of foreign legates by the magistrate and his consilium has been previously discussed at 2.4.3. 388 389

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 85 withdraw from those states previously subject to Ptolemy and Philip, and not to cross over into Europe. After the legation from Antiochus, the commission received embassies from various states and explained the decisions made by the consilium (ôN äüîáíôá ô² óõíåäñßv). 392 Polybius tells us that most of the commissioners had wished to give the cities of Oreus and Eretria to Eumenes. These cities were among those destined (according to the rumors broadcast by the Aetolians) to be surrendered to the Romans. 393 Because of these rumors, Flamininus evidently thought it was of great importance for Oreus and Eretria to remain free, for Polybius tells us at 18.47.11 that Ôßôïõ äc ðñüò ô’ óõíÝäñéïí äéáóôåßëáíôïò ïšê dêõñþèç ô’ äéáâïýëéïí, “with Titus having given express instructions to the consilium, the resolution was not passed.” Here we have another instance in which there is a difference of opinion between Flamininus and the commissioners. In the case of large-scale opposition, Flamininus seems to have acted very prudently in not overriding the commission’s advice, but referring the matter back to the Senate for their instruction. Livy gets it slightly wrong: “the ten commissioners gave Oreus and Eretria to King Eumenes, the son of Attalus, over the objections of Quinctius, this one matter was referred back to the Senate; the Senate gave freedom to these states, as well as Carystus.” 394 The commissioners, of course, had no authority to carry out such actions. If Flamininus truly wished to “dissent” from the opinion of his consilium, the decision was his (and his alone) to liberate the cities. Of course, his “on-the-spot decision” was subject to later approval by the Senate, just as all other acta of a magistrate militiae. Briscoe (who appears to show little interest in the commission Polyb. 8.47.6. As discussed above, ôN äüîáíôá ô² óõíåäñßv is a convenient shorthand for “the decision of Flamininus, as advised by his consilium (= the decem legati).” For a senatus consultum of ca. 140 which mentions terms given to Thessaly by Flamininus upon the advice of the ten commissioners, see Sherk RDGE no. 9, lines 52–3: ïŸò íüìïõò Ôßôïò ÊïÀãêôéïò œðáôïò Pð’ ôyò ô§í äÝêá ðñåóâåõô§í ãíþìçò häùêåí, “which terms Titus Quinctius, consul, pronounced, upon the advice of his decem legati.” 393 Polyb. 18.45.5. Oreus, on the NW edge of Euboea, had been taken by a combined Roman-Pergamene force in 199 (Liv. 31.46.6); Eretria, on the middle of the southern shore of Euboea, by the Roman, Pergamene, and Rhodian forces in 198 (Liv. 32.16.10). 394 Liv. 33.34.10: Oreum et Eretriam decem legati Eumeni regi, Attali filio, dabant dissentiente Quinctio; ea una res in arbitrium senatus reiecta est; senatus libertatem his civitatibus dedit Carysto adiecta. 392

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aside from its possible factional leanings) does not comment on this aspect of the decision. 395 After granting these audiences, the commission separated, each member traveling to different areas to implement the arrangements. Their subsequent activities would no longer involve them in an advisory capacity. But we hear of their collective participation one last time. Livy tells us that in Rome, in the year 193, Flamininus was instructed by the Senate to receive ambassadors from Antiochus in the presence of the decem legati (some of whom had previously met with the king either in Asia or Lysimachaea). 396 Flamininus was then to respond to them as was appropriate to the dignity and advantage of the Roman people. Menippus, one of the leaders of the delegation, spoke at length (so we are told) delivering a request for friendship and an alliance from the king. Flamininus then gave them two alternative conditions according to which the request would be filled. The first was for the king to stay out of Europe. If, however, he did cross over into Europe, that the Romans would then have the right to defend existing friendships, and add new ones. When Menippus hesitated to accept these conditions, P. Sulpicius Galba (who Livy notes was the oldest member of the decem legati) told him succinctly, “either accept one of the two conditions or quit discussing friendship.” As we have previously seen in the commander’s consilium, the members expressed their sententiae in descending order of rank. 397 The same principle holds true here, although Livy attributes Galba’s precedence to age rather than rank. In conclusion, the decem legati sent to aid Flamininus follow the previously described parameters for such delegations, and should not be viewed as anomalous with respect to their powers or function. 395 Livy XXXI-XXXIII 618, citing Scullard’s view that the opposition of the commission came from the “Claudian-Servilian group among the Ten, viz. Galba, Tappulus, Cn. Lentulus, and (perhaps) Caepio.” Although Scullard does not hold the view that the Senate appointed the commission specifically to act as a check on Flamininus (i.e. fearing that he would evacuate the Fetters) he later states (107) that “the Claudian members of the board, especially Sulpicius Galba and Villius Tappulus, who must have envied Flamininus the victory which they had been unable to achieve, acted as a check on his rigid philhellenism, and differences did arise between them.” However, as noted above in the discussion of the members of the commission, the relationship between Flamininus, Galba, and Tappulus appears to have been friendly. 396 Liv. 34.57.4–5. 397 Section 2.2.2.

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3.6 THE COMMISSION OF TEN SENT TO CN. MANLIUS VULSO IN 188 As early as 198, Attalus of Pergamum had complained to Rome about attacks on his territory by Antiochus. In 197, Antiochus launched a campaign to regain much of the coast of Asia Minor. With Rome preoccupied with fighting Philip, Antiochus crossed over to Europe and concentrated his activity in the area of the Chersonese and Lysimacheia. After Cynocephalae, with Philip no longer a threat, Antiochus’ activities endangered the balance of power in the Balkans. The Aetolians, who still bore a grudge against Rome on account of their perceived ill-treatment in the settlement of 198, joined him. The final straw came in the fall of 192 when Antiochus crossed over with an army to Demetrias. Shortly thereafter, Rome was at war. 398 After a decisive victory by L. Cornelius Scipio Asiaticus (cos. 190) over Antiochus at Magnesia (despite the latter’s overwhelming numerical superiority) ambassadors from the king came to Scipio Asiaticus at Sardis and were received by a full (frequens) consilium. The ambassadors had been previously instructed to accept any terms given, and so it was decided that the king would send a delegation to Rome in the usual fashion. 399 At the audience before the Senate, the delegation formally agreed to the terms put forth by L. Scipio, which were thereupon approved by both the Senate and the People. 400 In response to this and other delegations sent to Rome, the Senate (so Livy tells us) replied that it would send ten legates “according to established custom and precedent, to arbitrate and settle affairs in Asia.” 401 These legates would assist Cn. Manlius Vulso, cos. 189, who had been assigned to succeed Scipio Asiaticus before the news of the battle of Magnesia. In the event that on-the-spot arbitration (praesens disceptatio) was necessary, they would be given a free hand (libera mandata), but the Senate itself would decide de summa rerum. Similarly, Polybius has the Senate give the legates the power to decide concerning the particulars (ðåñr ô§í êáôN ìÝñïò), but re-

For a complete summary of the war and the events leading up to it, see R. M. Errington, CAH2 VIII 274–289. 399 Liv. 37.14–19. 400 Liv. 37.55.3, cf. Polyb. 21.24.2–3. 401 Liv. 37.55.4f. decem legatos more maiorum missurum ad res Asiae disceptandas componendasque. Livy also characterizes the dispatch of the commission of ten sent to T. Quinctius Flamininus in 197 as being more maiorum (33.24.7). 398

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serve the right to determine the overall policy (ðåñr ô§í ”ëùí). 402 So it appears that here, in contrast to other delegations, the commission had a limited scope of operations. The following are the names of the ten members of the commission in the order they given in Livy’s text: 1. Q. Minucius (RE 22, 55) Rufus cos. 197 2. L. Furius (RE 86) Purpurio, cos. 196 3. Q. Minucius (RE 65) Thermus, cos. 193 4. Ap. Claudius (RE 245) Nero, pr. 195 5. Cn. Cornelius (RE 268?) Merula or (RE 265) Merenda, pr. 194 403 6. M. Iunius (RE 48) Brutus, pr. 191 7. L. Aurunculeius (RE 4), pr.190 8. L. Aemilius (RE 114) Paullus, pr. 191 9. P. Cornelius (RE 214) Lentulus, pr. 203 10. P. Aelius (RE 152) Tubero, pr. 201 The three consulars are listed first, then the seven praetorians. Livy does not appear to have listed the praetorians in strict ranked order, for no. 8, L. Aemilius Paullus (if identified with the later consul of 168 and conqueror of Macedonia) was praetor in 191, no. 7, L. Aurunculeius, in 190. Similarly, nos. 9 and 10, if identified as the praetors of 203 and 201, respectively, would throw the list even more out of kilter. Willems, however, does not think that the L. Aemilius Paullus who appears at no. 8 is the praetor of 191, who served in Spain pro cos. in 190, for he does not think that man could have returned from Spain in time to take part in the commission. He posits an unknown Paullus of quaestorian status. 404 Broughton disagrees, pointing out that (according to Polyb. 21.24.16–17) L. Cornelius Scipio and L. Aemilius Regillus managed to return from Asia (a much longer journey) just as the commission was preparing to depart, and celebrated their triumph a few days later. 405 Therefore Paullus himself would have had enough time to win a victory in Spain, reLiv. 37.56.1, Polyb. 21.21.6–7. Merula is otherwise unknown. Duker (cited at MRR I 356) has suggested that “Merula” may be an error for “Merenda.” In any event, the fourth man on the list must have been a praetorian. 404 Sénat II 506 n. 2. 405 The Roman calendar was at this point some four months ahead of the Julian calendar. Livy dates an eclipse which fell on March 154, 190 to a.d. IV Id. Quinct. in the consular year 190. See P. Derow, “The Roman Calendar 190–168 B.C.” Phoenix 27 (1973) 348–9. 402 403

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 89 turn to Rome, celebrate a triumph, and take his place on the commission. Polybius dates the arrival of the foreign embassies to Rome to the early summer of 189. 406 When Livy later mentions the commission’s opposition to Cn. Manlius’ request for a triumph, he singles out the two commissioners L. Furius Purpurio and L. Aemilius Paullus by name. As T. C. Brennan notes, it appears that both these men had previously been turned down for a triumph, Purpurio as cos. in 196 and Paullus as pr. 191, pro cos. 190–89. 407 The resulting dissatisfaction caused by these disappointments was most likely the primary motive for their opposition to Manlius’ triumph bid. 408 If we accept that Livy did not list the members of the commission according to strict ranking of the year of office, we are freed from the necessity of identifying the last two names, P. Cornelius Lentulus and P. Aelius Tubero, as anyone other than the praetors of 203 and 201, respectively. 409 Thus all the members of this commission had held curule office. How were they chosen? If they were selected on the basis of their past experience in the East, the group appears less than impressive. The leading consular, Q. Minucius Rufus, had no known previous experience in the East, although he did celebrate an ovatio over two Gallic tribes, the Boii and the Ligurians, after his consulship in Italy in 197. In fact, the commission is more interesting for its omissions: none of the “eastern experts” of the day are included. 410 To be sure, Lucius and Publius Scipio were still in Asia, 411 but T. Quinctius Flamininus is conspicuously absent, as is M’. Acilius Glabrio (cos. 191), the general responsible for the victory over Antiochus at 406 21.18.1. Walbank ad loc: “early summer, perhaps May-June.” This would correspond to September-October according to the Roman calendar at that period. 407 “Triumphus in Monte Albano” in Transitions to Empire. Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian, ed. R. W. Wallace and E. M. Harris, (Norman and London, 1996) 336 n. 74. 408 As Dr. Brennan suggested per litteras. On Manlius’ request and the opposition of the commission, see 3.6 below. 409 Willems, Sénat II 506 n. 2, believing that the members were listed according to year of office, was thus required to postulate the existence of two otherwise unknown quaestorians. It could be that Livy is following a set list given in an earlier source. 410 Gruen, HW 233, points out that besides Lentulus, “The board of 189/8 contained none other with demonstrated negotiating talents, not Villius, not Galba, not even Flamininus.” 411 They returned just as the commission was preparing to depart, and celebrated their triumph days later according to Polyb. 21.24.16.

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Thermopylae. Could it be that they were not needed? After all, the terms of the peace were fairly well determined, and the dispatch of the commission could have been dictated chiefly on the grounds of adherence to mos maiorum. Or could the situation be as Gruen depicts it, that in its selection of diplomatic embassies the Senate simply did not consider the previous experience of the individuals, but made its decision based on other factors such as prestige or familial connections? 412 3.6.1 Activities of the Commission of 188 The ten commissioners arrived in Ephesus in the spring of 188. 413 At Apamea, in accordance with the decision of the ten commissioners (ex decem legatorum sententia), “the most detailed and complete treaty of which we have the text in the whole history of antiquity” was written up. 414 At this time Cn. Manlius swore to uphold the treaty. Q. Minucius Thermus, one of the more senior members of the commission, was sent along with L. Manlius, the brother of the consul, to secure the oath from Antiochus. The decem legati would have served as witnesses to the signing of the treaty—as we have seen previously, the role of official witness was an important one for the military consilium. 415 Here the decem legati can be seen as placing the senatorial imprimatur (as it were) upon the agreement. Just as in the commission of 196, the duties of the decem legati did not end with the treaty arrangements. Livy tells us that Cn. Manlius then began to investigate disputes among the cities of Asia (cognovit causas civitatium). We see the decem legati acting as his consilium in these investigations. 416 They

Gruen HW 247–249. See Liv. 38.37.8 for the time of year, 38.37.11 for their arrival. Diodorus Siculus also reports the arrival of the legates, but mistakenly states they deliberated with “Scipio and Aemilius” (29.11). 414 Will, quoted by Ridley 174 n. 20 on Liv. 38.37–9. The terms were stricter than those in the Peace of Sardis: 1. Antiochus is forbidden to cross into Europe or make war in the Aegean. 2. If attacked by Rome’s allies, he is allowed to defend himself, but not to conquer them or make treaties with them. 3. He is to surrender his fleet to be burned, except for 10 ships. His elephants are given to Eumenes. 415 For the members of the consilium as guarantors of a treaty, see 2.4.5 on the Caudine Forks disaster of 321, which shows that the Romans believed this function of the consilium dated as far back as the fourth century BC. On the commander’s consilium as official witness in general, see 2.4.4. 416 Liv. 38.39.5, 7. 412 413

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 91 exempted some cities from taxation, ordered others to pay tribute, and dispensed land and honors. 417 After completing this business, Cn. Manlius and the commissioners, along with the entire army, set out for the Hellespont, thence to Europe and on to Lysimachaea and Cypsela. In Thrace, one of the commissioners, Q. Minucius Thermus, was killed in a battle with Thracians, which shows that the duties of the senatorial legati might also include military action. And why not—for as we have seen, the legatus accompanying a military commander also served the dual role of advisor and military subcommander. 418 In 187, Cn. Manlius Vulso arrived in Rome and asked that he be awarded a triumph for his actions. But Livy tells us that the majority of the commission, especially L. Furius Purpurio and L. Aemilius Paullus opposed his request. 419 In his speech before the Senate requesting the triumph, Manlius states that “it is from the decem legati, that consilium which our ancestors established for awarding and celebrating victory to commanders, that I have my opponents.” 420 To be sure, the purpose which Manlius here attributes to Rome’s ancestors for the establishment of a commission of ten, awarding prizes to victorious commanders, dispensandae cohonestandaeque victoriae imperatoribus, is quite different from the purpose stated by his commissioners 421 and certainly lacks any basis in actual Roman practice. But no matter—it is the relationship of the commission as the consilium of the magistrate that is at the heart of his argument. Conclusions drawn from rhetorical speeches are risky, but in this case Cn. Manlius (as Livy portrays Liv. 38.39.7–17. See 1.3.6 on the legati in the commander’s consilium. 419 Liv. 38.44.11. As T. C. Brennan has suggested to me, this is convincing proof that the Paullus mentioned here must be the praetor of 191 and not (as Willems has suggested) an otherwise unknown quaestorian. It would be very unlikely indeed for a junior member of the commission to break fides, join forces with the consular Purpurio, and vociferously oppose Manlius’ triumph bid. 420 Liv. 38.47.3: ex decem legatis, si diis placet, quod consilium dispensandae cohonestandaeque victoriae imperatoribus maiores dederunt nostri, adversarios habeo. Manlius’ frustration at the obstacles set up by his disloyal decem legati calls to mind the righteous indignation that Cicero expresses over the prosecution of a commander by his quaestor, discussed above at 1.3.3. 421 Liv. 38.45.1: legatos sese Cn. Manlio datos pacis cum Antiocho faciendae causa foederisque legum quae cum L. Scipione inchoatae fuissent perficiendarum. “They had been assigned to Cn. Manlius for the purpose of making peace with Antiochus and to accomplish the terms of the treaty which had been started by Lucius Scipio [Asiaticus].” 417 418

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him) apparently considers the actions of the commission to be a breach of fides. Manlius’ attempt to portray himself as the victim of the disloyalty of his decem legati must have worked, for the Senate overrode the objections of the legates and approved the triumph in a full session. 422 This incident is a striking example of disharmony between a magistrate and his consilium. In the speech reported by Livy, the primary reason given for the opposition is the fact that Manlius conducted a war against the Galatians without the express consent of the Senate and people of Rome, but the resentment of Paullus and Purpurio over Manlius’ triumph request and the death of their colleague Q. Minucius Thermus in what they considered a rash attack may have had a great deal to do with their disapproval. 423 One of the ten commissioners makes another appearance in the later investigation of P. Cornelius Scipio Africanus and his brother Lucius on the charge of peculation during the war with Antiochus. L. Furius Purpurio wished to extend the scope of the investigation to include monies taken not only from Antiochus, but also from other kings and peoples (thereby including Cn. Manlius Vulso’s activities as well). 424 However, in a speech given by Livy to P. Cornelius Scipio Nasica, the consul of 191, speaking in defense of L. Scipio, Nasica claims that the ten commissioners should likewise be accused, for it was through their advice that peace had been given. 425 Although (he continued) some of the Ten had accused Cn. Manlius, they did not even manage to delay his triumph, let alone prove the charge. If this is their strategy, it is certainly a confusing one. The decem legati had had nothing at all to do with L. Scipio. They hadn’t even arrived in Asia until after his successor, Cn. Manlius, was in place. This is most likely an attempt on the part of Scipio Nasica to muddy the waters by flinging accusations at the commissioners.

3.7 THE COMMISSION OF TEN SENT TO L. AEMILIUS PAULLUS IN 167 The year 167 was unusual in that wars were brought to an end on two fronts, Macedonia and Illyricum. After the consular elections for 167, the Liv. 38.50.3. The speech of the commissioners Paullus and Purpurio: Liv. 38.45.1–46.15. The death of Q. Minucius Thermus: 38.46.7. 424 Liv. 38.54.6. 425 Liv. 38.58.11. 422 423

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 93 Senate decided that L. Aemilius Paullus, cos. 168 and L. Anicius, pr. 168, should retain Macedonia and Illyricum as their respective provinciae until they had settled affairs on the advice of their legates (de sententia legatorum). 426 Livy lists the legates assigned to Paullus, dividing them into three sections: first the ex-censors, followed by the ex-consuls, then the remainder without designation of rank. Livy’s text as we have it contains only eight names: Ex-censors: A. Postumius (RE 46) Luscus, cos. 180 cens. 174 C. Claudius (RE 300) Pulcher, cos. 177 and cens. 169. Ex-consuls: C. Licinius (RE 51) Crassus, cos. 168 427 The rest: Cn. Domitius (RE 19) Ahenobarbus, pr. 170? 428 Ser. Cornelius (RE 2, 388) Sulla, pr. 175? L. Iunius (RE 19 Brutus?) T. Numisius (RE 10) Tarquiniensis A. Terentius (RE 80) Varro, pr. 184 Note that the presence of Terentius Varro, pr. 184, at the very end of the list shows that Livy is again not concerned with listing the praetorians in strict ranked order. It is clear from Livy’s text (his consularibus addidere) that there were at least two consulares on the commission. Weissenborn therefore added two more names to the list, Q. Fabius Labeo and Q. Marcius Philippus. 429 The dispatch of a Labeo to the island of Lesbos in order to destroy a town which had given aid to the forces of Perseus is recorded. 430 The consul of 183 is the only appropriate Labeo in this period. As for Philippus, Weissenborn included him in the commission because of his previous experience in Macedonia while consul in 169 and pro cos. 168. As for the “dogsbodies” of the commission, L. Iunius and T. Numisius Tarquiniensis are suitably undistinguished. If L. Iunius is indeed a Liv. 45.16.2, cf. 45.17.1. Plutarch also mentions the arrival of Paullus’ commission (Aem. 28). 427 At the time, pro cos. in Gaul. 428 See MRR I 422 n. 2. 429 W. Weissenborn, Ab Urbe Condita Libri XLI-XLV, Periochae, Fragmenta (Leipzig 1878), ad loc. 430 45.31.14. This information follows the dispatch of two other members of the commission. 426

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Brutus, as has been suggested, he may well be the brother of the consul of 178, M. Iunius Brutus. 431 Nonetheless, his career appears to have stalled after his participation on this commission—no Lucius of this nomen is attested as attaining higher office in this period. His fellow dogsbody Numisius is hardly a household name himself—in fact, Broughton’s index of careers lists only one other Numisius, the praetor of 177, C. Numisius, who may have been his older brother. 432 Once again, we see that although Livy takes pains to distinguish consulars from non-consulars, he is not at all concerned with ranking the members of these two main groups by year of office. Although this tendency makes it more difficult to identify the individual members, it does appear that a certain balance was sought in these commissions; almost as if each commission was a “mini-Senate” in itself, including (as a rule) consulars, praetorians, and (often) pedarians. 3.7.1 Activities of the Commission of 167 Livy tells us (45.17.7f.) that quamquam tales viri mitterentur, quorum de consilio sperari posset imperatores nihil indignum nec clementia nec gravitate populi Romani decreturos esse…“although men of such ilk were being sent, as to raise expectations that according to their counsel the victorious generals would decide nothing unworthy of either the mercy or the position of the Roman People…” nonetheless, the Senate discussed (as was usual in these situations) the general policies which the commissioners would then bring to their respective magistrates. Livy then goes on to enumerate these summa consiliorum: “freedom” for the Macedonians and Illyrians; 433 the discontinuation of the leasing of Macedonian mines and rural estates; and the division of See Münzer RE s.v. “Iunius” nos. 19 and 48. MRR II 595, RE s.v. “Numisius” nos. 2 and 10. 433 A usefully vague phrase. There was a similar provision in the senatus consultum brought by the commissioners in 196 that the Greeks were “to be free and under their own laws.” Eckstein, Senate and General, 295, notes that this statement “was capable of describing almost any actual political condition of states, from true and total independence to inclusion within some monarch’s territorial empire—as the Greeks well knew.” See also R. M. Errington, Dawn of Empire, 240 (in reference to Greece after 146): “‘Freedom’ (libertas) now meant freedom to control internal affairs so long as this was done in a way that did not bother Rome; it did not mean freedom to have an independent foreign policy, nor did it mean freedom from taxation, unless such a privilege (immunitas) was specifically granted.” Cf. SherwinWhite, Roman Citizenship, 175–178. 431 432

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 95 Macedonia into four regions, each with its own concilium. Finally, the amount of tribute which was to be paid to Rome was set at half the amount formerly paid to Perseus. Of the instructions for Illyria, Livy states merely that similia his et in Illyricum mandata, noting in conclusion that the details would be left up to the generals and their commissioners themselves. 434 Paullus and the Ten met in Apollonia. Livy tells us nothing of the actual deliberations themselves, but gives an account of the official pronouncements at Amphipolis resulting from these deliberations. According to the format now familiar from the ceremonial consilium of the general, 435 Paullus took his official seat upon the tribunal (consedit in tribunali), surrounded by the ten commissioners. The Macedonians, so we are told, found all this imposing grandeur quite new and frightening (as they were most certainly meant to)—the high tribunal, the entrance of the consul after a path had been cleared through the crowd, the herald commanding silence. Paullus then proceeded to announce in Latin the decisions of the Senate, and his own—taken (of course) upon the advice of his consilium, that is, the ten commissioners. 436 His proclamation was then repeated in Greek. In the investigations that followed the pronouncement of this formula, Livy does not specifically mention the participation of the ten commissioners. And yet, just as the decem legati served as advisers to Cn. Manlius Vulso in 188 while he administered justice, 437 so too we would expect the commissioners to be present at these cognitiones. The main focus of the investigations was directed towards identifying (through the evidence provided by informers) those suspected of being collaborators of Perseus. Letters were thereupon sent out ordering the suspected collaborators to follow Paullus to Rome in order to stand trial. Two of the commissioners, C. Claudius Pulcher and Cn. Domitius Ahenobarbus, were dispatched in person to Achaea to summon the suspected collaborators. 438 Livy gives two reasons for their mission: first, it was suspected that the Achaeans were too proud Liv. 45.18.1–8. Liv. 45.29.1–3. On the ceremonial consilium, see 2.3. 436 Liv. 45.29.3: Paullus latine, quae senatui, quae sibi ex consilii sententia visa essent, pronuntiavit. 437 Liv. 38.39.7. 438 Walbank (III 436), quite rightly dismisses Polybius’ identification of the two, ôï˜ò dðéöáíåóôÜôïõò Tíäñáò ô§í äÝêá, “the most distinguished of the ten” as exaggeration in order to increase the importance of the Achaeans, for although Claudius was an ex-censor and second in rank of the commissioners, Domitius was only of praetorian status. 434 435

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to obey a written summons; second, having found nothing among the king’s documents implicating any Achaean leaders, the charge against them was more difficult to prove. 439 It appears another commissioner was also dispatched at this time. As I have mentioned above, the Labeo whom Livy records as being sent to evacuate and then destroy the town of Antissa was apparently one of the decem legati and has been identified as Q. Fabius Labeo, the consul of 183. 440 Our last glimpse of the commissioners finds them (apparently) preparing to sail back to Rome after the festival celebrated by Paullus at Amphipolis. 441 Unlike Cn. Manlius Vulso and his commission, Paullus and his advisors appear to have had no differences of opinion; at least, none are reported. They make no appearance in the later debates over Paullus’ triumph reported by Livy. The relative ease with which Paullus and his commissioners carried out their tasks may be due to the completeness of the Senate’s instructions, or to Paullus’ competence, or perhaps to the fact that by this time, the Greeks were well-accustomed to the Roman way of handling such arrangements.

3.8 THE COMMISSION OF FIVE SENT TO L. ANICIUS IN 167 By now the appointment, procedure and composition of the ten-member delegation should be fairly clear. Does this commission, the sole attested instance of quinque legati sent to aid a magistrate pro praetore after conclusion of a war, also show the characteristic traits of a consilium previously established for the commissions of ten? The composition of the commission certainly follows the general pattern we have already seen. The list Livy gives at 45.17.4 consists of one consular, two praetorians, and two “dogsbodies”: P. Aelius (RE 84) Ligus, cos. 172 C. Cicereius (RE 1), pr. 173 Cn. Baebius (RE 42) Tamphilus, pr. 168 P. Terentius (RE 75) Tuscivicanus 439 45.31.4. He also notes that the safety of the Achaean informers may have been a possible consideration. Cf. Polybius’ slightly different account at 30.13.1, with names of the informers. He reports that the accusations brought by the Achaean informers were in fact false. 440 Liv. 45.31.14. 441 If they are the legates Livy mentions at 45.33.7: Paullus benigne legatis dimissis transgressus Strymonem…

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 97 P. Manilius (RE 13) Concerning the size of the praetor’s senatorial commission, I think it is likely analogous to the number of lictors given to a consul and a praetor: twelve and six, respectively. Therefore, if a consul receives ten senatorial legati, the praetor ought to receive five. It is interesting that the only tenmember commission we have seen so far to include ex-censors occurs in the same year that a five-member commission was also sent out, with a consular at its head. Could the presence of the two ex-censors on Paullus’ commission have served to further emphasize his higher status? 3.8.1 Activities of the Commission of L. Anicius After the arrival of the five commissioners, Anicius held a conventus at Scorda, to which he summoned the leading men from the entire provincia. Here, just as Paullus had done in Macedonia, he formally proclaimed the freedom of the Illyrians. The terminology is strikingly similar: “There he pronounced from the tribunal, on the advice of his consilium, that the Senate and People of Rome bid the Illyrians be free.” 442 In his pronouncement, Anicius also made known the terms under which certain cities would be taxed or exempted from taxation. He then divided Illyricum into three regions and defined those regions. Livy terms both these arrangements and those pronounced by Paullus for Macedonia a formula. 443 Although the word formula appears twenty times in the extant portions of Livy, it is only in these two places that it refers to the guidelines set by the imperator under the advice of his consilium. 444 The commissions of 241, 201, and 187 all lack references to a formula. These formulae may in fact be the precursors to the phenomenon known as the lex provinciae, “an institution supposed by modern scholars to have defined the provincia politi-

442 Liv. 45.26, ibi pro tribunali pronuntiavit de sententia consilii senatum populumque Romanum Illyrios esse liberos iubere. 443 Illyricum: 45.26.15. Macedonia: 45.31.1, referring back to 45.29.4–14. In addition to taxation and the division of Macedonia into four regions, Paullus’ arrangements included such economic restrictions as a limit on the import of salt and the closure of the gold and silver mines. 444 The expression “formula iuris antiqui” would appear to be the closest parallel; meaning the original charter under which a city or people functioned—see Liv. 32.33.7. A. W. Lintott, Imperium Romanum (London 1993) 28–29, defines the formulae as “lists of the communities involved according to their geographical divisions, with notes of the tribute they had to pay.”

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cally and juridically, being a body of law which turned into a permanent peaceful province that before had been a sphere of military operations.” 445

3.9 THE COMMISSION OF TEN SENT TO L. MUMMIUS IN 146 Livy’s extant history breaks off with the events of the year 167. The activities of the commission of ten sent to assist L. Mummius in 146 are known from Polybius’ history and from epigraphic evidence. After Pydna and the evacuation of the Roman presence in Greece in 194, Achaea was firmly under the hand of Callicrates, a pro-Roman Achaean whose information was responsible for the deportation to Rome of some one thousand Achaeans, one of whom was the historian Polybius. In 149, Callicrates died en route to Rome, where he had hoped to persuade the Senate to allow the Achaeans to settle a dispute between themselves and Sparta. This dispute soon escalated, and in 148 the Achaean League declared war on Sparta, and by extension, Rome. The war was short-lived, however. In 146, the consul L. Mummius finished the job of pacifying Achaea begun by Q. Caecilius Metellus Macedonicus, pr. 148 and pro cos. 147–6. After the destruction of Corinth by decree of the Senate, he reorganized Greece with the help of ten commissioners. The names of four of these are epigraphically attested. Five blocks from the base of a statue group from Olympia discovered in 1878 contain the names of L. Mummius and four of the ten legati: L. Licinius Murena, A. Postumius Albinus, C. Sempronius Tuditanus, and A. Terentius [Varro]. 446 Two of these four, Albinus and Tuditanus, are also mentioned in Cicero’s letters. 447 In addition to these four, Broughton suggests as a fifth member L. Aurelius Orestes, the consul of 157, who returned to Greece along with Mummius, as Orestes had previously traveled along with other legates to Greece to arbitrate between the Lacedaemonians and the Achaeans. 448 BeLintott, Imperium Romanum, 28. Inschr. von Olympia, 320–324. The inscription itself would appear to be a much later copy, according to the letter forms used. (I wish to thank Dylan Bloy for his assistance regarding this inscription.) The identification of Varro as the cognomen of A. Terentius is assured—the praenomen Aulus is found among senatorial Terentii of this branch. The cognomen of C. Sempronius “Tuditanus” is rendered here as Ôõñôáíüò. 447 Albinus: Cic. Att. 13.30.3 and 32.2. Tuditanus: Att. 13.6.4, 30.3, 32.3, and 33.3. 448 Paus. 7.16.1, cf. MRR I 467–9 with n. 4. 445 446

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE 99 sides the ten commissioners, we learn from Plutarch that Polybius himself assisted Mummius with information and advice concerning Philopoemen. One such matter concerned whether or not the statues and decrees of Philopoemen, of which there were many in the various cities, should be destroyed. 449 An inscription discovered at Nemea in 1924, although fragmentary, provides further information concerning Mummius and his activities with the ten commissioners. 450 The inscription is broken on all sides, so there is no way to determine line length. It appears to record L. Mummius’ role in arbitrating a dispute between Argos and Kleonai over the Nemean games. Mummius’ name is recorded in lines 10 and 12, as well as what can be reconstructed as the Greek word for “pro consule,” Píèýðáôïò. 451 Line 11 reads: [— — — — — —. . . . ] ô§í äÝêá ðñåóâåõô§ [n— — — — —] Bradeen does not propose a supplement, but given the genitive plural of ðñåóâåõôÞò here following the name of the magistrate in the previous line it is very likely that the line contained a formula such as “Pð’ ôyò ô§í äÝêá ðñåóâåõô§í ãíþìçò,” “upon the advice of the decem legati.” 452 Among the many duties of the magistrate militiae and his legati, as we have seen, was the settlement of disputes among the communities in his provincia. 453 Here too, the decem legati as consilium would likely have performed the same role.

3.10 THE COMMISSION OF TEN SENT TO SCIPIO AEMILIANUS IN 146 Appian tells us that after the defeat of Carthage in 146, the Senate sent “ten of its noblest members” to P. Cornelius Scipio Aemilianus to arrange the affairs of Africa with Scipio in the best interest of Rome. 454 In an absolute victory such as that of Aemilianus over Carthage, the role of the decem legati Plut. Philop. 21=Polyb. 39.3.3ff. D. Bradeen, “Inscriptions from Nemea,” Hesperia 35 (1966) 326–329. 451 Bradeen, 328 points out that this is the only epigraphic reference to Mummius specifically as pro cos. 452 The formula is thus found in a senatus consultum which cites the laws given to Thessaly by the consul T. Quinctius (Flamininus) Pð’ ôyò ô§í äÝêá ðñåóâåõô§í ãíþìçò, “on the advice of the decem legati” (Sherk RDGE no. 9, lines 52–3). 453 See 2.4.2. On Cicero’s intention to write a dialogue featuring the members of this commission, see E. Badian, “Cicero and the Commission of 146 B.C.” in Hommages à Marcel Renard vol. 1, ed. J. Bibauw (Brussels 1969) 54–65. 454 App. Pun. 135: äÝêá äc óö§í ášô§í ½ âïõëx ôï˜ò Pñßóôïõò hðåìðå äéáèçóïìÝíïõò Ëéâýçí ìåôN Óêéðßùíïò dò ô’ FÑùìáßùí óõìöÝñïí. 449 450

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would not be to serve as advisors in peace negotiations (for there would be none), but to help arrange the affairs of the conquered territory. Appian’s account of the aftermath of the destruction of Carthage gives a good idea of what the arrangements in such a situation might include: Scipio and the commissioners decided that if anything remained of Carthage, Scipio was to raze it and forbid anyone from dwelling there. They decreed that any cities which had fought with the enemy were to be destroyed; while those who had aided Rome (including the Uticans) were given land from that taken in the war. Upon the rest a land tax and a personal tax was imposed. Finally, (according to Appian) they decided that a yearly praetor would be sent. Appian tells us that the commissioners then returned to Rome, while Scipio himself stayed to complete all the arrangements (ôN äüîáíôá). In carrying out certain of these arrangements, Scipio appears to have employed two separate religious rites, the evocatio and the devotio hostium. 455 By means of the evocatio (a necessary precursor to the devotio hostium), the gods of the conquered city are requested to abandon the city. In the devotio hostium, the enemy territory along with all movable and immovable property is cursed and dedicated to the powers of the underworld by means of its destruction (the “razing and prohibition against habitation” of Appian’s account). 456 Cicero tells us explicitly that the devotio of the city of Carthage was carried out de consilii sententia, “upon consultation with his consilium”— the decem legati, that is. 457 Macrobius tells us that other cities were so “devoted,” among which was the city of Corinth. 458 It is possible that one of the recommendations of the decem legati of Mummius included the devotio of Corinth. It is not unreasonable to assume, at any rate, given the presence of the consilium militiae at other official ceremonies, that the decem legati of Scipio were official witnesses of both the evocatio and the devotio of Carthage.

455 Macrobius gives the formulae of the two rites at Sat. 3.9.7–12. For the procedures, see H. S. Versnel, “Two Types of Roman devotio” Mnemosyne 29 (1976) 365– 410. The devotio here referred to is a different rite from the devotio by which the Roman general dedicated his life and that of the enemy to the gods of the underworld in exchange for a victory. This type of devotio Versnel terms “devotio ducis” (366). 456 Versnel 384–5. 457 Cic. Agr. 2.51, cf. 1.5. 458 The other cities mentioned by Macrobius at Sat. 3.9.13 include, in Italy, the Stonii (otherwise unknown), Fregellae, Gabii, Veii, Fidenae, and “many enemy armies and towns of the Gauls, Spaniards, Africans, Moors, and other peoples of whom the ancient annals speak.”

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE101 Also among the tasks of organization was the creation of the so-called “fossa regia” or “royal ditch” running from the city of Thabraca to Hadrumetum, which separated the newly-formed Roman provincia from the land belonging to Numidia. 459 Again, although the presence of the decem legati is not specifically attested in the creation of the fossa regia, it is not unlikely that they would have assisted Scipio in this task as well.

3.11 THE COMMISSION OF TEN SENT TO P. RUPILIUS IN 132 After the end of the Sicilian slave revolt, P. Rupilius, cos. 132, established a series of procedures governing the exercise of civil law in the province of Sicily, the so-called lex Rupilia. According to Cicero, the Senate instructed Rupilius in the matter, dispatching the usual commission of ten to assist him. 460 One of the most grievous transgressions Cicero charges against C. Verres, the corrupt governor of Sicily from 73 to 71, is his flouting of the lex Rupilia. 461 In virtually every discussion of the lex Rupilia, Cicero is extremely careful to stress that Rupilius acted de sententia consilii. 462 Cicero contrasts this careful observance of proper consilium procedure with Verres’ violations of the procedure scrupulously followed (so he asserts) by every governor of Sicily since Rupilius 463 But we learn little from Cicero’s speech about the activities of the commission beyond the actual provisions of the lex Rupilia, nor do we have any information on the composition of the commission. 464 According to Cicero, the combination of the SC instructing the magistrate to act and the action thus taken de consilii sententia affords such authority that even the imperium of a subsequent magistrate militiae must bow before it. 465

3.12 THE COMMISSION OF TEN SENT TO M’. AQUILIIUS IN 129 In 133, King Attalus of Pergamum died, bequeathing his kingdom to Rome. Tiberius Gracchus, tr. pl. 133, immediately put into motion a plan to accept Plin. NH 5.25. Verr. 2.2.40. 461 For a discussion of the provisions of the lex Rupilia, see 4.5, on the consilium in civil procedure militiae. 462 See, for example, Verr. 2.2.32, 2.2.39, 2.2.40, and 2.2.90. 463 Verr. 2.2.40, cf. 2.2.39. 464 Cicero’s description of them as summi homines at 2.2.40 is the standard complimentary hyperbole and not to be used as evidence for their stature. 465 See especially at Verr. 2.2.40. 459 460

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the donation and use the riches of Pergamum to finance his agrarian reforms. The plan was stymied, however, when news reached Rome of the revolt led by a pretender to the Attalid throne, Aristonicus (the self-styled “Eumenes III”). According to both Appian and Velleius Paterculus, the revolt had started by the time of Tiberius Gracchus’ death, i.e. in the late summer of 133. 466 It is not until 131, however, that a magistrate with imperium (the cos. P. Licinius Crassus) was sent to deal with the problem. A commission of five senators, among them the pontifex maximus P. Cornelius Scipio Nasica Serapio, had been sent previously, most likely to garner military support from the allied kings and Greek cities in the area, in the hopes of keeping Rome’s active participation in the war to a minimum. The exact date of their departure cannot be determined, although it should probably be dated to the spring of 132. 467 After Crassus was killed in battle, he was succeeded by M. Perperna, cos. 130. Perperna immediately engaged Aristonicus in battle and won a major victory over Aristonicus. 468 Shortly thereafter both Aristonicus and the Attalid treasure were on their way to Rome. Perperna died of illness at Pergamum. 469 The war was all but over by the time that M. Aquillius, cos. 129 and Perperna’s successor, arrived. Still, pockets of resistance remained for Aquillius to eradicate. According to Florus’ account, Aquillius put an end to the revolt by poisoning the water supply of certain rebellious cities. 470 However, Aquillius’ work was not finished. He spent the next two years organizing the province of Asia with the help of ten commissioners sent from Rome. 471 For the actual details of the commission’s work, we have little more than Strabo’s brief statement that Aquillius along with the ten commissioners “arranged the province into the form which it still retains now.” No names of the commissioners are preserved. App. BC 1.73, Vell. Pat. 2.4.1. Not, as B. Schleussner (Legaten 77 n. 255) suggests, to assist in the organization of the province, for at that time no Roman magistrate with imperium had yet been sent. See P. D. Lackie, “The Revolt of Aristonicus and the Roman Annexation of Asia” (M.A. thesis, Bryn Mawr 1993), 52–58, on this and similar embassies of five. On the date of their dispatch, see D. Magie, RRAM I 148 and II 1033 n. 1; H. B. Mattingly, LCM 10 (1985) 118. 468 Just. 36.4.9. 469 Just. 37.1.2. 470 Flor. 1.35.7. 471 Sources for the commission of Aquillius: Strabo 14.1.38, IGRR IV 752, Sall. Hist. 4.69 M; for milestones bearing his name, see CIL I2 2.646–651. 466 467

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3.13 THE COMMISSION OF TEN SENT TO T. DIDIUS, COS. 98 In a section describing events in Spain in the late-second and early-first century, Appian notes that T. Didius was sent to (Nearer) Spain against the Arevaci. According to Appian’s account he killed about 20,000. He eliminated the defensive position of the city of Termes, a perpetual trouble-spot, and sold into slavery the entire population of Colenda. 472 Near Colenda was another city inhabited by Celtiberians, who had been settled there five years earlier (c. 101) by the praetor M. Marius, with the approval of the Senate. 473 According to Appian, Didius decided to eliminate these Celtiberians óõíèåìÝíùí ášô² ô§í äÝêá ðñÝóâåùí hôé ðáñüíôùí, “with the agreement of the ten legates who were still present.” He therefore lured the Celtiberians from their city by means of a counterfeit offer of land and drew them in to the Roman camp, where his army slaughtered them all. Appian notes (somewhat incredulously) that he even received a triumph for this. But the grant of the triumph should come as no surprise when we consider that his actions were taken in accordance with the advice of the senatorial commission, as quoted above. The only uncertainty about the whole affair is when these decem legati had first arrived in the province. Could they have been the source of the senatorial approval given to M. Marius, as noted by Appian? 474 One wonders then how they had spent the intervening five years between Marius’ activities and those of Didius. Appian’s reference to the continued presence of the legates most likely refers back, not to Marius’ time, but to the earlier activities of Didius himself during his five-year stay in Nearer Spain from 98–93. 475 It is odd, however, that Appian has not previously mentioned the arrival of the senatorial legates, but this might be due to the extreme compression of his account.

3.14 AN INSTITUTION IN FLUX: DECEM LEGATI IN THE LATE REPUBLIC 3.14.1 The Eastern Consilia of L. Cornelius Sulla The activity of L. Cornelius Sulla in Asia in the period of 87–83 holds important ramifications for the study of the decem legati as the magistrate’s conApp. Ib. 99. App Ib. 100. On the date, see T. C. Brennan, PRR II 499. 474 J. S. Richardson, The Romans in Spain (London 1996) 87 n. 16 acknowledges the possibility. 475 See Richardson, The Romans in Spain, 85f. 472 473

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silium militiae in the late Republic. The evidence is contained in several inscriptions of the late Republic that refer to actions taken by Sulla in the East upon the advice of his consilium. The Social War, devastating for Rome and Italians alike, basically ended in 88. Now all eyes turned toward the inevitable conflict with Mithridates of Pontus. The highly desired command against Mithridates could quite naturally be expected to fall to one of the two consuls for 88. And so it was that the consul L. Cornelius Sulla, fresh from his successes in the Social War, was allotted the provincia. But C. Marius had his sights on this campaign as well. Marius had previously contrived to procure other commands through less than regular means. In 107, the actions of the tribune Mancinus deprived Q. Caecilius Metellus (Numidicus, cos. 109, pro cos. 108) of his command against Iugurtha and transferred it to Marius, thus usurping the Senate’s right to allot such commands. 476 In 104, Marius was elected consul for a second straight time to fight against the Cimbri and Teutones. 477 Now, once again, Marius turned to a tribune of the plebs, P. Sulpicius Rufus, to have the command transferred from Sulla to Marius. 478 The result was Sulla’s infamous march on Rome at the head of six legions. 479 Sulla easily captured Rome and passed numerous laws strengthening the Senate and limiting the powers of the tribunate. He then left for the East as pro cos. to fight Mithridates. Not long after his departure Rome fell to the Marians. As with any magistrate militiae, Sulla’s acta would later be subject to ratification by the Senate. But unlike the normal ex-magistrate sent out to a provincia with consular imperium, the constitutional position of Sulla changed drastically in 87, when he was declared a public enemy. 480 Although technically an outlaw, Sulla was nonetheless very careful to follow the accepted practices of a legitimate commander, no doubt looking ahead to his return when he hoped to have his hostis status overturned. But unlike other magistrates who had successfully completed campaigns, there would be no SenSall. Iug. 73. As R. T. Ridley, History of Rome (Rome 1987), 238–9 points out, Marius’ irregular re-election as consul instead of the normal prorogation can be traced to the recent disaster at Arausio in 105, where a conflict between consul and proconsul led to the worst Roman defeat since Cannae. 478 App. BC 1.56. 479 App. BC 1.57. 480 App. BC 1.73. 476 477

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE105 ate-appointed commission of ten to serve as his advisors in provincial affairs. Therefore, it is interesting to see how carefully Sulla has documented his use of a consilium in certain activities. We have seen that one of the more common tasks of the magistrate assisted by his decem legati was the dispensation of rewards or punishments to cities in his provincia based on their loyalty or disloyalty to Rome. 481 After the end of the first war against Mithridates in 85, Sulla granted such rewards to a number of cities, which subsequently recorded the grants on stone. An inscription of the city of Stratoniceia in Caria records a long list of benefits, including the right of her citizens to enjoy their own laws, the exemption of certain property from taxation, the restitution of lost property, and the right of extraordinary audience before the Senate. 482 The document records that Sulla made the dispensation ìåô]N óõìâïõëßïõ ãíþìçò, “in accordance with the advice of his consilium.” 483 During this same period Stratoniceia’s neighbor Tabae apparently enjoyed a similar dispensation. The city later sent an embassy to Rome to obtain the Senate’s confirmation of Sulla’s grant, and the resulting SC was engraved on a marble block. 484 The exact nature of the grant is not known due to the damaged state of the inscription, but lines 9–10 record that here as well, the imperator Sulla consulted his consilium before making the dispensation. 485 A land grant that Sulla made to the Temple of Amphiaraus in Oropus is recorded in a later inscription dealing with a dispute between the city and Roman publicani in 73. 486 Again, it appears that Sulla is careful to document the participation of his consilium in the process, as the inscription shows. 487 The document also gives a tantalizing piece of information on the members 481 See, for example, the activities of C. Flamininus and the commission of 196 (3.5); of Cn. Manlius Vulso and his commission in 189 (3.6); and those of L. Anicius and the commission of 167 (3.8). 482 Sherk, RDGE no. 18 (= OGIS 441), who gives a full list of the benefits acquired (p. 111). 483 Line 95. 484 Sherk RDGE no. 17 (= MAMA VI 162). 485 Line 9–10: [ìåô]N óõíâïõëßïõ ãíþìçò Ëåýêéïò Ê[ïñíÞëéïò] [Óýëë]áò ášôïêñÜôùñ óõíå÷þñçóåí. 486 Sherk, RDGE no. 23 lines 43–51, ca. 85 BC (For the date, see RDGE 101 on no. 17). 487 The phrase Pð’ óõíâïõëßïõ ãíþìçò appears three times in the document referring to Sulla’s actions.

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of Sulla’s consilium: in lines 58–59 it is recorded that “on Sulla’s consilium were present the same men (recorded) in Book One of proceedings, page fourteen.” It appears that Sulla’s attention to constitutional proprieties included keeping a detailed record (at least fourteen “pages”) of the consilium proceedings during his stay in the East. 488 Was this general practice? It would make good sense to record the names of the consilium members so that the commander’s activities could later be verified. 489 An extremely fragmentary letter by Sulla to the Thasians, with its accompanying SC, records benefits given to the Thasians on behalf of their loyalty to Rome during the Thracian uprisings of the first Mithridatic War. 490 It is tempting to propose (as Sherk does) that the actions by Sulla in line 14 of the inscription would have been made on the advice of his consilium: Pð’ óõíâïõëßïõ ãíþìçò. 491 Finally, two letters record Sulla’s confirmation of certain grants of immunity previously given by the Roman Senate and magistrates to a guild of Dionysiac artists during this same period. The second letter notes that Sulla made the dispensation after consultation with his consilium. 492 As we have seen in previous chapters, it was important for any magistrate to attempt to ward off allegations of imperious behavior by judicious consultation of his consilium. In the case of the decem legati sent to the magistrate militiae, however, the Senate actually took the initiative in assuring that the commander would have a Senate-approved advisory body. But for Sulla the outlaw, there could be no such senatorial commission. From the preceding examples it is clear that Sulla took great care to have proper documentation of the consilium’s role in his acta. What is significant about Sulla’s activities in the East is not so much his use of the military consilium, but his eventual success in getting his territorial dispositions ratified without a senatorial commission. In fact, his actions created a precedent that would soon lead to the death of the old-style commission of decem legati.

488 As Sherk, Rome and the Greek East to the Death of Augustus (Cambridge 1984) 87 n. 12 notes, on a suggestion by E. Badian per litteras. 489 See 2.4.4 on the consilium as the commander’s witness. 490 Sherk, RDGE no. 20. 491 As Sherk’s supplement for the end of the preceding line reads. 492 RDGE no. 49 B (which Sherk dates to ca. 84), lines 2–3.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE107 3.14.2 The Commission of Ten sent to L. Licinius Lucullus The last attested commission of ten sent to assist a magistrate militiae is that of L. Licinius Lucullus (cos. 74, pro cos. 73–69), probably in the period 70–69. In 75, Nicomedes of Bithynia died, leaving his kingdom to Rome. Mithridates of Pontus quickly moved into Bithynia. 493 War appeared inevitable. Following the sudden death of L. Octavius (cos. 75, pro cos. Cilicia 74), Lucullus managed to get his previously assigned provincia of Cisalpine Gaul changed to Cilicia. He later received Asia as well. His rationale, according to Plutarch, was that although Cilicia was no great opportunity in itself, whoever obtained it would probably also receive the generalship in the war against Mithridates. Lucullus (so we are told) did not want the command to fall to Pompey, currently fighting against Sertorius in Spain. 494 Therefore he intrigued with the mysteriously influential Cethegus and his mistress Praecia to obtain the transfer. 495 Both Lucullus and his colleague in the consulship of 74, Aurelius Cotta (who had received Bithynia as his provincia) were sent against Mithridates. Plutarch gives a fairly complete account of Lucullus’ campaign. 496 In 70, Mithridates was forced to retreat to Armenia. Lucullus thereupon requested from the Senate a senatorial commission to organize Pontus. Cicero is our only source on the members of this commission. In a letter to Atticus discussing the possible members of the commission of L. Mummius in 146, Cicero notes the change over time in the composition of such commissions: it used to be that relatives of a commander were not sent out to serve as one of the decem legati. 497 Previously Cicero had posited that Sp. Mummius, brother of L. Mummius, was a member of the commission of 146. 498 Evidently, after further investigation, he discovered (or was informed of) the earlier custom of excluding close relatives of the imperator from serving on the commission. Apparently, the custom was not common knowledge in his day. Cicero offers an explanation for this: in our time (he notes) either through ignorance or (more likely) disregard, the rule is no longer followed.

Liv. Per. 93. Plut. Luc. 5. 495 Plut. Luc. 5–6. 496 Plut. Luc. 5–36. 497 Cic. Att. 13.6.4. On the commission of Mummius, see above. 498 Cic. Att. 13.30.2. 493 494

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If one of the duties of these commissions was originally to serve as a check on the arbitrary power of the imperator, the changes in the choice of members as documented by Cicero constitute a weakening of that function. The inclusion of close relatives and friends among the decem legati can be seen as a move away from “commission as watchdog” towards “commission as cronies.” If so, we have come a long way from the decem legati who opposed Cn. Manlius Vulso’s triumph bid in 187. Another change can be deduced from Cicero’s correspondence with Atticus on this matter—apparently in Cicero’s time “dogsbodies” did not appear on these senatorial commissions. Perhaps they were excluded in favor of more politically savvy persons. In his initial request for information on the commission of 146, Cicero asks for the names of the decem legati, omitted by Polybius. 499 Two he remembered, a consular Albinus and Sp. Mummius. Hortensius, he notes, mentioned a Tuditanus. But according to Libo’s Annales (he continues), this Tuditanus reached the praetorship fourteen years after Mummius’ consulship. This seems unlikely to Cicero. This is the only attested example of the imperator himself requesting the sending out of decem legati. Sources on other commissions mention only their dispatch by the Senate. However, it makes good sense in light of what we know of the entire process. The request is a statement to the Senate that the provincia is now under control (at least in the eyes of the imperator, at any rate). As it turns out, Lucullus’ control of the situation was not as secure as he might have wished. Plutarch tells how when the decem legati arrived, they saw that Lucullus was not even his own master, but was mocked and insulted by his soldiers. 500 The mutiny of Lucullus’ army was followed by the defeat of Lucullus’ legatus Valerius Triarius in Pontos in 68. One by one, Lucullus lost the various territories under his imperium: Asia, Cilicia, and finally, Bithyinia and Pontus. Pompey, having been granted (in addition to a command against the pirates) all the components of Lucullus’ lost command, did not allow Lucullus to allot rewards or punishments for what had been done in the war. 501 He was not even allowed to have visitors! The final ignominy came when Pompey pointedly and none too tactfully nullified all the arrangements Lucullus had made with his decem legati, Att. 13.30.2: non sane quadrat. Plut. Luc. 35.6. 501 These presentations were normally made by the commander in the presence of his consilium—see 2.3.2. 499 500

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE109 issuing counter-edicts which Pompey himself evidently felt did not need the imprimatur of a senatorial commission, nor did the Senate apparently feel confident enough to impose one upon him. Pompey might have claimed that a senatorial commission such as that of Lucullus, stacked as it was with his own friends and relatives, was an unnecessary charade. Perhaps he cited Sulla’s activities in the East (carried out without a senatorial commission) as precedent. At any rate, no decem legati are recorded as participating in any of his extensive settlements in Bithynia, Pontus, Syria, and Asia Minor. 502 This lack of proper decem legati may explain his later difficulties in getting his acta ratified by the Senate. 3.14.3 Julius Caesar and his “Decem Legati” As I have previously mentioned, Julius Caesar received ten legates for Gaul via the lex Vatinia of 59, and in 55 the lex Pompeia Licinia again allotted him ten (later increased to twelve). 503 The decem legati of Julius Caesar were of course not the old-style institution discussed at great length in this chapter, but merely an increase in the number of the legates formerly allotted to a magistrate militiae by the Senate. 504 And yet, as T. C. Brennan has suggested, Caesar seems to have employed this precise number of legates as a dodge— that is, he used them as a substitute for the actual senatorial commission, “with an eye towards pushing through the ratification of his own acta in Gaul.” 505 He would have wanted to avoid the problems that Lucullus and Pompey had experienced in this area, and the presence of ten legates would have given his acta a greater air of legitimacy. By chance, we know that Ap. Claudius Pulcher, cos. 54, employed a consilium of decem legati to hear a dispute between (Italian) Interamna and the Reatini concerning the draining of Lake Velinus. 506 The widespread use of these commissions for rather mundane purposes may explain why Caesar after 55 was no longer content with his “decem legati” in Gaul, and asked for an increase to twelve! It is understandable that in a period that witnessed the gradual erosion of the Senate’s power to control its holders of imperium such an institution For the sources, see MRR II 159, 163, 176 and 178 n.1. MRR II 190 for 59 under P. Vatinius, tribune of the plebs, MRR II 215 under the consuls for the year 55. 504 See 1.3.6. 505 T. C. Brennan, PRR II 810 n. 344. 506 Cic. Att. 4.15.5 with Varro RR 3.2.3. 502 503

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as the senatorial commission would become obsolete. That the commander’s consilium does not suffer the same fate can be explained by the difference in the composition of the two entities. The decem legati were a body appointed by the Senate itself specifically to monitor and evaluate the activities of the imperator towards the end of his tenure, while the commander’s consilium, composed of his junior officers and his friends and relatives, would have enjoyed a close relationship with him throughout his campaigns. 3.14.4 The End of an Era: the Legations to Antony in 43 Towards the end of March 43, in an attempt to defuse the dangerous situation caused by M. Antonius’ siege of D. Brutus in Mutina, Q. Fufius Calenus (a member of the Antonian faction) proposed that a legation be sent to Antonius. Accordingly, three senior consulars were dispatched with the following terms: Antonius was to cease his attack on Dec. Brutus, to withdraw from Brutus’ provincia of Cisalpine Gaul (but not to advance within 200 miles of Rome) and submit to the authority of the Senate and People. If he refused, war would ensue. 507 The embassy was a failure—Antony sent the envoys back with a legate of his own demanding counter-terms: he would relinquish Cisalpine Gaul, but would retain Gallia Comata for five years. 508 The Senate thereupon declared a tumult, but stopped short of actually declaring war against Antony. 509 A second embassy was then proposed. Among others, Cicero was to be a member. In the Twelfth Philippic Cicero discusses why, in his opinion, such an embassy was a bad idea. 510 He summarizes the dangers of attending a meeting with Antony in any location: “no safe meeting can be arranged (in either camp) therefore, dispatches should be conducted by letter, not in person, and we should each stay in our own camp. To all propositions I will have one single opinion: to refer all Antonius’ demands to the Senate.” He then continues: Neque enim licet aliter, neque permissum est nobis ab hoc ordine, ut bellis confectis decem legatis permitti solet more maiorum, neque ulla omnino a senatu mandata accepimus.

507 See MRR II, 350 for the sources. One of the three, Ser. Sulpicius Rufus, died en route. 508 For these and other demands, see Cic. Phil. 8.24ff. 509 Cicero (Phil. 8.1–7) expressed his extreme displeasure at this decision. 510 Phil. 12.28.

THE DECEM LEGATI AS CONSILIUM OF THE MAGISTRATE MILITIAE111 For there is no other permissible way, nor has (any commission) been entrusted to us by this order, just as it was the long-established custom to entrust to ten commissioners after the end of a war, nor have we received any other instructions from the senate.

Cicero sees a clear distinction between his duties as legatus in this embassy, and those of the decem legati who received mandata from the Senate concerning their duties after a war. As I interpret this passage, the duties inherent in the proposed mission and those of the traditional decem legati, who were sent with the express purpose of serving as a consilium to the magistrate in question (here, Antonius) were irreconcilable. In Antonius’ camp, Cicero and the other legates would find themselves not in the position of trusted advisors, but as “foreign” ambassadors. Nor, presumably, would the authority of the Senate’s express will that normally invested such commissions have any sway with Antony—in fact, Cicero claims, their safety as envoys could not even be assured, although according to international law the person of an envoy was sacred. This last point indicates the extent of the collapse of the normal order. Given the shift in the balance of power from Senate to individual, it is not surprising that the end of the Republic also signaled the end of such senatorial commissions.

3.15 CONCLUSIONS The passages I have examined concerning the decem legati and their relationship to the magistrate militiae clearly illustrate that the decem legati functioned as a consilium. The terminology used by the ancient sources in referring to the deliberations of the magistrate militiae and the decem legati are analogous to that of the commander’s consilium. Although we find occasional references in the sources to the “decision of the decem legati” (just as we have seen similar references to the “decision of the commander’s consilium”), nonetheless, it is the magistrate alone who has the power to render a decision in these matters—and even then his acta are subject to the later approval of the Senate. Of course, the same overruling principle of the consilium applies here as elsewhere: although the magistrate is not bound to accept the advice of his consilium (here, the decem legati) nonetheless there is a strong moral imperative to consider its advice. In the end, the decision is his alone. Due to the incomplete nature of our sources, it is not possible to make a definitive statement concerning the composition of these commissions. However, certain patterns are noticeable. It appears that the Romans strove for a certain balance when forming these commissions. For example, a

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commission composed of all consulars would be seen as “unbalanced,” just as one composed of all pedarii. This indicates (although certainty is impossible) that there was a definite echelon of function to these commissions. As the power of the Senate to compel the obedience of its magistrates declined in the late Republic, the institution of the senatorial commission of ten suffered a similar decline. Its inception can be seen in Sulla’s activities in the East in 85–4, which he accomplished (and obtained ratification for) without the participation of decem legati. The commission of Licinius Lucullus, composed of his familiares, points to a further weakening. Pompey’s extensive organization of his provinciae without decem legati and Julius Caesar’s use of his personal staff as “decem legati” effectively sign its death warrant. One final point: the employment of the decem legati shows the amazing flexibility and ingenuity of the Roman system of government. In the activities of these commissions, we see them acting not only as advisors in a variety of situations, but also as ambassadors and even military commanders. This is not surprising when one considers the multivalent function of the Roman legatus, under which heading the members of these commissions fall.

4. THE CONSILIUM OF THE PROVINCIAL GOVERNOR 4.1 INTRODUCTION The duties of a magistrate militiae can be divided into three main categories: military operations, jurisdiction (both civil and criminal, over both citizens and non-citizens), and supervision of revenue collection. In Chapter Two I examined the military duties of the magistrate militiae in some detail. Chapter Three examined a special sub-category of the consilium militiae: the decem legati as advisory body. In this chapter I explore the consilium of the magistrate militiae as it appears in the two remaining areas of administration, jurisdiction and collection of revenues. Roman provincial administration is a vast topic, and a thorough study of the staff of the provincial governor alone would be a major opus. 511 Therefore, I have chosen to examine in detail only those passages that illuminate the special nature of the consilium militiae. Cicero’s writings are a real goldmine for this topic. Through his letters of advice to his brother Quintus, who served as governor of Asia from 61– 58 and his correspondence while governing (however reluctantly) his own province of Cilicia in 51–50, he gives us glimpses of the daily activities of the magistrate militiae. But it is the so-called Verrine orations of the year 70 that are the most valuable for our purpose. In this series of speeches, Cicero presents a primer on how not to govern a province, using the corrupt C. Verres as a negative exemplum. 512 Of course, we must keep in mind 511 A. W. Lintott, Imperium Romanum is one of the most complete and useful overviews. Although the focus is on praetorian provinciae per se, T. C. Brennan’s PRR is a valuable and detailed resource for provincial administration. 512 Although the sections dealing with Verres’ crimes come for the most part from a portion of Cicero’s Verrines, the so-called secunda actio, that was never actually delivered due to Verres’ flight into exile, nonetheless, the speech would certainly have been composed, and since the published version must have been fairly

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that Cicero had one objective in these speeches: the conviction of Verres for repetundae (extortion). Nonetheless, whether or not Cicero exaggerates Verres’ failings (and he almost certainly does), he does give us a good idea of how the consilium was supposed to work. Before we turn to Verres, however, it will be useful to discuss briefly the idea of the provincia.

4.2 THE PROVINCIA OF THE MAGISTRATE MILITIAE In its original and basic sense, a provincia was a task or sphere of influence assigned to a magistrate (normally one with imperium, although quaestorian provinciae were not unknown). 513 Thus the holding of consular elections, the command of a fleet, presidency of a judicial court, and a campaign against pirates could all be (and were) considered provinciae. Later, the term came to refer mainly (but not exclusively) to the geographic area in which a magistrate was to confine his activities, so that one could speak of a magistrate leaving his provincia without permission. 514 There does not appear to be one set evolutionary path by which the area of influence becomes what modern scholars term a Roman province. Certainly, the point at which a Roman magistrate is sent annually to a particular provincia on a permanent basis is the key factor. 515 An understanding of the inhabitants of a Roman provincia is essential. The non-Roman inhabitants of the cities in a magistrate’s provincia were not as a general rule a homogenous body—as their official status varied, so did their relationship to Rome, and consequently the procedures pertaining to them as well. There were three basic classifications. 516 The civitates liberae were cities that had been declared autonomous by Rome and given privileges that usually included liberty, the right to employ their own laws, and exemption from garrison. 517 Through a foedus, that is, a treaty concluded close to the intended speech, we can allow Cicero his fictive “day in court” in what follows. 513 See J. Richardson, CAH2 564f and E. Badian, OCD3 s.v. “provincia.” 514 As is detailed in the Lex de provinciis praetoriis, I.Knidos I 31 = M. Crawford, Roman Statutes (London 1996) no. 12. 515 Lintott, Imperium Romanum, 32. 516 For the three types, see Sherwin-White, Roman Citizenship, 174f, Lintott, Imperium Romanum, 36–40, and Berger, s.v. “civitates foederatae,” “civitates liberae et immunes,” and “civitates stipendariae.” 517 For an example of a law granting freedom to one such city, see M. Crawford, Roman Statutes no. 19 on the lex Antonia de Termessibus, which Crawford dates to 72.

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with Rome, the civitates foederatae enjoyed similar privileges. Often some measure of exemption from taxation was also included, in which case the citivas would also be designated as “immunis.” Cities that lacked these special privileges were termed civitates stipendiariae, or payers of the stipendium. However, even in cases where there was no explicit grant of autonomy, the exigencies of Roman provincial administration were such that cities were encouraged to develop and maintain their own systems of government, so long as they did not come into conflict with Rome’s interests. 518 It is in this context, then, that the provincial governor carried out his duties aided by the members of his staff.

4.3 THE STAFF OF THE PROVINCIAL GOVERNOR The consilium of a provincial magistrate was usually composed of two diverse groups: the first of which we have already examined in the discussion of the members of the general’s consilium. 519 In addition to the quaestor, legates, and military tribunes, the magistrate militiae was also accompanied by his cohors (amicorum or praetoria)—a group of friends and associates who had no official position, and yet must have been viewed as a necessary part of the magistrate’s entourage by the Senate, who supplied funds for their maintenance. 520 The governor also would be attended by the members of his personal staff. An important post was the governor’s personal manager, the accensus, who was usually a freedman or slave. Lictors bore the magistrate’s fasces, symbols of his imperium. Praecones (heralds) were in charge of official announcements and maintaining order at public functions. In addition, there were scribae (scribes); haruspices, in charge of reading the omens; and viatores, messengers. Finally, the magistrate would have his own cook, doctor, even his own masseur. As provinciae became increasingly more settled, one would also find large populations of Roman citizens living there. Consequently, the second group was composed of the conventus civium Romanorum residing in the locality in which the governor was holding his assize. 521 In judicial investigations, it was apparently thought improper for the magistrate’s consilium to be 518 As Lintott (Imperium Romanum, 54) points out, Rome even took an active hand in developing these systems. 519 1.3f. 520 On the cohors, see 1.3.7. 521 On the conventus civium Romanorum, see Magie, RRAM I 162–3, Cic. Verr. 1.29.73, 2.29.70.

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composed entirely of the former group, as it was then considered to be “stacked.” 522

4.4 THE CONSILIUM OF THE MAGISTRATE MILITIAE IN CRIMINAL PROCEEDINGS The punitive power of magistrates with imperium can be divided into two types: iudicatio and coercitio. A magistrate who is bringing a criminal charge against a citizen is said to be employing iudicatio. 523 Coercitio is the power of “enforcing obedience to their commands and of punishing minor disorderly offenses by certain coercive or repressive measures (prison, fines, pledge).” 524 Roman citizens were protected by provocatio (the right of appeal to the People against a magistrate with imperium exercising coercitio or iudicatio). This protection, originally limited to the area within the sacred boundary of the city of Rome (the pomerium) plus one mile, was extended to Roman citizens outside the pomerium through one of the leges Porciae during the second century. 525 Nonetheless, any examination of the relationship of provocatio to criminal proceedings in the provinciae is hampered by the lack of specific evidence—no execution of a Roman citizen is attested, nor do we even have a detailed reference to a specific capital prosecution. Diodorus does preserve the tradition that Q. Mucius Scaevola, pro cos. in Asia (most likely after his consulship in 95) compelled those publicani who had been accused of murder to stand trial on capital charges, but no specifics are given. 526 Q. Cicero, pro pr. in Asia in 59, threatened capital punishments against two separate Cic. Verr. 2.30.75. A. Berger, Encyclopedic Dictionary of Roman Law (= TAPhS v. 43 pt. 2, Philadelphia 1953) s.v. iudicare, defines iudicatio as “the judicial activity, the rendering of a judgment, or decision by a person who is acting as a judge in civil or penal proceedings. In criminal matters, iudicare is opposed to coërcere which is not preceded by an ordinary trial.” 524 Berger s.v. coercitio. 525 See Cic. Rep. 2.31, 54, and Verr. 2.5.62.163. The exact date of the law is unknown, however, it should be dated prior to the Gracchan period, as one of the provisions of the lex repetundarum of the Tabula Bembina (generally accepted to be the Gracchan extortion law known as the lex Acilia) offers provocatio to non-citizens as one of the rewards of successful prosecution. This reward would make little sense if no such right already existed in the provinces for Roman citizens. For the text of the Tabula Bembina, see Crawford, Roman Statutes I 85 no. 1. 526 Diod. 37.5.2. On the date, see T. C. Brennan, PRR II 549-552. 522 523

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Roman citizens in his provincia. Although Cicero censures him for his brutality, the legality of his threats is not questioned. 527 Of course, for non-Roman inhabitants of the provincia, there was no question of the right of provocatio. Consequently, one can appreciate the extreme importance of the consilium in these capital cases. Constituting as it did the last line of defense against the arbitrary power of the provincial magistrate, it is no wonder that Cicero was able to make Verres’ abuse of the consilium a linchpin in his prosecution. 4.4.1 The Trial of Philodamus of Lampsacus The lack of earlier evidence compels us to begin the examination of criminal procedure used by the magistrate militiae with the evidence given in Cicero’s Verrines. Judging from the proceedings described within these speeches, the criminal procedure employed in the provinces under the late Republic was based on the procedure used in the early quaestiones extraordinariae in Rome. 528 These were ad hoc procedures for dealing with special circumstances, such as the one set up in 132 to deal with the followers of Tiberius Gracchus 529 or the series of quaestiones of 113 to investigate scandals involving Vestal Virgins. 530 The first trial under examination was conducted by C. Claudius Nero, pro cos. in Asia in 80, and dates from the period before C. Verres’ governor-

Cic. ad Q. fr. 1.2.2.6. The term quaestio extraordinaria came into existence through the misunderstanding of the phrase extra ordinem when used to refer to the assignment of a quaestio. The ordo here referred to is not that of the quaestio, i.e. “a special category of trial,” but that of the magistrate, “a duty assigned above and beyond his allotted tasks” (OLD s.v. “ordo” 15b). As T. C. Brennan notes (PRR I 333 n. 149): “C. Venturini (SDHI 53 [1987] 74–109, esp. 75–79) offers some tortuous speculation on the meaning of the phrase ‘extra ordinem’ in these passages, considering it to modify the quaestio itself, and then concluding that Livy uses it anachronistically. But there are ample parallels in Livy to show that the phrase simply means that the consuls received the quaestio by decree of the Senate, and not through sortition or comparatio of provinciae—in a word, ‘extra sortem.’ This meaning is most clear from 6.30.3; outside the first decade (where there are a number of instances) note 24.9.5. In Livy’s narrative of 186, ‘extra ordinem’ implies nothing about the nature of the quaestio itself.” 529 Cic. Amic. 37; Val. Max. 4.7.1; Plut. Ti. Gracch. 20.3–4. 530 Cic. Brut. 160; L. Per. 63; Val. Max 3.7.9, 6.8.1. 527 528

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ship in Sicily. 531 The background of the case is as follows: Verres, while serving as a legatus under Cn. Cornelius Dolabella (pro cos. in Cilicia in 80) was staying in Lampsacus, a town on the Hellespont. Verres ordered one of his comites, a man named Rubrius, to find him a suitable female to entertain him—a service, Cicero notes, Rubrius was in the habit of providing to Verres. 532 Rubrius found a prominent citizen of the town, Philodamus, who had an attractive unmarried daughter living at home. As Verres’ attempt to transfer his lodging from the house of a certain Ianitor to that of Philodamus proved unsuccessful, he arranged (not without some difficulty, for it was most irregular) for Rubrius to be quartered there instead. 533 At a party given by Philodamus, to which all the comites of Verres (and Verres himself) had been invited, an attempt was made to carry off the daughter, and a brawl resulted, during which a certain Cornelius, a lictor of Verres, was killed. The next morning, the outraged citizens went to the house where Verres was staying and barricaded him in, attempting to burn him alive inside. He was saved only by the appearance of a group of Roman citizens who brought the mob to their senses. Philodamus and his son were duly charged with the murder of Cornelius. Under the normal procedure they would be brought before the magistrate in charge of the provincia (in this case C. Claudius Nero) and charged with a capital offense. Verres, so Cicero tells us, feared that they would be acquitted due to the circumstances (and more importantly, that his part in the disgraceful affair would be publicized). He accordingly took pains to ensure their conviction. Verres convinced his superior Cn. Cornelius Dolabella to leave his provincia of Cilicia and appear as a member of Nero’s consilium. 534 By virtue of his high position, Dolabella would naturally give his sententia first, and would thus be able to influence the other members of The incident is retold at Cic. Verr. 2.1.24.63–30.76. RE s.v. “Rubrius” no. 3. He may have been a herald, if he is to be identified with the A. Rubrius A. F. praec(o) of Dessau ILS 6303. 533 According to Cicero, Philodemus complained that he was accustomed to receive consuls and praetors into his house, not the “hangers-on” (adseculae) of legates. 534 A move that Cicero rightly condemns. Quitting one’s province, unless in accordance with a SC, in transit, or acting rei publicae causa was a direct violation of the lex de provinciis praetoriis (Crawford, Roman Statutes no. 12, Cnidus copy, col. III lines 9–15). Why prompted Dolabella to do this rash act? According to Cicero (Verr. 2.1.73) commotus est Dolabella (Dolabella was moved) by compassion for Verres. 531 532

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the consilium, and Nero as well. 535 Dolabella brought with him his praefecti and military tribunes, whom Nero also invited to be on his consilium. 536 Even Verres himself was a member, as well as a witness! In addition, Cicero tells us that the consilium included certain of the Roman citizens to whom the Greeks owed money (the togati creditores). We should of course assume the presence of Nero’s staff officers as well. The procedure Cicero describes in this trial shows similarities to the procedure used in the quaestiones perpetuae in Rome (albeit with some important differences). For example, the charge is brought against the accused not by the magistrate himself, the process used in the iudicia populi, but by an outside prosecutor (accusator), probably using the procedure known as nominis delatio. 537 This method of bringing charges before the magistrate seems to have been one of the innovations of the lex repetundarum of the Tabula Bembina. 538 The process eventually was exported from the extortion courts to other permanent quaestiones, and presumably also to the criminal procedures of the magistrate militiae. Acting as accusator in this trial was one of the Roman moneylenders (togati creditors) to whom Cicero assigns ulterior motives for his role. 539 Unlike the Gracchan quaestio of the lex repetundarum (and this is of fundamental importance for our examination of the consilium militiae), the defendant here is not judged by a panel of iudices selected from an album (list of eligible iudices), but by the magistrate in charge of the provincia. The magistrate is aided in his decision by a consilium of advisors of his own choosing. Of the members of Nero’s consilium, only one is labeled a “iudex”— Verres—but this term is meant to emphasize the later inequities of his role

Verr. 2.1.73; on the order of sententiae in the consilium, see 2.2.2. Presumably, as A. H. M. Jones, Criminal Courts 84, points out, Dolabella’s other legates and probably his quaestor as well would have also been members of the consilium. 537 See below on the trial of Sopater, where nominis delatio is definitely employed. 538 A literal translation of nominis delatio would be “registration (of someone’s) name,” but essentially, it means “prosecution.” See Crawford, Roman Statutes I 85 (on no. 1, the lex repetundarum of the Tabula Bembina). 539 Verr. 2.2.74: qui si dixisset quod iste iussisset, per eiusdem istius lictores a populo pecuniam posset exigere. “who, if he said what that rogue demanded, might be able to squeeze money from the people [who owed him] with the aid of Dollabella’s own lictors.” 535 536

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as judge and not to characterize specifically his position here. 540 No evidence points to a minimum or maximum number placed on the consilium. Nero is thus able to accommodate the influx of Dolabella’s staff (including Verres). Cicero dramatically sets the scene: although Philodamus was unable to find anyone brave enough to defend him, although his enemies had resources and enthusiasm, although Dolabella and his prefects fought hard for a conviction, 541 nevertheless Nero was initially unable to make a definite decision. His verdict was that further inquiry was needed, “amplius.” 542 Ampliatio was an adjournment through which a fresh trial would be required. 543 In the quaestiones perpetuae, it was brought about when a specific majority of the jurors voted “non liquet” (“not proven”). According to the provisions of the lex repetundarum, this number must exceed one third, nor were jurors allowed to vote “non liquet” more than twice in any single case. 544 One of the key innovations of the Gracchan repetundae law was thought to be voting by secret ballot. 545 Each juror was to come up with his own decision based on the evidence, and vote accordingly. 546 They were not allowed to discuss among themselves. In the Philodamus case, the secret ballot clearly is not in

540 Verr. 2.2.73: erat in consilio etiam aequissimus iudex ipse Verres. “There was also in the consilium that most impartial of judges, Verres himself.” The superlative, as often in Cicero, is sarcastic. 541 The phrase used by Cicero, Dolabella cum suis praefectis pugnaret in consilio, recalls the pugnacious debates which often occurred in the commander’s consilium— see 1.3.1 on format and terminology. 542 Verr. 2.1.29.74: de Philodamo “amplius” pronuntiaretur. The verb pronuntio is used of the official pronouncements of magistrates (OLD s.v. “pronuntio” 1a, 3a and c). For the verb used in pronouncements connected with the consilium, see Caesar BC 1.19.1 (discussed above at 2.4.1), Cic. Verr. 2.3.18, Brut. 86, Liv. 45.26.12, and 45.29.3. 543 See J. P. V. D. Balsdon, “History of the Extortion Court at Rome, 123–70 B.C.” PBSR 14 (1938) 180f. 544 Crawford, Roman Statutes no. 1, lines 48–50. 545 lex repetundarum lines 52–4. 546 Line 38, ioudex nei quis disputet, was thought by Mommsen to be a prohibition against discussion by the jurors, i.e., “let no juror discuss.” However, both Lintott (Judicial Reform 128) and Crawford (Roman Statutes 104) consider it to refer to disputes over jurors’ presence. Nonetheless, it is clear from the provisions on balloting in the lex repetundarum that the sententiae of the jurors were not given openly, which leads one to believe that discussion did not take place.

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use (as members would provide their sententiae in order) and I suggest that Dolabella and Verres would have been quite vocal with their opinions. In any event, the verdict of “amplius” forced a second hearing (actio altera). 547 Cicero describes Verres’ tears as he ran to and fro—(trying to influence the other members)—evidence for discussion among the members of the consilium, which was not allowed in the post-Gracchan quaestio. Verres’ hard work must have paid off, for Philodamus and his son were convicted of murder, albeit perpaucis sententiis and all too promptly executed. 548 What does Cicero mean when he says that Philodamus was convicted “perpaucis sententiis”? If the consilium only advises, but does not actually pass judgment, this seems strange terminology. Crifò provides an excellent rebuttal to this argument: Cicero is using a rhetorical device to stress the innocence of Philodamus (and by extension the wickedness of Verres). 549 Even though Verres has stacked the consilium against Philodamus, nonetheless it is only by perpaucis sententiis that he is convicted. It is difficult to accept that Cicero actually wants us to believe that the consilium itself is delivering the verdict, if we take into consideration that in the same spot Cicero explicitly says: tum vero quod pronuntiatum est non per Neronem iudicatum, sed per Dolabellam ereptum existimabatur, “but what was actually pronounced was not adjudicated by Nero, but forced through by Dolabella.” 550 The force of the antithesis is totally lost, as Crifò points out, if it were not within Nero’s power to deliver the iudicatio. 551 Nor would there be any point in stressing the timidity and submissiveness of Nero, as Cicero does, if indeed he had no real control over the verdict. Consequently condemnatur enim perpaucis sententiis Philodamus et eius filius should not be translated, “Philodamus and his son by a very small majority were found guilty of murder” 552 but rather: “By force of the opinions of a very few, Philodamus and his son were found guilty of murder.” Of course, if the consilium actually had delivered the verdict, as Kunkel would wish us to believe, it is extremely doubtful that Philodamus Ironically, the actio altera (or secunda) of the trial against Verres was never actually delivered, as we have noted above, for he went into exile immediately after the actio prima. 548 Verr. 2.1.30.76. 549 G. Crifò, “Sul ‘Consilium’ del Magistrato” SDHI 29 (1963) 296–309. 550 Verr. 2.1.75. 551 Crifò, 297. 552 As L. H. G. Greenwood (Loeb edition [London 1928] 203) does, implying that a little more than half the consilium was in favor of a guilty verdict. 547

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would have been convicted only perpaucis sententiis! After all, the consilium was obviously stacked to begin with. Not only Dolabella and Verres, but all of Dolabella’s men and all the togati creditores would probably have voted to convict. Therefore, in light of the tremendous pressure that would have been exerted on Nero to convict, his verdict of “amplius” shows admirable strength of will. It was unfortunate for Philodamus and his son that Nero’s convictions were not strong enough to last a second trial. Thus is depicted the primum facinus (first crime) of the aequissimus Verres, but clearly not the last. 4.4.2 The Sopater Scandal and the Character of the Consilium In the section of the Verrines which deals with Verres’ conduct of capital cases (quaestiones rerum capitalium) while governor pro praetore in Sicily, Cicero claims he will not go into every case tried by Verres, instead he will select out of many similar cases only those which seem to be of surpassing wickedness. One of these involved a certain Sopater, a wealthy and influential inhabitant of the town of Halicyae. Sopater had been previously accused before Verres’ predecessor, C. Licinius Sacerdos (pr. 75), on an unspecified capital charge and “easily acquitted,” according to Cicero. But the same enemies who had brought the first charge accused him again, this time before Verres. The procedure used was again nominis delatio. 553 Cicero tells us that at first Sopater felt little cause for alarm. It seemed a simple enough matter—he was innocent, and besides, he did not think that Verres would dare overturn the decision of Sacerdos. During the trial, Timarchides, a henchman of Verres, approached Sopater and told him not to rely too heavily on the previous verdict of Sacerdos or (the strength of) his own case: Sopater’s accusers and enemies were planning to offer Verres a bribe. But Verres (continued Timarchides) would rather be paid for an acquittal, and not to have to overturn the previous verdict. Sopater, after initial difficulties, raised the agreed-upon sum of money. Now, if we maintain that the magistrate militiae was bound by the decision of his consilium, both Sopater and his enemies were clearly wasting their money. Why bribe the magistrate if he had no power to control the verdict? Shouldn’t they be bribing the consilium? In any event, Sopater supplied the money, and his friends breathed a collective sigh of relief—

553

Verr. 2.2.68.

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Verres had been bribed, and who could doubt what the outcome would be? 554 In a disturbing turn of events, however, Sopater was then informed that his accusers had offered an even bigger bribe! Timarchides advised him to consider the matter. But Sopater (Cicero continues) had had enough, and told Timarchides “Do what you wish; I will not pay any more.” Sopater’s friends and defense counsel approved this course of action, because, however Verres may act in court, there were honorable men from the Syracusan conventus on Verres’ consilium, who had also been on the consilium of Sacerdos, when Sopater had been acquitted. “In no way could those same men condemn him of the same crime, with the same witnesses, who had previously absolved him.” 555 Now, this statement certainly appears to place the decision with the members of the consilium. I would make two points, however: first, Cicero is at pains to emphasize that the only difference in this trial and the former is the presence of Verres—the evidence, the witnesses, and the consilium are all the same as the previous trial. Second, although the members of the consilium do not decide the case, they certainly express their opinions to the magistrate, who then is free to accept or dismiss them. Therefore, as the members of this consilium had previously expressed their belief in the innocence of Sopater, and Sacerdos had agreed with their findings and issued his decision de consilii sententia, it is not unlikely that the decision might be expressed in the fashion in which Cicero does here. Certainly it is more elegantly phrased than the alternative: “the men, who had served on the consilium of Sacerdos and had expressed their opinions concerning Sopater’s innocence to Sacerdos who incidentally agreed with them, would not deliver a dissimilar opinion now.” Verres could hardly be ignorant of the disposition of his consilium. Therefore he took measures to ensure that he be successful. During the trial, which took place at Syracuse, Verres “kindly” dismissed M. Petilius, a Roman eques serving on his consilium, ostensibly in order to see to a case in which Petilius was acting as a private iudex. Petilius quite rightly objected, since there were additional members of Verres’ consilium whom Petilius wished to have act as his advisors in the civil case. Verres (who Cicero implies knew this full well) excused them all, whereupon the consilium departed en masse. Verres was then left alone … with the no-good members Verr. 2.2.70. 2.2.71: facere eos nullo modo posse ut eodem crimine, eisdem testibus, Sopatrum condemnarent idem homines qui antea absolvissent. 554 555

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of his personal staff. 556 Q. Minucius, the defensor of Sopater, assumed that Verres would adjourn for the day, since he had let his consilium go. To his surprise, Verres ordered him to proceed. “Before whom?” asked Minucius. 557 “Before me,” [Verres] said, “if you consider me a sufficient judge for a mere Sicilian Greekling.” “You are sufficient,” he said, “but I would wish to be present those who were here before and hearing the case.” 558 Two points are clear from this exchange. One, Minucius’ reply indicates that Verres alone would be sufficient (idoneus) to try the case. In other words, a consilium was not an absolute requirement for proceeding with the matter. Two, Minucius does not counter Verres with any legal objection (only the polite request pervellem…) shows that there was no legal impediment to a trial without a consilium present (for surely Minucius would have stated such an impediment). Could there be a clearer indication that it was Verres, and not the members of the consilium, who decided the case? Minucius himself could not deny that Verres had a right to hear the case alone, if he so chose. His only response was a diplomatic plea for the return of the bulk of the consilium, which was then denied. To resume: Minucius, liking this change of events not at all, suddenly “remembered” that he too was needed on Petilius’ consilium, and prepared to leave. Verres proceeded to abuse him verbally and threaten him, but Minucius refused to continue the defense, evidently thinking that this (if anything) would bring the charade to a close. Cicero now depicts Verres’ moral dilemma: if he adjourned until the absent members of the consilium returned, he would most likely have to acquit Sopater or discover some new reason to find him guilty, but if he condemned Sopater now, without a real consilium, in the absence of Sopater’s advocate, and in the process reversing the decision of Sacerdos, he did not think himself able to bear the invidia which such actions would inevitably cause. As Cicero later mentions, the trial was held publicly in the forum of Syracuse, before the eyes of the en-

Verr. 2.2.71: itaque iste solus cum sua cohorte nequissima, thus setting the stage for what follows. 557 Note the plural quos here, indicating that Minucius expected the presence of a consilium. This expectation was apparently not fulfilled by the cohors nequissima of Verres, who were present at the trial but not considered a viable consilium. 558 Cic. Verr. 2.2.72: “Ad me,” inquit, “si tibi idoneus videor qui de homine Siculo ac Graeculo iudicem.” “Idoneus es,” inquit, “sed pervellem adessent ii qui adfuerant antea causamque cognorant.” 556

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tire province. 559 His actions would not escape scrutiny. Obviously, Verres could try the case alone—if it were illegal to do so, he certainly would have feared more than invidia. On the other hand, he undoubtedly realized that it would be a very unpleasant business and would cause invidia, “indignation, ill will, (political) unpopularity.” Apparently, in the end the bribe given by Sopater’s enemies decided for him. And so, Cicero concludes, Sopater was convicted de sententia scribae medici haruspicisque, “upon the advice of a scribe, a doctor, and a diviner.” 560 Ought we to take this literally? If so, Cicero’s statement (often repeated subsequently) that Verres was left without a consilium was wrong, and we would be at odds to explain Verres’ hesitation to continue. 561 To be sure, Cicero tells us that after the departure of Verres’ consilium, he was left alone with his nequissima cohors. Ought we to picture the scribe, the doctor, and the diviner clamoring into the seats left newly vacant by their more worthy predecessors? Or (horrors!) to imagine them to have been seated there all along? Or could de sententia scribae medici haruspicisque be no more than an ironic turn of phrase to indicate the depths to which Verres had plunged by his scandalous behavior? If so, it makes the following passage more understandable. “Will you now deny that having dismissed your consilium, and having disposed of the honorable men who had sat on Sacerdos’ consilium and had been accustomed to sit on your consilium previously, you then passed judgment on a matter which had previously been judged?” (Cicero continues) “Can you deny that you condemned a man without a consilium whom Sacerdos had previously acquitted with a consilium present?” 562 As we can see, Cicero is emphasizing this violation of procedure for all its worth. It is clear from the Sopater incident that the magistrate militiae had a responsibility to invite into his consilium men of good character, sound judgment, and (perhaps most importantly) proper station. 4.4.3 Further Responsibilities of the Magistrate Militiae Cicero uses the following incident to illustrate that the responsibility extends even further, to ensuring the good character and actions of the members of his personal staff. Sosippus and Philocrates, two brothers from the town of Agyrium, paid a certain sum to Verres as a bribe to retain possesVerr. 2.2.81. Verr. 2.2.75. 561 As Crifò notes, 297–8, contra Kunkel, Untersuchungen 80. 562 2.2.81. 559 560

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sion of their estate. 563 They paid the sum, not directly to Verres himself, but to Volcatius, a Roman eques who was a member of Verres’ staff. According to Cicero, Verres later claimed he never received the money. Cicero maintained that (even on the slim chance that Verres did not know about this extortion) every one of Verres’ comites could be considered an extension of Verres himself (and thus their behavior reflected upon him). 564 He continues: “If indeed we wish to be thought blameless, we must prove not only our own innocence, but that of our entourage as well. Above all, we must take pains to see that those men we take out with us take thought for our reputation and civic rights…” 565 In support of his argument, Cicero quotes an anecdote told of Scipio Africanus. An old friend had asked to join Scipio in Africa as one of his praefecti. Scipio refused, telling the friend not to be surprised at his refusal, for he [Scipio] had been trying for a long while to solicit another friend, who cared much for his honor, to go, and he had repeatedly refused. 566 The sense of the anecdote seems to be that only those who did not want to go should be asked, for those who did might have ulterior motives. Verres, however, invited his friends to his provincia as if to a looting party. Cicero chides him, “Did you not think that you would have to make a reckoning, not only for your actions, but theirs as well?” 567 We learn from Cicero later that Verres was not incapable of correct judicial procedure—in a matter involving a suspected slave revolt at Triocala the slaves under question were brought to Lilybaeum, tried, and con2.2.25f. 2.2.27. 565 2.2.28: si enim innocentes existimari volumus, non solum nos sed etiam nostros comites praestare debemus. primum omnium opera danda est ut eos nobiscum educamus qui nostrae famae capitique consulant. 566 2.2.29: “noli,” inquit, “mirari si tu hoc a me non impetras: ego iam pridem ab eo cui meam existimationem caram fore arbitror peto ut mecum praefectus proficiscatur, et adhuc impetrare non possum.” 567 2.2.29: non statuebas tibi non solum de tuis sed etiam de illorum factis rationem esse reddendam? When Q. Pleminius, the legate of P. Cornelius Scipio Africanus, was under investigation for various outrages committed on the Sicilian town of Locri in 205, one of the questions facing M. Pomponius, the praetor charged with the investigation, was to what extent Africanus could be held responsible for the actions of his legate. It was determined that Pleminius had acted neither on orders of Scipio, nor by his consent. For an excellent overview of the affair, with bibliography, see T. C. Brennan, PRR I 141–2. 563 564

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victed by Verres, acting, so we are told, de sententia consilii. 568 In fact, Cicero is at pains to illustrate that Verres handled the matter in a perfectly regular fashion, in order to contrast the facinus improbum that followed. For, he continues, the slaves had been bound to the stake, awaiting their punishment, when suddenly, with thousands of people watching, they were released and handed over to their owner. The question that Cicero says he dares not ask (but then proceeds to ask all the same) is, “how much did Verres get for this?” Now, it is rare for a magistrate to act contrary to the recommendation of one’s consilium, 569 but to revoke one’s own decision initially made de sententia consilii is (as far as I know) unprecedented. 570 In a similar scam, Cicero alleges that Verres summoned a certain Apollonius of Panormus (a wealthy Sicilian) before his tribunal and insisted that one of his slaves, a shepherd, was conspiring to revolt. But when Apollonius swore that he had no such slave, Verres put Apollonius himself in jail without a trial. Cicero condemns the breach of procedure in a tricolon crescendo: deinde crimen sine accusatore, sententia sine consilio, damnatio sine defensione, “an accusation without a prosecutor, a sentence without a consilium, a conviction without a defense.” 571 Three irregularities of proper procedure are here noted. First, according to the process of nominis delatio, the magistrate himself could not bring charges; they had to be lodged by a separate accusator. Second, it was highly irregular (but not, as we have noted, illegal) for the magistrate to adjudicate without the presence of a consilium of worthy advisors. Third, there was no opportunity for the accused to put on his defense. Luckily, Apollonius finally managed to liquidate enough assets to buy his release.

2.5.10–11. Witness C. Flaminius’ disregard of his consilium’s advice to delay battle in 217 (Liv. 22.3.8). Livy’s account of L. Aemilius Paullus’ Macedonian campaign (44.35–37) shows him acting contrary to the advice of his consilium (but Livy takes pains to illustrate the subsequent success of his decisions). 570 Cicero later contrasts the two actions (2.5.18): servos, quos ipse de consilii sententia belli faciendi causa consensisse iudicavit, eos sine consilii sententia sua sponte omni supplicio liberavit, “the slaves, whom upon the advice of his consilium he himself had judged to have plotted to wage war, he set free from all punishment on his own initiative.” Again we see here the contrast between the (good) decision made in accordance with the opinions of the consilium, and the (bad) decision made arbitrarily without consulting the consilium. 571 2.5.23. 568 569

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In one of the most egregious examples of Verres’ misconduct, Cicero tells how in 71 Verres put a Syracusan named Cleomenes in charge of the Roman fleet in order to enjoy the favors of his wife Nike during his absence. Pirates attacked the fleet, Cleomenes ran away, and the fleet was burned. Instead of punishing Cleomenes, Verres instead decided to punish the captains of the ships themselves. He pronounced them all guilty, quite properly (in terms of procedure, that is), de consilii sententia. 572 However, as Cicero notes, Verres did not ask his quaestor T. Vettius to be present in the consilium, nor his legate P. Cervius (whom Verres rejected as one of his own iudices in the trial against him, because, Cicero says, Cervius had been legate under him, and, it is implied, knew what sort of person Verres really was…). 573 Indeed, who was on Verres’ consilium? His comites, that is, members of his personal staff, whom Cicero charitably calls “latrones” (thieves). 4.5 The Consilium in Civil Procedure Militiae As I have mentioned above, the magistrate militiae has a responsibility to make sure that his consilium consists of men of good character, sound judgment, and proper station. The same obligation exists for those men he chooses as iudices, to preside in his stead over matters of civil law outside Rome. Cicero remarks on the dangers of having an unscrupulous (pro) praetor in charge of a court: “(no one could hope to retain his property if) a wicked praetor, from whom no one would be able to appeal, were to place anyone he wished as a iudex, and a worthless and flighty iudex were to give the verdict that the praetor desired.” 574 Cicero then moves to a discussion of Verres’ violations of the lex Rupilia, which set down regulations for how civil trials should be conducted in the province of Sicily. 575 Cicero lists these regulations at 2.2.32: 1. that a legal matter between one citizen and another at home should be disputed under their own laws. (quod civis cum cive agat domi certet suis legibus) 2.5.114. As T. C. Brennan notes (PRR II 842 n.126), Vettius seems to have been quaestor at Lilybaeum, and hence not available for the trial at Syracuse. 574 2.2.30:…praetor improbus, cui nemo intercedere possit, det quem velit iudicem, iudex nequam et levis quod praetor iusserit iudicet. 575 Verr. 2.2.114. On the actions of P. Rupilius and his consilium in 132, see 3.11. 572 573

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2. that in a legal matter between one Sicilian and another not of the same city, concerning that matter the praetor should appoint iudices by lot according to the decree of P. Rupilius, which he decided according to the advice of the ten commissioners, which (decree) they call the lex Rupilia. 3. that when a private individual sues a people or a people sues a private individual, a senate from another city is enlisted to adjudicate. 4. that when a Roman citizen sues a Sicilian, the iudex be a Sicilian, when a Sicilian sues a Roman citizen, the iudex be a Roman citizen. 5. In other matters iudices selected from the conventus of Roman citizens are accustomed to be established. (Between farmers and tithe collectors trials according to a lex frumentaria, known as the Hieronian law, are to occur) Cicero notes that Verres violated all these procedures. The judges were supplied from Verres’ personal staff (an unusual procedure even if the iudices were not, as Cicero implies, as wicked as their superior). In the few cases where they were not, the judges were forced by fear of reprisal into giving the verdict that Verres desired. One such case involved Heraclius, a wealthy citizen of Syracuse, who was being sued on the grounds that he did not properly erect statues in a park, as stipulated by the will of a relative. 576 Verres (so Cicero maintains) had arranged with the curators of the park to conduct the suit, with an eye toward collecting the legacy concerned. In violation of the lex Rupilia, Verres did not chose iudices by lot from among Heraclius’ fellow-citizens, as would be proper in a case between fellow-citizens. Instead, he chose five iudices whom he thought would be most suitable for him. Heraclius, in view of the situation, and according to the advice of his friends and relatives, decided not to appear in court. Thus through negative evidence, we have a broad sense of how a consilium in a civil case should (or rather should not) be employed more maiorum.

4.6 COLLECTION OF REVENUES Evidence for the use of a consilium in tax collection is especially rare in our sources. Once again, we turn to the Verrines for information. Verres had exempted the Messanians from providing grain to be purchased by Rome, although it was required both by decree of the Senate and by the lex Terentia Cassia of 73, which arranged for Sicilian grain to be provided at reduced

576

2.2.41.

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costs. 577 (Previously, Cicero detailed how the Messanians escaped paying ships in tribute by a bribe paid to Verres; this is presumably the same arrangement.) Verres then investigated the matter with the aid of his consilium and pronounced, according to the advice of his consilium, he would not order the Messanians to supply grain. (cum consilio causam Mamertinorum cognoscit et de consilii sententia Mamertinis se frumentum non imperare pronuntiat.) This sounds all very proper, and surely no one could fault Verres for his conduct in this matter. But in the commentarii, the minutes, of Verres’ decision on the Messanian grain affair, the members of the consilium that Verres employed in granting the exemption were listed. (It appears that official records were kept of such decisions, even down to the listing of the members of the consilium. Unfortunately Cicero does not give the names in his speech.) Once again Cicero criticizes Verres for the composition of his consilium (2.5.54): “you heard this distinguished consilium being read, judges, pray tell, did it seem to you to be the consilium of a praetor, or the depraved partners in crime of a pirate?” 578 As we have seen, the magistrate has the obligation, not merely to consult a consilium, but to ensure that the members of that consilium are men of a certain position in society, men whose conduct is above reproach, men who can act as a check on the conduct of the magistrate. For if he chooses advisers as wicked as he is, what is the point of even summoning a consilium, as Cicero appears to be saying here. From Cicero’s letters we have a rare example outside the Verrines of a magistrate consulting a consilium concerning taxation in his provincia. Cicero’s brother Q. Tullius Cicero, pro cos. in Asia in 59, has referred a matter concerning portorium (“excise duty”) on goods transferred (presumably from one harbor to another, as Shackleton Bailey points out ad loc, although a portorium could be levied at any control point) to the Senate de sententia consilii. 579 Unlike Verres, Quintus has not only followed the proper procedure, but also imposed the taxes in a fair manner. The Verrines provide ample evidence for the importance of the consilium as a check on the power of the magistrate militiae. Obviously, we are 577 2.5.53. On the lex Terentia Cassia, see also Cic. Verr. 2.3.163 and 173, and Sall. Hist. 3.48.19 M. 578 2.5.55: praeclarum recitari consilium, iudices, audistis; utrum vobis consilium tandem praetoris recitari videbatur, cum audiebatis nomina, an praedonis improbissimi societas atque comitatus? And later, sarcastically: hoc delectum praeclarumque consilium, “this handpicked and very distinguished consilium.” 579 Cicero, ad Atticum 2.16.4, beginning of May 59.

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dealing with exaggeration for effect, and Verres may not have been the monster that Cicero made him out to be. My interest is not in his rehabilitation. Whether or not he committed all of these crimes is not crucial to our examination of the consilium. What is important is that Cicero, and by extension the Romans he is addressing, considered violations of the consilium procedure to be serious enough infractions to be emphasized in a trial of this sort. As we have previously seen, the consilium, which could be used as a witness in support of a magistrate’s actions, became in the case of Verres a witness for the prosecution.

5. THE COMMANDER’S CONSILIUM: CONCLUSIONS 5.1 THE COMMANDER’S CONSILIUM IN CONTEXT As we have seen, the usefulness of the commander’s consilium went far beyond its main function as an advisory body. It served as a training camp for commanders-to-be, as a military court, as a witness of the general’s dealings, especially with foreign legates, and as a reminder to both the army and the general himself that he was acting, not on his own initiative, but as a representative of the Senate and People of Rome. Therefore magistrates who spurned the use of a consilium ran the risk of being labeled imperious. The members of the consilium might be later called upon to provide information when it came time for the general’s acta to be ratified. A truly inspired general could adapt the institution to serve his own needs. An excellent example is L. Cornelius Sulla’s employment of his military consilium as a substitute for the senatorial commission of ten that (as a hostis of the Roman People) he would not be assigned. 580 Through Sulla’s use of the consilium we can see the value of the traditional rules governing the composition of the advisory council. Even in this extraordinary situation, duly appointed officers and local senatorial representatives would be expected to oversee Sulla’s endeavors—and he would have realized the importance of attention to the fine details of consilium protocol. Its military applications aside, the consilium of the magistrate militiae has a place in the larger context of the Roman consilium as a whole and its development during the Republican period. This larger phenomenon can provide us with further insight into how Roman society worked. Still another way of looking at the Roman military consilium, however, is to compare it to portrayals of foreign consilia, both those described by Romans themselves, and by non-Romans.

580

See section 3.14.1.

133

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5.2 DEPICTIONS OF FOREIGN CONSILIA Livy describes many consilia of non-Romans that seem remarkably similar in format and terminology to the Roman model. 581 For, example Livy describes a military consilium held by the Samnites in their camp (dated to 321) that in all respects seems identical to that of a Roman military consilium. 582 The general and the other senior staff are present. Sententiae appear to be given in order of seniority. 583 The Syracusans are also depicted holding a very “Roman” type of military consilium during the Second Punic War. “Praetors” and “senators” take part in a debate whether to declare war on Rome or make an alliance. Just as in the Roman consilium, the decision is announced using the formula placuit and the infinitive. 584 Livy reports that shortly after the Second Punic War, Antiochus held a consilium at Demetrias. 585 Among those present were the chiefs of the Aetolians, Amynander (king of Athamanes) and Hannibal. All present agreed that the intentions of the Thessalians should be ascertained. But there were diversae sententia as to how this should be accomplished. Hannibal was asked for his sententia nominatim. He gave a long speech that advocated an alliance with Philip. This consilium is noteworthy both for the participants (a varied group) and for the notion that opinions would be solicitated in some sort of order—a very Roman idea. The Romans did not invent the concept of the deliberative council, of course. For example, Persian kings and Hellenistic monarchs had their own group of advisors. Yet, as we shall see, these councils differed greatly from the more egalitarian Roman consilia. The Greek historian Herodotus, writing c. 450, tells us that once the Persian king Xerxes had made up his mind to attack Greece, he convened a special council composed of the cream of Persian nobility, both to learn their opinions and to deliver his decision. In the speech that Herodotus As described in section 1.3.1. Liv. 9.3.9. Other examples: Livy 24.28.8, a consilium of the Syracusans in 214; Liv. 27.20.3, a consilium at the camp of Hannibal Barca in 208; Liv. 35.17.3– 19.7, a consilium of Antiochus in 193. 583 Liv. 9.3.9. Other examples: Livy 24.28.8, a consilium of the Syracusans in 214; Liv. 27.20.3, a consilium at the camp of Hannibal Barca in 208; Liv. 35.17.3– 19.7, a consilium of Antiochus in 193. 584 Liv. 24.28.8. 585 Liv. 36.6.8, for 191. Other consilia of Antiochus are noted at Liv. 36.11.7 and 36.43.3. 581 582

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gives to Xerxes, the king loftily and expansively presents his proposed campaign. Xerxes concludes: “This is the way it must be done. But lest I seem to be one who takes counsel only with himself, I refer the matter to you and ask whoever of you wishes to present his own opinion.” Mardonius, one of Xerxes’ generals, immediately gives his approval of the plan in a speech of honeyed flattery. Herodotus tells us that all the rest of the Persians present kept silent, not daring to express an opinion opposite to the one given. But when Artabanus, the uncle of Xerxes, expressed reservations about the expedition, Xerxes flew into a rage and ordered Artabanus to remain home with the women. This anecdote shows why Livy, in a telling phrase, might describe certain of the advisors of the Macedonian king Perseus as “those who dared to give advice”! 586 Thus it may come as no surprise that the consilia of Hellenistic rulers usually receive less than flattering treatment: they are filled with timid, cowering advisors who say only what they think will please, preferring silence or flattery to constructive (but dangerous) counsel. These Hellenistic consilia, so we are told, are often held in secret, at odd hours of the night. 587 The hierarchy is quite complicated. How different (it is implied) from the Roman system, in which any citizen could openly convene his own consilium and every member could potentially give his honest opinion (albeit in order of seniority) without fear of reprisal. When King Pyrrhus of Epirus asked the Roman legate C. Fabricius Luscinus to act as advisor and general in Pyrrhus’ proposed campaign against Greece, Fabricius refused, answering (according to the account by Cassius Dio) that although he approved of Pyrrhus’ decision to end the expedition against Rome and seek peace, Pyrrhus should never choose an advisor and a general from a democracy (i.e., Rome). No further explanation was offered, or was necessary, from the Roman point of view at any rate. For how could a Roman serve on the consilium of a foreign king? There are no equals there, nor could an honorable man function as advisor 42.62.3 ausi sunt quidam… For example, the nocturnal consilia of the Carthaginian Senate over a series of evenings, described by Livy at 41.22.2 and 42.24.3. These nightly meetings included a visit by legates from Rome’s enemy Perseus, and the issuing of “top-secret orders” (occulta mandata) to those Carthaginian envoys being sent to Rome. Perseus himself reportedly held a secret consilium (occultum consilium) per multos dies at Samothrace with legates from the cities of Asia soon after (Liv. 42.25.6. for 172). Just as above, the secret consilium (and also the fact that it seems to have gone on for a long time) shows the king to have been up to no good. 586 587

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when he would be forced to compromise his honor by giving flattering advice. 588 Given the Roman antipathy towards absolute monarchy, the portrayals of Hellenistic consilia are not surprising. Appian portrays the actions of Mithridates VI of Pontus as especially ill-advised: consider these instances in 73–2 during the Third Mithridatic War: having been advised by his general Taxiles and his other officers to block the path of the Roman army through a small pass (advice which he did take), he later voluntarily relinquished the pass on the basis of bad intelligence from a turncoat. L. Licinius Lucullus, cos. 74, was able to bring a sizable army through the pass and block Mithridates. The situation could still have been salvaged if Mithridates had again followed the advice of his staff and escaped by sea; instead, he kept the siege going for several months until sheer lack of supplies forced him to sail away under cover of night towards the nearby town of Pontus. 589 During a second campaign, neither Mithridates nor his staff officers could keep their calm upon hearing reports that Lucullus was unexpectedly on his way to attack the camp. Instead of planning a retreat or any other tactic, the entire staff rushed out of the command tent and ran to secure their own baggage, instigating a panic among the soldiers that not even the king himself could quell. Only the greed of the Roman soldiers as they stopped to collect plunder allowed Mithridates to escape. 590 Several years later, ironically, the Armenian king Tigranes ignored the plan of Mithridates not to engage the Romans directly (based on his own bitter experience with Lucullus), mocking both the Pontic king’s advice and the size of the Roman force. The result was a similar defeat.

5.3 THE COMMANDER’S CONSILIUM: A PRAGMATIC COMPROMISE In summary, the institution of the commander’s consilium provided a successful compromise between two opposites: the freedom to make individual Cassius Dio 9.40.34, dated to 283. App. Mith. 75.324. After a storm arose, sinking sixty of his ships and badly damaging his own, Mithridates again disregarded the advice of his officers and boarded a small pirate vessel. Amazingly, they dropped him off unharmed at Sinope (App. Mith. 78.340). 590 App. Mith. 81.362. Note the similar incident at Mith. 99.457, where, surrounded by the Romans, the king’s advisors urged him to prepare to fight Pompey the Great, but Mithridates instead retreated into the deep woods for the night. The next day, the Romans easily defeated the king’s army, but (yet again) Mithridates escaped with his life. 588 589

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decisions which was vital to the success of a military campaign and the deep-seated abhorrence of imperious behavior so prevalent in Roman society from the expulsion of the kings onward. The ultimate expression of this compromise was that although the commander was morally obligated to avail himself of the advice of others, in the end the ultimate decision (and responsibility) was his alone. Kunkel’s insistence that the magistrate was bound to follow the decision of his consilium upsets the delicate balance of this compromise. For on the one hand, the holder of imperium must be free to exercise that power. On the other hand, the successful commander will take advantage of every resource available, including the advice of his staff officers, to guard against errors in judgment, and to ward off any appearance of capricious behavior. The great general L. Aemilius Paullus, in a speech given to him by Livy, succinctly expresses the Roman point of view: “I judge the man who carries out all affairs according to his own counsel alone, arrogant rather than wise.” 591

591 Liv. 44.22.15: …eum qui de sua unius sententia omnia gerat, superbum iudico magis quam sapientem.

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INDEX Roman names in the index are listed by nomina, followed by their RE number, cognomina, praenomina, and representative magistracies when applicable. (Dates of praetorships follow T. C. Brennan, PRR.) The following abbreviations are used: cos. = consul cos. suff. = suffect consul pr. = praetor aed. = aedile q. = quaestor leg. = legate tr. pl. = tribune of the plebs A Roman numeral indicates the subsequent holding of the same magistracy. A question mark indicates an uncertain attribution, magistracy, or date. Acilius (35) Glabrio M’. (cos. 191), 8, 16, 42, 89 aediles, 33 Aelius (101) Paetus, P. (cos. 201), 70, 78, 79 Aelius (105) Paetus, Sex. (cos. 198), 76 Aelius (152) Tubero, P. (pr. 201), 88, 89 Aelius (154) Tubero, Q. (?tr. pl. 177), 52 Aelius (84) Ligus, P. (cos. 172), 96 Aemilius (114) Paullus, L. (cos. 182, II 168), 14, 21, 22, 23, 31, 33, 37, 52, 54, 55, 58, 80, 88, 89, 91, 93, 96, 97, 127, 137 Aemilius (118) Paullus, L. (cos. 219, II 216), 11, 26, 29

Aemilius Regillus, L. (pr. 190), 30, 88 Aemilius Scaurus, M. (cos. 115), 50 Aetolia, Aetolians, 18 Afranius (6), L. (cos. 60, leg. 55-49), 28, 32 Africa (North), Roman province of, 17, 22, 69, 70, 71, 72, 126 Anicius (15) Gallus, L. (pr. 168), 64, 93, 96, 97, 105 Antiochus III (Seleucid king), 39, 41, 42, 50, 53, 58, 74, 76, 79, 83, 84, 85, 86, 87, 89, 90, 91, 92, 134 Antonius (19), C. (cos. 63), 8 Antonius (30), M. (cos. I 44), 48, 110 Appuleius (22) Decianus, C., 10 Aquillius (10), M’. (cos. 129), 102 Aquillius (11), M’. (cos. 101), 55 Ariobarzanes (Parthian legate), 33

145

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Asia, Roman province of, xi, 10, 12, 18, 46, 51, 81, 83, 84, 86, 87, 88, 89, 90, 92, 102, 103, 107, 108, 109, 113, 116, 117, 130, 135 Atilius (53) Regulus, M. (pr. 213), 15, 57 Atinius (8) Labeo, C. (tr. pl. 196), 74 Attalus III, king of Pergamum, xi, 85, 87, 101 Aurelius (179) Orestes, L. (cos. 157), 98 Aurelius (96) Cotta, C. (cos. 74), 21, 107 Aurunculeius (4), L. (pr. 190), 88 Aurunculeius (6) Cotta, L. (leg. 50s), 8, 26, 28 Baebius (25), cf. 14) Dives, L. (leg. 203, pr. 189), 57 Baebius (41) Tamphilius, Cn. (aed. 200), 78 Baebius (42) Tamphilius, Cn. (pr. 168), 96 Bellienus (5), L. (pr. ≥105), 17 Caecilius (101) Niger, Q. (q. 72), 10 Caecilius (70) Metellus, ?M. (leg. 31), 48 Caecilius (76) Metellus, M. (pr. 206), 79 Caecilius (94) Metellus Macedonicus, Q. (cos. 143), 98 Caecilius (97) Metellus Numidicus, Q. (cos. 109), 5, 17, 22, 45 Caecilius (97) Metellus Numindicus, Q. (cos. 109), 104 Caecilius (98) Metellus Pius, Q. (cos. 80), 22 Caelius (35) Rufus, M. (pr. 48), 22 Caesius (?4), L. (pr. ≥104), 55 Calidius (5), Q. (pr. 79), 51 Calpurnius (23) Bestia, L. (cos. 111), 5, 50 Calpurnius (28) Bibulus, M. (cos. 58, pro cos. 51-50), 60

Calpurnius (90) Piso Caesoninus, L. (cos. 58), 18 Calpurnius (96) Piso Frugi, L. (cos. 133), 33 Calpurnius (cf. 8) Piso, C. (pr. 211), 44 Capua, 44, 57 Carthage, 2, 47, 48, 64, 68, 70, 99, 100 Carvilius (9) Maximus, Sp. (cos. 293), 29 Cassius (10), C. (pr ≥90), 55 Cassius (70) Longinus, Q. (tr. pl. 49, pro cos. 49-47), 9, 28 Catius (3), Q. (aed. 210, leg. 207), 36 Catullus. See Valerius Catullus, C. Caudine Forks, 8, 59, 61, 64 censors, censorship, 20 centurions, 4, 12 Cervius (1), P. (leg. 73-72), 128 Cicereius (1), C. (pr. 173), 96 Cimbri, Germanic tribe, 104 Cincius (5) Alimentus, L. (pr. 210), 20 Claudius (220) Marcellus, M. (cos. 222, II 215, III 214), 4, 41, 57 Claudius (222) Marcellus, M. (cos. 196), 74 Claudius (232) Marcellus Aeserninus (q. 48), 9 Claudius (245) Nero, Ap. (pr. 195), 12, 88 Claudius (246) Nero, C. (cos. 207), 36 Claudius (247) Nero, C. (pr. ?81), 46, 117, 118, 119, 121 Claudius (293) Pulcher, Ap. (cos. 212), 4, 7, 15, 29, 44, 57 Claudius (297) Pulcher, Ap. (cos. 54), 109 Claudius (300) Pulcher, C. (cos. 177), 16, 93, 95 Claudius (304) Pulcher, P. (cos. 249), 7

INDEX Cluvius (1,14) Saxula, C. (pr. 173), 52 cohors amicorum (“troop of friends”), 14, 17, 18, 22, 115, 125 Cohors amicorum (“troop of friends”), 17 comites (companions), 17, 18, 118, 126, 128 consilium, xi, xii, xiii, xiv, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66,
68, 69, 72, 73, 82, 83, 84, 85, 86, 87, 90, 91, 92, 95, 96, 97, 99, 100, 101, 104, 105, 106, 109, 110, 111, 113, 114, 115, 117, 118, 119, 120, 121, 122, 123, 124, 125, 127, 128, 129, 130, 133, 134, 135, 136 ceremonial, 2, 17, 25, 31, 33, 34, 46, 53, 56, 84, 95 deliberative, xii, xiii, 2, 25, 27, 33, 43, 51, 56, 134 consuls, consulship, 2, 14, 15, 18, 21, 22, 32, 35, 36, 37, 38, 39, 43, 50, 63, 64, 66, 68, 71, 73, 74, 77, 78, 79, 85, 88, 90, 93, 94, 95, 96, 97, 98, 99, 104 conventus, provincial, 97, 115, 123, 129 Cornelius (135) Dolabella, Cn. (pr. 81), 12, 118, 120, 121, 122 Cornelius (176) Lentelus, Cn. (cos. 201), 76 Cornelius (176) Lentulus, Cn. (cos. 201), 70, 71, 73, 74, 79, 86 Cornelius (186) Lentulus, L. (cos. 327, leg. 321), 30, 60 Cornelius (188) Lentulus, L. (cos. 199), 79 Cornelius (2, 388) (Sulla), Ser. (pr. 175), 93

147 Cornelius (202) Lentulus, P. (pr. 165, cos. suff. 162), 16 Cornelius (214) Lentulus Caudinus, P. (pr. 203), 75, 77, 79, 88, 89 Cornelius (265) Merenda, Cn. (pr. 194), 88 Cornelius (268?) Merula, Cn. (?decemvir 189), 88 Cornelius (330) Scipio, P. (cos. 218), 7, 29, 34, 35 Cornelius (335) Scipio Aemilianus Africanus, P. (cos. 147, III 134), 17, 18, 21, 22, 99, 100 Cornelius (336) Scipio Africanus, P. (cos. 205, II 194), 4, 6, 7, 17, 21, 41, 42, 47, 50, 51, 53, 54, 57, 65, 69, 70, 71, 72, 73, 77, 82, 89, 92, 126 Cornelius (337) Scipio Asiaticus, L. (cos. 190), 6, 70, 87, 89, 91, 92 Cornelius (338) Scipio Asiaticus, L. (cos. 83), 32 Cornelius (345) Scipio Calvus, Cn. (cos. 222), 29, 34, 35 Cornelius (350) Scipio Nasica, P. (cos. 191), 92 Cornelius (353) Scipio Nasica Corculum, P. (aed. 169, cos. 162, II 155), 37, 52 Cornelius (354) Scipio Nasica Serapio, P. (cos. 138), 102 Cornelius (392) Sulla (Felix), L. (cos. 88, II 80), 23, 33, 55, 62, 103, 104, 105, 106, 109, 112, 133 Cornelius (74) Blaesio, Cn. (pr. 194), 76, 77 Cornelius (lictor of C. Verres), 118 cursus honorum, 8 Dasius Altinius of Arpi, 43 decem legati, 2, 31, 57, 66, 67, 68, 69, 73, 75, 79, 81, 82, 84, 85, 86, 90, 91, 92, 95, 99, 100, 101, 103, 105, 106, 107, 108, 109, 110, 111, 112, 113

148

THE MILITARY CONSILIUM IN REPUBLICAN ROME

Decius (15) Mus, P. (cos. 340), 28 Decius (16) Mus, P. (cos. 312, IV 295), 36 deditio, 55, 56 dictator, dictatorship, 48 Didius (5), T. (cos. 98), 103 Domitius (19) Ahenobarbus, Cn. (pr. 170?, cos. suff. 162), 93, 95 Domitius (27) Ahenobarbus, L. (cos. 54), 9, 23, 40 Ennius (3), Q. (Roman poet), 18 Fabius (103) Maximus, Q. (cos. 213), 43 Fabius (109) Maximus Aemilianus, Q. (pr. 149, cos. 145), 22, 37, 38, 52 Fabius (112) Maximus Gurges, Q. (cos. 292), 13 Fabius (114) Maximus Rullianus, Q. (cos. 322, V 295), 13 Fabius (116) Maximus Verrucosus, Q. (cos. 233, V 209), 43 Fabius (21), L. (leg. 203), 57 Fabius (91) Labeo, Q. (cos. 183, ?leg. 167), 93, 96 Fabricius (9) Luscinus, C. (cos. 282), 135 Flaminius (2), C. (cos. 223, II 217), 39, 127 Flavius (15), Cn. (aed. 304), 33 foedus (treaty), 64, 114 Fufius (10) Calenus, Q. (cos. 47), 110 Fulvius (52) Flaccus, C. (leg. 211), 57 Fulvius (59) Flaccus, Q. (cos. 237, III 212, V 209), 11, 44, 57 Fulvius (59) Flaccus, Q. (cos. 237, V 209), 15 Fulvius (60) Flaccus, Q. (pr. 182, cos. suff. 180), 78 Fulvius (91) Nobilior, M. (cos. 189), 18 Furius (86) Purpurio, L. (cos. 196), 58, 88, 89, 91, 92 Gallia. See Gaul

Gaul, Cisalpine and Transalpine, Roman provinces, 15, 18, 24, 36, 40, 69, 93, 107, 109, 110 Gauls (people), 100 Gellius (17), L. (cos. 72), xii Hannibal (Carthaginian general), 3, 26, 36, 43, 44, 70, 134 Hannibal, Carthaginian general, 20, 47, 69, 134 Hispaniae, Roman provinces of, 7, 8, 11, 34, 35, 47, 50, 55, 56, 69, 77, 78, 88, 103, 107 Hostilius (16) Mancinus, A. (cos. 170), 35 Illyricum (Illyria), 64, 92, 94, 95, 97 imperium, xiii, 6, 7, 9, 19, 20, 21, 28, 34, 42, 71, 76, 77, 80, 82, 101, 102, 104, 108, 109, 114, 115, 116, 137 Iulius (131) Caesar, C. (pr. 62, cos. 59, V 44), 5, 6, 14, 15, 19, 23, 28, 32, 62, 109, 112 Iunius (19) (Brutus?), L. (decemvir 167), 93 Iunius (48) Brutus, M. (pr. 191, cos. 178), 88, 94 Iunius (53) Brutus, M. (pr. 44), 18 Jugurtha, Numidian ruler, 5, 17, 18, 45, 50, 65 Labienus (6), T. (pr. ≥59), 6, 28, 48 Laelius (2), C. (cos. 190), 6 legati, 4, 6, 12, 13, 15, 16, 20, 24, 36, 37, 43, 48, 50, 52, 57, 60, 91, 108, 110, 111, 112, 118, 126, 128, 135 Licinius (104) Lucullus, L. (cos. 74), 18, 65, 107, 108, 109, 112, 136 Licinius (120) Murena, L. (?pr. 147), 98 Licinius (122) Murena, L. (pr. ≥87), 51 Licinius (154) Sacerdos, C. (pr. 75), 122, 123, 124, 125 Licinius (51) Crassus, C. (cos. 168), 93

INDEX Licinius (60) Crassus, P. (cos. 171), 11, 15, 53 Licinius (68) Crassus Dives, M. (cos. 70, II 55), 18, 24, 58 Licinius (72) Crassus Dives Mucianus, P. (cos. 131), 102 Livius (29) Salinator, C. (pr. 202, II 191 cos. 188), 30, 41 Livius (33) Salinator, M. (cos. 219, II 207), 36 Lusius (1), C. (tr. mil. 104), 46 Lutatius (13) Cerco, Q. (cos. 241), 68 Lutatius (4) Catulus, C. (cos. 242), 66 Macedonia, Roman province of, 2, 14, 18, 31, 36, 37, 38, 39, 73, 75, 76, 77, 78, 81, 88, 93, 95, 97, 127 Macedonian War Second, 38 Macedonian Wars First, 77 Second, 38 Third, 22, 33, 37, 38, 52, 53, 54 Manilius (12), M’. (cos. 149), 21 Manilius (13), P. (leg. 167), 97 Manlius (57) Torquatus, T. (cos. 347, III 340), 28 Manlius (91) Vulso, Cn. (cos. 189), 58, 80, 87, 89, 90, 91, 92, 95, 105, 108 Manlius (93) Vulso, L. (pr. 197, leg. 188), 90 Marcius (61) Figulus, C. (pr. 169, cos. 162, II 156), 35 Marcius (79) Philippus, Q. (cos. 186, II 169), 35, 38, 93 Marcius (86) Ralla, M. (pr. 204), 70, 74 Marius (14, Supb. 6), C. (cos. 107, VII 86), 17, 20, 21, 22, 46, 104 Marius (22), M. (pr. >99), 103 Memmius (3 = 5), C. (tr. pl. 104, pr. ≥102), 51 Memmius (8), C. (pr. 58), 18

149 military tribunes, 4, 7, 10, 15, 16, 19, 20, 24, 35, 37, 48, 59, 60, 67, 115, 119 Minucius (22, 55) Rufus, Q. (cos. 197), 15, 57, 88, 89 Minucius (65) Thermus, Q. (cos. 193), 88, 90, 91, 92 Minucius (67) Thermus, Q. (pro pr. Asia 52-50), 9 Minucius, Q, defensor of Sopater, 124 Mithridates, king of Pontus, 32, 51, 55, 104, 105, 107, 136 Mucius (20) Scaevola, Q. (cos. 174), 15, 16 Mucius (22) Scaevola, Q. (cos. 95), 116 Mummius (13), Sp. (leg. 146), 107, 108 Mummius (7a), L. (cos. 146), 98, 99, 100, 107 Numisius (10) Tarquiniensis, T. (decemvir 167), 93, 94 Numisius (2) (Tarquiniensis?), C. (pr. 177), 94 Octavius (16), Cn (pr. 205), 73 Octavius (17), Cn. (pr. 168, cos. 165), 37, 52 Octavius (26), L. (cos. 75), 107 Octavius (5) (leg. 53), 58 Opimius (4), L. (pr. 125, cos. 121), 45 Orobazus (Parthian legate), 33 Papirius (38) Carbo, Cn. (cos. 85), 8 Papirius (52) Cursor, L. (cos. 326, V 313), 28, 29, 48 Papirius (53) Cursor, L. (cos. 293), 29 Perperna (4), M. (cos. 130), 102 Perseus (Macedonian king), 11, 23, 33, 37, 39, 52, 54, 55, 93, 95, 135 Petreius (3), M. (pr. ≥64), 28, 32 Petronius (84) (mil. tr. 53), 59

150

THE MILITARY CONSILIUM IN REPUBLICAN ROME

Philip V (Macedonian king), 1, 38, 67, 73, 75, 76, 77, 78, 80, 81, 83, 85, 87, 134 Philodamus of Lampsachus, 12, 46, 117, 118, 120, 121, 122 Pleminius (2), Q. (pro. pr. 205), 6, 126 Plutarch, 5, 18, 22, 23, 37, 38, 45, 46, 47, 65, 75, 76, 83, 93, 99, 107, 108 Pompeius (12), Q. (cos. 141), 11, 12, 50 Pompeius (31) Magnus, Cn. (cos. 70, III 52), 6, 14, 21, 22, 40, 107, 108, 109, 112, 136 Pompeius (42) Rufus, Q. (pr. 63), 22 Pompeius (45) Strabo, Cn. (cos. 89), 14, 22, 23 Pomponius (19) Matho, M. (pr. 204), 126 Pomptinus (1), C. (pr. 63), 24 Porcius (22) Licinius, L. (pr. 207), 36 Porcius (9) Cato, M. (pr. 198, cos. 195, cens. 184), 16, 20 Postumius (*17) Albinus, Sp. (cos. 321), 15, 59, 60 Postumius (31) Albinus, A. (pr. 155, cos. 151), 98 Postumius (41) Albinus, L. (cos. 173), 52 Postumius (46) Luscus, A. (cos. 180), 93 praetorium (headquarters tent), 11, 17, 23, 25, 26, 32, 33, 43, 49, 53 praetors, praetorship, 7, 9, 10, 14, 17, 20, 23, 30, 35, 36, 44, 51, 52, 63, 78, 82, 88, 91, 94, 97, 100, 103, 126, 128, 129, 130 province (provincia), xi, 12, 15, 17, 20, 34, 35, 38, 64, 70, 71, 75, 77, 97, 98, 99, 101, 102, 103, 104, 105, 107, 108, 110, 113, 114, 117, 118, 119, 126, 130 Punic Wars First, 7, 65, 68

Second, 4, 12, 15, 16, 41, 57, 67, 68, 69, 134 Second, 6 Second, 8 Second, 34 Second, 47 Second, 57 Second, 134 Third, 32 Pyrrhus (king of Epirus), 135 quaestio, 117, 119, 121 quaestors, quaestorship, 8, 9, 10, 52, 60, 91, 115, 119, 128 Quinctilius (17) Varus, Sex. (q. 49), 9 Quinctius (45) Flamininus, T. (cos. 198), 7, 14, 28, 30, 38, 62, 65, 66, 67, 73, 75, 78, 85, 87, 89, 99 Rubrius (3), companion of C. Verres, 118 Rupilius (5), P. (cos. 132), 101, 128, 129 Sardinia (and Corsica), Roman province of, 73, 77 Scribonius (11) Curio, C. (tr. pl. 50), 28 Sempronius (91) Tuditanus, C. (leg. 146), 98, 108 Senate, xi, 1, 2, 11, 13, 14, 15, 16, 24, 26, 27, 28, 30, 33, 41, 44, 49, 50, 51, 53, 56, 57, 61, 63, 64, 65, 66, 67, 69, 70, 71, 72, 73, 74, 75, 76, 77, 81, 82, 84, 85, 86, 87, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 101, 103, 104, 105, 106, 107, 108, 109, 110,
111, 112, 115, 117, 129, 130, 133, 135 senatus consultum (decree of the Senate), xi, 1, 65, 75, 80, 81, 82, 85, 94, 99 Sergius (11), L. (leg. 203), 57 Sertorius (3), Q. (pr. >83), 60, 107 Servilius (45) Caepio, Cn. (cos. 169), 14

INDEX Servilius (61) Geminus, Cn. (cos. 217), 39 Sestius (6), P. (qu. 63), 8 Sicily, Roman province of, 3, 7, 10, 20, 34, 65, 68, 73, 78, 101, 118, 122, 128 Social War, 104 Spain, Farther. See Hispaniae, Roman provinces of Spain, Nearer. See Hispaniae, Roman provinces of Spartacus, 24 Stertinius (5), L. (leg. 196), 75, 76, 77 Sulpicius (50) Galba, C. (pr. 171), 14 Sulpicius (64) Galba Maximus, P. (cos. 211, II 200), 2, 14, 38, 75, 77, 78, 79, 86, 89 Sulpicius (66) Galus, C. (pr. 169), 52 Sulpicius (92) Rufus, P. (tr. pl. 88), 104 Sulpicius (95) Rufus, Ser. (cos. 51), 110 Tarquinius (7) Superbus, L. (Roman king), 2 Terentius (58) Massaliota, L. (aed. 200), 75, 76, 78, 79 Terentius (75) Tuscivicanus, P. (leg. 167), 96 Terentius (80) Varro, A. (pr. 184), 93 Terentius (81) Varro, A. (leg. 146), 98 Terentius (83) Varro, C. (cos. 216), 11, 26, 29 Teutones, Germanic tribe, 104 Titurius (3) Sabinus, Q. (leg. 50s), 8, 26, 28 tribunal, 4, 25, 31, 32, 34, 44, 46, 48, 49, 53, 95, 97, 127

151 tribuni plebis, 15, 51, 104, 109 triumph, 24, 52, 58, 88, 89, 91, 92, 96, 103, 108 Tullius (29) Cicero, M. (cos. 63), 1, 5, 10, 12, 13, 17, 20, 22, 23, 24, 45, 58, 60, 62, 68, 91, 98, 99, 100, 101, 107, 108, 110, 111, 113, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 Tullius (31) Cicero, Q. (pr. 62), 23, 113, 130 Turpilius (10) Silanus, T. (praef. fabrum 109), 45 Valerius (1) Catullus, C. (Roman poet), 18 Valerius (173) Flaccus, L. (cos. 195), 16 Valerius (178) Flaccus, L. (cos. suff. 86), 21, 55 Valerius (179) Flaccus, L. (pr. 63), 10, 24 Valerius (366) Triarius, C. (pr. ≥74), 108 Verres (1) C. (pr. 74), 3, 10, 12, 58, 101, 113, 114, 117, 118, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 Vettius (11), T. (q. 71), 8, 128 Veturius (20) Philo, L. (cos. 206), 57, 70 Veturius (8) Calvinus, T. (cos. 334, II 321), 15, 59 Villius (10) Tappulus, P. (cos. 199), 14, 38, 75, 76, 77, 78, 79, 86 Xerxes (Persian king), 134