Hearsay, History, and Heresy: Collected Essays on the Roman Republic by Richard E. Mitchell 9781463216573

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Hearsay, History, and Heresy

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.

Hearsay, History, and Heresy

Collected Essays on the Roman Republic by Richard E. Mitchell

Edited with an Introduction by

Randall Howarth

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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

‫ܘ‬

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ISBN 978-1-59333-642-4 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

For my son Howard Whose Promotion Preceded Publication

TABLE OF CONTENTS ABBREVIATIONS “The ASSUMPTION IS...” An Introduction by Randall S. Howarth

vii 1

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS

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ROMAN-CARTHAGINIAN TREATIES: 306 AND 279/8 B.C.

47

HOARD EVIDENCE AND EARLY ROMAN COINAGE

79

THE ARISTOCRACY OF THE ROMAN REPUBLIC

101

HISTORICAL DEVELOPMENT IN LIVY

147

ROMAN HISTORY, ROMAN LAW, AND ROMAN PRIESTS: THE COMMON GROUND

173

THE HISTORICAL AND HISTORIOGRAPHICAL PROMINENCE OF THE PYRRHIC WAR

197

THE “STRUGGLE OF THE ORDERS” IS A FICTION

223

DEMANDS FOR LAND REDISTRIBUTION AND DEBT REDUCTION IN THE ROMAN REPUBLIC

263

AGER PUBLICUS: PUBLIC PROPERTY AND PRIVATE WEALTH DURING THE ROMAN REPUBLIC

285

WHAT EXACTLY IS “TRADITION” IN THE CONTEXT OF ROMAN REPUBLICAN HISTORY?

319

THE ROLE OF MARITIME COLONIES IN ROMAN EXPANSION

333

WORKS CITED

345

INDEX

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ABBREVIATIONS AC AIIN AJP ANRW: BAGB BEFAR CA CAH CJ CPh CQ CR EHR ERC ERE FC FIRA FGrH GRBS HL HRR HSCP

Palmer, R.E.A.,The Archaic Community of the Romans (Cambridge, 1970). Atti e Memorie dell’Istituto di Numismatica American Journal of Philology Aufstieg und niedergang der römischen Welt., H. Temporini and W. Haase, eds. (Berlin, 1972-) Bulletin de l’association G. Budé Bibliotèque des ‘Écoles Françaises d’Athènes et de Rome California Studies in Classical Antiquity Cambridge Ancient History, Ed. F. W. Walbank, A. E. Astin, M. W. Frederiksen, and R. M. Ogilvie. (Cambridge) Classical Journal Classical Philology Classical Quarterly Classical Review English History Review Thomsen, R., Early Roman Coinage, 3 vols. (Copenhagen, 1957-61). Duncan-Jones, R., The Economy of the Roman Empire: Quantitative Studies (Cambridge, 1974). Badian, E., Foreign Clientelae: 264-70 B.C. (Oxford, 1958). Riccobono, S. et al., Fontes iuris Romani anteiustiniani. 3 vols. 2d ed. (Florence, 1968). Die Fragmente der griescishen Historiker, Jacoby, F., ed. (Berlin and Leiden, 1923-58) Greek, Romans, and Byzantine Studies Toynbee, A. J., Hannibal’s Legacy (Oxford, 1965). Peter, H., Historicorum Romanorum Reliquiae. (Lipsiae, 1914). Harvard Studies in Classical Philology

IM JHS JRS LAPM LPPR MBPAR MRR NC ORR PBSR PMAAR RA RhM RR SDHI SSAR TAPA VA VD ZRG

Brunt, P. Italian Manpower 225 B.C.-A.D. 14 (Oxford, 1971). Journal of Hellenic Studies Journal of Roman Studies Frier, B., Libri Annales Pontificium Maximorum: the Origins of the Annalistic Tradition (PMAAR 27, Rome, 1979). Rotondi, G., Leges Publicae Populi Romani (Milano 1912). Münchener Beitrage zur Papyrusforschung und antiken Rechtgeschichte Broughton, T. R. S., (The Magistrates of the Roman Republic, I-II (New York: APA, 1951); and supplement (1960). Numismatic Chronicle Les origines de la république romaine: Entretiens sur l’antiquité classique, 13, Fondation Hardt (Geneva, 1967). Papers of the British School in Rome Papers and Monographs of the American Academy in Rome Botsford, G. W., The Roman Assemblies from Their Origin to the End of the Republic (New York, 1909). Rheinisches Museum für Philologie Palmer, REA Roman Religion and Roman Empire: Five Essays (Philadelphia, 1974). Studia et documenta historiae et iuris Raaflaub, K. A. ed., Social Struggles in Archaic Rome: New Perspectives on the Conflict of the Orders. (Berkeley, 1986 and 2nd edition in 2005) Transactions of the American Philological Society Taylor, L.R., Roman Voting Assemblies (Ann Arbor, Mich., 1966). Taylor, L. R., The Voting Districts of the Roman Republic, PMAAR 20 (Rome, 1960). Zeitschrift der Savigny-Stilftung für Rechtgeschichte. Römanistis

“The ASSUMPTION IS...”* Professor Richard E. Mitchell has spent 50 years studying the genesis of Roman institutions and the emergence of Roman power in the early Republic. Early on, two things gelled in Mitchell’s mind: first, that the most critical period for these topics was the fourth century BCE and, second, that much of modern consensus for that period depends upon assumptions that do not stand up well to critical analysis. That the latter should be so is not so surprising. For entirely practical reasons−the virtual lack of contemporary sources−scholars fall back upon an outline of events presented to us by much later Roman historians. We credit the outline as a useful framework because, presumably, later Romans were in a position to know what they were talking about. The rules of our engagement are thus implied; the particulars in the narrative are fair game for dispute, but not at the expense of its overall narrative structure. The result, Mitchell would argue, is that a matrix of questionable assumptions−some ancient, some modern−has come to form a kind of permanent foundation for scholarship on early Rome even as a growing body of work exists to challenge these assumptions. It would appear that what Mitchell and other critics would term a deeply flawed explanatory model has become so engrained in the literature that it is too big to fail and, implicitly, too big to challenge.1 *With these words opened the first Mitchell lecture that I heard as an eager graduate student in Champaign, IL.   1 The Cambridge Ancient History is a good place to get scholarly   bearings when approaching a new topic in ancient history. In the case of

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Toward what assumptions has Mitchell demonstrated suspicion? That Rome had no use for silver coins until Pyrrhus nor ships until the First Punic war. That Rome’s earliest treaties were essentially defensive in nature, and, as for Rome’s plans for expansion in the late fourth century, well, there were no such plans. That the alienation of Rome and Carthage preceded Pyrrhus’s arrival in Italy. That Rome−in relation to her neighbors−was essentially backward and reactive until forced by circumstances to be otherwise. That all important Roman political institutions and procedures were forged in a episodic competition between an hereditary elite and a grand unwashed urban proletariat, i.e., in a “struggle of the orders.” That the insurgent leaders of the latter were tribunes. That it took until the first decades of the third century for the people’s assembly to win a legitimate legislative competence. Finally, that the Lex Hortensia of 287 was the specific event that ended this competition. Although a number of scholars have made significant attacks on these assumptions as individual propositions, modern treatments that attempt synoptic analysis nevertheless persist in depending fundamentally on some combination of them and imply a sense of consensus which is not justified.2 early Rome, it can also be an indication of the inherent conservatism of the field. With respect to the newest CAH treatment of early Rome, Richard Saller wrote that “[t]he reader who follows up the cross references [in the footnotes] may come away with a sense of disappointment that we are no closer to resolution of many of the most basic and central of issues of early Roman History than in the first edition...[In addition,] while lay readers [of the CAH] may be puzzled by the lack of consensus, the absence of any truly radical reinterpretations may also leave them not fully aware of how fragile the early Roman narrative is.” R. Saller, “Progress in early Roman Historiography,” JRS 81 (1991): p. 157. A similar complaint was made by Charles Martindale [in his review of T.P. Wiseman (ed.), Classics in Progress (Oxford, 2002)]: “And where is the new generation of those who will challenge the intellectual complacency of their elders?” JRS 94 (2004): p. 192. 2 Gary Forsythe, author of a number of publications dealing with early Rome and early Roman sources, expressed a polite frustration with scholarly resistance to challenges to the communis opinio specifically with respect to the struggle [in his review of T.J. Cornell, The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000-264 B.C.) (London: Routledge, 1995) in Bryn Mawr Classical Review: 97.3.26]: “The

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Mitchell argues that the weaknesses of these original assumptions are easily demonstrated. In fact, he shows that in many cases, they have already been demonstrated. One of the consistent strengths of Mitchell’s work is the lengths to which he goes to credit critiques others have already made. Unfortunately, these previous efforts have been effectively compartmentalized by infrequent acknowledgement to the effect that their collective import is not realized, especially by those new to the subject. From this flows my contention that, whether or not scholars agree with all of Mitchell’s conclusions, his reading of the underlying historiographical problems and of the ways in which the evidence has been received by modern scholars will be extremely useful for anyone interested in studying the early Republic. Although, with two exceptions, the articles printed herein have been published previously, their presentation here as a collection reveals organic connections between the various parts of his work that are not as obvious in isolation and implicitly suggests possibilities for continued work. By all accounts the record we have inherited from the Romans is a flawed tapestry of historical events sewn through and through with binding threads of myth and polemic. No competent scholar of early Rome believes all the evidence can or should be taken at face value. The corpus of even remotely contemporaneous texts survives mostly as excerpts divorced from their original contexts and repeated by later, and perhaps lesser, writers and for editorial purposes almost certainly unintended by their original authors. Many of these bits−traditionally termed “fragments”−lack sufficient length and detail for us to fully appreciate their original significance, never mind their probative value. The most coherent narrative surviving from the Romans about their own past is derived from the parallel texts of Livy and Dionysius. That these two texts agree in so many ways inspires some confidence, but Mitchell would argue that their coherence is illusory, that it proves only that two writers consulted the same tradition and not that the tradition they consulted was reliable. In any case the best historical evidence is both hundreds of years and several hands removed from the subject at hand. And of course, the reception of the mere fact that according to the modern orthodox interpretation the struggle of the orders was otherwise unparalleled in the ancient world should...arouse grave doubts as to its historical validity.”

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evidence has its own convoluted history. Nowadays the ancient Greek and Roman world is largely the domain of classics departments, especially with history departments tending now to manage new hires to maximize geographic coverage as opposed to chronological. This suits scholars of modern and early-modern history who tend to regard ancient history as, if not actually ahistorical, at least as a kind of a prehistoric history. The term ‘classics’ is of course connotative of a privileged category of literature and certainly Greek and Roman sources enjoy a special status among the ur texts of Western Civilization. This is to some extent a legacy of the Renaissance, when the rediscovery and examination of lost Greek and Roman texts provided an alternative perspective for those tired of the intellectual passivity of the Middle Ages. But the intellectual habits of that period were slow in changing: the scholastics used Aristotle’s logic to prove what was already assumed; Cola di Rienzo recited rote passages from Valerius Maximus in preparation for his brief but colorful ‘restoration’ of the Roman Republic in 1347; and Macchiavelli used the careers of David, Epaminondas, and Pyrrhus to suggest form in the chaos of Italian realpolitik. It was all a kind of antiquarianism that found its authority in the form of wisdom as opposed to its substance. But even while Macchiavelli cited exempla and counseled imitation or avoidance—much as did Livy, at least implicitly—his friend Guicciardini privately ridiculed those who thought Florence could productively emulate ancient Rome, and in so doing he pointed down a path that led to modern historical thinking. Progress in this direction came in parallel with the scientific revolution which, perhaps with some degree of irony, began in the heavens and was not contained there. The heady progress of science in the physical and natural world led inevitably to the proposition that human social behavior, properly systematized, could also be understood as a science. The collapse of papal dominance and the awful excesses of the religious wars reinforced a growing conviction that the institutions associated with Christianity were responsible for the demise of reason. Did not Edward Gibbon—at least implicily—blame Christianity for the fall of Rome? Editorially speaking, it was a grand turnabout: first Rome, fatally corrupted by secular humanism, was the foil for the redeeming power of Christ, then Christ became the foil for the

“THE ASSUMPTION IS...”

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interruption of reason and the grand political experiment of Greek and Roman antiquity. We see that John Locke, Thomas Gordon, and eventually John Adams and Thomas Jefferson, all returned to the ancient Greek and Roman writers as essential sources of political history whose careful study was essential to the creation of a modern political theory. But what is important for our discussion here is that neither the Renaissance thinkers nor their Enlightment heirs seriously considered whether what survived in the text might not be historical, that Polybius might not know what he was talking about, that Sallust had an axe to grind, that for all of Cicero’s supposed political acumen he was a shockingly poor judge of character. That’s not what the text says. History as an idea apart from history as inspirational literature or history as source material for political philosophers finally emerged at the end of the eighteenth century. German intellectuals struggled to articulate a unique cultural identity while at the same time asserting cultural continuity with the ancient world. The modern historian routinely believes, as did Johann Herder in the late eighteenth century and G.W.F. Hegel in the early nineteenth, that historical moments are uniquely conditioned by their context. In other words, history does not really repeat itself, and people in the past were like us only superficially. Theories of time and historical change inevitably followed and all came with the same kind of teleological underpinnings as did Charles Darwin’s theories of biological evolution. Some historians, inspired by these intellectual currents, led their schismatic followers into the desert of ahistorical theory where historians—especially those of the distant past—were contemptuously dismissed as “blind compilers of sterile anecdotes.”3 A more positive result of the rise of social theory as a scientific discipline is the appreciation that historical memory is frequently articulated as a form of political rhetoric. By way of recent example, we can see that the Italian recollection of their collective experience in World War Two is very much a prisoner of political imperatives. In 2005, Prime Minister Silvio Berlusconi instituted a national day of remembrance for the 10,000 or so Italians executed by Yugoslav partisans in the closing days of the war. Better in this instance to be victims than perpetrators. And A. Comte, Cours de Philosophie positive, Vol. 5 (Paris, 1864): lecture 52, quoted by P. Burke, History and Social Theory (Ithaca, 1992): p. 9. 3

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for Italians it is definitely better to be victims of communists than of fascists.4 In effect, while the events that make up the past have an effect on and lead to the present, historical writing reverses the process: the present is brought to bear upon and affects the past, or at least our understanding of it. Although anachronism is a Greek word, it is a concept uniquely conditioned by the habits of modern historical thinking and in its modern connotation essentially meaningless to the ancients, who, for their own part, saw change as decay, or repetitions of predictably cyclical patterns. It was perfectly legitimate under these assumptions for the Romans to use their present as a template for their past, especially since they regarded the relationship of past and present as an indication of a future unfolding. The ancient Roman narrative we have inherited is therefore not so much evidence of the past on which it purports to elaborate as it is an interpretation of that past. The salient point for us in this context is that an honest evaluation of the historical rhetoric we inherit from the Romans demands that we regard it first and foremost as an artifact of the moment in which it was created. This imperative and the discipline inspired by it has significant ramifications for the study of early Roman history because that subject depends first and foremost upon the deconstruction of ancient historical rhetoric. All the important influences in Mitchell’s training and career encouraged him to approach the ancient narrative for Rome with these principles in mind. Mitchell took his master’s degree in history at the University of Michigan, where the ancient historians Finley Hooper and Paul Alexander figured prominently as early influences. At this point in Mitchell’s development, the ancient world was a minor focus−nineteenth century Europe was his primary interest−but Hooper’s delight in exploring difficult historiographical problems and Alexander’s mastery of detail influenced Mitchell to study ancient Rome. After his time at Michigan, Mitchell went to the University of Cincinnati in what was coincidentally the first year Cincinnati began accepting Ph.D. candidates in history. As it turned out, the Cincinnati classics department already had a well established Ph.D. program and 4     From the conclusion of P. Morgan’s The Fall of Mussolini (Oxford, 2007), especially p. 231.  

“THE ASSUMPTION IS...”

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Mitchell’s progress was supervised, for practical purposes, under the dual auspices of the history and classics departments. Professor Donald Bradeen, Mitchell’s advisor at Cincinnati, taught him to bring multiple categories of evidence−coins, archaeology, comparative studies−to bear on difficult historical problems as a way to bring new insights to old problems. Bradeen’s rigorous ‘problems’ approach to understanding and teaching history shaped the way Mitchell would eventually teach his own students, myself included. After his exams, Mitchell applied for and won an American Numismatic Society fellowship. This turned out to be both fortuitous and portentous. The pre-eminent numismatists Ted Buttrey and Rudi Thomsen were both in attendance. Thomsen had just finished the last of his three volume Early Roman Coinage (Copenhagen, 1957−61). The Morgantina excavations in Sicily had only recently yielded new evidence for the introduction of the Roman denarius, and the seminar atmosphere in New York was electric with debate over the archaeology, the numismatic evidence, and the ancient sources for early Roman coinage. Bradeen’s training provided the ideal preparation for the kind of scholarly environment in which Mitchell now found himself. Mitchell was drawn into the controversy over chronology, and by the end of the seminar he developed a thesis arguing for an earlier timeline than had only recently been published by Rudi Thomsen. Thomsen was of course present to hear his views challenged. Mitchell’s work that summer won him the Moritz Wormser Prize for best seminar paper and, indirectly, a dissertation fellowship from the ANS. It also established Mitchell’s reputation as a scholar unafraid of controversy.5 Mitchell’s movement of the introduction of Roman coinage to the fourth century allowed him−and others−to interpret their introduction in the context of Rome’s extension of dominion in the south of Italy before the arrival of Pyrrhus and undermined arguments others had made about the relationship of Rome and

5 The first article in the collection presented below, “The Fourth Century Origins of Roman Coins,” is the culmination of the arguments first made at the ANS. The conclusions of that article, at first resisted, have now been adopted by most in the field.

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Carthage in the same context.6 Using early coins as evidence not only helped Mitchell move beyond the limitations of a questionable literary tradition but it also gave him a glimpse of a different narrative of Roman ambition than was usually accepted for late fourth century Rome. This led him inevitably to re-examine the way modern scholarship imagined the working dynamics of the engine of Roman ambition, the Roman Senate. This led in the short term to his 1973 article, “The Aristocracy of the Roman Republic.” The article attracted little attention among ancient historians at the time because it was published in a volume not dedicated to the ancient world, but it had a significant impact among american historians. At both the 1975 and 1988 meetings of the American Historical Association, the noted Jacksonian America scholar Edward Pessen called for a reassessment of nineteenth century social mobility based on the principles of what he termed the “Mitchell Thesis.”7 In his 1975 book, Three Centuries of Social Mobility in America, Pessen elaborated: “Mitchell brilliantly depicts the role of the small aristocracy that ruled society in actually abetting the upward movement of novi homines into the new (lesser) magistracies that had to be created in the wake of Rome’s expansion....”8 Stanford Elwitt also went to the crux of the matter in a review of the volume in which Mitchell’s article appeared: “Mitchell demonstrates [that t]he ability of the senatorial order to maintain its hegemony depended upon its willingness to accommodate new members in its ranks−thus providing for a modest measure of mobility within a closed system.”9 Mitchell’s study of these fundamentals of senatorial patronage convinced him that standard interpretations surrounding the “struggle of the orders” made little sense and implicitly set the stage for the next phase of his work. Over the next ten years Mitchell produced a series of papers and articles sharpening the 6 See “Roman-Carthaginian Treaties” below. Although this contribution to Historia was submitted in 1968, it was not published until 1971. 7   Pessen’s coinage of the term “Mitchell Thesis” was in the   context of the paper he delivered at the AHA in 1975.   8 Edward Pessen, Three Centuries of Social Mobility in America (Heath, 1975): p. 179. 9  Stanford Elwitt, The Journal of Social History, 10.3 (1977): p. 379.    

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edges of what eventually became a direct challenge to the “struggle of the orders.” In 1986 Mitchell contributed a substantial article to a volume edited by Kurt Raaflaub in which Mitchell and eleven other scholars presented a range of treatments of the “struggle of the orders.”10 That volume, recently reprinted by Blackwell (2005) with addenda by most of the original contributors, remains essential reading as it presents a range of interpretations by those scholars who have continued to define the debate. One certainly cannot read this volume without coming away with an impression of how “fragile the early Roman narrative is.”11 In 1990 Mitchell published his monograph, Patricians and Plebeians: the Origin of the Roman State (Cornell), in which he brought together all the threads of the argument and elaborated on many of the arguments made in previous contexts.12 In brief, Mitchell argues that the model of conflict we term the “struggle” has more to do with the last century of the Republic than it does with any earlier period. He shows how the prevailing argument depends, somewhat naively, on the stipulation that evidence available to the first generation of Roman historians featured that “struggle,” at least in outline. Mitchell rejects that notion emphatically by demonstrating its inherent implausibility, given the nature of the evidence as we understand it. Ultimately, an insistence on the primacy of the narrative prevents us from understanding the real significance of the details that Livy −not to mention moderns− adduce in its elaboration. 10 Mitchell presented “Politics and the Criminal Courts” to the American Historical Society (AHA) in 1975, “The Origin and Structure of the Roman Aristocracy” to the Association of Ancient Historians (AAH) in 1981, “Patricians and Plebeians: the Origin of a Social Dichotomy” at a 1981 Brown University Colloquium on Class Conflict in Archaic Greece and Rome, and reworked the latter for publication in Kurt Raaflaub (ed.), Social Struggles in Archaic Rome (Berkeley, 1986). In that same year he published “Historical Development in Livy” and “Roman History, Roman Law, and Roman Priests: the Common Ground,” and in 1985 “The Historical and Historiographical Prominence of the Pyrrhic War.” His talks on “The Twelve Tables” given at the AAH in 1986 and on “Roman Marriage” at the AHA in 1988 were the final stages of work anticipating his monograph, Patricians and Plebeians; the Origin of the Roman State, published in 1990. 11   See above n. 1.    12 The conclusion of that volume is published below and is retitled as: “The Struggle of the Orders is a Fiction.”

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These conclusions challenge the fundamental assumptions made by most ancient historians about the development of the Roman state and, not surprisingly, the newly published book elicited a variety of responses. Some reviews were quite positive: On voir immédiatement les conséquences de telles assertions...la distinction fondamentale au sein de la société romaine de cette époque ne se situait pas entre les patriciens et les plébéens, mais entre les mileix civils urbains et les sphéres militaires.13 Even those who disagree with Mitchell’s basic thesis will find that many of his arguments provoke them to rethink their assumptions about wide-ranging aspects of Republican political and religious institutions.14 We have long known that...it is impossible to accept the picture in Livy and his late Republican sources of two political groupings locked in conflict for a century and a half...M[itchell] cuts the Gordian knot by suggesting that the two groups actually belong to two different categories.... Some of [Mitchell’s] conclusions are more likely to win assent than others. But the hypothesis at least makes sense of the surviving sources. There never was a ‘struggle of the orders’.15

Other were less enthusiastic: I am not sure that I understand always what M[itchell] is saying....[the] book cannot be said to offer any convincing new interpretation.16 [Mitchell] has valuable things to say about individual problems...but this theory about a sort of Roman theocracy is not likely to convince many.17 Eine offensichtliche konzeptuelle Schwäche der Darstellung macht es nicht leicht, Vertrauen in die neue Interpretation der römischen

J.A. Strauss, Les Études Classique 62 (1994):310. T.J. Moore, AJP 113.3 (1992): 463-5. 15 Thomas Wiedemann, Greece and Rome (1991): 251-2. 16 R.T Ridley, CR 42.2 (1992): 464-6. 17 W.V. Harris, AHR (1992):1189-90. 13 14

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Frühgeschichte zu gewinnen.18

In an addendum to his original article reprinted in the second edition of Kurt Raaflaub’s Social Struggles in Archaic Rome, Mitchell took the opportunity to answer those who, as he put it recently in private correspondence with me, “really do miss the point:” Modern scholars confuse the evidence with its interpretation and fail to see that our late sources placed available authentic archaic legal and religious material in an arbitrary chronological sequence and gave it structure and meaning by slavishly incorporating it into Rome’s early history. In other words, the struggle is part not of the received “structural” facts of Roman history but of the city’s narrative story developed by our sources. Freed from their interpretation as part of the struggle between patricians and plebeians, pieces of religious and legal evidence previously used to buttress the conflict are used now to reveal a society very different from the one portrayed by our ancient sources and reproduced by modern scholars.19

Work being done by younger scholars shows signs of moving in Mitchell’s direction. In 2000, T. Corey Brennan endeavored to “show [Mitchell] correct” concerning the roles of early Roman praetors.20 In his 2001 monograph on legislative practice in Republican Rome, Kaj Sandberg systematically 18 Walter Eder, ZRG 111 (1994): 503-8. Eder also contributed an article to K. Raaflaub’s SSAR (“The Political Significance of the Codification of Law in Archaic Societies: An Unconventional Hypothesis,” SSAR 2nd ed. (2005): 240-267), in which he rejects the traditional interpretation of the Twelve Tables episode. Eder argues that the Twelve Tables episode should not be regarded as a victory for the insurgent lower caste plebeians but rather a victory of the re-surgent aristocracy. Although Eder is a staunch defender of the struggle paradigm—see n. 21 below—he nevertheless chooses to “doubt the political success gained by the plebs (240),” at least in this instance. If one were to add up all such defenses of the “struggle” narrative made by conservative historians, not much would remain. 19 SSAR 2nd ed. (2005): 151-2: quoted with reference to Patricians and Plebeians, xi, from which it was paraphrased. 20 The Praetorship in the Roman Republic, 2 vols (Oxford, 2000): 1.31.

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destroyed one of the main elements of the “struggle” narrative (the notion that the plebeians had no right to legislate before 287) in part by invoking Mitchell’s arguments.21 In 2005, Olga TellegenCouperus cited Mitchell’s name frequently in a paper, subsequently published, where she argued for an interpretation of the urban praetor that does not rely on the struggle of the orders.22 Some of my work builds on Mitchell’s in that it interprets the benchmark events of the so-called struggle in an alternate framework, namely, that their notices are vestiges of a very real conflict between citybased and regional political contructs.23 For his own part, Mitchell has continued to pose questions and challenge assumptions about structural elements of the struggle paradigm. Some of these are included in the current volume. What, for example, should be made of the numerous references, especially in Livy, to demands for land distributions and debt reduction? Where are the origins of distinctions between public and private property? What relationship existed between colonization and the development of the comitia tributa? If the tribunes of the plebs were not actually insurgent figures born in opposition to an entrenched hereditary aristocracy, what was their original function and how did it evolve? At this writing, his work continues. Mercyhurst College

Randall S. Howarth

K. Sandberg, Magistrates and Assemblies: A Study of Legislative Practices in Ancient Rome (Rome, 2001). However, Sandberg, citing the reservations of R.T. Ridley (see above, n. 16), makes a point of rejecting Mitchell’s overall argument dismissing the “struggle” as a fiction; ibid. p. 42, n.5. There continues to remain much resistance to Mitchell’s challenge. Note, for example, W. Eder, in his recent contribution to Brill’s New Pauly under the entry, “Struggle of the Orders,” who repeats most of the standard elements of the “struggle” narrative without providing any indication that they are in question: vol. 13 (2008): p. 888. 22    “Pontiff, Praetor, and iurisdictio in the Roman Republic, ”Legal History Review 74 (2006): 31-44. This is a revised version of a paper she presented to the Edinburgh Roman Law Group in 2005.  I am grateful to Professor Tellegen-Couperus for forwarding me a copy in anticipation of this scritti. 23  R. Howarth, The Origins of Roman Citizenship (Lewiston, 2006).    21

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS* On the question of the dating of Rome’s earliest silver coins, the Romano-Campanian didrachms, scholars are generally divided into three categories, depending upon whether they advocate an early, middle, or late chronology. Specifically, the earliest coins are variously attributed to the period between 326 and 269 B.C. The early and late chronologies were best argued by Laura Breglia and Harold Mattingly respectively, while Rudi Thomsen recently presented the case for a middle chronology most forcefully.1 Although Thomsen’s work has not gained total acceptance, it has been most favorably received, and the publication of this threevolume work, Early Roman Coinage, has met with widespread enthusiasm and the attendant hope that the problem would at last *Originally published in American Numismatic Society Museum Notes 15 (1969): 41-71. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. Laura Breglia, La prima fase delta coniazione romana dell’ argenta (Rome, 1952); Harold Mattingly, “The First Age of Roman Coinage,” JRS 35 (1945): pp. 65-77; Rudi Thomsen, ERC. Although the chronology I offer differs in many respects from the positions taken by the above scholars, my debt to them will be obvious. 1

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be solved. However, I hope to show by a re-evaluation of the evidence that good reason still exists to prefer an earlier chronology. The controversy concerning the dating of Rome’s earliest coins is part of a larger problem concerning the development of the Roman state. Many scholars argue that Rome wanted only to secure her own frontiers or to protect weaker states against their stronger enemies and contend that, for this reason, Rome was hesitant to form a policy for all Italy and completely lacked a Mediterranean outlook until well into the third century.2 However, the evidence suggests that Rome was eager to play an active role in Italian affairs and that she even possessed a rudimentary Mediterranean policy in the late fourth century. For instance, when considered together and not thrown out as annalistic interpolations, Roman treaties with Carthage, Tarentum, and Neapolis; her growing fleet of ships; the foundation of such colonies as Luceria and Pontia; the construction of the Via Appia; her association with Rhodes; and the fact that Rome was constantly engaged in extending her sphere of influence by military and diplomatic means from ca. 340 to 300 all imply that in the last half of the fourth century Roman expansion was continuous, if not planned, and that her sphere of interest was increasing. Yet numismatists generally have claimed that Rome conquered almost the whole of Italy and became the most powerful state in the western Mediterranean before she minted coins in her own name. To mention only two of the most influential advocates of a later chronology, Thomsen and Mattingly insisted that the terminus post quem for the earliest coins could not be pushed back into the fourth century. On the other hand, Tenney Frank has observed that, numismatic arguments aside, the historical [literary] evidence points to the Second Samnite War (326-304) as the latest possible date for the introduction of Rome’s first didrachms and that any later attribution “goes beyond belief.”3 Numismatists and historians both agree that Roman contacts with important coin-using and coin-producing states in 2 For example, H. Mattingly, ‘‘‘Aes and Pecunia’,” NC 1943: p. 28, “Rome may have been, in everything but military efficiency, a backward and unenterprising state.” 3 T. Frank, An Economic Survey of Ancient Rome, I (Baltimore. 1933): pp. 42-3.

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 15 the South, especially with Greek states, fostered Rome’s own coins and greatly influenced them in matters of type, style, and weight. Neapolis, Metapontum, Thurii, Syracuse and Carthage are but a few of the states frequently cited. Literary evidence indicates that Rome established permanent contacts with such states in the last quarter of the fourth century. Rome’s movement south was continuous from about 340 and I hope to show that the development of Roman coinage is inextricably linked to Roman expansion−that Roman coins advanced with the Roman legions.4 But the coins were not only issued to sustain her armies in the field, they were also designed to bring Roman influence to bear on the most commercially vital sections of Italy. By issuing coins in her own name, Rome would be taking part in a propaganda war to win influence among the coin using states of Italy.5 The ROMANO-inscribed didrachm, Obv.: Mars head, bearded, wearing helmet with a crest, 1.; Rev.: Horse’s head, r., with grain ear symbol is the first silver coin issued in the name of Rome (FIG. 1, ANS).6 Not only is the average weight of this coin the heaviest among the didrachms issued,7 but as shown below, the priority of the coin is also borne out by the hoard evidence. Moreover, H. Küthmann has shown that it is the only didrachm which does not have a circle of pearls around the

4 The idea that the Romano-Campanian coins were military issues struck in South Italy for use in that area is not new. Ernest Babelon, Descriptions historique et chronologique des monnaies de la république romaine, I (Paris. 1885): pp. xxix ff., advanced this theory sometime ago. 5 For a similar view see A. Sambon, Les monnaies antiques de l’Italie (Paris, 1903): pp. 421 ff. 6 Scholars generally agree that the first didrachms issued were those with the ROMANO legend and that the ROMA-inscribed coins are later. In addition, following the arguments advanced by Breglia, pp. 15ft., and Thomsen, ERC III: pp. 54ft., it seems clear that the ROMANO (and the ROMA) didrachms were issued in sequence, the heaviest first, followed by issues which show a gradual reduction in weight, and were not struck as Mattingly maintained, JRS (1945): pp. 66ft., in four different mints at the same time beginning in 269. 7 See below, n. 49, and associated text.

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head on the obverse.8 Since this coin is first in the series of ROMANO issues, its prototype may be used to establish a terminus post quem for the series. The prototype is usually thought to be the Leucippus head, bearded, wearing helmet, pictured on Metapontine coins. There are several varieties of this coin type, and each scholar is wont to select the particular variety of Leucippus head which best fits his theory. A case in point is the Leucippus head wearing a crested helmet, with triskeles symbol on the reverse in addition to the standard grain ear type (FIG. 2, ANS). The triskeles was the particular badge of Agathocles, tyrant and King of Syracuse from 317 to 289, and C. T. Seltman has argued that this coin belongs to a period in Metapontum’s history, after 304, when Agathocles controlled some cities along the Southern shore of Italy.9 To reinforce his argument, Seltman cited Diodorus,10 who said that Cleonymus, the Spartan hired by Tarentum to wage war against her enemies, contemplated freeing Syracuse from Agathocles’ control and that Cleonymus attacked Metapontum because the city had not come over to him. Seltman deduced from this that Agathocles controlled Metapontum. Using this argument, Küthmann stressed the stylistic similarities between the first Roman didrachm and the Metapontine coin with triskeles symbol and concluded that the former must be an imitation of the latter, since both types show the bearded head of a man wearing a crested helmet and such features as the beard, nose, and mouth are treated in the same manner on both coins. Likewise, the ear of grain which appears on the reverse of the Metapontine coins is found behind the horse’s head on the reverse of the ROMANO didrachm. Thus Küthmann held that the Roman coin must be dated during or after the time of the Metaapontine issue of Agathocles and that the terminus post quem for the bearded Mars coinage must be ca. 300.11 Thomsen accepted this date as fixed in his treatment of the chronological limits of the RomanoH. Küthmann, “Zur römischen-campanischen Didrachmenprägung,” Jahrrbuck für Numismatik und Geldgeschickte IX (1958): p. 93. 9 C. T. Seltman, “The Influence of Agathocles on the Coinage of Magna Graecia,” NC (1912): pp. 2-3, 6−8. 10 Diodorus, XX.104. 11 Küthmann: pp. 87-89. 8

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 17 Campanian didrachms.12 This led him to the same conclusion once held by Mattingly, that the first Romano-Campanian coins were issued as a result of the Romano-Carthaginian alliance concluded during the Pyrrhic War (ca. 280), a fact which Thomsen said is indicated by the horse’s head on the reverse of the Roman coins. The same type figures prominently on Carthaginian coins, and Thomsen believed that its reproduction on Roman coins reflects the financial assistance given to Rome by the Carthaginians during the war.13 However, the basis for this chronology, the close stylistic similarity between the Metapontine coin with the triskeles symbol and the bearded Mars head coinage, is open to doubt. If the two issues are as similar as Küthmann and Thomsen maintained, they ought to resemble one another in detail, but they do not. Although the general features are similar on both coins, the helmet on the Roman coin has a flap, a neck guard, while the Metapontine coin does not. Moreover, the latter coin has an entirely different kind of crest: it joins the helmet in one small area while the crest on the Roman coins is attached along the entire back of the helmet. Furthermore, the Metapontine coin has a wreath on the helmet, but the Roman coin does not. Küthmann’s statement that the beard on both coins is treated in the same manner may also be questioned. A study of the coins from a dozen or so different museums makes it clear that the Mars head has a beard of long, curly strands of hair with very noticeable loose ends. On the Metapontine coin in question, the beard is composed of tight little balls of hair, not at all flowing and loose like that on the Roman type. It is generally accepted among scholars that the Leucippus type is ultimately derived from the Archias head depicted on Syracusan bronze coins attributed to Timoleon (345-336−Fig. 3, ANS).14 The literary evidence shows that Timoleon was active in

Thomsen, ERC III: p. 95. Thomsen, ERC III: pp. 92, 153-157. Cf. H. Mattingly, “The Romano-Campanian Coinage and the Pyrrhic War,” NC (1924): pp. 181209. 14 Seltman, NC (1912): p. 7, n. 17; Thomsen, ERC III: pp. 94-5, cf. fig. 9; and Breglia: pp. 13, 31. Breglia pointed out the obvious Sicilian character of many of the Romano-Campanian coin types, but see Thomsen’s discussion, ERC III: pp.91 ff. 12 13

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Metapontum before he went to Sicily,15 and his subsequent success and behavior made him a popular figure among western Greeks. Metapontum, borrowing the Archias type, at first reproduced it faithfully, and only gradually modified the style until the last coins were issued with the Leucippus head wearing a crested helmet and with the triskeles symbo1.16 There is an earlier Metapontine coin which although it does not have a crest on the helmet, has many features in common with the bearded Mars coinage (FIG. 4, BM). The neck guard is exactly the same, the helmet does not have a wreath, and the beard is treated in a fashion similar to the beard on the Roman coin. This coin is an extremely close parallel to the Archias head on Timoleon’s bronze coins. Thus the Roman coin may be seen to more closely approximate the Syracusan coin of about 340 and the Metapontine coin which was copied directly from it presumably about the same time. However, it is evident from this discussion that no exact parallel exists as yet for the first Romano-Campanian coin. Just as the last Leucippus type issued by Metapontum modified the style originally borrowed from a Syracusan coin, so the Roman coin is a modification of the general type and not a direct copy of any known specimen. Die cutters obviously used great imagination and ingenuity in reproducing types borrowed from other cities. In the absence of an exact stylistic parallel, the most that can be said is that the terminus post quem for the bearded Mars issue is based upon the Archias and Leucippus types and thus ought to be ca. 340-330. It can not be argued that Rome could not have come into contact with Syracusan or Metapontine types so early because the Roman treaty with Carthage concluded in 348 presupposes the existence of Roman mercantile activity in Sicily, however Diodorus, XVI.66.5. Arthur J. Evans, “A Recent Find of Magna Graecian Coins of Metapontum, Tarentum, and Heraclea,” NC (1918): pp. 143ff. 15 16

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 19 insignificant that activity may have been,17 Sicily was not unknown to the more northerly peoples of Italy: Etruscan, Celtic, Samnite, and Campanian mercenaries had been employed there for years.18 As for Metapontum, Rome signed a treaty with Alexander, King of Epirus, in 332, and the latter had his principal base at Metapontum.19 Moreover, after her treaty with Neapolis in 326, Rome has a close tie with one of the chief emporia of Italy and her experienced mint, as well as ready-made contacts with other states of South Italy and Sicily and their coins. The evidence from the reverse type of the Mars coinage, the horse’s head, is even less conclusive than that from the obverse. Once the terminus post quem of 300 has been removed for the obverse type, there is no reason why Rome could not have copied the horse’s head type from Carthage on any number of occasions earlier than 300. The Romano-Carthaginian treaties of 348 and 306 have already been suggested as possible occasions on which the Romans borrowed the horse’s head type.20 Indeed, so far 17 Thomsen, ERC III: pp. 93-4, said that Rome could not have copied the Archias type because the coin was bronze and thus intended for local use and “Rome does not seem to have had any contact with Sicily in the period when the Timoleon coin circulated.” Thomsen disregarded those Romano-Carthaginian treaties which are certainly of fourth century date or earlier (Polybius, III.22-24). There is also the case of a certain Postumius who was put to death by Timoleon when he sailed into Syracuse thinking the city friendly (Diodorus, XVI.82.3). Diodorus identified Postumius as an Etruscan but both G. Forrest, JRS 46 (1956): p. 170, and Filippo Cassola, I gruppi politici romani nel III secolo A.C. (Trieste, 1962): p. 28, think that Postumius was a Roman. 18 Diodorus, XIX.106, XX.11.1, XX.64.2; Polybius, I.7.2, I.8.1; Dionysius, XX.4.8; are just a few of the many references to Italian mercenaries in Sicily. 19 Justin, XII.2.12; Livy, VIII.17.10. Cf. Arthur J. Evans, “The ‘Horsemen’ of Tarentum,” NC (1889): p. 81. 20 Ernst Assmann, “Moneta,” Klio 6 (1906): pp. 477-488, argued that when Camillus built the temple of Juno Moneta in 345 (Livy, VII.28), he was commemorating the monetary assistance given by the Carthaginians under the terms of the treaty of 348. Juno was in fact Astarte. A. W. Hands, “Juno Moneta,” NC (1910): pp. 1-12, showed how unlikely Assmann’s position was. Originally, Edward A. Sydenham, Aes Grave. (London, 1926): p. 55, accepted the Carthaginian inspiration for the Roman horse’s head type, suggesting it was issued in 306 when the Romans and Carthaginians signed another treaty.

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we have only assumed that the horse’s head was Carthaginianinspired; however, there is no unanimity on this point. The Roman and Carthaginian coins do not resemble one another in specific detail: the Carthaginian coins depict a free horse while the Roman coin pictures a bridled horse. The bridled horse ought to refer to equestrian activity of some sort. Sir William Ridgeway asserted that the horse’s head should be linked with the obverse type itself, the bearded Mars, both representing the Equiria, the ancient horse race in honor of Mars.21 One of the victorious pair of horses was sacrificed to Mars, and its head was cut off and contested for by the men of Subura and the Sacra Via, the winning side fixing the head to either the turria Mamilia or the Regia.22 Breglia added to this the evidence that both the horse and Mars were intimately connected with war.23 She based her argument mainly on Polybius’ statement that the Romans were accustomed to sacrifice a horse before going to war.24 The existence of a direct relationship between the Mars and the horse’s head types supports the conclusion that the first ROMANO didrachm was a military issue. In turn, Breglia’s conclusion that the coins were struck about 320 is strengthened, since the great war against the Samnites had recently begun and Rome could derive both economic and propaganda benefits by issuing money in her own name. Moreover, as a result of the recent foedus with Neapolis, Rome had an experienced mint to assist her.25 Sir William Ridgeway, Proceedings of the Cambridge Philological Society, CXXX-CXXXII (1925): pp. 26-28. In the same publication H. Mattingly criticized Ridgeway because he only explained the significance of the horse type to the Romans: his explanation “throws no light on their origin”(23-4). But Mattingly missed the point. Even if the type was borrowed from Carthage, which is unlikely, it was so closely associated with its own obverse that it could have been employed at any time in connection with the Equiria. Rome certainly did not employ the type to publicize Carthage. 22 Festus, 71.117L; Plutarch, Quaestiones Romanae XCVII; Ovid, Fasti II.859, III.519. 23 Breglia: p. 31. 24 Polybius, XII.4. 25 Breglia, pp. 28-30. Furthermore, I cannot believe that Carthage supplied Rome with the wherewithal to issue her first didrachms. The two states had grown suspicious of one another and, what is more, Polybius, III.25.4, specifically states that one of the conditions in 21

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 21 The bronze half-litra coin inscribed ROMANO, with types Minerva head wearing helmet with a crest/horse’s head, is usually associated with the first silver didrachms (FIG. 5, ANS).26 This coin is found over-struck on a Syracusan bronze coin, Zeus Hellanios/eagle on thunderbold.27 In turn, the Zeus Hellanios coin has been found overstruck on coins of Agathocles (317-289) as well as on a Persephone/biga coin. Charles Hersh associated the latter coin with both bronze and gold coins of Hiketas (288-278). He concluded that the Zeus Hellanios coin was issued in the later years of Hiketas’ reign (282-278), or just after his expulsion. Hersh’s opinion was that the overstrike is most important for the establishment of chronology because, “First, it shows the ‘conservative’ initial date of the ‘Romano-Campanian’ coinage to be utterly wrong, as a coin of 342, or shortly thereafter, cannot be struck on a coin issued some sixty years later; second, it makes the 269/68 date given by the ‘progressive’ MattinglyRobinson school seem very plausible as there is nothing startling about a coin issued in the 270’s being over-struck during the 260’s.”28 Thus Hersh dated both the Persephone and the Zeus Hellanios Syracusan bronze coins to Hiketas’ reign, placing the latter coin after 282. However, this is not the only possibility. In a recent article, Ross Holloway pointed out that Zeus Hellanios coins were found at Gela, which was destroyed about 282.29 Thus, with good reason, Holloway assigned the Persphone coinage to the brief the treaty made at the time of Pyrrhus’ Italian adventures was that each side was to pay its own men. Such a clause would not have been included if the Carthaginians were in fact underwriting the first Roman silver coinage. 26 Sambon, 438ff.; Edward A. Sydenham, The Roman Republican Coinage (London, 1952): pp. xvii, I, pl. 13, 3; Thomsen, ERC I: pp. 51, figs. 12-13, 52. 27 Charles Hersh, “Overstrikes as Evidence for the History of Roman Republican Coinage,” NC (1953): p. 45, pl. V.19. 28 Hersh, NC (1953): pl. 45. 29 R. Holloway, “Eagle and Fulmen on the Coins of Syracuse,” RBN (1962): pp. 11-12. It would not surprise me if the Persephone/biga coinage eventually proved to be Agathoclean, since the Persephone head is pictured on coins definitely attributed to Agathocles.

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post-Agathoclean democratic government which ruled before Hiketas. The coins were later used as flans for the Zeus Hellanios coinage, which Holloway has attributed to Hiketas, but not confined to his later years. Thus the terminus post quem for the undertype of the Minerva/horse’s head overstrike is about 288. Thomsen, who did not have Holloway’s evidence at his disposal, had earlier suggested a similar date of 289-288 as a compromise between those who dated the Syracusan coins to the Agathoclean period and those who assigned them to Hiketas. Thomsen incorrectly argued from this that a terminus post quem (289-288) had also been established for the Minerva/horse’s head.30 However, there is nothing to prohibit the coin from being in circulation before as well as after this date. In fact, since there is a large number of extant specimens of this coin, Breglia concluded that it must have been issued together with all the ROMANO didrachms in general and not struck for the duration of the bearded Mars coin alone.31 Küthmann’s work can be used to support Breglia’s argument in part, since he showed that the equally copious issue of bronze litra coins inscribed ROMANO, which were once thought to have types of Apollo head/lion, and thus considered the companion issue of the second ROMANO didrachm, Apollo head/prancing horse, actually pictured a goddess head/lion.32 Thomsen reasoned from this that the Minerva half-litra coins were issued together with the first two didrachms only and not for as long as Breglia suggested.33 However, the number of extant coins indicates that both the litra and half-litra bronze coins might well have extended over a long period of time. The Minerva coin obviously went through several issues and is found both with types left and right and with a star symbol. In addition, some specimens Thomsen, ERC III: pp. 102-103. Breglia: pp. 34-35. The Vicarello and Carsoli hoards contain 916 and 153 specimens of this coin respectively: cf. Thomsen, ERC I: pp. 118-119. 32 Küthmann: pp. 96-97, pl. II, 8. Sydenham, pp. xvii, I: pl. 13. 5, thought the obverse type was Apollo and associated the coin with the second ROMANO didrachm, Apollofhorse. Mattingly, JRS (1945): p. 66, associated the coin with the third ROMANO didrachm, Hercules/shewolf. See also H. Mattingly, “Nummus und As,” Schweizerische Numismatische Rundschau XXXIII (1947): p. 7, n. 6. 33 Thomsen, ERC III: pp. 24, 103-104. 30 31

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 23 of this coin have a circle of pearls around the head on the obverse while others do not. One merely has to look at the great variation in the manner in which the ROMANO is inscribed to realize one is dealing with a very large group of coins.34 Moreover, the hoard evidence does not give priority to either the litra or half-litra coin.35 Thus it would seem natural to view them as parallel coinage of a half and whole unit issued together right from the start, coins of different denominations intended to expedite economic activity. Therefore, I cannot accept Thomsen’s conclusion that the Minerva series was discontinued after the goddess head/lion litra began.36 Nevertheless, in one respect, Thomsen was certainly correct: on the evidence of the overstrike, he showed that part of Breglia’s chronology was ill-conceived, since the Minerva bronze must have been over-struck on a Syracusan coin in 289-8, or after, and according to Breglia’s chronology, the quadrigatus which bears the inscription ROMA was in circulation by this date. However, this evidence does not prove that Rome began to strike silver coins only in 280. Elsewhere, I have maintained that the ROMANO coins were issued until 269, at which time the mint was moved to Rome and the coins were thereafter struck with the ROMA legend.37 Another source of evidence used by scholars who follow a 34 Max von Bahrfeldt, “Le monete romano-campane,” RIN (1899): pp. 394ff.; Sydenham, pp. xvii, 1; Sambon, pp. 438ff. have all noticed the great variation among the coins of this group. It is significant that the variation in legend, especially noticeable in the different letter forms, is not characteristic of the first two ROMANO didrachms nor of the goddess head/ lion litra; however, it is characteristic of the Hercules/she-wolf and, to a lesser degree, of the subsequent RomanoCampanian didrachms. All this would indicate that the Minerva/horse’s head half-litra was issued with at least the last two ROMANO didrachms and because of the numerous specimens of the coin, likely issued with all of them. 35 Thomsen, ERC I: pp. 115 ff., supplied a summary of the hoard evidence. The goddess head/lion litra is occasionally the only ROMANO bronze coin found in hoards. In the Vicarello deposit there are 1166 specimens. If anything, this proves the priority of the goddess head/lion coinage. 36 Thomsen, ERC III: p. 104. 37 Richard E. Mitchell, “A New Chronology for the RomanoCampanian Coins,” NC (1966): pp. 65-70.

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late chronology for the ROMANO coins is that of the bronze coins from the Roman colony of Cosa in Etruria, founded in 273. Cosa reproduced both the bearded Mars and Minerva obverse types with bridled horse’s head reverse (FIG. 6, ANS [Minerva]), and from this we might infer that the Roman prototypes for these coins might be placed before the foundation of the colony in 273.38 A bronze coin modeled on the silver and bronze coins of her founder would be natural. Thomsen, arguing from the date of 273 as a terminus post quem for the Cosa bronzes, dismisses Breglia’s date of 320-315 for the didrachm, Mars/horses’ head, ROMANO, as too early. Since it is the prototype for the Cosa coins, Thomsen concludes, the didrachm “must certainly have been struck much later, not too distant from 273.”39 Yet, as Thomsen himself has repeatedly demonstrated, coins, especially silver, had a long life and could be used as models for coins issued at a much later time. For example, he assumed that a Pyrrhic coin served as the prototype for the first ROMA-inscribed silver coin a full thirty years after the former coin made its appearance.40

38 Thomsen, ERC III: pp. 96-101, 97, figs. 12-13, has a thorough discussion of the location of the colony and the historical evidence which supports its existence. Cf. Livy, Periocha XIV; Pliny, HN III.51; Velleius Paterculus, I.14.7. Although we are not well informed on the nature of this colony, it is a safe assumption that the colonists began minting coins immediately since few, if any, cities could maintain a normal existence at this time without some form of currency. 39 Thomsen, ERC III: p. 101. 40 Thomsen, ERC III: p. 137. One can also point to the Hercules/She-wolf didrachm, dated by Thomsen to 269, which was copied by Capua during the Second Punic War (cf. Thomsen, ERC II: p. 108; III: pp. 117-8, fig. 27). Even by Thomsen’s own dating, the bearded Mars head/horse’s head coinage was discontinued before the Cosa coinage was struck. Why did Cosa not borrow the coin type currently being minted?

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 25 The most important evidence in support of an early chronology for the RomanoCampanian coins is the small bronze coin with types, Apollo head, laureate, with archaic hair, r./forepart of bearded manheaded bull, with star of six or eight rays on shoulder r. (FIG. 7, Vienna [Thomsen, I, p. 51, no. 1J). These coins which bear the unique inscription ΡΩΜΑΙΩΝ are direct, almost exact, imitations of Neapolitan coins (FIG. 8, ANS). Because of the Greek inscription and the fact that the Neapolitan prototype is generally assigned to the fourth century, Breglia argued, correctly, that the ΡΩΜΑΙΩΝ coin must be dated before the introduction of the ROMANO coinages. She dated the coins immediately after the foedus Neapolitanum of 326. It was money of occupation coined for military needs and meant for local circulation.41 Mattingly maintained that the ΡΩΜΑΙΩΝ inscribed coins were the only exception to his argument that Roman coinage showed no Campanian (in particular, Neapolitan) influence as early as 325. He held that the coins were struck in the Roman name but in a Neapolitan mint, most likely just after the foedus with Neapolis.42 No doubt Thomsen was correct to take the position that the foedus constituted only the terminus post quem for the coins and did not indicate how late the Roman didrachms were struck..43 However, if the PΩMAIΩN coins were issued as a result of the foedus with Neapolis, and if Rome now for the first time had a coin, albeit with legend in Greek, would she not continue to issue coins or rather continue to have them struck for her in an experienced mint Breglia: pp. 25ft., 131ff. Breglia has an admirable discussion of the role Neapolis played in the beginnings of Roman coinage. She correctly insisted that since Rome issued a bronze coin with a Greek legend, all doubt that Roman silver coins could only be struck in the city of Rome ought to be removed. 42 Mattingly, NC (1943): pp. 32-33. 43 Thomsen, ERC III: p. 81. 41

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located in a region where many of her men were held in arms? Another coin which attests to the Campanian influence on Roman coins is the unique bronze specimen, Minerva head, wearing helmet, r./bearded man-headed bull, r., inscribed ROMANO (FIG. 9, Naples [Thomsen, I, p. 51, no. 2f).44 Because the reverse of this coin has an exact parallel in the bronze coinage of Neapolis, Breglia concluded that it was struck in the latter city as the second and final step before the true Romano-Campanian coins were issued. She dated the coin to ca. 324.45 On the other hand, Mattingly thought the Neapolitan parallel was no earlier than 290-280, and since the obverse is found also on Thurian coins, he offered Thurii as a possible mint for this coin, suggesting that the coin was struck at the time Rome extended aid to that city in 282 or soon after.46 Thomsen has correctly pointed out the futility of assigning any coin to a mint on the basis of one type alone, since the types are widely known throughout Campania and Southern Italy. He rightly disagreed with Breglia’s placement of the coin before the Romano-Campanian coinage and preferred to associate the bronze coin with the other Romano-Campanian issues in light of their common inscription.47 However, although the date of the coin is uncertain, the types do show Rome’s familiarity with coins struck in cities to the south. Some time ago, Kurt Regling demonstrated that the ROMANO didrachms were issued on a standard common in Campania and Northern Apulia in the fourth century.48 The Neapolitan didrachms show an average weight of 7.24 grams for 363 specimens. It is only by chance that the bearded Mars/horse’s head coinage shows exactly the same average for 53 recorded Ettore Gabrici, “Monete inedite o rare del Museo Nazionale di Napoli,” Corolla Numismatica (Oxford, 1906): p. 100, first published this coin and indicated its obvious connection with Neapolitan types. 45 Breglia: pp. 24-25, 127. 46 Mattingly, NC (1943): p. 33. 47 Thomsen, ERC III: pp. 82-83. Thomsen pointed out that Thurii was no more certain as the mint for this Roman bronze coin than was Neapolis, since a similar obverse also appears on Velian coins. 48 Kurt Regling, “Zum älteren römischen und italischen Münzwesen,” Klio 6 (1906): pp. 489-524, especially pp. 508-510. Regling obtained the average weights of the various issues from the comprehensive catalogue of Sambon, Monnaies antiques. 44

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 27 specimens, but the fact is not without significance. The coins of Nola, Cales, Nuceria, Teate Apulum, Suess a Aurunca, and Teanum Sidicinum show average weights of 7.17, 7.11, 7.09, 7.09, 7.03, and 6.94 grams respectively for their recorded specimens. Including the coins of Neapolis, the range of average weights covers exactly the same metrological distribution as the first three ROMANOinscribed didrachms.49 This evidence indicates that Rome issued her first silver coins for circulation in Campania and Apulia. The hoard evidence points to the same conclusion.50 It is, of course, during the period of the Second and Third Samnite Wars (326-290) when Rome was most active in these areas. Another, higher, standard was employed by Tarentum, Croton, Metapontum, Thurii, Locri, and Herakleia. They struck their didrachms on the average of about 7.80-7.50 grams.51 It is generally agreed that the Tarentine didrachms were reduced to approximately 6.50 grams during the Pyrrhic occupation of the city, and that the other cities -which issued silver coins on the higher standard must have soon followed suit, with the exception of Metapontum, which evidently did not issue reduced coinage.52 Arthur J. Evans,53 in his arrangement of Tarentine coins, uses the coinage of the Pyrrhic period as one fixed chronological point and the issues of Alexander of Epirus as the other, to build both a relative and an absolute chronology which are most useful for dating Italian coinages. Even though the two standards mentioned above may reflect spheres of economic influence, they do not reflect closed economic systems; coins struck on both the higher and lower standards circulated together freely. Especially common are hoards Cf. Breglia: pp. 17, 36. The average weight of the bearded Mars coinage is taken from Breglia, who updated the list prepared by Bahrfeldt, RIN (1899): pp. 392-393. 50 See below, pp. 28ff. 51 Regling, Klio (1906): pp. 508-510. 52 Regling did not include Croton is his list of cities issuing reduced coins, but S. W. Grose, “Croton,” NC (1915): pp. 179-191, showed that a reduced coinage was struck at Croton. He dated the lower weight didrachms to the period 280-277 when Croton revolted from Rome and was under the control of Pyrrhus. 53 Arthur J. Evans, “The ‘Horsemen’ of Tarentum,” NC (1889): pp. 1-28. 49

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with Neapolitan and Tarentine coins, and often with them are found coins of Metapontum, Thurii, Velia, and Herakleia. Not infrequently, Romano-Campanian coins are also found in such hoards.54 The latter give evidence of dates for the Roman issues. As recorded by Evans,55 the Beneventan Hoard contained a bearded Mars/horse’s head as well as four specimens of the third silver coin issued by Rome, the Hercules/she-wolf suckling the twins, inscribed ROMANO. Because the Mars coin showed signs of wear while several of the Hercules didrachms were in fleur de coin condition, Evans concluded that the bearded Mars coins were issued earlier than the Hercules coinage. The Roman coins were hoarded with Tarentine and Metapontine coins struck on the heavy standard and coins of Nola, Velia, Hyria, and Neapolis on the lighter standard. The Tarentine pieces belong to periods IV and V of Evans’ chronology, or between 334 and 302. Following Theodor Mommsen’s traditional chronology for the Roman coins, Evans dated the hoard to ca. 310, clearly about twenty years too early.56 Thomsen agreed with the sequence of Roman coins but, of course, disagreed with the date proposed by Evans.57 He showed that certain full weight Tarentine coins may be associated with reduced coins of Pyrrhus and may have been issued after his arrival.58 However, the coins belong to period VI of Evans’ sequence, and none of the coins which, by either moneyer’s signature or symbol can be associated with Pyrrhus, were found in the Beneventan hoard. Thus, the Tarentine and Roman coins in the Beneventan hoard were in circulation before the Pyrrhic period. Basing her Thomsen, ERC I: pp. 100-101. Evans, NC (1889): pp. 93, 215. 56 Evans, NC (1899): pp. 93-94. 57 Thomsen, ERC III: p. 69. Thomsen did not use the Torchiarolo hoard as evidence (cf. I: p. 100) for the priority of the bearded Mars didrachm because it contained only one specimen of this coin. Judging from the diverse contents of the hoard, his decision appears well founded. However, Thomsen did cite the Capua hoard as evidence (cf. I: pp. 100-101) but admitted the hoard’s continuity was broken by a late Capuan bronze. While working at the American Numismatic Society, I learned from Michael H. Crawford of Christ’s College, Cambridge, that the Capua hoard is in fact a collection of unrelated coins and not a hoard at all. If this is true, the evidence from the Capua hoard should be dismissed. 58 Thomsen, ERC III: pp. 139-142. 54 55

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 29 position on a similar argument, Breglia cited the Beneventan hoard as evidence for her early dating of the ROMANO didrachms,59 but Mattingly doubted that the hoard’s contents were entirely known, claiming it may well have originally included later specimens.60 However, the contents of the Beneventan hoard receive confirmation from the Valesio hoard.61 In this hoard, Tarentine full weight coins of Evans’ period V are included with two bearded Mars/horse’s head specimens and other full weight coins of Herakleia, Metapontum, Thurii, and Terina. This evidence not only confirms the fact that the Mars didrachms were the first to be struck, but also, when viewed with the evidence from the Beneventan hoard, confirms our conclusion that both the first and third ROMANO didrachms were issued before the Pyrrhic War and the reduction at Tarentum. There is further evidence in support of this in the hoards which do contain reduced coins of Tarentum. The Roman coins which are found in such hoards always include ROMA-inscribed coins, and the latter usually include the quadrigatus.62 I have argued elsewhere that the ROMANO coins continued until 269 when the ROMA coinage began, that the Hercules didrachm, the third silver coin issued by Rome, is historically better dated to ca. 296, and that the numismatic evidence for a later terminus post quem is untenable.63 Briefly, my argument is as follows. The coin commonly mentioned as the prototype for the Hercules type is definitely Agathoclean (317-289), and since the Roman coin is found hoarded with pre-Pyrrhic coins of Tarentum, it is earlier than 280. A coin of Velia found in the Beneventan hoard is described as fleur de coin or in the same state or Breglia: pp. 29-30, 55. H. Mattingly, Review of Breglia, NC (1953): p. 176. E. S. G. Robinson, “A South Italian Hoard,” NC (1945): p. 97, also expressed doubt. However, Evans did not hesitate to use the evidence and gave more details concerning the hoard’s contents than is assumed. The Tarentine specimens were all full weight and there were no CampanoTarentine coins in the hoard; see Evans, NC (1889): pp. 92-94. 61 For details see Mitchell, NC (1966): p. 68, n. 5. 62 Cf. Thomsen, ERC I: pp. 100ff. One might also add that Campano-Tarentine coins are usually found in such hoards. For some finds the exact contents of the hoards are unknown. 63 NC (1966): pp. 65-70. 59 60

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preservation as some of the Hercules didrachms found in the same hoard. Moreover, the Velian coin has a triskeles symbol on the reverse, and, as stated by Seltman and accepted by Küthmann and Thomsen, this coin ought to reflect Agathoclean control or influence in Velia ca. 300. Therefore, because of the superb condition of a coin dated to about 300, the hoard and the Roman coins with the Hercules type, which are likewise in superb condition, are best dated to the same time. The she-wolf with the suckling twins, the reverse type of the Hercules didrachm, commemorates a statue group erected by the Ogulnii in 296 which featured the same subjects, and the Ogulnii were clients of the Fabii, who, in turn, considered Hercules as their patron. Furthermore, a statue of Hercules was put up at Rome in 306,64 and there was considerable controversy involving the cult of Hercules a few years before. In sum, the Hercules/she-wolf, twins types fit nicely into the picture we have of Roman history ca. 295. The fourth and last ROMANO-inscribed didrachm is the Roma head in Phrygian helmet, r./victory fastening taenia to palmbranch. This coin was struck on the six-scruple standard and has Greek control letters which link it to Egyptian coins from the time of Ptolemy II anti Arsinoe II. The Romano-Egyptian legations of 273 are reflected in this issue in some way, but the standard is the reduced one employed by Tarentum after the arrival of Pyrrhus. Rome adopted this standard, which was now used by many cities in South Italy, when she took Tarentum in 272, and the Roma and victory types reflect her recent success against the Epirote king. Thus, the last ROMANO coin is dated to ca. 272. This means that when Rome began to issue coins directly from the city in 269, the coins bore the inscription ROMA. The change in the legend reflects the change in mint. To return to the argument: if the Hercules didrachm is dated to the period immediately after 296, then the bearded Mars coinage and the second silver coin issued (head of Apollo/prancing horse with star symbol) must be earlier. Therefore, since the bronze coin inscribed ΡΩΜΑΙΩΝ suggests that Rome’s first coins were struck after her foedus with Neapolis, it is reasonable to place the terminus post quem for Roman silver coinage at ca. 326. The weight of the first three Roman didrachms shows that they were 64

 Livy, IX.44.16. 

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 31 meant to circulate in Campania and Apulia, where Roman troops were extremely active in the period 326-290. During this time, Rome was too militarily active, too diplomatically involved, and generally too greatly interested in extending her influence into the South and East to neglect so vital an agent in expansion as coinage. While it is possible that Rome came into contact with merchants (and coins) from many of the cities of Italy through her Campanian allies, especially Neapolis, the choice of coin types might also suggest that Rome had direct contact with such cities as Metapontum and Thurii in the late fourth century. THE HISTORICAL EVIDENCE The narrative of various ancient historians gives evidence to support the above chronology, and isolated and frequently brief and unexplained statements indicate Rome’s ever increasing interest in the South and the direction her expansion was taking. Often such evidence is disregarded or de-emphasized, but the references to fourth century Roman contacts in Campania, Apulia, Lucania, and even Calabria are too numerous and logical in the light of subsequent events to be totally ignored. Rome’s struggle with the Samnites dominates the tradition, and the ancients were already anticipating Rome’s approaching conflict with Tarentum and Pyrrhus. However, from the tradition, it is clear that when Tarentum called in Pyrrhus to fight her battle with Rome, it was not the first time she saw the danger in Roman expansion but was instead her last attempt to stave off the inevitable. The study of Roman coin types helps to explain the reason for Tarentine hostility toward Rome. Like the metrological evidence, the types reaffirm Roman connections with Campania, Lucania and Apulia generally and with Neapolis, Metapontum, and Luceria specifically. Whatever the nature of Roman contacts in these areas, they made Tarentum uneasy. After Rome defeated the Latins in 338, she was allowed to work her will in Campania without interference from the Samnites until 326. Tarentum unintentionally aided the Roman cause by calling in mercenaries to help in her struggle against the Lucanians and their sometime allies, the Samnites. One mercenary leader was Alexander, King of Epirus, who was so successful that he must

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have caused more alarm to the Samnites than did the Romans.65 Since Rome was concentrating on affairs in central Italy, she willingly made concessions in the South. Justin reported that Alexander made a treaty (foedus amicitiamque) with the Romans, Metapontines, and Poediculi.66 Doubtless this is the treaty between Rome and Tarentum referred to by Appian, our only source for the one known clause: no Roman [war] ship was to sail beyond the Lacinian Promontory.67 The treaty indicates that Tarentum feared that Rome might engage in naval operations in the South. We can 65 The date for Alexander’s Italian adventures is variously given. Livy, VIII.3.6-7, gives 340 as the beginning of his campaign and 326 as the date of his death (VIII. 24. 1). That both dates are incorrect is not disputed. Pierre Wuilleumier, “Tarente des origines à la conquete romaine,” Bibliothèque des Écoles Franfaises d’Athènes et de Rome 148 (1939): pp. 82f., and K. J. Beloch, Römische Geschichte bis zum Beginn der punischen Kriege (Berlin, 1926): p. 372, have admirable discussions of the evidence and have proved conclusively that Alexander’s adventures in Italy were in the period from 335 to 331/0. 66 Justin, XII.2.12; Livy, VIII.17.10: under the year 332 Livy says that Alexander pacem cum Romanis fecit. 67 Appian, Samn VII.1, says that the treaty was old (παλαιῶν) when a Roman squadron sailed beyond the promontory in 282 and broke the agreement. T. Mommsen, The History of Rome, II, trans. W. P. Dickson (New York, 1898): pp. 41-42, thought the year 348 was the most likely time for the treaty’s origin. The treaty with Tarentum was associated with the Romano-Carthaginian treaty of that year. Mommsen’s position is well defended, but we know of no Roman contact with Tarentum so early. Many scholars dated the treaty to ca. 303 when Rome and Tarentum, under Cleonymus, were at war (Diodorus, XX.104.1; Livy, X.2.1-3). G. DeSanctis, Storia dei Romani, II. (Torino, 1907): p. 347, n. 2; Beloch, Romische Geschichte: p. 435; Wuilleumier: p. 95; J. H. Thiel, A History of Roman Sea Power Before the Second Punic War (Amsterdam, 1954): pp. 20-23; and Cassola, p. 38, supported the later date. Nevertheless, Appian did call the treaty παλαιά in 282, and the arguments against a later date are very convincing. M. Cary, “The Early Roman Treaties with Tarentum and Rhodes,” JP 35 (1920): pp. 166-170, argued conclusively that “no other political situation fits the conditions of our treaty so well as that of 332-0 B.C.”(170). The crux of his position was that Rome was not likely to allow Tarentum to restrict her naval activity after she gained a firm position in Apulia and Lucania. Also, T. Frank, CAH VII: p. 640, believed that it was not plausible that Rome would agree to such a treaty after the colonization of Luceria in 314.

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 33 not exclude the possibility that beneath this treaty lies a hint of a Roman contact with the extreme South and possibly with Metapontum. It is significant that Metapontum lies within the restricted waters. However, land contacts were not limited, nor would a commercially oriented state like Tarentum want to restrict merchantmen from sailing south to trade.68 Certainly this was the ideal time to exact from Rome the promise not to sail beyond the Lacinian Promontory, since she probably had limited contacts with the region. But the situation soon changed, and Rome might well have felt her interests were best served by establishing permanent relations with the area. It was Tarentum’s policy to withdraw support from her mercenary leaders when they became too ambitious and struck out on their own; Alexander suffered this fate. He waged war victoriously against the Apulians, Bruttians, Lucanians, and Samnites,69 and having conquered the Lucanians and Samnites at Paestum,70 he envisioned himself capable of realizing in the West what his nephew was achieving in the East. Alexander incurred the hostility of the Tarentines when he took control of Herakleia, a Tarentine colony, and transferred the assembly of the Greek cities of Italy, which met there, to Thurii,71 out of Tarentum’s reach. As Arthur Evans suggested, it may be that he then established himself at Metapontum, using that city as a sentinel against Tarentum.72 That Metapontum was his base of operations is indicated by numismatic evidence as well as by Livy’s statement that upon his death his bones were returned to Metapontum and thence to Macedonia.73 For the position that the treaty applied only to war ships, see DeSanctis, Storia dei Romani, II: p. 347; Beloch, Römische Geschichte: p. 435; Thiel: pp. 21-22; and Cassola, I gruppi politici romani: p. 38. 69 Livy, VIII.17.9, VIII.24.1; Justin, XII.2.1, XVII.3.15; Strabo, VI. 3.4 (280). 70 Livy, VIII.17.9-10. 71 Strabo, VI.3.4 (280); cf. Livy, VIII.24.4. Tarentum and Thurii seem to have been opponents over a long period of time; see Strabo, VI.1.13-14 (263-264). 72 Evans, NC (1889): p. 81. Evans’ position was accepted by Wuilleumier: p. 85. 73 Livy, VIII.24.16-17; cf. Justin, XII.2.15, who said Thurii ransomed his body and buried it. 68

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The situation in South Italy was in a state of confusion after the death of Alexander because certain cities, such as Thurii and Metaapontum, which supported Alexander’s plans, feared Tarentine reprisal. Nothing would have been more natural than for such cities to look to Rome for protection,74 especially since there was bad blood between Tarentum and both Thurii and Metapontum even before this time.75 Then Tarentum became even more suspicious of the extension of Roman influence, when in 326 it reached to Neapolis, the chief commercial city of Campania. Since Roman influence in Neapolis could make itself felt throughout Southern Italy, Tarentum had cause to fear Rome’s growth as a possible danger to her own position, and she would support Rome’s enemies and oppose her whenever and wherever the need arose. An interesting feature of the tradition concerning Rome’s war against Neapolis was the appearance in the city of Tarentine envoys promising to send ships to aid the beleaguered residents and appealing to their Greek brethren to withstand the Roman assault,76 Some modem historians have considered the account apocryphal, an annalistic lie designed to justify the later Roman war against Tarentum, or meaningless, since the Tarentines were too distant to help and too remiss in their duties to be trusted.77 However, there is good cause to think that Tarentum would have sought to support Neapolis. Tarentum’s presence in Neapolis implies that for the moment she was backing the Samnites, who had garrisoned the city. If, as previously stated, Rome had reached an understanding with certain cities in the extreme south and was in the process of winning Neapolis, she would throw her rivals, the Samnites and the Tarentines, into one another’s arms. Now the logical approach for Rome was to drive a wedge between the two, and she did just that by means of the alliance with the Lucanians and Apulians. 78 If For a similar position see Wuilleumier: p. 89. Strabo, VI.1.14-15 (264-265). 76 Livy, VIII.25.7-8, VIII. 27.1-5; Dionysius, XV.5.2. 77 Mommsen, History of Rome, I: p. 469; T. Frank, Roman Imperialism (New York, 1929): p. 45, n. 29; DeSanctis, II: pp. 298-299; and J. W. Spaeth, A Study of the Causes of Rome’s Wars from 343 to 265 B.C (Princeton, 1976): p. 55. 78 Livy, VIII.27.1-2. 74 75

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 35 Tarentum was blinded by rage and hatred for the Romans when they won Neapolis, these feelings were intensified by the knowledge that Lucania and Apulia had joined Rome. According to the Tarentine complaint, Rome was at the very gates of the city and all depended upon the success of the Samnites, now weakened by the loss of their Lucanian allies.79 By deceit Tarentum tricked the Lucanians into war with their new allies, the Romans, and in that same year the Second Samnite war began.80 The Lucanian alliance with Rome, made in 326, was of brief duration. Nevertheless, any Lucanian union with Tarentum must have been equally brief, since the Lucanians were well known to be the habitual enemies of that city, and they would have little respect for a Samnite alliance if such an agreement meant extended peace with Tarentum. Furthermore, we cannot believe, as Livy did, that the Lucanians were capable of uniform action. In Lucania there was room for pro-Roman as well as pro-Tarentine (and Samnite) factions. When considering Apulia, historians have customarily used Livy against himself. They point to contradictions in his narrative. For example, for the year 323 Livy referred to a dual tradition, one which said that Rome waged a new war against the Apulians in that year and another which said that the war was waged in defense of the same people. Livy preferred the former, because in his mind the Samnites were incapable of protecting themselves against the Romans and thus unlikely to open a front against the Apulians.81 Later Livy referred to an expedition by Fabius into Apulia,82 but he forgot, as do modern historians, his own statement that the rumor which the Samnites spread in order to draw the Romans into the Caudine Pass was that the Samnites were in Apulia and about to take Luceria, a good and faithful ally of Rome. The key to the problem is supplied by Livy himself, who gave the reason for Rome’s hasty march to Luceria’s aid. It was done to forestall the defection of all of Apulia: Haud erat dubium quin Lucerinis opem Romanus ferret, bonis ac fidelibus sociis, simul ne Apulia omnis ad praesentem terrorem deficeret.83 In other words, Rome was not allied with all Livy, VIII.27.3-4. Livy, VIII.27.5-11. 81 Livy, VIII.37.3-6. 82 Livy, VIII.40.1. 83 Livy, IX.2.1-5; cf. Beloch, Römische Geschichte: p. 404, who 79 80

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Apulia but only with Luceria and perhaps a few other cities. Some historians doubt the existence of a Roman alliance with any or all of Apulia or Lucania at such an early date as 326, but even if these reservations are accepted, there is no reason to extend that doubt to the events which tell of Roman involvement in these same areas following the Caudine disaster in 321.84 The defeat at the Caudine Pass weakened Rome’s federation, but during the brief period of peace which followed, she immediately set about to compensate for her losses and to compromise the Samnite gains by surrounding the latter with a chain of allies. In 318, Canusium and Teanum submitted to Rome.85 Since they now gave hostages to Rome, they may have been partners in the RomanoApulian alliance of 326 and then defected after the Caudine disaster. Soon after, Roman forces took Forentum, an Apulian city on the border near Lucania.86 Then the campaign was extended into Lucania, and in 317, the city of Nerulum, a short distance from Thurii, was taken.87 If earlier Roman contacts with Apulia were viewed with suspicion by Tarentum, the fall of the above mentioned cities must have been alarming. Apulia and Lucania were part of her vast commercial empire, and Roman intrusion was not welcome. Roman forces had no better reason for advancing as far south as claims the tradition was fabricated. 84 In spite of what he considered many irregularities in the tradition, E. T. Salmon, Samnium and the Samnites. (Cambridge, 1967): pp. 230-231, supported Roman diplomatic activity in Apulia in 318-317. Beloch, Romische Geschichte: pp. 400ff., also dated Rome’s first contacts with Apulia to the period after 321. 85 Livy, IX.20.4; Diodorus, XIX.10.2. Arpi also seems to have been friendly toward Rome, since Livy reported, IX.13.9-10, that Roman troops were provisioned from this city in 320. Beloch, Römische Geschichte: p. 368, cited Livy, IX.44.16, and Diodorus, XX.90.4, as evidence that Arpi was taken at the end of the war, but both historians claimed that the city was recaptured at the later date. 86 Livy, IX.20.9. Beloch, Römische Geschichte: pp. 402 f., suggested that this was the same city which Diodorus, XIX.65.7, called φερέντη. Furthermore, Beloch maintained that the activity around Forentum and Nerulum was an anticipation of later events. Salmon, Samnium, p. 231, has taken the same position. Their arguments do not seem cogent in light of Roman movements in the next few years. 87 Livy, IX.20.10.

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 37 Nerulum than to establish contacts with one of Tarentum’s arch rivals, Thurii, and perhaps also with Metapontum. That Tarentum was immediately concerned with Roman encroachment is evident from Tarentine intervention at Luceria. As told by Livy, the tale may be partially fictitious,88 but no one can doubt the real possibility that a complaint of some sort was lodged or that Tarentum worked behind the scenes against Roman interests in the area.89 Rome established a large colony at Luceria in 314, and this city remained a bulwark for protecting Roman interest in the area for decades. Rome did not cease making further inroads southward, and her movements in the next decade in the near regions of Tarentum were an additional source of anxiety to the latter city; in fact, Rome seems to have endangered Tarentum herself. Diodorus reported that in 310, when the Roman army was a great distance away, the Iapyges, who supported the Romans, were attacked by the Samnites.90 Then, in 307, a Roman campaign was directed at the Sallentini,91 who, like the Iapyges, were near neighbors of the Tarentines. the Iapyges inhabited parts of Southern Apulia and Calabria, that is, part of the same general area 88 Livy, IX.11-16. See Livy, IX.26.1-5, for the colonization of Luceria; cf. Velleius Paterculus, 1.14.4, Diodorus, XIX.72.8-9. The traditional accounts of 321-315 are a maze of contradictions prompted by the desire of some proud Roman annalists to erase the memory of a humiliating defeat and an equally humiliating peace. It has been conclusively shown that many of the accounts of the events ca. 320 are duplications of events which occurred later. Authors may differ on minor points, but there is widespread agreement on the nature of events from 321-315. A few of the more important discussions are H. Nissen, “Der Caudinische Friede,” Rheinischen Museum für Philologie, XXV (1870): pp. 165, Beloch, Römische Geschichte: pp. 397ff., and E. T. Salmon, “The Pax Caudina,” JRS 19 (1929): pp. 12-18. 89 Spaeth: p. 55. Wuilleumier: pp. 90-1, pointed out that Tarentine opposition to Roman advancement was quite natural and that all such features which occur in the tradition cannot be false. 90 Diodorus, XX.35.1-2. 91 Livy, IX.2.4-5. Wuilleumier: pp. 94, 668-669, believed that Tarentum supported the Samnites with arms and money and was the source of the gold and silver armor worn by the Samnites in a battle against the Romans in 308; cf. Livy, IX.40.1-17. Beloch, Römische Geschichte: p. 417, believed the events false because no detailed account was given.

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as the Sallentini.92 The Romans invaded Iapygia in 306 and took Silvium,93 a city held by the Samnites and just over a day’s march from Tarentum. Thus we have three references to Roman involvement in the territory around Tarentum. We hear no more of Roman activity in 94this area for a few years; she was busy finishing the war against the Samnites, with whom peace was made in 304.95 But Roman interest in the extreme Southeast must have remained alive, because Diodorus said that Tarentum was at war with the Romans and Lucanians when she sought mercenary assistance from Cleonymus to meet the danger.96 Although Livy’s account of this war is confused, nevertheless it is clear that the Romans were active in the Sallentine peninsula and that they restored Thuriae, a city in that region taken by Cleonyymus, to its original inhabitants.97 The site of this city is unknown, and it has been suggested that Livy actually meant Thurii.98 While this is possible, since the latter was a foe of Tarentum and no doubt would have sided with Rome, in some manuscripts of Strabo we find that there was a Θυραῖαι, Θυρέαι, or Θὐρία in Iapygia.99 Thus it seems certain that Rome made friends in the territory about Tarentum and that Cleonymus was called in to punish the pro-Roman cities and drive off the intruder. Roman activity in the war against Cleonymus fits well with the picture we have of earlier Roman Strabo, VI.3.6 (282), said that from Brundisium to Tarentum one travels through the area variously known as the Messapian, Iapygian, Calabrian, or the Sallentine Peninsula. The same author, VI.3.8 (283), located Silvium approximately 300-350 stades from Tarentum. Spaeth, Rome’s Wars: p. 56, asked, “Was Rome employing once more one of her favorite strokes of policy attempting to secure a position in the rear of an actual or potential rival?” 93 Diodorus, XX.80.1. 94 Diodorus. XX.104.1. 95 Livy, IX. 45.1-4; Diodorus, XX.101.5. 96 Diodorus, XX.104.1-4. Perhaps Tarentum called in Cleonymus because Rome had just made peace with the Samnites, whom Tarentum had hoped would stop the Romans. 97 Livy, X.2.1-3. 98 Beloch, Römische Geschichte: pp. 435-436. 99 VI.3. 6. (282) Οὐρια (Uria) is an emendation and accepted by Mommsen, History of Rome, I: p. 483. However, Wuilleumier: p. 96, reported the existence of a bronze caduceus with the inscription ΔΑΜΟΣΙΟΝ ΘΟΥΡΙΟΝ/ΔΑΜΟΣΙΟΝ ΒΡΕΝΔΕΣΙΝΟΝ. 92

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 39 campaigns in the same area. Metapontum was another city which probably had friendly dealings with Rome and, as a consequence, suffered at the hands of the Tarentine mercenary. Cleonymus supposedly used Lucanians in a treacherous assault on Metapontum which resulted in his carrying off numerous hostages and a great quantity of silver.100 It should not puzzle us that Lucanians also fought alongside Romans in the war. Roman friendship with Metapontum, a Greek city in Lucania, may be the source for her Lucanian allies and at the same time the reason for Lucanian hostility. The Lucanians were no more united in purpose than were the Apulians or the Samnites. The ancient historians frequently view them as a people with a common policy, but since they lacked organization, combined action was impossible. As stated earlier, Seltman put forth the thesis that the triskeles symbol on Metapontine coins indiated that the city was allied with Agathocles;101 however, Agathocles was active in the region of South Italy after 300.102 Why then was Metapontum so roughly handled? In view of the testimony that Cleonymus and Tarentum were at war with Rome, it is reasonable to assume that Metapontum and Rome were allied in some way. Rome was active in the Southeast for years before Cleonymus’ arrival, and her friendship with Metapontum, Thurii, and other cities in Lucania, Apulia, and Calabria may have been of long standing. Such a friendship would benefit all concerned, and if Rome had not come into contact with the above territories at the time of Alexander’s Italian adventures, then after his death Metapontum and Thurii Diodorus, XX.104.3. See above, pp. 15 f. 102 Agathocles’ attacks on Corcyra and Croton were after 300 (see Diodorus, XXI.2-3; XXI.4). Strabo, VI.3.4 (282), placed his aid to Tarentum after Cleonymus’ adventure. Moreover, Diodorus, XXI.4.4. mentioned a treaty which Agathocles made with certain Italian peoples and placed the reference between events dated to 298 and 295. H. J. W. Tillyard, Agathocles (Cambridge, 1908): pp. 210-218, suggested that Agathocles answered requests of certain Italian peoples for assistance against Rome. Tillyard dated Agathocles’ Italian adventures after 300. Beloch, Römische Geschichte: p. 436, suggested that the Roman colony at Venusia (291) was established to protect Roman interests in the South against Agathocles. It is possible that when Cleonymus failed to achieve the desired result, Agathocles was called in by Tarentum to oppose the Roman menace. 100 101

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would seek to establish ties with Rome as a potential guardian against Tarentine intrusion into their affairs. If such were the case, Rome would have gained strong economic and political allies from whom she could learn much and would have incurred Tarentum’s lasting hatred in the process. Although nothing is heard of Metapontum after peace was made, the tradition suggests that Roman interest in south Italy was firmly established. For example, a foedus granted to certain Lucanians who were being harassed by Samnites gave Rome the pretext for the Third Samnite War (298-290),103 Then, in the next decade, Rome protected Thurii against Lucanian aggressors: when she sent a fleet around the Lacinian promontory in support of the Roman garrison stationed at Thurii, she broke the “old” treaty between Rome and Tarentum and precipitated the Pyrrhic War.104 This was merely the beginning of the final stage of Roman military expansion in south Italy. The process had begun almost fifty years earlier in Campania, and, as if Tarentum had known the ultimate goal, she had opposed Roman southern expansion from the outset. In the fourth century, Roman interests were not restricted to her own limited territory. Her horizon had significantly widened to take in areas which previously were outside her field of vision. In 313 Rome sent a colony to the island of Pontia.105 The purpose of the colony is unknown, but possibly it was founded to control piracy in the Tyrrhenian Sea and to secure the Roman lines of communication with Campania.106 The construction of the Via Appia (begun in 312) lends support to this argument in so far as the road would lead to greater control of and increased contact with

Livy, X.11.10-13, X.12.1-4; Dionysius, XVII-XVIII. The latter said that assistance for the Lucanians was the πρὸφασις for the war; the reason was Samnite power. The sources for the war (Livy; Frontinus, Stratagems I.6.2) conflict. One or both consuls for 298 were active in Lucania and perhaps against some of the Lucanians. The elogium of L. Cornelius Scipio Barbatus, Cos 298 (CIL, I2, p. 377, no. 7), is the best source and claimed that Scipio subigit omnen Loucanam. If this was the case, then Metapontum found security under Roman protection. 104 Livy, Periocha XII; Appian, Samn. VII.1, cf. VII.2; See above pp. 29ff. 105 Livy, IX.28.7; Diodorus, XIX.101.3. 106 Thiel: pp. 10-1; cf. Frank, Roman Imperialism: p. 58, n.17. 103

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 41 Campania.107 Also, the creation of the duumviri navales in 311 would facilitate the policing of the Tyrrhenian Sea.108 However, it is not difficult to see the foundation of the colony at Pontia, the Via Appia, and the creation of the duumviral squadrons as part of a policy which looked beyond the immediate concern for security in Campania. Indeed, Mommsen interpreted the policy as part of the Roman design to subjugate Italy,109 while others maintained that it was a policy of expansion based upon the desire for increased trade.110 Regardless of the interpretation, from either a political or an economic point of view, Carthage, like Tarentum, had cause to fear such a policy. A Roman colony on Pontia plus an enlarged, improved Roman fleet would arouse Carthaginian suspicion and might well cause her to demand some assurance from Rome that her own Mediterranean position was not in jeopardy, especially since this may not have been the first time Carthage had reason to suspect Roman activity in Tyrrhenian waters. Diodorus reported that in 387 Rome sent colonists to Sardinia, which had revolted from Carthage the previous year.111 If we can trust Diodorus, the 107

10).

Livy, IX.29.5-6; Diodorus, XX.36.2; CIL, 12, p. 192 (elogium

Livy, IX.30.4. Mommsen, History of Rome, I: p. 476. 110 Beloch, Römische Geschichte: p. 409; H. H. Scullard, A History of the Roman World from 753 to 146 B.B (London, 1961): p. 112; Thiel: pp. 1011; and Cassola, Ι gruppi politici romani: pp. 128-9, are among those who viewed the colonization and road building as paIt of a uniform program. However, some stressed expansion as the major factor in such a program while others claimed that protection was the motivation. E. S. Staveley, “The Political Aims of Appius Claudius Caecus,” Historia 8 (1959): pp. 429-430, and Cassola, I gruppi politici romani: pp. 128-145, both made strong cases for an economic interpretaτion of such expansion and both maintained that Appius Claudius Caecus and his circle of friends were instrumental agents in the formulation of such a policy and present a picture of rival factiones within Rome. 111 Diodorus, XV.27.4. Thiel: p. 55, questioned this reference at the risk of being found “guilty of the sin of trying to prove my point by eliminating items that tell against it.” He claimed first that Rome was too weak and too badly in need of men to send 500 colonists to Sardinia so soon after the Gallic sack. He admitted that her conquests prior to the sack may have supplied Rome with sufficient manpower and ships but 108 109

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two references do much to explain why, in the second treaty with Carthage (348), Sardinia was declared completely off limits to Romans.112 Moreover, Theophrastus said that Rome once (ποτε) tried to colonize Corsica with twenty-five ships.113 The attempted colonization best fits the period immediately after the creation of the duumviral squadrons when Rome certainly had twenty-five ships at her disposal.114 We can assume that Carthage was unhappy with the attempt, because we know that one of the provisions of the Romano-Carthaginian treaty of 306 was ut Corsica esset media iter Romanos et Carthaginienses.115 Evidently Carthage could not exclude Rome entirely from the island, as she had done earlier in the case says that the catastrophe destroyed her accomplishments. Second, by the terms of the first treaty with Carthage, Rome was only allowed to trade in Sardinia (Polybius, III.22), and since Rome’s colonies were always military and not commercial, she would not risk a break with Carthage, who undoubtedly sent a force to Sardinia to quell the revolt. However, we do not know that all Roman colonies were military, and certainly Ostia and Antium, just to name two, were more than likely partially oriented toward commerce. Furthermore, the colony sent to Sardinia may well have been designed to offset the Gallic disaster. In other words, it was Rome’s first attempt to win back a position of supremacy and to make amends for her losses. It may be that the colonists were refugees. 112 Polybius, III.24.11-14. 113 Theophrastus, Historia Plantarum V.8.2. 114 The ships could not have sailed after 287, the year of Theophrastus’ death. See RE Suppl. VII, s. v. “Theophrastos” (Ο. Regenbogen), esp. col. 1357. Thiel: pp. 18-19, agreed that this was the best date if the Theoophrastus reference is authentic. But Thiel said that the use of ποτε places the event in the remote past and claimed that Theophrastus was guilty of confusing Romans with Etruscans. Furthermore, Rome had her hands full in 311 and would not have tried to colonize overseas. The fact that Pontia was colonized in 313 does not matter because it “simply belonged to Italy.” In answer to Thiel’s arguments, it ought to be pointed out that ποτε is perhaps more often used as just a temporal infinite, with no sense of “remote past.” The confusion between Etruscans and Romans is conjecture, and it is simply not true that the colonization of Pontia should not be considered as evidence, since men and ships were still needed-the very ingredients of the colony sent to Corsica. There is one possibility that has not been mentioned, namely, that the attempted colonization of Corsica actually resulted in the colonization of Pontia. 115 Servius, Ad Aen IV. 628; cf. Livy, IX.43.26.

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 43 of Sardinia, and this may reflect the increase in Roman power on the seas between the years 348 and 306. A further indication of the mounting Carthaginian suspicion of Rome’s rising power is the clause in the Philinus treaty, as the treaty of 306 is called, which said that neither the Romans nor the Carthaginians were to approach the shores of the other’s territory.116 Presumably this meant the recognition of Italy as the Roman sphere of influence and Sicily, Africa, and other areas specified in earlier treaties as the Carthaginian. However, Carthaginian respect for Rome was only partly the reason for the Philinus treaty. The activity of Agathocles, ruler of Syracuse, makes the picture complete.117 Agathocles was engaged in a campaign to win control of Sicily and, in the process, came to blows with Carthage. The latter had greatly increased her military strength in Sicily during Agathocles’ reign and by 311 had attacked Syracuse.118 Agathocles carried the war to Africa and, after limited success, returned to Sicily where his position was threatened.119 The details of the military activity do not concern us here, but of significance is the mercenary support which Agathocles enlisted from Italy. Eighteen Etruscan ships helped to break the Carthaginian blockade of Syracuse in 307 and enabled Agathocles to return to Africa.120 We do not know where the Etruscans came from or, for that matter, where Agathocles recruited the Campanian and other mercenaries he used in his adventures.121 On the one hand, the Etruscans and other 116 M. Cary, “A Forgotten Treaty between Roma and Carthage,” JRS 9 (1919): pp. 67-77, has convincingly argued for the authenticity of this treaty and all attempts to refute it have, in my estimation, failed. 117 Diodorus, XIX.65.1-6; XIX. 102-4. Cary, CAH VII: pp. 622ff. Only a general outline can be given here. There will be no attempt to argue the many points which are disputed, since they have no bearing on the subject. For the most part, the dates are those given by Cary 118 Diodorus, XIX.106-110, XX.13-18; Justin, XXII.3.8-10; Cary, CAH VII: pp. 623f. 119 Diodorus, XIX.110.5, XX.3, XX.55.5; Justin, XXII.4-5, XXII.8.1-3. 120 Diodorus, XX.61.6; Justin, XXII.8.4-5. 121 For Samnite, Etruscan and Celtic mercenaries, see Diodorus, XIX.106, XX.11.1, XX.64.2. Margit Sarstrom, A Study of the Coinage of the Mamertines (Lund, 1940): pp. 2-5, argued that since Diodorus never mentioned Campanians, the many references to Campanians (Polybius,

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mercenaries from Italy may have been adventurers without much political significance except that they came from Italy, and Carthage, while she wanted to set very definite limits to Rome’s own activities, also wanted to inform the latter, now the recognized mistress of Italy, that hereafter she ought to check the flow of mercenaries southward.122 On the other hand, there is some evidence that Rome may have given encouragement to such adventurers and may even have practiced piracy. Strabo informs us that Demetrius Poliorcetes sent back to Rome Italian pirates whom he had captured with the complaint that the masters of Italy ought not to send out pirates.123 Later, proud Roman historians would have omitted any record of pirate activity, but we ought not to assume the tradition to be false. Polybius says that in 168 Rome and Rhodes had been in contact for about 140 years.124 Demetrius had undertaken the siege of Rhodes in 305.125 and since this date fits the date for the establishment of the Roman-Rhodian contact, it is tempting to see some connection between the pirates and the beginnings of Rome’s association with the island.126 I do not mean to imply that Rome was meddling in eastern politics at such an I.7.2.1, 8.1; Dionysius, XX.4.8; Cassius Dio, frag. 40.6; Zonaras, 8.8; Strabo, VI.2.3 (268), are incorrect: Samnites were meant instead. She does not prove her case and makes too much of Diodorus’ failure to mention Campanians. 122 Scullard, Roman World: p. 118, n. 2, said; “Possibly Agathocles had relations with Rome, though this is nowhere expressly stated.” This possibility is also mentioned by Spaeth, Rome’s Wars: p. 61 (especially n. 37) and Cary, CAH VII: p. 635. It is not always clear whether the authorities meant friendly or hostile relations. Spaeth certainly meant the latter. 123 Strabo, V.3.5 (232). 124 Polybius, XXX.5.6; cf. Livy, XLV.25.9-10. 125 Diodorus, XX.82-88, XX.91-100; Plutarch, Demetrius 21-22. 126 Cassolai: pp. 28-30, suggested such a connection. F. W. Walbank, “Polybius and Rome’s Eastern Policy,” JRS 53 (1963): pp. 2-3, is only the latest of the many scholars to collect the evidence for Roman activity with the East at such an early date. Although he does not place much significance in such evidence, he does admit that, “occasional Romans, or Italians using the Roman name, were active in eastern waters from the fourth and third centuries; and one would expect early Rome to share the Etruscan contacts with Greece. Naturally too the Hellenistic world had heard of Rome: Italy was not ultima Thule.”

THE FOURTH CENTURY ORIGIN OF ROMAN DIDRACHMS 45 early date but merely wish to point out that Roman contacts with extra-Italic territories kept abreast with her domestic and military advancement in the fourth century and offer ample proof that Roman power and interests were at least a potential threat to Carthage at a time when Agathocles presented a formidable danger to Punic interests.127 We do not know if Agathocles and Rome were on friendly terms or not, but it seems more than coincidental that one year after the Etruscans gave assistance to Agathocles, Carthage concluded a treaty with Rome concerning relative spheres of influence.128 In conclusion, Rome was too active both in Italy and in the Mediterranean in the last quarter of the fourth century to neglect such a vital factor in her development as her coinage. Indeed, Rome could not have extended her influence into these areas without acquiring numismatic sophistication in the process. The widening gulf between Rome and Carthage precludes any possibility that the latter was an instrumental agent in the introduction of Roman coinage. Instead, the extension of Roman influence into South Italy, an area long accustomed to coined money, was the source of such sophistication.

127 Both Scullard, Roman World: p. 114, and Cary, JRS (1919): p. 76, have strongly emphasized this very point. 128 It is significant that Carthage also reached an agreement with Agathocles in this same year (306). See Diodorus, XX.79.5; Justin, XXII.8.15. 

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ROMAN-CARTHAGINIAN TREATIES: 306 AND 279/8 B.C. Mitchell builds on the logical consequence of the previous article, namely, that Rome was more sophisticated and methodical in their approach to southern Italy before 300 than is generally supposed. In support of that general proposition, Richard argues for the historicity of the Philinus treaty and confronts modern dismissals of Roman naval capabilities before the First Punic War.* Rome and Carthage concluded several agreements prior to the outbreak of the First Punic B.C.1 At least the first two of these are generally Carthaginian in origin and form, and little credence is rights, privileges, and concessions granted to Rome.

diplomatic War in 264 regarded as given to the Supposedly,

*This article was originally published in Historia 20.4 (1971): 633-655. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. 1 For extensive and up-to-date bibliographies as well as discussions of the important problems consult F. W. Walbank, A Historical Commentary on Polybius, I. (Oxford, 1957): 336-355; Giuseppe Nenci, “II trattato romano-cartaginese κατ τ ν Πύρρον διάβασιν, Historia 7 (1958): 263-299; Filippo Cassola, I gruppi politici romani nel III secolo A. C. (Trieste, 1962): “Appendice I” 84-88; Arnold J. Toynbee, HL: 519-555; and Andrew Alföldi, Early Rome and the Latins. (The University of Michigan Press, 1965): 350-355.

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until well into the third century, Rome had little experience in diplomacy, was still predominantly an introverted, agrarian, Italian power without developed interests beyond her own limited frontier.2 Whether this interpretation of the early treaties is correct is debatable, but for this essay the question is unimportant. The first two treaties between Rome and Carthage are dealt with only in so far as they contribute to our understanding and interpretation of subsequent agreements.3 In contrast, the last two RomanCarthaginian agreements concluded before formal hostilities began are clear indications of the prevailing attitude which the two states had toward one another prior to 264 B.C. The agreements in question are the so-called Philinus treaty of 306 B.C.4 and the diplomatic accord reached during Pyrrhus’ campaign in Italy (279/8 B.C.).5 In re-examining these compacts, I hope to show that during the last quarter of the fourth century Roman expansion and the general growth of Roman influence and power presented a formidable threat to Punic interests in the West. Obviously, relations between Rome and Carthage were deteriorating during the almost half century before the First Punic War. There is little doubt that the cause of the deterioration was an increase in the Roman sphere of influence. The Roman-Carthaginian diplomacy of 2 This interpretation is usually offered by those who date the first treaty to 509 B.C. as well as by those who date it to 348. Similarly, the interpretation does not change drastically if the second treaty is dated to 343 or 306 rather than to 348. For example, see E. Täubler, Imperium Romanum, I. (Berlin, 1913): 271; and Tenney Frank, “Mercantilism and Rome’s Foreign Policy,” AHR 19 (1912): 234f. Frank’s interpretation of the second treaty, which he dates to 348, is not an uncommon one applied to all the treaties: “Is it not apparent that the treaty is one-sided, that it secures full privileges for the Punic trader while limiting the Roman, that, in other words, it was drawn up by Carthage, an old trading state, to her own advantage and accepted by the then insignificant Roman state because the latter had little concern in foreign trade? ... In short, the treaty should be used as a Punic not a Roman document.” 3 Polybius, 3.22-24; Livy, 7.27.2; Diodorus, 16.69.1. I accept as fact that the first Roman-Carthaginian treaty belongs to the early years of the Republic and that the second can not be later than 348. The possibility of still other treaties, particularly in 343 (cf. Livy, 7.38.2), can not be argued here. 4 Polybius, 3.26.3-4; cf. Livy, 9.43.26. 5 Polybius, 3.25; Livy, Per., 13; Diodorus, 22.7.5.

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306 and 279/8 clearly attests to the growth of Roman strength rather than to her weakness or disinterest, and rather than indicating cooperation between the two states, the agreements are valuable evidence for the growth of Carthaginian suspicion concerning the speed and direction of Roman expansion.6 The evidence for Roman-Carthaginian treaties is mainly found in Polybius who, from both a concern for historical accuracy and a desire to weaken what he considered partisan accounts of the subsequent struggle between Rome and Carthage, presented the evidence for the treaties as he knew it.7 A major problem arises concerning the Philinus treaty recorded by Polybius, since he doubted its authenticity.8 However, Polybius’ record of the treaties is not infallible. Since we know of a number of instances where he erred or had imperfect knowledge of the three treaties he accepted, we have every right to question his authority, For example, he certainly did not have a thorough, first-hand knowledge of the authentic primary evidence when he dated the first treaty by the consulship of Brutus and Horatius, and he did not even give the date of the second treaty he recorded.9 Furthermore, the third agreement, as recorded by Polybius and dated to the Pyrrhic interlude in the West, does not preserve the terms of an actual treaty. This agreement, while maintaining the provisions of earlier compacts (i. e “the previous treaty), added a clause which some This by no means is the standard interpretation of these two Roman-Carthaginian agreements. The opposite view, for example, is presented by J.H. Thiel: 13ff., 48ff., who argues that the RomanCarthaginian treaties (even the Philinus treaty) are indications of Roman weakness. Furthermore, Thiel: p. 63, believes the agreement concluded during the Pyrrhic War actually resulted in Rome scrapping her own navy. Also, Nenci, Historia, 7 (1958): 293ff., sees the latter pact as the product of clever Carthaginian negotiations. 7 Polybius, 3.21.9-10. 8 Polybius, 3.26.2-4. 9 Walbank, Commentary: 339ff.; Alföldi, Early Rome: 351ff.; Toynbee, HL I: 519, n.4. Ample evidence is presented by the aforementioned to prove that both Horatius’ and Brutus’ names could not have been on the first treaty. About Polybius’ interpretation of the second treaty, M. Cary, “A Forgotten Treaty Between Rome and Carthage,” JRS 9 (1919): 69, says that “It will be seen at a glance that Polybius’ commentary is an absurd misfit.” The Philinus and Polybius’ third treaty are dealt with below. 6

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scholars consider the basis of a new agreement, but in fact, the clause itself does not constitute a new treaty. Although this clause is much debated, as shall be demonstrated, it does guarantee the authenticity of the Philinus treaty which Polybius refused to accept. Philinus was a pro-Carthaginian Sicilian historian who recorded a treaty which forbad Roman intervention in Sicily and Carthaginian intervention in Italy.10 According to Philinus, the Romans broke the agreement when they crossed to Sicily in 264 B.C. Polybius doubted Philinus’ account because it was used to support what he considered a false picture of the events leading up to the First Punic War and the party responsible for hostilities. Also, Polybius could not accept the agreement because he did not find a text of it, but it is likely that he did not find a text either because it was not available, because it was imperfectly preserved or because some proud, patriotic Roman had hidden or tried to destroy the fact of its existence.11 By Polybius’ own admission, the treaties were virtually unknown to his contemporaries, but neither his publication of the treaties, his popularity as an historian, nor his damnation of Philinus’ treaty could destroy completely the memory of an agreement which contradicted his account. For example, Servius certainly referred to the Philinus treaty when he gave the following information: in foedere cautum fuit ut neque Romani ad litora Carthaginiensium accederent neque Carthaginienses ad litora Romanorum ... propter illud quod in foederibus [similiter] cautum erat ut Corsica esset media 10 Polybius, 3.26. F. W. Walbank, “Polybius, Philinus and the First Punic War,” CQ 39 (1945): 1-18, has discussed Philinus as a source for Polybius’ history. 11 Theodor Mommsen, History of Rome, II. (New York, 1911): “Appendix, I” 524, observed that Polybius did not say that he uncovered the treaties, and Mommsen conjectures that his account ultimately depended on Cato the Elder, who made a search for Carthaginian infractions of the treaties (cf. H. Peter, HRR, I: frag. 84). Cary, JRS: 9 (1919): 67ff., agrees with Mommsen and adds an illuminating discussion of Roman archives. Cary concludes that Cato could have expunged the Philinus treaty from the archives. “It appears then that Polybius’ refutation of Philinus is quite inconclusive. The number of early treaties between Rome and Carthage remains an open question, and we are at liberty to give further consideration to Philinus’ treaty (p.70).” See Nenci, Historia 7 (1958): 264ff., for a lengthy consideration of Polybius, Cato, and the question of the Philinus treaty.

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inter Romanos et Carthaginienses.12 Nor was Livy convinced by Polybius that only three treaties were concluded by Rome and Carthage prior to the First Punic War, since under the year 306 he reported that Rome cum Carthaginiensibus eodem anno foedus tertio renovatum.13 Furthermore, Livy’s later reference to the agreement reached during the Pyrrhic War is perfectly consistent with his earlier statement: quarto foedus renovatum est.14 Perhaps Livy’s use of renovatum should not be literally interpreted, because he may merely mean that on such occasions foedera were negotiated for the third and fourth time.15 On the other hand, Polybius specifically said that the third treaty renewed earlier agreements.16 It is abundantly clear, however, that a compact made during the Pyrrhic War could not possibly renew the previous treaty mentioned by Polybius which is best dated to 348. A renewal of Polybius’ second treaty in 279/8 would have denied Rome seventy years of very remarkable development. In particular, Rome would not have obtained Carthaginian recognition of her increased territorial claims and enlarged sphere of influence which resulted from her victories over the Latins, Samnites, Etruscans, and Gauls. It is obvious that none of the treaties accepted by Polybius as authentic fits Rome’s historical situation in 306.17 In contrast, the terms of the Philinus Ad Aen., 4.628. 9.43.26. 14 Per., 13. 15 H. Last, CAH 7: 860, says that Livy’s use of renovatum may mean “no more than that a treaty was renewed by agreements which were the third and fourth in order of time ... “ See also H.H. Scullard, Roman World: “Appendix 7” 435. 16 3.25.2: έν αἶς τὰ μὲν ἄλλα τηροῦσι πὰντα κατὰ τὰς ύπαρχούσας ὁμολογίας. 17 Cary, JRS 9 (1919): 73, says, “But it is incredible that at a time when the Romans had acquired a predominant interest in almost every maritime part of Italy and had entered into permanently friendly relations with Latium, they should deliberately have rejuvenated a treaty which ignored every part of Italy except Latium and dealt with Latium as if it were a hostile country. Evidently the treaty which P3 confirms and presupposes cannot be P2. But P3 fits in excellently as a supplement to Philinus’ treaty.” Also, Toynbee, HL I: 543, says that by referring to the renewal of the 348 treaty during the Pyrrhic War, “Polybius is here making a demand on our credulity which is too extravagant to be acceptable, however high we may rate Polybius’s ability and honesty.” 12 13

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treaty present a true picture of Rome’s position and of her claims in 306, and historical consideration necessitate its acceptance as authentic. Thus, Livy’s foedus of 306 is the Philinus treaty, which in turn was the treaty renewed in 279/8. Moreover, this argument is supported by the infractions of treaty obligations which several of the ancient historians attribute to both Rome and Carthage just before the First Punic War broke out. They can only be infractions of the Philinus treaty, and even if they were false accusations designed to shift the blame for the war, they were fabricated with the Philinus treaty in mind.18 Consequently, the Philinus treaty is not only authentic, but it was the only agreement which bound Rome and Carthage between 306 and 264. Neither loyalty to Polybius nor faith in his historical criticism is compelling enough to disregard the authenticity of the Philinus treaty whereby Rome and Carthage in 306 recognized the inviolability of their respective spheres of influence, Italy and Sicily. It is quite a different matter, however, to establish the historical situation and reasons for the treaty. F. W. Walbank expressed the common historical objection to accepting the authenticity of Philinus’ treaty, namely that “This treaty can hardly be that referred to by Livy ..., for it is impossible that at so early a date [i.e.306] the Romans claimed Italy as their own sphere of influence, with Tarentum untouched and the Samnites not yet defeated; still less was it necessary to warn them off Sicily.”19 First, to answer Walbank, it is not necessary for a state to exercise direct control over an entire area to claim it as her sphere of influence: Carthage had long claimed control over much of the Western Mediterranean without having complete mastery, and no one seems to question the Punic claim to Sicily, although it was far from falling under Punic domination. In fact, since both Rome and Carthage were locked in struggles with indigenous elements in their respective Walbank, Commentary I: 346ff., seems inclined to accept 348 as the date for Polybius’ second treaty, but admits (p.349f.) that the third treaty cannot have been a strict renewal in light of recent Roman advances. However, Mommsen, History II: 524ff.; and G. De Sanctis, Storia dei Romani III (Torino, 1916): 29, n.79, date the first treaty to 348 and Polybius’ second agreement to 306. 18 See below 654 f. 19 Commentary I: 354. Walbank believes “Philinus’ treaty may have been an unpublished agreement toward the end of the war with Pyrrhus.”

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spheres, the treaty was obviously designed to protect each one from encroachment by the other. Second, it simply is not true that in 306 Tarentum was untouched by the expansion of the Roman Republic. Indeed, both Tarentum and Carthage had increased respect for Rome’s continued successful expansion in South Italy, and both saw the threat presented by the enlarged Roman navy and the development of her colonial enterprises. Certainly, such activities partially account for the demarcation lines drawn between the spheres of influence of the concern parties. Tarentine opposition to Rome must now be considered, since such opposition is a reliable indication of the growth of Roman influence on the peninsula and to what extent Rome presented a threat to those with vested interests in the western Mediterranean. During the Second Samnite War (326-304) Rome’s expansion clearly took a southerly direction. Rome was a real or potential threat to many states, and Tarentum in particular saw her own best interest served by supporting Rome’s enemies whenever and wherever she could. This policy is manifested by the record of Tarentine opposition to Roman encroachment on Neapolis in 326, to Roman diplomatic and military activity in Apulia and Lucania between 326 and 315, and to the foundation of the Roman colony at Luceria in 314. Finally, Tarentum was directly affected in the next decade when Roman troops actually advanced into southern Apulia and even into the Sallentine Peninsula (311-306). As a consequence of Rome’s increased interests in southern Italy, Carthage recognized her claim to all Italy as her sphere of influence in 306. Then, once Rome made peace with the Samnites (304), fearing a further loss of influence in the south, Tarentum sought protection through her traditional method of answering opposition: in 302 she called upon a mercenary leader, Cleonymus, to stem the tide. Although the tradition concerning the war with Cleonymus is confused, Rome certainly had made friends in several south Italian cities in Apulia, Lucania, and Calabria. Perhaps Metapontum, which was attacked by Cleonymus, and Thurii were numbered among the states friendly toward Rome.20 20 With notable exceptions, I am in general agreement with the interpretations of this period offered by the following: Pierre Wuilleumier, “Tarente des origines à la conquête romaine,” Bibliothèque des Ècoles Françaises a’Athénes et de Rome, 148 (1939): 89ff.; E. Stuart Stavely, “The Political Career of Appius Claudius Caecus,” Historia 8 (1959): 410-433;

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Some scholars maintain that the ‘old’ treaty between Rome and Tarentum mentioned by Appian was signed at the end of this brief struggle between Rome and Cleonymus.21 The only known clause of the treaty forbade Roman ships to sail beyond the Lacinian Promontory. Filippo Cas sola interprets the agreement as one involving mutual prohibitions, affecting warships only, and analogous to the Philinus treaty in that it established spheres of military influence.22 While this is possible, there is no information that the treaty dealt with such matters. It is unlikely, moreover, that a treaty which Appian said was παλαιά in 282 when Rome broke it, was the agreement which ended the war with Cleonymus. It is more likely that the treaty which Alexander of Epirus concluded with Rome in 332 is the agreement mentioned by Appian, since Rome would have little objection to such a restriction placed on her ships at such an early date.23 In 302, however, her position in Cassola, 121 ff. Useful and interesting information but not always convincing interpretations are also found in John W. Spaeth, Rome’s Wars: 20ff., 54ff., Tenney Frank, Roman Imperialism (New York, 1914): 38ff.; and Thiel: passim. Also helpful is E. T. Salmon, Samnium: 214ff., but Salmon does not emphasize Roman expansion strongly and at times follows the provocative but largely unsuccessful treatment of this period by K. J. Beloch, Römische Geschichte bis zum Beginn der punischen Kriege (Berlin, 1926): especially 392ff. Salmon’s interpretation of this period should be read together with M. W. Frederiksen’s stimulating review of his book in JRS 58 (1968): 226f. 21 Samn., 7.1; cf. Livy, 10.2.1-3; Diodorus, 20.104.1. The latter specifically stated that Cleonymus arrived after Rome and Tarentum began hostilities: his arrival was the result of the war, not the cause. 22 Cassola: 38, and Thiel: 20ff., have similar positions, but while Cassola rightly insists upon the positive development of the Roman Republic, and even upon a conscious policy of southern expansion, Thiel, who says much more about the treaty than is justified, claims that the agreement was humiliating for Rome because it excluded her from a significant part of Italian waters. Most scholars have accepted 302 as the date for this treaty: Beloch, Römische Geschichte: 435f.; De Sanctis, Storia dei Romani, II: 347, n.2; Wuilleuumier: 95f. For the view that the treaty applied only to warships see De Sanctis, Storia II: 347; Beloch, Römische Geschichte: 435; Thiel: 21; Cassola: 38. 23 Both M. Cary, “The Early Roman Treaties with Tarentum and Rhodes,” Journal of Philology 35 (1920): 166ff., and Tenney Frank, CAH 7: 640, have offered convincing reasons why the treaty cannot be dated later than 332-330 or 314. However, I can not follow Cary’s opinion that the

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the South was too well established to expect her to concede to Tarentine demands. Regardless of the date preferred, it should be evident that Rome came into contact with Tarentum and had interests in the extreme southern sections of Italy much earlier than many scholars believe. Such contacts, indicative of Rome’s developing interests in the last quarter of the fourth century, were chiefly responsible for the delineation of spheres of influence in the Philinus treaty and for Rome’s conflict with Tarentum and Cleonymus. Even if the Roman-Tarentine agreement mentioned by Appian is equated with the treaty which ended hostilities in 302, acceptance of this date does not prove either that the treaty was signed out of mutual disinterests24 or that an agreement not to sail beyond the Lacinian Promontory is indicative of the weakness of the Roman Republic in 302.25 Certainly, Roman strength and the respect it commanded is reflected by the Roman treaty with Tarentum, just as in 306 Roman strength in southern Italy prompted Carthage to seek a guarantee from Rome that Punic territory was secure from Roman military encroachment.26 Moreover, both Tarentine and Carthaginian suspicion concerning war against Cleonymus was fabricated by Diodorus (p.168). 24 E. Badian, Foreign Clientelae: 264-70 B.C (Oxford, 1958): 31, n.1, interprets the treaty as “a modus vivendi based on a mutual lack of interest.” Badian also doubts the war with Cleonymus. However, Frederiksen, JRS 58 (1968): 226f., argues persuasively that the confused tradition may be the product of combining Greek sources with Roman fasti. 25 Thiel: 21 conjectures that the treaty “proves that at the moment Roman naval aspirations were weak or at least that, if such aspirations existed, Rome did not feel able to realize them.” 26 Badian, FC: 31, sees the growth of Roman influence in entirely different terms: “Rome was to an increasing extent to acquire the reputation of the strong protector to whom weak nations most naturally appealed in their danger. It was thus, in particular, that Rome first came into close contact with the Greek world: when Thurii was in trouble in 282 ....” Not only does Badian view Rome’s close contact with Greeks as a very late phenomenon, but his interpretation of the cause for the initial contact is singularly pro-Roman. Certainly, to Tarentum, Carthage, and several other states, it can be argued that Rome’s protection of weaker nations seemed more like a conscious plan of expansion: imperialism pure and simple. Because we are so much at the mercy of our Roman sources, we ought to exercise a sufficient degree of skepticism when reading their accounts.

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the direction and purpose of Roman expansion was greatly increased by Roman developments in other areas. For example, Rome possessed and had access to an unknown quantity of ships before the end of the fourth century and this fact alarmed the predominantly naval powers of Carthage and Tarentum. It is common knowledge that Rome took a number of ships from Antium in 338 and docked them in the navalia.27 Later, in 313, Rome obviously used a fleet of ships when she colonized the island of Pontia,28 and subsequently, in 311, Rome created commanders of naval squadrons, duumviri navales, who were charged with repairing (reficiendae) existing ships.29 Such evidence for the existence of a Roman navy is often depreciated and the failure of a duumviral squadron in an operation near Nuceria in 310 is frequently cited as proof that the Roman navy could not have been a threat to either Tarentum or Carthage.30 This is not the proper conclusion to draw from the Nucerian incident, however, since the expedition failed because the Romans wandered too far from shore while plundering and, as a result, were cut off from their ships and defeated in what must have been an insignificant land engagement. There is very little information concerning the activities of the Roman squadrons, but it does not follow from our limited evidence that the duumviral squadrons operated only as the need arose31 or that the paucity of our information is necessarily indicative of the state of the Roman navy.32 Sir Frank Adcock suggested that the ships were used as complements to land Livy, 8.14.12. Livy, 9.28.7; Diodorus, 19.101.3. 29 Livy, 9.30.4. Each duumvir commanded ten ships (Thiel: 9). 30 Livy, 9.38.2-3. Thiel: 4, 10; and Scullard, Roman World: 112, are just two of many who use the evidence negatively. 31 As assumed by Theodor Mommsen, Römisches Staatsrecht, II (Leipzig, 1887): 579ff.; and Thiel: 27. 32 Thiel: 5f. Often Thiel gives so many solutions to a problem he seems to contradict himself. For example, while arguing that the squadrons were an insignificant force, he concluded that “if they only mentioned those two poor expeditions [310 and 282] in the naval sphere, there was nothing better to be mentioned at all .... “ But Thiel goes on to say that the policing of Italian waters and the quelling of piracy were mundane activities which went unrecorded by the annalists, who were more interested in spectacular events. It might be added that such activities could only be carried out successfully by a standing fleet. 27 28

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operations,33 and it seems likely that the land operations obscured the role played by the sea contingent in carrying men, provisions, communications, and giving naval support.34 Our ancient sources display a marked disinterest in naval activities, and, indeed, disdain for the sea was presented as a characteristic feature of the typical Roman personality. Considering how little we know about the Roman navy during periods when there was certainly a considerable fleet afloat, it must be concluded that the ancients presented the development of the Roman Republic in such a preconceived fashion as to leave no place for the development of the Roman navy. As in the case of the Roman colony sent to Pontia, Roman ships were also used in other non-military activities. Theophrastus, for instance, informs us that Rome once tried to colonize the island of Corsica with twenty-five ships, and 287, the year of Theophrastus’ death, forms the terminus ante quem for the attempt.35 Both Pontia and Corsica are in waters which at one time were considered within the Carthaginian sphere of influence.36 This is clear from Polybius’ second treaty of 348 in which a clause was included prohibiting Rome from gaining access to Sardinia.37 Corsica is not mentioned in the 348 agreement, but Servius said that one of the provisions of the Philinus treaty of 306 was ut Corsica esset media inter Romanos et Carthaginienses.38 Apparently, the attempt to colonize Corsica took place between 348 and 306. Those who date the Roman attempt to colonize Corsica to the time of the colonization of Pontia, or after 311 when Rome certainly had at least twenty-five ships, may not be far from the truth.39 It is 33 The Roman Art of War Under the Republic (Harvard, 1940): 33. Though Adcock also thinks the fleet operated only on specific occasions. 34 Beloch, Römische Geschichte.: 462f., has shown that the fleet which eventually sailed beyond the Lacinian Promontory in 282 was acting as a complement to land forces in the South. 35 Cf. Polybius, 1.10. 36 Theophrastus, Historia Plantarum, 5.8.2. See O. Regenbogen, R.E. Supplement 7: s.v. “Theophrastos,” especially col. 1357. 37 Polybius, 3.24.11. The Romans were forbidden to trade or to establish a colony in Sardinia. Rome may well have tried to colonize the island (cf. Diodorus, 15.27.4) at an earlier time and this resulted in Sardinia being declared off limits in 348. 38 Ad Aen., 4.62. 39 Cary, JRS 9 (1919): 76; Thiel: 1f. However, Thiel questions the

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possible, moreover, that the attempted colonization of Corsica actually resulted in the colonization of Pontia. The awakening of Roman interest in the Tyrrhenian Sea is surely attested to by the aforementioned colonial enterprises and, as demonstrated by the clause in the Philinus treaty, by 306 Rome was sufficiently strong enough to make Corsica a no-man’s-land.40 Consequently, by 306 Rome had acquired two ingredients of empire which might well make Carthage suspicious of her purpose: ships and holdings outside Italy in territorial waters once controlled by Carthage.41 Also, as mentioned earlier, by 306 Rome had extensive contacts in southern Italy, close to the Carthaginian sphere of influence, in Sicily, and within the territory Tarentum considered her own private concern. Moreover, by 306 there was the ever present danger that Rome, now rapidly increasing her own sphere of influence, would either join with or come into conflict with Agathocles, tyrant and then king of Syracuse from 317 to 289. Except for his continued hostility toward Carthage, Agathocles’ policy is not easy to determine. After initial gains against Punic forces in both Sicily and Africa between 312 and 308, Agathocles suffered setbacks both at home and in his foreign campaigns. When he carried the war against Carthage to Africa, Agathocles employed Etruscan, authenticity of the account and suggests that Theophrastus may have confused Romans and Etruscans. 40 Similarly, Marta Sordi, I rapporti romano-ceriti e l’ origine delia “civitas sine suffragio,” (Roma, 1960): 94ff., has argued that Roman colonizing activities in the Tyrrhenian Sea resulted in Carthage including clauses about Sardinia and Corsica in her treaties with Rome in 348 and 306. However, Sordi maintains that the Roman interest in the area was a reaction to Syracusan movements in the area. See Cassola, 32-33, for bibliography and discussion of this important period of Roman activity. Corsica’s position in 306, media inter Romanos et Carthaaginienses, may explain why the island was not mentioned in the peace settlement after the first Punic War (either in 241 or 238). The island was not recognized as Carthaginian, and thus Rome merely claimed Corsica without demanding that Carthage surrender it. 41 G. Forrest, JRS 46 (1956): 169-171, in his review of Thiel’s book, maintains that Thiel underestimates the information we have, and Forrest prefers to accept what little there is rather than reluctantly reject it as Thiel does. “If we with equal hesitation accept them the picture is altered (Forrest: 170).”

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Samnite, Campanian, and Celtic mercenaries.42 The Etruscans, traditionally allies of the Carthaginians, were now doing service for Agathocles. Possibly they saw their own interests best served by a party not associated diplomatically with Rome as was Carthage.43 The Etruscans served Agathocles well: eighteen of their ships helped to relieve a Carthaginian blockade of Syracuse in 307.44 The fact that eighteen ships could turn the tide indicates the potential threat presented by the ‘limited’ number of Roman ships. Furthermore, we do not know how or where Agathocles recruited his mercenaries. It is known that in 308 booty and some worthless troops were sent back to Sicily from Africa by Agathocles, but a storm arose, drove some of the ships off course, and they landed on the Pithecusan Islands.45 Perhaps these were the Etruscan ships which broke the blockade in 307.46 The landing of the ships at Pithecusae may indicate that Rome was not completely nonpartisan during this period. It is possible that the Pithecusan 42 Diodorus, 19.106, 20.11.1, 20.64.2; Polybius, 1.7.2, 1.8.1; Dionysius, 20.4.8; Cassius Dio, frag. 40. 8; Zonaras, 8. 8; Strabo, 6.2.3 (268). For general information concerning Agathocles see M. Cary, CAH 7: 617-637 (esp. 622ff.); H.H.W. Tillyard, Agathocles (Cambridge, 1908): esp. 167ff. 43 H. Nissen, “Die römisch-karthagischen Bündnisse,” Neue Jahrbucher für classische Philologie 95 (1867): 321-332, has argued forcefully for the acceptance of the Philinus treaty, pointing out (p. 326f.) that the Etruscans were switching their allegiance prior to the 306 treaty and that one consequence of this treaty was the solidification of the EtruscoSyracusan alliance. Tillyard, Agathocles: 167ff., has taken much the same position. It is difficult to see what the Etruscans hoped to gain from such an alliance. Agathocles did begin to show a much greater interest in South Italy after ca. 300, but even then the effect on Rome is unknown. Also unknown is the connection, if any, between Etruscan hostility toward Rome in the late fourth century and Agathoc1es’ policy toward southern Italy and specifically toward Rome. 44 44 Diodorus, 20.61.6; Justin, 22.8.4-6. Diodorus said the ships ἐκ Τυρρηνίας κατέπλευσαν. 45 Diodorus, 20.44.7. 46 However, Mommsen, History I: 418, seems to suggest that the Etruscans came from Corsica, which he maintains was still Etruscan in 310. Possibly the attempted colonization of Corsica by Rome was designed to dislodge the adventurers from the island. In fact, Nissen, Neue Jahrbücher, 95 (1867): 326f., argued that the attempted colonization of Corsica was part of Rome’s war with the Etruscans (311-309).

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Islands became Roman possessions in 326 as a result of Rome’s brief encounter with Neapolis. If this was not the case, then they were still under Neapolitan control in 308 and Neapolis was an ally of Rome.47 The possibility that Rome supported such activity or even personally trafficked in or gave support to pirates and adventurers on the high seas can not be totally dismissed. This fact is certainly implied by Strabo who says that Demetrius Poliorcetes sent back to Rome her Antinate pirate subjects, whom he captured, with the complaint that the masters of Italy ought not to send out pirates.48 Cassola has suggested the event has some connection with the friendly dealings between Rome and Rhodes which began about 306, since Demetrius began his siege of Rhodes in 305.49 Regardless, if the Etruscans were simply adventurers without political significance, they presented a danger to Carthage, and the recognition of all Italy as Rome’s sphere of influence in 306 reflects the Carthaginian desire to have Rome hereafter restrict the activities of such marauders to Italy. This restriction, if it was part of the Philinus treaty, would surely have applied to other mercenaries from Italy as well, because Agathocles made considerable use of the man power supply of the peninsula. In 306, the very year in which the Philinus treaty was concluded, Carthage also secured her territorial claims in Sicily by 47 Strabo, 5.4.9 (248), says that Neapolis lost Pithecusae in war and received it back from Augustus. Beloch, Römische Geschichte: 395, thinks that Rome’s treaty with Neapolis in 326 was too favorable for the latter to lose territory. However, see De Sanctis, Storia II: 301, n.2. 48 5.3.5 (232). 49 Cassola, I gruppi politici: 28ff., 41ff. See Polybius, 30.5.6; cf. Livy, 45.25.9-10. Most authorities have argued either for or against a formal agreement of some type even though Polybius’ expansion, colonization, and naval organization serve as concrete illustrations of the changes which occurred in the Roman Republic during the last quarter of the fourth century. Carthage was well aware of such changes and saw that Agathocles, who held a position between the two republics, might supply Rome with the justification for friendly or hostile relations with Sicily. This statement specifically rules out anything of that sort. A sample of the representative opinions are Mommsen, History: 11.3; De Sanctis, Storia II: 427, n.5; M. Holleaux, CAH 7: 822f.; Cary, JP, 35 (1920): 170ff. For evidence of Roman activity in the East in the fourth-third centuries, see Cassola, 31f.; Forrest, JRS 46 (1956): 170f.; F. W. Walbank, “Polybius and Rome’s Eastern Policy,” JRS 53 (1963): 2f.

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means of an agreement reached with Agathocles.50 It is interesting that Agathocles, who earlier had been active in Italy, now turned his attention to South Italy again. His later activity, however, holds few clues either to his earlier policy or to the purpose of his Italian campaigns. For instance, Cleonymus, who was the foe of Rome, seems also to have coveted control of Syracuse, but the tradition is not uniform in making Agathocles the friend or the foe of Tarentum. It may be that Rome became increasingly more interested in southern Italy as a result of Agathocles’ rise to power and his success in Magna Graecia.51 It is most unfortunate that Agathocles’ attitude toward Rome is unknown. Nevertheless, to Carthage he was a constant threat, and his use of Etruscan and other mercenaries from Italy directed Punic attention to the potential danger of Rome. The danger to Carthage might materialize in one of two ways. Rome and Agathocles might compromise Carthage’s position in the West by a mutual agreement, or Rome and Agathocles could become embroiled in a war and Rome might expand the conflict to Sicily. Again, Carthage did not wish to have her own Sicilian position undermined by still another power contesting for control of the island. Roman distrust and suspicion is very evident in the terms of the Philinus treaty of 306 and again comes to the surface during the negotiations which the two states engage in during Pyrrhus’ western adventure. In the third century, when increased Roman activity in South Italy again presented a threat to Tarentum’s interests, the Tarentines attacked a Roman squadron; this act precipitated the war with Pyrrhus, who was called upon to assist Tarentum in her struggle. Pyrrhus’ support for Tarentum brought about a Carthaginian attempt to negotiate an agreement with Rome against the king. Carthage was probably moved to action by the knowledge that the Epirote prince was primarily and ultimately aiming at Diodorus, 20.79.5; Justin, 22.8.15. It would appear that Agathocles did not work in the best interest of Tarentum. For Agathoces’ activities in Italy see Wuilleumier, 96ff.; Tillyard, Agathocles: 196f., 203ff.; Cary, CAH 7: 630ff. His friendly relations with Rome are assumed by Scullard, Roman World: 118, n.2; and Cary, CAH 7: 635. On the other hand, Spaeth, 61, n.37, assumes hostility between Rome and Agathocles, and Beloch, Römische Geschichte: 436, maintains that the Roman colony sent to Venusia in 291 was intended to check Agathocles. 50 51

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driving the Carthaginians from Sicily. Carthage aimed at confining Pyrrhus to Italy, and although some agreement was reached with Rome, both the date and interpretation of the settlement are much debated. The agreement is generally dated and explained in the context of the Roman negotiations with Pyrrhus which took place during the first years of their struggle, yet the negotiations are no more firmly established in date and interpretation than the treaty in question. The accounts dealing with the negotiations are very confused and contradictory, and we despair of ever knowing the truth.52 It is not necessary to repeat all the evidence or to recount the plethora of modern conjecture, since it can not even be claimed that “One of the main benefits to be derived from another discussion of the problem will be to show that we will never know exactly what happened…”53 Yet the following possibilities can be mentioned for later reference. First, Pyrrhus may have tried to settle the dispute between Rome and Tarentum before hostilities began,54 perhaps so he could devote full attention to his major concern−driving the Carthaginians from Sicily.55 Second, Rome and Pyrrhus may have tried to reach a settlement after both the

Wuilleumier, 125-131; Pierre Lévèque, “Pyrrhos,” BEFAR 185 (1957): 341-356: Cassola, 163-170: Elias Bickerman, “Apocryphal Correspondence of Pyrrhus,” CPh 42 (1947): 137-146; Mary Lefkowitz, “Pyrrhus,” HSCP 64 (1959): 147-177. The aforementioned present a detailed examination of the negotiations, but for complete references to the ancient testimony see Broughton, T. R. S., The Magistrates of the Roman Republic, I-II (New York: APA, 1951): I, 190-194. 53 Lefkowitz, 153. 54 Plutarch, Pyrrhus, 16.3-4: Zonaras, 8.2; Dionysius, 19.9-10. Bickerman, CPh 42 (1947): 137, believes the tradition concerning the negotiations before Heracleia; Wuilleumier, 113f., doubts it, and Lefkowitz, HSCP 64 (1959): 167, n.17, says that a conclusion is impossible. Cf. Nenci, Historia 7 (1958): 284, 288ff. 55 Diodorus, 22.8.1-5: Cassius Dio, frag. 40.2; Zonaras, 8.2. Wuilleumier, 108, among others, maintains that these references show that Sicily was his true objective. After all, Pyrrhus did marry Lanassa, the daughter of Agathocles, ca. 295 (Plutarch, Pyrrhus, 9.3; Diodorus, 21.4, 22.8.2: Appian, Samn., 11.1), and the son of that union, Alexander, accompanied Pyrrhus on his western campaign (Justin, 18.1.3, 18.2.12). Cf. Lévèque, 125f. 52

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battle of Heraclea (280) and that of Ausculum (279).56 The tradition records that Rome was represented on both occasions by C. Fabricius and Pyrrhus by Cineas. It appears that after one of the battles Fabricius reached an agreement with Pyrrhus, which Cineas brought to Rome for confirmation. However, when the aged Appius Claudius Caecus spoke against the proposal, any type of a settlement was lost.57 Finally, it is possible that peace negotiations took place only after the battle of Ausculum, and therefore the interpretation of these negotiations depends on whether Rome or Pyrrhus is considered to be in the better position following this engagement.58 Since a clear understanding of the negotiations is further confounded by the tradition concerning the outcome of the two battles, it is difficult to arrive at an acceptable conclusion. Heracleia was certainly a convincing victory for Pyrrhus, but the Romans apparently fared better after Ausculum. They were not forced to withdraw from the area, but Pyrrhus suffered heavy losses, if not a definite defeat.59 Thus it is possible that Rome was more susceptible to a settlement following her defeat at Heracleia and Pyrrhus more anxious to reach an agreement after Ausculum. There is also a double tradition concerning the demands Pyrrhus 56 Frank, CAH 7: 646ff.; Wuilleumier, 113ff.; Lévèque 341ff. Cf. Lefkowitz, 161 passim. 57 As an example of the confusion, Frank, Roman Imperialism: 63, dates Appius’ speech after Ausculum, but in the CAH 7: 647, he places it after Heracleia. That Appius was the leader of the factio which advocated southern expansion can no longer be doubted: Frank, Roman Imperialism: 63; Cassola, 128ff.; Staveley, Historia 8 (1959): 410-433; A. Passerini, “Sulle trattative dei Romani con Pirro,” Athenaeum 21 (1943): 110ff. 58 Benedietus Niese, “Zur Geschichte des pyrrhischen Krieges,” Hermes 31 (1896): 481-507. Niese assumes that negotiations occurred only after Ausculum and with Passerini, Athenaeum 21 (1943): 109, does not believe the harsher conditions demanded by Pyrrhus are authentic. So also, Lévèque, 347 ff., but the latter believes negotiations took place after both battles, but the conditions for a settlement were similar. 59 Frontinus, Strategemata, 2.3.3; Orosius, 4.1.19-23; and Florus, 1.13, said that Ausculum was a complete Roman victory. Livy, Per. 13, said the battle was indecisive, and Justin, 18.1.11, stated that the outcome was similar to Heracleia: Pyrrhus was victorious but suffered heavy losses. See Lévèque, 154, 167f., n.22, on the confusion between the two battles among the ancients, and ibid., 172f., n.60, for a discussion of the results of the battles

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made in return for peace with Rome, and, correspondingly, the acceptance or rejection of these demands as authentic is affected by the scholarly interpretations of the negotiations. Originally Pyrrhus may have called for the freedom of all southern Italy and Roman confinement to Latium, while later, his conditions were apparently only a guarantee of Roman friendship and of freedom for Tarentum.60 However the battles, negotiations, and demands are presented, the fact remains that Pyrrhus could ill afford his losses, even when victorious. Following Ausculum he realized the futility of contending with Rome’s overwhelming man-power supply. This realization coincided with a request for help from the Sicilian Greeks, and Pyrrhus decided to make preparations for an invasion of the island.61 There are many possible placements and interpretations of the third Roman-Carthaginian treaty recorded by Polybius within the above context. Generally, it is assumed that Carthage offered money and naval assistance in an attempt to keep Rome from making a separate settlement with Pyrrhus and to guarantee ut Romano bello, ne in Siciliam transire posset, Pyrrhus in Italia detineretur.62 A common assumption is that Mago, the Carthaginian commander who reportedly came to Rome with a large fleet, was instrumental in Rome’s refusal of Pyrrhus’ offer to negotiate their differences. Mago’s emmbassy has been placed after either Heracleia or Ausculum, and most authorities have even argued that Mago made a second journey to Rome at which time he obtained a treaty after an initial failure.63 Justin, however, supplies our only chronological Lefkowitz,158ff. The invasion of Sicily was delayed until late summer or early fall of 278. See Lefkowitz, 173f., n.64. 62 Justin, 18.2.5 63 The greatest number of scholars support a date after Ausculum. See Passerini, Athenaeum 21 (1943): 95f.; Frank, CAH 7: 649; Walbank, Commentary I: 349; Lévèque, 414f. Lefkowitz,155ff., 161ff., is not always clear whether she favors a date just before or just after Ausculum. Nenci, Historia 7 (1958): 274ff., 288ff., believes that the agreement was reached in 280 but was not acted upon until after Ausculum. Nenci has a detailed discussion of the various positions. Most would agree with the following hypothetical reconstruction by Scullard, Roman World: 122: “Carthage, however, was alive to the desirability of keeping Pyrrhus engaged in Italy and sent Mago with 120 warships to remind Rome of their old alliance and to offer help against Pyrrhus. When the Romans 60 61

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evidence for the embassy and he dates it after Ausculum, and Justin and Valerius Maximus, our only sources for Mago’s visit to Rome, both mention only one visit and state that Rome refused the Punic offer of assistance.64 In fact, the Punic legation to Rome and the Roman treaty with Carthage are never mentioned by the same source. Livy, for instance, does not mention Mago’s embassy to Rome, yet he clearly dates the renewal of the treaty with Carthage to the period after Ausculum (279/8).65 Diodorus, similarly, indicates that the agreement between Rome and Carthage was reached prior to Pyrrhus’ crossing to Sicily, but at a time when he was preparing for the expedition, hence ca. 279/8.66 Finally, Polybius’ statement that the Roman-Carthaginian agreement was reached κατὰ τὴν Πύρρον διάβασιω πρό τοῦ συστήσασθαι τοὺς Καρχηδονίους τόν περὶ Σικελίας πόλεμον67 must not be interpreted strictly to mean 280, the year Pyrrhus crossed to Italy.68 Such reasoning founders when the second indication of date is considered and when other evidence is added. Polybius is concerned mainly with the terms of the agreement and only generally with its date, and when he said it was signed “before the Carthaginians began the war for Sicily,” he means either the First Punic War or the Punic struggle against Pyrrhus.69 To interpret the abruptly declined this aid, Mago sailed off to visit Pyrrhus; he perhaps promised to arrange peace between Rome and the king, so that the latter would be free to return to Greece, while he threatened to wreck negotiations with Rome if Pyrrhus persisted in crossing to Sicily. His offer was rejected, and Mago returned to Rome, where he obtained an agreement which kept Rome from making peace.” 64 Justin, 18.2; Valerius Maximus, 3.7.10. 65 Per., 13. See Nenci, Historia 7 (1958): 280ff., for an interesting evaluation of the evidence for this period supplied by Livy and Justin. 66 22.7.5. 67 3.25.1. 68 Nenci, Historia 7 (1958): 275ff., has argued that κατὰ τὴν Πύρρον διάβασιν can only mean 280 before hostilities between Pyrrhus and Rome began. This was the only time, Nenci claims (p. 283) that Rome was dangerously close to a συμμαχία with Pyrrhus and the only occasion which fully explains the nature of the Roman-Carthaginian agreement. Cf. G. F. Unger, “Römisch-Punische Verträge,” Rheinisches Museum für Philologie 37 (1882): 159ff.; and particularly J. P. V. Balsdon, Gnomon 17 (1955): 298ff.; and Lefkowitz, 170, n.38, for criticism of Nenci’s position. 69 Reference is to the First Punic War: Alfred Klotz, “Der

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passage narrowly as an obscure reference to Carthaginian attempts to win a Sicilian victory in 280 and thus to equate it chronologically with the year Pyrrhus crossed to Italy completely ignores both the general nature of the entire statement and the fact that Polybius does not mention Carthage’s Sicilian campaigns of 280. Carthage, moreover, had been struggling with Sicilian Greeks intermittently for decades prior to 280 and it is doubtful if Polybius saw their attempt in 280 as unique in any way. Furthermore, although a Carthaginian attempt to negotiate with Rome after Heracleia can be postulated from the confusing tradition, the only known attempt was after Ausculum, a fact which fits with Livy’s date for the treaty. Dating the agreement to 280, before hostilities began, is part of an attempt to establish the existence of two Roman-Carthaginian treaties, one in 280 which renewed previous pacts and established merely the possibility of mutual assistance and another treaty in 279/8 which actually resulted in an alliance between Rome and Carthage.70 The tradition clearly supports the existence of only one Carthaginian embassy and only one Roman-Carthaginian treaty. From the evidence supplied by Livy and Diodorus, it is apparent that the agreement between Rome and Carthage was reached after Ausculum and that Mago’s visit to Rome should be dated accordingly.71 The real danger to Carthage, however, was that Rome would reach an agreement with Pyrrhus after Heracleia. After Ausculum Rome was in a better bargaining position, and it is unlikely that she would accept Pyrrhus’ terms, though perhaps greatly reduced, after at least a near victory. Therefore, it does not appear that Carthage aimed at interfering with Roman-Pyrrhic römisch-karthagische Vertrag zur Zeit des Pyrrhos (Polyb. III.25.1-5),” Berliner Philologische Wochenschrift 27 (1908): 444; Walbank, Commentary I: 349. Reference is to the Punic-Pyrrhic War: Oswald Hamburger, Untersuchungen über den Pyrrhischen Krieg (Diss. Würzburg, 1927): 68. See the discussion of the various arguments by Nenci, Historia 7 (1958): 278f. 70 Nenci, Historia, 7 (1958): passim. Lefkowitz, 170, n.38, says “Despite Nenci’s arguments, the simplest solution is still a single treaty concluded around the time of the battle of Ausculum.” But see n.71 below, where Lefkowitz abandons her own quest for a simple solution. 71 Lefkowitz, 164: “there is no reason to identify Mago’s mission which could have happened in 280/279, with the conclusion of the treaty between Rome and Carthage of the following year.” Adopting such a position, she is forced to rewrite much of the history of this period−a history already overly complicated by the confusing tradition.

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negotiations so much as she aimed at another goal, which, as stated below, was either a συμμαχία against Pyrrhus, or, at least, Rome’s consent not to expand her conflict against Pyrrhus to Sicily. Polybius clearly stated that the third agreement between Rome and Carthage renewed earlier treaties.72 This could only refer to the Philinus treaty of 306, not to the second pact which Polybius mentioned and commonly dated to 348. By the time of the Pyrrhic War, Roman interests extended far beyond those recognized by the Carthaginians in 348, and even Walbank, who accepts Polybius’ denunciation of Philinus, says that Polybius “may have ignored new clauses designed to safeguard those interest ....” 73 The Philinus treaty provided just such a safeguard; it was renewed by the agreement in question, and according to Polybius, the following was added to the renewal: ἐαν συμμαχίαν ποιῶνται πρὸς Πύρρον ἔγγραπτον ποιείσθωσαν ἀμφότεροι, ἵνα ἐξῇ βοηθεῖν ἀλλήλοις ἐν τῇ τῶν πολεμουμένοων χώπα· ὁπότεροι δ’ἄν χρείαν ἔχωσι τῆς βοηθείας, τὰ πλοῖα παρεχέτωσαν Καρχηδὸνιοιν καὶ εἰς τὴν ὁδὸν κὰι εἰς τὴν ἔφοδον, τὰ δὲ ὀψώνια τοίς αὑτῶν ἑκάτεροι. Καρχηδόνιοι δὲ καὶ κατὰ φάλατταν Ῥωμαίοις βονθείτωσαν, ἄν χπεία ᾖ. Τὰ δὲ πληρώματα μηδεὶς ἀναγκαζὲτω ἐκβαίνειν ἀκουςίως.74

There are several translations of this ‘proviso’ or ‘rider’, as it should be called. The following by Walbank is widely accepted: If they make a written alliance with Pyrrhus, let them make it, each or both, with such provision that they may be allowed to assist each other in the territory of the party who is the victim of aggression.75

The remainder of the Greek text is translated as follows: whichever of the two require assistance, the Carthaginians are to provide the ships both for transport and assault, but each 3.25.1. Commentary I: 349f. 74 3.25.3-5. The reading of the manuscripts (25.4) is ἔφοδον, but for the justification of emending the word to ἄφοδον, see Walbank, Commentary 1: 351. However, Nenci, Historia 7 (1958): 263; 291f., has effectively argued against such a change. 75 Commentary I: 350. 72 73

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one shall pay his own men. Also, the Carthaginians shall come to the aid of the Romans by sea, if it is necessary, but no one shall force the crews to disembark against their will.

There is considerable debate over the exact translation and interpretation of the rider’s text. It has been argued that συμμαχία can not be literally translated as “alliance” and that Polybius here used the word to mean either “peace” or any possible pact made.76 While it is doubtlessly correct to translate συμμαχία as “alliance,” it is possible that the Latin original was foedus, which has a less specific meaning than συμμαχία and Polybius took the latter as the nearest Greek equivalent. The word ἀμφότεροι is also a problem. In its present context, it has been translated as “each or both,” but it has only the meaning “both.”77 However, granting for the moment that συμμαχία and ἀμφότεροι can refer to any agreement which either (or both) Rome and Carthage make with Pyrrhus, the rider is then interpreted in the following manner. Pyrrhus would have profited from an agreement with Rome (or Carthage) if it allowed him to isolate the state with which he had not made a compact. Believing Rome was dangerously close to an agreement with the king, Mago tried to obtain an alliance with the Romans against Pyrrhus in an attempt to keep him in Italy, but when Mago failed, he did obtain a concession that any agreement made with Pyrrhus must include the rider detailing the possibility of mutual assistance. “Any apparent ambiguity” [in the rider] says Walbank, “springs from the use of a single sentence (deliberately) to cover the eventuality of a Roman or a Punic συμμαχία with Pyrrhus.”78 Thus, it is assumed that by offering naval and monetary support to Rome, Carthage obtained 76 K.J.Beloch, “Zur Geschichte des pyrrhischen Krieges,” Klio 1 (1901): 282, and Griechische Geschichte, 4.2 (Berlin, 1927): 476ff., says that the true significance of συμμαχία is εἰρήνη. However, Beloch’s entire interpretation of the treaty is extremely conjectural, including his emendations and changes in punctuation. Walbank, Commentary I: 351, thinks the reference is to any possible pact made. Nenci, Historia 7(1958): 283ff., correctly defends alliance, but his argument is designed to support his position that there were two agreements during this time. 77 So Walbank, Commentary I: 351. Nenci, Historia, 7 (1958): 289ff., contends that even if ἀμφότεροι means both (one and the other) it does not have to mean both together, at the same time. 78 Commentary I: 351.

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approval of the rider which was designed to keep Pyrrhus from making any agreement at all with Rome, while it did not force Rome or Carthage into a definite military commitment. Frank says, “The document reveals shrewd thinking on the part of both negotiators.”79 As a result, however, according to this view, Rome was hindered in her attempts to reach a separate agreement with Pyrrhus, since the latter was “intimidated by its [the rider’s] ominous hints at a secret clause committing the Romans to action in Sicily.”80 The problems with such an interpretation are manifold. First, Rome and Carthage agreed to renew their previous treaty and to include the rider only in any συμμαχία concluded with Pyrrhus. Neither Rome nor Carthage reached an agreement with Pyrrhus, although both may have tried to negotiate with him, perhaps on more than one occasion. We can not postulate from Polybius’ text of the rider the existence of an otherwise unknown treaty which formed the basis of the rider. If the above translation of the text is accepted, it can only mean that Rome and Carthage agreed not to make a separate agreement with Pyrrhus unless they included the specific provisions allowing them the mere possibility of assisting one another. Polybius did not say that the clause added to the previous agreement constituted a new agreement in which Rome and Carthage promised mutual assistance. In other words, Polybius, who saw the treaties, or more likely an edited copy of them, did not preserve the actual text of a new treaty between Rome and Carthage. It follows that unless there is explicit testimony to the contrary such as exists for the Philinus treaty, the only agreement which remained binding on both Rome and Carthage after 279/8 was the Philinus treaty, whereby they agreed not to encroach upon one another’s sphere of influence, Italy and Sicily. Second, there is little supporting evidence for the financial and naval assistance which Carthage supposedly extended to Rome during this period.81 Roman didrachms were certainly not struck Frank, CAH 7: 649. Walbank, Commentary I: 351; Frank, CAH 7: 649f. 81 Those who accept this hypothesis generally base their argument on the thesis once advanced by Harold Mattingly, “The Romano-Campanian Coinage and the Pyrrhic War,” NC 5 (1924): 181208. The origin of Roman silver coinage during the Pyrrhic War has most recently been supported by Rudi Thomsen, ERC III: passim. 79 80

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from Punic metal nor inspired by Punic types, and they were not issued for the first time during the Pyrrhic War.82 It is also argued that evidence for the Roman-Carthaginian alliance against Pyrrhus is found in Diodorus, who said Rome and Carthage concluded a συμμαχία and that the Carthaginians carried five hundred men to Rhegium.83 However, Diodorus’ reference to the treaty, like Livy’s and Polybius’, could refer to the renewal of the Philinus treaty and to the approval of the provisional clause in 279/8. Moreover, Diodorus does not say the troops ferried to Rhegium were Romans. At this time only Campanian troops operated in this region, and a scrutiny of Diodorus’ language suggests the troops sailed across from Sicily.84 Most likely they were mercenaries or Mamertines, who had recently become allies of Carthage and who were close associates of the Campanians stationed at Rhegium. In fact, Diodorus specifically stated that the Mamertines joined in alliance with the Carthaginians in an attempt to foil Pyrrhus’ plan to cross over into Sicily.85 Thus there is no conclusive proof that See Laura Breglia, La prima fase della coniazione romana della argento (Roma, 1952); Richard E. Mitchell, “A New Chronology for the Romano-Campanian Coins,” NC 6 (1966): 65-70; Mitchell, Museum Notes, 15 (1969): 41-57(n.b.: and reprinted above in this volume). 83 22.7.5. 84 Ὅτι Καρχηδόνιοι συμμαχίαν ποιήσαντες μετὰ Ῥωμαίων πεντακοσίους ἄνδρας ἔλαβον εὶς τὰς ιδίας ναύς, κάι εὶς τὸ Ῥήγιον διαβάντες; Scholars are virtually unanimous in believing that the troops carried to Rhegium were Romans. However this has led to remarkable inconsistencies. For example, Frank, CAH 7: 649, admits that “The Senate was hardly so foolish to make a binding defensive alliance with Carthage when there was good evidence that the war was nearly over.” Yet Frank (p. 650) maintains that the five hundred men taken to Rhegium were Romans and that Punic ships appeared at Tarentum in 272 in obedience to the treaty (p.656). 85 22.7.4. It is also known that Pyrrhus so frightened the Carthaginians that they hired soldiers from Italy (Zonaras, 8.5). These mercenaries may well be the soldiers ferried across to Rhegium. Perhaps Rome gave Carthage permission to enlist Italians when she agreed to the preliminary draft of the treaty in 279/8. Finally, according to the terms of the treaty signed at the conclusion of the First Punic War, neither Rome nor Carthage could enroll soldiers from the territory of the other (Polybius, 3.27.4). Certainly Rome, with her vast resources of manpower, would have benefited little from such a privilege, but Carthage, fighting away from home in Sicily, would have welcomed it. We are not told when 82

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Carthage gave either monetary or naval assistance to Rome. Finally, it is difficult to believe that Pyrrhus or Rome could have been seriously inhibited in their negotiations with one another by Carthage’s agreement with Rome as it is translated above. The rider contained only the possibility of mutual Roman and Carthaginian assistance, and Pyrrhus’ fears could easily have been allayed by a tacit agreement with one of the parties. Moreover, why were such specific details concerning Roman and Carthaginian assistance to be included as part of a pact made with Pyrrhus?86 Clearly, even according to the interpretation of Walbank and others, the important feature of the negotiations between Rome and Carthage in 279/8 should be the renewal of the Philinus treaty. By the terms of this treaty, Rome and Carthage were obligated to respect one another’s territorial claims regardless of any settlement reached with Pyrrhus. Aside then from the forced translation of certain Greek words, the entire agreement between Rome and Carthage becomes a complicated complex of contradictory elements when interpreted in this manner. There is an alternate translation of this rider which generally does less damage to the Greek but is not without its own problems of interpretation. We can translate ἐαν συμμαχίαν ποιῶνται πρὸς Πύρρον, “If they make an alliance against Pyrrhus.”87 No Carthage received the right to recruit mercenaries from Italy, but the Pyrrhic War seems to be the best reason for Rome to permit the practice, which normally would have been forbidden by the Philinus treaty. Thus, it is possible that Rome allowed Carthage to enlist mercenaries from the peninsula in 279/8, even though the two states were not formally allied against Pyrrhus. 86 Walbank, Commentary I: 350, refers to two parallel treaties (Polybius, 7.9.15; Livy, 26.24.12-14), but neither contains the questionable feature of one party (as Pyrrhus) recognizing the right of an ally to wage war against them. The parallel treaties are clearly attempts to guarantee that a separate agreement will not be unfavorable to Rome. As pointed out by Unger, Rheinisches Museum 37 (1882): 202ff., if an agreement were reached with Pyrrhus then Rome, Carthage and Pyrrhus would have been allies. This could hardly have been the purpose of the agreement. 87 The justification for translating the terms of the treaty as directed “against Pyrrhus” has been presented by the following authors: Unger, Rheinisches Museum 37 (1882): 201ff.; W. Soltau, “Die römischkarthagischen Vertrage,” Philologus 48 (1889): 134f.; Otto Meltzer, Geschichte der Karthaager, II (Berlin, 1896): 229, 245ff.; Klotz, Berliner

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injustice is done to Polybius’ use of συμμαχία or ἀμφότεροι, but the idiom συμμαχίαν ποιεῖσθαι πρός τινα does normally mean “to make an alliance with someone.”88 However, πρός with the accusative often has the meaning of “against” or “with reference to.” By applying this sense to the above phrase, we have a second possible translation: “If they make a written alliance against Pyrrhus, let them make it with the provision that they may be allowed to assist each other in the territory of the party who is the victim of aggression.” By this translation, several of the ambiguities of which Walbank spoke can be avoided. The reference to a συμμαχία between Rome and Carthage against Pyrrhus easily fits with the detailed references to the manner in which the allied parties are to behave toward one another. This is not true if such details were to form part of just any agreement made with Pyrrhus. The συμμαχία refers to an actual alliance between both (ἀμφότεροι) Rome and Carthage and the provisions which follow give the details concerning each party’s obligations toward. the other. Walbank objects to this translation because it casts doubt on the ratification of the συμμαχία between Rome and Carthage.89 However, according to his own translation, it must be assumed that even the possibility of implementing the rider’s terms depended upon one of the two states reaching an agreement with Pyrrhus. Since neither party signed such an agreement, the terms were never implemented.90 Nor can it be argued that Polybius would not record a preliminary draft of a treaty, because he actually preserved a preliminary draft of a treaty among the Roman-Carthaginian agreements he mentioned.91 Thus, in 279/8, Rome and Carthage renewed the Philinus treaty, reaffirming their respect for one another’s sphere of influence and their willingness not to engage in hostile acts in the other’s territory, but they added a clause, which, if approved, would allow for military assistance in contravention of Philologische Wochenschrift, 27 (1908): 445ff. 88 See Walbank, Commentary I: 350. 89 Commentary I: 350. 90 See Klotz, Berliner Philologische Wochenschrift, 27 (1908): 445; and Cary, JRS 9 (1919): 69, n.3, who says that the conditional nature of Polybius’ third treaty “anticipated a new treaty, but did not constitute a new treaty in itself.” 91 1.62.8-9. Cf. Walbank, Commentary I: 126f., 355.

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the Philinus treaty.92 In other words, in the face of the danger presented by Pyrrhus, Rome and Carthage were willing to negotiate the suspension of the restrictions imposed by the Philiinus treaty of 306. Indeed, this is the meaning of the agreement of 279/8: the Philinus treaty remained in effect, but if Rome and Carthage make an alliance against Pyrrhus, then they would be allowed to assist one another in the territory under attack. However, if Rome and Carthage had actually acted on the terms of the treaty and were allied against Pyrrhus, there would certainly be more evidence of cooperation between the two states. The crucial question to answer in this connection is why did the rider remain a preliminary draft? The most likely explanation, which is consistent with the ancient testimony, is that the Roman-Carthaginian alliance against Pyrrhus was never ratified. Thus, the failure to make an alliance was recorded by Justin and Valerius Maximus, while the renewal of the Philinus treaty and the preliminary agreement against Pyrrhus were reported by Polybius, Livy, and Dioodorus. A preliminary agreement on the rider’s terms was reached after the battle of Ausculum and before Pyrrhus crossed to Sicily in 278. The negotiations occurred while Pyrrhus was still in Italy, while Rome knew that the king could change his mind about going to Sicily, and while Carthage hoped to force him to remain on the peninsula. Once Pyrrhus crossed to Sicily, however, Carthage did not wish to have Roman troops active in Sicily any more than Rome wished to commit herself to a Sicilian campaign. It would be helpful if Pyrrhus’ crossing to Sicily could be dated to the time Carthage was negotiating with Rome, since it could be assumed that Carthage did not confirm the agreement because her primary objective, to keep Pyrrhus in Italy, was lost. Diodorus supplies important information in this regard. When Pyrrhus crossed to Sicily, Diodorus said, some of the Carthaginian ships were blockading Syracuse while thirty others were away on “indispensible” or “necessary business. “93 It is tempting to see the If the Philinus treaty is accepted as authentic, the standard interpretation of the agreement of 279/8 is that it allowed for the temporary abrogation of the restrictions imposed by the treaty of 306. 93 22.8.3. It is interesting that according to Valerius Maximus (3.7.10) Mago came to Rome with 130 ships. Justin (18.2.6) gives the number as 120. Elsewhere, Diodorus (22.8.1) mentions 100 Carthaginian ships which were blockading Syracuse. It does not appear that Diodorus’ 92

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missing ships as at least part of the force which arrived at Rome to negotiate an alliance with Rome. The absence of the Carthaginian ships allowed Pyrrhus to cross unmolested, the danger was temporarily removed from Italy, and Carthage now faced Pyrrhus and his Sicilian allies without Roman assistance. I offer that Mago did not have full powers to conclude an alliance with Rome and that ratification was required by Carthage, but this never occurred once Pyrrhus crossed to Sicily. At Rome, the alliance was considered by the senate but was never ratified by the people. It remained as a draft of a senatus consultum, however, was deposited in the aerarium, and was eventually considered as part of the 279/8 agreement by those scholars who first studied and collected the material concerning Roman-Carthaginian treaties.94 Thus, the only important and binding feature of the negotiations of 279/8 was the reaffirmation of the Philinus treaty. Whether the above reconstruction is accepted or not does not affect the main conclusion. No new Roman-Carthaginian agreement took effect in 279/8; the two states were not allied against Pyrrhus. This fact remains regardless of the translation of ἐὰν συμμαχίαν ποιῶνται πρὸς Πύρρον. Neither translation or interpretation of the conditional terms added to the Philinus treaty in 279/8 is completely happy, but the “apparent ambiguities” are less serious when it is taken to mean a preliminary alliance against Pyrrhus.95 Thus, the conditional 30 ships formed part of the 100. Thus, the figure of 120 to 130 ships probably constitutes the entire Punic navy stationed in Sicilian waters at the time, and since Carthage would not leave Sicily unattended, it is more than likely that Mago visited Rome with 30 ships than with over an hundred. 94 Cf. Klotz, Berliner Philologische Wochenschrift 27 (1908): 445; Unger, Rheinisches Museum 37 (1882): 202ff.; Soltau, Philologus 48 (1889): 135. On the question of the treaties deposited in the aerarium see Walbank, Commentary I: 353f.; Nenci, Historia 7 (1958): 274f.; Cary, JRS 9 (1919): 68. 95 Many have tried to remove the “ambiguities” by an unwarranted interpretation or emendation of the text. For instance, Hamburger, Unterschungen: 75, is only one of those who claim that the first part of the agreement was directed at the specific situation of either Rome or Carthage reaching a separate peace with Pyrrhus; the rest of the agreement regarding mutual assistance must be treated separately. Beloch, Griechische Geschichte: 476ff., went so far as to emend the text to read that Rome and Carthage would make an agreement so that they could give

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nature of the passage presupposes that the terms either were never implemented by an agreement reached with Pyrrhus or were never ratified. Either translation fits the historical evidence. There is specific information that the Philinus treaty was the only binding treaty between Rome and Carthage at the time of the Pyrrhic War. While Rome was besieging Tarentum during the final stages of the war, a Carthaginian fleet appeared in the harbor, having been called by the anti-Roman faction within the city, but the fleet sailed away without giving assistance to the Tarentines. Cassius Dio, Zonaras, and Orosius all state that this incident was one of the reasons for the First Punic War.96 Moreover, Livy said: Carthaginiensium c!assis auxilio Tarentinis venit: quo facto ab his foedus violatum est.97 Possibly the story was invented to fix the blame for the First Punic War on Carthage,98 and Frank suggests that the ships were there in support of the Romans and in accordance with the provisions of the alliance which Mago concluded with Rome.99 But the evidence we possess makes it clear that Carthage was accused of violating her foedus with Rome, and this foedus can only be the Philinus treaty, which was renewed in 279/8.100 Even if the story was fabricated, it can not be used to show that Rome and Carthage were actually allied against Pyrrhus, since the story was obviously fabricated with only the Philinus treaty in mind. In other words, the authors of this story knew of no agreement which compromised the terms of the Philinus treaty. It is inadmissible to use Livy’s reference to a treaty renewal in 279/8 and his allusion to assistance. See Toynbee, HL I: 547f., for a thorough criticism of Beloch’s suggested emendations. 96 Cassius Dio, frag. 43.1; Zonaras, 8.6; 8.8; Orosius, 4.3.1-2. 97 Per, 14; cf. 21.10.8. 98 Beloch, Griechische Geschichte: 642, n. 2; Wuilleumier, 138; Thiel: 14f. Thiel supposes that the story was invented to show that Carthage broke the Philinus treaty, then the Philinus treaty was dropped from the tradition. 99 CAH 7: 656. Frank claims that Carthage would not risk a war over one isolated Italian harbor. Scullard, Roman World: 142, n.1, argues that Carthage did not technically break the treaty. Scullard also questions Frank’s reasoning, since Carthage did risk war over one Sicilian town. 100 Carthage also accused Rome of breaking the Philinus treaty when she made an agreement with Hiero of Syracuse ca. 270 (cf. Zonaras, 8.6; Cassius Dio, frag. 43.1). See Cary, JRS 9 (1919): 73, n.6, for a discussion of these infractions and an argument in favor of acceptance.

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the infraction of a foedus in 272 as proof that a completely new agreement was reached during the Pyrrhic War. However, if Livy means only the Philinus treaty when he says a foedus was renewed in 279/8, and here he agreed with Polybius, then the violation is consistent with his tradition. If the Carthaginian violation of a foedus in 272 was invented, then Roman annalists were trying to cover up Rome’s unprovoked aggression in Sicily in 264. If it is a true story, then Carthage was attempting to check Rome’s southern expansion by assisting her enemies at Tarentum. In either case, the story was based upon the Philinus treaty alone. As a consequence of her victory over Pyrrhus, Rome was now just a short step from Sicily. In Frank’s opinion, This war [against Pyrrhus] taught Rome a lesson with unmistakable emphasis. The Samnites and Lucanians could not be reckoned with unless the Greek cities beyond were considered and the Greek cities could not be controlled so long as their harbors were open to receive mercenaries from Greece.101

Thus the Roman senate decided to assume control over the entire peninsula. As Scullard says, “An epoch was ended and the history of Roman Italy begins.”102 The emphasis seems misplaced. The idea of controlling the peninsula entered the Roman mind before the Pyrrhic struggle. For what reason had both Cleonymus and Pyrrhus been called? Certainly a continuous line can be seen beginning with Roman intervention in Neapolis in 326, her involvements in Apulia and Lucania from 326 to 280, her troops in Sallentinium in 307/6, the war with Cleonymus in 303/2, Roman intervention in Thurii in 286-282, and the Tarentine summons of Pyrrhus. Moreover, there is little evidence that Carthage feared Rome when the two states signed their second treaty in 348, but the subsequent rise of the Italian republic briefly outlined above led eventually to the mutual restrictions imposed by their treaty of 306. The breach between Rome and Carthage began to widen as Rome increased her Italian domain. Their failure to meet the Pyrrhic threat with a joint effort reflects their growing mistrust. In fact, there are many signs of distrust between Rome and Carthage 101 102

Roman Imperialism: 64. History: 126.

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during their struggle against Pyrrhus, but few signs of cooperation. Rome, mistress of Italy after defeating Pyrrhus, soon justified Carthaginian suspicion by taking her next logical step across the straits to Sicily.

HOARD EVIDENCE AND EARLY ROMAN COINAGE IN MEMORY OF DONALD W. BRADEEN Mitchell outlines some of the limitations and pitfalls of using coin hoards for establishing coin chronology. The particular case in question has everything to do with the introduction of Rome's first silver coinage, an issue although settled now, was still very much in contention nearly ten years after Richard's earliest articles on the topic.* Recently, in his review of Michael H. Crawford’s Roman Republican Coin Hoards (London, 1969), Harold B. Mattingly boldly stated that after Crawford’s publication, “Some problems must consequently be considered solved. Roman coinage began in or near the Pyrrhic period”.1 Such difficult problems are rarely ever solved, although many who have never worked on early Roman coinage are anxious to have the specialists make up their minds and will welcome such a definitive pronouncement since it makes the *This article was originally published in Rivista Italiana di Numismatica 21 (1973): Pp.89-110. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. JRS 60 (1970): p. 231. Also see the anonymous review, the phrasing of which suggests Mattingly was also the author, in the Times Literary Supplement, 2.7.70, p. 733. However, cf. the more balanced appraisal of T.V. Buttrey, Jr., AJA 75 (1971): p. 230f. 1

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material useful to them historically. However, where so many unanswered questions and difficulties remain, it is wise not to be dogmatic. It is well to remember that before Crawford, both E.J. Haeberlin and Harold Mattingly also “solved” the problem. Fortunately, Rudi Thomsen performed a great service by reopening the entire question of the sequential and absolute chronology of early Roman coinage at a time when the opinion of the Mattingly school was virtually universally accepted as historical fact.2 H.B. Mattingly, apparently following Crawford, placed great faith in the evidence from the Torchiarolo hoard,3 where a single well-preserved specimen of the bearded Mars/Horse’s head, ROMANO-inscribed didrachm was found hoarded with fullweight and reduced Tarentine coins together with numerous specimens from many other mints. Since the beginning of the reduction at Tarentum is commonly associated with Pyrrhus, the bearded Mars series, some conclude, must have begun about the time of the Pyrrhic War. Here H.B. Mattingly is following the thesis of Rudi Thomsen, who is himself building upon the initial but eventually forsaken argument of Harold Mattingly. A careful and critical analysis of the Torchiarolo hoard follows, but first I would like to make some comments about hoard material which have not been made sufficiently−if at all−by Crawford, and to present some personal conclusions and observations on hoard material generally.4 Although I do not question the value and usefulness of hoard material to the numismatist, I will demonstrate that it can not be as conclusively and logically organized in every instance as Crawford maintains. Finally, I will offer an alternative view regarding early Roman Rudi Thomsen in ERC, not only catalogues previous views, but now must serve as the starting point for those interested in the subject of Rome’s first coins. 3 JRS (1970): p. 231. Although it is not clear from Crawford’s treatment that he places such faith in the Torchiarolo material, his upper date of ca. 290 B.C. for the beginning of Roman didrachm issues indicates that he does. 4 My research on coin hoards was aided greatly by a fellowship from the American Council of Learned Societies, and I express my sincere thanks to the Council for permitting me to spend nine months during 1970-1 examining published and unpublished hoards pertinent to my subject in various museum throughout Italy and Sicily. 2

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coinage based upon the evaluation of both old and new hoard evidence. At the outset, I would like to express my general agreement with Crawford’s sequential arrangement of the Roman coins and with the now widely accepted view that the denarius originated during the Second Punic War. In this essay I am not concerned with the denarius issues, but only with the so-called Romano-Campanian coins, in particular the ROMANO inscribed issues, and my comments and criticisms are directed toward the specific evaluation and use of this hoard material. I would also like to express my general agreement with Crawford’s statement that “any arrangement which ignores or contradicts considerable hoardevidence can not be valid.”5 But the non-specialists should realize that the hoard evidence for the Romano-Campanian coins is not considerable and hardly lends itself to the kind of compelling sequential and absolute chronological conclusions which one obtains from an examination of the denarii hoards. Nevertheless, based upon the existing Romano-Campanian hoard material, I hope to demonstrate that Mattingly’s interpretation of the Torchiarolo hoard material contradicts the remaining hoard evidence for the earliest Roman didrachms and thus violates a fundamental principle of Crawford’s publication.6 Mattingly’s faith in the Torchiarolo hoard material is not only misplaced and his interpretation wanting; there is better hoard evidence concerning the chronology of Rome’s first silver coins. In explaining how to use the inventory of hoards, Crawford says that the hoards “are listed in chronological order of their latest issues, as given in the tables. Finds with the same latest issues are listed in alphabetical order of their places of discovery.”7 Apparently, proof of the tables’ chronological assumptions will be presented in a future publication, but it should be emphasized that the hoard evidence as presented by Crawford does not prove the chronological conclusions expressed in the tables. Any subsequent publication can not simply refer to his publication of the hoard evidence as if it reaffirmed the chronology set forth in the tables.8 Coin Hoards: p. 2. Coin Hoards: p, 2. 7 Coin Hoards, p. 8. 8 Coin Hoards: p. 4, refers to the work of H. Mattingly, E.S.G. Robinson, and R. Thomsen as proof that Roman coins began “during or 5 6

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Considering the hoard themselves, the chief weakness of Crawford’s work is his failure to address himself to the evidence provided by the non-Roman coins in deposits. There is no discussion of the chronological value of such non-Roman specimens in the various hoards and, intentionally or not, Crawford leads us to believe that Roman specimens are always the latest issues to be added to any hoard, since they are the basis on which burial dates are determined, or alternately, that the burial dates can be determined on the basis of the Roman material alone. If one considers those hoards which contain only ROMANO-inscribed didrachms together with non-Roman specimens, the latter are far more numerous than the former. In other words, it seems proper to question the validity of this methodology, namely, that of determining the chronological position of Rome’s earliest didrachms without addressing oneself to the date of the nonRoman material with which the Roman pieces are found. In fact, the date of the Roman coins in such hoards is best determined in the context of the non-Roman material, to which Crawford does not play sufficient attention. To obtain his sequence for the Roman issues Crawford employs what he calls a “straightforward” method. “Of two hoards with some issues in common that which is later will contain issues which do not occur in the other hoard and which are less worn. A relative order of issues follows automatically.”9 Also, Crawford says, “ Any large hoard can be expected to contain all or almost all the issues struck in the century or so preceding its deposition (a few very rare issues may be missing). The latest coins will be the least worn.”10 Elsewhere, Crawford maintains that “A hoard can be regarded, more often than not, as deposited soon after the date of the latest [freshest] coin in it.”11 shortly before the Pyrrhic War.” I have dealt elsewhere with the views of these scholars and it remains to be proved how the hoard material supports a Pyrrhic War date. See my discussions: “A new chronology for the Romano·Campanian coins,” NC 6 (1966): pp. 65-70, and “The fourth century origin of Roman didrachms,” MN 15 (1969): pp. 41-71 (n.b. and reprinted above). 9 Coin Hoards: p. 1. 10 Coin Hoards: p. 2. 11 “Money and exchange in the Roman world,” JRS 60 (1970): p. 40 (cf. p. 43), but see below, note 14.

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I find throughout Crawford’s publication of the hoard material the tacit assumption that he knows how hoards work and thus how to decipher their contents. However, as a consequence of trying to make sense out of a large body of hoard material which I examined, uncovered, or recovered in various Italian museums, I have become somewhat disenchanted with the value of hoard evidence and feel that several qualifications and reservations should be made to Crawford’s rules-of-thumb for evaluating hoard evidence, and that in some cases the exceptions are more important than the general rule would suggest.12 For example, even if we knew the exact date of a hoard’s burial, we could not be certain that all coins in it were taken out of circulation immediately before burial, and for this reason we can not be certain that the best preserved coins were the latest issues to be added to a particular deposit. Neither can it be proved that coins not found in a hoard were either too early or too late to be included in a given find, nor can it always be conclusively shown that the coins in a particular hoard showing the same degree of wear have a chronological connection with one another. In other words, we often have no way of knowing when the various individual coins were added to a collection prior to burial. In this connection, it should be emphasized that some specimens may have been hoarded for years prior to burial and thus may show less wear than specimens of later issues taken out of circulation before burial. Thus, it is simply not the case that the freshest coins in any particular deposit are automatically the latest in date. It is not that a coin’s condition does not offer important evidence for determining its date, but that the evidence from an individual hoard must be confirmed by a volume of such evidence, insofar as possible, since in any given deposit the condition of particular coins may be misleading. Indeed, Crawford himself warns that “the degree of wear of a single coin is not a reliable index of its age.”13 Moreover, the difficulty of determining the I discovered that Margaret Thompsen, “Athens again,” NC 2 (1962): pp. 301-333, esp. pp. 309ff., anticipated many of my comments and reservations about the value of hoard material reasoning from an entirely different body of material. 13 JRS (1970): p. 40. Thompson, NC (1962) p. 309, correctly states: “The hoard itself may be a single unadulterated unit, but individual pieces in it will be remnants of earlier hoards and their condition, 12

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relative sequence and date of coins based upon hoard evidence can be compounded by the later fortuitous addition of early issues taken from circulation. In this case, coins from approximately the same period may show different degrees of wear. A hoard’s burial date, in fact, may be years later than the latest or freshest specimen in the deposit. “A hoard of coins,” to quote Philip Grierson, “ is not necessarily a cross-section of the currency of the period to which it is assigned; it may represent the accumulated treasure of a period of many years.”14 It should be added that hoards need not contain coins contemporary with the time of burial, a fact which makes them extremely difficult to interpret. Even if we were to accept Crawford’s assumptions concerning the automatic ordering of issues, we must bear in mind that numismatists differ greatly in their definition of a coin’s condition. It is often difficult to determine the relative wear between issues in the same hoard−even linked coins from the same hoard may show different degrees of wear−and it is even more difficult to determine whether a coin from a particular hoard is more or less worn than a similar or associated specimen found in another deposit. Furthermore, in some cases, it is necessary to remember that coins have been at the mercy of the elements, that damage may be interpreted as wear, and that museum workmen by their overly zealous cleaning may add years of wear to particular coins. Careful cleaning even of damaged coins may preserve some indication of the coin’s true condition, but in instances the desire is to present the hoard as a shining example of antiquity to museum visitors. To repeat, chronological conclusions based on a coin’s reflecting retirement as well as circulation, may be completely misleading. It follows that preservation as a chronological argument must be used with caution. A worn coin, as distinct from a coin struck from a worn die, can not be a late element in a hoard but a well-preserved coin may be an early element”. 14 Numismatics and History (London, 1951): p. 17. As Crawford, Coin Hoards: p. 5, fully realizes, the hoard evidence from Numantia and Castra Caecilia contradict his argument that hoards were normally buried soon after the issue of the latest coin in them. The fact is, we simply do not know when most hoards were buried, hence we know nothing about the circulation−or lack of it−of coins in particular deposits. To argue otherwise is a case of special pleading. I know of several hoards, for example, which only contain specimens which show considerable wear.

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condition must be supported by numerous examples. Thus hoards may consist of coins collected over a long or short period of time, of coins from two or more periods added together prior to burial, of coins fresh and worn taken out of circulation, of uncirculated coins, or indeed, a hoard might consist of any and all combinations of the aforementioned. We can not blindly assume that all coin hoards are a consequence of the same forces and circumstances and treat them alike. Indeed, Crawford adds that “A man could select from circulation certain coins to hoard, although the many hoards I have examined do not suggest that this practice was common.”15 I would agree, but it probably was common for a man to hoard coins from different chronological periods, taking out of circulation when and what he could, and parting with those coins which were in poor condition or lighter in weight. Of course, in times of personal danger or economic insecurity, any coin at all would be hoarded. As C.H.V. Sutherland avers, Hoards are not always well named thus, for they may be of various kinds: a purse of miscellaneous current money suddenly put aside or lost; accumulated savings, year after year, of the best and heaviest coins; a shop’s till, hidden away for safety; an exact sum of money put on one side for some specific payment; or an administrative or military chest. All these have their own special value in the study of the internal economy of a state or region.16

True, but it must be added that almost without exception the known hoards of coins can not be convincingly grouped under the categories mentioned by Sutherland. Yet how and when the hoards were built up are questions which must be answered if we- are to obtain reliable chronological evidence from the finds. Many combinations of possibilities exist, and we must know more about the actual dates and methods of accumulation before we can know more about the value of hoard evidence generally. One can safely conclude that we shall never have answers to such specific questions, but hoard evidence can supply certain clues to the general chronological position of some of its contents. 15 JRS (1970): p. 40. Crawford does admit, however, that a hoard “does not necessarily reflect normal circulation.” 16 Ancient Numismatics: A Brief Introduction (New York, 1958): 18.

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Some hoards dealt with below are improperly or incompletely known or reported; others have been or will be published in detail, and my own purpose is merely to assess their general characteristics and draw conclusions which are consistent with both the individual and collective pictures of the hoard material. At present it is neither possible nor necessary to deal with the hoards’ complete and individual contents. Lacking specific reliable chronological evidence obtainable from the Roman coins alone, I am confident it is both proper and reliable to use certain non-Roman pieces in the hoards to determine the chronological context to which the Roman coins belong. Since there are few convincing specialized studies dealing with the sequential and absolute chronologies of the non-Roman issues of the various mints, we must rely on a limited number of relatively hard facts. Few mints have received as much attention as Tarentum has, and one of the most secure dates in Italian numismatics is the reduction coinage at Tarentum, which long has been associated with Pyrrhus. Moreover, with few exceptions, we can assume that Sir Arthur J. Evans’ arrangement of Tarentine horsemen, followed and in some instances improved by M.P. Vlasto’s work, is generally confirmed by the hoard material, and it is possible to draw up a rather general picture of the sequence of Tarentine coins by paying close attention to the hoards’ contents.17 Thus, about 280 B.C. Tarentum began to issue reduced coins, while full-weight issues prevailed before that date. It is rightly assumed that other mints in South Italy, Heraclea, Thurium, and Croton, followed Tarentum and reduced the weight of their own coins during Pyrrhus’ Italian adventure. Metapontum, however, did not issue reduced coins, and the numismatic evidence coupled with recent archaeological data indicates that Metapontum ceased to be a city of any importance between the time she was attacked by Cleonyymus (303/2 B.C.) and Pyrrhus’ arrival.18 We know nothing of Metapontum during 17 Arthur J. Evans, The “Horsemen” of Tarentum (London, 1889) = NC 9 (1889): pp. 1-228; Descriptive Catalogue of the Collection of Tarentine Coins formed by M. P. Vlasto (London, 1947), compiled by Oscar E. Ravel. See the bibliography of Vlasto’s work cited therein. 18 In several discussions with Prof. Dinu Adameşteanu, Soprintendente alle Antichita della Basilicata, on the archaeological material from Metapontum, I was convinced by him that the evidence points to ca. 300-280 B.C. as the terminal date for the city’s importance.

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this period; indeed, there are no additional references to the city before the Hannibalic period. Hence, Metapontine coinage ceased sometime during the two decades prior to Pyrrhus’ crossing, and the presence of Metapontine coin in a hoard can be a useful chronological clue, just as the presence of full or reduced coins from other South Italian cities can be used to establish a conntext for the Roman issues. As for the other coinages represented in the various hoards, the work of A. Sambon,19 particularly on Neapolis, has much to commmend it and Sambon’s general ordering of the Neapolitan issues seems confirmed by the known hoard material. For example, the Neapolitan didrachms listed in Sambon’s catalogue−numbers 435 to 481−with head of Nymph right on the obverse seem properly placed in the period before ca. 280 B.C. The hoards suggest that the head-right types were issued in sequence with little or no overlapping with the head-left types (Sambon, nos. 482 to 537). An unpublished hoard in the Museo Nazionale at Reggio de Calabria, for example, has several worn Neapolitan headright types with well-preserved specimens with heads left, and among the Tarentine specimens in this hoard are coins specifically associated with Pyrrhus in the same well preserved condition.20 In fact, the material points more toward the earlier than the later date. For additional information, evaluation, and bibliography, consult: The Society for the Promotion of Hellenic Studies, “Archaeological Reports for 1964-6, 13 (1967): pp. 33f., and “Archaeological Reports for 1969-70,” 16 (1970): pp. 38f; Dinu Adameşteanu, “Metaponto,” NSc Supplement, 19 (1965): pp. 179184, “Problimes de la zone archeologique de Metaponte,” Revue Archeologique (1967): pp. 3-38, and “L’attivita archeologica in Basilicata,” Atti dell’ottavo Connvegno di studi sulla Magna Grecia 1968, (1969): pp. 163177; and Felice Gino Lo Porto, “Metaponto,” NSc 20 (1966): pp. 136176, and “Metaponto,” NSc 23 (1969): pp. 121-170. In addition, see the many references and discussions of Metapontum and its material remains which have appeared in the last decade in the volumes of the Convegno di studi sulla Magna Grecia. 19 Les Monnaies Antiques de L’Italie (Paris, 1903). 20 The existence of the Cariati hoard, as it is known, is noted in AIIN 5 (1958-9): p. 284. I wish to thank the Soprintendente delia Antichita for Calabria, Prof. Giuseppe Foti, for permission to examine this find. The 37 Neapolitan pieces range from Sambon no. 365 to 485. The three head-left types are well preserved, as are the reduced Tarentine staters and 3 Heraclean reduced coins (cf. SNG, American Numismatic

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Moreover, those familiar with E.S.G. Robinson’s republication of the Vulcano hoard will remember that the several coins with head right in this deposit were in worse condition than the later specimens with head left.21 Doubtless, the coins in Sambon’s catalogue beginning with no. 482 are roughly Pyrrhic and later in date, while those numbered 500 and higher belong to approximately 260 B.C. and later. Although some sequential reordering is needed, types 435 to 481 of Sambon’s catalogue are properly assigned to the period between the Roman involvement in Neapolis (326 B.C.) and the Pyrrhic War.22 Of other mints we are even less certain. Although it is generally assumed that most of the Velian issues belong predominantly to the fourth century, some issues could possibly be assigned to roughly the first quarter of the third century.23 Finally, the coins issued by the numerous Corinthian Western Greek colonies have recently received attention because of their prominence in Sicilian finds. Generally, it is argued that the greatest period of prosperity of these coins in Society, nos. 85, and 2 as 95-6). One of the three full-weight coins from Croton (cf. SNG II, Lloyd Collection, no. 623) shows some wear. The latest coins from this hoard are apparently the Neapolitan head-left types and the Tarentine pieces, both of which are probably dated to ca. 280-275 B.C. I also know of several other hoards, published and unpublished, in which the Neapolitan pieces confirm this general arrangement. 21 “A South-Italian hoard,” NC 5 (1945): pp. 97-107. 22 Monnaies Antiques: pp. 221ff., and see Sambon’s still useful discussion of the coin material (pp. 170ff.). 23 Lodovico Brunetti, “Contributo alla cronologia delle zecche di Velia e Neapolis,” RIN 57 (1955): pp. 5-35, may be correct about both the duration and date of the two mints he considers, but I find no conclusive evidence offered. The hoard evidence, which Brunetti does not consider, offers some support to his view of the duration of Velian issues. However, we do not know whether there were annual issues or not from mints. We do not know if dies were reused, or die-cutters re-employed after an hiatus. We can not even say conclusively that coins with the same signature (of engraver or mint official) belong to the same general period or belong in sequence. Perhaps we should associate the last Velian issues with Livy’s reference (X. 45. 9 = 293 B.C.): Iam Carvilius Veliam et Palumbinum et Herculaneum ex Samnitibus ceperat, Veliam intra paucos dies, Palumbinum eodem quo ad muros accessit. We need not follow K.J. Beloch, Römische Geschichte bis zum Beginnder punischen Kriege (Berlin, 1926): pp. 430-1, that this is a misplaced reference to Carvilius’ second consulship in 272 B.C.

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Sicilian deposits was between Timoleon’s arrival and Agathocles’ revival of Sicilian coinage to a position of superiority, or approximately from 340 to 290 B.C.24 I would offer that the Western Greek issues found in three South Italian hoards in which ROMANO-inscribed issues were also found conform to the same chronological limitations, although the Western Greek issues may have continued to enter and circulate in South Italy longer than in Sicily. They do not disappear from hoards until approximately 250 B.C.; however, none of the Western Greek issues found in the hoards under consideration can be conclusively attributed to such a late date. Rather, they are additional proof, based upon the current status of our information, that the chronology of the ROMANO coins suggested in this paper is correct. Thus before ca. 280 B.C., full-weight coins were issued by Tarentum, Heraclea, Thurium, and Croton, while Metapontum certainly ceased to issue didrachms and the Neapolitan mint had changed to Nymph head-left types by this date. Concerning the issues of Velia and the Western Greek colonies we can only say that those found in the hoards in question are best dated to the period before 280 B.C. Thus, even basing our argument on the limited existing material, it is possible to determine whether the appearance of the ROMANO-inscribed didrachms are to be placed in a pre-Pyrrhic, or post-Pyrrhic chronological context, by merely examining the coins with which the Roman pieces are found. To be sure, additional hoard evidence may compromise my thesis, and a sufficient volume of hoard material would certainly help clarify the entire problem, but no reliable hoard evidence currently exists which makes any other chronological conclusion more probable. At least the first three ROMANO-inscribed didrachms, bearded Mars/Horse’s head, Apollo/Free horse, and Hercules/She-wolf and twins, were issued before the arrival of Pyrrhus in Italy.25 An examination of the contents of the individual hoards will establish both the appropriateness of the previous criticism of hoard evidence and the validity of the chronological conclusions advanced in this essay. For example, it is obvious that, in addition to the single well-preserved bearded Mars/Horse’s head specimen, 24 See Colin M. Kraay, Greek Coins and History (London, 1969): pp. 54-62; and R.J.A. Talbert, “Corinthian silver coinage and the Sicilian economy, c. 340 to c. 290 B.C.,” NC 11 (1971): pp. 53-66. 25 See MN (1969) (n.b. reprinted above), and NC (1966): pp. 65-70.

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many fourth century coins were also among the best preserved pieces found in the Torchiarolo deposit.26 Found were wellpreserved fourth century specimens from Neapolis (Sambon, nos. 342 and 448), Metapontum (including several Leucippus head types), Croton, Velia, Heraclea, and pieces from the Western Greek colonies. Furthermore, a glance at the complete contents of the hoard shows that many of the Tarentine coins which, according to Evans’ classification belong to Periods II, III, IV, V, as well as those from Periods VII and VIII, are in a similar state of preservation as the Roman specimen. What possible chronological clue can this material provide for dating the single well-preserved Romano-Campanian specimen included in the find? One must conclude that the hoard has little value for such a determination unless it is possible to establish with which group of coins the Roman piece is to be associated. Interestingly enough, a clue is contained in the total absence of Evans’ Period VI pieces, which surely would be present in a hoard the size of Torchiarolo in considerable numbers if Crawford is correct about the composition of large hoards generally. Attilio Stazio points out that the nucleus of the Torchiarolo hoard belongs to the fifth and fourth centuries,27 and it should be evident that the three reduced Tarentine specimens were added to the larger collection prior to burial, but only after an interval of time, apparently equal to the duration of the Tarentine Period VI issue.28 In other words, we have at least two collections 26 Laura Breglia, “Tesoretto di Torchiarolo,” Memorie dell’Accademia di Archeologia, Lettere e Belle Arti di Napoli 6 (1939): pp. 161198; = Crawford, Coin Hoards, no. 11. Complete identifications and indications of wear are given by Breglia. A special thank you is extended to Prof. F.G. Lo Porto, Soprintendente alle Antichita (Puglia), who permitted me to examine this hoard and to make a thorough examination of the archival records and coin material in a search for additional hoard evidence in the museum at Taranto. Dottoressa Elena Lattanzi also gave me considerable assistance during my several visits to the museum. 27 Attilio Stazio, “Contributo alto studio delta prima fase delta monetazione di Heraclea Lucaniae,” AIIN 12-14 (1965-7): p. 41. 28 That Evans’ Period VI types are among the last full-weight coins issued is made evident by abundant hoard material. There are numerous examples of hoards which contain either full-weight Tarentine coins with a significant representation of well-preserved Period VI pieces or which contain reduced coins together with one or two Period VI

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or groups of coins, not immediately sequentially associated, added together and buried. The ROMANO-inscribed coin, as I hope to show, should properly be associated with the full-weight pieces and not, as Mattingly assumes, with the reduced staters of Tarentum. Moreover, it can not be cogently argued that the ROMANOinscribed coin represents the only Romano-Campanian series issued by the time of the hoard’s burial. The absence of Tarentine Period VI pieces from the Torchiarolo hoard makes this kind of argument invalid not only for Torchiarolo, but worthless as a ruleof-thumb when assessing the evidential value of hoards generally.29 More reasonably, the make-up of many hoards is the result of the fortuitous gathering and collecting of coins, although naturally a larger hoard would normally have a broader representation of both mints and types. Thus, since Torchiarolo is composed of many wellpreserved coins from at least two different chronological periods, its value for determining the date of the various individual wellpreserved specimens is negligible, regardless of its burial date. The fact that the bearded Mars specimen is well-preserved means nothing, but the other hoard evidence described below indicates that the Mars series should be associated with the Tarentine pieces from Evans’ Period V, and the fact that several Period V pieces were also found well-preserved in the Torchiarolo find might serve as circumstantial evidence in suppport of such an association. At least it does not contradict the remaining hoard evidence, admittedly limited in quantity, in the way Mattingly’s view does. A recently discovered hoard now in the museum at Policoro is another example important to our present study, and its specimens. For a few representative examples of the former see, Sydney P. Noe, “A bibliography of Greek coin hoards,” NNM 78 (1937): nos. 701, 772, 1060, and 1120; G. Procopio, “Tesoretto monetale da Metaponto-Bernalda,” AIIN 4 (1957): pp. 25-67; Lo Porto, NSc (1966): pp. 175-185. For examples of the latter, see Noe NNM (1937): nos. 185, 1047, and 1049. 29 Thomsen, ERC III: p. 69. In view of the fact that only one Roman specimen was found, Thomsen does not give much credence to the Torchiarolo hoard evidence. He may be correct. Unfortunately, the ROMANO-inscribed coins have only been found hoarded in small numbers compared to the other specimens in the deposits. Cf. Mitchell, MN (1969): p. 55, note 57.

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contents clearly compromise the conclusion drawn by Mattingly from the Torchiarolo hoard material.30 In addition to a single bearded Mars/Horse’s head, ROMANO-inscribed didrachm, there were 76 other pieces from various mints uncovered, about half of which are fractional pieces. The most significant of the latter are two well preserved, though badly struck, Tarentine drachms of reduced weight. A burial date of ca. 280-275 B.C., is made more probable when the collaborative didrachm evidence is considered. There are three full-weight Tarentine didrachms, the two latest from Period VI are worn, there is but a single Metapontine coin (as. BMC, no. 108), well preserved. In addition, there are several late Velian types equally well-preserved, and although there are many Neapolitan types with Nymph head right in various stages of wear, there is a single head-left type (as Sambon, no. 488) in excellent condition. Similarly, the late full-weight Croton didrachms are in excellent condition. Perhaps the best preserved coin in the hoard is a Thurian tetradrachm which must also be dated to the early third century.31 Thus in this hoard we have a rather clear division between several well-preserved coins from various mints and earlier issues which show different degrees of wear. The well-preserved coins are apparently to be dated to the first quarter of the third century, although if we knew more they might possibly be placed nearer the end of this period than the beginning. Regardless, the bearded Mars, ROMANO-inscribed specimen is very badly worn and could easily be dated within the last quarter of the fourth century, as 30 Every courtesy was extended to me during my visits to the beautiful new museum at Policoro and I thank Prof. Adameşteanu for his kindness and for permission to examine this hoard very carefully. Thanks are also due Prof. Franco Panvini Rosati, who is publishing the Policoro hoard, for permission to draw some general conclusions from its contents. 31 The other Neapolitan coins in this hoard range from Sambon no. 439 to 476. The Tarentine staters are as VI. C. 3 and D. 2 and the drachms are as Vlasto, Catalogue: 1068-74. The Velian didrachms are the most numerous, and those in good to excellent condition can be identified with the following: SNG, American Numismatic Society: nos. 1318-9, 1366-74, 1375-8, 1391-6, and 1398-1407. The brilliant coins from Croton are the same types as SNG II, Lloyd Collection, no. 623, and the Thurian tetradrachm is linked with Sydney P. Noe, “The Thurian distaters,” NNM 74 (1935): no. 1.6 (obv.) and 1.8-10 (rev.).

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indeed must many of the other coins in this deposit found in similar condition. Contrary to the Torchiarolo hoard material, in the Policoro hoard we find a badly worn specimen of the earliest Roman didrachm together with clearly less worn Tarentine Period VI types and a good many fresh examples of coins from various mints, all of which can generally be dated to the early third century. The latest issues in this deposit should be dated to ca. 280 B.C. The evidence from other hoards will show that the Roman bearded Mars specimen belongs in the context of the fourth century issues from other cities. The Valesio hoard, for example, offers much better information concerning the date of the first Roman didrachm and it is surprising that those seeking conclusive chronological proof failed to analyze this deposit.32 The content of this find is limited, hence more controllable and more apt to be composed of coins which are roughly contemporary than the contents of a larger hoard, and thus the maaterial is potentially more valuable evidence for a more precise chronological conclusion. For instance, the Metapontine coins in Valesio (BMC, no. 96) are all of the same type and most are apparently die-linked, and the Tarentine pieces are also related. All are from Evans’ Period V: 2 of B.2; 4 of B.5; and 1 of B.15 or variant. The dielinks of both the Metapontine and Tarentine pieces are difficult to judge because of the damaged condition of the coins, and thus their condition at the time of burial is equally hazardous to gage. Nevertheless, it stands to reason that the Metapontine and Tarentine coins were added to the collection as units, soon after their issue, since it is improbable that hoarded coins with such a dose association with one another could have been taken out of Gabriele Marzano, “It tesoretto di Salvatore,” Richerche e Studi (Quaderni del Museo Ribezzo di Brindisi), n. 3 (1967): pp. 95-102; = Crawford, Coin Hoards, no. 12. Crawford’s account should be corrected in the following particulars. The hoard was discovered in 1935 (not ca. 1963), and two coins (a Metapontine and a Tarentine) are missing, thus the original hoard contained 19 (not 17) pieces and is currently incomplete. Marzano’s account is also imperfect, suffering mainly from an incorrect reading of legends and signatures, and occasionally only general descriptions of the coins are presented, although pictures are provided. I wish to thank Dottoressa Benita Sciarra, Museo Archeologico Provinciale, Brindisi, who kindly allowed me to examine this hoard closely. 32

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circulation. A mixture of types and issues would have resulted. Thus they probably were in excellent condition at the time of their burial regardless of their apparent condition at present. They have suffered both from the elements and from cleaning, but in some cases, particular areas of the coin types show their true condition to be excellent. On the other hand, the ROMANO-inscribed coins, two bearded Mars/Horse’s head specimens, are not die-linked, show some, but differing degrees of wear, although here again individual scholars may differ on the exact condition of the coins. Moreover, there is a Heraclean full-weight didrachm (BMC, no. 33) in good condition, a full-weight Thurian stater whose reverse is splendidly preserved, and a seemingly badly worn specimen from Terina which is apparently the earliest coin in this hoard33. Other than opinions concerning the late date of the Roman coins in this deposit, I know of no evidence, hoard or otherwise, which can date any of the non-Roman specimens in this find later than ca. 300 B.C. While working on the unpublished correspondance of Sydney P. Noe in the American Numismatic Society, I uncovered a note from E.T. Newell, written to Noe on the contents of the Mesagne hoard (Noe, “Bibliography,” ANSMN (1937), no. 677). In the bibliography Noe listed among the hoard’s contents two Campanian pieces, but Newell’s note listed them as Campanian, bearded Mars/Horse’s head, which leaves absolutely no doubt about the coins being the ROMANO-inscribed didrachms. A number of other coins from this hoard can be identified as: 1 Tarentine coin (Evans, Period V.E.l), 6 Metapontine coins, 3 fullweight Thurian staters, a Velian specimen, a “lot” from Anactorium Corinth, and a large number of Neapolitan coins. All coins were said to be more or less worn with the exception of the Tarentine types.34 Again we see the first ROMANO didrachm 33 For identification purposes see the following: Thurian coin (SNG, American Numismatic Society, nos. 1049-51, SNG, Oxford, I[A], no. 959, and SNG II, Lloyd Collection, no. 485); coin of Terina (SNG, Ashmolean [Evans Collection]: no. 363). 34 We are not told about other Tarentine types. For parallel types see the following: Metapontum (SNG, Oxford, HA], 744, 750-1, and 759, and Sydney P. Noe, The coinage of Metapontum, Part Two, NNM 47 (1931): nos. 314ff., and 2 of 366); Thurium [SNG, Oxford, HA], nos. 939-42 [Molossos type], 973-6, and 981); Velia (SNG, American Numismatic

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hoarded with coins of the fourth century, although some of the unknown types might well come down into the early third century if we had their specific identifications. Another Mesagne hoard, referred to by Laura Breglia, which was recently reconstructed by a student working under her direction, does not fully correspond to the aforementioned Mesagne find but has some interesting parallels and is sufficient justification for increasing our faith in the evidence from a hoard known only in part.35 Among the 137 pieces associated with this hoard, there are only 2 Metapontine specimens, but both parallel known coin types from the aforementioned Mesagne deposit, and 3 of the 7 Thurian staters have the same types as those found in Noe’s hoard no. 677. Similarly, one (of 15) of the Velian types is also common to both finds, and there are 35 Neapolitan coins with Nymph head-right types (Sambon, nos. 448 to 477) together with 55 Acarnanian (Anactoorium and Thyrheium) pieces. In addition, there were two ROMANO-inscribed bearded Mars/Horse’s head types found-one worn and one badly worn. The five Tarentine coins in this hoard are all very early; the latest belongs to Evans’ Period III.36 Perhaps it is appropriate to ask whether we are dealing with two Mesagne hoards, with two parts of the same hoard, or Society: nos. 1366-74). The Neapolitan coins are said to be unusually large in number and “Just before the last issue.” I take this to be a reference to Sambon’s chronology and arrangement and that we are here again considering only head-right types. 35 Laura Breglia, “Di alcuni tesoretti monetali del museo di Taranto,” AIIN 8 (1934): pp. 29-30. The hoard was found in 1907 and as expected there are minor discrepancies between Breglia’s account of the hoard’s contents and the coins currently attributed to this deposit. The discrepancies, however, do not alter the hoard’s composition greatly or affect the general conclusion to be drawn from its contents. 36 The following are the most significant coin types found in this deposit: Metapontum (Noe, “Metapontum,” NNM (1931): nos. 314 and 366); Thurium (SNG, Oxford, I[A], nos. 942, 973, 981, and 985-6, in addition to 3 badly worn, early Thurian types); Velia (SNG, American Numismatic Society, nos. 1366-74 and 1375-8, are clearly the latest Velian coins in this hoard. Most of the earlier VeIian types are also found in the Policoro deposit). The coins have not been cleaned and specific identification is difficult, but its contents clearly range from the fifth to the late fourth-early third century.

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whether coins not originally part of a single find have intruded into the deposit while other pieces are lost.37 Happily for our present purpose we do not have to answer these questions, since the reports of both hoards, individually or collectively considered, are consistent with the evidence from other deposits. For example, we can be relatively safe in associating the first Roman silver coin with Neapolitan coins listed in Sambon’s catalogue between numbers 435 and 478, while the Tarentine coins associated with the Roman issue belong to Evans’ Period V. The evidence obtained from an analysis of the coins of Velia and the Western Greek colonies is perfectly consistent with this association, as indeed is the evidence from the presence of Metapontine and other full-weight pieces from other South Italian mints. There is not a single non-Roman coin in either Mesagne hoard which can be dated as late as the Pyrrhic period, which, of course, is also true of the Valesio find. The hoard’s contents generally belong to the second half of the fourth century, with some pieces definitely earlier and others possibly early third century in date. Finally, the Beneventan hoard is the only find which contains more than one of the ROMANO-inscribed issues; however, its value for our present study has frequently been questioned.38 For example, Crawford says, “It is doubtful whether this is really a hoard at all,” citing E.S.G. Robinson.39 But Robinson, on the other hand, says only that the record of the Beneventan hoard “is unsatisfactory (e.g. of three coins of Velia covering half a century, the two earlier are described as F.D.C., but the later as only in ‘Fresh Condition’), and one suspects incomplete.”40 The record is unsatisfactory and incomplete, but while Evans’ report leaves much to be desired, it does not warrant While working in the museum at Taranto. I discovered in the “atti d’immisssiones” several acquisitions made in Mesagne, one in 1907, but the material is not mentioned as a hoard or part of one. 38 Evans, Horsemen: pp. 92-94, and Appendix A. pp. 212-215; = Crawford, Coin Hoards: no. 22. Crawford’s reference to only 1 Mars type and 2 Hercules specimens is incorrect. Evans only acquired 3 of the Roman pieces. See Mitchell, NC (1966): pp 67-68, and MN (1969): pp. 5456. 39 Coin Hoards: p. 47. Crawford cites E.S.G. Robinson, NC (1945): 96. 40 NC (1945): p. 96. 37

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doubting either the hoard’s existence or that its known contents fit the general picture obtained from the other sources. Of the more than 200 specimens contained in the hoard and examined by Evans, he gives specific identifications for only those pieces he obtained for his own collection. These pieces are, however, representative of the hoard’s general contents. Evans clearly indicates that no reduced coins from any mint were found in the hoard. The Tarentine pieces Evans obtained belong to Period IV and V (B.2), and 5), and he would not have written what he did about the hoard and dated it as he did to 310 B.C., if he had found reduced coins in the deposit. The Metapontine pieces obtained are among those we have generally come to expect with such Tarentine types, and the Neapolitan specimens are completely consistent internally and their date is confirmed by the existence of many of the same types in both the Mesagne and Policoro hoards. The same is true for the Velian specimens in the Beneventan hoard. Since we do not know when particular coins were added to any given hoard, the fact that a single early Velian coin is reported in unexpectedly excellent condition means absolutely nothing about the hoard’s integrity.41 Most importantly, the Beneventan hoard contained “A certain number of Romano-Campanian pieces, some of the type [somewhat worn] representing the bearded head of Mars with the horse’s head reverse, and others fresh from the mint bearing on their observe the youthful head of Hercules and the wolf and twins on their reverse.”42 The presence of the Hercules ROMANO-type in this hoard is to be expected considering that the other hoards dealt with above have only token representation of Roman issues. Their presence here indicates that they too had been issued prior to the reduction at Tarentum and elsewhere, and the proposed date of 296 B.C. for the beginning of this issue is certainly confirmed by

The Metapontine pieces in the Beneventan hoard are to be identified with BMC: nos. 118 and 122, the Neapolitan specimens with Sambon nos. 455 to 476. and the Velian coins with BMC, not. 77, 95, 111 (cf. SNG, American Numismatic Society: no. 1327, 1385-6, and 13981407). The coins from Nola and Hyrina in this find are both fourth century. 42 Evans, Horsemen: pp. 92-93. 41

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the known pieces in the hoard.43 I do not want to emphasize this fact too strongly since the collaborative evidence is so limited, but I mention it because it is consistent with the remainder of the evidence−a fact which those who date the Romano-Campanian coins to the Pyrrhic period and later can not claim. Consequently, the proponents of the late chronology for the Romano-Campanian coins question the hoard’s authenticity. The known contents of the Beneventan deposit, however, are consistent with or similar in composition to the contents of the other hoards discussed, and I would argue that the authenticity of the hoard is proved by the make-up of the other finds.44 In this essay I have tried to demonstrate only the general chronological context in which the earliest Roman coins were hoarded as determined by the best available evidence obtained from an analysis of the non-Roman pieces in the hoards. What then is the general picture obtained from the hoard material dealt with above and what conclusion does the evidence at hand support? First, the Tarentine coins from the various hoards, which Cf. Mitchell, NC (1966): pp. 66-69, and MN (1969): pp. 56-67 [n.b., reprinted above]. 44 In addition, the non-Roman specimens from the various hoards under consideration are often found in other hoards clearly prePyrrhic in date, a fact which both indicates their compatibility with one another and illustrates their value for dating the Roman pieces with which they are found. For example, Prof. La Porto (NSc (1966): pp. 175-185) published a hoard in which all the Metapontine coin types from Beneventum, Policoro, Valesio, Torchiarolo, and most of those in the Mesagne finds, were hoarded with Tarentine coins from Periods III to VI. There are a few reduced coins in this hoard, but the coin types important for this study are generally in worn condition. Moreover, I uncovered a hoard in the Museum at Taranto, found in 1911 in the area of Ginosa, which had Tarentine types Periods IV to VI together with very badlv worn Metapontine coins. The latter included a Leucippus type, a specimen as BMC, no. 118 (also in Beneventum), and one of BMC, no. 96 (found in Valesio). A final example is found in Noe, “Bibliography,” NNM (1937): no. 1120 There is a great deal of additional evidence which indicates the chronological connection between certain issues from many of the South Italian mints. My contention is that this chronological conclusion can be applied to the Roman coins with which many of these same coins have been found. 43

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most would agree are the best indications of date, do not compromise the early date for the bearded Mars issue proposed by this author. As for the evidence obtained from an examination of the other coins in the six hoards, insofar as we can separate prePyrrhic, Pyrrhic, and post-Pyrrhic coins, the earliest RomanoCampanian issues are hoarded with coins which indicate the prePyrrhic War origin of the Roman issues. In two of the six hoards, a ROMANO-inscribed bearded Mars type was found in one case with reduced Tarentine, Pyrrhic War period staters (Torchiarolo) and in the second instance with reduced Tarentine drachms. In the other hoards, the ROMANO-inscribed specimens were hoarded with very early Tarentine pieces (Mesagne) or with Period V pieces (Valesio, Beneventum, and the Mesagne hoard reported by Noe). But in the former instances, the Torchiarolo hoard also contained Period V pieces in the same condition as the Roman specimen and the three reduced coins are the only ones of the 1,849 pieces in this deposit which are Pyrrhic War in date, and in the Policoro hoard two worn Period VI Tarentine coins were found with a single badly worn bearded Mars type. Second, while the hoard material does establish the priority of the bearded Mars series, it does not prove that the bearded Mars type was the only Roman coin issued at the time five of the six hoards were buried. Admittedly, only the imperfectly known Beneventan hoard contains more than two of the earliest Roman coins and it is also the only find in which more than one of the ROMANO-inscribed issues are present. For this reason, Crawford places the Beneventan hoard after (later than) the Torchiarolo, but it is far from certain that the arrangement is correct. Althought the Beneventan find contains a later Roman coin, the Hercules/Shewolf, while only the first Roman didrachm, bearded Mars/Horse’s head, is included in the Torchiarolo deposit, the latest non-Roman coins in Torchiarolo are reduced Tarentine types, which are clearly later than any of the known non-Roman specimens in Beneventum. Since the nucleus of the Torchiarolo hoard is fourth century, if the bearded Mars issue is correctly dated to ca. 320 B.C., it is consistent with the nucleus of well preserved fourth century coins in this hoard. As for Policoro, the bearded Mars is badly worn, and like so many other early coins in this and other hoards, it is not surprising to find but a single specimen. Indeed, the presence of only one Metapontine coin from a hoard discovered so near the

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sphere of influence of that ancient city is the most surprising feature of this hoard. We can not be surprised if only one Roman type was found. Indeed, it is rarely the absence of coins from particular deposits that is significant, but their presence that is important, although it can be of consequence if a large issue is not represented in a large body of hoard material. Thus, the bearded Mars type was the only Roman coin issued at the time the nucleus of coins found in the Torchiarolo hoard was collected and while the Hercules type is present in the Beneventan find, it certainly had not been issued much before the burial date for the two Mesagne deposits. As for Valesio, the material is completely consistent with both the fourth century origin of the bearded Mars and a late fourth century burial date for the hoard. If we question this arrangement because only the bearded Mars type was found in Policoro, using the same reasoning we could also make the ridiculous analogous claim that only the single Metapontine types in the Policoro and Valesio hoards had been issued by Metapontum at the time of the hoards’ burial. In conclusion, based upon the known latest issues, I offer that the proper chronological order for the hoards discussed above is as follows. The Valesio find is best dated to ca. 310-300 B.C., the Beneventan and the two hoards from Mesagne between 295 and 285 B.C., and the Policoro and Torchiarolo deposits between 285 and 275 B.C. This chronological order is completely consistent with the contents of the various hoards, insofar as their known contents are recorded. Furthermore, it also suggests that the first Roman didrachm is correctly dated to ca. 320 B.C. and that the Hercules coin, the third ROMANO-inscribed coin issued, is properly dated to ca. 296 B.C. Considering the dates of these issues, there is an obvious reason, supported by the historical literary tradition, why so few Roman coins are found in the hoards under consideration. The Roman presence in South Italy was only beginning to be felt in the last quarter of the fourth century and the infrequency of Roman activity, both economic and military, affected the flow of Roman coins into the area.

THE ARISTOCRACY OF THE ROMAN REPUBLIC With this contribution to F. Jaher’s volume about aristocracies, Mitchell began to see logical contradictions between the practical ways in which Roman nobles guarded, reinforced, and extended their dominance, and the featured narrative thread in the modern narrative for early Rome, namely, “the struggle of the orders.” In this context Mitchell does not explicitly challenge the “struggle” model; in fact many of its key moments are mentioned here without challenge. On the other hand, Mitchell does implicitly attack that scheme by showing that the success of entrenched Roman elites depended on sponsoring a limited upward nobility for parvenues−an observation that seems to fly in the face of the “struggle” paradigm. It was only after Mitchell published this article that he set out to rethink the “struggle of the orders” as an explanatory model.* Roman aristocrats, to borrow a phrase from C. Wright Mills, were “simply those who have more of what there is to have.”1 They were the wealthiest, the most influential, the most *Originally published in Frederick C. Jaher, ed., The Rich, the Well Born, and the Powerful: Elites and Upper Classes in History (University of Illinois Press, Urbana: 1973): 27-63. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. The Power Elite (New York, 1959): 9. Citations of both ancient and modern literature will be kept to a minimum, and no attempt will be made to argue the many problems with which this essay deals. The notes are used primarily to direct the reader unfamiliar with the scholarship to modern literature where he will find additional bibliography and 1

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powerful, the most prestigious, and the best educated citizens of the Republic. They were magistrates, commanders, governors, priests, and judges, not to mention poets and historians. In every respect they belonged to the upper class and were dominant in the Roman world. Principally, however, the aristocracy was concerned with politics, and success in politics determined status within the aristocracy. Although they formed a homogeneous group when compared to the rest of society, not all aristocrats were equally potent. Senatorial families constituted the broader aristocratic group, but among senators the nobles were preeminent. Nobility was originally reserved for those whose ancestors obtained curule office, but by the second century B.C. only those families who reached the consulship were nobles. But aristocratic equality did not exist even among the nobles. Only a few families were continuously successful, holding a disproportionate share of the offices and shaping the decisions relating to domestic and foreign affairs. The elevation of non-aristocrats was controlled by the same families. Mobility into the aristocracy was stimulated by social, economic, and political changes, but was possible only for those wealthy citizens personally connected with established aristocrats who supported their elevation. In reality, mobility occurred as a consequence of the aristocrat’s desire to retain control. An elaborate network of personal relationships was the foundation of the dominant nobility’s political influence and power. Supported by kin and client, they frequently intermarried or formed connections with other aristocrats or men of property. Some relationships were inherited and recognized by law, such as the patron-client, and in this sense aristocratic status was a birthright. Descendants claimed the fame, fortune, and following of ancestors, pointed to traditional practices and ancestral accomplishments to secure support, and insisted that success was justified by their high birth and merit. Societal, legal, and institutional practices also contributed to the maintenance of aristocratic control and privilege. The urban nature of the aristocrat, his position before the law, and his privilege and influence in assemblies secured his position. The Senate in references to the ancient sources. Although my selection is arbitrary, my indebtedness to other scholars, often unnoted, will be obvious to ancient historians who chance to read the essay.

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particular was the mainstay of aristocratic control, but even it declined in power and influence in the second century as individual aristocrats carried their own personal politics to a logical conclusion. Since support could be maintained or increased only by continued political success, aristocrats pursued personal goals often with ruthless self-interest. Personal connections with other aristocrats were informal, reciprocal, and fluid, but were effective in securing votes, passing bills, and obtaining favors. One acted responsibly toward one’s followers and friends, and personal obligations determined political behavior, but few politicians practiced responsibility to citizens, allies, or provincials. Political decisions were often made in the interests of a clique, and the goals, policy, and general functions of government were similarly determined. The consequence of a politics based upon personal considerations was not merely personal but affected all of Roman society. In early Roman society, with its noticeable absence of state regulations, legal and institutional safeguards, and protections for the individual, the weak naturally looked to the strong: son to father, kin to kin, client to patron, poor to rich, friend to friend, and noncitizen to citizen. As P. A. Brunt points out, such practices “could only have originated in a society in which economic and political power was very unevenly distributed.”2 Wealth, principally landholding, was the primary source of power. Throughout Roman Republican history, only the wealthy could afford to maintain an extended family unit and thereby derive support from kinsmen, have the economic and personal power and influence to obtain and support a large number of clients, or have the leisure to hold unpaid political and religious office. Similarly, military service in the cavalry or hoplite infantry was based upon one’s property qualification, and the military units of the regal and early Republican period were virtually synonymous with the wealthier citizenry. The individual’s economic status ultimately determined both his responsibility to the state and the extent of his power, influence, and privilege within the state. But among the wealthy, great weight was given to one’s birth and to the number and nature of one’s dependents. Those 2

Social Conflicts in the Roman Republic (London, 1971): 49.

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who traced their ancestry into the regal or legendary Roman past had the inside track on aristocratic positions. Both their aristocratic claims and their citizenship were based upon an ancient birthright. In earliest Rome, membership in the community was determined by one’s membership in a curia.3 Later, before the Republic began, formal citizenship was based upon membership in a territorial unit, an urban or rural tribe.4 Normally one was a citizen by birth, but one could also be a Roman citizen by one of many special governmental or individual grants. But in any period those whose citizenship was of recent vintage were at a disadvantage, and this was particularly true for the freedman and his descendants. Thus while citizenship and wealth were necessary to gain entry into the aristocracy, it mattered greatly whether one had old, inherited wealth or was a new citizen or a parvenu. Most patricians must have been citizens of Rome by the beginning of the Republic. Tradition says that when Rome was ruled by kings, the kings appointed a council of elder advisers, senators, who were the heads (patres, or fathers) of the most prosperous and powerful gentes. These patres, or patricians, were aristocrats even under the monarchy.5 As paterfamilias, the head of 3 Originally the curiae had military, political, and religious functions most of which they eventually lost to other assemblies. To fight, to worship, and to assemble encompassed the rights of citizenship: arma surnere, sacris adesse, concilium inire (Tacitus, Germania, 6.6). See Ogilvie, A Commentary on Livy, Books 1-5. (Oxford, 1965): 80, 408f.; Arnaldo Momigliano, “An Interim Report on the Origins of Rome,” JRS 53 (1963): 108ff.; and the out-of-date but useful George W. Botsford, The Roman Assemblies. (New York, 1909): 2ff., 168ff. 4 L. R. Taylor, The Voting Districts of the Roman Republic PMAAR 20 (Rome 1960). 5 The problem of the origin of the patriciate is only part of the larger problem of the origin of the Republic. Discussions of ancient sources and modern theories are found in Botsford, Assemblies, 16ff.; H. J. Rose, “Patricians and Plebeians at Rome,” JRS 12 (1922): 106ff.; CAH 7; Hugh Last, “The Servian Reforms,’ JRS 35 (1945): 30ff.; Momigliano, JRS (1963): 95ff.; Einar Gjerstad, Legends and Facts of Early Rome (Lund, 1962); Ogilvie, Commmentary; Andrew Alföldi, Early Rome and the Latins (Ann Arbor, 1965); and ORR in general. On the question of the patricians equation with the royal bodyguard, see Andreas Alföldi, Der frührömische Reiteradel und seine Ehrenabzeichen (BadenBaden, 1952), and “(Centuria) procum patricium,” Historia 17 (1968): 444ff.; but cf. Arnaldo Momigliano,

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the family, each man exercised total control over his family, including adult married sons, over the religious rites and ceremonies practiced by the individual family, and over the family’s collective wealth or property.6 Those upon whom others depended naturally institutionalized these relationships, and the strong, influential men of property assumed the positions of leadership once state institutions emerged and claimed such positions as a right of birth. There is no truth to the argument that patricians were the only original citizens, that they made up the complete Roman aristocracy, or that they totally monopolized all governmental positions. However, as a group they were the most prosperous, the most prestigious, and the most successful politically of the early citizens of Rome, and the first to claim by right of birth the honors they received and the privileges they enjoyed. Possibly the patricians, in their capacity as military men or political advisers, backed by their kin and clients, led the successful overthrow of the last king, Tarquin. Perhaps, on the other hand, as members of his council, the Senate, they were merely in the best position to capitalize on his exile and seize the reins of government. Once in command, certain patrician gentes began to develop their claims to exclusive power and tried to establish their hereditary right to monopolize all important state positions and attendant privileges.7 They reinforced their claims by appealing to tradition, to their family’s experience, expertise, and knowledge, and to the propriety of their socio-religious standards and practices. As usual in preindustrial societies, precedent, mos maiorum at Rome, was set forth as the example to follow.8 It dictated the acceptance of the status quo: if it was good enough for the father, it was good enough for the son. The ancient authorities clearly thought only “Procum patricium,” JRS 56 (1966): 16ff., and his review of Alföldi, Early Rome, in JRS 57 (1967): 211ff. 6 CAH vol. 7: 414ff.; Jolowicz, H. F., Historical Introduction to

the Study at Roman Law (Cambridge, 1961); 3rd ed. (Cambridge, 1972).: 112ff. Cf. Last, JRS (1945): 31ff.; Momigliano, JRS (1963): 117f. For example, Cicero, Epistulae ad familiares, 4.3.1: nam, quod exemplo fit, id etiam iure fieri putant-although Cicero is referring to a bad precedent having the force of law (right). Cf. Gideon Sjoberg, The Preindustrial City (New York, 1965): 220ff. 7 8

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patricians could be magistrates, senators, and priests during the first years of the Republic. Certainly they were the dominant group in society, and some patricians apparently tried to close the ranks of the patriciate and thus the access of non-patricians to public positions. The last patrician gens created, the gens Claudia, was supposedly added when Attius Clausus (Appius Claudius) moved to Rome from his Sabine home about 504 B.C.9 If other patrician gentes were added later, they have left no record. It is safe to assume that the number of patrician gentes was fixed early in the Republican period. On the other hand, according to popular myth, plebeians were all clients or dependents of the patricians.10 But plebeians were citizens and had the same or similar religious practices as patricians.11 Even if they were not originally magistrates, senators, or priests, the sine qua non of status in the community, wealth, could not be totally denied all non-patricians, especially in the face of the territorial expansion of the state and the gradual sophistication of urban life. Thus wealthy plebeians also supported joint families, attracted a body of potentially powerful friends and clients, and used their ever-increasing importance to the state to win concessions from the patricians. The literary tradition, late in origin and much influenced by events of the post-Gracchan period, interpreted this period of conflict between patricians and plebeians as a contest between polar opposites: “The Struggle of the Orders” (509-287 B.C.). Normally plebeians are defined negatively, as nonpatricians and the reverse of what patricians are. Similarly, the application of the name plebeian to the poor, the great unwashed, of the late Republic resulted in this meaning’s being applied anachronistically to those plebeians who led the struggle against patricians in the early Republic. But the struggle makes sense only if there were wealthy plebeians who desired a share of the privileges and honors that the patricians were attempting to monopolize, and if some plebeians were not so dissimilar to Livy, 5.16.4. See Ogilvie, Commentary, 273ff.; Taylor, VD: 6, 35ff. The gens Claudia was maior, not minor, but the significance of the distinction is obscure (cf. Ogilvie, Commentary: 145ff.). 10 Cicero, De re publica, 2.9.16; Dionysius of Halicarnassus, 2.9.12. Cf. Livy, 2.35ff., 2.55ff., and Ogilvie, Commentary: 293ff., 309ff. 11 Rose, JRS (1922): 106ff., argued that the original distinction between patricians and plebeians was economic. 9

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patricians as the sources maintain. Evidence suggests that certain plebeians had been successful under the kings, and plebeian names are found among those who held magistracies in the early Republic.12 This limited and debated evidence indicates that the gentilic pride and exclusiveness of the patricians were not totally effective against plebeians in the regal period or in the first half-century of the Republic, that the attempt by the patriciate to make itself a closed order and to claim a hereditary domination of the state positions originated later than did the Republic, and that this attempt was the consequence of plebeian threats to patrician power and influence.13 Moreover, the almost immediate repeal (445 B.C.) of a law of the Twelve Tables (450 B.C.) that forbade intermarriage between patricians and plebeians14 is obvious evidence for the acceptance of some plebeian mobility by the patrician aristocracy. Unquestionably some patricians held to a policy of exclusiveness and tried to monopolize the state machinery and attendant privileges, but they ran the risk of political failure in the face of combined patrician-plebeian opposition. Furthermore, even if not prohibited from intermarriage with plebeians, the limited number of patricians could not have maintained their original strength. Their ranks were depleted by shouldering a disproportionate share of the military responsibility during the early Republic, by the normal high rate of infant mortality, and by the fact that some must have slumped into poverty. In sum, the patricians could never hope to monopolize wealth, thus status, or to assume total responsibility for administering, expanding, and protecting the state. At Rome it would always be possible for some nonaristocrats to translate their wealth into social status, influence, and political office. In fact as early as 494 B.C. plebeians had gone on strike, refusing to do military service until certain demands were met. The Momigliano, JRS (1963): 117f.; Ogilvie, Commentary, 293ff. Cf. Last, JRS (1945): 30ff. Ogilvie, Commentary, says that “the tribunate was created, not because the plebeians were politically weak, but because they were politically strong”(294). 14 Consult MRR, for an extensive citation of ancient sources for dated events mentioned in this essay. F. Cornelius, Untersuchungen zur frühen römischen Geschichte (Munich, 1940): 113ff., is one of the few to attempt an analysis of the political groupings in fifth-century Rome. 12 13

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most important concession obtained was the right to elect their own plebeian officials, tribunes, who numbered ten by the middle of the century. By 400 B.C. plebeians had held the aedileship, quaestorship, and military tribunate with consular imperium, and more than likely some had been admitted to the Senate. The ancients viewed this trend from a distance and interpreted it, particularly the creation of the tribunate, as the beginning of a state within a state, the destruction of a previous stage of political harmony, and the advent of seditious activity.15 Actually it was the foundation for the development of a plebeian aristocracy, which gradually coalesced with the patrician during the course of the struggle of the orders. Many plebeian gentes successful in obtaining offices in the fifth and early fourth centuries apparently were established aristocrats, since they were among the first to obtain the consulship once it was opened to plebeians in 366 B.C. Of the nearly thirty plebeian gentes that obtained a consulship from 366 B.C. to the First Punic War, nearly two-thirds traced their ancestry to plebeians who held office prior to 380 B.C.16 These gentes are among the most politically successful in the Republic. Even if this early evidence is discounted, we must assume that certain gentes were already powerful enough to win considerable electoral success once offices were opened to them. In little more than a half-century following 366 B.C., plebeians gained a share of all the chief political and religious offices. As a joint patrician-plebeian aristocracy developed, the tribunate, the source of power the plebeians used earlier to gain parity with the patricians, became little more than another “establishment” office. Though it was late in the second century that ex-tribunes were admitted to the Senate,17 the office had long been used as a stepping stone to higher positions. There was certainly no stigma associated with holding the office. Patricians could not hold it, but established plebeian aristocrats did seek it, and many used the tribunate to protect senatorial supremacy and aristocratic advantage. For example, Cicero, De legibus, 3.8.19. Unless otherwise noted, this and subsequent discussions on the extent and nature of officeholding by patrician and plebeian gentes are based upon lists compiled from MRR. 17 See A. E. Astin, Scipio Aemilianus (Oxford, 1967): 354f. 15 16

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A quick reckoning from T. Robert S. Broughton’s work shows that by the beginning of the Second Punic War, 10 extribunes had reached the consulship, while the next 150 years produced over 50 tribunes who went on to the consulship and as many who reached the praetorship. Moreover, approximately 75 percent of all tribunes who became consuls belonged to gentes with previous generations of state service to their credit. Of the other 25 percent, few were successful beyond this single attainment of the consulship. As with other little-known consular gentes, such men needed assistance to win elections and could not sustain support beyond their own immediate person or generation. Of those who did not come from established gentes, C. Marius (consul, 107, 104100, and 86 B.C.) and M. Curius Dentatus (consul, 290, 274-73 B.C.) stand out, but few of the others were independent sources of influence in their own day, and all needed aristocratic support on the way up. Indeed, Marius’ connections with the aristocracy are well known.18 An aristocracy of officeholders had emerged, and plebeians merely continued what patricians had started: the hereditary domination of all important facets of Roman life by a few gentes.19 It is a common assumption that at no particular period in Roman Republican history did the number of powerful gentes exceed 20. If we calculate the consulships obtained by the 22 most successful gentes, patrician and plebeian, the result will show that they monopolized nearly two-thirds of all Republican consulships. Although plebeians were admitted as partners in virtually all state positions by the end of the fourth century, patricians continued to hold their share of the highest and most prestigious positions for some time despite a decrease in their numbers. Of the On Curius, see Friedrich Münzer, Römische Adelsparteien und Adelsfamilien. (Stuttgart, 1920): 61f., 110. For Marius, see E. Badian, “Marius and the Nobles,” Durham University Journal (1964): 141ff.; Thomas F. Carney, A Biography of C. Marius: Proceedings of the African Classical Association, supp. 1 (1961): 15ff. 19 Münzer, Römische Adels.: 182, 322, argues that the patricians admitted some plebeians in order to remain in control and to avoid a greater influx of plebeians. F. Cassola, 8ff., rightly insists that political conflicts were between aristocratic cliques, not between patricians and plebeians. HL I: 311ff., has a valuable discussion and bibliography but too much about democratic movements and radical politics. 18

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approximately 48 patrician gentes known in the fifth century, only 16 claimed consulships after 366 B.C. Of these, 3 held a single consulship or had a single generation of success, while 3 others virtually disappeared from public life for a century or more. But not all patrician gentes were equal in power and influence. Of those successful in the earlier Republican period, only 12 remained even moderately effective politically after 366 B.C. Members of these same 12 gentes held 80 percent of all consulships obtained by patricians and 45 percent of all Republican consulships. Furthermore, the 5 most victorious gentes monopolized over 25 percent of all consular offices and over 45 percent of those held only by patricians. During the first half of the first century B.C., only 8 patrician gentes were successful in winning the consulship; of these, only 5 held more than one. The many families of the gens Cornelia alone claim almost half of the patrician total in this period. The evidence concerning plebeian gentes indicates a similar concentration of strength. Although there are more than 80 known plebeian gentes that claimed consular office between 366 and 49 B.C., 9 gentes held approximately 40 percent of all consulships held by plebeians after 366 B.C., and 6 of these claimed nearly 30 percent of that total. Such domination is surprising, since hardly a decade passed from 366 to 49 B.C. when a new plebeian gens did not rise to the consulship for the first time. An analysis of the gentes, however, shows that continuous power and influence were retained by only a few clans. Only 5 gentes survived from the fourth century to the first century as consular, by which I mean they were able to claim at least one consulship in each century following the fourth. Similarly, only 5 gentes rising to the consulship in the third century continued to reach the consulship in each succeeding century. Yet 65 percent of all plebeian consulships were held by gentes that appeared as consular between 366 and 284 B.C. In fact the 8 most successful plebeian consular gentes had all held at least their first consulship less than a century after the consulship was opened to the plebeians. In a given century, the number of plebeian gentes to rise to the consulship for the first time was equal to the number that disappeared as consular. Of the plebeian gentes known from the fourth through the second centuries, almost half did not reach the consulship in any century subsequent to their initial appearance as consuls. Eighty percent of these gentes held no more than two

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consulships, and 45 percent acquired only a single consular post. The success of such gentes was frequently limited to a single individual or at most to a single generation. Since no new patrician gentes were created, the plebeian aristocracy gradually became the majority group. Between the midfourth and mid-third centuries, Rome rapidly extended her franchise along with her territory in Italy, resulting in the relatively rapid growth of new plebeian gentes. Many were enfranchised Latins, Campanians, Etruscans, and other Italians.20 By the end of the Second Punic War, plebeians had attained a clear majority. Due to the declining number of patricians, plebeians were elected to both consulships for the first time in 172 B.C., and held both consular positions fifty more times before the dictatorship of Caesar. Through continuous political success a family or gens built personal connections and developed the broad reputation that guaranteed victory at the polls. Once well established, both patrician and plebeian gentes could again attain high office even after a decade, a generation, or, in a few cases, a century or more of obscurity. This must be attributed to their established personal connections and reputation, stimulated by a change in fortune.21 Many an individual rose to preeminence, but for lack of offspring, financial resources, or continuous political support, his gens dropped into obscurity in the next generation or so. Clearly the electoral success of such an individual was often not due to his own personal influence and reputation. Those who became the first of their gens to hold the consulship owed their success to the political clout of friends and associates. Even those few individuals honored for important activities or services or for particular talents would rarely have succeeded had it not been for aristocratic support or sponsorship. Decades or generations were usually spent occupying lower state positions and acquiring sufficient political support and public reputation to attain the chief magistracies. Münzer, Römische Adels.: 47-97 passim, is helpful but widely speculative at times on the foreign origin of plebeian families. His comments on intermarriage among the orders, however, are sound, even if some of his examples are less than convincing. 21 For example, the patrician gentes of Catiline (Sergia), Caesar (Julia), and Sulla’s family of the gens Cornelia were not continuously successful (cf. MRR II: “Index of Careers”). 20

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The first member of a family to win election to public office was called a novus homo, a new man. Modern scholars too often apply the term loosely to the first in a family to obtain the consulship, although he often had ancestors who spent years in lower positions prior to the family’s first consulship.22 By applying such a meaning to new men, scholars have created a false impression of mobility. Many plebeian families were represented on the consular fasti, but not many of these men were the first in their families to hold office or to be senatorial. Given the lack of specific information concerning the ancestors of many of those who were the first of their gens to reach the consulship, perhaps we should strike a balance between the extremes of scholarly opinion. Matthias Gelzer lists 15 new men who became consuls between 366 and 49 B.C., while D. C. Earl maintains that “no fewer than twenty-nine consuls seem to come from new families,” between 200 and 107 B.C. T. P. Wiseman probably comes nearer the truth. He knows of 11 new men between 191 and 49 B.C.23 The total number of names for the period between 366 and 49 B.C. was probably not greater than 25, approximately four percent of the total number of consulships. Concerning entry into Roman aristocratic society, Earl says, “The Roman nobility was always of great vitality and ever in search of talent. Its attitude was not one of vigorous exclusion of outsiders but of carefully controlled inclusion.”24 Actually the Roman noble was “ever in search of” greater personal power and influence, but conceded entry into the aristocracy of officeholders to those numbered among his own real or potential supporters. Some new men, like Marius, doubtless found that even their own T. P. Wiseman, New Men in the Roman Senate, 139 B.C.-A.D. 14. (Oxford, 1971): 1ff., 105f. 23 Matthias Gelzer, The Roman Nobility, tr. Robin Seager (Oxford, 1969): 34ff., 51ff.; D. C. Earl, The Moral and Political Tradition of Rome (London, 1967): 1.3; Wiseman, New Men: esp. 2f. and app. 5 (“Consular Novi”), 203. Earl does assume that some of his twenty-nine were senatorial. 24 Earl, Moral and Political: 1.3. Badian, Durham Univ. Jour. (1964): 1.42, says, “These great [Roman] patrons also kept an eye on local talent .... promising young men of the upper class in Roman cities were readily taken up by their great patrons and introduced to political life in the capital.” 22

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patrons would not support them if they carried their quest for office too far. Marius served Rome in various capacities, got as high as the praetorship, served with some of the most eminent men of his day, but found his noble patron unwilling to advance his candidacy for the consulship. This was the guarded preserve of the nobility, passed from hand to hand. Tradition tells that Marius was unwilling to keep to his proper station.25 Even Cicero, so often the spokesman for the aristocratic cause, was considered a “foreigner” by some aristocrats. Catiline, for example, thought Cicero’s victory over him in 64 B.C. too great an insult to bear.26 To give an extreme example, the important Roman priesthoods illustrate the extent of the earlier patrician domination, the acceptance of wealthy plebeians as partners in the aristocracy, and the degree to which positions of influence were open to new men. Religious institutions are the least likely to change and the last to consider reform, but they are not immune to the strongest pressures of society. Appropriately, the last fortress surrendered by patricians to plebeians was their priestly stronghold. The election of plebeians to all major magistracies (by 337 B.C.), thus to the religious duties associated with the offices, helped to break down the patrician monopoly. The growing complexity of society, which demanded a more sophisticated legal system, also played an important part in priestly control of the law. Plebeian admission to the priesthoods themselves was encouraged by C. Flavius’ publication, ca. 304 B.C., of the forms of legal procedure, leges actiones, which had been the preserve of the pontiffs, all of whom were patricians. Publication hastened the law’s separation from religious and patrician control.27 Sallust, Bellum Jugurthinum, 64.2. Metellus told Marius there was always time for him to seek the consulship with his (Metellus’) son, who would be eligible in twenty years. Marius was about fifty at the time. For the new man’s reliance on deeds and virtus compared to the noble’s reliance on ancestors and clients, see Sallust, Jug., 85. Marius’ imagines are the scars on his chest. Cf. Earl, Moral and Political: 47ff. 26 Cicero, Pro Sulla, 21. Cicero is called the third foreign tyrant, a reference to his town’s recent citizenship (Arpinum in 188) and his consular activities against Catiline in 63 B.C. The speech is a good example of the nobility’s attitude toward novi and of the use of trials as a political device. 27 Jolowicz, Historical Introduction: 88ff., 196ff. 25

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Patrician domination of the law was a mainstay of their claim to exclusiveness, and their control over the leges actiones reinforced their position, since they alone could claim such knowledge and expertise. Given the connection of the leges actiones with ritualistic magic and religion and the conviction that such practices must remain unaltered, patricians claimed they should have exclusive knowledge of the holy writ, thus reinforcing their position and prestige in society. After publication, patricians could no longer make such claims, and plebeian pontiffs and augurs were added to the existing number of patrician priests (300 B.C.). Patricians remained, for traditional religious practices demanded it, but the method of selecting the plebeians is revealing. Co-option, not election, was used. Perhaps the use of election to fill religious positions appeared unseemly, an affront to the gods, but all elections, indeed virtually all state business, were carried out with the auspices and thus with the knowledge of the gods.28 More likely, since all important positions had been opened to the plebeians before this date, the two aristocracies, plebeian and patrician, had already coalesced into a single aristocracy by this time. Hence patrician priests carefully selected plebeian friends, political allies, or “safe” plebeians to hold such prestigious positions.29 All four plebeian pontiffs initially selected had been consuls, while two of the five augurs were consular, and all were from established gentes. The only known new men to hold important priestly offices during the Republic were Ti. Coruncanius pontifex maximus in 254 B.C.; C Marius, augur, ca. 98 B.C.; and M. Tullius Cicero, augur in 53 B.C.30 Generally the priesthoods went to the most prestigious Roman gentes, to consular families, and most often to younger sons. The latter indicates the control important gentes held over such positions.31 28 Botsford, Assemblies: 100ff. Officials of the plebeians did not require the auspices for their acts or election. Cf. L. R. Taylor, Roman Voting Assemblies (Ann Arbor, 1966): 62f. 29 E. Stuart Staveley, “The Political Aims of Appius Claudius Caecus,” Historia 8 (1959): 410ff., esp. 416, 430ff.; Cassola, I gruppi politici: 8ff., 128ff., 149f. 30 Wiseman, New Men: 169ff., and 169, n.5 for possible additions. 31 David E. Hahm, “Roman Nobility and the Three Major Priesthoods (218-167 B.C. ),” TAPA 94 (1963): 73ff., has shown that pontiffs, augurs, and decemviri were for the most part co-opted before they

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Even when the method of selecting the important priestly officials was changed to election by seventeen tribes in 104 B.C., little new blood flowed into the religious offices. When seventeenyear-old Julius Caesar entered the pontifical college in 83 B.C., for example, of the ten members in the college, four pontiffs had been consuls, one was consul, and five others, including Caesar, would be consuls. All were from gentes with long established traditions of state service. The priests’ power to nominate candidates and the aristocracy’s influence in the tribes were the principal reasons the nobles continued to monopolize the priesthoods. Their wealth could also be used in less legal ways to influence the electoratewitness Caesar’s elevation to the position of pontifex maximus in 63 B.C.32 The patricians lost their monopoly of the priesthoods, although their loss merely opened the way for monopoly by the patrician-plebeian aristocracy. Few new men ever obtained an important priesthood. Priestly positions not only endowed their holders with very real power and influence that were politically useful, but their activities, dress, and importance in state functions set the priests apart and added to their individual worth, dignitas.33 In Rome there was no quarrel between those in the religious sanctuary and those in the forum. The Middle Ages had separate bureaucracies that fought, governed, and prayed, but in the Roman Republic these functions, with few exceptions, were carried out by the same men. Regardless of the position held or activity engaged in, it was made the instrument of the aristocrat’s political appetite and the token of his dignity. Although as a group the Roman nobility opposed the election of new men as consuls, as individuals who based their obtained the consulship. Hahm calls the established gentes’ control “patronage,” but a better word would be “nepotism.” 32 L. R. Taylor, “Caesar’s Early Career,” CPh 36 (1941): 113ff., “The Election of the pontifex maximus in the Late Republic,” CPh 37 (1942): 421ff., and “Caesar’s Colleagues in the Pontifical College,” AJP 63 (1943): 385ff. 33 For the political activities of priests, see L. R. Taylor, Party Politics in the Age of Caesar (Berkeley, 1961): 76ff. On Roman religion generally, see Gaetano de Sanctis, Storia dei Romani 2, pt. 2. (Florence, 1953): 121ff., on “Lo svolgersi e il declinare dell’ antica tradizione religiosa.”

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political domination on a network of personal relationships they supported the mobility of some from their own clique, at least into the lower magistracies. In developing their power, influence, and interests at home and abroad, the aristocracy produced an increased demand for administrative and military personnel. In turn, more positions and opportunities opened to new men and contributed to their mobility. For example, beginning in the late fourth century, 16 military tribunes were elected, and in 268 B.C. the number of quaestorships was increased to 8. There had been but one praetor from 366 B.C. and only 2 from 241 to 227 B.C., when 4 were elected. In 197 B.C. the number increased to 6, and the praetorship clearly became subordinate to the consulship. Finally Sulla raised the number of quaestors and praetors to 20 and 8 respectively, and created a Senate with a membership of 600. As a consequence of these additions, the senatorial aristocracy had more difficulty monopolizing offices. The nobility concentrated on the consulship, censorship,34 and priesthoods, while a favored novus homo could often count on the praetorship. Between 138 and 70 B.C. approximately 17 percent of the known praetorships were held by new men, and from 89 to 49 B.C. the figure rises slightly to 25 percent.35 Complete information is wanting on the officeholders and the careers of their ancestors, but apparently from 227 to 197 B.C., when the number of praetorships was raised to 4 and then 6, the number of new men who held the office of praetor was smaller than in the last hundred years of the Republic. Although a definite conclusion is impossible, given the fragmentary nature of the evidence, the figure is probably less than 15 percent. We are poorly informed about the lower offices and the men who held them, but as H. Stuart Jones said, “doubtless if we were more fully informed with regard to the holders of offices of 34 Wiseman (New Men: 169) knows of two novi who held the censorship in the last 150 years of the Republic. Jaakko Suolahti The Roman Censors: A Study on Social Structure (Helsinki, 1963): 80ff., has collected a great deal of information, but its interpretation and application are unhappy; cf. John Briscoe’s review, JRS 56 (1966): 266f. 35 Wiseman, New Men: 162f. Cf. Gaetano de Sanctis, Storia dei Romani 2, pt. 1, 2nd ed. (Florence, 1969): 474. H. H. Scullard, Roman Politics, 220-150 B.C. (Oxford, 1951): 11, 306f., has shown that 151 of the 262 known praetors between 218 and 167 B.C. were from 20 gentes.

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lower grade than the consulship, we should find abundant evidence that expansion of the citizen body brought in its train an infiltration of fresh elements into the governing class.”36 Though the older plebeian gentes were still dominant, grants of citizenship did enable some gentes to translate their local power and influence into Roman offices. Beginning in the mid-fourth century, more information exists, indicating that for almost every subsequent stage of Roman Republican history, not only did new plebeian gentes claim Roman magistracies, but also many such gentes came from recently enfranchised districts. The Fulvian gens came originally from Tusculum, enfranchised about 380 B.C., and a Fulvius held the consulship in 322 B.C., the first of twenty his gens would claim. Tusculum was the original home of so many consular families, the gens Porcia to name another, that it was said to be packed with consulars.37 Another example from the end of the Republic will suffice to establish the point. Arpinum, granted citizenship in 188 B.C., was the hometown of both C. Marius and M. Tullius Cicero. Both were exceptions in that they were new men, like M. Porcius Cato, the first of their gentes to be senators. All three, however, are known to have had influential aristocratic supporters.38 The Roman aristocracy’s success in expanding the state and adding to its citizenry created a situation that could have threatened its own domination. There was an increase in the upward mobility of local aristocrats who came to Rome, but they were supported by Roman nobles desirous of increasing their own body of supporters. Within a generation or so, some of these men were found among the lower magistracies, and after considerable service, some obtained the consulship. The entry of these local aristocrats into the ranks of the Roman aristocracy served as “a device by which the Roman ‘Establishment,’ killing two birds with one stone, extended its own power over Rome and Rome’s power

CAH 7: 548. Cicero, Pro Plancio, 19. See Münzer, Römische Adels.: 48f., 64ft; Taylor, VD: 301ff; and Toynbee, HL I: 324f., for discussion and bibliography. 38 For Marius, see n. 18. For Cato, see D. Kienast, Cato der Zensor (Heidelberg, 1954), and Scullard, Roman Politics: 110ff. On Cicero, see H. H. Scullard, “The Political Career of a ‘Novus Homo,’’’ in T. A. Dorey, ed., Cicero (New York, 1965): 1ff. 36 37

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over Italy simultaneously.”39 It is necessary to emphasize that this was also the method whereby those nobles from local municipalities entered the charmed circle at Rome. Roman aristocrats formed various types of associations and connections with these local aristocrats and thereby gained support for their own aspirations. The success of the local aristocrat is explained by the reciprocal nature of such relationships.40 Special grants of citizenship tell the same story. Some additions to the aristocracy came from Latin colonies, established in great number during the middle years of the Republic, since Latins could become Roman citizens by migrating to Rome.41 And beginning in the last quarter of the second century, municipal magistrates obtained Roman citizenship for themselves and their families.42 Citizenship grants were also made to individuals in the late Republic, especially for military service (as equestrians) and successful prosecution in the courts.43 The men who obtained citizenship by these means were aristocrats in their own communities. Such grants are indicative of the privileged position enjoyed by such men and of the support they received from members of the Roman aristocracy.44 The Social War (91-89 B.C.), during which the Italian peoples rebelled against Rome and as a consequence obtained the franchise, contributed to the rise of some local aristocrats to positions of importance at Rome. The vote was clearly desired by local aristocrats, and we must assume they used it in considerable numbers, although the established Roman aristocratic families did their best to turn a bad situation to Toynbee, HL I: 340. Cf. Gelzer, Roman Nobility: 63ff., 101ff.; Sir Ronald Syme, The Roman Revolution (Oxford, 1960): ch. 2; Taylor, Party Politics: 25ff.; and Wiseman, New Men: 33ff. 41 The privilege would of course apply to all those with Latin rights. Wiseman, New Men: l5ff., 29f. On citizenship generally, see A. N. Sherwin-White, The Roman Citizenship (Oxford, 1939). 42 E. Badian, FC: 179f.; P. A. Brunt, “Italians Aims at the Time of the Social War,” JRS 55 (1965): 90f.; cf. Donald W. Bradeen, “Roman Citizenship per magistratum,” CJ 54 (1959): 221ff. 43 Badian, FC: 259ff., 28 n.6; Taylor, Party Politics: 114, and VD: 19. 44 Wiseman, New Men: 18f., points out that grants to communities often lagged behind grants to individuals, an indication of a privileged position. 39 40

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their own advantage.45 The state’s development was not all territorial; it was also growing richer and more sophisticated economically. The everexpanding urban population and the urban aristocracy itself, increasingly given to conspicuous consumption, had to be cared for and provided many businessmen with a livelihood. State contracts, public works, and the economic needs of the administration and the developing empire generally were handled by private citizens, since the Republic never developed a civil service. Thus economic development made it possible for some to earn fortunes in such activities, and to use their wealth to form connections with those in power and thus acquire the wherewithal to make their way into the upper class. The differentiation of l’homme d’argent began as the result of territorial and economic expansion, a process accelerated by the late fourth-century contact with Campania, Magna Graecia, and the more economically advanced and prosperous cities of Italy. It was further stimulated by Rome’s success in the First Punic War and the creation of her first imperial possessions. The senatorial aristocracy, which controlled state finance and, through its monopoly of the office of censor, state business, gained considerable wealth and land as a consequence. But as the Second Punic War opened, the Lex Claudia (218 B.C.) was passed against the almost unanimous opposition of the Senate, limiting the size of a senator’s ship (and those of his sons) to small vessels, useful only in marketing produce from senatorial estates. The senatorial class also seems to have been barred from participation in state contracts about this same time.46 There is ample evidence that senators did not obey these laws but continued business as usual as silent partners, represented by their freemen or other front men.47 And the Senate continued to control state finance, while the established 45 See Taylor, VD: 101ff., and E. Badian’s important review of the latter, JRS 52 (1962): 205f.; Brunt, JRS (1965): 90-l09, esp. apps. I and II. 46 Cassola, I gruppi politici, ch. 2: (esp. 71ff, 81ff.), 215ff.; cf. H. Hill, The Roman Middle Class in the Republican Period (Oxford, 1952): 50f., 87ff.; and Z. Yavetz, “The Policy of C. Flaminius and the plebiscitum Claudianum,” Athenaeum 40 (1962): 324ff. 47 For example, Plutarch, Cato Maior, 21.5-6; Cicero, Actio secunda in Verrem, 5.45.6-7.

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gentes continued their monopoly of the censorship. In spite of senatorial control, a group of men emerged outside the Senate who, among other pursuits, served the state, taking part in overseas commerce and trade, in the provisioning of troops, and in public contracts. Their rise was due more to economic and political developments than to the restrictions imposed on senators by the laxly enforced Lex Claudia. At least by the time of Cicero, these men were called equites, a title originally applied to those with a public horse who served as cavalry and voted in the eighteen equestrian centuries of the centuriate assembly.48 Apparently as early as the Second Punic War an eques was required to have a census rating of 400,000 sesterces. Senators had to have the same qualification, and until about 129 B.C. they voted in the eighteen equestrian centuries and retained their equus publicus.49 Since some senators were too old for cavalry service, obviously there was no immediate connection between the equites equo publico and the cavalry. We do not know the relationship, if any existed, between the emerging class of wealthy men later called equites and those who voted in the eighteen equestrian centuries. Regardless, a group of wealthy individuals gradually became differentiated from the senatorial order, in part through obtaining powers once held by senators. Polybius stated that one pillar of senatorial domination was that judges were taken from their number in the most important public and private suits.50 In the second century the Senate began to hear charges of extortion, i.e., maladministration, brought against provincial commanders and governors, who of course were senators. In 149 B.C. a standing court (composed of senators) was established, but in 123 B.C. Caius Cracchus strengthened the role of the equites by transferring the extortion court from senatorial to 48 M.I. Henderson, “The Establishment of the equestrian ordo,” JRS 53 (1963): 61ff.; Hill, Roman Middle Class: 113ff.; cf. C. Nicolet, L’ordre équestre a l’époque républicaine, 312-43 av. I.-C., 1 (Paris, 1966): 47ff.; Wiseman, New Men: 68ff., and “The Definition of ‘eques Romanus’ in the Late Republic and Early Empire,” Historia 19 (1970): 67ff. 49 Cicero, De re publica, 4.2. The fragment refers to equestrian centuries, in quo auffragla aunt etiam senatus. The dramatic date of Cicero’s Republic is ca. 129 B.C.; cf. Henderson, JRS (1963): 70f. 50 6.17.7-9. See F. W. Walbank, Commentary: 1, 695f., for discussion and bibliography.

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equestrian control,51 The iudices, jurors, were now selected from those with equestrian census rating who had not held public office, and from those whose close relatives were not and never had been magistrates or senators. The relationship between the equestrian jurors and those equites who voted in the eighteen centuries is unknown, but iudices possibly belonged to the equestrian centuries.52 Brunt has argued convincingly that equites obtained a share in other criminal and civil cases, and that the iudices for all judicial proceedings were selected from both equites and senators.53 The reasons for Caius’ reform were not narrow; the Senate’s record of abusing its judicial powers was well known, and equites had little recourse against the power of provincial commanders and governors. The equites desired a more influential position in society, and Caius could hope that after his reform they would follow his lead. The question of which group, equestrian or senatorial, was to control the extortion court was hotly contested for half a century after Gracchus’ reform. Sulla enrolled many of the equestrians he left alive in the Senate and gave control back to that body. Finally in 70 B.C. the juries were selected from senators, equestrians, and tribuni aerarii.54 The fact remains that an equestrian order was increasingly distinguished from the senatorial class. Both were composed of wealthy men, but the former obtained status essentially by wealth, the latter by office-holding. Yet although equestrians clearly had an inherited upper-class status, just as praetorian families ranked lower in status than consular, so equestrian families were lower than 51 See E. Badian, “From the Gracchi to Sulla (1940-1959),” Historia 11 (1962): 203ff., for an excellent review of the scholarship and not a few penetrating comments. See also J.P.V.D. Balsdon, “History of the Extortion Court at Rome, 123-70 B.C.,” PBSR 14 (1938): 18ff.; and Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 B.C. (Cambridge, Mass., 1968): 87ff. 52 Pliny (Naturalis Historia, 33.34) stated they were not called equites originally but iudices. Cf. Henderson, JRS (1963): 72, with Nicolet, L’ordre equestre. 53 “The Equites in the Late Republic,” Second International Conference of Economic History, Aix-en-Provence, 1962, 1 (Paris, 1965): esp. app. 2, 141ff. 54 Presumably the tribuni aerarii had the equestrian census (cf. Cicero, Pro Flacco, 4) but not the title. They were lower in status than equites. See Henderson, JRS (1963): 63f.

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senatorial families in the aristocratic hierarchy. To some extent equestrian control of the juries made them a political force,55 but equites were often connected with aristocratic senators, and the political machinations of equestrians fit into the personal politics practiced by the nobility. Nothing would be further from the truth than to set equites and senators up as rival groups, one motivated by economic interests and the other by political.56 These rival forces appear in Republican history, but their lines are not so simply drawn. Specific issues could affect some among the equestrian order, and they could combine in defense of their common interests. This was particularly true of the publicani.57 But many of the Italian municipal aristocrats were equites, often landed gentry, with stronger ties to Roman aristocrats of a similar type than to business-oriented equites, inside and outside Rome. Conversely, senators often engaged in “equestrian” activities, and equestrians frequently forsook the dangers of the sea for the security of the farm and the prestige of landowning.58 No wealthy man was landless, nor could any man whose primary wealth was land avoid business activities relating to the marketing and sale of his goods.59 The aristocracy’s disdain for equestrian business dealings reinforced its own position in society by justifying its own superior style of life. As with many standards evoked by the aristocracy, practice differed from theory. Thus on one level equites were virtually synonymous with the group of wealthy local aristocrats who often made their way to Rome, or who remained behind in the local community and 55 Gruen, Roman Politics: 91, 106. Cassola, I gruppi politici: 71ff, testifies to the earlier activity of businessmen as a pressure group, but cf. Brunt, ‘‘The Equites:” 117ff., and app. 1, 138ff. 56 Brunt, “The Equites:” 122; Christian Meier, Res publica amissa (Wiesbaden, 1966): 64ff. On senatorial business activity, see T. P. Wiseman, “The Potteries of Vibienus and Rufrenus at Arretium,” Mnemosyne, 16 (1963): 275ff.; and M. W. Frederiksen, “Caesar, Cicero and the Problem of Debt,” JRS 56 (1966): 131. 57 Brunt, “The Equites:” 119, 122ff., and app. 1, 138ff. 58 Wiseman, New Men, app. 4: 197ff., “Business Interests of Senatorial Families.” 59 See Cato, De agri cultura, 144-50, for the business dealings of landed aristocrats. See also Wiseman, New Men, app. 3: 191ff., “Estates of Roman Senators in Italy.” Many of those listed are novi, i.e., from equestrian families.

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together with their Roman counterparts constituted the Italian aristocracy. These aristocrats, within and without Rome, had more in common with one another than they had with the lower classes in their own regions. Economically, socially, or even politically, equites were not fundamentally different from senators. The difference was that the senatorial aristocracy had power and influence, while many among the equestrians desired an equal share. The relationship between the two orders, Brunt observed, “was not unlike that of the rich plebeians to the patricians before 366 B.C.”60 Like the plebeians, the equites were the reservoir of new blood for the Roman aristocracy: the novi homines were equestrians.61 That some equites became politically successful while others were treated with contempt and hostility by the aristocrats is best explained by the proximity of equestrian to senatorial status. The equites, nearest to the senators in social and economic status, were the group from which upward mobility was most possible. They presented the greatest threat to the domination of the established Roman aristocracy. On the other hand, if equites decided to give up, at least publicly, their nonpolitical role and espouse the ideology and practices of the Roman aristocracy, their aristocratic friends and enemies took an active interest in their candidacy. Supported by some, the equites found themselves opposed by most aristocrats. Not all equites were members of local aristocracies or publicans. The equites most odious to the aristocracy were those of servile or lower-class origin. Many were artisans, businessmen, and civil servants. Wiseman states, “A considerable proportion of the equestrian order-we have no idea exactly how much-must have been composed of freedmen’s sons, if not the freedmen themselves, and like other equites, they had the resources, if not usually the ambition, to stand for public office and the Senate.”62 As early as about 312 B.C., the censor Appius Claudius Caecus tried to enroll sons of freedmen in the Senate. Although they were not admitted, the attempt plus the successful political career of Appius’ scribe, C. Flavius, attest to the mobility of some men of Social Conflict: 72. Gelzer, Roman Nobility: 12f. 62 New Men: 70f. 60 61

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low birth.63 Most evidence for mobility by humbler folk comes from the late Republic and Empire, and is difficult to assess because reports of servile or lower-class origin were frequently employed as rhetorical exaggerations to blacken the reputation of a political foe. Though information is limited, we know some descendants of slaves or proletarii moved up the ladder and eventually obtained public office. To accomplish this in one generation would have been virtually impossible, but in two or three it was not improbable. Some men, moreover, must have been far removed in time and circumstances from their original servile or common status by the time they reached office, and their backgrounds went unrecorded. The increased sophistication and complexity of Roman life, administratively, economically, and socially, demanded more specialized and “professional” techniques and knowledge, and contributed to mobility. The need for specific officials or individuals to handle functions that became increasingly more numerous or more demanding of expertise resulted in the differentiation of groups of men who now could obtain wealth, acquire reputation, and form connections through the practice of their various skills.64 Just as certain higher offices were created and increased during the Republic, so a host of minor positions developed, some elective but most appointive, which some new men used as means of advancement into the senatorial aristocracy. Again Flavius, the scribe, is important since he was elected both tribune and aedile. Scribes and other so-called civil servants served magistrates and the respublica in ever-increasing numbers, and besides the obvious benefit of potential support from the aristocratic officials for whom they worked, they often employed illicit means to acquire considerable wealth. And positions such as moneyer or tresvir 63 Susan Treggiari, Roman Freedmen during the Late Republic (Oxford, 1969): 42f., 53ff. Flavius colleague as aedile was Anicius Praenestinus, who must have recently moved to Rome (cf. MRR I, 168n2). Disregard Treggiari’s statement (57n1) that Flavius was a patricius; the curule aedileship alternated between patricians and plebeians by this date. 64 Especially helpful is K. Hopkins, “Structural Differentiation in Rome (200-31 B.C.),” in I. M. Lewis, ed., History and Social Anthropology (London, 1968): 63ff.

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capitalis could be springboards to higher status.65 Military service was another means through which new men acquired public repute and aristocratic support for future advancement. Of course the wealth they obtained was not immaterial to their aspirations.66 War was Rome’s biggest and most profitable business, and junior officers, serving as tent mates of influential Roman commanders, obtained handsome rewards for their service. In the mid-second century, Roman aristocrats were still required to do ten years of military service before entering the political arena, but by Cicero’s day this was no longer the case. The work of Jaakko Suolahti on the junior officer corps shows that just as plebeians had earlier gradually replaced the patricians as the majority of military tribunes, by the first century those with equestrian status began to fill this post more frequently.67 As the Punic Wars lengthened military service, a group of almost professional officers slowly developed. Men from established gentes stilI served in the military, but many equites now willingly gave extensive service, and some were rewarded late in their lives with public office and a seat in the Senate.68 The separation of law and legal procedure from religious and priestly control serves as the final example of the acceleration of upward mobility by the growing complexity of Roman society. Men without aristocratic backgrounds used legal expertise to gain fame, fortune, and following. Cicero’s successful quest for the consulship, for example, was not incidental to his position as the foremost advocate of his day; nor was he the first or only new man 65 Charles D. Hamilton, “The tresviri monetales and the Republican cursus honorum,” TAPA 100 (1969): 181ff.; but cf. Wiseman, New Men: 4, 147ff., who points out the advertising value of coin types. Andrew Alföldi, “The Main Aspects of Political Propaganda on the Coinage of the Roman Republic,” in E. S. G. Robinson, ed., Essays in Roman Coinage Presented to Harold Mattingly (Oxford, 1956): 63ff., has interesting comments on the political importance of coin types. 66 Wiseman, New Men: 121f., 143ff. Not all military tribunes were elected by the people. Others (and prefects) were selected by commanders. Personal associations played an important role in such selections. 67 The Junior Officers of the Roman Army in the Republican Period: A Study in Social Structure (Helsinki, 1955): 70ff., 10ff. Cf. Wiseman, New Men: 144, 176; and Hopkins, “Structural Differentiation:” 72ff. 68 Wiseman, New Men: 14ff.

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to use the law as a means of elevation. As Roman law developed, so did its specialists, and jurisconsults began to appear in the third century.69 The role of the advocate, with his expertise in rhetoric and oratory, became increasingly more important in the courtroom. Similarly, experts in the law, men who never entered the courtroom, also began to appear outside the immediate senatorial families. Such men counseled private citizens or public officials with jurisdiction over criminal or civil cases. The legal knowledge of such officials was often limited because Roman magistrates were first and last politicians, although law, literature, and agriculture were leisure-time pursuits for some.70 The law and the courtroom became a means of elevating or maintaining one’s position, useful to aristocrat and non aristocrat alike. The courtroom became the arena where enemies were attacked and friends defended, a place to begin a political career and build a reputation. For many it replaced the traditional method of obtaining gloria through military service.71 As new men in the military depended upon aristocratic commanders in the field, so new men in law were dependent. Traditionally some Roman aristocrats studied law, since the law and the courtroom were used to reinforce the aristocracy’s societal and political norms and since patrons were legally obligated to aid their clients in civil and criminal cases.72 A lucrative law practice facilitated upward mobility, but the aristocracy tried to inhibit the acquisition of wealth by lawyers. Aristocrats “freely” performed legal services for clients and friends, and considered monetary payment for services rendered degrading. Thus in 204 B.C. a law was passed forbidding gift-giving to those who extended legal aid,

See Pomponius, Digest, 1.2.2.34, 38; CAH 9: esp. 843ff.; Hopkins, “Structural Differentiation:” 73ff.; Wiseman, New Men: 119ff.; and Jolowicz, Historical Introduction: 88ff. See Cicero de officiis, 2.55, for criticism ‘of legal professionals once they let “anyone” practice.’ 70 Jolowicz, Historical Introduction: 92; J. M. Kelly, Roman Litigation (Oxford, 1966): 92, 102f.; J. A. Crook, Law and Life of Rome. (London, 1967): 79ff., 88ff. 71 See Cicero, Pro Murena, 30; Nicolet, L’ordre équestre: 444ff.; Wiseman, New Men: 87. 72 On the early patrician monopoly of the law and the patricians’ protection of clients, see CAH 9: 846f.; cf. Gelzer, Roman Nobility: 63f. 69

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but it was effectively dodged by the new legal experts.73 Often men, especially a local aristocrat’s son like Cicero, studied with the most prominent Roman legal experts and were introduced into Roman aristocratic society at the same time.74 Lawyers were not public defenders or champions of the poor, but championed one group of aristocrats against another. But that is merely another description of Roman politics. The preceding pages give some indication of the origin, extent, and nature of the aristocracy’s political dominance during the Roman Republic and present examples of the sources and types of mobility. The aristocracy developed naturally out of primitive society’s reliance upon wealthy, powerful men. Patricians tried to restrict the number of privileged families, but failed because the development of the state compelled them to admit plebeian families and because some wealthy plebeians had never been completely excluded from influence. Subsequent increases in citizenry, territorial possessions, material prosperity, and administrative requirements and the growing complexities and necessities of social and political existence undermined the exclusiveness of the patrician-plebeian aristocracy and contributed to the rise of new men. It is a contradiction, but the Roman aristocracy’s successful methods of guaranteeing its own continued hegemony were the greatest contributing factors in upward mobility. Mobility was the direct result of an attempt by the few to remain dominant. Aristocrats were both the guardians of the walls of privilege and the traitors who opened the gates. The established senatorial families retained their hold on the consulship, censorship, and the priesthoods, but their monopoly was achieved only through admitting their supporters to other magistracies. As a group, the Roman aristocracy sustained its ascendant position by its control over the entire legal system, its favored position in the assembly of the centuries, its influence in the tribal assemblies, and its position in the Senate. In addition, the aristocracy’s urban character and society’s reliance upon oral communication were of equal importance to the continuation of 73 Gelzer, Roman Nobility: 63f.; Cassola, I gruppi politici: 284ff. Specifically, the law forbade gifts over a certain amount to patrons; patronus was indeed the name applied to the early jurisconsult. 74 Scullard, “The Political Career:” 5f.

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aristocratic control. Rome was the center of political activity. In fact the early patricians must have been primarily urban-based, which partly accounts for their success in taking power once Tarquin was exiled. All assemblies, elective and legislative, met there. Success in politics necessitated an urban residence, usually in the more fashionable, prestigious sections. The city attracted ambitious aristocrats from neighboring or newly enfranchised districts, and the younger generation of domi nobiles was not content, as Cicero’s grandfather was, to exercise power and influence on the local level. Naturally the greatest concentration of new men came from areas near Rome, from those that had had citizenship for some time, those near or on major roads leading to Rome, the larger, more prosperous districts, and those that had a number of villas or estates belonging to Roman aristocrats.75 Some who came into the city for elections might support a native son over a Roman aristocrat,76 but the aristocrat operated from the hub and had contacts with more regions. All roads led to Rome, but from Rome one could take a good road in any direction. Roman aristocrats traveled those roads. With the constant increase in the number of citizens, even the established politicians were constantly forced to form new alliances of marriage, friendship, and so on, to retain control of the government. The rich local aristocrat who frequently visited the city for the elections and accompanying festivities was courted by resident aristocrats who sought his support in the centuries, where the wealthy were dominant and where praetors, consuls, and censors were elected. Men without such personal support might resort to coin and later to coercion, and the bribery laws of the Republic were designed to reinforce aristocratic standards. Once the electorate grew so large as to be unmanageable, even the nobility could resort to such measures. However, the laws of 139, 137, and 130 B.C. that established written ballots for elective, judicial, and legislative Wiseman, New Men: 13ff., points out that the lag between obtaining the franchise and possible admission to the Senate was often determined by such factors as those mentioned. The gap was often three generations. 76 Cf. Cicero, Pro Plancio, 21-23, 39-45. Normally a tribe would vote for a member candidate, since he could legally present gifts (circus tickets and banquets) to his tribules; Taylor, VD: 15. 75

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assemblies, although unpopular with the aristocracy, did not contribute greatly to an increase in bribery.77 Personal connections formed by aristocrats were mutual assistance pacts and beneficial to both parties. While some clients (or debtors) might now be free from their patron’s overseeing eye,78 the growing population and complexity of society contributed to the weakening of the patronclient relationship more than did the laws that made voting secret. An aristocrat’s influence and reputation had to keep pace with the growth in population. In a society without developed communication media, possession of a name long known to the public was vital to a political aspirant. To be a Roman noble was literally to be “notable,” but in a society dependent upon oral communication, it was also to be known. The populus preferred those it recognized to unknown quantities. Perhaps in this regard both ancient and modem writers give too much attention to the role played by mos maiorum, but it is probably correct to stress the basic conservative and poorly informed character of the populus. Even in modem society, a candidate for national office must work hard merely to have his name recognized by the people, and his chances of election are improved if his name is placed first on the ballot. A political pamphlet purportedly written for Cicero by his brother gives some indication of how difficult it was for an honest man without a noble background to make his way in Roman politics. Considerable time was spent merely making oneself known to the important people.79 An aristocrat was recognized in a Roman law court the same way the man in the street saw him-as a man of superior character, one of the best men in society, deserving of preferential treatment. At Rome, plaintiff, defendant, witness, judge, and jury knew that the wealth, connections, and prestige of the individual parties to a suit usually counted for more than the letter of the 77 See Taylor, VA: 39, on the failure of the secret ballot: Marius’ reform of 119 B.C. was helpful. Cf. Wiseman, New Men: 4ff., 129ff. 78 Taylor, VD: 141, suggests that the citizens most affected by the laws were the freedmen. Cf. CAH 9: 203. 79 De commentariolo petitionis. See the discussion of Gelzer, Roman Nobility: 54ff.; Wiseman, New Men: 135ff.; and cf. M. I. Henderson, “De commentariolo petitionis,” JRS 40 (1950): 8ff., who doubts the document is what it purports to be.

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law.80 Cicero praised the law’s benefits to society, but he is our best witness to the effect of extralegal forces that affect its application.81 His attempts to use his own influence or a friend’s to win advantage in the courtroom for himself or a friend would be like attempts made by other Romans. Cicero perhaps never broke the law, but unlike so many others, his correspondence documents how he used his influence to take the blindfold off Lady Justice. That aristocrats had a favored position before the law is not surprising. They were the magistrates with jurisdiction over criminal or civil cases; they manned the juries; they supplied the advocates; they wrote the law and interpreted it.82 They made extensive use of the law and the courtroom for strictly political purposes, to build a reputation, attract a following, and attack political opponents. Cato the Elder was no saint, but the fact that he was prosecuted forty-four times attests more to the persistence of his political opponents than to his illegal activities.83 The poor and politically impotent were literally powerless against their opposite numbers. It was virtually impossible for them to bring a wealthy, powerful man into court. Some might go quietly to avoid a scene or a scandal, or because the poor man had a wealthy, influential patron, but the powerful and influential did not willingly appear in court unless charged by a peer.84 Hence even if the letter of the law was classless, which is debatable, its application was strictly along class lines. Having one law for all people, J. A. Crook observes, has always “put the poor at a disadvantage against the rich.”85 It has also been said that “the poor break the law, the rich get around it (or at least try to).” 86 Kelly, Roman Litigation, Crook, Law and Life, and David Daube, Roman Law (Edinburgh, 1969), all have extensive treatments of the aristocrat’s favored position in and before the law. In particular, see Kelly: 31ff., “Improper Influences in Roman Litigation.” 81 Much of Cicero, Epis. ad fam. 13, stands witness. See Kelly, Roman Litigation: 56ff.; cf. T. A. Dorey, “Honesty in Roman Politics,” in T. A. Dorey, ed., Cicero. (New York, 1965): 27ff. 82 Kelly, Roman Litigation: 33ff., 66ff., 8gff.; Crook, Law and Life. 83 Pliny, Nat. Hist. 7.100. See Gelzer, Roman Nobility: 85, Cassola, I gruppi politici: 347ff. 84 Kelly, Roman Litigation: 1ff., 14ff. 85 Law and Life: 93. 86 Daube, Roman Law: 92. 80

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Wealthy citizens, however, did not always have to go outside the law to receive advantages. Ancient sources associate riches with aristocratic status, and wealth obtained a privileged position for the aristocrat in the military assembly of the centuries, the comitia centuriata.87 The assembly operated on the archaic principle, true to its original nature, that those who could afford to fight for their state should receive for their services the greatest share of power and influence. This assembly was the chief elective, and originally the most important, legislative body of the Republic. Since the centuries elected the consuls, praetors, and censors, it is not surprising that most of these positions were filled by members of the established aristocracy. In the comitia centuriata’s developed but not final form, the wealthiest citizens of the state, equites, were placed in eighteen centuries, and of the five classes of citizens, those with a first-class census rating filled another eighty centuries: forty of juniors and forty of seniors. Thus the wealthiest members of society controlled a majority of the 193 centuries, while the most populous element was de facto powerless against their combined will. Roman citizens also assembled in their tribal units to elect officials and to legislate. By 241 B.C. there existed thirty-one rural and four urban tribes. Thereafter, new citizens and new districts were added to existing tribal units. Each vote was theoretically equal in the tribes; there were no distinctions according to wealth or age as in the centuries, and the vote of the tribe was determined by the majority will within each unit. The assemblage of the entire citizenry or populus was called the comitia tributa,88 and it elected quaestors, curule aediles, and military tribunes. When the plebeians alone gathered by tribes, the assembly was called the concilium plebis tributim;89 here plebeians elected plebeian tribunes and aediles. Both assemblies could pass legislation, and after 287 B.C., when the 87 See Botsford, Assemblies: 66ff., l18ff., 201ff.; Taylor, VA. Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, tr. J. M. Kelly (Oxford, 1966), has a brief, admirable discussion of the constitutional position of the aristocracy. 88 Botsford, Assemblies: chs. 12-14, passim; Taylor, VA: 58ff. 89 Taylor, VA: 59ff., maintains that patricians were always excluded from this assembly. Cf. Botsford, Assemblies: esp. 128ff., who presents the ancient evidence and interesting but not very acceptable conclusions.

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concilium plebis obtained the right to pass legislation binding upon the entire state, the tribal assemblies replaced the comitia centuriata as the chief legislative bodies in the state.90 Since plebeians far outnumbered patricians, little difference existed between the two tribal assemblies except for their presidencies. Tribunes presided over the concilium, while praetors and consuls conducted business before the comitia tributa. After the creation of the last two tribes in 241 B.C., and before the Second Punic War, the centuries were reformed, except for the equestrian, and became divisions of the tribes; the centuries of the first class were reduced to seventy (thirty-five juniors and thirty-five seniors), and those in each tribe with first-class census qualification voted in a single century.91 The arrangement gave the wealthy aristocrats-the urban nobles, most of whom were enrolled in the rural tribes-much greater power. All attempts to interpret this as a democratic reform have failed. Possibly the centuries became divisions of the tribes because the aristocracy was more capable of influencing the vote in the tribal units. The Roman upper class continually invested in estates throughout Italy, resulting in their enrollment in the rural tribes. 92 Adopted sons, relatives, clients, or friends, spread throughout the tribal districts, gave their support to the noble Roman. Furthermore, only the wealthy from the various districts outside Rome could afford to come to the city for the elections, and the Roman aristocracy was tied to them by several types of personal relationships. Had not the centuries been changed to form units of the tribes, the nonaristocratic urban wealthy could have exerted considerably more influence on elections. But the change required those who had first-class census rating to be enrolled by the censors as landowners or residents of rural tribal districts. Since censors enrolled citizens in their tribal units, the aristocracy used its control of the office to guard against any drastic shift in power. Still, beginning in 312 B.C. with the censorship of Appius Claudius Caecus, who tried to put urban dwellers into rural tribes and freedmen’s sons in the Senate, attempts were made to 90 See Taylor, VA: l00ff., for references to the limited legislative activity of the centuries after 287 B.C. 91 Cassola, I gruppi politici: 96ff., 110ff.; and Taylor, VA: 85ff., 158ff., have bibliography discussions. 92 Taylor, VD: esp. 277ff.

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shift freedmen and other citizens from urban to rural tribes and back again to increase or decrease their voting power. Censors were not above using their office to gain clientelae, or above giving their supporters a greater voice in the assemblies by assigning them to a tribe where their vote would count more heavily.93 The most important aristocratic institution of the Roman Republic and the foundation of aristocratic control of the state was the Senate. 94 Effective power rested with the Senate, and to be a senator was to be an aristocrat. The Senate was founded in the advisory consilium of the paterfamilias. Its members were selected first by kings, then by consuls, and finally, after 312 B.C., by censors. No law prohibited either king or consul from enrolling plebeians, whose numbers would increase in the Senate as they were admitted regularly to the higher offices, but for a century and a half the patrician members constituted a majority in the Senate. By the third century it was composed primarily of ex-officeholders. We assume that membership was automatic for those who obtained a curule office, though enrollment by censors could result in a few exceptions. Following the heavy losses at Cannae in 216 B.C., the Senate’s vacancies were filled with those curule officeholders not yet enrolled, plebeian officials, and those with distinguished military careers.95 This was the normal order of selection, and the Senate was probably always open to some men who had not held a curule office.96 Late in the second century, plebeian aediles and tribunes were regularly enrolled, though tribunes traditionally had the privilege of listening to Senate debates, vetoing its decisions, and convening the Senate (from the third century). Finally, the proscriptions and deaths caused by the Social War and civil wars (80-82 B.C.) necessitated a wholesale rebuilding of the Senate. Sulla accomplished this and raised the

See ibid.: 132ff.; Cassola, I gruppi politici: 102ff., l19ff. P. Willems, Le Sénat de la répuhlique romaine, sa composition et ses attributions (Louvain/Paris, 1878-85); Jolowicz, Historical Introduction: 27ff.; Kunkel, Introduction: 18ff. 95 Livy, 23.23. Since censors were elected only every five years, some curule magistrates would have to wait to be enrolled in the Senate. See Willems, Sénat I: 153ff. 96 Wiseman, New Men: 96f. 93 94

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number of members to about six hundred.97 Also the number of quaestorships was raised to twenty a year, and the office became the prerequisite for senatorial membership. The entire population, voting in the comitia tributa, elected quaestors. When quaestors automatically became senators, in theory the entire population chose the members of the Senate, and this fact should have meant a more representative body. But since all voting was done in Rome and only the wealthy could afford to go there to vote, the Roman aristocracy still played a prominent role in determining the outcome of elections. Crisis, calamity, and reform could change the membership of the Senate but rarely its character. Senators were the wealthiest men in the state. As early as the Second Punic War they had to have the highest census rating, and they voted in the eighteen equestrian centuries, though they were later removed. The standard used for recruiting senators thus remained consistent. Whether wealthy patricians, plebeians, equestrians, or local aristocrats sat in the curia, all belonged to the same upper-class stratum of Italian society: all were as sound as a denarius. On the other hand, though senator was synonymous with aristocrat at Rome, within the Senate there was a gradation in status. One’s status within the aristocracy was determined by the highest office obtained by one’s family. Originally patricians were the nobles, but with plebeian entry into most public offices, the possession of the curule chair became the identifying mark of the nobiles and remained so until the early second century, when one had to be from a consular family to qualify as nobility.98 Thus the noble families, the curule and subsequently the consular families, were the upper crust of the Roman aristocracy. The difference in status among various senators is apparent in the Senate’s deliberative procedure. The presiding magistrate, be he consul, praetor, or, later, tribune, had to recognize a senator before he could speak his opinion, and though preferences were doubtlessly often shown, generally custom Sir Ronald Syme, “Caesar, the Senate and Italy,” PBSR 14 (1938): 1ff.; E. Gabba, “II ceto equestre e il senato di Silla,” Athenaeum 34 (1956): 124ff.; Wiseman, New Men: 6ff., 100. 98 Gelzer, Roman Nobility: 27ff.; cf. A. Afzelius, “Zur Definition der römischen Nobilität vor der Zeit Ciceros,’ Classica et Medievalia 7 (1945): 150ff. 97

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dictated that the officer called first for the advice of those who obtained the highest office, consulship, beginning with the oldest patrician consular. As in the comitia centuriata, where the poor and those of modest wealth were seldom called to vote, so in the Senate the backbenchers, the pedarii, voted merely by joining those with whom they agreed.99 Though the pedarii were not legally obligated, the power of a pater, a patron, or a friend (read also creditor) might well indicate the direction taken by many of those who voted only with their feet. In the early Republic, patrician senators had the right to give their approval to the legislative and electoral measures of the comitia, but in the course of the struggle with the plebeians, measures were passed requiring patricians to give their approval, patrum auctoritas, before the vote, hence weakening their position. But this did not weaken the influence of the emerging patricianplebeian aristocracy. They developed the custom of considering and debating the items that were to be placed before the people, until the practice became virtually a law and an important ingredient in their control of the state. The magistrate, like the pater, was not bound to obey the advice, but the Senate’s advice, senatus consultum, was seldom ignored, since senators held the keys to future political success or could readily find an official to veto unpopular measures. Through its consulta and the presiding magistrate’s power over matters brought to an assembly’s attention; in most instances the Senate could dictate the nature of those decisions on which the people voted. It could even compromise the sovereign power of the people to make war and peace. Though not empowered to make law, the Senate, by virtue of its traditional privilege of passing on the procedural propriety of the assemblies’ measures, did possess the power to void actions taken by an assembly. The Senate also controlled the continuous affairs of state, foreign policy and finance, since it was the only institution with a consistent and continuous membership. Its members held their positions for life, while the power, imperium, granted to magistrates was for a year. Some scholars assume a general increase in senatorial 99 Willems, Sénat I: 137ff.; L. R. Taylor and R. T. Scott, “Seating Space in the Roman Senate and the senatores pedarii,” TAPA 100 (1969): esp. 548ff. The article includes a valuable discussion of attendance (or possible attendance) at senatorial meetings.

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control over magistrates and state functions in the late third and early second centuries. It is argued that the populus exercised considerable power following the end of the struggle of the orders in 287 B.C., electing and giving commands to some novi homines, one of whom was blamed for Cannae, but that after the disaster the people finally saw the wisdom of senatorial leadership, and consequently the Senate’s power and influence were expanded and not seriously questioned until the Gracchan challenge.100 Such assumptions are doubtful for several reasons. The populus did not have the power to choose consuls or allot commands before, during, or after the war; the wealthy were dominant in the centuries, the patron-client relationship was strong in the third century, and “popular” movements were motivated by the aristocrats they benefited. A democratic challenge to senatorial control never emerged. Moreover, conflicts in Roman politics were between aristocrats, most often between senators. Personal politics was as much at home in the curia as in the assembly or the forum. The Senate was not a body united in mind and action; nor were its decisions determined by objective considerations of

100 In particular, Tenney Frank, Roman Imperialism (New York, 1914): 66ff.; CAH 8: ch. 12 (“The Senate in Control”); J. Bleicken, Vas Volkstribunat der klassischen Republik (Munich, 1955): 25ff., 35ff., 152f.; R. E. Smith, The Failure of the Roman Republic (Cambridge, 1955): 6ff.; Sir Frank E. Adcock, Roman Political Ideas and Practices (Ann Arbor, 1964): 36ff.; H. H. Scullard, Scipio Africanus: Soldier and Politician (Bristol, 1970): 162ff.; Toynbee, HL I-II: passim; and U. Schlag, Regnum in Senatu (Stuttgart, 1968). These are but a few who refer to the democratic movement prior to the Second Punic War and the growth of senatorial power during and after. The struggle between patricians and plebeians was not a class struggle (contra Toynbee, HL I: 317); its resolution did not set Rome on the road to democracy, and to my mind to argue such is a misinterpretation of the Republic’s aristocratic character in all periods. Scullard, Scipio, says the Senate “had won undying prestige by its conduct of the war”(175), although he elsewhere knows (Roman Politics) that “the men who ruled the Senate ruled the State”(26), and that the powerful nobles ruled the Senate (but cf. 233: “Problems and Policies of the Senate”). My quibble is with any statement that leaves the impression that the Senate had an independent identity or power, apart from the controlling nobles, that permitted it to formulate policy free from factional disputes.

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governmental responsibility.101 The Senate’s auctoritas rested upon the combined influence, power, and experience of all its members, but its decisions were determined by the most influential senators, the nobles backed by their followers. These cliques considered their own interests to be the interests of the respublica, and if they were influential enough, their interests became those of the state. Nobles had always acted this way, but as the Roman world became more complicated and sophisticated, problems arose that demanded some operative policy other than self-interest. Senators could submerge their differences and combine against a fellow aristocrat, or, it is argued, senators might present a more united front in times of crisis at home or abroad.102 In the former case, senators were united against a peer who threatened their dignitas or privilege and were not making or following a policy See Gelzer, Roman Nobility: 124ff.; and Cassola, I gruppi politici, for evidence of factionalism in the late third and second centuries. Frank, CAH 8: 367f., says, “the Senate remained in power because it did its work well and fairly and because it retained the confidence of the voters. Not only does Cicero in his conservative days refer to this period as an era of harmony, but Sallust, the democratic [sic] historian, calls it a time of concord and good government.” Smith, The Failure, expresses similar views. For a partial corrective, cf. R. M. Henry, “Roman Tradition,” Proceedings of the Classical Association, 34 (1937): 7ff.; and Earl, Moral and Political: 44ff, who has a thoughtful section on the ideology (propaganda) of the novi homines and their view of Roman historical development, but Earl at times seems to believe what the Romans thought about their pristine past. Cf. Meier, Res publica amissa: 152ff.; and Toynbee, HL II: 495, who says that before the revolutionary period the “Roman nobles ... still retained enough of their order’s traditional sagacity to keep the pursuit of their fraternal rivalries within limits.” It was not tradition that kept them in check so much as lack of opportunity and other nobles. 102 Toynbee, HL II: 494, believes “the Roman nobility presented a united front to the rest of the World,” but “was divided internally by an intense competition, for offices and honours, between rival families and rival individuals.” I question the “united front.” Cicero, De legibus, 2.15.39, 3.14.32, following Plato, believes a change in music constitutes a change in the character of the state, and how much more did a change in command or magistrates result in an entirely different “policy” or governmental attitude. If the nobles presented a front, they were not united behind it. But cf. Meier, Res publica amissa: 8ff., 162ff., who argues that on major issues the nobles were in agreement: personal politics dominated the everyday questions only. 101

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designed to increase senatorial control, and in the latter case, senators followed the lead of the more influential aristocrats. The iteration of offices and the protraction of commands as illustrated by the careers of Fabius Maximus, Claudius Marcellus, and Scipio Africanus attest more to the success and prominence of individual aristocrats than to the Senate’s leadership and success as a body. In addition, the evidence of hostility among Rome’s illustrious sons during and after the war does not suggest that the Senate was united in its policy of how or by whom the war should be fought or what to do once the war ended.103 The Senate’s chief concern, where it was of one mind, was the control of its own members. Aristocrats in pursuit of gloria and honores could overshadow their fellows, and so far as they could be controlled or held accountable for their actions, it was due to rival factions often working through senatorial machinery. The Second Punic War created emergencies that resulted in the granting of exceptional powers to exceptional aristocrats. The unprecedented career and unmatched success of Scipio Africanus during the Second Punic War made him the most famous citizen of the Republic and a threat to aristocratic politics. “Africanus’s direct relation with the Roman people, as a popular hero ... , threatened to undercut all the limited clientelae that rival Roman noble houses had been building up for themselves laboriously over the course of many generations. This was Africanus’s unpardonable offence in the eyes of his peers.”104 Scipio was held in check by jealous nobles, not by a senatorial government desirous of increasing its control over magistrates. With the extraordinary career of Scipio Africanus in mind, the aristocracy established qualifications for officeholders and regulated the magistracies in the hope that elevation would be more gradual and extraordinary careers avoidable. A biennium was introduced between holding a praetorship and a consulship, and finally the Lex Villia Annalis (180 B.C.) established a strict order of offices (cursus honorum) with a minimum age requirement for the

103 See Scullard, Roman Politics; and Cassola, I gruppi politici: 289ff., 293ff., 361ff., 375ff., 405ff., for discussion and bibliography concerning factional disputes. 104 Toynbee, HL II: 512.

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praetorship and consulship.105 The number of praetorships had been increased to six; the office became inferior to the consulship, and consular families alone were identified as nobility. Subsequently, toward the middle of the century, reelection to the consulship was forbidden.106 The quaestorship with a minimum age requirement was added to the cursus honorum by Sulla, who also permitted patricians to hold the praetorship and consulship two years earlier than plebeians.107 It was not uncommon for senatorial aristocrats to hold magistracies in the first year they were eligible, but apparently the only new man to do so was Cicero.108 Those without reputation or sufficient support had to wait for an opening. Nobles could rely on their ancestral reputations and, as Cicero laments, be elected to office in their sleep.109 Others had to work hard, often holding as many offices as possible, and spent lavishly on games and entertainment to win votes. The aristocracy in turn sought to check what it considered unbridled ambition in candidates for office. The law directed at excessive electioneering (181 B.C.) should be seen in connection with the Lex Villia Annalis. Thereafter, bribery laws were common, as were laws directed at conspicuous displays of wealth. Men of wealth caused considerable anxiety to the aristocracy, since they could afford to display the physical and visible signs of status that nobles cherished because they reinforced the nobles’ position in society. They could also engage in the same types of personal, A. E. Astin, The Lex Annalis before Sulla, Collection Latomus 32 (Brussels, 1958). 106 Scullard, Roman Politics: 234. Meier, Res publica amissa: 309, n3, points out the gradual decline in the iteration of the consulship, with the remarkable exception of the Second Punic War. But the aristocracy now held pro-magistracies with more regularity, and they were often prorogued beyond a single year. Gloria, wealth, and following (see Badian, FC) were more readily accessible: the pro-magistracies replaced the iteration of offices. The decline in the number of aristocrats who held more than one consulship does not indicate the weakening of an individual aristocrat’s personal power or dignitas. 107 See Astin, The Lex Annalis, on the privilege extended to patricians, see E. Badian, “Caesar’s cursus and the Intervals between Offices,” JRS 49 (1959): 81ff. 108 Certainly he was the first in almost a century. Cf. Wiseman, New Men: 106, 166ff. 109 Actio secunda in Verrem, 5.180. 105

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social, economic, and political activities and maintain the same relationships as the nobility. Apparently the nobility wanted to prevent wealthy individuals from competing with them, by reducing the amount one could spend on gowns, banquets, and silver, hence stripping wealth of one of its trademarks.110 Senators and equestrians, however, still retained their special togas, sandals, and rings that set them apart from other citizens.111 By checking electioneering and bribery of the electorate and by curbing the lavish, costly games of the aediles, the nobles attempted to further inhibit the direct use of wealth for political profit. There is no evidence that such laws were passed because they were in keeping with the true aristocratic “Roman character.” The idealized picture we have of Rome’s pristine past and of her poor, simple, honest peasant consuls is a product of the second century, not the fifth. There is little evidence that the laws successfully controlled ambitus, or that the laws establishing qualifications and regulations for office-holding could not be set aside if circumstance and influential aristocrat demanded. But in normal times the laws did put politicking back on ground familiar and favorable to the aristocrat, where clients and friends were more important than hired votes, and an influential patron the most effective means of elevation. Such practices also guaranteed the continuing domination of politics by the patrons. Following the disaster at Cannae, the door of the Senate was opened to many new men, and after generations in the lower offices, some of their descendants reached the higher magistracies. The plebeians who were the first of their families to appear as consuls during the course of the second century came mostly from senatorial families. Important noble gentes held their own, but the declining number of patricians admitted some new families to the consulship. Also the number of novi homines who reached the praetorship rose gradually in the second century.112 Mobility was on Daube, Roman Law: 117ff., esp. 123ff. Meyer Reinhold, History of Purple as a Status Symbol in Antiquity, Collection Latomus 116 (Brussels, 1970), presents an interesting picture of the use of purple (and other status symbols) and shows how Roman aristocrats tried to restrict its use to their own group, just as they attempted to curb displays of wealth. 112 Wiseman, New Men: 162ff.; and see above (text and notes 34 and 35). The increase in the number of praetorships made competition for 110 111

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the rise, but the nobility was not in decline. Nobles controlled the consulship by either tenure or patronage. The most important reason for the advance of certain senatorial plebeian gentes was the support they received from nobility who promoted their candidacy to add to their personal following and to avoid an influx of new men. Senatorial and noble exclusiveness were not strictly maintained, but few novi homines before Marius reached the consulship. The nobility attempted to close ranks at the top because it could no longer successfully control the bottom rungs of the hierarchy. The new consular families were supported by the nobiles whose interests they served. Mobility functioned in the interest of the noble factions. The senatorial court was another arena in which the aristocrats played at politics. It is assumed that the Senate usurped the judicial power of the people, and thereby tried to control promagistrates by senatorial rule and to punish those who did not obey by bringing them to trial.113 Yet I find no evidence that the introduction of the senatorial extortion court was a consequence of the Senate’s desire to arrogate more power, or that the court was instrumental in making commanders and governors more obedient to senatorial advice. The only certainties are that the court was not introduced out of any humanitarian feelings of responsibility toward Rome’s provincials, and that it was excessively used as the setting for factional struggles.114 the consulship more intense, but the nobility continued to hold it or to determine the successful candidates. Scullard, Roman Politics: 56f., argues, rightly I believe, that the selection of so many new senators after Cannae resulted in the strengthening of the nobility, since they normally determined decisions. It must have also contributed to factionalism, inasmuch as few of the novi praetorii obtained the consulship: the nobles promoted their senatorial followers. Wiseman (182) lists over 300 possible novi homines who, entered the Senate in the last 100 years of the Republic: 3 percent became consuls. 113 Bleicken, Das Volkstribunat: 140, 146; Scullard, Roman Politics: 201f., 235ff.; cf. Toynbee, HL II: 492ff., who has too much about the moral standards of the “establishment” and its desire to control “black sheep.” See also Smith, The Failure: 78f. 114 E. Badian, Roman Imperialism in the Late Republic (Pretoria, 1967), says, “The Roman oligarchy, like other oligarchies, was not efficient at protecting its subjects against its members”(10). Concerning the lex Calpurnia of 149 B.C., Badian says that the senators “made an

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Although tribunes are often regarded as the “chattels of the nobility,” they also played a notorious role in the divisiveness of Republican politics.115 In the second century, not all tribunes were docile followers of the senatorial aristocracy or protectors of their vested interests. Tribunes agitated against aristocratic leadership as practiced by consul and Senate, and were extremely active against and abrasive to the “establishment” decision-makers even before the Gracchi.116 The contradiction was that many of those who opposed the collective will of the Senate were members of that august body, and were backed by other aristocrats. The Gracchi serve as an excellent illustration of this point. Certainly both were considered anti-senatorial, yet both were nobles with noble senatorial supporters. As L. R. Taylor points out, “It was not an alignment of senate against people, but an opposition between groups of men of noble or senatorial rank.”117 Moreover, as Sallust recognized, Roman politicians worked for their own interests, whether maintaining the rights and benefits of senatorial government or advocating a return of power to the people. Both oligarchs and populares compromised the libertas of citizens in their quest for dignitas.118 honest attempt to protect their subjects against the worst effects of misbehaviour on the part of magistrates”(11). As I see it, the Senate had no such policy, but was dominated by the nobles who might turn to the courts to check or punish a rival. See Gruen, Roman Politics, with whom I agree in theory but find much to question in detail. 115 See Livy, 10.37.11, where some tribunes are called mancipia nobilium. Bleicken, Das Volkstribunat: 47ff., lists tribune activity in the service of the Senate during the war with Hannibal. Tribunes also engaged in prosecution (131ff.) for factional advantage. 116 L. R. Taylor, “Forerunners of the Gracchi,” JRS 52 (1962): 19ff.; cf. Bleicken, Vas Volkstribunat: 101ff., 152. 117 Party Politics: 12. 118 Sallust, Bellum Catilinae, 38.2-4; Taylor, Party Politics: 12f. Ch. Wirszubski, Libertas as a Political Idea at Rome during the Late Republic and Early Principate (Cambridge, 1960): 16f., points out that “the Roman citizen sought to assert and safeguard his rights, not against the overriding authority of the State, or the tyranny of the majority, as it is sometimes called, but against other citizens who were stronger than himself, or against the officers of the State who, in the pursuit of their own private interests, might encroach upon his rights, abusing the power ... entrusted to them.”

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The oligarchic factions of the Senate, acting as a mob in defense of their privilege, were the first to shed blood in 133 B.C., and they legalized the deed the following year.119 The auctoritas of the fathers failed, and they appealed to force. Then in 121 B.C. the Senate passed for the first time a senatus consultum ultimum: the final decree, tantamount to martial law. The senatorial oligarchs empowered the magistrates to take measures to see that the state should suffer no harm. Its employment caused controversy in both the ancient and modern worlds, since it was a device used by senators to protect the state against other aristocrats they considered dangerous.120 It was used not to safeguard the respublica but to guarantee the control of some senatorial aristocrats over the state. These senators would agree that “extremism in defense of liberty [or dignitas] was no vice,” but such extremism was always employed in the name of public good.121 For chaos to reign, it See D. C. Earl, Tiberius Gracchus: A Study in Politics, Collection Latomus 66 (Brussels, 1963); Astin, Scipio: 191ff., 211ff., 227ff.; and the more general Henry C. Boren, The Gracchi (New York, 1968). Smith, The Failure: 5, says, “the Gracchi by the means they adopted in pursuit of their ends precipitated a spiritual crisis in Rome which was the first cause of all that followed.” H. H. Scullard, “Scipio Aemilianus and Roman Politics,” JRS 50 (1960), adds, “Any hope of an amicable settlement was shattered by [TI] Gracchus’ methods ... his actions in fact alienated sympathy and created distrust among senators of varying outlook ... not only among Optimates but also among moderates like Scipio [Aemilianus]”(74). That Scipio was not a moderate, cf. Astin, Scipio. Too much emphasis is placed on the methods of the so-called populares. Certain proposals and certain individuals could not succeed by “traditional” methods. It is not easy to determine who is more the adherent of mos maiorum, Tiberius with his agrarian plan or the oligarchs led by Scipio Nasica. 120 Jolowicz, Historical Introduction: 34; Gruen, Roman Politics: 96f. A. H. J. Greenidge, The Legal Procedure of Cicero’s Time (Oxford, 1901): 406, states the problem plainly: “no amount of treasonable design can legally make a citizen into an enemy, unless that treason has been proved in a court of law.” “Every decrease in power is an open invitation to violenceif only because those who hold power and feel it slipping from their hands, be they the government or be they the governed, have always found it difficult to resist the temptation to substitute violence for it”; Hannah Arendt, On Violence. (New York, 1969): 87. Cf. A. W. Lintott, Violence in Republican Rome (Oxford, 1968). 121 Wirszubski, Libertas: “just as dignitas became a watchword of ‘vested interest’ so could libertas be used as a battle-cry-sincere or feigned119

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remained only for a single aristocrat to apply this defense to his own individual activities. Aristocratic objectives were personal power and influence; wealth, tradition, institutional privilege, personal politics, and personal following were the means used to accomplish these objectives. Personal relationships opened doors closed by tradition and upper-class ideology, but while strengthening the hand of the individual aristocrat, they undermined aristocratic control. Aristocrats might collectively oppose the concentration of power or influence in a single pair of hands, but opposition did not mean they followed a consistent policy or were united and cooperative in more than their opposition. The personal nature of Roman politics precluded the development of governmental policy. Individual advancement outweighed constitutional and traditional practices, which were pillars of aristocratic domination. In this respect, Scipio Aemilianus is an excellent example. Conservative by nature, Scipio’s methods of self-promotion were popular, even revolutionary. As A. E. Astin states, “It is one of the characteristics of his career that, with conspicuous success, he places his own advancement above both usage and the law, that in the furtherance of his own ambitions he cultivated and exploited popular favor as an instrument with which to defy the Senate.”122 I concur, but Scipio is singled out only to indicate what many a noble would have done if given the opportunity. Exceptional conditions, created by the failures and inconsistencies of state practices, advanced individual aristocrats beyond their fellows. Aristocrats in search of preeminence were a heavy burden for the Republican constitution to carry. Julius Caesar was not the first scion of a noble family to desire and obtain through offices, talent, and intrigue a greater dignitas than other aristocrats, but when he crossed the Rubicon in defense of his dignity, the blend of existing conditions and his unique talents determined he would be the last. As I began with Mills, so I conclude, “All politics is a

of social reform.(16)” As rightly observed by M. I. Finley, “Athenian Demagogues,’ Past and Present 21 (1962): 19, “Politicians regularly say that what they are advocating is in the best interests of the nation, and, what is more important, they believe it. Often, too, they charge their opponents with sacrificing the national interests, and they believe that.’ 122 Astin, Scipio: 243.

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struggle for power; the ultimate kind of power is violence.”123 The Roman Republic came to a violent end.

123

Power Elite: 171.

HISTORICAL DEVELOPMENT IN LIVY After the “Roman Aristocracy” article, Mitchell turned to the relationship of the narrative modern scholars use to retrieve historical detail about early Rome and the historical details themselves. The question concerns the degree to which the narrative governs our understanding of detail. Mitchell argues that the narrative at the center of modern consensus depends in large measure on an unjustified enthusiasm for Livy's understanding of early Rome. A related but more egregious error is that modern scholars arrange and interpret details that have no inherent narrative purpose for Livy in such a way as to enhance the versimilitude of the narrative. The narrative thread in question, the “struggle of the orders,” would seem on that basis to be as much a modern construct as it is a Livian one.* The major dilemma for Roman historians who work on the early period has always been, to paraphrase Plinio Fraccaro’s words, how little of the Roman tradition to accept and how much of it to reject.1 In order to justify acceptance, historians have constantly searched for an original, archival source of information. Because of the supposed elliptical nature of the annalistic record, *This essay was originally published in Classical texts and their Traditions: Studies in Honor of C.R. Traman, D.F. Bright and E.S. Ramage (eds.) (Scholars Press, 1984): 179-199. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. 1 Plinio Fraccaro, “The History of Rome in the Regal Period,” JRS 47 (1957): 59.

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the shorter the notice in the history and the less embellished with interpretation and details, the more it was thought to represent an early fragment of the annales maximi, which many assumed to be the compilation of the tabulae dealbatae of individual pontifices maximi. Our sources also contain reports of laws, treaties, religious formulae, and ritual practices which modern historians have pointed to as evidence of authentic records. The physical evidence of monuments, buildings, inscriptional dedications, statues, and countless other private and public objects both reported by our sources and uncovered by modern research are also presumed to be authentic material from early Rome. At times our sources incorrectly explain, garble, or rationalize the true identification of the aforementioned, and modern scholars, while differing widely in their own assessment, have presumed that laws, treaties, rituals, and all such documentation were subject to interpretation and embellishment by the Roman annalists and by the later historians who used their work and who, like Livy, often only worked directly from such developed interpretations and rationalizations of the “evidence.” We can characterize the impression many have about Livy’s history by another paraphrase, this time from Thomas B. Macaulay: it is a bad history well done.2 The benefit of being trained at the University of Cincinnati by men like Donald Bradeen and Carl Trahman was that one was never either subjected to an exclusively “classical” approach to the great artistic beauty and value of Livy or permitted fully to engage in vitriolic assaults on his credulity without close examination. We were made aware that Livy and others could be both appreciated as “classics” and used as historical sources at the same time. Proving that Livy’s work is historically reliable and useful has been far more difficult than showing that it has artistic merit. However, in recent years the pendulum has begun to swing back in favor of Livy. As commonplace as assaults on his veracity were a few decades ago, it is surprising to see Livy’s defenders now taking the field and arguing that he is “generally” more reliable than previously thought.” The wonder is,” says P.G. Walsh, “that being neither Senator nor soldier nor avid traveler he got so much As quoted in Livy, Rome and Italy (Books VI-X), tr. by B. Radice with intro. by R. M. Ogilvie. (New York: Penguin 1982): 7f. 2

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right.”3 In the absence of personal experience, Livy “had to rely in part on authorities who were as dishonest as they were inventive.”4 As Robert M. Ogilvie says, “Livy was content to take over a narrative at second hand from an earlier chronicler and reshape it according to his own artistic aim. It rarely crossed his mind that that narrative might be tendentious and largely fictitious.”5 Also, as many have stressed, Livy developed the personalities and characters of the important figures in Rome’s past to serve as moral exempla, and the clash of these personalities gave structure to his history and permitted the story to move pleasantly and entertainingly along, ab urbe condita. “For Livy, the main value of history lay in providing examples of conduct to imitate or avoid, whether for the individual or the state.”6 Livy was preoccupied with the moral decay of Rome, a decay he illustrated by countless examples of individual success or failure. Livy was also excessively concerned with and concentrated upon religious phenomena: “He regards the performance of traditional religious rites as essential for the well-being of the State.”7 When modern scholars deny the historicity of Livy’s focus upon Rome’s moral decline and question the material evoked in support of traditional Roman religious beliefs and practices, they often do so by insisting that either Livy or, more likely, his late annalistic sources fabricated much of the evidential material using the forms and styles of limited archival records as their models. Walsh is not alone in his characterization that, despite these weaknesses, Livy’s “outline of the decisive stages can be accepted; but the detail was largely written into the framework by historians and legal authorities in the late second and first century. Later P.G. Walsh, “Livy,” in T. A. Dorey, ed., Latin Historians (New York 1966): 115. Perhaps such a claim that historians must be men of experience could only come from someone in the British Empire, where men of “classical” education were so frequently men of both action and letters. Livy was part of their curriculum, but he was not part of their model. Here, Thucydides and Polybius held pride of place. 4 Walsh: ibid. 5 Robert M. Ogilvie, Roman Literature and Society (Penguin, 1980): 156. 6 T.P. Wiseman, Clio’s Cosmetics: Three Studies in Greco-Roman Literature (Leicester, 1979): 38. 7 Ogilvie (above, n.2): 14. 3

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constitutional and legal practices are given ancient precedents.”8 Walsh is referring largely to Livy’s account contained in his first decade, his outline of Rome’s external historical development which concentrated upon her Italian expansion and on the internal struggle between patricians and plebeians which took place during the same period. The crucial questions about Livy’s historical value and importance concern the specific issue of the reliability or authenticity of any of the detailed pieces of information he presented about early Rome’s growth and development, together with the reliability of his overall outline or structure of Roman historical developments. My present purpose is to show that appreciation of Livy’s artistry has resulted in a misplaced enthusiasm for the reliability of his outline of general developments and, in particular, of his account of the so-called “struggle of the orders.” Furthermore, acceptance of his outline has led to the failure to see the true importance of certain pieces of information which Livy presented in the context of the struggle. I hope to demonstrate the importance of accepting certain specific material as authentic while stripping it of either its annalistic or Livian interpretation as part of the struggle between patricians and plebeians. What this means is rejecting the struggle of the orders while accepting some of the specific evidence and placing it in an entirely different context. This is a reversal of the normal practice of historians. Part of the problem is the question of what specific information was available to Livy even if it came through an intermediary source. Certainly there were some authentic documents about Rome’s early history, and there were some records couched in the style and language of the pontifex maximus, and annalistic historians did use the authentic material in their own interpretations of Rome’s historical development. The question of Livy’s scissors-and-paste method of composition, the issue of whether he used a single source at a time or wove conflicting accounts into a successful, but not necessarily historically reliable, narrative are all ultimately dependent upon the nature of his sources or, more specifically, the nature of the original records available to his sources. In this respect, we must make certain corrections in the common opinion voiced about which sources he 8

Walsh (above, n.3): 126.

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employed and what those sources contained. It is argued that Livy was at the mercy of his sources, in particular annalistic historians who were his near contemporaries: “they conveniently embodied previous research, thereby saving him the trouble of going back to early authorities himself.”9 T.J. Luce criticizes this assumption, maintaining that “on the contrary, it seems prima facie likely and reasonable that Livy had indeed read, for example, Rome’s first historian [Fabius PictorJ and that he consulted him in writing his own history.”10 Luce is certainly right, but all such debate is beside the point, since Livy’s reputation cannot be enhanced by proving that he did or did not use Pictor directly. There is little proof that Fabius Pictor or his near contemporaries, despite their apparent brevity, were more historically reliable or preserved more authentic records because they engaged in less embellishment. It is not even certain how extensively any annalist, early or late, used the available documentary material. In fact, the fragmentary remains of the early annalists do not inspire much confidence in the authenticity of their accounts. On the other hand, if it is true that these early histories were brief and if the original annalistic records were short, then they could not have contained the elaborate explanations and interpretations found in the pages of Livy and Dionysius of Halicarnassus. It certainly does not follow, however, that the earliest histories contained proportionately more archival material because both they and the documents were limited in scope. Conversely, it cannot be assumed that the eventual publication of the annales maximi enriched the narratives of the later annalistic historians precisely because the publication added to the store of information now readily available. Nor can it be established that “the enrichment of material did not depend on the publication of the annales maximi but on the new tendency in historical writing to give a literary form and a richness of detail to the events narrated.”11 Recently, the entire tradition and the actual publication of the annual tabulae of the pontifices by P. Mucius Scaevola (pontifex maximus in 130 B.C.) has been called into question. Bruce Frier 9 T.J. Luce, Livy, The Composition of His History (Princeton University press 1977): 159. 10 Luce (above, n.9): 161. 11 Fraccaro (above, n. 1): 2.

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has argued that the yearly tabulae were collected into yearly libri and were available from 300 B.C. and that the annual tabula stopped with Scaevola. There was, in other words, no great influx of annalistic information in the late second century, and correspondingly there is no essential quantitative difference between works written before or after that time.12 The publication of a yearly tabula was intended to inform the public of religious and civic events and to record precedents that must be kept in mind for the future. The point must also be made again and again, because it is so often forgotten, that the pontifex and his tabula must have been primarily concerned with the primitive law and procedure and with the calendar which permitted public and private activities to take place. Pontiffs controlled the law, directed its use, and for much of the Republic were the only experts in the field. The mistake is to assume that either the law or the tabula was essentially religious. “The frequent modern view,” says Frier, “that the pontifical notices had at first a predominantly religious tone not only lacks support in the texts, but is without substantiation in theory.”13 Originally, there was little or no differentiation between religion and law, and in fact the ius sacrum “touched the ordinary civil law.”14 Although the tabulae of the pontifices were not intended to serve as “historical” records, they “may have constituted a repository of fact from which, at a later date, proper consultation might extract guides and precedents for action.”15 Unfortunately, Frier mars an otherwise acceptable discussion of the libri annales by concluding that the keeping of the tabulae by the pontiffs did not proceed from “any legal authorization or compulsion stemming from the civil government.”16 As he notes, “in an early period there was no absolute distinction between religion and government ..., then there was likewise no reason why the pontifex maximus should have limited himself to reporting only parochial affairs.”17 12 Bruce W. Frier, Libri Annates Pontificium Maximorum: The Origins of the Annalistic Tradition. Papers and Monographs of the American Academy in Rome 27 (Rome 1979), henceforth LAPM. 13 LAPM: 96. 14 H. F. Jolowicz, Historical Introduction: 89. 15 LAPM: 98. 16 LAPM: 101. 17 Frier: 97.

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Or, as I would add, no reason to prohibit his exercising an official judicial and legal control over “parochial affairs.” Frier has separated the pontifex’ original sacred and legal imporrtance from his archival functions. He has criticised those who (like Theodor Mommsen) opt for the view that the rex sacrorum and pontifex maximus divided the king’s authority, with the pontiff receiving a “quasi-magisterial authority” and the rex becoming essentially a priest.18 True, the schematic depiction of the king’s position and authority flowing unchanged to different officials in an attempt to diffuse monarchical power and prevent its renewal is unacceptable, but this criticism should not have obscured the actual “quasi-magisterial authority” which the pontiff did possess. We should not summarily dismiss his potestas any more than we should restrict the functioning of his legal and procedural activities.19 The pontiff did not set up the tabula on his own authority; the keeping of records of all sorts was intimately connected with both his religious authority and the intrinsic importance of religion to all facets of Roman private and public life.20 Some information preserved was later turned into politically significant evidence by annalists and historians who made the material part of the struggle of the orders. Because much of it appeared legal and “constitutional” to our ancient sources, the original importance of the material as evidence for the as yet undifferentiated institutions of Rome was not apparent, and the details became evidence for the struggle of the orders interpretation. In fact, the tabulae were, among other things, the quasi-legal records of a college of quasi-magistrates, who were instrumental in the mediation of disputes between men and between men and gods. By 300 B.C. the cares of men were LAPM: 101. Macrobius, Saturnalia 3.2.17. 20 LAPM: 92f. and note 24, is too quick to dismiss the connection between the pontifical archival duties and the annales. See L. H. Jeffery and Anna Morpurgo-Davies, “ποινικαστάς and πονικάζεν: B. M. 1969. 4-2.1, a new archaic inscription from Crete,” Kadmos 9 (1979): 11854 with plates, presenting an inscription concerning the hereditary position of a scribe who was the “recorder in public affairs both sacred and secular” (p.125). Priesthoods in Rome were most certainly hereditary positions for much of the Republic, and record keeping was more a concern of such families than many realize. 18 19

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becoming more important, and the religious influences in, and control over, what were rapidly becoming secular affairs were gradually shifted to more worldly officials. Elsewhere I have tried to show that the auctoritas accorded priests was in no small measure due to their exlusive nature, their expertise, and their originally secret knowledge of law, procedure, ritual, and the proper times to undertake private and public measures as determined by the calendar. The XII Tables show an unmistakable religious and sacred character, and priests and especially the pontiffs, who are customarily throughout the Republic associated with private and sacred law, are in fact also to be associated with the great body of archival information and tradition which served as the precedents for action and embodiment of mos maiorum.21 It is also clear from even a cursory examination of the extant XII Table Laws that the priests did not simply record the original form of the law, or the procedure, but they actively engaged in the application of the law and they changed it by interpretation.22 Works devoted to pontifical and augural rules, rituals, and regulations, as well as commentarii, were in a very technical sense originally priestly records which contributed to the late Republic’s growing collection of legal materials.23 Modern scholars have certainly overestimated the effects of the supposed publication of the annales maximi upon the later annalistic historians, just as they have underestimated precisely what the pontifical records contained. Livy may not have consulted the annales maximi directly, but we must not forget that these earliest records were transmitted by priests, especially but not exclusively pontiffs, and that these records were overwhelmingly legal. In this connection, we can point to Livy’s report concerning the iuris interpretes surrounding the question of the origins of sacrosanctitas.24 Still other interpretes were mentioned concerning legal Mitchell, University of Law Review 3 (1984): 541-60.. Jolowicz (above, n.14): 108ff., has an acceptable discussion, but I find Alan Watson, The Law of the Ancient Romans (Southern Methodist University Press 1970): lacking in historical sophistication. 23 A valuable introduction is Fritz Schulz, History of Roman Legal Science (Oxford: Clarendon Press 1946; reprint 1967), who gives the proper stress to the religious nature of early Roman law and records but gives too narrow a historical value to such material. 24 Livy, 3.55.8. Cf. Robert Ogilvie, Commentary: 502 f. 21 22

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questions surrounding the authority of consuls and other magistrates.25 There can be no doubt that whatever Livy’s source, his information was primarily legal, which means that if the interpretes were in disagreement over the meaning of an original authentic piece of evidence, that evidence could well have existed as part of an archival record which was unembellished by conflicting political assessments of its importance offered by later interpretations. In fact, originally the interpretes themselves must have been, or must have preserved, the records of priests. In other words, Livy’s history contained interpretations of early Roman quasi-religious-legal documents. When his sources did not agree or were not convincing, Livy often presented the contrasting interpretations. “It is a recurrent cause for complaint,” says Walsh, “that he does not always evaluate the merits of opposing statements, being content to present differing interpretations and to leave the onus of choice to the reader.”26 For example, as Walsh continues, in the first decade, as Livy knew well, the theme of the struggle of the orders had offered boundless temptations to historians of the second and first centuries who wished to further the Optimate cause or to reinforce the claims of the Populares. He sought to steer a fair course by choosing authorities of opposing views, Valerius Antias and Licinius Macer. The reconstruction of Roman history was an especially lively weapon of propaganda in the hands of Licinius, a vehement supporter of the Populares. Valerius on the other hand favored the Sullan interests, as well as seeking the maximum glory for the Valerii and their allies.27

The assumption is that Livy, as a moralist in search of moral examples, found in these annalistic accounts the biased presentations of competing political factions who were not above (or below) fabricating material to make their points. Livy had merely to pick and choose, since the tradition had already “been elaborated with appropriate color by both conservative and ‘popular’ historians."28 Livy’s account was “not so much a Livy, 3.55.11. Walsh (above, n. 3): 121f. 27 Walsh: 122. 28 Wiseman (above, n.6): 51; Walsh: 122. 25 26

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reconciliation of opposing views as a combination of distortions from the two polar positions.”29 Timothy P. Wiseman observes that “what never occurred to him was to reject the elaboration to begin with.”30 Modern historians would not be better served had Livy been successful in “reconciling” the opposing views, and neither Livy nor modern historians have considered rejecting the polar opposites reflected in the struggle of the orders. To be absolutely clear about my own position, that is precisely what must be done. However, we must distinguish between the “struggle” as it appears in the pages of Livy, in particular, and the conflict found in the pages of modern historians. The characteristic features of the former are not those of the latter. The identification and characterization of Livy’s major sources for the struggle are far from acceptable. Just as it was incorrectly assumed that Livy did not use Fabius Pictor directly, there is considerable doubt about his presumed indebtedness to a few late sources which greatly influenced the tone and content of his treatment of the struggle between patricians and plebeians. Scholars have concentrated a great deal of attention on the question of annalistic fabrications that found their way into the narrative concerning early Roman developments preserved basically by Livy and Dionysius of Halicarnassus. This combination of unscrupulous invention on the part of the later republican annalists and innocent acceptance of their inventions on the part of Livy and Dionysius has not been easy for modern readers to understand. We do not find it too hard to recognize the inventive technique in comparatively unimportant details, but it does not come naturally to us to expect the big lie as well; ...31

It is not altogether clear what Wiseman means by the “big lie,” but I think the “big lie” is the struggle of the orders. However, it is not always evident who is the father of the falsehood, ancient or modern author. It is assumed that “the Annalists certainly had to elaborate Walsh: 122. Wiseman: 51. 31 Wiseman: 52. 29 30

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the material of the Annales Maximi to make it historically intelligible.”32 If the annalists had used such unpromising material as was contained in the priestly records, they must have “interpreted it.” Ernst Badian maintains that “the tradition of Roman historiography made plausible lying easy: its true content was to some extent based on archival material, written in simple and archaic style and clamoring for imitation.”33 The annalists did not commonly fabricate documents, according to Badian, but some were invented, and he believes that “with Valerius the invention of ‘archival material’ seems to have reached new heights.”34 A. H. McDonald points out that much of Livy’s technical vocabulary resulted from “the influence of the traditional style which came to him from the Annales Maximi through the Annalists, above all where the vocabulary of the State religion, in its ‘augural’ and ‘sacral’ forms, appeared to him to evoke the spirit of early Roman history.”35 Livy took care to present “the full constitutional subject-matter in its appropriate style....”36 McDonald assumes that the style and form of the documentary material came from the pontifical records, and they “owed something to conventional elaboration along technical, antiquarian, and sacral lines.”37 He points to “phraseology in Livy that is technical to the point of legalism; it may also bear the marks of antiquarian research; and where the augural aspects of a ceremony become significant, the religious associations are heightened by the sacral vocabulary.”38 It is also argued that Livy frequently worked through his sources rapidly and mechanically, often not making the material part of the structure at all. Some material−brief notices−“did not easily lend themselves to structural or thematic manipulations.... Often Livy appears to have used them as dividers and contrasts to more extensive and important blocks of material...”and he tended to “string events out in no particular order.”39 The prototypes of these A.H. McDonald, “The Style of Livy,” JRS 47 (1957): 156. E. Badian, “The Early Historians,” Latin Historians, ed. T.A. Dorey (New York: Basic Books 1966): 21. 34 Badian: 21. 35 McDonald (above, n.32): 157f. 36 McDonald: ibid. 37 McDonald: 156. 38 McDonald: ibid. 39 Luce (above, n.9): 191f. 32 33

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notices, says Luce, were the tabulae dealbatae of the pontifex maximus, or the published annales maximi: “hence the brevity, the technical vocabulary, the antique-looking word here and there, and−above all−the bulletin-like sequence that we suppose characterized the whitened tablets."40 Livy did not necessarily preserve authentic documents, but “merely couched [them] in a manner evocative of what the tabulae were like or thought to have been like.41 Quite simply, the emphasis of all the above is on the use of annalistic form and not on the use of substance. Supposedly Livy found both legal and religious styles that appealed to him, and his employment of the styles is not necessarily indicative of a reliable content. Several modern scholars have warned that the existence of annalist fabrications makes identification of authentic evidence about Rome’s past most difficult because the later annalists fabricated evidence in the archaic forms and styles of the oriiginal material. The important historical question to pursue is whether we have any examples of the archival, documentary style which retains its original content. As a possible candidate for authenticity I want to nominate the lex Valeria de provocatione of 300 B.C., which was the third and last such measure passed by a member of the same gens.42 Livy said that beating and beheading someone who employed provocatio was forbidden but that the punishment for those who disregarded the prohibition was to declare their deed improbum, a “wicked deed,” as some translate it.43 This is a good example of both the moral decline and the religious themes found in Livy, since he maintains that such a sanction was sufficient to deter men of an earlier period but it would not even faze anyone in his day. Ogilvie couples this notice with a speech supposedly given by Cato the Elder on the occasion of the repeal of the lex Oppia, which forbade excessive displays of luxury: “diseases must be known before their cures are found; by the same token, appetites come into being before the Luce: 192. Luce: 191f. 42 Consult MRR I: 2f, 47f (509 and 449 B.C.) for ancient references to provocatio laws. There were also three leges Porciae on the same subject! 43 10.9.3-6: si quis adversus ea fecisset, nihil ultra quam “improbe factum” adiecit. See Livy, Rome and Italy (Books VI-X), for Ogilvie’s introduction (p. 14) and Radice’s translation (p. 299). 40 41

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laws to limit their exercise.”44 Ogilvie’s aforementioned conflation is a good example of how modern criticism has complicated our understanding of the historical development of Rome in precisely the same fashion as Livy. It is customary to view the three leges Valeriae as, in part at least, the fabrication of Valerius Antias, with only the final law normally accepted as historical.45 Despite the important role provocatio legislation supposedly played in the struggle of the orders and its equally indispensable protection afforded citizens, provocatio is so little understood, so much debated, and so infrequently used that modern scholars generally criticize our sources for their failure to fabricate accurately an acceptable historical context and explanation for the various leges or to cover accurately the tracks of their fabrication. In fact, in the XII Table Laws, being declared improbus is also a punishment for someone who fails to perform as a witness or who fails to give testimony.46 With good reason we can assume that declaring someone improbus was very similar to declaring that he was sacer, which involved his “excommunication from the civil community.” Improbus was then a “primitive legal principle, a condemnation by the community, which, rising to malediction and abandonment to the revenge of Gods and men, excommunicated from the civil fellowship the person who violated the legal principles (mores) which were the very foundation of the social order....”47 Who declared or judged the person or his deed improbus? Certainly not the magistrate, and we have no reason to believe that the tribunes acted in this matter. Most likely the pronouncement came from the pontifex maximus or the college of pontiffs, or at least they maintained such a jurisdiction until other kinds of (secular) legal and jurisdictional machinery developed. All admit that this did not happen until sometime after 300 B.C., but both Livy and modern scholars have turned the actual legal pronouncements into evidence either for the moral decay from Livy, Rome and Italy 14 (cf. Livy, 34.4.8, on the Lex Oppia). R.A. Bauman, “The lex Valeria de provocatione of 300 B.C.,” Historia 22 (1973): 33ff., has collected the evidence and modern argument but has assumed too much about the dictatorship and the question of provocatio-free magistracies. 46 See FIRA: 62 (= 8.22, which is from Gellius 15.13.11). 47 C.W. Westrup, Introduction to Early Roman Law (Copenhagen 1939), Vol. 3: p. 172. Cf. Bauman, (above, n.45): 35f. 44 45

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previous high standards of religious conduct or for one more concession won by the plebeians from the patricians. In fact, the original idea of provocatio may not have been the much overused and clearly misinterpreted “appeal” but instead, a challenge, and we know of challenges to both sacramentum and sponsio.48 We are told that the sacramentum was laid ad pontem (not ad pontificem as emended), 49 and the bridge may well have been the frontier at which a form of trial by challenge and ordeal took place, presided over by the pontifex. Some have considered the procedure of sponsione provocare “extra-legal:” it may well have been ‘a challenge that did not have to lead to adjudication.50 Whatever the case, there is little or no evidence that provocatio was the method whereby citizens protected themselves from magisterial coercitio, and we know of no secular cases where it was used against a sentence handed down. As A.H.M. Jones pointed out, the only known cases of provocatio were those involving disputes between a pontifex maximus and those under his authority.51 These cases are clearly only a vestige of what had been the practice generally for a considerable period of time−namely, that pontiffs were once judicial authorities in every sense of the word, perhaps the only ones. It should also be pointed out that the Lex Valeria of 300 (and its predecessors in 509 and 449) B.C was probably preserved as part of the pontifical record. M. Valerius, the author of the law On sacramentum, see Francis de Zuleuta, The Institutes of Gaius (Oxford: Clarendon Press 1946), vol. 1: pp. 234ff., for the text of Gaius (4.13-4) and vol. 2: pp. 232ff., for the discussion. On sponsio, see John Crook, “Sponsione Provocare: Its Place in Roman Litigation,” JRS 66 (1976): 132ff., for a discussion of its later employment. 49 Varro, LL 5.180. 50 See Crook, (above, n.48): 132ff., for discussion and bibliography. 51 A. H. M. Jones, The Criminal Courts of the Roman Republic and Principate (Oxford: Blackwell 1972): 10ff., but I cannot accept all of Jones’s historical conclusions. What is generally overlooked in the trial of Rabirius (63 B.C.) is the fact that the duoviri in the case were C. Julius and L. Julius Caesar. The former was pontiff (perhaps already maximus by the trial) and the latter was augur. Whatever the archaic form of the trial, Rabirius’s crime was certainly a form of sacrilege. See R.A. Bauman, The Duumviri in the Roman Criminal Law and in the Horatius Legend, Historia Einzelschriften 12 (1969), for a discussion of this mysterious criminal procedure. 48

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in 300 B.C., was a pontiff,52 and Cicero referred to the fact that his information about provocatio came from the pontificii Libri, and what he found there was confirmed by information obtained from the XII Table Laws and the augural record.53 The Valerian gens may well have preserved the provocatio tradition as part of the private records of the family as illustrations of its members’ public activities. There is some indication that such records were transmitted within families from father to son and yet also formed part of the official record of public development. This would be especially cogent if some positions were inherited by sons automatically, a fact which seems virtually certain for the major priesthoods.54 In other words, one reason the Valerii figure so prominently may well be due to the original form of the material preserved. It was part of a Valerian family archive transmitted from father to son as part of the priestly inheritance. Pliny tells us about archive rooms of the important gentes.55 This is not to credit everything that Valerius Antias stated as derived from a private archive with a pseudo-public nature, but merely to suggest that once later political and personal interpretations have been removed from some such material, their fabrication is neither evident nor necessary. In this respect, we should look at the religious and archival nature of early Roman law and legislation with a view toward removing the most pervasive late interpretation of their importance. That is, we must remove the “big lie,” the struggle of the orders. As Badian points out concerning the embellishments of Valerius Antias, “scholars [have tried] to separate the substratum from his additions; and for the early part of Roman history the task M. Valerius, six times consul, was pontiff about 340 B.C., and even if he was the son of the pontiff of 340, he certainly could have succeeded his father in the college. 53 Cicero, De republica 2.31 (54). 54 I mention only the notice of Dionysius of Halicarnassus, 1. 74.4-5, and the discusssion of P.A. Brunt, IM: 26 and 32, as indications of the troublesome background of the census and censors. I cannot follow Brunt in all respects. For additional information see my essay, “The Definition of Patres and Plebs,”in SSAR. 55 Pliny, Nat. Hist. 35.2.2.7: tabulina codicibus implebantur et monimentis rerum in magistratu gestarum. 52

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is almost hopeless.”56 However true this assessment, I propose to separate the substratum from the historical structures imposed upon the material by both ancient and modern scholars in an attempt to make more headway. Frier, for example, is only one of the most recent historians to place a modern gloss on the traditional account. He has argued that Licinius Macer confined his annales to “the great plebeian revolution, from the origins of Rome down to the Lex Hortensia of 287 and its immediate aftermath in the conquest of Italy.”57 Macer’s motives were in part his desire to glorify his plebeian ancestors, in part his general love of plebeian institutions and history, and he called upon “archaic documents such as the foedus Ardeatinum and the libri lintei’ in support of his cause.58 However, it is not possible to prove that Licinius Macer wrote strongly pro-plebeian annales or that he concentrated upon the period of the plebeian revolution down to 287 B.C. So much of the depiction of Licinius Macer’s work depends upon accepting still additional modern assumptions about his politics, his family, and his plebeian pride as well as the questionable deduction based upon the fragmentary remains of his history. The latter, naturally enough, may well have ended with Pyrrhus.59 Frier, in any event, has committed the cardinal sin of the modern historian: he has taken a modern assumption and presumed that it has ancient standing. In fact, there is not a shred of evidence that Licinius Macer’s work concentrated on the plebeian revolution or that he held exclusive populares or plebeian sympathies. Nor do his fragments tell us much about his struggle of the orders. In particular, we do not know when or how he ended his work. Luce has correctly and conclusively demonstrated how flimsy both the identification and depiction of certain passages of Badian (above, n.33): 21. Bruce W. Frier, “Licinius Macer and the Consules suffecti of 444 B.C.” TAPA 105 (1975): 95. Frier notes that this “is an ex silentio deduction, but an attractive one….” 58 Frier: 95. 59 This might well be the case since the latest datable fragment deals with Pyrrhus (cf. Hermann Peter, Historicorum Romanorum Reliquiae 2nd ed., (Leipzig 1914) vol. I: p. 308 (frg. 20). Frier (above, n.57): 95, along with others, rightfully questions the location of the Pyrrhic fragment in Book 11 of Macer’s work. 56 57

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Livy are when assessed according to an argument that he copied a major source that had a major bias.60 In other words, it is no longer possible to support Ogilvie’s view that the unknown, prosenatorial, and Sullan aristocrat Valerius Antias and the equally monolithic pro-plebeian Licinius Macer were Livy’s major sources for his conflicting points of view offered during this description of the struggle of the orders.61 Tracing the various oligarchic and popular features of the struggle found in Livy back to either Valerius Antias or Licinius Macer has been a favorite pastime of modern scholars, but the practice is very nearly as much a fabrication as anything those two were guilty of creating. “The result,” says Luce, “forms a vicious circle in which the theory and the proof for it must come into being simultaneously.”62 In fact, the description of the struggle of the orders given by these annalists is far from clear. Luce warns that “if everything in the first pentad that is pro-senatorial comes from Antias and everything proplebeian comes from Macer, their respective versions of the Struggle of the Orders must have been singular indeed: the triumph of the villains in the one case and of the heroes in the other.”63 As a possible solution, Luce observes, in particular from the Livian passages that derived from Polybius, precisely how much Livy added and changed the emphasis of the original. As a result, he asks if “it might be worth considering whether the dominance of this [struggle] theme in early Roman history, and the interpretation of it, might not be due to a significant degree to Livy’s own historical perspective.”64 I could not agree more but hasten to emphasize that if the struggle is a theme found more in Livy than in any other source, it is also a theme found more in modern historians than in ancient. This fact is made clear by Luce himself, but he is also swept along by the wave of common opinion he advances in support of his view that Livy took a “developmental” approach to Rome’s history: “In 509 many fundamental institutions are still waiting in the wings: all the magistracies other than the consulship, together with the tribunate; moreover, the Luce (above, n.9) I: 65ff. In particular, see Ogilvie, Commentary: 7-16, and the many passages in Livy attributed to the two authors by Ogilvie. 62 Livy: 166. 63 Livy: 169. 64 Livy: 169. 60 61

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long course that the struggle of the orders took would not be concluded until the Lex Hortensia of 287. The enactment and codification of laws are in the future, together with a host of other social, religious, and political changes.”65 The idea that the “struggle” ended with the Lex Hortensia, though often repeated is not an ancient idea, and it is not part of Livy’s developmental process, as the following will make clear. If the struggle of the orders played an important role in Livy’s depiction of Rome’s historical development, we might expect to find the chronological features of the struggle emphasized in the tradition. Hortensius’ dictatorship is mentioned in Periocha XI, but not his legislation,66 and those who have attempted to analyze the structure of Livy’s history do not see a break at this point in the narrative.67 The law would have been discussed, presumably, toward the end of book XI, and we might expect some break between books XI and XII if the struggle of the orders had been given much significance. In other words, Livy’s historical development, as reflected in book divisions, was not structured around the struggle of the orders. A defense has been offered for a division which stressed the cohesiveness of books I, II-V, and I-XV,68 but it would appear that no major break exists between books X and XI, let alone between XI and XII. Although this is not my primary concern, as an illustration of how much modern opinion has colored our impression of Livy’s history, I want to point out that in book VI we have Livy’s own claim that now clariora deinceps certioraque ab secunda origine velut ab stirpibus laetius feraciusque renatae urbis gesta domi militiaeque exponentur (6.1.3). The argument that book XVI marked another beginning because the Periocha mentioned Origo Carthaginiensium et primordia urbis eorum referuntur is without merit for the simple reason that the break and 65 Livy: 241. Luce also correctly stresses (contra Collingwood) “that the Roman desire to put things in a historical context proved so strong that even the stuff of myth, fable, and invention is delineated in well-articulated stages of accretion and development” (p. 241). 66 Plebs propter aes alienum post graves et longas seditiones ad ultimum secessit in laniculum, unde a Q. Hortensia dictatore deducta est; isque in ipso magistratu decessit. 67 Philip A. Stadter, “The Structure of Livy’s History,” Historia 21 (1972): 287ff., and Luce, Livy: 3f. 68 Stadter, (above, n. 67): 287ff., and Luce, Livy: 3f.

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new beginning that do occur between books V and VI are not clear from the summary, although they are obvious from Livy’s own words. The summaries cannot be used to show. a break since they frequently have a structure and emphasis of their own.69 Nevertheless, to return to our problem, there is no reason to believe that Livy thought the struggle of the orders had come to an end by the end of either book X or book XI. In fact, there is no doubt that Livy saw the conflict as essentially between two constant, inevitable groups of opposing political forces. It was a continuous feature of Roman life. Once we remind ourselves that the modern analysis of Valerius Antias and Licinius Macer as polar opposites and as Livy’s main sources for the struggle are not established facts but merely modern hypotheses at best, we can readily see that a great deal of the struggle was Livy’s own creation. The conclusion is confirmed by the fact that he is our only source for so much of its detail.70 However, the common modern opinion that the struggle began in 494 B.C. with the creation of the plebeian tribunes and ended in 287 B.C. with the Lex Hortensia is not part of Livy’s structure. In Livy the struggle began with Romulus’ creation of patricians and plebeians.71 The struggle surfaced several times during the monarchy and the tribunes were created, said Livy, because the patricians now acted like the tyrannical Tarquins.72 We cannot be certain when, if ever, the struggle ended. The patrician-plebeian struggle that began with Romulus is not unlike the conflict between equites and senators (or populares and novi homines with optimates and nobiles) that characterizes the late Republican tradition.73 The See Luce: 10f., and notes for bibliography and discussion. Luce: 165f. and 230f.: “The prominence given to the struggle of the orders and the strong thread that runs from the initial clashes early in Book 2 through Book 4 and beyond [my emphasis] doubtless owe much to Livy’s selectivity and personal outlook” (p. 245). 71 In Book I we find the multitude (1.15.8), plebs, and exercitus already favored by Romulus (1.16.8) and suspicious of the patres, who were the interreges and one hundred times worse than a single master (1.17.7). The patres were already engaged in factional politics as well (1.17.1). 72 Livy, 2.21.5-6, but 2.21-33 for the entire story. 73 Cf. P. A. Brunt, Social Conflicts in the Roman Republic (New York, 1971): 72f., and R.E. Mitchell, “The Aristocracy of the Roman Republic,” (n.b reprinted supra). 69 70

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struggle certainly continued, but its contestants were redefined. In a very similar fashion Livy saw Regal authority and institutions change by flowing directly into Republican.74 Mommsen was certainly right to recognize this as the tradition but certainly wrong to attempt to build “historical” legal structures on the basis of that tradition.75 Modern scholars have rightly criticized Mommsen’s system, but in the process they have denied the possible existence of authentic materials which the ancients might have used to “fabricate” their own interpretations and structures. To illustrate the point, one can do no better than use Mommsen’s own view of the Lex Hortensia as the standard characterization of the law’s position in modern scholarship: The two hundred years’ struggle [i.e. 494-287 B.C.] was brought at length to a close by the law of the dictator Q. Hortensius which was occasioned by a dangerous popular insurrection, and which declared that the decrees of the plebes should stand on the absolute footing of equality−instead of 74 Livy, 2.1.2-3, which illustrates Luce’s “developmental” interpretation (Livy, 238ff.). Luce also points out that the kings were all seen as “versatile and many-sided (p. 239 n. 20).” In this respect also take note of J.P.V.D. Balsdon, “Dionysius on Romulus: A Political Pamphlet?,” JRS 61 (1971): 18-27, where Romulus is seen in the guise of the typical founding father. It was commonplace for all things to begin at the beginning (cf. Ogilvie, Commentary: “It was a fable con venue of Roman constitutional history that the power of the kings had been transferred in some form to the consuls”(87). In fact, that modern scholars are equally guilty is clear from the familiar but badly understood origins of the lex curiata de imperio which is often left in the shadows of Rome’s regal past despite obvious “constitutional” problems. 75 The process is particularly clear in Mommsen’s Römisches Staatsrecht, 3rd ed. (Leipzig 1887) vol. 2. For the example of the presumed transition from royal religious powers to pontiff and rex sacrorum, see LAPM: 101f., and notes. The most difficult questions concern imperium and coercitio and the problem of “political” and “constitutional” authority. See my esay in SSAR, but an abbreviated bibliography and debate can be found in Jolowicz, Historical Introduction: 305ff., where he discusses the distinction between the approaches of Mommsen and Kunkle concerning criminal law and jurisdiction. For the decline of another of Mommsen’s “Platonic distinctions” between a lex rogata and a lex data, see M. Frederiksen, “The Republican Municipal Laws: Errors and Drafts,” JRS 55 (1965): esp. p.189.

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their earlier conditional equivalence−with those of the whole community.... The struggle between the Roman clans and commons was thus substantially at an end.76

The assumption is that the plebeians could not legislate without patrician approval (patrum auctoritas) until the Lex Hortensia.77 There were two other occasions on which plebiscita were also made binding (449 and 339 B.C.); these have been characterized as either annalistic fabrications or legislation which gave qualified approval to comitia acts in some fashion.78 Livy mentioned the secessio of the plebeians about 287 B.C., and the dictator Hortensius, but he did not mention the Lex Hortensia.79 Gaius (ut plebiscita universum populum tenerent), Pliny (ut quod plebs iussisset omnes quirites teneret) and Gellius (ut eo iure quod plebs statuisset omnes quirites tenerentur) are our major sources for the Hortensian law.80 Livy did, however, preserve the other two measures of 449 B.C. (ut quod tributim plebs iussisset, populum teneret) and of 339 B.C. (ut plebiscita omnes quirites tenerent).81 In all the aforementioned the Theodor Mommsen, The History of Rome I, 4th ed. tr. Rev. Wm. Dickson (New York 1875), vol. 1: p. 386. 77 As an example, I offer Arnaldo Momigliano, “An Interim Report on the Origins of Rome,” JRS 53 (1963): 117, “It is easy enough to believe that after the fall of the monarchy the patricians could, and did, usurp the right to veto on laws and elections made by the Comitia (which is what the patrum auctoritas amounted to).” 78 Bibliography and discussion can be found in E. S. Staveley, “Tribal Assemblies before the Lex Hortensia,” Athenaeum 33 (1955) 3-31: and in Robert Develin, “Comitia tributa plebis,” Athenaeum 53 (1975): 302-37. Develin rightly concludes from the evidence that only one tribal assembly existed (contra Staveley) but then completely abandons this promising start by placing his conclusion within the context of the struggle. I reached a different conclusion in my own contribution to SSAR which I can only briefly summarize. Only one comitia tributa legislated because only one form of legislation was known−the plebiscite. Develin and others often try to analyze the comitia evidence without satisfactorily answering the question of what distinguished patres from plebs. 79 Livy, Periocha, 11. 80 Gaius, Inst. 1.3; Pliny, Nat. Hist. 16.10 1537; Gellius, 15.27.4. See the references and discussion in Giovanni Rotondi, Leges publicae populi romani (Milano 1912): 238ff. 81 Livy, 3.55.3; 8.12.15. 76

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formulae are similar. Did some inventive annalist make up the various measures to demonstrate an ancestor at work, to prove that the plebeians always had the right to do what they struggled two hundred years to achieve, and is there any truth to any of it? In another passage from Livy, M. Fabius Ambustus, as interrex in 356 B.C., was called upon to settle a dispute. Livy reported that Fabius said the following was the law of the XII Tables: ut quodcumque postremum populus iussisset, id ius ratumque esset; iussum populi et suffragia esse.82 In other words, Fabius quoted the XII Tables to the effect that “whatever the populus decided last was binding law, and votes of the assembly (suffragia) were commands of the populus too and therefore binding.” This fragment of the XII Tables is often placed in the final table, perhaps as the last measure, for the simple reason that it permitted changes to be made in the law−specifically changes that included popular decisions.83 What we are dealing with, essentially, is a formulaic statement that proclaims the most recent measure passed to be the operative law on a subject. If we remove the elements of the struggle and do not load the translations of the aforementioned passages with political overtones, we are left with a body of laws which, in each instance, are stated to be the final measures on their respective subjects. The formulaic passages (ut quod plebiscita ... etc.) have nothing to do with the struggle. This fact should have been clear from the “alternate tradition” concerning the Lex Hortensia. We are told that the Lex Hortensia permitted judicial proceedings and legal transactions to take place on nundini; in other words, market days were now days on which secular business could be undertaken. The change was away from considering market days nefasti, or, in another sense, they were no longer to be religious holidays, days of rest (feriae), days on which sacred, but not secular, activities were permitted. Macrobius reported a tradition that nundini were sacred to Jupiter−days on which sacrifices were offered: sed lege Hortensia effectum ut fastae essent, uti rustici, qui nundinandi causa in urbem veniebant, lites componerent.84 Only a short time before, in 304 B.C., Cn. Flavius (it is reported) civile ius, repositum in penetralibus pontificum, evulgavit fastosque circa forum in albo 82

Livy, 7.17.12. Also Livy 9.33.9, 9.34.6, 7, contain the same

83

Riccobono, FIRA I: p. 73 (= n. 5). Macrobius Saturnalia, 1.16.30.

language. 84

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proposuit, ut quando lege agi posset, sciretur.85 That is, Flavius published the civil law, which had been deposited in the secret store rooms of the pontiffs, and he published the fasti put up on whitened boards around the forum so that all would know when legal proceedings could be undertaken. Flavius had evidently published the dies fasti, the calendar which informed those who wished to know when they could undertake certain kinds of secular business. Their undertaking was greatly changed by reducing the exclusive control over the law and legal procedure exercised by the pontiffs. In 287 B.C., Hortensius’ measure merely extended the right to engage in secular business to those who wished to take advantage of the market day. Such days were now taken out of the hands of priests who had stressed the ritual and ceremonial aspects of such days. What was meant by stating that the Lex Hortensia now declared ut plebiscita universum populum tenerent, or some such variation, was that this was now the law of the land; it was the postremum word on the subject. In sum, the importance of the Lex Hortensia for the secularization of Roman law and society should not be obscured by the desire to have the measure made the final act in the struggle of the orders. Opening market days for legal and public activity meant that those who came into the city could now have recourse to legal advice and procedure which had previously been unavailable. The change may well reflect the fact that the law was no longer a priestly monopoly and, therefore, that the Roman law and procedure began to take on a more secular and public aspect. However, pontiffs continued to be important figures in the growth, development, and interpretation of the law, and publication and secularization probably meant no more than a certain amount of differentiation was taking place in Roman life.86 The change did not occur because the plebeians were hostile to the continued control by the patrician priests over the law; it occurred because Roman society was growing and developing in such a rapid fashion that it outpaced the priests, who were unwilling or unable to continue their exclusive control. The change was not the result of political conflict, but the natural and inevitable result of Rome’s increased Livy, 9.46.5-6, cf. Macrobius, Saturnalia, 1.15.9-10. The single example of Q. Mucius Scaevola will serve to illustrate the point (cf. Cicero, de legibus, 2. 19(47)-21(53). Cf. Schulz, History of Roman Legal Science: esp. 8f. 85 86

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urban, economic, and secular sophistication. In conclusion, there is absolutely no evidence that Licinius Macer or any other ancient author, including Livy, focused upon the Lex Hortensia as the final act of the struggle of the orders. The Lex Hortensia is itself a poorly reported document in the pages of our authors, and it has presented a considerable puzzle to modern historians, who have never fully understood or satisfactorily explained it. Neither Hortensius nor his dictatorial office can easily be explained or placed into any acceptable political historical context. Perhaps the shortcoming is the lack of Livy’s complete text, but the problem is more complicated than merely the absence of historical information. In fact, the emphasis placed upon the alternate or supplemental tradition about the Lex Hortensia threatens to turn the measure into a much more workable piece of legislation, but at the same it promises to remove it from the pages of the struggle. The law has been the final act of the struggle for so long that it might be considered sacrilegious to question it. Interpreting much of Rome’s early historical development in terms of the struggle of the orders certainly has been one way of seeing the importance of those features of the tradition which were considered authentic, but it also has resulted in not seeing the potential, perhaps essential, importance of such features. If legal and religious information are really among our most reliable sources of evidence, we have been remiss in applying that principle to early Roman history. Both the three leges provocationis and the three laws making plebiscita binding can be interpreted as features of early Roman development without making them part of an artificial, admittedly highly embellished, struggle between patricians and plebeians. The emphasis on the struggle of the orders has obscured our vision. There has been a general tendency to deny the historicity of plebiscita passed before 287 B.C. on the grounds that plebeians could not legislate without approval of the patres. The effect of this conclusion has been to deny, qualify, or misinterpret much of Rome’s early legal and constitutional history. We would have little early Roman history without such plebiscita and still less without politically active tribunes of the plebs. By placing measures within their proper religious and legal context, we can begin to see their true importance and begin to understand how totally fabricated, misleading, and unsuccessful the attempts have been to

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place such material with the context of the struggle.87 Arnaldo Momigliano once commented that “if religion, economics, politics and law are considered together the probability of multiplying errors is increased. A wrong interpretation of economic or religious fact can easily lie at the root of a wrong interpretation of legal facts, and vice versa.”88 It is my contention that just such an error lies at the root of the common historical depiction of early Roman internal political development as essentially the product of a political struggle between poorly defined patricians and plebeians.

87 I ...[have dealt] more extensively with this point and all others made in this essay in SSAR. 88 “The Consequences of New Trends in the History of Ancient Law,” Studies in Historiography (London 1966): 243 (= Rivista Storiea Italiana, 76 [1964]: 133-49).

ROMAN HISTORY, ROMAN LAW, AND ROMAN PRIESTS: THE COMMON GROUND Modern historians of Rome often highlight references to various legal developments in the narrative for early Rome at a time for which all agree there is no evidence for history writing in Rome. Identification of these references promotes the belief that a kind of legal tradition existed upon which later historical writers would have been in a position to elaborate and in which, by extension, modern scholars can ground some confidence in constructing a sociopolitical narative. The implict question here is whether modern faith in legal evidence as inherently reliable should translate to faith in the “struggle of the orders” as a coherent and reliable narrative. To that end, Mitchell explores the duties of the pontiffs, the custodians of law. In general, Mitchell argues here that the circumstantial evidence adduced to corroborate Livy's overall understanding of Roman legal and social history does not support the existence of the relevant narrative elements. More specifically, he argues that what we do know about early Roman law points in other directions altogether and, ultimately, that our insistence on interpreting the evidence in the context of a highly suspect narrative hinders us from understanding its real value.* The purpose of this article is to demonstrate the full extent to which our extant knowledge of early Roman historical development is the consequence of two phenomena: the Romans’ record-keeping methods and the historical interpretation of the _______________________________

*Originally published in University of Illinois Law Review 3 (1984): pp. 540560. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency.

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recorded details as evidence of a conflict between patricians and plebeians−the so-called struggle of the orders. The fundamental question about the details of early Roman history has always been whether they were reliable simply because historians could trace them back to authentic documentary records. The problem is of interest to students of law because the largest body of detail considered reliable is legal, beginning with the Twelve Table Laws.1 Frequently, jurists pronounce this legal material reliable because it appears to fit the historical interpretation of the period offered by both ancient sources and modern scholars. The interpretation is based largely upon the assumption that the legal details demonstrate the existence of reliable contemporary documents and thus justify our faith in the existence of the struggle of the orders. However, the original records kept by the Roman priests were not preserved to support a chronology of Rome’s historical development and were never intended to explain how that development took place. The conflict was not part of the preserved record; it was added to explain details not readily comprehensible to the later Romans, who did not begin to write about their historical development until the end of the third century B.C. Thus, by the time the records were used for historical purposes, their original nature was obscured by the desire to make them part of a grand design of Roman history. If we accept the legitimacy of the records apart from the added framework of the conflict, the legal details are evidence of a previously unrealized state in Rome’s religious and legal history. Because the supervision of records was controlled by priests in general, and by pontifices in particular, both Roman history and Roman law technically began with the Roman pontiffs.2

1 Reference to a work does not mean agreement with the thesis, but merely that it is a convenient place to begin. 2 B. Frier, LAPM collects the ancient evidence and describes the modem controversy, but he pays too little attention to the legal materials contained in the records. He sees the entire record-keeping process as too private and personal. That other priests also kept records is clear from their specific functions and duties during ceremonies and festivals. H. Scullard, Festivals and Ceremonies of the Roman Republic (1981): 27-31, presents the essential information concerning priests and their duties. For the

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Scholars have offered essentially two contradictory interpretations of the pontifices and both carry broad implications for the analysis of the records pontifices kept and the supervision they exercised. On the one hand, in explaining the pontifices' influence on Roman private law, some scholars consider the pontifices the least sacred of Roman priests. Roman private law, in turn, was viewed as primarily secular in nature. On the other hand, others see pontiffs as originally religious figures who became more secular as the years wore on. This latter view suggests that the original nature of both the records the pontifices kept and the powers they exercised was essentially religious. The controversy demonstrates the extent of the confusion about both the record-keeping practices of the priestly colleges and the content of the records they maintained. Supposedly, when the monarchy ended the King’s sacred duties and some of his political powers passed to the pontifex maximus3 and the rex sacrorum.4 Some scholars consider the pontifex equivalent to a secular, political magistrate, even to the point of endowing him with military authority (imperium) and civil authority (potestas), as an inheritance from the king. Others believe that the pontiff originally did not rank high in the religious hierarchy, but in time became one of the most important and influential officials of the state.5 The pontifices, and pontifex maximus in particular, may have acquired their influence through a conscious decision to use their religious office and legal expertise to enhance their power and position at the expense of the prestige and importance of other officials.6 Scholars have also interpreted the pontifices and augurs as importance of the fetials as preservers of ancient legal formulae, see Ogilvie, Commentary: 127-33. Pontiff is the English form of pontifex and means priest. Pontiff and pontifex are used interchangeably throughout the text. 3 Regarding pontifex maximus, see infra text accompanying notes 15, 18. 4 See infra text accompanying note 15. 5 T. Mommsen, Römisches Staatsrecht I (1969): 20-1, presents the case for pontifical imperium and potestas; but Bleicken, “Oberpontifex und Pontificalkolleguim,” 85 Hermes (1957): 344-66 presents a necessary corrective. 6 For examples of this thesis, see G. de Sanctis, Storia del Romani: 290-304; K. Latte, Römische Religionsgeschichte: 195-201.

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nothing more than seers−private diviners of the kings−who became religious corporations (colleges) because their advice (responsa) and interpretations became so indispensable that eventually they were able to replace the rex sacrorum and flamines7 as the most important priests in the state.8 The most common current assumption is that the pontifices were priests who were not a professional class set apart, but men who took a prominent part in administering the State as magistrates. Laymen sufficed, since although in some respects Roman rites were complicated, there was no revealed religion before the introduction of the Sibyline oracles’ sacred books (as in Etruria) which needed interpretation by fulltime experts.9 To paraphrase Cicero, the Romans entrusted both the worship of the gods and the interests of the state to the same distinguished and famous citizens who could be relied upon to safeguard both religious and public interests.10 As a result, the failure to see that the records kept by the pontiffs required expert interpretation and experienced supervision has contributed to the erroneous view of the pontifices as laymen who had no expertise in either religion or jurisprudence. Consequently, many assume “there can be no question of any primacy of sacred law,” because “sacral, private, and public law were alike forged by the same small, exclusive, socially and economically homogeneous class” of pontiffs who were not “Lords Spiritual.”11 Such scholars see very little conflict between secular and pontifical jurisprudence and pay scant attention to the secularization of Roman law. As a matter of fact, they see the 7 There were three maiores and 12 minores flamines. priests or sacrificers, associated with as many individual gods. They were part of the pontifical college and under the supervision of the ponifex maximus. See infra text following note 13. 8 For a characterization of the controversy, see B. Frier, LAPM: 101-05; R. Ogilvie, Commentary: 100-01, 237-38; H. Scullard, Festivals: 2731, 42-43. 9 H. Scullard, Festivals: 28. 10 Cicero, Oratio de Domo Sua 1. 11 The most useful discussion of the evidence concerning the connection between Roman and Roman law is in F. Schulz, History of Roman Legal Science (1967): 6-12 [herein cited as F. Schulz, Legal Science]. But, Schulz fails to appreciate all the implications of the evidence in his desire to make the law less sacred in origin.

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pontificate as a “reward for public service,” implying that the priesthood was of little religious importance. By extrapolating, these scholars believe that religious principles generally pertaining to priesthoods did not govern the law that the pontifices administered and supervised.12 Incorrect assumptions that pontifices were chosen for political reasons and that the priesthood was only a reward for a successful secular career, have led scholars to make a further incorrect assumption that pontiffs acquired their expertise in both religion and law through on-the-job training. Under this view, the pontifices were not the real experts in either law or religion; such information was the prerequisite of their assistants, who were not otherwise preoccupied with politics.13 Certainly, as a rule those who became pontifices were from the same class and were often the very same persons who acquired magistracies−indeed, the pontificate was not a barrier to a successful political career. On the other hand, the rex sacrorum and flamines were archaic, functioning, holy priests, closely associated with individual gods and cults and with specific responsibilities. Their lives were closely circumscribed by a variety of taboos and their public and political activities correspondingly restricted. Pontiffs, in contrast, were practical officials. Although their title is associated with the magical rite of bridge building, a compound of pons and facere, they did not concern themselves with specific religious practices. Rather, they generally made certain that traditional practices were observed. They were the chief administrators responsible for overall supervision of both religion and religious officials.14 But why were the pontiffs the first Roman jurists? To answer this question, this article first examines precisely who became pontiffs and how they were selected. Although very few pontifices became maximi without first being elected to curule office, the view that as a rule those who became pontiffs previously had been magistrates is not true. Doubtless, for much of the Republic only those who were pontiffs−and had been for some time−as a rule were chosen to be pontifices maximi. On the other hand, young scions of noble families often filled vacant priesthoods long before obtaining political office. Selection most often occurred early in one’s career, A. Watson, The Law of the Ancient Romans (1970): 6, is typical. F. Schulz, Legal Science, supra note 11: at 12, 49. 14 See generally H. Scullard, Festivals: at 27-31. 12 13

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frequently as the consequence of succeeding to a priesthood previously occupied by one’s father or kinsman. During the Republic, priesthoods were customarily hereditary.15 The original co-option of priests into colleges was not a political device to protect against selecting political enemies of sitting priests,16 but a process whereby only qualified persons were selected. Only certain persons could be priests and apparently some had to become priests.17 Late in the Republic, pontifices were selected by a process that included election, but nomination or cooptation by existing members never completely disappeared. In addition, succeeding to a priesthood held by a kinsman remained common practice. Using Julius Caesar’s election to the office of pontifex maximus in 63 B.C. as an example, Alan Watson places too much stress upon the political reasons for Caesar’s selection as pontifex maximus.18 Caesar had become pontiff ten years earlier at the age of 27 by succeeding a kinsman. Caesar’s entire career, moreover, supplies considerable evidence both that he was heir to a religious tradition and that he possessed an equally strong interest in the law as well. For example, Caesar’s participation in the mysterious and archaic procedure used in the trial of C. Rabirius in 63 B.C. is best explained by the religious nature of the crime of sacreligious treason (perduellio), and the correspondingly important fact that both judges, a two man panel (duumviri), who passed sentence upon Rabirius were priests. Both facts bear directly upon the question of how priests were trained and the extent to which their training made them familiar with the legal traditions of the state.19 Priests were trained in the home. Sons and daughters of priests and priestesses served as acolytes of their parents, who instructed their children in sacred law (ius sacrum) and religious responsibilities. Students learned private law in the same fashion. I deal[t] with this problem in greater length in SSAR. L. Taylor, Party Politics in the Age of Caesar (1961): 90. (presents the standard political interpretation). 17 For an explanation of the evidence, see Mitchell, SSAR. 18 A. Watson, supra note 12: at 6. 19 For the ancient evidence and important modern bibliography, see id at 6; MRR: 113, 171. For all dated events and for officials and priests of the Republic, MRR is indispensable, and a reference to it should be taken for granted. 15 16

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For example, in Cicero’s day, students of law were commonly trained in the homes of experts, and pontifices and augurs continued to be among the most prominent legal experts of that day. Pontiffs received training in and were familiar with the materials which formed the records of the past.20 To a great extent, such material was a family inheritance, which accounts for the prominence of certain family clans (gentes) in both Roman legal and religious history. The sacred law touched private and public law in a variety of ways. The pontifices changed the nature of sacred, private, and public law, doubtless by making secular applications of sacred rules and procedures. Yet, one authority claims that even “in early republican times a distinction was drawn between sacred and profane law,”21 although P. Mucius Scaevola, consul in 133 B.C., maintained that a good pontiff would be learned in the civil law.22 However, Schulz says “as early as in Cicero’s time” specialists in sacred law rarely dealt with profane law and “[n]o longer were the two spheres of law influenced by each other.”23 For those accustomed to dealing with Republican legal history from the Twelve Tables to Cicero, a comment that begins with “as early as in Cicero’s day” is mildly amusing and very misleading. True, by Cicero’s day very little of the archaic law and practices remained either unchanged, untainted, or otherwise unaffected by the ravages of time or by the interpretations and alterations of experts. Nevertheless, as late as Cicero’s day, priests remained among the legal experts and were at the center of Roman legal science.24 Historians and jurists alike would be wise not to pass judgment too quickly on the secular nature of early Roman law when the extant material is preserved in such late records. Moreover, the priests altered and supplemented these materials without great regard to preserving the sequence of details for posterity. In addition, the F. Schulz, Legal Science: at 12-62. F. Schulz, Principles of Roman Law (1936): 26, [hereinafter cited as F. Schulz, Principles]. 22 Cicero, de Legibus 2.19.47. 23 F. Schulz, Principles: at 26; F. Schulz, Legal Science, supra note 11: at 40-46 (a slightly more balanced account). 24 Cicero was instructed in the law by an augur and pontiff from the Mucian family clan (gens), Cicero, Brutus 89.306; F. Schulz, Legal Science: at 44 (discusses the training). 20 21

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supervision of the pontiffs was greatest during the early Republic, precisely the period during which law and religion were not easily differentiated, to say nothing of the Romans’ failure to distinguish between sacred, private, and public law. Examining the first socalled non-pontifical jurists, Sextus and Publius Aelius Paetus, clarifies how what had been religious began to appear secular. Appearances differ from reality. The Aelian gens was actually closely associated with religious colleges. Although we do not have a complete list of priests for any period, we do know that an Aelius had been augur as early as 300 B.C., and that both Publius and Sextus were sons of the pontiff, Quintus Aelius, who died at Cannae in 216 B.C.25 Publius was an augur, and when he died in 174 B.C., his son Quintus succeeded him. Sextus may not have been a pontiff, although his father had been; many possible reasons exist why Sextus did not succeed his father in the college in 216 B.C. He may have held, for example, anyone of a number of other priesthoods. Regardless, his official position is less significant than his family tradition: Sextus delivered responsa (interpretations of the law), which were preserved in the family archive with the earlier legal responsa delivered by his ancestors. The preservation of responsa pontificum was well established, but later Roman scholars did not believe that arranging the material chronologically and attributing it to specific individuals was an essential task. Nevertheless, Schulz insists that Sextus “Aelius should be reckoned rather among the last of the old school than among the forerunners of Q. Mucius Scaevola, the pontifex.”26 Schulz appears unaware of both the contradiction in referring to Q. Mucius Scaevola as “pontifex,” and that Sextus Aelius and Quintus Mucius were heirs of strong religious and legal traditions which both subsequently used. Historians may easily trace the parallel between Sextus Aelius and Quintus Mucius Scaevola through the priesthoods held by members of their families and through the legal expertise of those members. Historians certainly cannot, however, separate sacred and profane in the case of the Mucian gens. Publius Mucius Scaevola, consul in 133 B.C., was the legal advisor of Tiberius 25 See MRR. I: 172-73, 252, 293-94, 319, 330, 405, for references to the ancient sources. 26 F. Schulz, Legal Science: at 36. Cf. id: at 10, 21 (for additional discussion about preservation of responsa).

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Gracchus and a pontifex maximus knowledgeable in pontifical law (ius pontificum). As previously noted, Publius’ son, Quintus Mucius Scaevola, succeeded him as pontiff and was the author of a systematic treatment of private law. Other members of the gens Mucia were also known both for their legal expertise and for exercising a prominent priesthood. I do not see how this evidence can support the broadly-held view that the same experts did not administer both Roman private and sacred law, nor the view that private and sacred laws did not continue to interact well into the late Republic. Cicero, who preserved our greatest source of information, did not confine or restrict the legal expertise of the pontifices. Pontifices knew the public law (ius civile) which once had been responsitum in penetralibus of the pontifical archives as well as the formulae for initiating legal action (leges actiones) and the calendar (fasti) which were also under their care, in the sense that the pontifices maintained the legal records, and recorded changes and interpretations.27 It seems entirely possible that the importance of the pontiffs in both Roman legal and historical traditions is the result of their expertise rather than either their religious position or the connection between law and religion. The pontiffs, for example, set-up the tabula dealbata, the daily publication of events written on whitened boards which had considerable practical value “not only for advertising moveable festivals and special ceremonies, but also for portents, prodigies, omens as well as triumphs, victories, disasters.”28 The priests once exclusively controlled and interpreted formulae, ceremonies, and rituals associated with sacrifices, with making treaties or war, as well as with related rules and a wide variety of other types of information. The pontifex also supervised the calendar, fasti, because of its value for recording and scheduling official religious and public events. Some fasti were eponymous lists of annual officials and sacred events which at least indirectly resulted from annual pontifical publications. Historians cannot reliably identify or distinguish the contents of pontifical annales, libri, tabulae, commentarii, or fasti, nor can they restrict the content to simply archane, religious, or “unpromising historical” materials.29 This is Livy’s description of the pontifical secrets. Livy 9.46.5. Ogilvie, JRS 71 (1981): 199, 200 (reviewing Frier, LAPM). 29 Frier, LAPM: at 83. Frier is helpful concerning the content of the various documents, but he is not consistent in his evaluation. 27 28

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Collecting and transmitting records were acts related to the desire to know about prior events so that an action could be imitated or avoided depending upon the circumstances. Pontifices kept the tradition, the practices of the ancestors (maiores), and their record keeping accounts for the importance of custom (mos maiorum) and of precedent in Roman society. Knowledge of rules, previous practices, and traditional procedures constituted the expertise of the pontifical college. Very early in Roman history such information was, to some extent, contained in books that formed part of the literature priests inherited, interpreted, and transmitted. In other words, religious expertise did not make the pontiffs important originally; writing and, by extension, record keeping did. Max Gluckman may be correct that the beginning of legal codification (or, as I prefer, record keeping) occurred simultaneously with the appearance of a trained bureaucracy−a bureaucracy that used writing as its raison d’etre.30 Romans may have seen writing as magic, possessed of a religious quality, an attitude which may account for the many examples of superstitious writings, charms, and similar materials. In time, the art of writing became so common that later members of the group constituting the original practitioners were no longer “religious officials,” although they retained original trappings from the time when earlier members alone knew the mystery. Only illiteracy made the pontifices’ expertise a secret monopoly, just as proliferation of literacy made them appear more secular and public. Historians may reasonably assume that the pontifices emerged as an official priesthood precisely because their writing and recording skills institutionalized their position and established their lifetime tenure in an office devoted to keeping records of the past because of the records’ contemporary importance. Pontiffs were the mind of the past, the men who knew what to do in any given circumstance because they possessed the record of what had been done and what had worked−or not worked−in the past. If the Romans had official records and official record keepers, why is there so much confusion and debate about the origins, nature, and reliability of early Roman historical and legal development? In the main, the controversy stems from the nature of the material and the method of preserving it. The Romans did 30

M. Gluckman, The Ideas in Barotse Jurisprudence (1972): 3.

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not have a systematic method of keeping records, legal, religious, or otherwise. Generally, records were available for all to see, if one knew where to find them. Pontifices maintained a general administrative supervision over such records and attempted to uphold traditional practices, but records were also located in various temples and were at times supervised by minor officials like scribes and aediles. Hereditary scribes in antiquity were specialists in the law and in writing, and some scribes in Rome were known as minores pontifices. Gnaeus Flavius, the first person to publish the ius civile, fasti, and leges actiones at the end of the third century B.C., was a scribe, minor pontifex, and a curule aedile−a keeper of records housed in temples (aedes).31 One tradition even credited aediles with publishing the original Twelve Tables.32 These temple record copies and collections existed independently of those in private archives. Some magistrates−the censor for example−used private records which contained legal information and documents we would normally consider public.33 The fundamental question about such records has always been whether they were reliable. Because some records were under the supervision of priests, were they essentially religious in nature? Does the large number of early Roman legal documents associated with a particular gens imply that an annalist fabricated the record to glorify the anncestral accomplishments of his family? Because priesthoods were hereditary and record keeping a responsibility of priests and their heirs, it follows that certain gentes actually played prominent roles in legal history. In addition, various laws that figure so importantly in Rome’s history were the work of known priests or men who were probably priests. Both the ius Papirianum and ius Flavianum were likely the product of priestly compilations of law, procedures, and related rules.34 Since such records were, 31 Aediles was presumably derived from aedes. A complete discussion of the information and importance of the aediles is contained in R. Ogilvie, Commentary: at 406, 503, 583. 32 Livy 3.55.13. 33 Dionysius of Halicarnassus, Roman Antiquities 1.74.4-5; cf. Mitchell, “Historical Development in Livy,” for additional information on private archives and records (n.b: reprinted above). 34 See F. Schulz, Legal Science: at 35, 89; cf. Watson, “Roman Private Law and The Leges Regiae,” JRS 62 (1972): 100, 103-04. Both authors present traditional interpretations.

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broadly speaking, both secular and sacred in nature, that they were also both public and private merely adds to the difficulty of distinguishing Roman legal from Roman religious history. Ancient authors researching Rome’s earliest history found that the wide variety of private and distinct archival material made their task difficult. Inconsistencies appeared in the description and chronology of events, and the use of terms, and nomenclature. Often, ancient historians found that the details of specific events were unclear, or that the existing details could not be placed in any historical context, or that the relationship between events was obscure. Many inconsistencies in detail may have been more apparent than real, because the Romans did not create and preserve the records just to facilitate a continuous, thorough, and accurate account of Rome’s development. Even the sequential and absolute chronological relationships between events were matters of little importance to the record keepers. Consequently, it is not surprising to find Livy questioning whether a person had been consul or dictator or military tribune at the time of his accomplishments, or whether an event occurred during the first or second tenure of the man in office.35 Similarly, a law attributed to a magistrate should, perhaps, more correctly be attributed to his work as priest. Although the different records may account for the seemingly large number of doublets in early Roman history, they do not resolve the problem of whether the first or second reference is authentic. Such problems may be the direct result of two records reporting events and persons in slightly different fashions: one calling the magistrate a consul and another referring to him as praetor or dictator. However; even a single and, presumably, reliable tradition might result from general acceptance of a single unreliable source: Augustus’s influence resulted in the acceptance of an erroneous view of A. Cornelius Cossus’s military exploits.36 Historians have long considered Rome’s legal records and its religious information among our most reliable types of information. Yet, Cicero knew of confusion about the floruit of Flavius, the predominance and the nature of his publication, and Livy 2.21, is representative. For the case of A. Cornelius Cossus and Augustus’ revision, see Livy 4.20; cf. R. Ogilvie, Commentary: at 563-64 (for additional information and discussion). Additional information associating priests with laws is presented in Mitchell, [supra, “Historical Traditions in Livy.”] 35 36

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even thought the pontiffs created the leges actiones to ensure their monopoly after Flavius published their secrets.37 There is no reason to believe that Cicero’s failure to get at the truth was the consequence of deliberate fabrication and misrepresentation, but in light of the confusion, it is easy to understand.38 The overwhelming tendency was to give structure and meaning to material by arbitrarily imposing an historical interpretation based upon the supposed conflict of the orders. Furthermore, later historians, grammarians, and legal experts and commentators debated the origins of countless terms, concepts, and developments. They attempted to fit the terms’ origins and definitions into preconceived assumptions of how the Republic developed and what the motivating characteristics of its history were. Commentators also tended to see institutions and practices as fully developed from their beginnings. Thus, commentators credited a fully developed comitia centuriata39 to King Servius Tullius although the comitia only obtained significance as an assembly during the Republic and doubtless underwent countless changes over the course of several centuries. The origin, content, and importance of the Twelve Tables Laws must be analyzed with this obvious misrepresentation in mind. The nineteenth century skeptics typically argued that “if the Twelve Tables rest on the decemvirate, the decemvirate on the Fasti, and the Fasti on the Annales, we can only say this towering structure rests on a foundation which is rotten to the core.”40 In contrast, scholars currently express widespread faith in the essential authenticity of the fasti and in the reliability of the annales. With that faith is a general acceptance of the outline of Roman historical and legal development by scholars who differ from one another only on whether to accept or reject specific details within the acceptable outline of events. Robert Ogilvie, for example, maintains that “the Cicero, pro Murena 11.25. On the question of outright fabrication, see Cornell, JRS 72 (1982): 203, 205-06 (reviewing T.P. Wiseman, Clio’s Cosmetics (1979). 39 The assembly (comitia) was drawn upon according to military formation (centuries) which elected chief magistrates (commanders) during the Republic. 40 Greenidge, “The Authenticity of the Twelve Tables,” Eng. Hist. Rev. 4 (1905): 77 (Greenidge’s article remains important, but is insufficiently skeptical). The decemvirate was a 10 man commission. 37 38

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outline account of the Decemvirate and the Twelve Tables as presented by the sources is. . . to be accepted in substance . . . . The precise details are more blurred.”41 However, the outline is the most unreliable part of the history. Precise details, on the other hand, are the backbone of historical and legal scholarship, although some appear unreliable because our sources have used them to serve the purposes of the alleged struggle, while modem scholars accept other details within the same erroneous context. We should first note how unusual and problematic codification of Roman law is. Nothing like it appeared for centuries; moreover, there is no evidence the laws were intended to be a complete code. No recognizable standard text of the law existed which means that Cicero must have accomplished his famous memorization of the code from a private copy. The code was not only incomplete and un-standardized, later additions, interpretations, and deletions changed the content; there is little hope of recovering the original content. Organizing the laws into tables is a modem creation, by and large, and later laws which updated earlier ones obscured the identity of the original and were erroneously considered part of the original codification. The Twelve Tables not only never constituted a code, but more importantly, the fragments offer no evidence that publication improved the plebeian state, although plebeian agitation against the arbitrary and unwritten law monopolized by the patricians spurred development of the Twelve Tables. Even the measure prohibiting intermarriage between patres and plebeians, which scholars commonly view as a reactionary aristocratic rule directed against plebeians, who actually won the right to have a code, concerns only the purity of the hereditary priests (patres) who had to marry by confarreatio.42 The Twelve Table rule on intercalation also concerned only the priests, and the entire code must have been composed from a wide variety of materials in their keeping. If Roman jurisprudence was in the hands of priests, then the decemviri, if reliable, were priests. The laws were records of their interpretations (responsa), and in some cases edicts (edicta), which were later categorized as laws (leges) and characterized as a code. Under the 41 R. Ogilvie, Commentary: at 452. For a full treatment and bibliography of Twelve Table problems, see id.: at 451-502. 42 A. Watson, Rome of the XII Tables (1975): 9-19, presents the traditional interpretation on marriage restrictions.

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circumstances, it is impossible to believe that the Romans publicly displayed the Twelve Table Laws in the mid-fifth century. Doubtless, some laws, procedures, and archaic materials from that period existed, were publicly displayed, and possibly preserved, at least in family archives. Roman pontiffs may have publicly displayed tabulae as early as the fifth century, but historians cannot be certain that any extant material emanates from that time because the law grew organically and went through several redactions that were added to the corpus as if part of the original. We can, however, call upon the Athenian parallel for enlightenment. By tradition, Solon did not abolish the earlier Athenian homicide law of Draco, but historians can be no more confident about the authenticity of Draco’s or Solon’s laws than they can about the Twelve Tables. All three laws are known only from much later copies. Consequently, one commentator doubts: whether the Athenians in 409 [B.C.] would have had any means of knowing if the old text, from which the new inscription was made, incorporated amendments made in the sixth or early fifth century; and it may be safer to admit that they did not really know (and consequently we do not know either) whether it was an unaltered text of Drakon’s law or not.43

Surprisingly, the same skepticism applies to Solon’s law code. Preserving laws, decrees, and important legal materials was haphazard in Athens and only late in the fifth century were attempts made to improve the process. New inscriptions of the identifiable laws were cut and the task, planned to take four months, took six years and resulted in complaints that new laws were inserted and old ones deleted. In truth, little positive evidence existed about the nature of early Athenian laws: “the Athenians in the fourth century ascribed all their homicide laws to Drakon, just as they ascribed the rest of their code to Solon.”44 At Rome, commentators also tended to ascribe to the Twelve Tables numerous laws that actually were later additions to the record. Interestingly, both Draco and Solon supposedly published their codes on four-sided or triangular wooden tablets and blocks, and 43 D. Macdowell, The Law in Classical Athens (1978): 42-3. For general information on the topic, see id.: at 41-48. 44 C. Hignett, A History of the Athenian Constitution (1958): 307.

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the later re-inscription of the codes on the walls of the Stoa Basileios was accompanied by a calendar that “was not exactly part of the legal code, but the decision to re-inscribe it was evidently another result of the general desire to have a clear and accessible statement of all official rules.”45 Similarly at Rome, Flavius published not only the ius civile and leges actiones, but the fasti as well. Contemporaries claimed that Flavius revealed the secrets of the pontiffs, although their secrets had supposedly been published in 449, destroyed and republished again after 390 B.C.46 Since no official text of the code ever existed, what Flavius published, perhaps, was the basis on which individuals could initiate litigation (leges actiones), as well as when they were permitted to bring suit (fasti). In effect, Flavius published an edict, although it may not have been called such. When even partial publication occurred, it did not necessarily mean codification, although the two could be confused. Commentators mistakenly described the accumulated publications and successive redactions of law and procedures, to say nothing of the collected fasti material as codification, and often identified the individual reactions as the initial publication. Nevertheless, despite the limited effect secular influences had on the original nature of the extant Twelve Tables material, scholars attempt to draw conclusions from the fragments−a demonstrably mostly collection of materials from different periods−about the general nature of Roman legal history. Supposedly, the code “seldom strayed from the realm of private, civil law: the details of procedure, family law, succession, and delict. Constitutional law was virtually ignored; sacred law (except for sumptuary provisions on funerals) was also avoided.”47 In the words of one introduction to Roman legal history, “the compilation as a whole is secular in character, and it is an indication of the legal genius of the Romans that they were able, at so early a stage in their development, to separate law so completely from religion.”48 Or in the words of an introduction to Roman history, the “small community of peasant-proprietors had established a body of law which found its sanction not in the authority of a D. MacDowell, supra note 43: at 48. MRR I: at 168. 47 Frier, LAPM: at 131. For a discussion of the ancient tradition concerning the Twelve Tables, see id.: at 129-35. 48 H. Jolowicz, Historical Introduction: 109 and generally id.: 108-13. 45 46

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divine or human lawgiver, but in a sense of justice and equity which was inherent in the peculiar genius of the Latin race.”49 In still other words, “the Romans drew a clear distinction between law and morality,” just as “[r]eligion and law were also kept apart. Religious sanctions were one thing, legal sanctions another.”50 The aforementioned views are common despite the fact that “the history of Roman jurisprudence begins with the pontifices,”51 who were not only the first but for much of the Republic the only specialists in the law. Scholars have rationalized the pontifical monopoly of the law by using a variety of plausible explanations. Schulz’s view is that “private law consisted primarily of the law of the family and of inheritance, and that this was ‘a branch of law adjoining pontifical law,’ it being of decisive importance for the purposes of family cult (sacra privata) to know who were members of the family and who was heres.”52 In other words, Schulz asserts that the pontiffs merely extended their original concern for private, family law into all private law concerns which sprang from it. Other commentators are not convinced of the wisdom of this interpretation and insist that pontiffs probably obtained their monopoly as a direct consequence of the original connection between legal and religious concepts. Presumably, “with the Romans, as with all peoples, law and religion were not originally differentiated, and. . . primitive societies, including the archaic Roman, did not deal in abstractions, but in literal concepts.”53 The pontiffs possessed the necessary technical information about acting and speaking precisely. In addition, they were very like community magicians who controlled the calendar and regulated affairs between men in the same fashion that they supervised relations between men and gods (ius sacrum). Moreover, priests influenced the development of oral forms and were experts in the set written formulae of words that had to be strictly adhered to in matters of prayer and ceremony, as well as in litigation. Max Kaser, for example, states that “[e]arly Roman law together with other early legal systems shared the H. Scullard, Roman World: 374. A. Watson, supra 6, note 1. 51 W. Kunkel, Introduction: 951. 52 F. Schulz, Legal Science: at 8 (footnotes omitted). 53 Cook, CR 66 (1975): 25, in a critical review of H. Jolowicz Historical Introduction: (In which see especially pages 89 and 158). 49 50

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conviction that legal bonds would be created only by acting in a formal (ritual) manner.”54 Primitive man manifested his intentions by specific actions, and Roman law furthered these manifestations because “the administration of law was, in ancient times, in the hands of the priests who were familiar with ritual acts because such acts occurred in the divine service.”55 Use of the formal act, symbol, or word to initiate litigation survived into later law, and explains the ritual touch with the hand (mancipatio), or with the wand (vindicatio), or acts performed with coin and scales (aes et libram). Thus “ritual had created law,”56 and pontifices monopolized the details and application of such rituals. Whether the original legal importance of the pontiffs was based upon their association with the earliest private, family law or was a consequence of their control of legal procedure may be beside the point. Establishing procedure was the first stage in legal development and preceded the creation of substantive law. I contend that one of the reasons for the ritualized nature of the leges actiones was that precise words and deeds compelled action by the pontiffs. Small errors in the ritual, however, did not necessarily result in the court throwing out the issue because the procedure was imposed not to impede justice but to establish jurisdiction. Therein lies the true importance of the pontifices as the possessors of the collective wisdom of the ages. Max Gluckman, writing about a parallel development, noted that if “two persons in discrete political groups came into dispute they took an oath by the name of the chief under whose common authority they both fell, and this empowered him with authority to inquire into who was the ritual offender and incidentally give judgment on the substantive issue.”57 The practice is comparable to the legis actio sacramento, the oldest and most widely used action known in Roman law.58 Roman pontiffs, as judicial specialists, must have developed the various legal procedures as means of initiating 54 M. Kaser, Roman Private Law, R. Dannenbring trans. (1968): 34 (emphasis in original). 55 id. 56 L. Gernet, The Anthropology of Ancient Greece 143, J. Hamilton & B. Nagy trans. (1981). The entire chapter on law and prelaw is valuable, id: at 143-215. 57 M. Gluckman, supra note 30: at 3. 58 M. Kaser, supra note 54: at 335-38 (81.II)

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litigation. The use of the legis actio sacramento, for example, is so clearly religious that scholars long ago thought that pontiffs must have supervised all actions by sacramentum.59 Actually, the various laws dealing with provocatio probably are concerned primarily with the creation of legal procedure. As part of the struggle of the orders, scholars have interpreted provocatio as the right to appeal magisterial sentences, but no evidence of such an appeal process exists outside of procedure involving pontifices.60 Provocatio also means “challenge,” and various measures permitting challenges, or litigation, were quite properly the work of priests and recorded in archives that preserved the record of such measures. In the case of provocatio, historians and jurists have confused the establishment of jurisdiction with the right to appeal capital sentences. This confusion accounts for the total lack of evidence that this fundamental protection won by the plebs was ever used. Perhaps behind the provocatio sacramento lay an appeal to the gods to judge the claim and counter-claim based upon an ordeal. The contest, however, soon involved an oath, sacramentum, sworn to the merit of one’s case, which in turn gave way to a monetary payment in the form of a wager on the justice of one’s suit. The guilty party was the one who lost the ordeal, committed perjury, or lost his wager because his suit was unjust (injustum).61 Since there is little evidence the state took an active role in punishing individuals guilty of infractions of the civil law, it is assumed that execution of a sentence was the responsibility of the victorious party.62 However, if priests controlled the judicial process some form of religious sanction can be expected. In both the Twelve Tables and the lex Valeria de provocatione of 300 B.C., we find improbum mentioned as a sanction. Although scholars see improbum as a kind of censure or rebuke without much punitive power, it is probably 59 For a valuable, but too little used source, see I. R. von Jherlng, Geist des römischen Rechts 298 (n.d.). Cf. Schulz, Legal Science, supra note 11: at 21; H. Jolowicz, Hisotorical Introduction: at 88-97 (for more common interpretations which attempt to discredit the religious elements in the law and legal procedure). 60 A. Jones, The Criminal Courts of the Roman Republic and Principate (1972): 10; cf. Mitchell, “Hisorical Development in Livy,” for a discussion of the three Valerian laws on provocatio and additional bibliography. 61 M. Kaser, supra note 54: at 336-37. 62 J.M. Kelly, Roman Litigation (1966): 1-30.

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equivalent to public damnation.63 As previously noted, the Romans associated pontiffs with bridges: the sacramentum was laid before the bridge,64 bridges were frontiers beyond which guilty persons were condemned, and pontiffs may well have passed sentence expelling individuals beyond the city, or trans Tiberim in the words of the Twelve Tables.65 Establishing jurisdiction for any other official in early Roman society is difficult. The authority of magistrates was severely limited within the city, and only the plebeian tribunes exercised any real judicial authority within the walls. The tribunes’ concern was primarily for the public interest and particularly for adjudicating disputes over the fulfillment of a citizen’s responsibilities to the state. Commentators have argued that pontifical judicial competence was limited to those persons−priests and priestesses−under the pontifices’ control and supervision.66 Nevertheless, we have examples where the pontiffs imposed fines and brought to trial private, secular individuals who refused to obey their orders. Pontiffs clearly had authority over some nonreligious persons, and we have other examples which show a reduction in the influence religion once had over secular functions of the state.67 The late and composite nature of our evidence makes legal practices in the early period difficult to trace. Pontiffs continued to influence private law, but their control over judicial procedure as exercised through their monopoly of the rigid procedural formulae−the leges actiones−was supposedly reduced. General surveys of Roman legal developments often mention the increased demands for greater secularization and flexibility in the legal process that correspondingly decreased pontifical administration and supervision of the law. For example, not only did the publication of the Twelve Tables (449 B.C.) supposedly weaken the priests’ and patricians’ hold over the law, 63 For the laws, see Gellius, Attic Nights 15.13.11; Livy 10.9.3-6. an interpretation of improhum is presented in C.W. Westrup, Introduction to Early Roman Law (1939) pt. 1: 171-72. 64 Varro, de Lingua Latina 5.180. 65 Gellius, Attic Nights 20.1.46-7. for a convenient collection of Roman laws, see Riccobono, FIRA. 66 F. Schulz, Legal Science, supra note II: at 18, 21. 67 Mitchell, in SSAR (presents the important information).

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but the introduction of the praetorship (366 B.C.) also lessened their supervision. Finally, Gnaeus Flavius’s publication of the leges actiones, fasti, and the ius civile (304 B.C.) revealed all the pontiffs’ secrets and spelled the beginning of the end for the pontifical monopoly of law and procedure. This decline was the consequence of an “age-long movement leading the ius from the formal rigidity of the Twelve Tables to a flexible adaptation to life.”68 The reference to flexible adaptation means the introduction of the formulary system, whereby use of an expedient formulae which the praetors developed, usually with the aid of the jurisconsults who were increasingly private, secular, specialists, made litigation easier. The new formulae supposedly did not depend upon the ritual precision of the pontifical words and deeds.69 When examined closely, however, none of the aforementioned can be shown to have affected the pontifical role in Roman legal developments. Publication of the law, if that is what happened, did not alter its administration or enforcement. Roman private law resulted from and was influenced by the pronouncements of priests and magistrates, ius honorarium, including annual edicts which publicly presented details on how one could proceed at law under the current administration. Presumably, by the end of the third century B.C., litigation no longer depended upon the cumbersome formalism of the leges actiones, which gave way to the praetor’s edict designed “to aid, supplement, and correct” the civil law.70 Legal scholars consider the first praetorian edicts general in nature, designed to assist litigants in their attempt to gain justice against the will of those contemptuous of the law. Some assert that the praetor did not promise action by his edict, but merely gave instructions on how litigants should proceed. However, in due course, the praetor was the judicial administrator in charge both of the courts and of 68 Because this is so very nearly the unanimous interpretation, I took the liberty of selecting a romantic version. A. Garzetti, From Tiberius to the Antonines, J. Foster trans. (1974): 408. 69 Compare Kelly, “The Growth Pattern of the Praetorian Edict,” IR. Jurist 1 (1966): 341 with Watson, “The Development of the Praetor’s Edict,” JRS 60 (1970): 105. Both authors give insufficient attention to the pontifical precedents. 70 H. Jolowicz Historical Introductions: at 100, referring to Papinian D.1.1.7.1. Cf. A. Watson, Law Making in the Later Roman Republic (1974): 31.

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initiating legal actions. Although he had considerable leeway in interpreting existing procedures, as well as in granting new actions, it is inconceivable that he could have denied action to those who sought it without just cause. Scholars cannot cite the first appearance of the praetor in 366 B.C. as an indication of the decline in the pontifices’ juristic importance. The first praetors, including the first praetor peregrinus, actually had nothing to do with a change in the administration of Roman law. The first praetors were prominent aristocrats who frequently held the praetorship after the consulship: until 242 B.C. the single praetorship was more difficult to obtain. Even after several annual praetor positions were established, late in the third century B.C., praetors were initially employed in military commands.71 Military needs, especially of the Second Punic War, not legal administration, resulted in the appearance and then increase in the number of magistrates. Only in the second century B.C., after the demands of war subsided, did Rome map out spheres of legal influence for the praetors. Accordingly, the praetor’s original juristic importance is based upon the judicial role he later played. Flavius’s publications were nothing more than an early redaction of legal materials upon which scholars placed an erroneous and confused historical interpretation. More significantly, regarding questions of pontifical ritual versus praetorian expediency, no evidence exists that the pontiffs maintained static judicial practices. They were not charged with transmitting unaltered law or procedure. The Twelve Tables, for example, contain a provision recognizing the need for changes, and pontiffs were actually the ones most responsible for changes in sacred, private, and public law for much of the Republic.72 They permitted changes, incorporated them into the records, and eventually published them. As late as the first century, Cicero still complained about the manner in which traditional religious duties were altered by pontiffs by means of their interpretation of the private law.73 I must make a final point about the debate over lex and MRR I: at 240, nn.3, 4 & passim. Livy 7.17.12. cf. Mitchell, “Historical Development,”(the law is explained in greater detail). 73 Cicero, de Legibus 2.52, 2.47. 71 72

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plebiscitum because it bears directly upon records, priests, and the conflict of the orders. Modem scholars who attempt to establish a systematic, consistent approach to Roman history and legal development fail to appreciate how and why the details were preserved. Distinctions between lex and plebiscitum are based upon the assumption that the plebs could not legislate without restriction until after the lex Hortensia of 287 B.C. Yet, our sources used leges and plebiscita interchangeably and were not consistent in their use of comitia or concilium. Furthermore, most of the “reliable” legislation passed prior to the lex Hortensia was in the form of plebiscites, while the leges, presumably passed by either the comitia centuriata or the comitia tributa, are among the most suspect pieces of legislation of the time. Watson, for example, recognizes that Roman private law was created either by the comitia tributa, or by the concilium plebis, and especially by the latter “for some unknown reason.”74 Because he believes that plebs could not legislate without restriction before 287 B.C., Watson also asserts that the earlier leges named after plebeian tribunes received patrum auctoritas, although these laws secured the victory of the plebs over the patres.75 The ancient tradition, however, does not clearly hold that the plebs could not legislate without patrum auctoritas. In fact, patrum auctoritas itself is a matter of dispute. The patres technically were hereditary priests, lifetime members of the Senate, who gave their auctoritas to those measures proposed for comitia consideration which they considered in keeping with the traditional practices of the ancestors−mos maiorum.76 These hereditary priests were the experts on traditional behavior. What then of the measures, by tradition passed three times, which granted the plebeians the right to pass legislation binding upon the entire state? The Twelve Tables preserved the general principle that the last measure enacted on a subject was the operative law. Later measures replaced earlier ones to the extent they concerned the same subject. The laws passed in 449, 339, and 287 B.C. were declared to be the new law of the land−the latest law on the subject. Any example would do, 74 A. Watson, Law Making, at 6. compare id. at 6-20 with Watson, “Praetor’s Edict,” at 118 (where the author deals with a similar difficulty in distinguishing lex from edictum). 75 A. Watson, Law Making, at 6-20 (especially 18 n.4). 76 For a thorough discussion, see Mitchell, in SSAR.

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but I consider the lex Hortensia77 because it supposedly ended the struggle. The law actually declared that market days, which had been religious holidays, were now days on which one could conduct legal business. This law was now binding upon Roman citizens. The law was named after an otherwise unknown dictator, Hortensius, who was probably a priest who changed the nature of market days by his own edict rather than by comitia legislation.78 In time, commentators interpreted the nature of this change as both a measure passed by the assembly and as part of the conflict. The reform conforms to the priests’ control over the calendar and their interest in determining which days were fas, legal business days, and nefas, religious holidays and therefore not open to business−legal, public, or otherwise. In conclusion, the Romans had authentic, reliable records about their early development. These records were fundamentally religious and legal in nature and were in the possession of priests. When the Romans began to write about their past, the collected and preserved records transmitted from one generation to the next became the details of the erroneous account of the struggle between patricians and plebeians. Examining both the legal and religious details outside the context of the struggle reveals precisely what kind of society they reflect. The task awaits students of both history and law.

MRR I: at 185-86 (presents the ancient testimony). For a more detailed treatment, see Mitchell, “Historical Development in Livy.” 77 78

THE HISTORICAL AND HISTORIOGRAPHICAL PROMINENCE OF THE PYRRHIC WAR Timaeus of Sicily, writing in the first half of the third century, was the first to treat Rome as an historical subject in any detail. Most of what we know about Rome’s contest with Pyrrhus would seem to be derived from Timaeus’ coverage of that topic. In addition, we know that Polybius, our most important source for Rome’s contests with Carthage, relied substantially on Timaeus for his prelude to those events. Coincidentally, many of the assumptions Mitchell seeks to challenge have their roots in the period treated by Timaeus. In this critical argument, Mitchell argues that Timaeus’ interpretations and his influence on the later historians of Rome have fostered lasting but false impressions of Rome’s history for the period preceding Pyrrhus’ arrival in Italy.* According to Plutarch, as Pyrrhus left Sicily he murmured that he was leaving behind quite a battlefield over which the Romans and the Carthaginians would fight.1 Pyrrhus was only the first who was certain of the eventuality of war: our ancient sources generally saw the Punic War as the inevitable consequence of *Originally published in The Craft of the Ancient Historian: Essays in honor of Chester G. Starr, J.W. Eadie and J. Ober, eds. (Lanham, 1985): 303-330. The text is as originally presented. Some modification of the notes has been undertaken for overall consistency. 1

Plutarch, Pyrrhus, 23.6.

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Pyrrhus’ defeat, and, followed by modern writers, they helped make the Pyrrhic War historiographically the most important in Rome’s history. The war has mesmerized art historians, literary critics, archaeologists, and numismatists, to say nothing of ancient historians. It seems fitting to consider such a wide variety of socioeconomic, cultural, political, and historiographical questions in an essay honoring Chester G. Starr, whose scholarly interests range over more fields and periods of time than most of us feel confident or comfortable in exploring. This essay must stand as my offering to a friend whose own works dig deep and range far afield, and his example inspires my own attempt to scratch the surface of the rich veins of material concerning this narrow topic. Traditionally Roman Republican history has been divided into two phases: Rome’s conquest of the peninsula and the period of her Mediterranean expansion. The Pyrrhic War forms the link between the two, and Rome’s involvement with the Hellenistic prince in South Italy has been seen as the bridge over which Romans eventually crossed to Sicily and hence to Mediterranean empire. In this essay I want to investigate the ways in which the war is considered either the result of certain developments which dramatically changed the nature and course of Roman history or the event which caused those changes. Specifically, did the Pyrrhic War awaken Rome to either the responsibility or the necessity of Italian hegemony, to the blessings of Hellenistic culture −including the value of a more sophisticated commercial economic policy, and to the dangers of the Punic presence in Sicily? I also want to draw attention to the tradition which saw the Pyrrhic War as the dividing line in Roman moral development, contrasting the private and public morality of the period before Rome embarked upon overseas expansion with that of the period following. We are all familiar with the ancient testimony that linked Rome’s imperial expansion with her moral decline, but we have concentrated less attention on the tradition that portrayed her rise to peninsular empire as the consequence of her moral superiority. My purpose is not to add to the admirable literary material already available on the question of when our various ancient sources dated or began to discuss Rome’s fall from grace,2 but to add other dimensions to the 2 On the theme of decline see D.C. Earl, The Political Thought of Sallust (Cambridge, 1961): esp. 4lff., on “the moral crisis in Sallust’s view”; A. Lintott, “Imperial expansion and moral decline in the Roman

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discussion, namely, to show that the modern analysis of the Pyrrhic War as the pivotal event in the cultural, economic, and administrative transformation of Roman practices is the direct result of repeating ancient preconceptions concerning Rome’s historical growth and development and has not given sufficient consideration to either the historiographical origins of the preconceptions or their overall historical merit. Consequently, since the Pyrrhic War has become the terminus post quem for so much of Roman historical development, any valid criticism of the historiographical assumptions upon which the terminus is based may result in changes in the current historical description.3 Finally, my purpose is to show the extent to which Polybius’ history reflected those preconceptions and suggest that many features can be traced back to Timaeus whose work Polybius continued.4 The Republic,” Historia 21 (1972): 626ff.; F. Walbank, Polybius (Berkeley, 1972): 27ff., l70ff.; and T.J. Luce, Livy: The Composition of his History (Princeton, 1977): esp. 230ff., on “the Roman national character and historical change,” and 250ff. In all the above, too little attention is given to the possible influence of Timaeus on the Roman views of moral decline found in Cato, Piso, Polybius, Sallust, and Livy. This is not unexpected since work on the influence of Timaeus on Cato is of recent vintage (cf. A. Astin, Cato the Censor [Oxford, 1978]: 228ff.). 3 Much of the difficulty is the direct result of Livy’s absence after 292 B.C., coupled with the existence of a considerable body of Greek material on Pyrrhus who doubtless was the direct result of Timaeus’ focus upon him. As a consequence, undated and debated developments frequently collect at the dividing line between Italian and the imperial phases of Rome’s historical growth; that is, the transition from the simple, underdeveloped, and regional period to the more sophisticated and broader horizons of the Mediterranean phase. The trend is even found in collections of materials which otherwise ought to have the opposite result: cf. F. Coarelli, comp. Roma Medio-Reubblicana. Aspetti culturali di Roma e e Lazio nel secoli IVe III a C. (Rome, 1973); and M.R. Torelli, Rerum Romanarum Fontes a anno CCXCII ad annum CCLXV A. Ch. N. (Pisa, 1978); but Chester G. Starr has provided a corrective in The Beginnings of Imperial Rome: Rome in the Mid-Republic. (Ann Arbor., 1980). 4 Polybius, 1.5.1; 39.8 On all matters relating to Polybius and Timaeus consult F.W. Walbank, A Historical Commentary on Polybius, I-III (Oxford, 1957, 1967, 1979); and Walbank, Polybius. Walbank’s discussions of Timaeus’ importance and Polybius’ changed attitude toward him are preferable to those of K. Sacks, Polybius on the Writing of History (Berkeley, 1981): esp. 21 ff.

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reasons for placing emphasis upon Polybius’ narrative are obvious. Although Polybius is brief and summary in his treatment of Roman historical development before the Second Punic War, he is considered our best source.5 However, it does not necessarily follow that he is a reliable one. A “Gresham’s Law of historical traditions” may well have operated, resulting in the most consistent, but unreliable, schematic tradition driving out seemingly unrelated but reliable pieces of historical material. While it is forgivable for Polybius (or Livy) to write schematic history, modern scholars ought to be more aware of the extent to which the scheme dictated the substance.6 Unlike his predecessors and contemporaries, whose narratives concentrated on too many isolated and irrelevant details, Polybius prided himself on being able to see the big picture. He defended his work against criticism that it was too long and involved by suggesting that other works gave too much attention to a narrative of events without proper focus. Polybius examined what preceded, what accompanied, and what followed the events in order to understand their significance. Thus his summary of events leading up to his principal topic, the Second Punic War, was only a record of those events that contributed directly to the ultimate result; Roman dominion. As Frank Walbank suggests, Polybius presented a world view because he saw how participants and events all over the world tended to bring about Rome’s growth to ecumenical power in the space of only fifty-three years—a period that began with the l40th Olympiad in 220 B. C. ended in 167 B.C. with the Roman victory at Pydna.7 For example, J.F. Lazenby, Hannibal’s War: A Military History of the Second Punic War (Warminster, 1978), who says that “it is usually very difficult to argue that he is wrong.” E. Badian has not changed his faith in Polybius’ account over that found in the tradition found in Philinus (cf. FC: esp. 34f.; and “Two Polybian Treaties,” Miscellanea in onore di Eugenio Manni (Rome, 1979): 11f., although it is safe to say that most historians have. 6 Of interest here is a recent comparison of Herodotus and Thucydides, with the palm to Herodotus, by C. Starr, The Flawed Mirror (Lawrence, 1983). 7 Of particular importance are Polybius, 1.1-6; -5, 32; 4.1-2; and Walbank, Commentary I: 9, 22f., 25ff.; and Walbank, Polybius: 5, 103ff., 161ff. 5

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Polybius selected the l40th Olympiad as an indication of his world view and as an example of how events all over the world tended toward the same result. One event led to the next. Philip V of Macedonia, Antiochus III of Syria, and Ptolemy IV Philopater of Egypt, as well as Hannibal−all had come to power recently. Hannibal began the siege of Saguntum in 220 B.C., leading to the Punic War, which in turn which led to the war with Philip; and the Syrian War with Antiochus stemmed from the Macedonian War. Similarly, the war with Hannibal was a direct consequence of the war over Sicily. Intervening events, however numerous, varied, and seemingly independent, conspired to the same purpose. Polybius’ outline of earlier events followed the same logic: Roman successs in Italy led to the confrontation with Pyrrhus, which led to the First Punic War, which in turn ultimately led to world dominion. The details of Polybius’ outline are events which contributed to the final result. Polybius said that once Rome defeated the Etruscans, Samnites, and Celts she began to treat all Italy as her own possession.8 The clear implication is that the Pyrrhic War was the inevitable consequence of Rome’s steady growth: Pyrrhus was summoned because Tarentum feared Roman reprisal for the insolent act committed against the Roman envoy who came to protest both the Tarentine assault on the Roman garrison at Thurii and the attack on the Roman fleet stationed nearby. After Rome dealt with Pyrrhus, defeating his former allies and gaining possession of virtually all Italy, she turned her attention to the problem of her Campanian allies who had control of Rhegium. Consequently, Rome’s involvement in Rhegium, both geographically and causally, brought her into Sicilian affairs when she granted assistance to the Mamertines, the Campanian mercenaries who had taken control of Messana across the straits from Rhegium. Such a chain reaction of events omits vital details, but Polybius’ purpose and ultimate focus are clear. For example, when he mentioned that the citizens of Rhegium asked for the Roman garrison because of their fear of Pyrrhus, he added, to emphasize the causal relationship between events, the fact that the garrison was also introduced to protect the city from the 8 Polybius, 1.6.6.; cf. Livy, 7.29.1-2. Commentary I: 46ff., stresses Timaeus’ importance as a source for the earlier period and his use and Polybius’ of synchronism.

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Carthaginian fleet.9 The conflation of motives anticipated the future conflict with Carthage, but the outline and interpretation of event does little credit to Polybius’ reputation as our best source. For Polybius, events in outline invariably are linked together causally. Historiographically, the arrival of Pyrrhus served both as the terminus for Roman developments and as the motive for Roman actions. The common portrayal of events made the Epirot prince a mercenary adventurer and opportunist who did not understand the youthful vigor of the Roman troops or the regal nature of Rome’s aristocratic leadership, but who made the Romans more aware of the dangers from other parts of the peninsula. However, considering Rome’s earlier extensive activities in the far south, including her fourth-century war with Tarentum and Cleonymus −to say nothing of earlier Roman contacts with Magna Graecia and her peaceful relations Carthage−it must be concluded that Pyrrhus was responding to the growth of Rome, rather than Rome responding to the threat from the south.10 Certainly the Roman garrisons were introduced into the cities of South Italy before Pyrrhus was called to assist Tarentum.11 In fact, much of the military activity in the 280s was aimed at further weakening Samnite, Lucanian, Gallic, and other enemies who had long been at the center of Roman concerns.12 In other words, although our sources saw Pyrrhus as the major figure in the conflict, such activity may well have been part of what E.T. Salmon calls the Fourth Samnite War13 and originally not part of a Pyrrhic Polybius, 1.7.6. See Filippo Casola, I gruppi politici romani nel III secolo a.C. (Trieste, 1962): esp. 25ff., 38ff., for background, discussion, and bibliography. I have dealt with the problem elsewhere; see R.E. Mitchell, “Romana-Carthaginian Treaties,” (n.b. reprinted above). 11 MRR I: 187 shows C. Aelius (plebeian tribune) honored by Thurii in 285 B.C., but note C. Aelius (consul) in 286 B.C. Cassola, I gruppi: 159ff., has complete references. 12 Livy, 8.23.9. Cf. T. Mommsen, History of Rome (New York, 1875): 437ff., for an interesting pro-Samnite interpretation. 13 E.T. Salmon, Samnium and the Samnites: 284., and see 400ff. for another essentially pro-Samnite presentation. However, it was after the Pyrrhic War the Samnite League clearly ceased to exist.” Badian, FC: 30, suggests that Rome had once “seemed the champion of the small peoples against the aggressive Samnite Confederacy.” 9

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confrontation at all. Even though Rome had earlier contacts with Greek peoples and had exhibited Hellenic influences even under Etruscan rule, generally our sources assumed that Rome remained pristine and pure at least through the third century. Building upon the ancient assumption concerning Roman devolution, modern scholars have argued that after a promising start it was only in the late fourth and early third century that Rome began to show marked changes, with the Pyrrhic War seen as the dividing line. In some instances, the search for the origins of those changes may properly settle upon the Pyrrhic period. Yet an obvious paradox is often found in modern analysis of Roman historical development in that, although “from very early times Rome had been washed by the tides of Greek culture” and had “shown herself receptive to Greek ideas,” nevertheless the Pyrrhic War served as the turning point which brought Rome into “continuous and close relations with Greece,” and only then did she begin “to drink deeply from the springs of Hellenic culture.”14 Conversely, only then did the Greek world begin to take notice of Rome. A recent example of this thesis is Michael Crawford’s depiction of Pyrrhus as Rome’s first antagonist from the “civilized” core of the Mediterranean world, whose defeat caused the “civilized” world to take notice of Rome, “even if Rome remained unconscious of the significance of what she had achieved.”15 Crawford’s thesis is an interesting derivative hypothesis which attempts to explain the Republic’s growth and development in a fashion which will lend support to his contention concerning the Pyrrhic origin of Rome’s first silver coins.16 For Crawford, when Rome was “led to intervention outside Italy for the first time” in 264 B.C.,17 the statement carries the same implication as one concerning the loss of virginity: before 264 B.C. Rome was pure but after was a fallen state. Moreover, Crawford uses the step-by-step approach to historical change, focusing on turning points and “firsts,” which our sources found R.M. Ogilvie, Roman Literature and Society (New York, 1980): 18f, and 68. Cf. B. Gentili, Theatrical Performances in the Ancient World. Hellenistic and early Roman Theatre (Amsterdam, 1971): 91f. 15 M. Crawford, The Roman Republic (Glasgow, 1978): 15. 16 M. Crawford, Roman Republic Coins (Cambridge, 1974): esp. I, 42ff. 17 Crawford, The Roman Republic: 54. 14

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fashionable. For example, Fabius Pictor evidently thought Rome first realized her great wealth when the Sabines were conquered, but we do not know when he saw their final defeat.18 Livy dated Rome’s first use of silver coins to 269/8 B.C., and also referred to the first time Roman equestrians crossed the sea to fight in 264 B.C., and to the first gladiatorial show soon afterwards.19 The importance of events is not always clear, but the catalogue of firsts is endless. Roman “firsts” were certainly a feature of Polybius’ narrative, and such a schematic feature should be stressed more than it is by modern scholars who want to assess his historical value. For example, according to Polybius Rome first treated Italy as her own possession immediately before the Pyrrhic War, which brought Rome to the edge of the peninsula, facing Sicily, and resulted in crossing the sea for the first time. After the city of Agrigentum fell to Roman troops in 262 B.C., Rome first began to think of taking the entire island, and for this purpose Rome built her first fleet of ships. Another important first reported by Polybius is Hannibal’s defeat which resulted in Rome’s conceiving for the first time the ambition to rule the world, although elsewhere Polybius mentioned that the first step in that direction was with the war against Hannibal.20 Other historians, both ancient and modern, do not present drastically different outlines of Roman historical development. To cite Florus as an ancient example, Rome had no sooner completed the conquests of Italy than she began to desire triumphs beyond the shores of Italy.21 The modern views of T.A. Dorey and D.R. Dudley are similar: “It was the war with Pyrrhus that brought home to the Romans the importance of Sicily to their security.22 In other words, the most immediate consequence the conflict with Pyrrhus was the Roman domination of the peninsula−the logical and inevitable termination of a sequence of events which ultimately left Rome burning on the shores of the

Strabo, 5.3.1 (228) = Peter, HRR 1., frag. 20. Livy, Periocha, 15; 16. 20 Examples are found in Polybius, 1.3, 5, 6, 20, 3.2, and 32; note Walbank’s discussion, Commentary: 42ff., and 298f. 21 Florus, 1.13.1. 22 T.A. Dorey and D.R. Rome against Carthage (London, 1971): xv. 18 19

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peninsula like a fire stopped temporarily at the river’s edge.23 Rome sought domination of the peninsula because, in Tenney Frank’s terms, the Pyrrhic “War taught Rome a lesson with unmistakable emphasis. The Samnites and Lucanians could not be reckoned with unless the Greek cities beyond were considered and the Greek cities could not be controlled so long their harbors were open to receive mercenaries from Greece.”24 Arguing along the same lines, H.H. Scullard assumes that once Pyrrhus left Italy, Rome began to pacify and organize the entire peninsula, and the fate of the Italian Greeks was sealed. The Pyrrhic War demonstrated the “rock-hard” solidarity of the Roman confederacy,25 and the new MagnaGraecian members, unlike the Italians, would supply ships, not men, to the confederate cause. These shipbuilders and sailors are normally depicted as exceptions to the Roman/Italian yeoman citizenry, who presumably avoided the sea and city as they would the plague, lest they end up like Greeks and Carthaginians. Indeed, Jacques Heurgon echoes the Roman preconceptions: “The Romans unlike the Italiote Greeks, who lacked moral fibre, had shown an unflinching tenacity, mounted superhuman war effort, learned from their foe the means to defeat him, adopted his camps as the model for their own, invented chariots to fight against his elephants. When the trial was over, Graecia was to be once and for all subject to Rome.”26 Paradoxically, although the Pyrrhic War was Rome’s finest hours, it was also the event which introduced Rome to exotic riches. Florus may be forgiven his rhetoric, but his thoughts are not atypical of either our ancient sources or modern analysis: Scarcely ever did a fairer or more glorious triumph enter the city. Florus, 1.18.2 T. Frank Roman Imperialism (New York, 1925): 64. 25 H.H. Scullard, Roman World: 144. 26 Jacques Heurgon, The Rise of Rome to 264 B.C. (Berkeley, Calif., 1973). See Dionysius of Halicarnassus, 20.1.6f., for the chariot story. There are too many examples of Roman adoption/adaptation to cite completely: the Punic ship and the Roman corvus are the best-known examples (see Walbank, Commentary I: 75). On the Pyrrhic origins of the Roman camp, see Frontinus, Stratagems, 4.1.14, cf. 2.2.1; and Polybius, 6.27-42 (note Walbank, Commentary I: 709ff., for discussion and bibliography). 23 24

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Up to that time the only spoils which you could have seen were the cattle of the Volscians, the flocks of the Sabines, the wagons of the Gauls, the broken arms of the Samnites; now if you looked at captives, there were Molossians, Thessalians, Macedonians, Bruttians, Apulians, and Lucanians! If you looked upon the procession, you saw gold, statues, pictures, and all the luxury of Tarentum. But upon nothing did the Roman people look with greater pleasure than upon those huge beasts, which they had feared so much, with towers upon their backs, now following the horses which had vanquished them with heads bowed low not wholly unconscious that they were prisoners. 27

(I like to think that elephants never forget and that an elderly Syrus later made his way into Italy carrying Hannibal. Hannibal was very like an elephant himself in that he never forgot the injustice of the Romans at the end of the first Punic War and his own youthful oath to avenge the injury.)28 Reflecting the same paradox, E. Stuart Staveley states the crucial question: “Was...[Rome] at all costs to preserve her essential agrarian economy, or was she to implement changes in her social structure, economy and constitution which could enable her to assume a prominent part in the Italian world of commerce?”29 Since Staveley thinks Rome’s maritime commercial interests lost out to the landed/agrarian interests, he answers the second clause of his question negatively. Staveley sees Appius Claudius Caecus’ speech against making peace with Pyrrhus as an attempt to safeguard Rome’s southern commercial interests at a time when other Romans “were evidently prepared to abandon the south in favor of landed expansion to the north.”30 Friedrich Münzer traced Roman expansion to aristocrats whose roots were in Campania and whose affiliations with Roman aristocrats were established by command, colleague, or cognomen.31 Following Munzer’s lead, others see Rome’s southern strategy in the fourth and early third Florus, 1.13.26-27 (Loeb trans.). Polybius, 3.11. I have less faith in the authenticity of the oath than does Walbank, Commentary I: 314f. 29 E.S. Staveley, “The political career of Appius Caecus,” Historia 8 (1959): 433. 30 Staveley, Historia (1959): 431. 31 F. Münzer, Römische Adelsparteien und Adelsfamilien (Stuttgart, 1920): passim. 27 28

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century as the direct result of the particular success of a faction led by Publilius Philo and Appius Claudius. For Heurgon, Campanians were directly responsible for much of the southern orientation of Roman policy during the Pyrrhic period and ultimately for Rome’s crossing the straits to assist the Mamertines. Heurgon’s Campanians are merely Tenney Frank’s plebeians, and both are held responsible since they “imposed on Rome the burdens and obligations of a Mediterranean great power.”32 Filippo Cassola attempts to identify the two politically important groups in Roman society as the farmers and the commercially oriented politicians. Both wanted to expand the state, but one group into the north and the other into the commercially rich communities in Magna Graecia. The commercial faction, using local aristocratic clientelae, did not care about territorial expansion, but wanted to extend trading interests and connections in Italy and overseas.33 At issue in such interpretations is not simply the nature and direction Roman expansion, but the solutions to questions concerning the creation of Rome’s administrative system, roads, public works, foreign contacts, and coinage. Not infrequently, solutions to the questions of the origins of these innovations are sought in the context of the patrician/plebeian conflict, or seen in the light of the ongoing debate between senate and people, or considered simply a consequence of the factional political alliances. However the various innovations are explained, the Pyrrhic War serves as the turning point. For example, Frank used biased aristocratic references to absolve the senate of any blame in the decision to assist either the city of Thurii on the eve of the Pyrrhic War or the city of Messana on the eve of the Punic War. He saw these decisions as the direct consequences of the plebeian victory in the struggle of the orders in 287 B.C. Frank admits that we do not know enough of the causes to judge fully the motives leading to those expansion wars, but it is likely that had the old constitution [pre-287 B.C.] been in force, Rome might have ventured less far afield. At any rate, it was not according to the 32 Heurgon, The Rise of Rome: 202f., and esp. 217f., where the view is expressed that “the First Punic was their [Oscan = Campanian] war.” 33 F. Cassola, 89ff., and 146ff. Cassola notes the existence of other groups (194, 202, 419, and 423f.) but they are less influential.

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old tradition to come to the aid of Thurii against the Lucanians in 282. The war with Pyrrhus was brought on by a plebiscite, which is a clear indication that the Senate had not recommended it. And that plebiscite was passed only five years after the popular sovereignty had been fully admitted by Senate.

For Frank, “the period of expansion was the period of democratic rule.” Frank goes on to support his argument by suggesting that the popular imagination catches fire at dreams of empire and visions of glory which staid aristocracies often disregard. Furthermore, democratic assemblies often fail to count the cost or to take cognizance of old treaties and long established traditions and policies that hold in diplomacy. Readily informed by sympathy or aversion they fly to arms at word or deed, which, if analyzed calmly in senatorial debate might have assumed less significance.34

The traditional dating of the end of the struggle of the orders in 287 B.C. gives the post-Pyrrhic-War even greater significance. For example, nearly all Roman laws which are not conclusively dated are placed in the period after 287 B.C. because plebiscita presumably required senatorial approval (patrum auctoritas) to become binding before passage of the lex Hortensia. The leges Ovinia, Aquilia, and many others frequently are dated after 287 B.C. despite the fact that most legislation enacted and dated before 287 was also in the form of plebiscites. Historians should be more suspicious of laws that are not plebiscites, since they were clearly exceptional.35 The Pyrrhic War may have been a time of great innovation and change, but a great deal of the change was attributed to the period for unsound reasons. We are led to believe that once power resided in the populus (or plebs) warfare was typically declared for material rewards: the Anio Vetus Aqueduct was presented to the populus for their support during the Pyrrhic War. On the other hand, while the mob demanded tangible rewards, the senate was supposedly more responsible and concerned with the 34 T. Frank, A History of Rome (New York, 1923): 82f., cf. the same author’s views in Roman Imperialism: 59ff., and CAH 7: 665 ff. 35 I have recently addressed this question in “Historical development in Livy,” (n.b., reprinted above).

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administrative needs of Rome’s new peninsular empire. The senate came to recognize the necessity of controlling the peninsula and once in control saw that Rome’s interests in Messana were as great and defensible as those of Carthage or Syracuse. Nevertheless, the senate hesitated to take aggressive action because, in keeping with the fetial oath for declaring war, Rome never acted as the aggressor. “But,” says R.M. Errington in “Frankist” terms, ““in the last resort the matter did not rest with the cool-headed Senate.”36 William Harris argues convincingly that the fetial oath had nothing to do with Rome’s being the injured party but was merely a declaration by the priests that Rome’s cause was just and should be rewarded with success, in a manner similar to a lawsuit in which both parties claim justice is on their side, only in this instance the case was before a divine tribunal.37 Moreover, Harris shows the full extent to which warfare was the staple diet of the Roman aristocracy and the chief ingredient in political fame and fortune. However, after clearing up these difficulties, Harris contributes to still others by asserting that the normal Roman expansion “process was...very much slowed by the political crisis of 287 at Rome and the invasion by the Gauls and by Pyrrhus.”38 In fact Harris suggests that the years “288, 287, and 285 may well have been years without warfare” and that the reason for Rome’s hiatus in expansion is easy to understand in light of the internal difficulties and external dangers.39 Such an analysis fails to see that the wars with the Gauls and with Pyrrhus were not “interruptions” in the process of Roman expansion but were part of it, and that the historical significance of the lex Hortensia is more than likely a modern construction.40 Harris goes on to suggest that by the 270s the senate began to think more about the prospect of expansion beyond the peninsula, but he concludes that what probably caused many senators to balk was not a desire for years of peace, or a preference…for northern expansion, R.M. Errington, The Dawn of Empire (Ithaca, 1972): 15; cf. Frank, Roman Imperialism: esp. 8f., 66f. 37 W.V. Harris, War and Imperialism in Republican Rome: 327-70 B.C. (Oxford, 1979): l66ff. 38 Harris, War and Imperialism: 182. 39 Harris, War and Imperialism: 256f. 40 Cf. Mitchell, “Historical development in Livy:” esp. 193ff. 36

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but the fact that sufficient preparations had not been made for a Punic War, above all with regard to naval forces. In fact it was foolhardy to go to war against Carthage without a sizeable navy, and the more cautious senators must have realized this.41

These interpretations incorporate several features of the standard Roman preconception about their past. First, Frank, Errington, and Harris suggest that the senate made the decision to go to war. The senate could advise−probably always did−and its advice was usually followed, but a consultum could never take the place of a vote by the comitia. Second, there is little evidence that Rome was at peace at the time of the lex Hortensia’s passage and even less evidence that the law ended the struggle between the orders. Too much credence has been given to the ideological dispute found in our sources, which suggests that the senate was at odds with the populus and tribunes, and that one or the other could take the initiative in legislation or declarations of war depending upon the political winds of the time. There is no reason to believe that the comitia ever relinquished the right to declare war during the Republic, although at times the sources might emphasize the senate’s role (although not always accurately).42 There is no reason to stress, as Harris does, the failure of Rome to develop a navy as the major reason for her reluctance to undertake the war effort against Carthage, since the presumed absence of a Roman navy is based upon the same kind of preconception as the senatorial antagonism to the tribunate.43 Similar presuppositions have turned Roman maritime colonies into a system of coastal defenses which “spared Rome the necessity of maintaining a permanent fleet,”44 Harris, War and Imperialism: 189. Harris, War and Imperialism: 41f., and 263, presents the essential information and standard interpretations. 43 For the denial of Roman maritime developments prior to the First Punic war see J.H. Thiel: passim, and A. Alföldi, Early Rome and the Latins (Ann Arbor, 1965): 347ff. I attempted to correct the standard view in “Roman/Carthaginian treaties,” Historia (1971): 640ff (n.b. reprinted above).” Most recently Starr, The Beginnings of Imperial Rome: 57ff., has added his auctoritas to the alternative interpretation of the evidence. 44 A.N. Sherwin-White, The Roman Citizenship (Oxford, 1973): 77, supports the view of Salmon (cf. Roman Colonization under the Republic [London, 1969]: 70ff., for a recent presentation. I plan to argue in a future article that the 300 citizens of the coloniae maritimae actually manned a ship 41 42

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and have turned Italiot allies of Rome into “sailors” who were not permitted to join the legions, although we know differently. The maritime character of the Italiot population of the peninsula is contrasted with the more honorable agrarian legionary, but the Roman aversion to the sea is similar in nature to the ancient hostility to the city and to urban life. Both sea and city contrast with countryside and rural bliss, which the urban aristocracy set forth as part of their rhetorical tradition: Romans were not sailors, they were soldiers; they were unhappy in the city and felt at home in country. Even if we accept some of these assumptions, it is clear that the Romans preferred to say that they went to war with Carthage without a fleet. Polybius suggests that prior to the First Punic War Rome had allowed her ships to rot and used borrowed ships, while modern scholars also stress that the vessels were not Roman.45 Other modern historians answer the “crucial questions” concerning the development and direction of Rome by insisting that the evidence supporting the widening of Rome’s external horizons consists of exceptions which are not characteristic of a trend. In Harold Mattingly’s words, “Rome may have been, in everything but military efficiency, a backward and unenterprising state.”46 Mattingly’s reference is to pre-Pyrrhic-War Rome and a capsule summary of the immediate consequences of the war, according to the followers of the aforementioned thesis, probably parallel the following from Alexander Hugh McDonald: During the third century B.C. we may note the growth of the administrative system through which the nobles exercised their leadership. They encouraged and regulated the progress of technical skill in engineering, road making, town planning and public building, developments at would increase their strength. Rome now spoke for Italy, and the Greek states recognized her importance in the Western World; in 273 B.C. Ptolemaic Egypt opened political relations. About 269 Rome struck her first silver as part of a shore patrol and communication system (n.b., see below, “Maritime Colonies”). 45 Polybius, 1.20.14, says Rome borrowed ships from Tarentum, Locris, Velia, and Naples, and while most modern historians accept the word of our best source. Walbank, Commentary I: 72ff., does consider Polybius’ treatment romantic. 46 H. Mattingly, “Aes and Pecunia,” NC 3 (1943): 28.

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and established a bimetallic currency of silver and bronze, initially to meet conditions in Southern Italy.47

As a matter of fact, neither the number, frequency, nor importance of colonial establishments, nor treaties or other indications of such organization and administrative control appear to have been any greater in the immediate post-Pyrrhic period than in earlier decades. Colonization was not as significant a feature, road construction was apparently undistinguished, and the growth of Roman tribal units was much more dramatic in the last half of the fourth century.48 The last rural tribes were added in 241 B. C., but previous additions were made in 299, 318, 332, 358 and 387 B.C. Moreover, the Romans had taken control of the Latin League after the Latin War (340-338 B.C.) and had begun to lead and speak for all Latins and Latium considerably earlier than the third century.49 The fourth century is the true period of Rome’s greatest development in land and population growth. Contrary to some opinions, however, Rome did not impose either her institutions or language on her non-Latin subjects. The reason was certainly not that she respected the traditional practices of others, but that she simply neglected to take such steps during most of the Republic, either before or after Pyrrhus’ arrival.50 No appreciable population increase is attested during the period, but sometimes the creation of the quaestores classici is considered evidence for both Roman maritime and administrative developments. A recent reappraisal of the quaestores may lower their number from four to two and may even result in their losing the designation of classici, thereby resulting in their loss of identification with ships and their importance for peninsular administration. Yet, the argument that A.H. McDonald, “Pre-revolutionary Rome” in J.P.V.D. Balsdon, ed., Roman Civilization. (London, 1965): 24. 48 Salmon, Roman Colonization: 19, 167 n. 15. Briscoe, A Commentary on Livy, Books XXXI-XXXIII (Oxford, 1973): 179, presents the standard interpretation of colonial foundations: “It was the senate that really decided these matters, and the people’s ratification a formality.” 49 See R.E. Mitchell, “Roman coins as historical evidence: the Trojan legends and Rome,” Illinois Classical Studies 1 (1976): 72f., 82ff., for a discussion of Rome’s fourth-century leadership of the Latin League. 50 See W.V. Harris, “Was Roman law imposed on Italian allies?” Historia 21 (1972): 639ff., as a single example. His answer to the question is no! 47

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their creation in 267 B. C. had something to do with the “new” minting activity in the city or with the collection of increased Italian revenues is as much a historical assumption as their strict interpretation as “classici.”51 Stripped of maritime, military, and administration preconceptions, the quaestores in turn are saddled with an equally problematic interpretation that reinforces the late nature of Rome’s economic development and revenue requirements based upon the questionable late dating of Roman coinage. Although the coins themselves are part of the problem, they are frequently called upon by scholars to provide the solution. Many historians and numismatists believe that the Romans began to issue silver coins as a consequence of the Pyrrhic War. Such views find support in the story of the mint’s being moved into Juno’s temple as a consequence of advice the goddess gave to the Romans during the war. Pliny specifically stated that the Romans began to use silver coins during the consulship of Q. Ogulnius and C. Fabius (269 B.C.). Unfortunately, Pliny also said the coin issued was the denarius, and the rest of his “numismatic” discussion is considered by most historians to be filled with errors. When the denarius was dated to 269 B.C., its importance as a Roman coin for all Italy was tantamount to conclusive proof that Rome had established administrative control over her Italian confederacy. Local issues were replaced by the denarius, and an elaborate picture of Roman imperial practices as determined by the presence or disappearance of local issues was painted. The numismatic evidence was used to support theses concerning Rome’s increased administrative control and concern for the entire peninsula after 269 B.C. The result has been elaborate discussions of Roman colonization, road building, and involvement in local affairs which occurred as a consequence of the changes in 269 B.C. Currently the denarius is dated to the Second Punic War, and earlier Roman coins, Romano-Campanian issues, are spread over earlier periods. The weighty tomes of Rudi Thomsen, Michael Crawford, and Herbert Zehnacker tend to suppress views which suggest the

51 W.V. Harris, “The development of the questorship, 267-81 B.C.,” CQ 26 (1976): 92ff esp. 102ff. See Torelli, Rerum Romanarum Fontes: 246f., for additional references.

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beginning of Rome’s silver didrachms earlier than 280 B.C.52 Recently, often without crediting previous work on the topic, numismatists have begun to move the date of Rome’s earliest silver coins back before 300 B.C.53 The first coins will certainly prove to be earlier than the Pyrrhic War in origin and therefore lost as evidence to those who see them as a consequence of that war. However, it remains to be seen whether any recognizable change in Roman practices actually occurred following the Pyrrhic War or whether the post-Pyrrhic period was singled out in order to illustrate a preconceived notion of the Republic’s development. The placement of the first Roman silver coins either in the fourth century or in the Pyrrhic period is the consequence of different conceptions of how the Roman Republic developed. Those who advocate the Pyrrhic origins find their interpretations supported, to a degree, by ancient assumptions concerning how states develop and Rome’s lack of sophistication in the period before Pyrrhus’ arrival. Thus, the general interpretation of Roman history offered by our sources supports the importance of the Pyrrhic period. Those of us who have pressed for the acceptance of an earlier date for Roman coins and other Roman developments, on the other hand, sought support from specific details concerning Rome’s growth. Furthermore, we tend to accept certain phenomena as at least embryonic Roman characteristics, while those who would delay Roman developments frequently deny that certain phenomena are Roman at all, or are anything more than exceptions to normal Roman practices.54 52 Pliny, Natural History, 33.44. For a history of the scholarship and complete bibliographical citations on the topic see R. Thomsen, ERC: 210ff. H. Mattingly, NC 5 (1924): l8lff., first suggested the Pyrrhic date for Rome’s earliest didrachms; he later lowered the date (JRS 19 [1929]: 19ff.), but Thomsen, ERC, followed by Crawford, Roman Coins, and H. Zehnacker (Moneta, I-II, BEFAR 222 (1973), have all taken up Mattingly’s original thesis−in part. 53 In particular, note A. Burnett, “The coinages of Rome and Magna Graecia in the late fourth and third centuies B.C.,” Schweizerische Numismatische Rundschau (Revue Suisse de Numismati) 56 (1977): 92ff.; and “The First Roman Silver Coins,” Quaderni Ticinesi. Numissca e Antichita Classiche 7 (1978): 121ff. For my own views, see Illiinois Classical Studies (1976): 65ff., and 67, n.7, 79 n.69, for additional references. 54 Starr, The Beginnings of Imperial Rome: 10, offers an excellent example of how when “examined in a different light these facts will

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Romans before the Pyrrhic War were considered patriotic, proud, simple farming folk, without imperial ambitions or greed, until Pyrrhus and Carthage forced their hand. Like the old Washington Senators, the Roman senators were first in war, first in peace, and, while not last in the American League, last in the economic, cultural and artistic developments which characterized the civilization of their near neighbors. The picture is changing. Scavi de maggazini (excavations of museum storerooms) have turned up a remarkable amount of material that runs counter to the traditional depiction of pre-Pyrrhic-War Roman culture. Black glaze pottery, long considered very late and always in its earliest stages non-Roman, is moving back in time, and Roman manufacture is not only a distinct, but perhaps a necessary, possibility. Similarly, Genucilian plates may well prove to be Roman, although the normal reluctance to credit commercial or artistic development to the Romans has suppressed full consideration of this possibility. Interestingly, the black glaze pottery was often stamped with types closely associated with Roman coins, and a Genucilian plate found in the Regia at Rome pictured the prow of a ship, which carries implications for both Roman commerce and Roman prow coin types. The material in question can only be dated after 280 B.C. by assuming the Roman use of coins and ships was later than the Pyrrhic period.55 Such a chronological assumption is clearly based upon the ancient view of Rome’s moral rise and fall, Pliny presented a catalogue of human crimes or sins, of which the wearing of gold rings was the worst. He then mentioned the coining of gold, and went on to say that the Romans were so virtuous they did not even use silver coins before defeating Pyrrhus. Pliny said the Romans began the practice five years before the Punic War, in the consulships of Fabius and Ogulnius.56 The modern assumption is that Pliny was right about dating Rome’s first silver issue from the city to 269 B.C., but wrong about the coin’s being the denarius. According to Crawford, Pliny’s reference is a conflation of “two produce a markedly different picture…[and then some events]may not be so surprising.” 55 In particular, see Roma Medio-Repubblicana; Starr, The Beginnings of Imperial Rome: 27ff. and notes for presentation of the material, discussion, and bibliographical references. 56 Pliny Natural History, 33.4ff, 33.42ff.

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separate pieces of information, that silver coinage was first struck in Rome in 269 and that the characteristic (but later) silver coinage of the Republic was the denarius coinage.”57 Such reasoning is typical of the “classical” salvage operation: if you can not save the material entirely, save whatever part of it you can by conflation. I prefer to speculate on the source of Pliny’s information in an attempt to understand its origin, its purpose in the story, and only then to assess its reliability. Pliny elsewhere cited numismatic developments associated with King Servius Tullius, giving Timaeus as his authority. The exiled Sicilian is more than likely his authority for the entire numismatic section.58 Timaeus wrote of the West, of Rome and her religion and institutions, and of Pyrrhus. He dated the foundation of both Carthage and Rome to the same year, 813 B.C., and must have written of Pyrrhus as part of the backdrop to the First Punic War.59 Timaeus ended his narrative in 270/69 B.C., with Rome and Carthage facing one another across the straits of Messana and with both states at a similar stage of development−as would befit two states founded in the same year. Timaeus synchronized the important events in the histories of the two states in order to demonstrate their parallel histories prior to their conflict. He brought Rome and Carthage together at the straits, if not at the impasse, as the inevitable consequence of events. Timaeus was the earliest recognized authority on early Rome and the West: Aulus Gellius said that ancient records referred to the fact that Rome and Carthage were once equal in strength, spirit, and numbers; with Crawford, Roman Republican Coins I: 36. Pliny, Natural history, 33.43. A. Alföldi, “Timaios’ Bericht über die Anfänge der Geldprägung in Rom,” Mireilungen des Deutscen Archäologigischen Instituts, Röm. Abt. 68 (1961): 64 ff. arbitrarily and unsuccessfully attempts to restrict Timaeus’ authority for Pliny’s comments. Cf. Torelli, Rerum Romanorum Fontes: 238f., for discussion and bibliography. 59 A. Momigliano, “Athens in the third century and the discovery of Rome in the histories of Timaeus of Tauromenium,” Essays in Ancient and Modern Historiography (Middleton, Conn., 1977): 37ff. (= Rivista Storica Italiana 71 (1959), 529ff.), remains the best introduction to Timaeus. Of particular importance are 53ff., 58ff. (“Bibliographical Note”). Of essential importance are Walbank, Polybius: 12; and Walbank, Commentary II: 317ff. 57 58

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good reason the passage is believed to have come from Timaeus.60 The sentiment is certainly borrowed by Polybius, who specifically stated that he was beginning his project where Timaeus ended his. In an important but totally overlooked passage Polybius stated that on the eve of the First Punic War, both Rome and Carthage were well prepared, as yet unspoiled, had received “but modest assistance from fortune,” and were equal in strength.61 Hence, the First Punic War afforded the opportunity to see which state was better, which state’s constitution would be changed more, for the worse, by the war. Arnaldo Momigliano says that “Timaeus recognized that Carthage and Rome were on the same level,”62 but Timaeus also wrote that, while the Romans had admittedly used bronze coins marked with types as early as the reign of Servius Tullius, down through the Pyrrhic War they had not coined silver. In other words, on the eve of the First Punic War Rome was still unspoiled−precisely what Pliny stated in the section he borrowed from Timaeus and what Polybius stated when he continued his history. Timaeus’ reputation as the earliest authority on Rome accounts for the total adherence to the 269/8 B.C. date for the first Roman silver issues, which were dated to the year immediately after Timaeus ended his narrative.63 Subsequent authors commented on and supplemented Timaeus’ account by adding specific embellishments of their own, such as Pliny’s reference to the denarius as the first silver coin issued from the city in 269 B.C. Polybius’ idea that fortune guided the affairs of world and inclined them to one and the same end may well have been implicit or even explicit in Timaeus’ narrative structure. Polybius borrowed 60 Gellius, Attic Nights, 10.27.1: In litteris veteribus memoria extat quod par quondam fuit vigor et acritudo amplitudoque populi Romani atque Poeni. See Walbank, Polybius: 53, where he points to Gellius’s use of Varro (11.1.1 and Varro de re rust. 2.5.3) as a source and Varro used Timaeus. I cannot go into Lycophron and Callimachus here, but in general I follow Momigliano, Essays in Ancient and Modern Historiography: 49, 55ff., and 65. 61 Walbank, Commentary I: 64. 62 Essays in Ancient and Modern Historiography: 55. Momigliano suggests that the Greeks saw Rome as the new foe of Carthage—replacing the Greeks themselves (54f.). 63 For Timaeus’ reputation, see F. Walbank, “Polemic in Polybius,” JRS 52 (1962): llff., and “Greek historians of Sicily,” Kokalos 14-15 (1968-9): 484ff. Also important is K. Meister, Historiche Kritic bei Polybios (Wiesbaden, 1975): 3ff.

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from Timaeus both this interpretation and the idea of the purity of the Romans and the unspoiled and untested character of both Rome and Carthage on the eve of their conflict. While Timaeus called attention to Pyrrhus’ western campaign, possibly Ennius embellished Pyrrhus’ stay in the west with romantic stories, and both authors contributed greatly to making Pyrrhus the focal point of Rome’s Italian hegemony and the link to her Mediterranean empire.64 Roman simplicity, backwardness, and lack of enterprise were rhetorical themes which became commonplace, in large measure, because they were part of the earliest record. However, contrary to some opinion “early” does not mean reliable. “No part of Roman history,” says W.E. Heitland, “has been more willfully turned into a moral lesson for readers than the Pyrrhic War.”65 Similarly, even Frank recognized that “there no episode of Roman history (if we omit the legendary period) which is so full of anecdotes and dramatic details as the story of the Pyrrhic War.66 Pyrrhus was the prototype of a noble general fighting an equally noble people. We cannot be certain whether Latin or Greek authors treated him more kindly, but we are told the noble and unspoiled Romans continued to delight, marvel, and frustrate him, and that the entire war was later seen as the time during which Roman citizens and senators, as yet unaffected by Greek deceit and Punic cunning, had acted as a race of kings: whom could he not conquer, Pyrrhus said, leading such soldiers?67 In the second century B.C., older senators did not like to look back on the Pyrrhic War, since Romans now practiced nova sapientia and the senate actually advised Prusias to do in Hannibal in contrast to the noble Romans who warned Pyrrhus that his doctor

64 T. Frank, “Two Historical Themes in Roman Literature: Regulus and Horace, III, 5. III, 5; Pyrrhus, Appius Claudius and Ennius,” CPh 16 (1926): 314f. 65 W.E. Heitland, The Roman Republic (1926): 154. 66 Frank, CPh (1926): 314. 67 Full reference to the ancient literature and the modern scholarship can now be found in Torelli, Romanarum Fontes: 9lff. In particular the works of Wuilleumier (on Tarentum), and Lévêque (on Pyrrhus) are essential.

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planned to poison him.68 The elder Cato also contrasted the love of luxury and extravagance of his own day with the restrained standards of the Pyrrhic age. Even poor Romans refused the Epirot’s gifts, but Pyrrhus’ spokesman Cineas, who conquered more cities with his tongue than others did with a sword, would have found a ready audience in second−century Rome and many eager to accept his gifts. In the earlier period laws had not been necessary to curb such practices or extravagance, but by Cato’s day, he argued, they were needed.69 Alan Astin’s recent work on Cato makes a strong argument that the Censor copied the concept of the Origines from Timaeus.70 To judge from the fragmentary remains the two authors shared the opinion that social and political changes were the result of moral decline. Timaeus often wrote of wine, women, and moral weaknesses in the context of the luxury and extravagance brought on by excessive prosperity. Timaeus demonstrated his thesis by examples from Croton, Locris, Sybaris, and most importantly, Tarentum.71 Similar examples are found in Polybius, Cato, and Livy, and they concern Capua and Carthage, as well as Tarentum.72 To take an extreme position, Timaeus’ central importance is based not only on the fact that he was the Urvater of Roman history, but the Urvater of the Urbild, the prototype. When Timaeus wrote about the colonial foundations of the West, he stressed the growth of luxury, of softness, and the role it played in decline. Luxury, extravagance, and female immodesty are everywhere in the pages of Cato and Livy, and form part of Polybius’ interpretation of change as well. The common

See Livy, 34.4; 39.51; and 42.47. Enlightened treatments of Livy are Luce, Livy: esp. 230ff., and P.G. Walsh, Livy. (Cambridge, 1970): 82ff. and 104f. 69 Livy, 34.1-8, presented the speeches. Oppian law. Also, note Livy’s discussion of the lex Valeria of 300 B.C. (10.11.5-6) which had not required strong penalties to guarantee adherence. 70 A. Astin Cato: 228 ff. 71 Convenient collections of Timaeus’ fragments F. Jacoby, FGrH 566, and T. S. Brown, Timaeus of Tauromenium (Los Angeles, 1958). 72 The list of references and accompanying arguments are too detailed to be included here. In general see Walbank, Commentary I: 669f., II: 100ff.; Astin, Cato: 25ff., 90, 92ff., and 116.; and Luce Livy: 230ff. 68

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denominator is Timaeus.73 Polybius began by continuing Timaeus’ work but ended by criticizing him, often in a crude and unwarranted fashion. We do not know if it was Timaeus’ reputation, Polybius’ jealousy, or second-century factional politics that caused Polybius to change his mind about Timaeus just as he changed his mind about when and how to end his history.74 Apparently, Polybius contrasted the moral purity and simpler character of the Roman people before their overseas expansion, which had disastrous results for the Roman character, with their later conduct. While it may be argued that Polybius was contrasting the period before 200 B.C. with the period after, it is entirely possible that the contrast was between the periods before and after the First Punic War.75 Still, the idea of Rome’s loss of primitive purity and moral uprightness was a theme suggested by Timaeus. From the anthropological section of Polybius we know that he thought that the successive stages of human history, as exemplified by the forms of government which succeeded one another, were the results of later generations (in each stage) failing to adhere to the standards of morality and conduct that brought that particular form of government into existence.76 Self-indulgence, extravagance, luxury, and illicit behavior on the part of those who inherited (rather than earned) positions and power brought about the collapse of each stage. Polybius is part of a moral majority that includes practically every ancient author we know, including Cato, later Livy, and earlier Timaeus. However, Polybius knew that Rome had not been founded in 813 B.C.77 and that the city’s decline was correspondingly later in date. Timaeus brought the two powers to the point of confrontation according to parallel historical developments. Roman authors “corrected” his chronological description but retained his thesis concerning the distinction between the age of purity and 73 Polybius, 6.2-4 (cf. Walbank, Commentary I: 626ff., 671ff., 743ff.). Notice the purpose of Dionysius of Halicarnassus, 1.5.3-8, which must be largely based on Timaeus. 74 On Polybius’ attitude toward Timaeus, see Polybius 12 (Walbank, Commentary I: 317ff.; and above n. 4). 75 Polybius, 18.35. 76 Polybius, 6.3ff. 77 See Walbank, Commentary I: 633ff. for discussion.

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strength and the age of softness, luxury, and decline. More to the point, Polybius retained the synchronization of events which characterized the development of both Rome and Carthage.78 Polybius continued Timaeus’ views by demonstrating how matters continued to incline toward the same end; this is particularly evident in his outline treatment of the Pyrrhic and First Punic War. Roman involvement in South Italy was viewed as part of the Pyrrhic War, which was seen as containing the seeds of the Punic. Polybius helped Timaeus build the bridge to Sicily. The Campanians who garrisoned Rhegium were inextricably linked to the Campanian Mamertines at Messana. A strong, consistent tradition makes them allies, kinsmen, and common foes of Pyrrhus. The Mamertines joined Carthage and the Rhegian garrison remained loyal to Rome throughout their conflict with Pyrrhus. Polybius’ picture of the relationship between the two groups of Campanians is confusing, but modern interpreters of his text add to the confusion by failing to interpret it literally.79 Doubtless Polybius followed Timaeus in setting the stage for the First Punic War by linking historical events, geographical proximity, and the different participants in a causal fashion. Rhegium and Messana were made the twin gateways, the twin bridges, the twin symbols for the next phase of the expansion and the ultimate focal points of the conflict between the twin seekers after world dominion, Rome and Carthage. Although Polybius did not record the details of steady growth of Carthaginian power in Sicily in outline similar to the one presented for Rome, nevertheless he synchronized the Carthaginian sequence of development with the final phase of Rome’s own growing dominion over Italy in order to set the stage for the clash which occurred, inevitably, once their power became contiguous. Polybius set the stage, but the outline of the play was certainly As illustrated by Polybius, 1.13. I present only a sample of the recent scholarship: W. Hoffmann, “Das Hilfegesuch der Mamertiner am bend des Ersten Punischen Krieges,” Historia 18 1969): l53ff.; J. Molthagen, “Der Weg in den Ersten Punischen Krieg,” Chiron 5 (1975): 89ff.; K.-W. Welwei, “Hieron II. von Syrakus und der Ausbruck des Ersten schen Krieges,” Historia 27 (1978): 573ff.; and A.M. Eckstein, “Polybius on the role of the senate in the crisis of 264 B.C.,” GRBS 21 (1980): l75ff. Cf. Walbank, Commentary III: 757f., for additional references. 78 79

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written by Timaeus, who concluded his history with the year 270/69 B.C., with Rome and Carthage facing one another across the straits.80 From their foundation Timaeus placed the two states on a collision course. We should not permit the fact of Rome’s later and long friendship with Hiero of Syracuse to obscure the fact that Roman assistance to the Mamertines was directed against him and that Hiero was the successor of Pyrrhus in the eyes of both the Carthaginians and the Romans. Realization of this fact will have great repercussions for interpretations and descriptions of the outbreak of the First Punic War.81 The outline of events presented by Polybius, coupled with the presumed moral purity of the Romans (and Carthaginians) on the eve of the First Punic War, are contrived products of Rome’s assumed step-by-step expansion and her presumed subsequent moral decline. It is my thesis that the accepted interpretations of the Pyrrhic War and the standard version of Roman developments, such as her coinage, are reflections of a false continuity, and “in Roman history,” said Heurgon, “we should be on guard against the illusion of continuity.”82 In part, I hope to have placed Timaeus more firmly at the center of this commonly accepted tradition and to have shown that the Pyrrhic war and its aftermath are more complex and problematic than our sources, including Polybius, suggested.

80 F. Hampl, “Zur Vorgeschichte des ersten und Krieges,” in ANRW I: 1, 757.f., correctly dates the garrison in Messana to 269 B.C. 81 For example, Hiero succeeded Pyrrhus and was enemy of both Carthage (see Theocritus, Idylle, 16) and Rome (see Pliny, NH, 16.194-96, where a fleet of 220 ships was built to sail against Hiero, and the Ineditum Vaticanum (H. von Arnim, Hermes 27 [1892]: 122) where the consul of 263, Valerius, was author of Rome’s maritime strategy). 82 Heurgon, Rise of Rome: 248.

THE “STRUGGLE OF THE ORDERS” IS A FICTION The book from which this chapter is taken, Patricians and Plebeians; the Origin of the Roman State (Cornell: Ithaca, 1990), was the culmination of the long term project the various stages of which are represented in the previous several articles. The argument was initially regarded as radical and remains controversial to this day. In the overall book, of which the first half of this chapter is a reprise, Professor Mitchell reviews and critiques the core assumptions modern scholars routinely use as starting points for understanding the development of the Roman State. In the second half of this chapter Professor Mitchell sketches an outline of an alternate model for understanding social and political dynamics in the Roman Republic.* THE ORIGINS OF THE FICTION Modern historians reach several conclusions about the nature of our sources which have a direct bearing on the general depiction of the struggle, but a close examination of these conclusions demonstrates the need to change the primary role ascribed to the struggle in Roman history, and shows how reliable ——————————————-

*In its original appearance as the conclusion to Patricians and Plebeians, the chapter title was “Conclusion: an Alternate Interpretation.” The text is as originally presented. Some modification of the notes and section titles has been undertaken to enhance overall consistency and organization.

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material is misused as evidence for the struggle. Foremost is the customary faith scholars express in the existence and authenticity of a variety of material whose historical value is widely−and wildly−proclaimed. Most scholars presume that laws, treaties, rituals, ceremonies, calendrical events, foundations, and the fasti are among the types of authentic evidence, although they know these materials were subject to annalistic interpretation and embellishment. Nevertheless, they assume that at least the earliest annalistic records are more reliable than the later accounts. Fabius Pictor is a more honored source of information than “Gracchan” or “Sullan annalists.” Pictor might express a certain senatorial bias or quaint religiosity, but scholars do not believe he suffered from the false historical attitudes of those who wrote history after 133 B.C. Momigliano reminds us, however, that “for the greater part of our information on archaic Rome we depend not on Fabius Pictor, Cincius Alimentus or Cato the Censor, the oldest historians, but on Diodorus, Dionysius of Halicarnassus and Livy, historians who were still further removed from the events of the archaic period and who obtained most of their material from annalists of the age of the Gracchi and the Civil Wars.”1 Our extant later sources presumably did not work directly from either documentary material or the earliest annalistic accounts. Often they relied on developed interpretations and rationalizations of the “evidence.” Livy, for example, is believed to have been at the mercy of his sources, in particular annalistic historians who were his near contemporaries. Luce expresses but does not support the common view that Livy’s sources “conveniently embodied previous research, thereby saving him the trouble of going back to early authorities himself.”2 When his sources did not agree or were not convincing, Livy often presented

Momigliano, SSAR: 176-77, also points out that second- and first-century antiquarians employed ancient legal documents to account for changes in political and legal history, but generally their research had little influence on historical writing. See Raaflaub, SSAR: esp. 23-24; Cornell, SSAR: esp. 61-62, 73; and Rawson, JRS (1972): 33-45. 2 Luce, Livy: 159. 1

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contrasting interpretations.3 As a moralist, Livy is assumed to be searching for moral examples, which he found in the biased annalistic presentations of competing political factions, who were not above fabricating material to make points for their side. Wiseman believes that Livy merely had to pick and choose, since the tradition had already “been elaborated with appropriate color by both conservative and ‘popular’ historians.”4 Walsh adds that Livy’s account was “not so much a reconciliation of opposing views as a combination of distortions from the two polar positions.” Livy “sought to steer a fair course by choosing authorities of opposing views, Valerius Antias and Licinius Macer.”5 Whatever his shortcomings as an historian, whether Livy consulted Fabius Pictor and other early annalists personally is beside the point. Livy’s reputation cannot be enhanced by proof that he used Pictor directly, because there is no proof that Pictor or his contemporaries, despite their apparent brevity and antiquity, were more reliable or preserved more authentic records because they engaged in less embellishment. It certainly cannot be established that their works contained proportionately more archival material because they and the documents employed were nearer one another in time. The fragmentary remains of early annalistic accounts do not inspire much confidence in their authenticity or in their use of documentary material. Consequently, even if the early annalistic histories were brief and the original annalistic records were limited in scope, we can only conclude that neither one contained the elaborate explanations and interpretations found in the pages of Livy and Dionysius of Halicarnassus. On the other hand, we no longer assume that Walsh, Latin Historians: “In the first decade, as Livy knew well, the theme of the struggle of the orders had offered boundless temptations to historians of the second and first centuries who wished to further the Optimate cause or to reinforce the claims of the Populares .... The reconstruction of Roman history was an especially lively weapon of propaganda in the hands of Licinius, a vehement supporter of the Populares. Valerius on the other hand favored the Sullan interests, as well as seeking the maximum glory for the Valerii and their allies”(121-22). 4 Wiseman, Clio: “What never occurred to him was to reject the elaboration to begin with”(51). 5 Walsh, Latin Historians: 122. 3

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publication of the annales maximi enriched the narratives of later annalistic historians precisely because publication added to the store of readily available information. “The enrichment of material,” P. Fraccaro observes, “did not depend on the publication of the annales maximi but on the new tendency in historical writing to give literary form and a richness of detail to the events narrated.” Or, in the words of A. H. McDonald, “the Annalists certainly had to elaborate the material in the annales maximi to make it historically intelligible.” It is my conviction that the struggle of the orders was the elaboration that made the details intelligible.6 In addition to the existence of authentic historical materials, modern scholars profess faith in the general outline of Rome’s historical development because they assume it existed in the accounts of Fabius Pictor and other early annalists who first commented on Rome’s past in the late third century B.C. The basic outline is considered correct because it supposedly existed at the earliest level of written material. 7 When scholars accept the general outline of events, they do not simply acknowledge the existence of kings, the change from 6 Fraccaro, JRS (1957): 62; McDonald, JRS (1957): 156. Dion. Hal. 4.6-7, 4.30, criticized Fabius’s reconstruction of the family tree of the Tarquins. Luce, Livy: “It seems prima facie likely and reasonable that Livy has indeed read, for example, Rome’s first historian [Fabius PictorJ and that he consulted him in writing his own history”(161). Cf. Cornell, SSAR: 62, and Frier, LAPM: 174-75, 179-93, who argues that the annual tabulae were collected into yearly libri, available from 300 B.C., and that the annual tabula stopped with P. Mucius Scaevola. No great influx of annalistic information occurred in the late second century, and thus no quantitative difference is found between works written before and after that time. 7 The outline is what Cornell calls the “structural facts” (SSAR: 62-63). Brunt, IM: “The annalists’ account of the struggle of plebeians against patricians in the early Republic, transmitted to us mainly by Livy and Dionysius, is in broad outline comprehensible and probably not far from the truth, but it is embroidered with details that can only be the fabrication of rhetoric and imagination”(639). Walsh, Latin Historians: The “outline of the decisive stages can be accepted; but the detail was largely written into the framework by historians and legal authorities in the late second and first centuries. Later constitutional and legal practices are given ancient precedents”(126).

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monarchy to Republic, and the creation of consuls, Senate, and assembly. They also accept the common interpretation of how Rome−and states generally−developed. Yet faith in the reliability of the outline is accompanied by the correct observation, here expressed by Momigliano, that “in the third century B.C. no one had any clear idea of what Roman society had been like in the first half of the fifth century”−or, it should be added, earlier.8 In fact, it cannot be shown that the earliest annalistic accounts dealt with the struggle of the orders in any detail. Patricians and plebeians are not characteristic of the fragmentary accounts of the annalists, and the events customarily interpreted as among the most important features of the struggle frequently are not found at all. The historical outline was a late invention and the struggle was fabricated to help explain the details.9 Scholars devote considerable attention to uncovering annalistic fabrications in the narratives of our extant sources. Presumably, the later Republican annalists invented material that Livy and Dionysius of Halicarnassus accepted. Wiseman observes that this combination of unscrupulous invention on the part of the late-republican annalists and innocent acceptance of their inventions on the part of Livy and Dionysius has not been easy for modern readers to understand. We do not find it too hard to recognize the inventive technique in comparatively unimportant details, but it does not come naturally to us to expect the big lie as well.” 10

What Wiseman means by the “big lie” is not altogether clear. I think the “big lie” is the struggle of the orders. It is not always evident, however, whether the father of the falsehood was an ancient or modern author. Because Livy is our most extensive extant source for early Roman history, an appreciation of his contribution to the development of the outline of Roman history is essential. We must be more aware of how tenuous the struggle of the orders is in our sources, how much of the conflict depends on Livy’s historical Momigliano, SSAR: 177. Peter, HRR I, has the best collection of fragments. 10 Wiseman, Clio: 52. 8 9

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interpretation, and how much of it depends on modern scholarly interpretation. A distinction must be made between the “struggle” as it appears in the pages of Livy and the conflict found in the pages of modern historians. They are by no means the same. Not only is it impossible to establish Livy’s heavy dependence on late Republican annalists for his material about the struggle, but it is also impossible for Frier to prove that Licinius Macer wrote strongly pro-plebeian annales that were confined to “the great plebeian revolution, from the origins of Rome down to the Lex Hortensia of 287 and its immediate aftermath in the conquest of Italy.” Presumably, Macer was motivated by the desire to glorify his plebeian ancestors and by his general love of plebeian institutions and history. He called on “archaic documents such as the foedus Ardeantinum and the libri lintei,” Frier says, in support of his cause.”11 This description of Macer’s work depends on acceptance of modern assumptions about his politics, his family, and his plebeian pride, and on a questionable modern interpretation of the fragmentary remains of his history. Such interpretations have no standing as ancient evidence. The fragments of Macer’s work contain not a shred of evidence that he concentrated on the plebeian revolution down to 287 B.C., or that he held exclusively popularis or plebeian sympathies. The fragments tell us little about his treatment of the struggle of the orders. In particular, we do not know when or how Macer ended his work. It probably ended with Pyrrhus, a more natural conclusion to a work devoted to early Rome.12 Similar reservations apply to Valerius Antias, who is held responsible not only for fabricating the extensive accomplishments of his ancestors, but for originating the anti-Claudian tradition found in our sources. Neither conclusion can be supported by what remains of Antias’s work, and there is little evidence of his presumed pro-senatorial, pro-patrician, aristocratic fabrications.13 11 Frier, TAPA (1975), adds that this “is an ex silentio deduction, but an attractive one”(95). 12 The latest datable fragment deals with Pyrrhus (Peter, HRR 1,308 [= frag. 20]). Frier, TAPA (1975): 95, correctly questions assigning the Pyrrhic fragment to book 2 of Macer’s work, but the question does not alter its importance. See my “Pyrrhic War,” (n.b reprinted above). 13 Wiseman, Clio: 57-139, argues Antias was anti-Claudii. If he is correct, even more rewriting of the struggle is required. Claudii were

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Tracing the popular and oligarchic features of the struggle found in Livy back to Licinius Macer and Valerius Antias has been a favorite pastime of modern scholars, but the practice creates as much distortion as anything these two fabricated. Not only are these annalists’ descriptions of the struggle of the orders far from clear, but also it cannot be proved that Livy used their politically monolithic historical interpretations as major sources for the conflicting points in his presentation of the struggle. Modern scholars are incorrect about Livy not using early annalists directly and about his indebtedness to a few late major sources with major biases that greatly influenced the tone and content of his treatment of the struggle between patricians and plebeians.14 Examination of the material he borrowed from Polybius shows how much Livy added and how he changed the emphasis of the original. Consequently, Luce asks if “it might be worth considering whether the dominance of [the struggle] theme in early Roman history, and the interpretation of it, might not be due to a significant degree to Livy’s own historical perspective.” But I hasten to add another consideration: whether the struggle is a theme found more in modern historians than in ancient.15 The chronological limits of the modern picture of the struggle are not part of the ancient tradition. In general, scholars maintain that the struggle began in 494 B.C. with the creation of

depicted as among the most reactionary patricians pitted against plebeians, but the policies of the decemvir and of Caecus greatly benefited the plebs. Valerii, on the other hand, frequently were patrician allies of the plebs. Cornell, JRS (1982): 203-6, reviews Wiseman. Badian, Latin Historians, believes that “with Valerius the invention of ‘archival material’ seems to have reached new heights”(21). 14 See Luce, Livy: esp. 165-69: “The result forms a vicious circle in which the theory and the proof for it must come into being simultaneously”(166). “If everything in the first pentad that is prosenatorial comes from Antias and everything pro-plebeian comes from Macer, their respective versions of the Struggle of the Orders must have been singular indeed: the triumph of the villains in the one case and of the heroes in the other” (169). Cf. Ogilvie, Comm: 7-16, who attributes many Livian passages to the two annalists. 15 Luce, Livy: 169. Brunt, IM: 645-60, presents a thorough and valuable discussion of essentially military details found in Livy.

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the plebeian tribunes and ended in 287 B.C. with the lex Hortensia.16 In contrast, Livy began the struggle with Romulus’s creation of patricians and plebeians. The struggle surfaced several times during the monarchy, and plebeian tribunes were created because the patricians now acted like the tyrannical Tarquins.17 The patricianplebeian struggle that began with Romulus is similar to the conflict between equites and senators, or the conflict between populares or novi homines and the optimates or nobiles, which surfaced during the Republic.18 These conflicts are characteristic of Livy’s historical narrative, but combatants are poorly defined and narrowly distinguished. One set of antagonists flows into the next in the same fashion that regal authority and institutions changed into Republican.19 However, even those who are fully aware of the extent to which the struggle of the orders is Livy’s interpretation are swept along by the wave of common opinion, which supports a “developmental” appproach to Roman history culminating with the lex Hortensia. The idea that the “struggle” ended with the lex Hortensia is so often repeated that we have lost sight of the fact that it is not an ancient idea. No evidence suggests that Livy, his sources, or any other ancient author focused on the lex Hortensia as the final act of the struggle of the orders. The law is not a focal point of the annalistic tradition and it is not part of Livy’s developmental process, as the following discussion makes clear.20 No example is better than Mommsen, History I: “The two hundred years’ strife [494-287 B.C.] was brought at length to a close by the law of the dictator Q. Hortensius which was occasioned by a dangerous popular insurrection, and which declared that the decrees of the plebs should stand on the absolute footing of equality instead of their earlier conditional equivalence-with those of the whole community .... The struggle between the Roman clans and commons was thus substantially at an end”(386). 17 See Mitchell, Patricians and Plebeians, Chapter I. 18 Cf. Brunt, Conflicts: 72-73; and Mitchell, “Aristocracy:” 45 19 Livy 2.1.2-3 illustrates Luce’s “developmental” interpretation (Livy 238-49). 20 Luce, Livy: “In 509 many fundamental institutions are still waiting in the wings: all the magistrates other than the consulship, together with the tribunate; moreover, the long course that the struggle of the orders took would not be concluded until the lex Hortensia of 287. The enactment and codification of laws are in the future, together with a host 16

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If the struggle of the orders depicted by modern scholars played an important role in Livy’s depiction of Rome’s historical development, we would expect the chronological features of the struggle to be emmphasized by the tradition. Hortensius’s dictatorship is mentioned in Periocha 11, but not his legislation. The law would have been discussed, presumably, toward the end of book 11. If the struggle of the orders was the dominant theme around which developments, internal and external, took place in early Roman history, a break in the narrative should have occurred between books 11 and 12. There was none. Livy’s development of Roman history is reflected in book divisions, and the struggle of the orders is not a central theme.21 Livy’s own words in book 6 indicate he was beginning a new, clearer phase of his narrative, but the argument that book 16 marked another beginning because the Periocha mentioned the origins of the Carthaginians and the founding of their city is without merit. The summaries cannot be used to show a break because they frequently have a structure and emphasis of their own. For example, the break and new beginning that occur between books 5 and 6 are not found in the summary, although they are obvious from Livy’s own words.22 Nothing indicates that Livy thought the struggle of the orders ended by the conclusion of either book 10 or book 11. Livy did not tell us the struggle ever ended. Livy saw the conflict as essentially between two constant, inevitably opposed political forces. The conflict was a continuous feature of Roman life, although the principal players in it occasionally were called by different names. Anyone who works through the detailed account of of other social, religious, and political changes.” Luce correctly stresses (contra Collingwood) “that the Roman desire to put things in a historical context proved so strong that even the stuff of myth, fable, and invention is delineated in well-articulated stages of accretion and development”(241). 21 Livy, Per. 11: plebs prompter aes alienum post graves et longos seditiones ad ultimum secessit in Janiculurn, unde a Q. Hortensia dictatore deducta est; isque in ipso magistratu decessit. Cf. P. A. Stadter, “The Structure of Livy’s History,” Historia 21 (1972): 287-307; and Luce, Livy: 3-4. 22 Livy 6.1.3: Clariora deinceps certioraque ab secunda origine velut ab stirpibus laetius feraciusque renatae urbis gesta domi militiaeque exponentur. See Luce, Livy: 10-1.

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plebeian activity will be impressed immediately by the number of times Livy is our only source of information or the only source earlier than the Empire. Many times Livy alone recorded tribunician prosecution of magistrates, agrarian and usury laws, measures on colonization, and a wide range of other items often placed in the context of tribunician political activity. Livy alone reported the full details of laws of 449 and 339 B.C., by which plebiscites became binding on all citizens, and he is our only source of information concerning the lex Ogulnia of 300 B.C., a pivotal feature of the struggle. Among countless other examples, Livy’s description and dating of the lex Poetelia-Papiria de nexis (to 326, not 313 B.C.) are not only unique, but filled with embellishment. Plebeian complaints and tribunician activities abound in Livy, and they are more characteristic of his work than of others. Still, Livy does not suggest that the nature of such activities changed after 287 BC.23 Finally, we come to the assumption that plebeians could not legislate in their assembly without patrician approval (patrum auctoritas) until passage of the lex Hortensia in 287 B.C. In other words, the plebeii could do nothing without the acquiescence of the patres, who gave approval to plebeian “victories” over patricians. I have suggested that patrum auctoritas was largely a pro forma approval given by senatorial priests (patres) to measures considered consistent with traditional ancestral practices. It was not used to veto laws or elections. Our sources did not distinguish between comitia and concilium, and modern attempts to create a plebeian assembly are unconvincing. Only one tribal assembly existed and only one form of legislation is known: the plebiscite. Inconsistencies in the way laws and legal and legislative processes were described in documents resulted in ancient interpretations that attempted to account for the differences. The interpretations were based on the presumption of conflicts between polar opposites, antithetical pairs like patres and plebs, which gave meaning to the purpose and content of the original material. The 23 Livy 8.28 (326 B.C.); cf. Watson, Law Making: 6-12; and Luce, Livy: 165-66, 230-31, who adds that “the prominence given to the struggle of the orders and the strong thread that runs from the initial clashes early in Book 2 through Book 4 and beyond [my emphasis] doubtless owe much to Livy’s selectivity and personal outlook” (245).

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lex Hortensia is the best example of the process.24 Livy dated the secessio of the plebeians about 287 B.C., and he mentioned the dictator Hortensius, but not the lex Hortensia.25 The law’s provisions were variously reported by others. Gaius said that plebiscites now bound the entire populus (ut plebiscita universum populum tenerent); Pliny, that what the plebs commanded bound all the quirites (ut quod plebs iussisset omnes quirites teneret); and Aulus Gellius, that all quirites were bound by laws passed by the plebs (ut eo iure plebs statuisset omnes quirites tenerentur).26 Livy preserved two earlier measures from 449 (ut quod tributim plebes iussisset populum teneret) and 339 B.C. (ut plebiscita omnes quirites tenerent).27 Usually the earlier laws are interpreted as partial reforms that freed the comitia, not the concilium, to act without obtaining approval from the patres. The formulae in all these laws are suspiciously similar in phrasing to the lex Hortensia, but it is unlikely that an inventive annalist created them to demonstrate an ancestor at work or to prove plebeians always had what they were struggling to obtain. The solution to the problem is contained in the formula itself and in another Livian passage in which a Twelve Table law was recited by the interrex of 355 B.C., M. Fabius Ambustus. When called on to settle a dispute, Fabius stated ut quodcumque postremum populus iussisset, id ius ratumque esset.; iussum populi et suffragia esse. To translate, “whatever the populus decided last was binding law, and votes of the assembly (suffragia) were commands of the populus too and therefore binding.”28 All the passages in question are versions of the rule that, for any law, the most recent enactment, creation, or change by whatever recognizable means was the last pronouncement on the subject and therefore current law. The fragment from the Twelve Momigliano, JRS (1963): “It is easy enough to believe that after the fall of the monarchy the patricians could, and did, usurp the right to veto on laws and elections made by the Comitia (which is what the patrum auctoritas amounted to)”(117). 25 Livy, Per.. II. 26 Gaius, Inst. 1.3; Pliny, NH 16.10 (15)37; Gellius 15.27-4 (cf. Pomponius, Dig. 1.2.2.8). See Rotondi, LPPR: 238-41. 27 Livy 3.55.3; 8.12.15. 28 Livy 7.17.12 (cf. 9.33.9; 9.34.6-7 for similar language; and Cicero, De leg. 3.3.9). As both interrex and legal expert Fabius must have been a pontiff. 24

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Tables is often placed as the last measure in the final table because it permitted changes to be made in the law−specifically changes that included popular decisions. In all probability, a formulaic statement that proclaimed the operative law to be the most recent measure passed was added to laws that replaced earlier rules. Before 355 B.C. a distinction may have been made between law created by interpretation and legislation passed by assembly, because in 355 B.C. comitia measures were also considered among the postrema legal decisions. A law attributed to the Twelve Tables established the assembly’s authority to pass legislation affecting issues that had once been the preserve of judges and priests −perhaps only the latter since the two were once the same. Fabius was an interrex and doubtless a pontiff because the college still monopolized law and procedure. Whatever the historical value of the story, the quotation from the law is reliable, because it derives from the authoritative opinion of a priest who dispensed legal wisdom.29 The lex Hortensia declared ut plebiscita universum populum tenerent or some variation of the formula−which meant that the law in question was now binding; it was the postremum word on the subject. The lex Hortensia was not the hypothetical final act of an equally hypothetical struggle. The use of the plural, plebiscita, I suggest hesitantly, indicates that other legal decisions reached in 287 B.C. actually were the focus of the formula. Examination of events in 449 and 339 B.C. uncovers a number of “legislative” activities in each year which became the most recent and binding laws of Rome. Proof that such formulaic phrases (ut quod plebiscita) have nothing to do with the struggle can be found in a closer analysis of the “alternate tradition” concerning the lex Hortensia.30 The lex Hortensia permitted judicial proceedings and legal transactions to take place on nundinae, market days. Nundinae were sacred to Jupiter−days on which oaths were taken (sacramentum) and sacrifices were offered; they were religious holidays, days of rest (feriae) and celebration. Now secular business could be undertaken on market days, which became dies fasti: sed lege Hortensia effectum ut Cf. Riccobono, FIRA, I: 73. Broughton, MRR, I: 47-50, says the legislation of 449 B.C. “rests on a tradition of some insecurity” (49 n.1). Q. Publilius Philo was consul in 339 B.C. but dictator when he carried the legislation (MRR, I: 137). 29 30

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fastae essent, uti rustici, qui nundinandi causa in urbem veniebant, lites componerent.31 In 287 B.C., Hortensius extended the right to engage in secular business to those who wished to take advantage of their trips into the city on market days. Opening market days for legal and public activity meant that rustici now had recourse to legal advice and procedures, which previously had been unavailable on the very days when they were likely to be in the city. Nevertheless, we must not forget that legal affairs remained under the control of priests, in particular of pontiffs. The importance of the lex Hortensia for the secularization of Roman law and society should not be obscured or overstated by the desire to turn the measure into the final act of the struggle. Neither Hortensius nor his dictatorship is easily explained, but the problem lies with the original notice of his activities, which was not preserved to help explain historical development. The calendar was a pontifical monopoly, and pontiffs declared which days were feriae and which were dies fasti; it follows that Hortensius was a pontiff who declared that market days were no longer feriae. He reformed the calendar. Legal philosophers who assume that laws could not exist without legislation have turned Hortensius’s reform into a popular bill designed to benefit plebeians and plebeian institutions. We have scant evidence that dictators or any other magistrate actually possessed the power to sponsor legislation. Hortensius may have ordered (dictavit), or issued an edict, and if so he acted as a pontiff; but later authors transformed him into a dictator and a friend of the downtrodden plebs.32 It is problematic whether nundinae were also dies comitiales, days on which assemblies took place. If they were originally, they apparently did not remain so in the late Republic after the crush of legal business detracted from assembly attendance.33 The situation was different in the third century, because the largest possible attendance was desirable so that an assembly or contio could conduct business routinely and effectively and present information 31 Macrobius, Sat. 1. 16.5-32; cf.. Gellius 20.1.46-7; Twelve Table law made nundinae available for legal action. See Michels, Calendar: 20-26, 84-89, 106-18. 32 Varro, LL 6.61: on dico 33 Pliny, NH 18.13; Festus 176L; cf. Macrobius, Sat. 1.16.29.

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to as many people as possible.34 Scholars draw distinctions between comitia convened by consuls or praetors and the concilium by the plebeian tribunes because of the erroneous interpretation of the lex Hortensia as a measure prohibiting comitia on nundinae but permitting the assembly (concilium) of plebeians.35 Because priests, senators, magistrates, and tribunes were expected to attend to their judicial and political responsibilities, however, it follows that assemblies were not held when these officials were busy. If they were increasingly busy on nundinae then the latter gradually ceased to be dies comitiales. Apparently, legislative and elective assemblies deliberately excluded those who regularly came to the city for other purposes, and the reason is clear−urban aristocrats, backed by supporters, wanted to retain control over assemblies.36 The changes in the calendar obviously were the work of the pontifices themselves and affected their exercise of power and legal influence. Pontiffs were undergoing the same transition as the law. They appeared more in the garb of administrative experts than in the vestments of priests, and they rapidly were becoming more like secular magistrates and executives than men of the cloth. The position of pontiffs in Roman society was not weakened, however; they actually were responsible for accommodating many of the new features and fashions in a manner that effectively changed their authority. Pontiffs were not victims of a rapidly changing society that left them behind in the wake of secularization. They were the agents who carried change to fruition. Pontiffs remained legal experts and continued to administer, preserve, develop, and interpret the law. Changes that began in the fourth century B.C. were not the result of political conflict and did not occur because of plebeian hostility to the monopoly of the law by patrician priests; they occurred because society was growing and developing so rapidly that it outpaced the sacred origins of Roman law. Pontifical exclusiveness was the consequence of a monopoly created by the mystery of writing and recording ancestral traditions; it cannot be understood as a monopoly maintained to retain political influence and privilege. The most important change in the Cf. Taylor, VA: 17-33; and Michels, Calendar: 46-47. Cf. Michels, Calendar: 38-42, 47, 103-18. 36 Consequently, Tiberius Gracchus’s attempt to get out the rural vote was most unusual. Cf. Taylor, Athenaeum (1963): 51-69; and Bernstein, Tiberius: 164-69, 199-202. 34 35

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pontifical monopoly occurred in the publication−call it secularization if you want−of Roman legal information. Two decades before the lex Hortensia, in 304 B.C., Cn. Flavius reportedly, civile ius, respositum in penetralibus pontificum, evolgavit fastosque circa Jorum in albo proposuit, ut quando lege agi posset, sciretur.37 Flavius published the civil law deposited in the secret storerooms of the pontiffs, and he published the fasti put up on whitened boards around the forum. Evidently he also published the dies fasti, the calendar that informed interested parties when they could undertake particular kinds of secular business, including legal actions. Flavius was a scribe−a minor pontifex−and a curule aedile, responsible for keeping temple (aedes) records.38 Our sources claimed that Flavius revealed the secrets of the pontiffs, although their secrets supposedly had been published in 449, destroyed in 390 B.C., and republished immediately. Flavius did not publish the Twelve Tables because no official text of the code ever existed, but he was the first to publish the formulae for initiating litigation (leges actiones) and the dates on which it was permitted to bring suit (fasti). In effect, Flavius published an edict, although it was not called that. Flavius was the scribe of Appius Claudius Caecus, who must have been a priest, probably a pontiff, because he is credited with legal knowledge and with publications that are only associated with priests. The earliest compilations of laws and procedures−to say nothing of historical annales−were all the work of priests. Eventually, their publications enabled secular legal specialists to develop. Such publications also served as precedents for the edicts published by secular magistrates who became responsible for legal administration.39 Livy 9-46.5-6; cf. Macrobius, Sat. 1.15.9-10. See Ogilvie, Comm: 406, 503, and 583: “If [aediles] were responsible for the publication of the Twelve Tables and for the preservation of senatorial records [cf. Livy 3.55.13], they would be ideally equipped for overseeing the due observance of religious proprieties” (cf. Livy 4.30.1). 39 Livy suggested a priesthood for Caecus (10.8-4-5) and attested to his legal expertise (10.22.6-9), although no priesthood is mentioned on Caecus’s Augustan elogium. Bauman, Lawyers (1983): 21-66, esp. 48-49, collects evidence and bibliographical information on the legal importance of both Caecus and Flavius, but denies Caecus was a priest. Cf. Schulz, History: 35, 89: and Watson, JRS (1972): 100, 103-4. The ius Papirianum, the 37 38

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Priests established the mechanism by which those who needed legal information acquired it, and the publication of legal materials in the late fourth century first contributed to an increase in the judicial activity in the city and, in turn, resulted in a considerable increase in the number of augurs and pontiffs. The “plebeian” priests added to the colleges by the lex Ogulnia of 300 B.C. were added for secular and legal reasons and not because plebeians had won another round in their struggle with patricians. For example, Tiberius Coruncanius (consul 280 B.C.) was not only the first so-called plebeian to become pontifex maximus (254 B.C.), he also was the first to make public legal pronouncements or to give legal advice.40 The lex Hortensia is poorly reported and presents a considerable puzzle to modern historians, who have never fully understood or satisfactorily explained it. The failure is not entirely due to the absence of Livy’s complete text, because the problem is complicated by more than the mere absence of historical information. Scholars tend toward a misplaced enthusiasm for the reliability of Livy’s outline of general developments and, in particular, for his account of the so-called struggle of the orders. Acceptance of Livy’s outline contributes to our failure to see the true importance of certain pieces of information which Livy presented as part of the struggle of the orders, but which are in fact poorly suited to that context. Scholars have always had their greatest difficulty explaining how specific pieces of evidence fit into the puzzling struggle. We must reverse the normal practice of historians and accept the detail but reject the outline. The change is justified because the struggle of the orders, which is such an important feature of modern scholarship, is not found in Livy, or any other ancient source for that matter, in precisely the form claimed by so many scholars. Those who claim to follow the ius Flavianum, and Caecus’s De usurpationibus are to my mind examples of publications by priests. 40 Bauman, Lawyers: 46-48, discusses Caecus’s opposition to the law, but does not notice that Livy is our only source for the tradition or that Caecus could have opposed the law on legal or religious grounds. On Coruncanius, see Pomponius, Dig. 1.2.2.38 (cf. 35): qui primus profiteri coepit. Schulz, History: 8, 10, doubts the tradition about publications, but an ancestor of Sextus Aelius, author of the tripartita, was among the first plebeian augurs, and Sextus’s own father was a pontiff.

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ancient tradition and upbraid the rest of us for failing to see the reliable nuggets in the wasteland of Roman historical literature are themselves guilty of misrepresenting what our sources contain. By emphasizing the alternative or supplemental tradition about the lex Hortensia, we can interpret it differently and turn it into a more useful piece of evidence, but in doing so we remove it from the pages of the struggle. The law has been the final act of the struggle for so long that to question its common interpretation might be considered sacrilegious. By placing it and other measures within their proper religious and legal context, however, we begin to see why earlier attempts to force the material into the context of the struggle proved unsuccessful. Arnaldo Momigliano once commented that “if religion, economics, politics and law are considered together the probability of multiplying errors is increased. A wrong interpretation of economic or religious fact can easily lie at the root of a wrong interpretation of legal facts, and vice versa.”41 I contend that such an error lies at the root of the common historical depiction of early Roman internal political development as essentially the product of a political struggle between patricians and plebeians. Interpreting Rome’s early historical development in terms of the struggle has been one way of seeing the importance of those features of the tradition considered authentic, but the interpretation has prevented us from seeing the potential, perhaps essential, importance of many details. The emphasis on the struggle obscures our vision and results in our denial, qualification, or misinterpretation of much of Rome’s early legal and constitutional history. NEITHER PATRICIAN NOR PLEBEIAN: FROM SOLDIER TO CITIZEN Now that the struggle between patricians and plebeians has been rejected as the principal motivation behind the chain of internal and external events, an examination of particular pieces of authentic evidence reveals a society entirely different from any previously described. It is not a society torn apart by class conflict, but one dedicated to military prowess. That is not to say that political conflicts did not occur or that there were no economic 41

Momigliano, Studies: 243.

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grievances as private, local governmental and institutional systems evolved into public ones and as hoplite soldiers evolved into citizens who gradually comprised more than soldiers. These changes reached a critical stage during the third century, particularly as a consequence of the Second Punic War. It is not coincidence that a concomitant change also occurred in Roman record keeping at the same time. The dilectus undertaken on the eve of the battle at Cannae was the first time Roman military tribunes administered the oath to recruits. The sacramentum was transformed into an oath administered by Roman officers in charge of the public dilectus, who thereby eclipsed the leaders of private or local forces.42 The change was preceded by the introduction of the new administrative districts. Centuries of infantry and decuriae of cavalry reflect their original coordination with curiae. The centuriate and curiate institutions were distinguished by the military character of the former and the urban nature of the latter. They were mirror images of one another. Soldiers were cives. Centuries of soldiers met outside the pomerium to elect officials with imperium and, as civilians, soldiers met with others in the urban tribal assembly, comitia curiata, to pass the lex curiata de imperio, to elect other officials, and to pass legislation. The curiae incorporated the extensive increases in Roman territory and citizenship, but not efficiently. Military and administrative necessity mandated a larger, more efficient system. Sometime after 241 B.C. the old curiae (tribes) were replaced by thirty-five new tribes, which also were coordinated with the centuries, formed the basis for a new tribal assembly, and were the foundation for the development of more precise census information used for broader recruitment. Membership in gentes became less important after the obligation to supply recruits fell on territorial units and the obligation to serve became incumbent on individual citizens identified by census records. Before 225 B.C., Roman census information is unreliable, but after this date, as a result of the shift to new territorial tribal districts, precise central census records were developed which recorded the names and properties of those with military and financial obligations to the state.43 Fundamental is Livy 22.38.1-5. Walbank, Comm., I: 196-203, defends Polybius’s statistics for 225 B.C. (2.24). Cf. Salmon, Colonization: 82-91; and Brunt, IM: 20-21, 4442 43

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Since Livy had little or no reliable information about anything before the third century, his description of an archaic fourth-century legion is nothing more than an academic corruption based on his knowledge of later manipular legions and of the five Servian census classifications. This legion−according to Livy−consisted of two ranks of men (hastati and principes), each drawn up in fifteen maniples: the thirty maniples constituted the antepilani, composed of the wealthiest citizens. Three additional ranks of men fought behind the antepilani: the triarii, rorarii, and accensi. Each maniple consisted of sixty soldiers and the entire legion numbered about 5000. However, the thirty antepilani maniples, the sixty soldiers per maniple, and the employment of hastati, principes, and triarii, are a conflation of anachronistic details. For example, the second-century legion described by Polybius numbered 4200 men: 1200 hastati, 1200 principes, and 600 triarii, to which were added 1200 velites, corresponding to Livy’s fourth and fifth classes. If we include only hastati, principes, and triarii, both Livy and Polybius number the soldiers in the three ranks at 3000 and both assign the three ranks tactical importance and arm them accordingly. Livy accurately described the triarii as experienced veterans, a characterization that has nothing to do with census qualifications.44 60: “In 225 B.C., on the occasion of a Gallic invasion, the Roman government instructed their allies to make complete returns of ‘men of military age’ ... , the allies readily complied” (84). Thereafter, census records depend on local material and are “based on good authority and are dependable in principle” (33). 44 Livy 8.8-10. Dion. Hal. 4.16-17.2, believed that the first three classes constituted the first three military ranks. The hastati were accompanied by 300 light-armed troops and the entire legion numbered about 5000 men. Each maniple consisted of sixty men and there were 4800 men per legion (5 x 15 x 60 + 300). Once officers, centuriones, standard-bearers, and others are added, the number is nearly 5000. The combined strength of the hastati (1200), principes (900), and triarii (900) was 3000. On triarii, see Varro, LL 5.89; Livy 8.10, on their deployment; and 2.47.5 and 4.19.8 for references to them as veterans. Polybius 6.19-23 said members of the first class were distinguished by a lorica (chain-mail coat); and those worth less than 4000 asses (= 400 drachmae) were destined for the navy. Thus census records contained the names of adult males with military potential regardless of property (cf. Walbank, Comm. I: 697-706). See Brunt, IM: 3-43, esp. 21-22. Livy 26.4.10 said velites were recruited for

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In fact, a combination of the archaeological and literary evidence suggests that the original distinction between hastati and principes was not based on economic status reflected by weaponry, but on age experience. Gradually, tactical changes gave greater weight to hastati and principes, and less to the triarii. Even after maniples were replaced by pedites organized in ten cohorts, each cohort consisted of two centuries from each of the three defunct tactical ranks. However, if Hugh Last is correct that this reform made “it pointless to retain the old distinctions of age and armaments between maniples of hastati, principes, and triarii,” it was not because distinctions in arms were ever based on census ratings used to determine military responsibility.45 In theory each tribe contributed the equivalent of two centuries to each legionary force (35 x 2 x 60 = 4200). However, soldiers recruited from the same tribe eventually were no longer deployed together, but were allocated to separate legions.46 The change reflects centralized Roman control designed to curb local loyalties and favoritism and, perhaps, to prevent potentially dangerous ties between magistrates and troops.47 Normally, each the first time in 211 B.C.−implying lower classes developed late (cf. Gabba, Army: 5). De Sanctis, Storia II: 210, thinks the different ranks once received different pay. Cf. Sumner, JRS (l970): 69-70, on the fourthcentury legion. 45 Last, CAH IX: 147, is certainly wrong to date the reform to the time of Marius. Cornell, AR: 77-78, points to archaeological material and the Iguvine Tables for evidence of youthful hastati; cf. Palmer, AC: 40-44. Walbank, Comm. I. says, “The manipular army with its three ranks of hastati, principes, and triarii, existed in essentials by the time of the war with Pyrrhus, but whereas originally their tactical significance depended on distinction of census, reflected in differrences of equipment, by the time of the Second Punic War, and even more when P[olybiusJ was writing, the distinction at any rate between principes and hastati was not of equipment, but of seniority”(702). 46 Polybius 6.l9-21, 26; cf. Walbank, Comm, I: 701; and Brunt, IM: 627, on tribal levies. Gabba, Army: 53-55, places the first tribal levy in the period after 275 B.C. and attributes its regular use to the First Punic War. 47 Another possible medieval parallel is William the Conqueror’s land grants. Prominent men did not receive large contiguous estates, but were given lands in several different counties in return for service rendered and knights supplied. Not only was opposition reduced, but these men participated in the administration of the central state (see

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consul commanded two veteran legions, often formed from soldiers from several different forces, and together the consuls might recruit new “urban legions” consisting of raw troops and veterans who had not completed their service. The great increase in the number of legions in the field during the Hannibalic War meant that more recruits were needed for replacement units (supplementa) and that fewer veterans were in the new legions because they were on extended duty throughout the empire.48 Consequently, the new urban legions assembled virtually every year during the war consisted largely of raw recruits who did not take the field until they acquired the proper training. They served as the home guard for one year, and the next they served abroad under commanders who had not recruited them.49 All potential recruits did not come to Rome; only those tribules selected to serve in the urban legions did. in 214 B.C., the censors found only two thousand who had avoided required military service (since 218 B.C.) without obtaining exemptions, and in 212 B.C. two separate commissions went in pagis forisque et Keefe, Assessments: 20-22; II: 1-12). Taylor’s conclusion about the distribution of senators among several tribal districts must be qualified accordingly (VD: 270-315). 48 Toynbee, HL II: 528-32, cites the references to urban legions. Packard, Concordance IV: 1289-290, shows that urban legions were usually two in number, but see Livy 42.35.4 (171 B.C.); Brunt, IM: 416-26, esp. 418, discusses urban legions, Supplementa troops, and Roman legionary strength (also see 481, 484, 648-53). Cf. F. E. Adcock, The Roman Art of War under the Republic. (London, 1963): 16-17; and Walbank, Comm. I: 677. Livy 6.9.5; and Appian, BC 3.67, reported their inexperience. 49 See Livy 22.11, 23.14, 23.25.9-10, 24.43-44.7: consuls obtained veteran troops and recruited urban legions; 25.3, 26.28.4; previous year’s urban legions assigned to consul; 27.7-8.11, 27.22: urban legions were not always deployed outside the city the next year or recruited yearly; 34.56: in 193 B.C., two urban legions were commanded to report to Arretium in ten days, and two new urban legions were recruited to take their place; 37.2.6: urban legions recruited by consuls were stationed in Rome, perhaps trained in the Campus Martius (see Livy 3.69.6; cf. 26.31.11), and later directed to muster at a particular location (Livy 23.31.3, at Cales). Polybius 9.6 reported that recruits saved the day when Hannibal marched on the city in 211 B.C. (cf. Walbank, Comm. II: 125-26); and Livy 30.2 said new recruits protected the city and were held in reserve (36.1.9; cf. 33.25.1).

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conciliabulis to recruit soldiers. One of the two commissions operated within, the other beyond, fifty miles of Rome. Apparently, recruits within fifty miles of the city were expected to appear in Rome and join the urban legions. Obviously no complete list of potential recruits yet existed on which to base the call-up, and the manpower supply must have been depleted because under-aged boys were enlisted to meet the demand for additional troops.50 By the end of the third century most soldiers were on duty and rarely attended meetings of the comitia centuriata, which, apparently, for years were attended by youthful recruits from the urban legions. One consequence of this condition was that the comitia centuriata ceased to be a gathering of soldiers. It was reorganized and became a political assembly, and its members and the units in which they gathered no longer had any relationship to either the levy or military formations. Although it continued to elect magistrates with imperium, the comitia centuriata now consisted of thirty-five centuries composed of able-bodied men liable for service (juniors), and thirty-five centuries composed of those no longer called on to serve (seniors). The addition of senior centuries preserved aristocratic influence in the face of greater military and financial reliance on a broader population of citizens. Senior centuries performed the same task in the centuriata that the comitia curiata had earlier: they effectively controlled the exercise of imperium. In turn, the lex curiata de imperio became a formality handled by lictors rather than a question voted on by the cives in the comitia curiata.51 On three occasions between 215 and 210 B.C., specific references to junior and senior centuries are found concerning the praerogativa votes cast by the junior century from the tribe. The story of the juniors from the Voturian tribe consulting the senior 50 Livy 24.18.7 (214 B.C.); 25.5.5-6 (212 B.C.). Sherwin-White, Citizenship: 74-75, 166-67, 206, refers to conciliabula and fora as “substitute for the earlier centres of the tribus rusticae”(74). Livy (7.15.13) referred to conciliabula as administrative centers and (43.14.10) said notice of a levy was published in them. They must have been nuclei of tribal districts previously attributed to curiae. 51 Botsford, RA: 66, 68, 81-82, 205, argues that centuries of seniors were a political reality alone. When seniors were recruited, they were traditionally organized and deployed. See Livy 1.43.2 (cf. 5.10.4; 6.2.6, 6.14; 10.21.4): seniors were in cohorts; Gellius 10.28; and Polybius 6.19.2.

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century from their own tribe about a consular election was told to illustrate the standard of the good old days when young men consulted their elders (i.e., betters). It also illustrates the nature of our problem because the information fails to distinguish adequately between political and military juniors and seniors. The Roman legion was a mixture of centuries of raw recruits and centuries of veterans: ranks of soldiers were distinguished by age and experience. Young men, seventeen and older, in the full flower of youth, saw their first campaigns as hastati: haec prima frons in acie florem iuvenum pubescentium ad militiam habebat. The next rank of maniples consisted of principes who were stronger and older (robustior inde aetas). Finally, the triarii were also proven veterans (veteranum militem spectatae virtutis) distinguished from other younger and less proven troops. Young soldiers might well ask for advice from their elders, but the century of juniors from the Voturian tribe did not consist entirely of youthful soldiers, because the tribal centuries of iuniores in the comitia centuriata consisted of men between seventeen and forty-seven who were able−and obligated−to bear arms. Consequently, the story is inconsistent and misleading; forty-year-old iuniores are portrayed asking still older men for political guidance.52 Although one premise of such stories is the youthfulness of the voters, the tales are not evidence of a generation gap. The privilege of casting the praerogativa vote in the comitia centuriata belonged to the iuniores and is clear proof that the fundamental tension originally was between soldiers and noncombatants. Menin-arms were the natural choice to cast the praerogativa vote, but it was too important politically and militarily to be cast by seventeenyear-old soldiers. I doubt if such youths had a voice in the centuriate assembly, or that soldiers could vote before completing a certain period of service. Polybius mentioned that no one could begin a political career until he had completed, or made himself eligible for, either six or ten campaigns. If this standard was applicable to political life generally, individuals could not stand for office or hold assembly membership until their mid-twenties. 52 Livy 8.8.6-8 (cf. 6.2.6) described the military ranks and referred to tribal centuries and the praerogativa vote; 24.7.12,8.20 (Aniensis); 26.22.2-15 (Voturia); and 27.6.3 (Galeria). The sex suffragia no longer supplied the praerogativa century once they lost their military significance. See Taylor, VA: 93-94.

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Iuniores in the comitia centuriata were men between the ages twentythree or twenty-seven and forty-seven, equivalent to soldiers who had completed the minimum service. Seniors were past that age, but here too distinctions were drawn.53 A Roman proverb concerns sexagenarios de ponte deicere, or the act of throwing sixty-year-old men off the bridge. Normally considered a reference to throwing pensioners into the Tiber during times of famine, it more properly reflects hurling the old men from the voting bridge because as non-warriors they were not entitled to the same influence as soldiers. Those who fought voted on war and elected commanders, and soldiers denied noncombatants influence over these matters. Earlier, men over sixty had served in the army, and in the second century men over forty-seven still were recruited. Increased tribal registration brought more people into the system, however, and eventually regular military service was limited to men between the ages of seventeen and forty-seven; but the restriction was certainly a late development and was accompanied by the requirement that men over fortyseven serve in the home guard. Now men over sixty were considered past the age of performing even home guard service and, as a result, they were begrudged the vote. On the other hand, men between forty-seven and sixty not only voted, but their voting strength in the comitia centuriata was equal to that of the iuniores, although they were scarcely a third of the younger group’s number.54 The consultation between the junior and senior centuries from the same tribe demonstrates the continued domination of the Polybius 6.19. Cf. Walbank, Comm. I: 698; and Mommsen, RS I: 505-10. Brunt, JRS (1962): 80 n.113, notes the corrupt text and suggests six years instead often or sixteen years. 54 Taylor, VA: 92. See Ovid, Fasti 5.633-34; Festus 452L. Ovid called them iuvenes, but Festus iuniores (cf. Ogilvie, Comm. 552). Jones, Democracy: 163-64, presents the parallel Athenian evidence on age limitations. Polybius 2.23.6, 24.16, is frequently ignored (cf. Walbank, Comm. I: 196-203). Brunt, IM: “The only class of citizens (apart from the infirm) of whom it might truly be said that they could not bear arms was in fact that of men over 60”(21). See 51-60 for Brunt’s statistical arguments concerning the large percentage of juniors among population groups. Livy, 22,57.9; 25.5.5, reported recruitment of those under seventeen and the service of those over fifty, 42.33-34. 53

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system by aristocrats after recruitment based on tribal census records threatened their involvement in the levy and thereby their political success in the comitia centuriata. Before the change, presumably all citizens from the same class from all the tribes were randomly assigned to centuries by censors, although after the reform all those from the same class within a tribe voted together in a century. This interpretation is certainly incorrect. It is inconceivable that the influence of prominent men within the old tribes (i.e., curiae) was diffused by separating them from their constituency. Tribules of Voturia continued to vote together in tribal centuries because the practice served the interests of those with the greatest influence in the tribe, but recruits from the tribe were assigned to different legions. The first class did not lose power, although if the general outline of the tradition is accepted most scholars must also tacitly admit that the reform reduced the first class from eighty to seventy centuries (from forty to thirty-five each, junior and senior).55 The disproportionate weight given to the first class in the so-called reformed comitia centuriata was never based on the fact that they ever contributed more soldiers to the legions than other classes. The original centuriate system reflected its military origins: the voting centuries first consisted of soldiers and cives from curiae, and then of juniors and seniors from the thirty-five tribes. The later addition of other classes had nothing to do with service; recruits were never selected by class but by tribal officials responsible for providing Rome with the required contingent. All individuals in the lower classes had at least the minimum census rating and were eligible for military service. Therefore, more soldiers came from the lower classes than from the first class because there were many more people in the lower classes. However, the classes were not organized in the comitia centuriata on the principle of one man with panoply, one vote. In the fully developed assembly, the first class, together with the equestrian centuries, needed only eight votes from the second class to carry the day. The addition of lower classes to the centuriata was politically insignificant: they were rarely called to vote. The development of tribal census records dramatically increased the number of potential recruits and the E. S. Staveley, Greek and Roman Voting and Elections (London, 1972): 126-27, presents a typical interpretation. 55

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addition of other classes dramatically increased tributum.56 Roman demands on the thirty Latin colonies during the Second Punic War illustrate the administrative changes in record keeping designed to facilitate fulfillment of larger quotas of recruits and larger financial contributions. Rome and her allies had established colonies for specific military reasons, and the basis for the formula togatorum was the size of colonial foundations.57 In 209 B.C., representatives of the thirty Latin colonies came to Rome in response to increased demands for men and money. Twelve colonies claimed they were drained of resources and unable to make their fixed contributions of pedites and equites.58 When the twelve remained unmoved by Roman arguments, recruitment went forward within the eighteen colonies that promised to supply their own share of troops and money plus more if needed. In 204 B.C. magistrates and ten leading citizens from each of the twelve colonies were called to Rome, but their plea for continuation of 56 Cicero, Phil. 2.82-83, reported a consular election ending with the second class. On the debate over the “reformed” centuriate assembly, see Taylor, VA: 84-94. Thomsen, Servius Tullius: 156-68, stresses the political nature of the system. Develin, Athenaeum (1978): 346-77, believes the first class once provided the largest percentage of soldiers. 57 See H. Galsterer, Herrschaft und Verwaltung im republikanischen Italien: Die Beziehungen Roms zu den italischen Gemeinden vom Latinerfrieden 338 v. Chr. bis wm Bundesgenossenkrieg 91 v. Chr., MBPAR 68 (1976): 47-51, esp. 48, for the use of military terms and titles in colonies; but the author makes too much of the administrative aspects of the evidence and too little of the military. They are one and the same. 58 Salmon, Italy: 169-71, does not believe that the formula togatorum was fixed. Cf. Brunt, IM: 278-84, 538, 545-48, 677-86; D. W. Barononwski, “The Formula togatorum,” Historia 33 (1984): 248-52; and Toynbee, HL I: 163-71 (land confiscation), 263-65, 424-37. Two of the twelve colonies, Cales and Alba Fucens, were founded by 2500 and 6000 colonists respectively. Interamna, Sora, and Carseoli were colonized by 4000 persons. See Salmon, Colonization: 51, 53, 58-66, and 174 n.65. Brunt, IM: 29-30, 56-57, 259-61, surveys the size of colonies and discusses the size of Roman legions and of allied contributions. He warns against accepting a standard size for Roman legions even after Marius (671-93). Sherwin-White, Citizenship: 106, calls the episode in 209 B.C. an “exception” to the normally close and friendly relations between Latins and Romans. MacMullen, Historia (1984): esp. 445-46, describes recruitment patterns, but the extent to which veterans settled Roman and Latin colonies is unknown (cf. 441-42).

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their exemption from military obligations fell on deaf ears. Rome retained the ten delegates from each colony because they were directly responsible for filling the fixed decimal quotas, and holding them might guarantee compliance. It did. The twelve colonies supplied double the number of foot soldiers previously required and 120 cavalry selected from the wealthiest citizens. If unable to fulfill their equestrian obligation, colonies could supply three pedites for each eques.59 In addition, tributum, called stipendium, was collected from the colonists at the rate of one as per thousand of property evaluation. To implement Rome’s wishes, a census was undertaken, modeled on Roman practices, and colonial magistrates brought the records to Rome and swore to their accuracy. Rome now began to develop a complete record of manpower and wealth available in other communities and regions.60 59 Brunt, IM: “Before 90 allied cities in Italy had their own censuses ....The practice of registering citizens may have been widespread among the Italians before they became subject to Rome”(40). For a defense of local recruitment activity see 524-26. If Brunt is correct that Italian towns−and colonies−averaged approximately 2600 adult males, then the fixed nature of their military obligation to Rome seems assured. For example, hostages taken from Arretium in 208 B.C. numbered 120 sons of senators, and they doubtless were the wealthy citizens and leaders and represented the equestrian obligation (Livy 27.24.4-5). We also have the case of the cohort of 600 armed men sent by Camerinum in 205 B.C., a figure that fits the military obligations of an average-size community (Livy 28.45.20). I find myself generally on Brunt’s side in the debate over the origins of such units (cf. IM: 548, 656). On the Priscae Latinae Coloniae, see Salmon, Colonization: 40-54. 60 Livy, 27.9-10; 29.15, 29.37.7: Duodecim deinde coloniarum, quod numquam antea factum erat, deferentibus ipsarum coloniarum censoribus censum acceperunt ut quantum numero militum, quantum pecunia valerent in publicis tabulis monumenta exstarent (cf. 43.14.1-10). Cicero, Pro Cluentio 14(41), mentioned tampering with local census records (cf. Pro Murena 23l47]: graviter homines honesti atque in suis vicinitatibus et municipiis gratiosi). See Riccobono, FIRA I: 151, lines 142-56 of the Tabula Heraclensis, for an example of later censorial records (cf. Brunt, IM: 15-16, 519-23, 625-34). Quotas were doubled during the Hannibalic War and allied cavalry eventually was three times the size of the Roman contribution (cf. Polybius 3.107.12; 6.26.7, 30.2; and Appian, Hann. 8). M. Livius Salinator, censor 204 B.C., vowed a temple and games to Juventas. He also transferred local census records to Rome. Birth and mortality rates were unknown and so was the precise number of men available for military service. Colonial and allied centers

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Roman, Latin, colonial, and allied regions were included in the thirty-five tribal districts, and their population records were incorporated into new tribal census materials. In the second century, the fixed quotas of recruits were greatly increased by the use of more precise census information.61 For example, in 193 B.C., a Ligurian uprising resulted in the muster of the two urban legions of the previous year at Arretium and in the summons of local magistrates and delegates from socii et Latino nomini to Rome. They were charged with the responsibility of raising cavalry and infantry contingents in proportion to the specific number of militarily eligible men in their respective cities: pro numero cuiusque iuniorum. Consequently, in 187 B.C., twelve thousand Latins were taken off the Roman census and forced to return home because the pool of potential recruits had been reduced by migrations. Rome was now using specific, up-to-date census information to demand additional troops. The names of one and all were now to be reported and recorded on the tribal register. Assessment of total community wealth was another way to tap the local resources in a manner beneficial to the military. Property qualifications established criteria for placing names on the list and thereby increased potential recruits.62 within tribal districts had supplied fixed numbers of recruits. Now the names of young men who reached military age were to be recorded by a payment to the treasury of Juventas and by a sacrifice to Jupiter−a “national,” not a patrician deity. See Scullard, Festivals: 208-9; Ogilvie, Comm: 750. 61 Sherwin-White, Citizenship: 107, discusses migration and its denial and concludes that the census records were used “instead, apparently, of demands for a fixed quota.” 62 Livy 34.56-4-7 (193 B.C.); 39.3-4-6 (187 B.C.). In 177 B.C. Latins who had migrated to Rome after 189 B.C. were also returned home (41.9.9-12). See MRR I: 368 (cf. 398); J. Beloch, Die Bevölkerung der griechischrömischen Welt (Leipzig, 1886): 354; and Sherwin-White, Citizenship: “The tribal settlements seem ... to be connected in most instances with the foundation of a colonia Latina in the same adjacent districts .... As the Latin colonies of this period were increasingly Roman in foundation and composition, the military and political isolation of the new tribes was much reduced”(199-200). Tribal expansion was always into contiguous territory (cf. Taylor, VD: 47-56). Census information did not make Rome’s demands less troublesome to marginally successful communities. By 199 B.C. Narnia and Cosa were depopulated and presumably could not have

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The nature and purpose of the innovation can be understood more clearly with the aid of another specific medieval parallel. Under William the Conqueror, tenants-in-chief had a significantly larger number of knights obligated to serve them personally than they owed to the king. Consequently, all knights were not called on constantly to serve the crown and therefore were not only the source for a potentially larger military force; they were also a danger to the crown’s effort to centralize control.63 Henry II knew that many more knights were enfeoffed by tenantsin-chief than were promised the crown. Consequently, he required oaths from individual knights and from those in hundreds and boroughs who owed him service. Sheriffs instructed tenants-inchief to declare how many knights were currently enfeoffed on their estates and how many were actually owed to the king based “on your demesne.” Finally, the king recorded individual names of knights supplied by tenants. Such records allowed Henry to organize the military obligations directly, and he thereby circumvented the tenants-in-chief and reduced the threat to his central auuthority. Nearly seventy percent of the knights’ fees were controlled by sixty barons, while earlier, William’s system had included approximately 180 tenants-in-chief. Whether we focus on the smaller or larger number, at one time relatively few baronial units made up the bulk of the military force and the trend was toward fewer men exercising greater military control. The important change occurred when the barons who filled decimal quotas were required to register all individuals obligated to them personally.64 fulfilled their quotas during the Second Punic War (Livy 32.2; 33.24; cf. Toynbee, HL II: 91, 108, 144, 202). 63 For example, sixty-four men owed the Archbishop of Canterbury over nine hundred knights, but at the time the crown only required sixty from Canterbury. See Douglas, Documents II: 898; and Harvey, P&P (1970): 10-1. Cf. P. Contamine, War in the Middle Ages (Oxford, 1984): 53. 64 Douglas, Documents, II: 416-17, 903-4. Keefe, Assessments: 5759, 64-65, 86, believes Henry was 87 percent successful in assessing obligations on the actual knights’ fee which the barons had created (7525), in comparison to their obligations to the crown (nearly 5300). Hollister, Military: 49; Powicke, Military: 29-34, suggests there were approximately 180 tenants-in-chief who supplied a total of six thousand knights. It is only coincidence that the number of houses nearly parallels the number of

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A similar change occurred in Rome when the city began to employ centralized records. Not only were local resources more heavily used by Rome, but local autonomy was gradually undermined in other respects. The numismatic evidence clearly points to the disappearance of non-Roman Italian coinage beginning in the late third century. Local issues had been used to pay locally recruited troops, but they were no longer needed after allied troops were commanded by Romans and paid stipendium on a Roman standard with Roman coins. Occasionally, tributum was substituted for local contingents. For instance, in 204 B.C., the substitution of three foot soldiers for an equestrian was based on the rate of pay, stipendium, not on the ratio of infantry to cavalry forces. Equestrians received three times the pay, rations, and booty of pedites, but the ratio of infantry to equestrian in a legion was more than ten to one. Obviously, commutation was a financial calculation that reduced locally recruited troops in favor of men selected by Rome.65 Furthermore, the nature of the extensive colonization that followed the Second Punic War fits the trend inasmuch as it was the reverse of earlier practices. Citizen, not Latin, colonies became the norm after the war, and the change necessitated a broader registration of colonists for military, not the commonly assumed political, purposes. Renewed efforts to register freedmen more Roman “clans” (see Mitchell, “Aristocracy” [n.b. reprinted above]), but the systems worked essentially the same way. See Mitchell, Patricians and Plebeians, Chapter 2: nn. 34-43, for full references to medieval sources. 65 Livy 29.15.7 (204 B.C.). See Boren, Historia (1983): 441-42, on rates of pay, and 456, on military origins of coinage. Cf. Gelzer, Nobility: 78, nn.37-49. Allies selected local officials including paymasters (Polybius, 6.21-4-5), but by the second century allies were commanded by Romans (see Livy 33.36.5; and Polybius 6.27.5). Walbank, Comm. 1: 709, 722: allies “must have made a gross payment to Rome to cover the central provisioning and equipping of the allied troops.” Cf. Crawford, Coinage: esp. 52-74; but I cannot accept that “the war against Hannibal had resulted in the simple submergence of the other coinages of the Italian peninsula”(71). The solution is too simple. R. M. Cook, “Speculation on the Origins of Coinage,” Historia 7 (1958): 257-62; Starr, Economic and Social Growth: 113; and C. M. Kraay, Archaic and Classical Greek Coinage (London, 1976): 326, all point to the military origins of coin issues. Latins received the same donatives and pay as Romans. See Livy 40.43.5 and 4543-4, but cf. 41.13.6, for the exception that proves the rule.

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effectively were made for the same reason. As early as the Second Samnite War, Appius Claudius Caecus presumably permitted humiles to enroll in all the tribes (curiae), and also improved the status of freedmen and their sons by admitting them to the Senate and the tribes. On the eve of the Second Punic War freedmen were registered in the four urban tribes, and by 189 B.C., a tribunician measure empowered the censors to enroll as a citizen anyone so long as his parents were free. The same censors now also registered Campanians, although not necessarily elevating them to full citizenship. Campanians, in particular Capuans, were to register at Rome, they were granted the right to marry Roman women, and their children from earlier unions with Romans were declared legitimate. Doubtless, the aforementioned censorial activity was undertaken more for recruitment than political purposes.66 By 179 B.C., a thorough revision of tribal registration was in order. Livy said at that time “the censors changed the method of voting and constituted the tribes according to districts and to the classes and situations and occupations of the members [or their age and wealth?].” This was the presumed reform of the so-called Servian constitution. For the first time, five classes of junior and senior tribal centuries were recognized by censors, who also assigned separate centuries to several occupational groups. In the census of 174 B.C., freedmen with five year-old sons and farms worth 30,000 HS were enrolled in rural tribes, and this is the earliest reliable specific reference to second-class census status (30,000 HS = 75,000 asses) and must be near the time when the five census classes were introduced. This conclusion is strongly supported by the fact that the classifications are expressed in terms of a coinage standard introduced no earlier than the Second Punic War. In 169 B.C., freedmen were restricted to one urban tribe.67 66 Salmon, Colonization: 82-111, esp. 103, discusses changes in colonial settlements. Livy 9.46.11 (Appius Claudius); and 10.21.4 (296 B.C.). Libertini enlisted in the centuries; Per. 20 (220-219 B.C.); Livy 38.28.2-4, 36.5-10; and Plutarch, Flam. 18.1 (189 B.C.). Mommsen, RS II: 436-37; and Taylor, VD: 18, 138, 308, believe the tribune’s bill concerned sons of freedmen. On Campanians see Brunt, IM: 17-21, 71172; SherwinWhite, Citizenship: 211; and Salmon, The Making of Roman Italy: 118, 175-76. 67 Livy 40.51.9 (179 B.C.): mutarunt suffragia, regionatimque generibus hominum causisque et quaestibus tribus discripserunt (cf. 10.21.3). The scholarly debate is whether this passage also refers to freedmen. Treggiari, Freedmen:

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Whether colonists or freedmen possessed property sufficient to be rated in higher classes, they had to come to Rome to vote, and both colonists and freedmen remained obligated to their patrons. Consequently, their political influence was restricted, but tribal registration made them eligible for military service and classification obligated them to pay tributum.68 We do not know if tributum was an annual or occasional tax, but in 215 B.C., as a consequence of the emergencies created by the Second Punic War, it was doubled to cover military pay and its collection was more frequent thereafter. A minimum census level established responsibility, but there are indications that initially only wealthy classes of citizens were identified. In 214 B.C., emergency contributions were obtained from five economic classes of citizens, but they were not the “Servian” classes. Those with property valued between 50,000 and 100,000 asses furnished one slave for the navy and provided him with rations for a month and pay for six months; those with property valued between 100,000 and 300,000 asses furnished three sailors for a full year; those valued at 300,000 to 1,000,000 supplied five sailors; those over 1,000,000 were responsible for seven; and senators supplied eight sailors for a year. Similar “loans” were requested in 210 B.C. and, with considerable rhetorical flourish, the story is told of how private contributions from patriotic citizens provided support for the war in proportion ex censu ordinibusque. Senators, equestrians, and plebeians are specifically mentioned, and while equestrians and plebeians correspond to Servian classifications, there is only one class of plebeians. Responsible individuals must have been 37-57, correctly believes that Livy 45.15.1 (169 B.C.), said the censors of 174, not 179 B.C., enrolled freedmen (see 31-36, for the number of libertini). In general, the views of C. Nicolet, “La reforme des cornices de 179 av. J.C.,” RHD 39 (1961) 341-68; and Citizen 223, are acceptable and his translation is quoted. Thomsen, Servius Tullius: 149-66, accepts Nicolet. Cf. Sumner, AJP (1978): 524-25. When those who supplied their own armor obtained political power, Aristotle said, they were required to have formed legitimate marriages and to have legitimate children (Ath. Pol. 4). 68 In general, see Tibiletti, Athenaeum (1950): 219-27; Taylor, VD: 86, 138-41, 148-49; VA: 98-99, 155; Palmer, AC: 69-74. Livy 33.24.8 implied Italians became citizens of Latin colonies, thereby obtaining Latin rights and obligations. Salmon, Colonization: 104, 186 n. 180: “The man responsible for a foundation became its patron and settlers in it became his clients.” Cf. Badian, FC: 162-63, 237-38, 245-46; and Taylor, VD: 305.

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identified from existing public tribal census records, which included the number of slaves owned. True, these were emergency measures, but the principle is the same for tributum and for the Servian classes: classification was done for political and economic reasons and had nothing to do with military service. Those who paid were not necessarily those who served; those who served were not necessarily members of the classes because tributum was used to support slaves, capite censi, and proletarii, all of whom were included in the tribal census but did not belong to tribal centuries.69 Originally, tributum was treated as a private loan to the state, repayable with interest. Therefore the emergency contributions during the Second Punic War were not unselfish acts but simply rhetorical examples of standard practice. Because the demand for tributum fell on the wealthy before the introduction of classes, the financial rewards from war did not trickle down the economic ladder. For example, the wealthy who made loans during the Hannibalic War were partly repaid by grants of valuable public land within fifty miles of Rome. In turn, possessors paid a nominal tax of one as per iugerum as recognition of the land’s public nature. If a iugerum was generally valued at approximately 100 denarii (= 1000 asses), the rate was one as per 1000 of the assessment, equivalent to the rate imposed on the reluctant colonists in 204 69 Livy 23.31.1 (215 B.C.); cf. Nicolet, Citizen: 159. We do not know if tributum was limited to the amount necessary to pay recruited tribules. Livy 7.27-4 suggests it was not annual. See Livy 24.11 (214 B.C., but cf. 34.6), and 26.35-36 (210 B.C.). Brunt, IM: 28-29, 700, says tributum was a “regressive tax”; and Nicolet, Citizen: 167, claims it was “progressive.” Slaves evidently were purchased for both infantry and cavalry service (Livy 22.57.11; cf. 26.35.5; Val. Max. 7.6.1). See Brunt, IM: 648-51; and Boren, Historia (1983): 432-33. Perhaps the classis once consisted of those with 120,000 asses of wealth, a figure supported by Timaeus; see Pliny, NH 33-43; and 33.2(8).34, for three ordines−senators, equestrians, and plebeians. Cf. Tacitus, Hist. 1.4; Festus 100L; and Gellius 6.13, quoting Cato the Elder: Classici dicebantur non omnes qui quinque classibus erant, sed primae tantum classis homines qui centum et viginti quinque milia aeris ampliusque censi erant. Infra classem autem appellabantur secundae classis ceterarumque omnium classium qui minore summa aeris, quam quod supra dixi, censebantur. Hoc eo strictim notavi, quoniam in M. Catonis oratione, Qua Voconiam legem sausit, quaeri solet quid sit “classici,” quid “infra classem.” As censor (184 B.C.), Cato recognized only one class and was the first to collect tributum on personal property. See Broughton, MRR 1: 374-75.

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B.C. On property valued at 100,000 asses (= first-class status), the tax was 100 asses, hardly punitive for the colonists, but it does suggest that colonies were settled on public property.70 The loans were also partly repaid by funds collected from priests, who normally were exempt from military service. Because they had not provided stipendium, however, priests now were required to pay their share of the total amount demanded during the war as their contribution to repaying the loans.71 The situation was greatly eased by the extraordinary financial windfall from the campaign of Cn. Manlius Vulso, in 187 B.C., which netted 25.5 asses per 1000 of census assessment-a considerable return on an investment in war. Finally, in 167 B.C., after the successful war against Perseus, citizens were not asked to pay tributum until the time of Julius Caesar. However, allies−including Latins−were not exempt from making financial contributions to Rome’s military efforts, and neither were many others who for the first time were included in the census data.72 70 Dion. Hal. 5-47.1; 19.16.3; repayment. Livy 25.12.9-14; private and public contributions in 212 B.C. Shatzman, Historia (1972): 188-98, overlooks the repayment of tributum from treasury funds. Polybius 23.14.7 said Scipio received funds from Antiochus to pay troops, and Scipio was prosecuted for failure to turn funds over to the treasury, from which presumably tributum could be repaid. The Duillius inscription recorded navaled praedad poplom [donavet], meaning booty was used to repay donations to the war effort (CIL 1.2: 193). Rome conquered the world by selling shares in a profitable enterprise. Cicero, De off. 2.21 (73); 24(85), argued that not only the rich should contribute. Livy 29.16.2-3 (nec plebe ad tributum sufficient); and 31.13.2-9 (cf. 23.48-49), referred to the inability of plebeians to supply funds and described the trientabulum. Possibly, land within fifty miles of Rome obligated the possessors in other ways. Frank, Economic Survey I: 125, 168, 365, presents the unsatisfactory evidence for land prices; cf. Duncan-Jones, ERE: 39-40, 48-52, for equally unreliable Empire figures. Cf. Briscoe, Comm: 91-93; and Nicolet, Citizen: 168-69. 71 Plutarch, Cam. 41.6; and Marcellus 3.2-3 suggested priests were exempt from service; while Livy 33-42-4 mentioned that pontiffs and augurs had not paid stipendium, i.e., tributum. 72 Livy 39.7.5. Toynbee, HL II: 174-75, says repayment covered more than twenty-five years of tributum, but probably it covered the pay of the soldiers with Fulvius. If one as per 1000 was a monthly rate, those in the first class paid the equivalent of the annual stipendium for a pedes: 1200 asses. Consequently, the return was equal to a little more than two years’ pay. In fact, Fulvius paid the soldiers stipendium duplex (Livy 39.7.2). See

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Tribal census records obviously included more than actual or potential military personnel. Listed were senior men over sixty, minors, wards, women, and slaves, among others. However, magisterial scrutiny of the condition and fate of Roman widows and orphans was not motivated by public interest in maintaining the family or preserving private religious traditions. A list of orbi and orbae was included in the census because they were taxed to pay and support Roman military personnel. Females and children did not fight but they did inherit property that traditionally supported soldiers. During the financial emergency of 215-214 B.C., we first hear that the state borrowed the funds of widows and orphans. Without public registration of women and orphans, a large source of support for the military would have gone untapped.73 Furthermore, specific laws, frequently cited as evidence of the state’s interest in traditional religious or family practices, were more important for military reasons. For example, the lex Voconia, traditionally dated to 169 B.C., decreed that persons in the first class could not make women their primary heirs or give anyone a share larger than the heirs received. The measure may be less “antifeminist” than Watson assumes and more pro-military in origin, since the law prevented a decline in the number of males with obligations to the state based on their inheritance of first-class census rating.74 Nicolet, Citizen: 153-56; “The Tributum: A Tax or a Loan?”; Brunt, IM: 15-16, 21-22, 34-35, 538, 641-42; and Crawford, Coinage: 97. 73 Brunt, IM: 3-43, esp. 21-22, includes cives sine suffragio in the census; cf. Gabba, Army: 7-8, 20-21; but soldiers were never ex classibus. Widows contributed to the maintenance of cavalry (Livy 1.43; cf. Ogilvie, Comm: 171-72), and so did orphans (Plutarch, Cam. 2.2-3; Livy 5.7.7; Val. Max. 2.9.1; cf. Ogilvie, Comm: 643-44). Livy 3.3.9, 24.18.13-14, reported census figures praeter orbos orbasque and the funds borrowed from widows and orphans in 214 B.C. In Per. 59, the census enumerated 318,823 persons praeter [pupillos] pupillas et viduas. Obviously widows and orphans remained on a census list after 167 B.C. when tributum ended. 74 Watson, Ancient Romans: 86. The law was not enforced and aristocrats got around it. See Crook, “Women:” 60, 65-67, 69-71; S. Pomeroy, “The Relationship of the Married Woman to Her Blood Relatives in Rome,” Ancient Society 7 (1976): 222-23; and Gardner, Women: 55, 72, 78, and 170-77. The effect of the lex Voconia is questioned because tributum stopped being collected after 167 B.C. No distinction existed, however, between those who served and did not pay and those who did

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At first, detailed census records did not exist and were not needed; the original census was simply a review of those called to arms. The extraordinary military and financial demands of the late third century mandated a more complete record of manpower and resources, and the oath administered by the censors of 169 B.C. reflected changes in the system. Censors required citizens to swear that if they were under forty-seven years of age, they would present themselves for the dilectus in response to the censorial order, and as long as they were not enlisted they would continue to appear for service whenever needed as long as the censors were in office. All citizens did not present themselves; only those who were sui iuris were compelled to appear before the censors, or their local equivalent, to make their professions. Citizens stated their full names, including gentilitial and tribal affiliations, names of fathers and grandfathers, or−in the case of freedmen−names of patrons. They reported the names of their wives, of all children under their potestas, including those on leave from the army and those who claimed to have been discharged. They also gave a complete account of their property, including the number of slaves.75 The person making the profession was sui iuris, which meant he was considered the paterfamilias, the individual who presumably exercised absolute control over family property and absolute authority (potestas) over all members of the family. Patria potestas is such a common feature of Roman history and law books it will come as a surprise not only that it is unreliable and nearly unworkable as a concept, but that it was not discussed in the Twelve Table Laws, and is very nearly absent from Roman law generally. It is more a product of Roman legal theory and modern scholarship than a characteristic of Roman society.76 neither. Citizens in the classes must have continued to give some form of support unless an all-volunteer military system paid for by booty and indemnities is postulated. Cicero, De rep. 3.17, said the law utilitatis vivorum gratia rogata in mulieres plena est iniuriae (cf. De senec. 5.14). 75 Brunt, IM: 15-6, 37-38, 396, 536-37, 629-33, presents the census depiction together with some speculative additions, such as that only a wife who was in manu or sui iuris was recorded. Varro, LL 6.86-88, indicated that not all citizens spoke for themselves. Livy 43. 14.1-10 is central to depiction of the census. 76 Cf. Watson, XII Tables: 47-51; Jolowicz, Introduction: 118. As concepts, patria potestas and agnation are the product of Rome’s legalizing

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Most interpretations attempt to explain the absence of patria potestas by illustrating how it was circumvented in practice, but it has so little relevance to public or private life it must be redefined according to the best legal and historical evidence. The truth is that the person who registered the family and its property before the censors was defined as the paterfamilias. He did not exercise absolute authority over family members; rather, he registered them under his name and thereby guaranteed a public record of hereditary succession. Regardless of their age, all sons were registered by their fathers. A father who withheld the name of a son from the census, and thus kept him from fulfilling his hereditary obligations, was subject to severe punishment. Wives, widows, daughters, minor children, and orphans were registered because they also were obligated.77 From the state’s point of view, it was important not only to determine who inherited but to record what was inherited because wealth determined classification, influence in the comitia centuriata, and military and financial obligations to the state. The pater familias gave a complete account of family wealth, and the concept of patria potestas developed as a direct consequence of the state’s desire to maintain census records and to identify those with public responsibilities. All sons inherited their father’s estate jointly and with it his economic classification and public privileges. Some may have found it difficult to fulfill their fathers’ military responsibility. The result was land hunger and demand for economic relief from the fixed financial and military requirements imposed on static estates. Since the public, centralized census records were developed in the third century, improved demographic information increased the military and financial tendencies and theoretical approach to legal problems. See Crook, CQ (1967): 1, 13-22: patria potestas is not an Indo-European survival, or anomaly, but “a product of Roman interests in precise legal formulations, rather than as an Indo-European survival” (cf. his Law 109). See Daube, Law: 75-76. 77 Emancipatio was used to avoid it (Jolowicz, Introduction: 118; cf. Val. Max. 8.6.3). See Daube, Law: 83-85, on peculium. Against earlier rationalizations of patria potestas, Saller, Continuity and Change: 7-22, holds the field and notes the absence of patria potestas from Cicero’s letters. For the punishment of those who failed to register, see Dig. 49.16.4.1-11; cf. Brunt, IM: esp. 391-92.

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burden on the poor, and even citizens of modest means were overburdened. Consequently, the idea was born of a struggle between plebeian soldiers and those who controlled institutions of government.78 Intestate succession was extremely common, and rules governing it clearly demonstrate public interest in establishing hereditary obligations. When a father died, sons were sui heredes and inherited automatically. If old enough, each one also became sui iuris, meaning he was a pater familias and required to make a censorial profession. If no son existed, then agnates fulfilled the hereditary obligations; if no near agnate, then the gentiles. Originally, gentiles were companions with whom the deceased served and before whom he made his will. To avoid legal entanglements resulting from death in battle or in foreign lands, soldiers made unwritten wills in procinctu, in military formation, before three or four witnesses. This was a convenient method for fixing succession for those without sui heredes, and for fixing responsibility on those who inherited weapons and personal military equipment. Gentiles from the same curiae once served together, but the obligation to serve was subsequently imposed on members of the thirty-five tribal units that superseded the curiae in the late third century. 78 Livy 42.34.4-12. A veteran over fifty was enlisted although he had already served twenty-two years and four of his sons were also in military service. He said, vacationem daret, tamen, cum quattuor mitites pro me vobis dare, P. Licini, possem, aecum erat me dimitti. Apparently, he could claim exemption because of age and years of service, even if he had not been succeeded by four soldiers. The four substitutes were his sons, referred to earlier as having reached manhood: filii quattuor togas viriles habent, duo praetextati sunt. In the emergency of 214 B.C., tributum was assessed on a citizen’s personal census rating, or failing that, on his father’s (cf. Livy 24.1). See Jolowicz, Introduction: 126-32, on succession. The heredium is debated but usually is seen as a small private orchard and technically the only personal land alienable. Varro, RR 1.10.2; and Pliny, NH 18.2.7, said the heredium consisted of the two iugera assigned to each citizen. Zulueta, II: 174-78, discusses (Gaius, Inst. 3.154a-b) the archaic form of societas between sui heredes who did not divide their hereditas, but treated it as community property. Cf. MacDowell, Law: 92-108; and Frost, Historia (1984): 294 n.54, for Greek parallels, but I do not agree with Frost that “the reforms of Cleisthenes [were] crisis legislation designed to mobilize a national army by some rationale other than the land hunger of surplus sons.”

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Thereafter, wills in procinctu disappeared. However proud Romans were of their ancestral religious practices and however strongly they believed in the fundamental importance of the family, we should not be blinded by the argument that these were private concerns of interest to aristocrats. The state not only supervised hereditary succession to priesthoods; it maintained a strong interest in the hereditary military and financial obligations of citizens.79 OUR HISTORIOGRAPHICAL CHALLENGE The “central occupation of the ancient state” was war, to borrow a phrase from Finley.80 Rome was no exception. Rome became a city when an arbitrary institutional system was imposed to facilitate its vocational purpose. Rome had a military aristocracy, but its primary concern did not preclude the emergence within its ranks of a hereditary religious elite (patres) that monopolized priesthoods and religious privileges and collected and transmitted religious, legal, and public records. The fundamental division in society was between the military and the nonmilitary (domestic) elements. The major change that occurred was the transformation of private, locally recruited military forces (hoplites and clients) into an army of soldiers recruited from a considerably expanded pool of citizens. As a consequence, a corresponding alteration occurred in Roman political life, which increasingly focused on social, economic, and political concerns of citizens in general. Plebeian officials appeared when urban political concerns were insignificant and secondary to military matters. They began as regular, but relatively unimportant, officials primarily concerned with military affairs and with the citizen/soldier’s rights and responsibilities to the state. As the only urban officials of any consequence, gradually they developed an interest in the expanded domestic, political concerns of the enlarged citizenry. This interpretation is not found in the sources, but it is confirmed by a close examination of reliable material about early See Gellius 15.27.3 on procinctus; cf. 1.11.3; Cicero, De nat. deor. 2.3.9; Gaius, Inst. 2. 101; and Plutarch, Cor. 9. Cf. Mommsen, RG II: 1.1, 307-8; Watson, XII Tables: 66, esp. n.38; the will was a military version of the testament before the comitia calata. 80 Finley, Ancient History: 75, appropriately notes Livy 1.19.2-3: the doors to the Temple of Janus were seldom closed. 79

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Rome. This material was not preserved for historical purposes and its context was unknown. It was not collected, preserved, or transmitted as part of a historical interpretation of how Rome developed internally and externally. It did, however, contain references to patres, plebs, conscripti, and many other words, titles, powers, and phrases relevant to the problems investigated. At the end of the third century, Romans began to reflect on their past, to justify their success, and to lament current conditions. They created an idealized past and misinterpreted the details preserved in the material surviving from the earlier period as evidence that Roman public and private standards had declined. Presumably, politics, religion, marriage, and family life had all changed, and earlier practices were reconstructed according to preconceived notions of historical development. The original importance of the material is obscured by its misinterpretation, but authentic details emerge because they are inconsistent with the account and they demand an alternative explanation. By accepting the authenticity of particular legal and religious pieces of information, but rejecting their interpretation as evidence for the struggle, we discover a society and political history very different from traditional depictions by ancient authors and modern scholars. The next stage of the project is rewriting Roman historical development in a fashion consistent with what has been uncovered.

DEMANDS FOR LAND REDISTRIBUTION AND DEBT REDUCTION IN THE ROMAN REPUBLIC As posited in the conclusion of his monograph, Patricians and Plebeians: the Origin of the Roman State, the logical challenge of Mitchell’s conclusions is to re-examine all the details formerly assigned to the “struggle” context and see what sense they make on their own. Demands for land certainly fall into that category.* In every period of Roman history readers encounter cries for justice, and we can learn a great deal about Roman attitudes toward social justice by concentrating on the earliest demands for land redistribution and debt relief. Furthermore, instead of a comprehensive treatment of social justice, this discussion will serve as a “still” photograph to elucidate what remained static and what changed in the demands for social justice throughout Roman history. Roman history, of course, was not systematically chronicled, nor was the city’s past interpreted until after 200 and our extant treatments of the earlier period are even later−much later.1 The momentous social, economic, and political events of the * This article, first published in K.D. Irani and Morris Silver (eds.) Social Justice in the Ancient World (Westport, 1995), is derived from the paper Mitchell delivered in 1993 at a conference on “Social Justice in the Ancient World” held at the City College of the City University of New York in March of 1993. The initial

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second and first centuries shaped the portrayal of earlier events, and later laments were telescoped back into the early history of Rome. “The Roman revolution,” says P. A. Brunt, “which transformed an oligarchic Republic into the Principate of Augustus, had its origins ... partly in the misery of the poor, in a social crisis...; it began with the Gracchi and with agrarian reform, and agrarian reform remained a leitmotiv in the turbulent century that followed..... Modern accounts tend to obscure or even deny the unity of this theme throughout the period. It is true,” Brunt continues, “that in the earlier [Gracchan] phase reformers were more concerned to find remedies for social distress as such, and in the later to provide homes for veterans. But the Gracchan settlers and the veterans had two things in common: they were mostly countrymen, and they desired to obtain a secure livelihood by owning their own land.”2 I will concentrate on features accepted as accurate reflections of early Roman society, because, as Brunt further points out, there are no late Republican analogies to them, and they could “never have occurred in the time of any annalist.”3 The Roman aristocracy was military in nature, and warfare was its primary occupation. When Livy introduced the reign of King Numa Pompilius, he said that Numa founded Rome anew because Romulus’s city had been conditam vi et armis, but Livy added that war dehumanized the human spirit and Numa wanted to soften the savage behavior of the Romans by introducing the cult of Janus, whose temple doors were to be closed when the state was at peace. Peace seldom broke out. The only time that the temple doors were closed before the Battle of Actium was after the First Punic War when a ceremonial closing highlighted the end of a vigorous campaign, but the occasion was immediately followed by transition from oral presentation to published article required some compression on account of editorial restrictions. The text here is that of the published article although a significant modification of the notes has been undertaken for the sake of overall consistency. All dates are B.C.E., and all translations, unless noted, are from the Loeb editions. 1 J.A. Crook, Law and Life of Rome (Ithaca, 1967): 8, is the origin of the idea of a “still” photograph. 2 P.A. Brunt “The Army and the Land in the Roman Revolution,” JRS 52 (1962): 69. 3 Brunt IM: 639, n.1.

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a great deal of unceremonious military preparation and activity.4 Livy understandably praised peace, but before his generation such an attitude was unique. In fact, war was commonplace and was considered natural between sovereign states, the enslavement of defeated peoples was the natural consequence of war, and the successful creation of empire by extensive warfare was a desirable goal. Moreover, while aristocratic “Romans accepted war and military service as fields in which a man’s virtus could be seen to best advantage,”5 there is little doubt that warfare was also the most profitable endeavor undertaken during the archaic period and that economic motives−broadly perceived−were the principal impetus behind such activity. There is less doubt that warfare was not uniformly beneficial to all Romans even when victorious, and this brief investigation attempts to arrive at a better understanding of some social, economic, and political effects of continuous warfare on those who fought.6 Soldiers are the focus because the first cries for justice came from poor citizens oppressed by military service. The story of Rome’s foundation is familiar, but it is worth remembering that the city presumably began as an asylum for paupers and outlaws, who had to steal women in order to be fruitful and multiply. In general, Roman kings were depicted as more popular with the masses descended from those paupers than they were with the aristocracy, which is to say that plebeians supported monarchy more than did patricians. We can skip over how earlier kings gained popularity among plebeians and will confine our survey of kingly behavior to Servius Tullius’ repayment of the debts of the poor from his own purse. The king thought it unjust that soldiers who had fought, won, and guaranteed liberty for others should lose it themselves. Servius declared that borrowers should not be imprisoned for their indebtedness, and he prohibited making loans on the security of free persons, that is, requiring free persons to give their bodies and liberty−as security. Creditors had to be satisfied with the debtor’s property. The king Livy 1.19; Ogilvie, Commentary: 93-94. Ogilvie, Commentary: 95. 6 Momigliano, in SSAR: 189, sees our failure to comprehend the effect of continuous warfare as one of two difficulties, the other being misunderstanding the fifth-century plebeian movement by focusing on the compromise of 366. 4 5

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also introduced the census so that property owners would pay their share of the war tax. “For I regard it as both just and advantageous to the public,” Servius said, “that those who possess much should pay much in taxes and those who have little should pay little.”7 He declared that public lands acquired by the military success of the poor should not be monopolized by the wealthiest citizens. Ager publicus was to be divided into lots and given to those without property so that they, as freemen, could cultivate their own lands and not have to work the lands of others as slaves. A list of debtors was compiled and tables set up in the Forum from which creditors were paid and an edict was issued demanding that those currently enjoying the use of public lands should give up possession and that those citizens without allotments of land should make their names known.8 Servius believed that patricians plotted against him because his program benefited the poor and because the patricians were not allowed to treat plebeians unjustly and to consider them slaves. Creditors were unhappy because they could not haul debtors off to prison, and wealthy and prominent individuals−that is, senators and patricians−who misappropriated public property were unhappy because they were not allowed to retain land acquired by the blood of the poor and to continue considering the land their private inheritance. The census also angered those who were no longer exempt from taxes and who were now required to pay their fair share. Mostly, however, the opposition to Servius was because he made everyone subject to written laws and made justice impartial; as a consequence the poor were no longer treated like chattel slaves.9 Servius is really a prototype and the reports of his written laws, land redistribution, debt relief, or collection of taxes are not

Dion. Hal. 4.9. Dion. Hal. 4.8-10 has the most complete, but needless to say, the most suspect account. Cicero, Repub. 2.21 and Livy 1.41-48 supply other details incorporated into this summary. E. Gabba, Dionysius and The History of Archaic Rome (Berkeley, 1991): 172-89, is an excellent survey of the regal tradition. 9 Dion. Hal. 4.11-13; cf. Livy 1.41.6,46.1. 7 8

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reliable.10 Servius had seized the throne and courted the support of poor citizens to counter aristocratic opposition to his reign. The conservative views expressed by our sources overwhelmingly favor the status quo and firmly endorse the notion that those who called for land redistribution or debt relief actually were trying to parlay popularity into monarchy or tyranny. As the example of Servius demonstrated, anyone advocating popular reform was up to no good.11 But there can be little doubt that the motivation for reform during any period of Roman history was not simply the personal ambition or factional alliance of those who advocated redressing grievances. The first cries for justice during the Republic repeat those heard during the monarchy, but Livy first reported them after the death of Tarquin Superbus when patricians began to indulge themselves excessively at the expense of plebeians. Heretofore plebeians were shown every deference out of fear they would make common cause with Tarquin. Following his death, those pressed into military service complained about losing their farms and becoming debtors as a result of service.12 The best illustration of the aforementioned condition is the story of the first plebeian secessio in 494. The Romans had defeated the Latins at Lake Regillus and, although war with the Volsci was imminent, civil strife raged because the preservers of the state’s liberty were losing their own: soldiers were being enslaved for debt. Particularly graphic is the description of the old veteran who appeared in the Forum. Although disheveled, ragged, and emaciated, he was recognized as a well-decorated courageous centurion whose scars of honor were visible on his chest. The crowd that gathered wanted to know how he came to this sorry state. He said that while serving during the Sabine War, his fields 10 Cf. Watson “Roman Private Law and the Leges Regiae,” JRS 62 (1972): 100-105, for faith in regal laws, and Momigliano (1963): 95-121, for acceptance of much of the traditional outline. 11 See Livy 2.46: Servius used land grants to gain support from plebeians; 3.39.9 (cf. Ogilvie Commentary: 470-71). Standard is Cicero, Pro Sestio 96: “Those who have wished their deeds and words to be pleasing to the multitude have been held to be populares and those who have conducted themselves in such a manner that their counsels have met the approval of all the best men have been held to be optimates.” 12 Livy 2.21.

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were destroyed, his house burned, and his animals driven off. Consequently, he was unable to pay the war tax and was forced to borrow. The interest mounted and, when unable to pay, he lost his ancestral lands and was seized and enslaved along with, Dionysius of Halicarnassus added, his two sons.13 Thus, our sources assign the origins of nexum, or debt bondage, to the period after 495, seeing it as an immediate consequence of military obligations and clearly part of the struggle between patricians and plebeians. Here we encounter another familiar stereotype of military service, namely, that patricians and senators repeatedly used real and imaginary external threats to justify conscription and, thereby, to divert plebeian attention from their demands for reform. Levies were used “to bring seditious mobs under control,” and warfare was seen as a deterrent to popular programs.14 The ploy was first used following the appearance of the veteran centurion. A riot nearly occurred when other nexi enslaved for debt poured into the streets. Plebeians applauded when Volscians were reported to be marching on Rome. The plebeians refused to fight and called on patricians to bear the hardships of war since they alone were enriched by it. The Senate convinced a pro-plebeian patrician consul, Publius Servilius, to win over the plebeians and defend the state. In return, the Senate supported Servilius’ edict making it illegal to imprison or fetter a Roman citizen−and, thereby, prevent him from enlisting. The property of soldiers would not be seized or sold, nor would their children or grandchildren be detained. Since debtors could no longer be legally detained, they rushed to join the army in considerable numbers and greatly distinguished themselves in the coming war.15 In fact, several pitched battles were fought with several different foes during a brief period, and when the victorious soldiers returned they fully expected Servilius’ edict prohibiting debt bondage to become law. However, Servilius’ colleague Appius Claudius was hostile to plebeians and began to condemn debtors and hand them over to their creditors. The soldiers demanded support from Servilius; but he failed them, and they lost faith in both the consulship and the Senate. Taking matters into their own hands, they prevented condemnation of debtor soldiers and beat Livy 2.23; cf. Dion. Hal. 6.22-26. Brunt IM: 640. 15 Livy 2.24-25; cf. Dion. Hal. 6.23-33, 40.1. 13 14

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up creditors who were now the ones threatened with loss of liberty.16 Neither the imminent danger of a Sabine attack nor Appius’ threat to arrest troublemakers and deal with all matters alone moved the plebeians−and, eventually, Appius and Servilius left office. News of plebeian secret meetings prompted the Senate to instruct the new consuls to conduct a military levy because idle plebeian hands were the devil’s plaything. However, as long as plebeians were overwhelmed by debt, they refused enlistment. Some aristocrats wanted to meet their demands; finally, the consuls gave way, and Manlius Valerius was made dictator. Since his brother had carried the law granting provocatio to citizens, plebeians respected Manlius, and he justified their respect by issuing another edict prohibiting debt bondage.17 Valerius was thereby able to enlist a very large army−ten legions we are told−to confront the Aequi, Volsci, and Sabines. The warfare was successfully completed, and some conquered lands colonized, but Valerius resigned when the Senate supported moneylenders and again refused to outlaw debt bondage. To prevent plebeian sedition, the Senate tried to retain the soldiers under arms by insisting that they had taken the military oath to the consuls, not the dictator. Rather than kill the consuls −and, thereby, free themselves from their obligation−plebeians prudently marched out of the city to the Sacred Mount.18 This first plebeian secessio “was essentially a military strike”19 whereby plebeians obtained the right to elect their own representatives, plebeian tribunes, modeled on the military tribunes of the legion.20 Hereafter, plebeian tribunes led the fight for debt reform and land distribution. Clearly, those demanding justice were soldiers, although also called plebeians; and those who opposed their demands were patricians, senators, consuls, and other men of money and privilege. When their demands were not met, plebeian soldiers resorted to self-help, refused to fight, and threatened those who opposed them. Because agriculture was neglected during civil strife, famine conditions existed, and there was a concomitant rise in Livy 2.27. Livy 2.2-8, 28-31. 18 Livy 2.32; Dion. Hal. 6.45; cf. Ogilvie Commentary: 311. 19 Brunt IM: 640; cf. Ogilvie Commentary: 309-14. 20 Varro LL 5.81; see Mitchell (1990): 139−48. 16 17

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grain prices. We are told that slaves and the poor certainly would have starved if external sources of grain were not found. Presumably they were the last fed and the first denied. Eventually, grain came from Etruria and Sicily, but plebeians found the price too dear. Marcius Coriolanus was among those who insisted that if the aristocracy’s old privileges were returned then the old grain prices would return.21 There are many references to famine resulting from shortages and to attendant increases in grain prices that followed shortages.22 In the early Republic, efforts to import grain were mentioned frequently.23 Just as often the expectation of famine was the context for another stereotypical subplot in the ongoing conflict, namely, the danger that individual Romans would use popularity achieved from supplying grain−often at their own expense−in an attempt to create a tyranny.24 The aforementioned attitudes certainly reflect late Republican aristocratic ideology and are not reliable indications of archaic sentiments. Demands for state subsidized grain distributions, for widespread agrarian reform, and for debt relief were all part of a general cry for social justice so familiar to those who know the history of the late Republic. Gaius Gracchus carried the first lex frumentaria in 123, and attempts to control grain prices or sell it at predetermined prices are even later.25 There certainly were grain shortages earlier, and, doubtless, Roman magistrates did what they could to alleviate the condition. Usually shortages were alleviated by demanding food, clothing, and other subsidies from the vanquished−to the victor goes the spoils.26 Defeat often resulted in enslavement or death for most soldiers and veritable starvation for most noncombatants−women, the elderly, children, and slaves.27 This was not the normal fate of victors, although poor plebeian soldiers constantly complained about indebtedness brought on by military service during the first two centuries of the Republic. Livy 2.34; cf. Dion. Hal. 7.12. E.g., Livy 2.9, 27, 52; 4.12-13, 52. 23 Ogilvie Commentary: 256-58. 24 Livy 4.13; cf. CAH 7.2: 183-84. 25 Broughton, MRR, I: 514; cf. CAH 7.2: 133-34, 211,409. In general see G. Rickman The Corn Supply of Ancient Rome (Oxford, 1980). 26 See, e.g., Livy 2.54.2; 7.37; 8.2.4; 9.41.5-7; 9.43.6-21; 10-37.5. 27 Livy 2.34.2-3. 21 22

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Great hardship arose when peasants were absent for months or even years from their lands, but this did not occur, as the tradition asserted, as early as the fourth-century war with Veii because the city was only a few miles from Rome. The war against Veii presumably lasted for ten years and resulted in the introduction of pay, stipendium, for soldiers, the collection of the war tax, tributum, to pay for it,28 and the imposition of indemnities on defeated communities.29 Some tribunes opposed the introduction of pay because it required taxation to pay for it, and they demanded that soldiers be allowed to return home during the winter to revisit families and exercise civil rights.30 Veii is so near Rome that the argument is ridiculous, and the sentiments are appropriate only for a much later period. Moreover, the absence of Roman coinage before the last quarter of the fourth century proves that earlier soldiers followed their leaders in full expectation of sharing booty....From the beginning, the source of stipendium was the movable booty and the indemnity from defeated enemies, and sometimes the share weighed out−not counted out−to soldiers was considered inadequate .... [It was only in] the late third century that a...regular tax levied on property, tributum, was collected to pay the troops, and it would appear that initially it was not collected from those who served.31

In other words, the depiction of the poor farmer burdened by prolonged campaigns and taxes in the early fourth century is rhetorical not historical. At the time Rome was small, her enemies near at hand, and the depiction is inappropriate. Campaigns took place over weeks or days, and farmers were not away from their fields for prolonged periods; but they could suffer from hostilities or raids in their area. However, “it is not likely,” says Brunt, “that military Livy 4.59-60; cf. 5.11.5; Diod. 14.16.5. Livy 5.27.15; Ogilvie Commentary: 622-23, 688-89. Cf. CAH 7.2: 199-200, 299-302; and Crawford “The Early Roman Economy,” in Melanges J. Heurgon (ed.), Collection de l'Ecole Francaise de Rome 27, I (Rome, 1976): 204-7. 30 Livy 5.2-10. 31 R. E. Mitchell, Patricians and Plebeians. The Origin of the Roman State (Ithaca and London, 1990): 162-63. 28 29

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service as such did him [the farmer] or his family much harm, though naturally it was another matter if he was killed and a widow and young children were unable to cultivate his land.” Death aside, military service was not a “substantial grievance early in the fifth century”.32 On the contrary, I suggest that Rome’s military success resulted in the personal economic success of those in the military who expanded the state, a fact underscored by noticeable shifts in emphasis that appear in the story that begins to unfold about events in the fourth century. The Gallic sack followed hard on the war against Veii and exacerbated conditions. Both events produced a debt crisis. Manlius Capitolinus, aided by geese, not only saved the capital33 he also saved many soldiers from being enslaved by selling his own property to pay their debts. The economic plight of plebeian soldiers is illustrated by the appearance of yet another brave centurion in bondage, and Manlius wonders if he saved the capital so that those who defeated the Gauls could be enslaved as if the Gauls had won. Even the recaptured Gallic ransom was hidden to deprive plebeians of their share. Manlius claimed not only that the Senate and state appropriated public lands and funds but that they could end indebtedness if they wished. Indebtedness appears as a public issue, and Manlius insisted that the state reduce the indebtedness of those who helped to make Rome what she was. This is the same attitude expressed by Servius Tullius. Consequently, Manlius’ goal in assisting the poor was characteristically viewed as regnum, and plebeians would desert him because he was also a threat to their liberty. Here Livy interjected a strange thought about those who helped, or tried to help, the poor. He reproached the multitude “because they always by their favors raised their champions to a dizzy eminence, and then at the critical juncture left them in the lurch.” Spurius Cassius offered plebeians land and was destroyed, Spurius Maelius tried to save his fellow citizens from starvation at his own expense, and now “it was so with Marcus Manlius, who finding a part of the citizens overwhelmed and sunk in debt, was dragging them out into light and liberty, when they betrayed him to his adversaries; the plebs fattened their own defenders for the shambles .... Had their half-pound measures of 32 33

Brunt IM: 640-41. Livy 5.47.

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meal requited the saviour of their country?”34 This was the sum that Manlius received from each soldier for saving the capital.35 In other words, amidst the rhetoric we learn that soldiers were rewarded with grain and foodstuffs for their prowess, just as they received prisoners as personal slaves.36 Thereafter, economic woes continued, though Livy suggests that colonial foundations alleviated the condition. Early Republican history has many examples of colonization following military success, and the juxtaposition makes it absolutely certain that land was considered booty and was therefore shared by victorious soldiers. According to the terms of the foedus Cassianum, even Roman allies were entitled to land in colonial settlements as their share of the spoils. But the implication that anyone who advocated granting the allies a share was aiming at tyranny is a sentiment taken directly from the Gracchan period.37 There were nearly two dozen agrarian bills before 367, beginning with the one sponsored by Spurius Cassius in the early fifth century. However, following the agitation and legislation in 367, the only agrarian law proposed until well into the second century was that of Gaius Flaminius in 232.38 In 367 the amount of public land that individuals could claim was limited to 500 iugera;39 and although debt and usury remained issues, colonization became more and more a feature of the tradition and replaced demands for land. The reports of colonial foundations are reliable records of lands granted to soldiers as their share of the booty. The many references to agrarian reform concentrate on distributing lands taken from the enemy to the poor, but the clear implication is that the land went to soldiers. If reliable, the so-called plebeian agitators for agrarian reform were actually soldiers complaining about being cheated out of their rightful share of the booty that is, land.40 In Livy 6.14-20; cf. old soldier, 2.23.2-7. Livy 5.47.8. 36 Livy 4.34.4; cf. Livy 7.37. In general, see I. Shatzman “The Roman General's Authority over Booty,” Historia 21 (1972): 177-205. 37 Livy 2.41−42; Dion. Hal. 8.69-80; cf. Ogilvie Commentary: 33745; and CAH 7.2: 326-32. 38 Polybius 2.21-8. 39 Livy 6.35.4; cf. Appian BC 1.8. 40 Complaints about unfair distribution of booty are abundant and doubtless heavily influenced by late Republican conditions. See Livy 34 35

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fact, judging from the lack of clear-cut Roman military victories before 390, it is entirely possible that the amount of booty and land that accrued to Roman soldiers before this date was limited.41 Colonization becomes a more prominent part of the record precisely at the point when Roman military successes are more frequently and more reliably documented. Consequently, I conclude, soldiers received their share of the booty in the form of colonial allotments; and, therefore, plebeian demands for agrarian reform are not heard again until the second century when problems were entirely different but much closer to the rhetorical complaints attributed to the early Republic.42 There is, moreover, a noticeable absence of famine notices in Livy beginning in the same period following the war with Veii and the Gallic sack,43 which also suggests a dramatic change in the course of events following the defeat of Veii. Roman soldiers are persistently and consistently portrayed as farmers of relatively small properties constantly in peril even without performing required military service. As K. D. White observes, the lot of the peasant farmers− “the so-called backbone 4.49; 5.19-22, 25-26, 32.8; cf. Livy 4.59.10. On the political importance of distribution of booty, see Livy 2.42.1; 3.31.4; 4.59.10; 6.4.11; 7.16.3, 24.9, 27.8; 8.29.14, 36.10; 9.13.5, 37.10, 42.5. On later experiences influencing early accounts, see Brunt IM: 411. Cato the Elder spoke de praeda militibus dividendo stressing how the theft of military spoils by prominent men was the kind of public thief that resulted in a life of luxury (Gellius 11.18.18). 41 Presumably, minor military successes became major, and indecisive battles became victories. For example, in 446, Livy 3.70.14-15 reports a major victory over Aequi/Volsci, but says that no triumph was celebrated. On the other hand, “It is worth noting that as a general rule major Roman victories are comparatively rare in the tradition as we have it” in the period from 509 to 390 (CAH 7.2: 289). W.V. Harris War and Imperialism in Republican Rome: 327-70 B.C. (Oxford, 1979): 26, also notes that “through most of the middle Republic about one consul in three celebrated a triumph,” but the fact that there were only twenty-two triumphs and ovations during the entire fifth century “must suggest that the record is relatively free from contamination, and that it was not simply a fraudulent projection into the remote past of the conditions of the middle Republic” (CAH 7.2: 290). 42 Livy 4.47-49 is a good sample, but cf. Livy 6.5.2. On colonization, see Salmon (1969). 43 CAH 7.2: 133-34.

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of the Roman state before the rot set in”−was extremely harsh.44 According to Shelton, the presumption that only property owners were eligible for military service has been taken as proof that “in the early republican period most men did own some land. Otherwise Rome would not have had an army large enough to make the conquests it did.” Shelton continues: “It is indeed one of the great ironies of history that Roman farmers who went to war to defend their property against a foreign enemy ultimately lost their property to fellow Romans and also lost farming jobs to slaves whom they themselves had helped capture.”45 Their plight is neither as great nor ironic as asserted because the idea that only Roman property owners fought is more rhetorical than ironical or historical. Most Roman soldiers were not men of property. In fact, the rhetorical nature of the depiction is obvious. Latter Romans believed that they were descendants of sturdy, self-reliant farmers who owned the small plots which they worked and who were willing to fight bravely to defend the land which they owned. They believed, in addition, that their ancestors had succeeded both in farming and in war because they had possessed qualities such as diligence, determination, and constancy, and these qualities became enshrined by generation after generation as traditionally Roman virtues. Small Roman farms, according to legend, had produced great military heroes who embodied these virtues and, with them, conquered all of Italy. The legends of these men were passed on from generation to generation, and there became firmly entrenched in the Roman national consciousness the notion that “Rome owed her greatness to a sturdy breed of smallholders, content with little above bare subsistence, and working their plots with their own hands.46

The aforementioned is accepted as historical because archaic soldiers are believed to have supplied their own armor and because the state introduced a fixed property level for participation, from which the propertyless were excluded. The evidence for this view is (1977): 9-10. J. Shelton, As the Romans Did (Oxford, 1988): 153-54, n.153. 46 Shelton, As the Romans Did: 153; the quote is from K.D. White, Country Life in Classical Times (Ithaca, 1977): 5. 44 45

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not consistent, however, and we ought to concentrate our attention on soldiers as the first citizens rather than focus on small farmers as the first soldiers. In fact, we often hear of volunteer and even privately recruited forces.47 Moreover, the idea that Gaius Marius first recruited proletarii flies in the face of considerable evidence.48 Proletarii fought in the Pyrrhic War,49 and Hannibal captured Roman slaves at Cannae.50 Later, in the Second Punic War, slaves were mobilized, and even prisoners and enslaved debtors were released on the condition that they serve. After acquitting themselves well, they were manumitted.51 Did Rome eschew the services of the property-less and those below a particular minimum census level in favor of slaves? Hardly! It is abundantly clear that the so-called Servian classes were a later introduction and were designed to preserve the political−that is, electoral−strength of the wealthy.52 The underlying organizational principle of the comitia centuriata was that more weight was given to the vote of the wealthy because they, not the small farmer, had greater military and economic responsibility. As a consequence, Cicero, in his Republic, says that Servius’ centuriate system divided the population in such a way that the greatest number of votes belonged, not to the multitude, but to the rich, on the principle that ought to guide all republics, namely, “that the greatest number should not have the greatest power.” and Cicero added that “equality results in inequality since it allows no distinction in rank.”53 The original Roman aristocracy consisted of those wealthy individuals who supplied their own armor and horses. Equites were clearly the wealthiest and most privileged group in early Rome; and, originally, Roman aristocrat−senators, to be specific−belonged to the equestrian order. The most archaic feature of the comitia E.g., Livy 4.48-49; 5.16.5; 28.45-46; 29.1.8.  Brunt, P.A., “The Army and the Land in the Roman   Revolution,” JRS 52 (1962): 69-86.    49 Gellius 16.10.1. 50 Livy 22-52.3. 51 Livy 23.32-35; 24.10-16; 25.20-22; 27.38; 28.10, 46; 29.5. On slaves in the military, see N. Rouland, “Les esclaves romains en temps de guerre,” Latomus 151 (1977): 25-75; cf. R. Garlan, Slavery in Ancient Greece, trans. J. Lloyd (Ithaca and London, 1988): 163-76. 52 Mitchell, Patricians: 8-11, 155, 239-42. 53 1.43; 2.39. 47 48

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centuriata was the sex suffragia, the six centuries of equestrians who were the first ones to “break into sound”−that is, to vote. Eventually the sex suffragia were supplemented by infantry centuries, the Roman classici, drawn up in three lines of deployment. The aforementioned were all wealthy, and for our purposes there is no need to draw subtle distinctions between the various groups.54 But we do see a fundamental contradiction in both the ancient and modern depictions of those who fought for the early Roman state. Warfare is described as both an economic obligation and personal liability disproportionately borne by the rich landowners (locupletes) who were the chief beneficiaries of Rome’s imperial success.55 On the other hand, poor soldiers−that is, the plebeians−are portrayed as property owners indebted and enslaved by the very military obligation and successes that enriched the aristocracy. Something is wrong with any depiction that has small property owners fighting and agitating to gain access to small parcels of land distant from their current holdings.56 Throughout the fourth century, Rome’s military system did not consist of soldiers recruited according to property classification but consisted of soldiers bound by personal ties to particular chiefs for economic and, I would offer, military and political interests. The first phalanx was a coterie of men led by an aristocratic chief. It consisted of his clients, retainers, dependents, and tenants, not all of whom necessarily possessed sufficient property to arm themselves. They were “recruited” along with neighbors, kinsmen, friends, and even mercenaries. Prominent local headmen obviously were the only agents that the central authority had to mobilize military units. The organization was advantageous to both patrons and clients, who were mutually dependent. For example, freedmen became clients of owners who manumitted them, and their status was that of dependent hoplites with military obligations to their patrons and, only subsequently, to the state. Clients and patrons were under a mutual obligation to ransom one another. The major change occurred with the transformation of these private, locally recruited military forces (hoplites and clients) into an army of soldiers publicly recruited from a considerably expanded pool of citizens, most of whom were without personal ties to Roman See Gellius 6.13. Cf. Cicero, Repub. 2.9.16; and Gellius 10.5. 56 See Mitchell, Patricians: 7-10, 35-62, 154-55, 239-42. 54 55

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aristocrats. This change did not occur until the third century, at the earliest, and when it occurred there was a corresponding alteration in political life, which increasingly focused on the social, economic, and political concerns of the broader class of citizens. These concerns, in turn, were telescoped back into the story of Rome’s early history by those who began to write about the past, and the plight of the original soldier was commingled with that of the later citizen after the two ceased to be one and the same.57 If we cannot assign property to every soldier, it is equally difficult to restrict aristocratic possession of ager publicus to 500 iugera. Moreover, before the second century, attempts to do so are premature and unnecessary. As we have seen, agitation for agrarian reform took the form of a proposal that land taken from the enemy should be divided into individual lots and given to those who conquered it. Innumerable references create the clear impression that very early in the Republic aristocrats possessed vast amounts of ager publicus illegally.58 Even Licinius Stolo, who proposed the limitation in 367, was convicted of violating the limitation by emancipating his son and thereby obtaining 1,000 iugera.59 But, in fact, we know that large tracts of public land held in excess of the legal limit were commonplace and routinely ignored before the second century. Before that time, an individual generally occupied as much ager publicus as he could cultivate or “as his patrimonial resources would permit”; but even if he exceed the limit he suffered only a fine.60 As in warfare, the patron-client relationship was originally mutually beneficial when it came to occupying and working expanded estates. The wealthy had an advantage in the occupation of ager publicus because, in addition to using their extensive clientele, they could afford to use slave labor to work more land.61 These were not slaves purchased in a market, but were prisoners of war obtained by Roman soldiers as their share of the booty, with commanders and officers obtaining the lion’s share in this as in all

Mitchell, Patricians: 8-11, 48-52, 236-42, 253. Livy 4.48.2; 4.51.5. 59 Livy 7.16.9. 60 CAH 7.2: 326. 61 Appian BC 1.7-9. 57 58

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spoils.62 Slaves worked the public lands occupied by wealthy Romans up to and in excess of the legal limit. Even after manumission, freedmen continued to work the land and were tied to their patrons, who easily converted their obligations into social, economic, and political clout. The patron for his part, also was obligated to look after the interests of the client.63 Until late in the third century there was no scarcity of ager publicus to occupy, and no profusion of people to demand it. Eventually, records of occupation were lost and lands began to be treated as ancestral property and annexed to private estates.64 We superficially have taken care of popular demands for agrarian reform, but what of the outrage expressed by those enslaved for debt? Nexum, or debt bondage as it is called, is an extremely complicated question, and only the essentials can be addressed. The primary detail to keep in mind, as in the case of demands by the poor for land, is that we are again dealing with soldiers. Agitation against enslavement for debt is a prominent feature of the internal struggles between rich and poor in early Roman society, and it is most vividly depicted by those manacled soldiers who had lost everything, including their liberty, in the service of their country.65 That nexum has a basis in fact is suggested by its prohibition, nearly two centuries after it was first promised, by a law that Livy describes as a new beginning of liberty for Roman plebeians.66 However, whatever nexum was and whatever the lex Poetilia outlawed in 313, “debt bondage was still known to Republican and classical law, and in particular afflicted the Sullan veterans.... It is indeed precisely in the late Republic that we have the best evidence that debt was a persistent social problem, and the annalists’ view that in early times it was aggravated, if not caused, by conscription helps to show how the

62 Cf. M. Gelzer The Roman Nobility, trans. R. Seager (Oxford, 1969): 21-22; Brunt IM: passim; and CAH 7.2: 125-26, 312-13, 331-34, esp. 389. 63 Gellius 5.13; 20.1.40; cf. Ogilvie Commentary: 479-80. 64 In general, see the discussion in Bernstein (1978): especially chaps. 3-5. 65 Livy 2.23-27; 6.14.3-5; 7.19.5; Ogilvie Commentary: 296-99, 303. 66 8.28.

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problem arose much later.”67 One interpretation, favored by many, is that the law “merely abolished the nexum as a form of labour contract; from now on only defaulting debtors were placed in bondage, following a judgment in court.”68 Before they were abolished, such contracts were the primary means by which large landowners obtained laborers for their estates. However, the improved economic conditions that resulted from successful warfare and extensive schemes of land assignation and colonization...meant that the plebeians were gradually freed from the necessity of entering into bondage. It is probable that by the start of the Second Samnite War (327-304 B.C.) the institution of nexum had already become a relic of a bygone age. Its disappearance did not, however, put an end to indebtedness, which persisted as a major social evil to the end of the Republic.69

It is also argued that prohibiting voluntary bondage contracts created a demand for labor on large estates and, thereby, increased the number of imported slaves.70 Although this interpretation is attractive, I want to stress that nexi were depicted as having been soldiers and were also portrayed as soldiers mobilized despite their bondage.71 Slaves and imprisoned debtors, even criminals, served in the army during the Hannibalic War and were freed on condition of fulfilling military service.72 Nexum was outlawed, moreover, after the Caudine disaster.73 In that battle, Roman soldiers were forced to surrender and were released under terms of an agreement subsequently disavowed by the Senate. However, the soldiers were not returned to Samnite captivity, but 600 equestrians were retained as hostages.74 What resulted was the ransoming of Roman soldiers, 67 Brunt IM: 644; See Livy 8.27, for the law he incorrectly dated; cf. Dion. Hal. 16.4-5; Varro LL 7.105; Val. Max. 6.1.9. See Sallust, Catalina 33 for the Sullan Veterans. 68 CAH 7.2: 334. 69 CAH, 7.2: 334. 70 CAH, 7.2: 334; cf. Finley (1982): 150-66. 71 Cf. Livy 2.34.7-8 with 2.27.1. 72 Livy 23.32-35; 24.10-16; 25.20-22; 27.38; 28.10, 46; 29.5. 73 Varro LL 7.105; Dion. Hal. 16.5. 74 Livy 9.2-11; 9.5.5-12, 12.9, 14.14, 15.3-7.

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and the son of one of those surrendered was left in poverty and became a nexus in order to pay his father’s funeral expenses: a noble story, filled with pietas, and very little reliable material, except for the equation of the soldier with nexum−and, therefore, the association of nexum with ransom.75 We have evidence suggesting that the state, beginning in the fourth century, used public funds to relieve debtors.76 Relief was not extended to citizens in general, but the idea of public payment of ransom may have started to take hold. One of the underlying principles of Roman service to the state, or of contractual obligations generally, is that one had to have property as security−or as a hostage, as one source said−for fulfillment of the task. For those without property, patrons or others could stand in. One of the laments of those who claim to have lost everything as a direct result of serving the state was that they were left without even enough money to ransom themselves.77 We hear little about ransoming Roman soldiers. The Gauls supposedly ransomed the city,78 but, if true, it must reflect the ransom of Roman prisoners. Pyrrhus was said to have freed his Roman prisoners before the payment of ransom, but he sent along prominent men to fix the ransom price.79 Hannibal is contrasted with Pyrrhus, because Hannibal allowed captives to ransom themselves. Livy says that the price of equestrians was a bit higher than agreed upon when they surrendered. The Senate debated the ransom and the implication is that under normal circumstances public funds would have been used. However, because the prisoners were considered cowards, not even private arrangements were allowed; and the Senate refused even to permit loans to be taken out to pay the ransom price.80 Still later in time, we are told that redemptores who ransomed individuals were entitled to the labor of those redeemed until such time as those individuals repaid the amount of the ransom loan.81 It appears that in most cases an individual was obligated to work for a period of five years82 but Dion. Hal. 16.5. Livy 7.21.5-8. 77 Livy 26.35.6. 78 Polybius 2.18.2-6, 22.5; cf. Livy 5.48-49. 79 Cf. Livy 22.23, 59; Cicero, Brutus 55; Plutarch, Pyrrhus 20.1. 80 Livy 22.52-61. 81 Levy (1943): 159-76. 82 Inferred from Cicero, Philippic 8.11.32. 75 76

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that, contrary to the time when he was a prisoner, he recovered his citizenship. In the late fourth century, the state began to pay the ransom price of Roman soldiers captured by the enemy: at the very least, the rule was established that five years of labor was sufficient not only to discharge the debt owed to redeemers but also to discharge the debt of soldiers enslaved by Rome before the third century. 83 As an historian, rather than a philosopher, my primary concern has always been whether what a state said about itself was true or not−and, if not true, how great a discrepancy there was between what was claimed and what was done. I have no reservation about condemning past societies for what we consider their failings but such criticism is not historical if the actions of the society in question are consistent with their stated principles. Freedom and equality are cornerstones of modern Western legal systems, but we must not assume that they were primary concerns of other societies unless they tell us so. In the case of Rome, the aristocrats−really oligarchs−who are our sources of information about Rome, depicted a society with “enormous differences in wealth and social power, and the upper class which determined its legal rules enshrined in them a code of values relevant to itself which cannot automatically be assumed to have been equally relevant to the lives and habits of the mass of people.”84 Cognizant of this fact, we readily admit that later conditions influenced the way in which Rome’s distant past was presented and that those who presented it got a great deal wrong even if in the process they preserved some reliable information. My point is this, the misery of the poor must have been impressed on the minds of Roman authors with extraordinary clarity to cause so many to see it as a constant condition. The speech that Tiberius Gracchus gave to the people, with which I close, must have been one of the most impressive. The beasts that roam over Italy have everyone of them a cave In general, see the discussion of F. de Zuleuta, The Institutes of Gaius, Vols. 1-2 (Oxford, 1946-53) 2: 143-44. I want to thank Raymond Westbrook for comments made following the paper and for his 1988 and 1989 publication that will greatly contribute to the resolution of the nexum controversy. 84 Crook, Law and Life: 10. 83

DEMANDS FOR LAND REDISTRIBUTION or lair to lurk in; but the men who fight and die for Italy enjoy the common air and light, indeed, but nothing else; houseless and homeless they wander about with their wives and children. And it is with lying lips that their imperators exhort the soldiers in their battles to defend sepulchers and shrines from the enemy; for not a man of them has an hereditary altar, not one of all these many Romans an ancestral tomb, but they fight and die to support others in wealth and luxury, and though they are styled masters of the world, they have not a single clod of earth that is their own.85

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Plutarch, Tib. Gracchus 9.4-5.

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AGER PUBLICUS: PUBLIC PROPERTY AND PRIVATE WEALTH DURING THE ROMAN REPUBLIC Mitchell examines modern suppositions about the origins of private property law and the extent to which we might find these suppositions supported in the disputes over public lands found in our Roman sources. Mitchell shows that arguments rooted in this evidence depend on mythical idealizations of the Roman past and questionable assumptions by moderns. Chief among the latter is that the Roman Twelve Tables were in fact a product of the Fifth Century.* The origin of private property in archaic Italy is shrouded in the mist created by the guesswork of our sources about the early development of Rome. Penetration of that mist is further complicated by the debate among modern historical and legal scholars. One school of thought piously defends their orthodox position that private property developed only gradually from what had been communal ownership of land, and that private ownership was once limited to movable goods. A schism exists between this school and those who maintain that private ownership of land always existed, however limited in scope and however defined by law or custom. ______________________________________ * This essay began as a talk given at New York University in November of 1994 at a “Colloquium on the Ancient Economy.” It was subsequently published in M. Hudson and B. Levine (eds.) Privatization in the Ancient Near East and Classical World as Peabody Museum Bulletin 5 (Harvard: Cambridge, 1996):

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THE ROMANTIC PAST Although we all know that history is the one topic where we cannot begin at the beginning, let us nevertheless make an attempt. “Before Jove,” said Virgil in his romantic Georgics, no farmer tamed the fields, nor was it proper (fas) to mark off or partition the land with boundary stones. The farmers sought everything in common, and the earth itself produced everything without anyone asking.”1 Virgil did not stop with this fanciful depiction. In the Aeneid, when Aeneas and Turnus are about to fight, Turnus hesitates, saying he is not afraid of Aeneas but of Jupiter, who has not shown him much favor of late. Turnus nevertheless looked around for a weapon or for something to hurl, and sees a large ancient stone used to mark off the fields in order to avoid disputes about ownership.2 Of course, for all we know the stone may have marked off the communal lands of one clan (gens) from the territory of another, but we should not demand too much precision from the poet. Besides, there is a stronger tradition crediting King Numa Pompilius, good religious king that he was, with establishing the primitive rule that forbade the removal of boundary stones (termini). Dionysius of Halicarnassus did not know if Numa's laws had been written down or existed merely as custom, but he stated that the king's purpose was to inspire frugality and moderation, by encouraging individuals not to covet more than they had. Consequently, the king decreed that stones be placed on the boundaries, that these stones be consecrated to ]upiter Terminalis, and that anyone who removed them was sacra and could be killed with impunity. It is stated that Numa also created boundaries between Rome and neighboring territory and between Roman private and public lands. Dionysius lamented the decline in the religious importance of the stones in his day and said currently some people recognized no boundaries, there was no check on pp. 253-91. Editorial changes have been made in the notes for the sake of overall continuity but the text of the article itself is unchanged from that originally published. 1 Virgil Geor. 1.121-129: I give only a rough translation of nec quidem erat fas signare aut partiri campum limite. Querrebant in medium, que tellus ipsa ferebat omnia, liberius nullo poscente. Cf. Cicero, de off 1. 21, who believed individuals eventually held their own share of what had been common. 2 Virgil Aen. 12.897: ingens saxum, antiquum saxum, ingens, quod forte iacebat campo, positus limes argro, ut discerneret litem arvis.

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greed or on the desire to possess everything.3 I am aware that removal of boundary stones was a heinous crime also in classical Greece and the ancient Near East.4 My point is not to stress the commonplace nature of such rules, but to highlight the fact that the existence of communal property was placed nearly in a Garden of Eden context while boundary stones and private property make their first appearance in the earliest period of Rome's legendary and romanticized prehistory. Without giving much thought to consistency, traditional accounts also insisted that private property started with Romulus. He built Rome by vi et armis. Citizens alone fought and they alone worked the land they conquered.5 Furthermore, the tradition told how Romulus gave out to each Roman only a modest parcel of conquered land consisting of two iugera as an heredium. Emilio Gabba points out that this is an “egalitarian division of land...totally neglected “in the historical tradition because of “the insoluble problem of having to explain the subsequent change.”6 Moreover, as early as Romulus's reign variations in wealth were assumed, because the king also had selected the first patres, the ancestors of the patricians, as his senatorial advisers. Senators were called patres because they were the most prominent and wealthy men in the city. The poor−that is, the plebeians−were assigned as clients to wealthy patrician patrons. Some sources also believed that land originally was distributed to patres alone, and that they in turn parceled it out to plebeians, thereby making them clients and thus treating the poor like children.7 Dionysius 2.74.2f. Cf. Gabba, Dionysius: 170-177. Gaius, Dig. 10.1.3 (on Solon and the Twelve Tables); Deut. 19.14; 27.17; Ruth 4.3-8; Numbers 26.7; Kings 21.3. 5 Livy 1.19.1, 21.1. Gabba, Dionysius: 171, points to the Aristotelian parallel of citizen/farmer/soldier (Pol. 1329a3-18). 6 Gabba, Dionysius: 172. Cf. Mommsen Staatrecht: 23-25 n.1. Note Pliny NH 18.2.7: bina tunc iugera populo Romano satis erant, nulloque maiorem modum adtribuit, if Varro RR 23, 25. 7 Cf. Festus 289L: patres senatores ideo appellati sunt, quia agrorum partes adtribuerant tenuioribus ac si liberis propriis. Livy 1.9-10. Gabba, Dionysius: 171; cf. Brunt, Fall 410f., in a particularly valuable discussion, notes that Paul's version confirms Festus: patres were considered both senators and fathers, because they “had assigned parts of their lands to humbler persons as to their children.” Brunt objects to the equation of those who obtained land grants in this fashion with clients, for the practice would 3 4

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Another pervasive tradition asserted that noble aristocrats migrating to Rome during the course of the monarchy received large parcels of land for themselves, and smaller parcels for their followers. Plutarch mentioned that those who accompanied Appius Claudius each received two iugera from the state, while Appius was given twenty-five iugera and Senate membership.8 Implicit in these tales is the equation of followers with clients, and their identification as those who received lands from those who were, or who became, patres/senators.9 Dionysius insisted that some landless plebeians who became citizens too late to receive land or booty from Romulus complained, and Numa gave them small plots from Romulus's own property and from public land. This made the peaceful arts of agriculture equal in importance to the military arts taught by Romulus.10 Moreover, Romulus had militarily extended Roman territory, and was unwilling to recognize boundaries. As noted above, it was Numa who created boundaries to guarantee peace and promote justice.11 The royal estates of Romulus were the first−presumably public−lands distributed among the poor. Some parcels apparently were reserved as sacred, cult, or temple lands. Still other tracts once used by Numa were subsequently given certainly never be confined to them. However, it must be admitted that those in such a relationship might well take on some of the most recognizable features of the client/patron relationship. It must also be noted how unlikely a father of any stripe was to be succeeded by his own biological son. On which, see Saller (1994). 8 Plut. Publ. 21.6. On the migration of Attius Clausus (Appius Claudius) also see Livy 2.16.3-4; Dion. Hal. 5.40.5; but the dating of the migration is not consistently given. Cf. Ogilvie, Commentary: 273f. 9 Cf. P.A. Brunt, The Fall of the Roman Republic (Oxford, 1988): 410. 10 Dion. Hal. 2.62.3-4; according to Cicero (de rep. 2(14).26), lands conquered by Romulus were distributed viritim by Numa, who thereby displayed how it was possible to live sine depopulatione atque praeda. 11 Plut. Numa 16 contrasted Romulus's unwillingness to fix boundaries to his military conquests. Cf. Festus 505L; and Ogilvie, Commentary: 211, who says it was necessary to protect the early idea of private property, the antiquity of which Ogilvie avers is established by the ancient cippus c. 500 (CIL 1.2.1) found near the Lapis Niger with an opening clause: quoi hoi ... sakros essed and restored to give the meaning of the Numa law−a very doubtful interpretation.

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viritim, individually, to the poor by Rome's third king, Tullius Hostilius.12 The fourth king of Rome, Ancus Marcius, also divided conquered territory among the citizens, and made the coastal forest public property.13 King Servius Tullius, in turn, declared that public lands acquired by the military success of the poor should not be monopolized by the wealthiest citizens. Instead, ager publicus was to be divided into lots and given to property-less debtors so that they, as freemen, could cultivate their own lands and not have to work the lands of others as slaves. A list of debtors was compiled and tables set up in forum, from which creditors were paid. An edict was issued demanding that those currently enjoying the use of public lands should give up possession, and that citizens without allotments of land should make their names known. The public lands were then divided among those who had previously worked for others.14 However, Gabba suggests, “the distribution of public land to the more needy citizens is, in any event, a preliminary step in the timocratic system created by the king.” He goes on to point our that when King Servius introduced the census classes and the centuriate system he thereby “stabilized social and economic inequality” and thus “rationalized the social system that had been introduced by Romulus.”15 Livy said that Servius's introduction of the census was most beneficial to the state because now the obligations, both in war and peace, were not fixed on all individual citizens equally but were based on the amount of wealth each possessed. On this basis the classes and centuries were drawn up.16 Over the course of two centuries, in a very inconsistent tradition, our sources have portrayed Roman development going from a legendary period of communal property to parity in private property among citizens under Romulus, culminating in Servius Tullius's recognition of different classes of citizens based upon Dion. Hal. 3.1.4-5. Cicero de rep. 2.18.33. 14 Dion. Hal. 4.8-13, has the most complete, but needless to say, the most suspect account. Cicero, de rep. 2.21 (37-38) and Livy 1.41-48 supply other details incorporated into this summary. Gabba, Dionysius: 172-189, is an excellent survey of the regal tradition. 15 Gabba, Dionysius: 178f. 16 Livy 1.42.2-43.1. 12 13

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wealth, which presumably was calculated in terms of land.17 Of course, none of the aforementioned can be regarded as reliable information about Rome during the regal period. As is well known, the complaints voiced about indebtedness and the cries for land redistribution in this period have their origin in the socioeconomic crises of the later Roman republic. However, our sources made several assumptions about the past that must be highlighted. They assumed that all citizens originally possessed a minimum amount of land, and also that discrepancies in landed wealth existed as early as human history. Finally, it was assumed that rich and powerful citizens received the lion's share of the lands and wealth resulting from Rome's military success. In many instances these assumptions are at variance with the idealized depiction of the simple and modest life of the earliest Romans. This idea owed its existence to late republican and early imperial authors who contrasted the greed and moral bankruptcy of their own day with the society of the founding fathers. Yet these assumptions do not appear implausible when examined in light of what is known about more reliable periods of late republican history. LEGAL CATEGORIES OF PROPERTY AND A FALSE PREMISE It is more credible to believe that the countless stories about the small size of earlier holdings are designed to evoke an uncorrupted and simple past, but some scholars find in such stories an echo of the modest size farms they believed were normal before the late Republic. Whatever we make of the stories about the seven-iugera estates of L. Quinctius Cincinnatus, M. Curius Dentatus and C. Fabricius Luscinus, we would be wise to remember that a farm of that size assigned to M. Atilius Regulus, consul in 257 BC, was in the hands of a vilicus, or steward, probably a slave, and that a hired hand ran off with the livestock. It is also important to note the difference between a seven-iugera farm near Rome in the time before ager Romanus extended very far, and a farm of a similar size in a later period. As William Harris points out a modest size farm was not necessarily the only property owned. This was particularly 17 Monetary classifications are given and presumed to have existed even as early Servius, but this is impossible even if we accept the king's reforms as historical. In general, see Mitchell, “Fourth century Origin” and “The Pyrrhic War” n.b., both reprinted above.

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true for aristocrats as the Republic wore on.18 Romulus granted only two iugera as a heredium to each citizen. This naturally made them modest and virtuous, but according to Pliny the Elder, heredium was the word used only for gardens at the time of Twelve Table laws, traditionally dated to 450 BC.19 Consequently, some authorities insist that the two-iugera garden was the only private land, and hence the only land that could be inherited.20 Inasmuch as two iugera were insufficient to meet the needs of an individual, let alone a family, it followed that access to common lands was needed by one and all. This fits with another theory, that cultivation of land on a larger scale than a household garden came about only gradually, as tilling replaced animal husbandry and as common lands used for grazing gave way to the plow. As proof for this hypothesis, the legal confusion between familia and pecunia is frequently cited. We find in the so-called twelve table laws the earliest reliable traces of private property, but both familia and pecunia are employed to describe it. That is where the debate begins, because both words suggest that inheritable private property was originally limited to movables. Although the two terms are used interchangeably in the laws, it is widely believed that the words originally had different meanings. Festus said familia derived from famuli, from the Oscan famel, the word for slave.21 Since famuli denoted only persons, it was argued that familia originally did not include house or land, but only those under the control (potestas) of a single male (paterfamilias). Moreover, since familia encompassed all members of the household including slaves, the latter were not originally considered chattel but were more like helots and hence

18 Harris, War and Imperialism: 66, 264f. For additional discussion of these “Tales about the modest means of the old aristocrats,” see K.D. White, Roman Farming (Ithaca, 1970): 345-48. See MRR 1: 207f. n.l, for the existence of a fabricated story that depicted Regulus being called from the plow like Cincinnatus. 19 Pliny NH 19.4.50. Cf. Festus 89L: heredium praedium parvalum. Also called ager in Cic. re pub. 2.14.26 20 White, Roman Farming: 336; cf. Mommsen (1952): 23ff. 21 Festus 76-7L: s.v. familia: from famuli and the latter origo ab Oscis dependit, apud quos servus famel nominabatur, unde et familia vocata.

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on the order of servants, clients, or even dependent neighbors.22 Obviously, the origin of familia lies in the darkest days of Roman prehistory, in the distant past when free and slave were not very distinct in status. The distinction began to emerge later, as Roman conquests extended beyond Italy. Individuals captured in war were not from Italian peoples, and hence were less easily incorporated into the Roman population. Before these conquests began in the 3rd century BC, both free and slave were within the familia. This is documented by the ease with which Romans extended freedom to slaves and made them citizens with particular close ties to their ex-master, now patron. The Romans even permitted slaves to be included in the private family burial plot.23 The origin of pecunia, money or wealth, is not controversial. It derives from pecus, a herd of domesticated animals, because−we are told−domesticated animals were the first form of wealth. Consequently, fines were once levied in animals, and early coins had animal types.24 There also was a popular explanation for the origin of the peninsula's name. It came from a magnificent bull named “Italos,” brought by Hercules. Since the peninsula was rich in cattle it was appropriately called Italia. As in the case of familia, pecunia likewise initially must have consisted of movables, and did not include houses or land.25 Since both familia and pecunia were subject to the laws of inheritance and family control, but neither seems to cover land, some scholars have concluded that manpower and cattle were once the core of private property. Land was unimportant, because tillage was limited. Therefore, the argument continues, originally private Isidorus Diff 1.525; inter servum et famulum, servi sunt bello capti, famuli autem ex propriis familiis orti. 23 ILS 8283; Dig. 50.16.195. 1-5 (cf. 21.1.25.2). Material is conveniently collected in Wiedemann (1981): 3, 54. It is impossible to quantify the practice of intermarriage between Romans and freed slaves but it was not an uncommon occurrence even among those in the higher classes (See Andrew Wallace-Hadrill's review of Saller 1994, in Times Literary Supplement, April 14, 1995: 12). 24 Thomsen 1957:20-3, collects the ancient testimony and has depictions of the animal coin types. 25 Varro, Festus, Gellius, Livy etc.; Cf. Jolowicz, Historical Introduction: 137f. 22

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property was limited to movable goods. Land was held in common, not inherited, except perhaps for the heredium. In addition to arguing that familia was originally distinct from pecunia because the former consists of humans and the latter of animals, it is further suggested that familia should be identified with res mancipi, and pecunia with res nec mancipi. Mancipatio was a kind of sale particularly appropriate to objects which, in the distant past, were considered fundamentally important to an agricultural society: slaves, large draft animals, family members, and rustic praedial servitudes. Only eventually, it is believed, did mancipatio become applicable to land. These objects could only be conveyed, bought, sold, or freed from authority or ownership by mancipatio, a procedure that involved a considerable amount of publicity and ritual activity: five witnesses, scales held by another person, and a piece of bronze used symbolically to mark the exchange and conclude the conveyance or change in status. Res nec mancipi, on the other hand, were items that could be transferred by simple delivery (traditio). Theodor Mommsen emphasized that mancipatio once applied only to movable property, because the object had to be grasped or taken by hand−mancipatio, from manus capere−and thus applied to persons and animals, not land.26 Furthermore, it was argued that the distinction accorded res mancipi shows that originally a paterfamilias was not completely free to dispose of such property if he had sui heredes−that is automatic heirs. Pecunia, on the other hand, is sometimes considered more in the nature of personal property, and thus presumably could be freely alienated from the heirs. However, it is neither possible to limit legacies to pecunia and res nec mancipi, nor to consider all animals as res nec mancipi. Large domesticated animals, for instance, were res mancipi because of their obvious agricultural importance. The original meaning of pecunia, a flock, does not suggest anything about animals other than their probable domestication.27 T. Mommsen, Römisches Staatrecht (reprint, Basel, 1952): 22f. Possibly a provision permitted a clump of earth from the land in question to be carried into the court, hence land too could be grasped at least symbolically (cf. Gaius Inst. 4.17). Jolowicz, Historical Introduction: 138, thinks this “an impossible, or at least an undignified gesture.” 27 The Romans of course made a distinction between ownership and responsibility over and for domesticated and wild animals 26

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To add to our confusion, there is general agreement that familia and pecunia are both used in the Twelve Tables to refer to private property generally−including land−and do not refer exclusively to slaves and animals. There is, moreover, specific proof in the laws that land was included among res mancipi. Many laws in the Tables govern the use and obligations of land ownership. One law mandates a two-year period for the usucapion of land, in contrast with a single year for movables.28 There is no reliable evidence from the Twelve Tables that land was ever owned in common. True, one law dictates that if a person dies intestate, his automatic heirs (that is sons or suos heredes) inherit. If no son exists, then the nearest agnate kinsmen inherits; if there is no agnate, the gentiles take the familia. However, the rights of agnates were not an innovation of the Tables designed to place agnates ahead of clansmen (gentiles). Agnates were, by extension, simply a natural interpretation and expansion of sui heredes, just as gentiles were the final heirs, thanks to their common nomen.29 Consequently, it is not possible to argue that gentiles originally inherited after sons and before agnates because property initially belonged to the clan in common, not to private families. The gentiles in question must have been those in agnatic succession. The demographic evidence, so-called, for the Roman world suggests that a large percentage of fathers could not count on having a living son inherit the property. Those who did inherit were most likely to do so before they reached legal adulthood. To my mind, intestate succession must have been common, particularly below the aristocratic class. Guardianship of minors also must have been common throughout Roman society. It was essential to have pools of potential heirs available who would take control of the property and also assume the responsibility mandated by the state (and incumbent upon the owner). Among the original gentiles were the dependent and related companions on whom the military obligation ultimately devolved, and also the witnesses before whom soldiers made unwritten wills (in procinctu) in order to fix inheritance and responsibility, at a time before 28 Table VII contains most of the land law; cf. Jolowicz, Historical Introduction: 137-140, and Kaser, 7.1 and 18.1. 29 See Crook, Law and Life, and most recently R. Saller, Patriarchy, Property and Death in the Roman Family (Cambridge, 1994): 163.

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writing became common.30 In the late 3rd century, when military obligations ultimately were placed on members of the thirty-five tribes, wills in procinctu disappeared. Bur their disappearance had nothing to do with the disappearnace of communal property rights.31 Only the nostalgia expressed for a simpler and nobler time controverts these facts. We cannot accept the argument that by the time of the Twelve Tables, private land ownership had become so central that the original role of common property was obfuscated.32 There is no evidence of communal property in early Rome for the simple reason it was never a feature of Roman society. There certainly is no vestige of it in Roman law. There is a more compelling explanation for the confusing use of several interchangeable words to encompass all forms of private property, without resorting to conjectures about the romantic period of communal ownership of land. The key to our understanding lies in the Twelve Table laws themselves. Scholars once commonly doubted the existence of the Twelve Table codification, but in doing so they denied the survival of any rules from the 5th century. This was too extreme. Faith in the existence of authentic legal evidence that can be dated to the 5th century is stronger than ever, but none of the details concerning the Code's creation (nor any of the hypotheses about its subsequent preservation) inspires much confidence. For example, even scholars who believe that a 5th-century Code existed cannot accept the circumstances of its creation or explain the anomaly of publication. There certainly were collections of legal materials, but the next−that is the first−codification of Roman law was not undertaken until the end of the 3rd century AD. Moreover, Romans were not accustomed to publishing all public documents W.V. Harris, Ancient Literacy (London, 1989): passim, establishes that writing was never very common and the literacy rate was never high. 31 See Gellius 15.27.3, on procinctus; if 1.11.3; Cicero, De nat. deor. 2.3.9; Gaius, Inst. 2.101; and Plutarch, Cor. 9. Cf. Mommsen (1952) III: 307. Cf. A. Watson, Rome of the XII Tables: Persons and Property (Princeton, 1975): 66, esp. n.38; the will was a military version of the testament before the comitia calata. Florentinus (Dig. 29.1.24) gives evidence for the soldier's will, done even without writing with oral declarations alone. 32 As G. Diosdi, Ownership in Ancient and Preclassical Roman Law (Budapest: Akademiai Kiado, 1970), assumes. 30

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−even laws−and did not even routinely consult existing records, much less organize them in collections.33 There is a good reason why no historical record of the Twelve Tables exists in any form, and why no ancient author presents a detailed description or analysis of the code. Neither the content of the Tables nor the historical process of publication was known to them. Neither Livy not any major historical source dealt with the Twelve Tables in detail, and there is no agreement even on the specific title or name of the code. There is no reliable record of a legal code known as the Twelve Tables being publicly displayed in Rome on bronze or wood.34 No standard text of the law ever existed. Before 200 BC, Romans were not concerned with the historical value or usefulness of earlier materials. Consequently, materials were not routinely preserved as part of a record of chronological development. By the time Romans began to reconstruct their past, the “evidence“ they had was neither chronologically nor historically reliable, and in any event it was extremely limited in quantity. Even the historical narrative recorded that the Twelve Tables were 33 I do not believe in the laws of the kings, but Republican plebiscites were certainly known and preserved after a fashion, as were senatus consulta. From the mid-Republic on, of course, there were magisterial decisions, praetor's edicts, and even juristic interpretations. However, one of the reasons for codification in the Empire was that the legal record−history−was such a mess for those who dealt with the archival records and public documents, or the lack of them. Cf. P. Culham, “Archives and alternatives in Republican Rome,” CPh 84 (1989): 100-15, and C. Williamson, “Monuments of bronze: Roman legal documents on bronze tablets,” CA 6 (1987): 159-183. 34 A.H.J. Greenidge, “The Authenticity of the Twelve Tables,” EHR 4 (1905): “we have no evidence for their exhibition either in Rome or in any other place until a chance reference in Cyprian reveals the surprising fact of their presence in the Forum at Carthage in the third century AD”(13). Cf. St. Cyprian, Epist 2.4; Ad Donat. 10; and Salvianus, De Gub. Dei 8.5. Jolowicz, Historical Introduction, says such references amount to “no more than rhetorical flourish”(108). F. Schulz, History of Roman Legal Science (Oxford, 1967): “no jurist troubled to establish a correct version of even the Twelve Tables”(61). For samples of the problems surrounding publication, see Livy 3.34.2-6, 37.4, 51.3, and 57.10. Ogilvie, Commentary: 507; and Ungern-Sternberg, in SSAR: 81, offer solutions.

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destroyed when the Gauls sacked the city in 390 BC. Of course, we are told that the laws were soon after reconstructed and republished from memory, although some material was now kept secret by the pontifix maximus.35 Finally, as the story continued to unfold, it was only in the late 4th century that the legal secrets of the pontiffs were published for the first time−the material included the civil law, the leges actiones, the fasti and the calendar.36 Notwithstanding the story, much of the aforementioned presumably had been published by the decemvirs. But the Romans turned even reliable evidence from the earlier period into evidence for the struggle between patricians and plebeians, without worrying about inconsistencies and contradictions. Moreover, only a few of the laws are placed by our sources in any particular table. Even the organization of the laws into tables is a modern creation, by and large. This organization owes more to modern assumptions about archaic Roman legal practices and the growth of secularization than to anything found in the sources.37 As a matter of fact, our sources knew that later laws obscured, updated, replaced or destroyed earlier measures and often were erroneously considered part of the original codification.38 Most scholars have lost sight of the fact that one provision of the Twelve Tables permitted additions and changes in the original laws: whatever was passed last was binding.39 Scholars do not seem to be bothered by the contradiction that some of what had presumably once been public was the private secret keep by the pontiffs after the sack. 36 Livy 3.9. Codification dominates Livy Book 3 (see esp. 3.3357). Cf. Cicero, de rep. 2.37 (63); and Dion. Hal. 10.60.5. Watson, Rome of the XII Tables: 20, 177-86; G. Rotondi, Leges Publicae populi romani (Milan, 1922): 201f.; and Riccobono FIRA: 1.23-25, are excellent summaries. Cicero, Pro Murena 11.25, even is confused about the floruit of Cn. Flavius and the predominance and nature of his publication. He thought pontiffs created legis actiones to ensure their monopoly of the law after Flavius published their secrets. E. Pais, Storia critica di Roma durante I primi cinque secoli, 5 vols. (Rome, 1913-20) 1.1: 558-604; 1.2: 546-72, offers a strong argument for compilation around 300 BC. 37 Nineteenth-century scholars have probably introduced too much Greek logic into the arrangement we have in e.g. Riccobono, FIRA: 1.21ff. 38 Macrobius, Sat. 3.17.7-8. 39 Riccobono, FIRA 1: 73; Livy 7.17.12. 35

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Consequently, much of the extant material attributed to the Twelve Tables cannot possibly emanate from the 5th century. Individual measures were merely the only and/or the last known legal pronouncements preserved, and thereby erroneously assigned to the “fountainhead of all private and public law.“40 Doubtless some extant laws, procedures, and other materials preserved evidence from the 5th century, but earlier laws and procedures were simply not recorded. Over the decades, laws were actively applied and changed by interpretation. This was easier than one might suppose, because extant materials were in the private collections, not part of the “public“ record preserved in archives. In face, collections of laws included private interpretations and opinions, and grew organically through several redactions as generations of aristocratic legal experts added to the body of material. This is why the modernized wording found in Cicero does not square with “archaic“ features of laws from other sources. The praetor's edict was nothing more than this type of legal redaction. Presumably, several editions of (and commentaries on) such collections existed, and it was unquestionably difficult to distinguish law from commentary or interpretation, since the Romans showed so much respect for aristocratic status and legal experts were aristocrats. For instance, Cicero indicated that if one studied the peculiar areas examined by Aelius−probably Sextus Aelius, the 2nd century author of the tripartita−it was possible to find a complete picture of the “good old days“ in the ius civile, pontificum libri, and in duodecim tabulis. Cicero believed his little volume on the Twelve Tables surpassed all other books in importance, but he certainly exaggerated its contents.41 His legal training was primarily under the supervision of the legal experts of his day, the aristocratic priests, Mucius Scaevola the pontiff and Mucius Scaevola the augur. It is not fully appreciated how much the documentary record of Roman legal development known to Cicero was the private creation and property of the aristocrats with Livy 3.34.6: fons omnis publici privateque est iuris. Among others, Jolowicz, Historical Introduction: 109, does not note that Livy's reference is to the first ten tables only as the fons. 41 Cicero, de orat. 1.43.193: the civil law, pontificum libris, et in duodecim tabulis, antiquitatis effigies, quod et verborum prisca vetustas cognoscitur ... ; 1.44.195: usus mihi videtur duodecim tablularum libellus; totam hanc, descriptis omnibus civitatis utilitatibus ac partibus. 40

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whom he was working.42 In sum, there is little reason to believe that an authentic code known as the Twelve Tables ever existed other than in the form of individualized copies of laws, procedures, and interpretations meant to serve as instructions for parties, mainly students, interested in Roman legal development. Sextus Aelius's tripartita consisted of laws, their interpretations, and the appropriate formula (legis actio). The tripartita remained the standard antiquarian legal text at least until the time of Pomponius, but few Romans appear to have been personally familiar with its material.43 The tripartita was little more than the most respected private collection of standard legal information, a college outline of Roman law with the most widespread name recognition−surprisingly, a work more referred to than read or cited.44 The material contained in the various individual copies of collections was inconsistent and at times contradictory. Consequently, the confusion over familia and pecunia did not exist because a putative codification of the law in the mid-5th century glossed over a supposed disappearance of communal property and an eclipse of the clan (gens) as the most important social unit. The confusion arose because the various pieces of legal material identified as part of the so-called Twelve Table codification actually date from many periods. They do not derive from a single source, and were not transmitted by a single T.N. Mitchell, Cicero: The Ascending Years (New Haven: 1991): 1-92 presents the early years. Cf. Dion. Hal. 1.74.5, where the censorial records are also said to have been preserved by families and the information passed from father to son. 43 Cicero, de orat. 1.56.240, referred to the material in Sext Aelii commentariis scriptum protulisse. See Pomponius, Dig. 1.2.2.4. An excellent bibliography and provocative discussion of the tripartita and other legal materials and legal experts are found in R. Bauman, “Lawyers in Roman Republican Politics,” MBPAR 75 (Munich, 1983): 129-48. Cf. Watson, Roman Law Making, 112, 220, 135f. 44 Cf. Cicero, de inven 2.50.148, with other versions cited by Riccobono FIRA, 1: 37-40. Cicero's comment on the study of ius civile is appropriate: neque ita multis litteris aut voluminibus magnis continentur: eadem enim sunt elata primum a pluribus; deinde, paucis verbis commutatis, etiam ab eisdem scriptoribus, scripta sunt saepius (de orat. 1.43.193-94). Watson, Roman Law Making: 122, briefly discusses modernizing. Daube, Forms of Roman Legislation, contributes important observations on archaic linguistic aspects of the law. 42

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authority.45 Nevertheless, understanding the Roman family and gens can aid our understanding of the origins and importance of private property in Rome's historical evolution. PROPERTY, THE FAMILY AND THE GENS The debate over the origin of private property pales in comparison to the debate over the gens or clan in Roman history. Unfortunately, we must enter that controversy, because the origin of the gens and the origin of private property are related. Gens does not always mean the same thing in our sources. Families, kinsmen broadly interpreted, clients, and even ethnic units, tribes or entire populations are sometimes called gentes. Modern scholars commonly assume that a group of extended families once lived in the same area, possessed some private property but also worked other lands in common, and that collectively these families constituted a gens. It is also assumed that each gens was characterized by common religious beliefs and practices, and possessed a common burial ground.46 All the members of a particular gens within the territory were organized on the basis of real or quasi-kinship into bands for mutual benefit, assistance, protection and expansion. Presumably, the natural progression was from this gentilic period of communal activity to the city-state. This took place, by and large, in the classical Mediterranean world in the 8th century. The rise of the city-state generally resulted in the incorporation of more land, which increasingly was used for agricultural purposes. The rise also coincided with a series of social and political changes which, it is argued, transformed the earlier private gentilic kinship organizations into public urban institutions. The aristocrats who emerged with sufficient private property to support larger families and more clients were able to acquire position, privilege and power in the new state system. In the citystate, private wealth was the hallmark of aristocratic status. It often I borrowed shamelessly from my own work in Patricians: 12232, 169-76, 229-33, for this section on the Twelve Tables. 46 Numa Denis Fustel du Coulange, The Ancient City (Baltimore, The Johns Hopkins Universiry Press, 1980), is of course the “classic“ attempt to show the parallel development of private property emerging from the communal sacred burial plot. 45

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had its origins in the pre-urban period, but the distinctions often drawn between the two periods are not as stark as some have suggested.47 It once was universally accepted that societies evolved from groups based upon birth to those based upon status, or from kinship to territorial principles of social and political organization. This was the accepted view of the change that occurred in the Graeco-Roman world. Urban societies and the public state systems were viewed as extensions of the earlier archaic period of family or clan dominance. It was believed that the archaic aristocracies obtained superiority by their hereditary domination of kinshipbased institutions, but lost this advantage once the organization of citizens changed from kinship to territoriality and status. However, it is now clear that these assumptions about the emergence of urban societies no longer can be supported. As E. H. Winter notes: “In its day” the distinction between kinship and status societies based upon the evolution from one to the other “was a useful dichotomy, bur that day has passed, even though some ... appear to be unaware of the fact.”48 Recent studies of pre-urban societies show what Max Weber long ago pointed out: clans, brotherhoods and tribes were characteristic of later urban communities alone and were not found in the “tribal“ communities that preceded them. “We are left to believe,” observes Moses Finley “the improbability that the evolutionary path proceeded from a kinship basis to a territorial basis, but that in those communities which failed to take the step the subordinate kinship-based units somehow disappeared.“49 Individual families, not clans or gentes, are the key to understanding the origins of the aristocracy. Kinship, succession L. Morris, Burial in Ancient Society (Cambridge, 1987): 57ff., passim, for example, convincingly questions the standard dramatic interpretations that frequently accompany descriptions of the transformation to urban communities based primarily on analysis of burials. 48 E.H. Winter, “Territorial groupings and religion among the Iraqis,” in M. Banron (ed.), Anthropological Approaches to the Study of Religion (New York, 1966): 173. 49 M.I. Finley, Ancient History: Evidence and Models (New York, 1986): 91. (Cf. Donlan (1985): 293-308. Watson, Rome of the XII Tables: 6770 discusses Rome before the Twelve Tables). 47

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and inheritable private wealth were concerns first and foremost of individuals within families, not of groups of families, e.g. clans or gentes. Not all gentiles shared in hereditary claims, for as Antony Andrewes points out: “Kinship...is always a relationship to a particular person. It is not a principle of organization, either in the army or in civil life.”50 Roman gentes consisted of individuals bound by personal ties to a particular chief for economic and, I would offer, military interests. Although all members might share the gentilic nomenclature, it was based on a fictional kinship. Actual kinsmen constituted only one, perhaps small but important, element of the entire group. The first phalanx consisted of bands of men under an aristocratic chief To the extent that larger numbers of nonaristocratic hoplites were employed, they consisted of clients, retainers, dependents−even slaves, and tenants of the aristocrats, many of whom did not necessarily possess sufficient wealth or independence to arm themselves. They were “recruited” along with kinsmen, neighbors, friends, and even mercenaries.51 I have argued elsewhere that the archaic state lacked the information and ability to recruit and mobilize troops quickly in any quantity. It thus assigned responsibility to prominent individuals with their own private forces who had knowledge of particular regions and populations.52 We cannot place too much faith in the stories of how specific individuals and populations were incorporated into the Roman state, but local aristocrats did migrate to Rome, as many Latins later did, following acceptance of the foedus Cassianum in 493 BC This increased the number of senators, just as their warrior clans increased the city's military force. The addition of various Alban clans resulted in several of their leaders becoming senators, and a decimal increase in the Roman infantry and cavalry when the Alban populus was incorporated into the state. Earlier, Tarquin Priscus presumably encouraged several gentes to migrate to Rome. The Senate and the military were correspondingly A. Andrewes, “Phratres in Homer,” Hermes 89 (1961): 137. Cf. Scullard, The Etruscan Cities and Rome (London and Ithaca, 1967): 238. M. Cristofani, The Etruscans: A New Investigation (London, 1979). argues that the traditional dual nomenclature (praenomen, nomen) had its origins in the late 7th century, bur the gentilic was not solely determined by blood. 52 Mitchell, Patricians: 49-53. 50 51

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enlarged. The Claudii also came to Rome with an extensive clientela. The Claudian “entourage” consisted of one or several military clans (gentiles), and presumably constituted the vetus Claudia tribus.53 Most modern scholars believe Servius Tullius restrained these private clan leaders by introducing the centuriate system, thereby checking private kinship-based military units. Theoretically, by introducing the census, he imposed the obligation to arm and fight upon reluctant individual wealthy assidui, landowners whose sudden military prominence supposedly contributed to the political decline of the archaic aristocracy. Different ranks of the Roman legion were filled by recruits required to equip themselves with arms and armor commensurate with their census classification. But the original Servian system disappeared long before the appearance of our earliest sources. I want to emphasize that the system attributed to Servius is a product of the third century, when ancient authors began researching Rome's past and as a result assigned an antiquarian version of the contemporary system they knew to Servius Tullius.54 The original census was only a review of the classes drawnup for battle. It was not−I repeat, was not−a procedure to determine the relative military responsibility of individuals based on a census of their private wealth, presumably mainly in land. Servius Tullius mobilized the individual hoplite units consisting of the private escorts (i.e., gentiles) brought by prominent local leaders summoned to Rome, who were required to provide fixed quotas of manpower (i.e., centuries). These soldiers armed, marching and fighting as hoplites, were not necessarily independent, wealthy, landholding hoplites. Many were part of the personal retinue of prominent individuals. Their presumed private wealth is a modern conjecture that needs revision.55 Servius Tullius was the first to require hoplites from 53 Cf. Livy 1.30, 35-38, 2.16.4-5; and Dion. Hal. 3.29-31, 48, 6768; see Ogilvie, Commentary: 147-52, 273-75, and Palmer, AC: 140. 54 Mitchell, Patricians: 53-62 has details and bibliography. 55 Scholars persist in asserting that the military force consisted of those “citizens” who were prosperous enough to arm themselves, hence the assumption they were all landowners. Cornell, The Beginnings of Rome: 179ff presents the unproven thesis for the Romans. Thus census records were part of the private records of individual families and were transmitted, originally, from father to son: cf. Dion. Hal. 1.74.5.

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prominent local leaders. He thus mobilized the first public military force. Actually, he created the state. His “reform” is described more accurately as the initial incorporation and organization of the ager, the Latin countryside, from which local leaders and their entourages came. When he imposed an organization and created a centuriate system for a particular purpose−to unite the private and regional forces in a common public effort−there was no older hereditary aristocratic system based on communal property for him to replace. When hoplites gathered in formation outside the city, they constituted the populus−from populare “to lay waste.” These soldiers were the first citizens.56 Individual populi first gathered on the Aventine, predecessor of the Campus Martius. Situated outside the pomerium, the Aventine was the hill where most of the agitation by plebeian soldiers for reform took place from 494 to 449 BC. This is where they protested against serving in the military and bearing the greatest hardship and burden for Rome's territorial expansion. It thus became the stage on which soldiers expanded the meaning of citizenship. The Aventine was where plebeian soldiers registered their complaints about not sharing in the rewards of territorial expansion.57 But we are getting a little ahead of our story. By institutionalizing the status of the various local leaders as aristocrats, Servius legitimized their existing control (dare it be called ownership at this time?) of land and other resources in their respective districts. It is clear that urbanization occurred simultaneously with the introduction of public institutions and the emergence of Rome's aristocracy.58 Consequently, we ought to They were the early Latin peoples around Rome, who Sherwin-White, The Roman Citizenship, 2d ed. (Oxford, 1973): 8, says “were originally organized in small village communities, each a tiny populus, grouped together in religious leagues, each of which had its own cultcentre.” Temples, cults, sanctuaries, and shrines were focal points for bringing together the rapidly expanding population, they were centers of economic, political, and judicial organization and administration which enabled the developing city-state to recruit manpower for its own defense and expansion. See Livy 2.44.8; 4.23.5, 25.7, 61.2; 5.1.5, 17.6, 33.9; 6.2.2; cf. Ogilvie, Commentary: 353, 571 and 705. 57 Livy 2.28.1, 3.2.2-3; 3.32.7, 5.2). 58 See the many articles in T. Cornell and K. Lomas, Urban Society in Roman Italy (New York, 1995), where this fact stands out. 56

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assume that the change was not from communal to private ownership of land but from the private property claims of local strongmen (reinforced simply by their bands of followers) to the public recognition of those claims. Rights of ownership that once grew out of the point of a sword now could be voiced in a public forum. This conclusion is reinforced by the archaeological record of Rome under the kings, a record that becomes more voluminous and unambiguous daily. In the course of the Sixth Century BC, both the city of Rome specifically, and Latium generally, were greatly enriched.59 Presumably, smaller regional communities disappeared as independent entities, as they and their populations were incorporated into larger centers. There is no reason to believe that drastic changes occurred in either the use or ownership of incorporated lands,60 but ownership became increasingly a question of the “public” record and less the product of force. This public record was Roman in origin. The rich private tombs of the “princes” also disappeared during the sixth century, the period of Servius Tullius's reign, and the hoplite armor so characteristic of these graves was no longer entombed, although we know that it continued to be employed by the military forces at the time.61 Mark Toher observes that “It is probably not simple coincidence that at the same time that the burials in Latium become less elaborate, public sanctuaries appeared in the region.”62 In other words, nothing much changed except public institutions replacing private practices. It follows that just as the state now employed the “princes,” it made use of their T. Cornell, “The Value of the Literary Tradition in Archaic Rome,” in SSAR (1986): 66. Cf. Archaeological Reports (1979-1980): 71-89; CAH 7.2 (1988): passim, with the extensive bibliography. 60 As was the case when Romans took over vast tracts of Tuscan territory following the defeat of Veii. No disruption of agricultural settlement, apparently, occurred. In particular see J.B Ward-Perkins, A. Kahane, and L. Murray-Threpland, “The Ager Vientanus north and east of Veii,” PBSR 36 (1968): 132-79, and T.W. Potter, “Towns and territories in southern Etruria,” in J. Rich and A. Wallace Hadrill (eds.), City and Country in the Ancient World (London, 1991): 197-99. 61 Thomsen, Servius: 33-36. summarizes the debate over the urbanization of Rome. 62 SSAR (1986): 325. 59

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armor as well. Although family members may have been buried together, bones and ashes do not tell us whether they belonged to aristocrats or dependents. There is no evidence that the tombs belonged to clans instead of families, or that the gens heretofore had maintained its dominance through inheritance.63 The armor remained in fashion, but it was so important and costly that public policy prohibited its burial. Even when buried in the earlier period, it does not tell us whether it was the private property−familia or pecunia−of the deceased or of aristocrats or dependents.64 It is not easy to date the transition from the system Servius imposed on local strongmen to the one that imposed obligations upon individuals. Changes in the system certainly occurred during the course of several centuries, most dramatically in the third century. It cannot be denied that sixth century Rome was large and prosperous, but soon after 500 BC the city fell on hard times. It has been estimated that the ager romanus under the first kings consisted of approximately 150 square kilometers, and that soon after the Republic began, it had grown to more than 900 square kilometers. Such estimates are far too generous. They are based on the assumption that Rome controlled much of territory associated with seventeen rural tribes.65 I do not want to debate here the question of the Servian origin of Rome's archaic rural tribes (or the four urban tribes, for that matter). I simply want to point out that there was not much territory under Roman control before the conquest of Veii in 396 63 As argued by T. Cornell, “Rome and Latium Vetus,” Archeological Reports, 1979-1980: 80, and “The Value of the Literary Tradition:” 66. 64 See W.K. Pritchett The Greek State at War, 4 parts (Berkeley, 1971-85): 7-44, who successfully defends the view that Greek military tactics changed very little from Homer to the historical period and that they display similarities with much earlier Near Eastern tactics. 65 Beloch, Römische Geschichte: 620, has figures. Beloch's often repeated estimate of the size of Roman territory at the end of the 5th century is moved back to the beginning of the century , without good reason, by associating it with the generally accepted creation of Clustuminian and the Claudian tribes in 495 BC. Consequently, we have the unlikely existence of twenty-one territorial tribes entirely too early in the city's development. See Cornell, in CAH 7.2: 254 fig. 43; cf. 281. Note the criticism by Badian (1962): 201, of Taylor’s VD whose reconstruction Cornell generally follows.

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BC, and most of that was contested. Rome was constantly at war in the fifth century, and even when it was victorious the gains were modest. In fact, “much of the recorded warlike activity of this period involved mysterious bands of warriors who accompanied individual leaders as clients or ‘companions,’ and functioned as private armies.”66 Obviously, Servius Tullius's organization of private aristocratic forces broke down in the aftermath of the collapse of Etruscan rule at Rome. Rome controlled only the left (south) bank of the Tiber before Veii fell. Judging from the references to constant conflict over the same territory within 15 or 20 kilometers of the city, Rome was not even completely dominant in its own backyard. The Roman aristocracy must have been increasingly hard pressed to protect what it had and to satisfy its desire for more land. Warfare was always the aristocracy's primary endeavor and the most profitable.67 In any conflict, the main “objective was always the acquisition of booty,”68 and this of course included land and slaves. Momigliano observes that during the 5th century the “existence of private land ownership and instability of the upper classes must have been connected,” because “the band chiefs and their followers gained or lost land held as private property.”69 Aristocratic warfare meant that property was constantly changing hands. This property included land, persons and animals (familia et pecunia). In other words, during the 5th century the pressure for centralized control was nearly matched by the independent behavior of aristocrats supported by their private armies. However, the fact that the land changed hands apparently did not disrupt production over the long term. In contrast with this picture, it is claimed that the foedus Cassianum of 493 BC shows Roman dominance over members of the Latin League. However, Servius may have successfully organized the Latins, for they were still on king Tarquin's side against Rome at the battle of Lake Regillus (496 BC). Regardless, after the treaty Latins and Romans were equal partners in a military alliance. Inasmuch as the league's primary purpose was military, Momigliano, in CAH 7.2: 97f.; cf. 292. Harris, War and Imperialism: esp. 54-67. 68 Cornell, in CAH 7.2: 293. 69 Momigliano, in CAH 7.2: 99. 66 67

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each of the original signatories must have agreed to supply their own fixed quota of manpower, according to what eventually was known as the formula togatorum.70 Latins and Romans were to share command as well as all booty. The latter included land on which Latin, not Roman colonies were established. Moreover, in a kind of isopolitia, Romans and Latins shared private and public rights (iura), including commercium, conubium and ius migrandi.71 Disputes were dealt with in the city of their origin. This doubtless gave impetus to the development of general rules governing land, property, inheritance and, perhaps, obligations. The development of Roman property rights thus cannot be disentangled from the complex problem surrounding Latin rights just as the growth of the Roman aristocracy and Republican institutions cannot be separated from the assimilation of Latin peoples and territories. Nevertheless, it is tempting to date the Twelve Table provision about selling a citizen enslaved for debt across the Tiber to the fifth century, for at that time the other side was foreign territory.72 The situation started to change in the late 5th century with a series of Roman successes that culminated in Rome's defeat of Veii. Both sides of the Tiber started to fall under Roman control, which also extended farther north, west, and south. Doubtless it must have been the destruction of Veii that brought the Romans into contact with the Gauls at the Allia River. On the other hand, Veii may have been so concerned with the Gauls that the threat from Rome was underestimated. After defeating Veii, Rome created four rural tribal districts from the territory taken from the Etruscan city and other lands which previously had been contested. The increase in ager romanus began a veritable explosion in the amount of territory that came under Roman control over the course of the next century. Between 358 and 299 BC, in what has been described as a “drive to acquire land,”73 Rome created eight Brunt IM: 57f., 545-48. Livy 2.33.4.9; and Dion. Hal. 6.95.1-3; cf. Ogilvie Commentary: 280-85, 316-17, and Sherwin-White, The Roman Citizenship: 11-37. 72 The problem is, of course, that later in the Republic captives were also sold across the Tiber which suggest a possible connection between debtors and captives. (Livy 8.20, etc. on Velitri and Privernium). Cf. Cicero de off 1.l2.37; cf. Sherwin-White, The Roman Citizenship: 6f, 48. 73 Harris, War and Imperialism: 60, cf. 264. 70 71

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more rural tribes, established dozens of colonies, and added thousands of acres to the ager romanus, most of which must have been ager publicus.74 On the eve of the First Punic War it is estimated that Roman territory consisted of 26,850 square kilometers, with a population of 900,000.75 Perhaps as much as a third of the added land resulted from colonial foundations and direct Roman possession, with a similar amount of ager publicus having been sold off or rented. Neither practice, of course, prevented wealthy Romans from taking direct advantage of Roman conquests to obtain greater land holdings.76 It also has been noted that during this same period (366291 BC) of rapid incorporation of territory into the ager romanus “a handful of talented and charismatic individuals” dominated the political scene. Conclusive evidence is lacking, but it is tempting to attribute their importance to their ability to profit from the socioeconomic changes that accrued from the territorial expansion−an expansion they not only helped engineer, but which they took advantage of, by obtaining political influence in the new tribal districts.77 However, the Roman aristocracy always consisted of a narrow group of families. Virtually all of the most important families, or groups of families (gentes) came into existence before 74 My view is that Rome created the four urban tribes late in the 4th century and after the creation of two rural tribes in 299 only two more were added in 241 BC, after which a complete “reform” of the system was mandated; or should we say that the system known to the Romans was at that time introduced? 75 Cornell, in CAH 7.2: 367, 382, 403 with references. 76 Cf. Harris, War and Imperialism: 60f.. 77 Cf. Cornell, in CAH 7.2: 347 is quoted: In 72 years, between 366 and 291, there were 14 men who held 54 consulships 38 by only 8, each of whom was consul 4 times or more. They included the patricians: C. Sulpicius Peticus, L. Papirius Cursor, M. Valerius Corvus, Q. Fabius Maximus Rullianus; and the plebeians M. Popillius Laenas, C. Marcius Rutilus, Q. Publilius Philo, and P. Decius Mus. Thus, this system had a substantial democratic element that was absent from later period when the senate controlled government and the outcome of elections had little effect on general direction of policy. J.R. Patterson, “Settlement, city and elite in Samnium and Lycia,” in J. Rich and A. Wallace Hadrill (eds.), City and Country in the Ancient World (London, 1991): 150-2, presents several later examples of aristocrats who benefited their regions and doubtless obtained the commensurate political rewards.

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the war with Pyrrhus (283-272 BC).78 The influence of these families had grown with Rome's systematic 4th century territorial expansion. They took full advantage of that territorial growth to institutionalize their own political standing in Rome's governmental tribal system. By the 3rd century, Roman aristocrats had successfully established their wealth by occupying countless tracts of land, including ager publicus, in various tribal districts.79 The pattern of occupation is much like what we find later, when our information is better. Aristocrats had several estates, of various kinds, in many districts. We can only guess that the occupation pattern matched the pattern of Roman conquests, for it is a well-established fact that aristocrats who conquered particular towns, peoples, or regions became their patrons, as did Roman officials sent out to parcel out the lands to settlers or colonists. In other words, those with direct contact with the peoples and places that Rome defeated and enslaved were frequently the ones who benefited the most from the seizure of lands subsequently turned into ager publicus. Over time, their descendants benefited from the hereditary support of clients who emerged from the ashes of the defeated. The pages of our narrative sources also are filled with the constant complaints of those who did not benefit from Roman expansion. For instance, there is the portrait of the small farmer called upon to help extend Roman rule and increase Roman territory, who loses his farm because of his absence or because of enemy raids. He fell into debt, was imprisoned or enslaved, and threatened with execution or sale trans Tiberim. The poor−nearly always identified as urban, plebeian, and as soldiers or veterans−cried out for debt relief and land redistribution. The land in question was ager publicus, public land, taken as a direct result of Roman conquests. These cries were heard from the day the city was founded. So were complaints that rich, creditor, patrician Mitchell, “Aristocracy,”n.b., reprinted above. This runs somewhat counter to the usual interpretation offered by L. R. Taylor, VD: 35-45, who identifies individual gentes with particular tribes because of an unproven assumption that their prominence depended upon their importance in specific incorporated tribal districts. My assumption is that the territorial tribal units were a later creation and that from the beginning many gentes had members in several tribes and that was the basis of their political strength. 78 79

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commanders oppressed the poor and took the fruits of Rome's military success, including the ager publicus, for themselves. They contrived to still the complaints of the poor by constantly waging war, thereby keeping those demanding reform occupied outside the city.80 Debt relief and demands for land are said to have been behind the first plebeian secessio (494 BC), a military strike that resulted in the election of the first plebeian tribunes.81 For more than a century afterwards, tribunes unsuccessfully introduced plebiscites to reduce debt and redistribute the land. Finally, in 367 BC, the Licinian-Sextian laws prohibited occupation of more than 500 iugera of ager publicus by an individual, and provided that the interest already paid on a loan should be subtracted from the principal82. Debt remained a problem, but agrarian proposal disappeared from our narrative until the end of the next century, and the problem of redistribution is not an issue until well into the Second century. Clearly, the various reports of agrarian reform attempted between the proposal of Spurius Cassius and that of Licinius and Sextius owe more to the first century crisis than to reliable complaints made by poor soldiers in the fifth century. Poor soldiers may have remonstrated about being cheated out of booty (land), but land could not have been much of an issue before the fall of Veii, unless it was a question of small parcels taken in conquest and not given to soldiers. Furthermore, the fall of Veii had more to do with the Licinian-Sextian law than did plebeian demands for land redistribution. After the defeat of her chief rival, Rome had a great deal of ager publicus. Placing a limit of 500 iugera on the occupation by individuals is more in the nature of a simple statutory limitation than it is an attempt to curb the greed of the patricians−or Latins for that matter, since they shared in the land according to the terms of the foedus Cassianum. Colonies are the reason we do not hear demands for land redistribution in the 4th century. From the fall of Veii to the First Punic War (396-264 BC), except for the setback caused by the 80     See Mitchell, “Demands for Land Redistribution” (n.b., reprinted above)  81 For discussion of the military origins of plebeian tribunes see Mitchell, Patricians: 139-50. 82  Livy 6.34.39.    

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Gauls, Roman conquest of the peninsula was rapid and remarkably successful. Success was punctuated by the foundation of nearly two dozen Latin colonies. The evidence suggests that veterans were rewarded with lands in these colonies as their share of the booty, although complaints about not receiving their share continued.83 I want to draw a distinction between allotments made to veterans from conquered territory and the demands for reform and redistribution of ager publicus made by the urban poor in the 2nd century. Earlier land grants to soldiers were routine, but after the conquest of Veii, demands for land made by soldiers stopped. This suggests that earlier demands were fabricated on the basis of the 2nd-century conditions.84 Let us return briefly to the question of the two-iugera grants, or heredium. Land allotments to colonists are occasionally said to have been two iugera. Complaints were voiced about these two-iugera grants when aristocrats received 500.85 Land for colonization or settlement came from conquered territory. The process can best be understood from evidence from a more historically reliable period. On the eve of the Second Macedonian War, Livy reported that ager publicus consisting of confiscated land in Samnium and Apulia was assigned to Scipio Africanus's African veterans. Each man was to receive two iugera for each year he served in Spain and Africa. There is no reason to believe that this was an unusual allotment, or that it was the first time the state awarded land to veterans.86 From the beginning, demands for land were voiced by soldiers, which I take to mean that from the outset land was the primary reward given to the successful soldiers.87 Moreover, when Livy mentioned that Castrum Frentinum (near Thurium) was settled, the colonists consisted of 3,000 infantry and 300 equestrian veterans. This was a legion, if we subtract the 1,200 to 1,800 supernumerary troops recruited from the poor. Infantry and cavalry were to receive thirty and sixty iugera respectively, See Mitchell, “Demands”: n.l0. Cf. Brunt IM: 639-644. 85 Livy 6.36.11; 4.47.7; 8.21.11. 86 As J. Briscoe, A Commentary on Livy: Books XXXI-XXXIII (Oxford, 1973): 62, claims.   87 I combine Livy 31.4.1-2 with 31.49.5 because Spanish veterans also served in Africa (see Livy 32.1.6, lands for veterans from Spain, Sicily, Sardinia). Cf. Briscoe, Commentary: 620. 83 84

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although that figure was lowered to twenty and forty in order to reserve some land for other colonists, perhaps for the aforementioned supernumerary soldiers.88 A colony at Vibo similarly consisted of 3,700 foot and 300 equestrians colonists who received fifteen and thirty iugera respectively.89 Other examples exist, but we do not know how long these troops served. The grants may have been calculated on the formula of two iugera for every year of service, except for the poor. They obtained only two iugera and then only as an afterthought.90 In this regard there is a distinct group of colonies that merit attention: the coloniae maritimae, or maritime colonies. All were established along the Italian coast between 334 and 241 BC The usual explanation for their creation is that they were garrisons guarding against marauders. The colonists were unique for this period: They remained Roman citizens, yet the evidence suggests neither the colonies nor the colonists were held in high repute. Apparently each settlement consisted of 300 colonists. Each colonist received two iugera of land, and was exempt from military service, for each was already on garrison duty it is argued.91 I want to suggest another explanation for the status of these colonists. They were 300 low-born Romans, recruited as rowers and sailors to man a single ship stationed in the new coastal colony. Such ships served as part of an early warning system, or played a communication role. Sailors were of low status, bur these colonists remained Roman citizens because they were active over a wide area and often might have to seek a safe harbor where their Roman status would protect them. Their naval service would explain their low status despite Roman citizenship, and also their exemption from the army. The two-iugera allotment, on the other

88 If 36,000 iugera were saved by reducing allotments to pedites and equites, then two iugera could be allotted each one of the 1,800 supernumerary soldiers. Thus the legion would number 5,000, a figure often encountered. 89 Livy 35.9.7-8 193 BC; 35.40.6 192 BC. 90 Livy 40.34.2-3; 41.13.4-5. 91 E.T. Salmon, Roman Colonization under the Republic (Ithaca, 1969): 70ff., 81, 97 is standard; Sherwin-White, The Roman Citizenship: 77; see Livy 8.21.11: Anxur in 327 BC.

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hand, established their continuing obligation to serve.92 It is important to note that colonists might well avail themselves of other lands, including unoccupied ager publicus. However, occupation of additional public lands did not matter in terms of the obligation to serve militarily. When each colonists received his two iugera, this in itself established that responsibility. Also, it must be stressed that maritime colonists were not veterans. They were recruited from the urban poor. As such, they were forerunners of those who demanded land redistribution in the Second century. I cannot develop the argument fully here, but my point is that two iugera was the amount of land that a foot soldier received as booty for each year of successful military service. It also was the minimum amount of land necessary to establish the military obligation for each colonist. This was the heredium, and it has nothing to do with the limited amount of private property (garden) recognized during the period of communal ownership of lands. It is possible that the two-iugera grants go back to the distant past when campaigns were seasonal and annual, and to the time when all acquisitions lay within a short distance of Rome. The heredium obligated those who received it (and those who inherited it) to serve. In fact, a colony was a military outpost. Although farmers (coloni) were sent out, they went out with all the pomp and circumstance of a military force and there can be little doubt about their future obligation to serve.93 The timocratic classification of the so-called Servian system was part of a political reform that meant little in terms of military responsibility. A minimum For example, in 207 BC the Antiates complained they were exempt from military service as maritime colonists and should not be asked to serve as regular soldiers (Cf. Livy 27.38; 36.3). 93 Salmon, Roman Colonization: 24f. Colonists must have been bound by oath to follow their leader and in this were very like soldiers under oath to follow their commander. I see a possible connection between the ver sacrum (cf. Livy 22.10.1; 33.44.1; 34.44.3), the “primitive pattern of initiation by which young men who had reached a certain age were segregated from the rest of the tribe and sent away to fend for themselves by raiding and pillaging” (Cornell, in CAH 7.2: 294), and the later practice of sending out colonists. Both groups were meant to remain within the orbit of the metropolis and to supply assistance whenever called upon. 92

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classification was all that was necessary to establish the obligation. It cannot even be argued that the proletarii were below the minimum census required for military service, for no reliable census data existed until the end of the 3rd century at the earliest.94 Moreover, in the Pyrrhic War proletarii were armed by the state, perhaps for the first time. It was not the first time they served.95 In an emergency, Rome even conscripted slaves, accepted slave volunteers in the army, and required the wealthy to contribute both slaves and their maintenance.96 Early Roman law drew a distinction berween citizens who were assidui and those who were proletarii.97 Another military distinction was drawn between the classes and the infra classem.98 In my view, the proletarii were once infra classem. This did not mean they were outside the military, but that they were below the three ranks (classes) of the legion. The infra classem numbered between 1,200 and 1,800 per legion. They are the veterans of Scipio's army not mentioned as recipients of colonial allotments. Perhaps they received smaller parcels as a result of reducing those allotted to other veterans, or maybe they obtained lands elsewhere later. Or, perhaps, they were left to swell the ranks of the urban poor. Land was given veterans who possessed a slightly grander status, bur not because only farmers of modest wealth fought for Rome. More work must be done on the military obligation of the lower classes in order to fully appreciate the pieces of “evidence“ we have about the military obligations of the poor.99 When colonization stopped Brunt IM: 33. O. Skutsch, The Annals of Q. Ennius (Oxford, 1986): 338; see Mitchell (1995): 206f. Livy 8.20.3-5 (329 BC) mentioned a military levy without a single exemption, which included the least qualified for military service. We are also told that nexi were recruited: cf. Mitchell (1995): 209f. 96 Livy 22.57; 24.11. There are many instances of earlier use of slaves and servile attendants for military purposes, but the last word has not been said on the topic. However, N. Rouland, “Les esclaves romains en temps de guerre,” Latomus 151 (1977): 25-75 is a convenient collection. 97 Gellius, 16.10.5. 98 Festus, 100L: s.v. infra classem. 99 How can one overlook the romantic story of Spurius Ligustinus, a veteran of 22 campaigns, who still lives in the house on the one iugera estate left to him by his father. Furthermore, Spurius has four sons currently in service and two more to follow. Our sources did not find it inconsistent to believe that such a humble family could produce so 94 95

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in 173 BC it contributed greatly to the changes taking place in the cities and countryside−changes that ultimately resulted in the Roman Revolution.100 Everything we know about the rewards for military success shows that aristocratic commanders, their companions and higher military perrsonnel obtained a disproportionate percentage of all forms of booty.101 The evidence also clearly indicates that in the 2nd century BC many individuals possessed large tracts of ager publicus in excess of the legal limit. These large estates were increasingly given over to specialized agriculture production and grazing, and their labor force increasingly consisted of chattel slaves. Little or no tax was paid for the use of the ager publicus, because records were poorly kept. Consequently, the land tended to be treated as private property, and gradually merged with other parcels purchased in the area or occupied after being abandoned by tenants who were unable to make a go of it−or who were forced out−and consequently moved to the city.102 It is equally clear that before the 2nd century there was no dearth of ager publicus available for settlement and no surplus of individuals demanding the right to occupy it.103 Thus, excessive and illegal occupation was ignored. Individuals made use of as much ager publicus as “patrimonial resources would permit,“ and in this respect aristocratic occupants had superior resources.104 They used their extensive clientele and slave labor to occupy more and more land.105 By the Second century, slaves increasingly came from outside Italy, but for several centuries before they came from Italy. In other words, very early in Rome’s territorial expansion slaves came from ethnically similar peoples. This explains the ease with which they were manumitted and identified as part of the many soldiers. None of whom, we must assume, could afford their armor. See Livy 42.34. 100 Brunt, The Fall: 70, 74, for the end of colonization. 101 Cf. Gelzer, The Roman Nobility: 21f.; Brunt IM, passim; and Cornell, in CAH: 7.2, 1989: 125f., 312f., 331-34, esp. 389. 102 See Livy 42.1.6. 103 The question of Latin or Italian occupation of public land cannot be dealt with here. In general, see the discussion in Bernsrein (1978); esp. chapters 3-5. 104 Cornell, in CAH 7.2: 326. 105 Appian BC 1.7-9.

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familia. Slaves, of course, were part of the booty shared by soldiers and here again commanders obtained the largest number. These slaves worked the confiscated lands−sometimes lands that had been their own. Even after manumission they remained legally tied to their owner/patron. Frequently they worked lands held from the patron under precarious tenure, whereby occupation was protected from action by a third party, bur not from the owner.106 Finally−a word that every audience eagerly awaits−a few observations about debt-bondage, or nexum. The status is not unknown in other parts of the ancient world. Their plight is often interpreted as the direct result of inalienability of land. Hence, land’s original communal nature meant that an individual pledged himself or members of his family as security. The problem for the Roman legal historian has been to understand how an individual who fell into debt came subsequently to be “enslaved“ for still more indebtedness. Individuals were condemned for debt throughout Roman history, but a strong tradition pointed to the legal prohibition of nexum in the late Fourth century. Most often, nexum is seen as a labor contract whereby the rich acquired the labor of the poor. It was this voluntary debt bondage that was outlawed in the 4th century. However, defaulting debtors continued to exist, and were still subject to prosecution and bondage. It is suggested that Rome's territorial expansion, particularly during the Second Samnite War (327-304), resulted in so many slaves that poor Roman debt bondsmen no longer were needed, and the practice was outlawed. What has been forgotten in this solution is that the debtors are always characterized as soldiers or veterans. They sometimes are called upon to serve despite their indebtedness. I have argued at greater length elsewhere that nexi were ransomed soldiers who worked off their indebtedness.107 It appears that the redeemer’s loan was worked off over a period of five years. The soldier then regained his freedom, and perhaps even obtained Roman citizenship. Perhaps we therefore should identify the mysterious class of nexi with the thousands of captivi taken from the Italian peoples before the end of the 4th century. Many of them must

  supra).  

106 Brunt, 107

The Fall: 410f.   Mitchell, “Demands for Land Reditribution,” (n.b. reprinted,

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have been forced to work for a period of time because they could not pay their ransom. These slaves (famuli) were frequently manumitted, and many must have swollen the ranks of the plebeian poor. As a parting observation, intended to be more provocative than anything else, I want to point out that one method of manumission was by censu, which occurred every five years.108 New citizens were enrolled in the territorial tribes of their patrons, thereby increasing their patron's influence within the tribe. They subsequently were enlisted as part of the military unit supplied by the tribal district. Finally, after a successful military campaign, they were rewarded with a parcel of land in a different tribal district. This added still more to their patron's political clout, at the same time the ex-slave’s or captive’s family entered into the Roman political system, by the very same means their ancestors had lost their independence. What goes around comes around.

108

Gaius, Inst. 1.17, 44, 138-40.

WHAT EXACTLY IS TRADITION IN THE CONTEXT OF ROMAN REPUBLICAN HISTORY? “According to tradition” is a sort of stock expression that is convenient for writers and speakers as a starting point for discussion. Useful in its vagueness, it can provide a straw man to attack as easily as it can provide a clue to a long unsolved problem. It has been especially useful, some might say, as a substitute for evidence in early Roman history. Mitchell, in commentary provided for a panel of papers delivered at the 2001 meeting of the Association of Ancient Historians, examined this common thread in the papers given that day and, implicitly, in the literature on ancient Rome generally.* Although the papers we have just heard may not seem to fit a pattern, all of them are more or less historiographical and all attempt to establish a reliable bit of history in the process. In addition, all focus on the tradition or on traditional accounts of specific events and each discovers or offers an innovative interpretation of a familiar event or theme. I would like therefore to make several observations and register several reservations about our understanding and use of the Roman tradition. _____________________________________ * The panelists that day were Gary Forsythe, Craige Champion, Valerie Warrior, and Luigi Pedrone. Minor changes have been made by the editor in the organization of this previously unpublished essay and the specifics of the papers themselves have been deliberately de-emphasized. All dates are B.C.E.

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First, when we are dealing with annalists who are both late in date and fragmentary in survival, it is difficult to determine what tradition is in Republican history. Gary Forsythe correctly notes that we do not know the content or organization of the annalists’ contributions nor do we know what overall interpretation of Roman historical development they presented. Nevertheless, modern assumptions concerning the political attitudes and factional allegiances of the annalists themselves—especially those of Fabius Pictor, Valerius Antias, and Licininus Macer—are made with scarcely any evidence to support them other than, as with Octavian’s youthful claim, a name. Gary’s well-placed warning about putting too much faith in Pictor and making him the hidden source for so much of Livy must be accompanied by a warning about Pictor’s position, primus inter pares. It is a logical and attractive assumption that earlier sources are inherently better and presumably more reliable than those awful Gracchan—and later—annalists. But extant fragments attributed to Pictor do not affirm the relative reliability of earlier annalistic information. For example, his focus on Hasdrubal— rather than on Hamilcar and Hannibal—can be made historically more attractive only by a great deal of modern analysis and a great deal of supplemental material. In addition, although it is easy to endorse Gary’s view about the “gap” in our information that “floats” between the regal period and the Punic Wars, we cannot assume that we know either the history of the kings or the background of the Punic Wars. You know that I am also critical of any argument that turns the struggle of the orders into one of the reliable traditional structural details rather than a highly suspect— dare I say completely false—narrative explanation for the floating period. In fact, in any form, the struggle is more a creation of modern historians than it is a feature of ancient narratives.1 Perhaps the most dangerous assumption about early Roman history is that our material becomes more reliable as it gets closer to the author’s own day. Yet we have already agreed that the annalists are not as reliable as many assume, and what survives implies the redaction of oral history more than anything else. So how is it that the annalists’ work becomes more reliable when it is 1 Cf. K. Raaflaub SSAR. Nearly all essays in this collection recognize the “modern” influences on the interpretation of the struggle but attempt to salvage its “traditional” features.

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largely based on an oral tradition? In fact, the oral tradition, already justifiably criticized by Gary Forsythe, had to be transmitted for more than a century before Pictor preserved it: assuming, of course, that the oral stories existed and he preserved them. Let me be clear: I believe the stories did exist. I will even grant that Pictor and others used them, but I cannot agree that they were in any way reliable. To return to the previous point about structural and narrative facts: structural facts are those that exist independently of a narrative; the narrative we have is what must be challenged and changed. If there ever was an early consular fasti, it was not encased in a narrative; it was not explained, and it was not complete. Furthermore, we should not be too quick to distinguish between family records and pontifical archives since they were often, especially in the earliest versions, one and the same. Also keep in mind that fragmentary late Etruscan Elogia show a creative recording of earlier fictional accomplishments;2 that the antiplebeian stance of the so-called patrician Claudii was entirely the work of later sources which go unquestioned. Moreover, the disagreement in our sources does not necessarily indicate that one of them is correct or that each may preserve a piece of the truth. We no longer assume that the 10,000 casualties found in one source may be the 5,000 found in another plus the wounded. Different accounts may simply mean no one knew the truth. Also, it is absolutely essential to remember that even our fragmentary, non-annalistic material may not be original and uncorrupted. The fasti, legal and religious records were very likely redacted, emended, and changed by addition or deletion. From the little we know about Roman archives and legal material like the praetor’s edict, the extant material was haphazardly organized, difficult to use, and contained little specific chronological information or historical evidence.3 In the second paper, Craige Champion discusses Polybius’s history in order to assess Polybius’s attitude toward Rome. In his brief reference comparison of Telamon to Greek victories over the Persians and the Celts, Polybius credits both Romans and Greeks 2 Cf. M. Torelli, Elogia Tarquiniensia (Florence, 1975); and T.J. Cornell’s view of Torelli, Elogia in JRS LXVIII, 1978, 167-173. 3 See Phyllis Culham, “Archives and Alternatives in Republican Rome,” CPh 84 (1989): 100-115.

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with common virtues. Although an interesting observation, and certainly an important one—from my point of view—the more telling commonality sheds light on Polybius’s attitude toward historical development and change. In these episodes, both Greeks and Romans were fighting for their homeland. The parallel experience theme plays a considerable role in the narrative accounts and has not been fully explored by anyone, as far as I can tell. A more obvious example comes in the meeting between Hannibal and Scipio prior to Zama (Polybius, XV.6). Hannibal said Romans and Carthaginians would lament the day they coveted lands beyond Italy and Africa respectively. Both states risked their homeland, the Romans first and now the Carthaginians. Hannibal learned that fickle fate treated him and Carthage harshly, but Scipio was too young to know how quickly fortune could change. Craige reads Polybius’s treatment of Timaeus for further insight. In part of his criticism of Timaeus, for example, Polybius believed Timaeus erred because he did not know that all barbarians sacrifice horses before going to war. But for Timaeus, horse sacrifice was seen as a result of Troy’s fall to a wooden horse. Should we understand Polybius’s correction then as a denial by Polybius of Rome’s supposed Trojan ancestry? Probably not; not only do early Greek sources suggest an early date for Rome’s association with Trojan survivors, slave women, and others, but there is also a highly developed, wide-ranging attempt to place Romans firmly among the descendants of Trojan War heroes. There is pretty good independent evidence that Pyrrhus played the “Romans were Trojan” card and that Timaeus’s comment comes from his own work on Pyrrhus.4 However, even more telling against Craige’s interpretation is that Polybius believed the Palatine took its name from Pallas, son of Hercules, and hence Polybius was very much in the tradition of many other earlier and contemporary authors who saw the Romans as direct descendants of Greek and/or Trojan heroes. Hercules was an important figure in early Rome, and an early Romano-Campanian silver didrachm has Hercules on the obverse and the wolf suckling Romulus and Remus on the reverse. If I am right about the dating of this coin−and I am−it was struck in the 290s, which dates it well before R.E. Mitchell, “Roman Coins as Historical Evidence: the Trojan Legends of Rome,” Illinois Classical Studies, I (1976): 65-85. 4

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the development of a narrative that would eventually eclipse the coin’s significance. These are structural details that were never part of any extant narrative. Put simply, what all this demonstrates is the existence of “a familiar form of Hellenic intellectual imperialism, a spinning out of tales in accord with Greek legends, and ascription of foreign cities to Greek founders.”5 Polybius’s criticism of Timaeus takes the form of a scholarly squabble, a quibble over details and interpretations. Here it is important to remember that Polybius changed his mind not only about Rome’s history and destiny but also about Timaeus. These facts go unappreciated but can no longer go unexplained. The idea of linking imperial expansion with moral decadence and physical decline, so commonplace in the writings of both modern and ancient historians of Rome, can be traced back to Timaeus, who, in the early third century, explored the idea that acquiring an empire not only reaps benefits but also sows the seeds of the empire’s downfall. Evidence that the evolution and adaptation of this theme was applied to Rome’s own imperial expansion and subsequent decline is clearly visible in the work of second century authors such as Polybius, Porcius Cato, Lucius Calpurnius Piso Frugi, and others. Timaeus focused his attention on the West, writing both a history of Sicily and a history of Pyrrhus. He was not the first to write about Rome, but he was the first to take a detailed look at that city, and, most importantly, he was the first historian who recognized Roman power in the West.6 His histories carried the development of Rome and Carthage up to their conflict at the straits of Sicily. He compared the relative purity of these rising western states with the decadence of the older civilizations of Greece and Asia, whose empires were long past their prime and far along the road to moral decay. Timaeus neither witnessed nor predicted Rome’s own moral decline, but by giving Rome a central role in his histories, which emphasized the eventual decline of great powers, he must 5 E. S. Gruen, Cultural and National Identity in Republican Rome (Cornell UP, 1992), 12, with reference to E.J. Bickermann, “Origines Gentium,” CPh (1952): 65-81. 6 A. Momigliano, Essays in Ancient and Modern Historiography (Oxford, 1982): 53.

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certainly have influenced later authors who, seeking an explanation for Rome’s moral decadence, looked to Timaeus’s histories for answers. Polybius—everyone must be reminded—began his own history of Rome where Timaeus’s work ended. Polybius appropriated Timaeus’s ideas and elaborated on them in his theories about the nature of states and the inevitable collapse of all empires, thereby continuing the work of Timaeus both chronologically and topically. However, Timaeus’s simple literary notion of great states declining from a morally pure to a morally impure state was not to be so easily applied to Rome. Several important historical developments in the second century complicated matters for both historians and philosophers and had a significant effect on the theories of the development of the Roman national character. First, the ongoing restructuring of early Roman history, including the recalculation of the foundation dates of Rome and the rewriting of the various mythological foundation stories, led to new ideas and new theories about the development of Roman society. One result of this work was that much of the basis for Timaeus’s earlier work had to be discarded. Therefore, later authors following Timaeus had to correct his mistakes and, at the same time, find a way to apply to Roman history Timaeus’s “thesis concerning the distinction between the age of purity and strength and the age of softness, luxury, and decline.”7 Second, increased Roman expansion beyond the Italian peninsula brought about ever-increasing contact with the East, especially with Greece and Asia. Contact with the Greeks created many difficulties; the ancient Romans seemed to spend half their time embracing Hellenism and the other half decrying its derogatory effects. The impact this paradox had on the Roman psyche is as difficult for modern scholars to ascertain as it was for the ancient scholars who witnessed it. However, it is certain that the growth of Hellenism was a major historical occurrence of the second century and that “the character and attitudes [of writers such as Cato who wrote about the impact of Hellenism] hold a key for any inquiry into the Roman reaction to Hellenism—and for the development of a Roman cultural identity.”8 7 R.E. Mitchell, “The Historical and Historiographical Aftermath of the Pyrrhic War,”(reprinted, supra). 8 E. Gruen, Cultural and National Identity in Republican Rome.

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Third, the crises at the end of the second century and the vast upheavals of the first meant that the discussions about moral decline became commonplace in contemporary politics as various political factions blamed their enemies for current social and economic problems.9 Strong arguments developed among those ancient authors who discussed the qualities of the Roman national character in the face of obvious moral decay in Roman society. No one disputed the fact of decline nor did anyone question its general cause (imperial expansion); but few historians agreed on the details. By the first century, the authors who addressed this theme had split into two very different schools of thought. One school, represented by Livy, emphasized corrupting external influences from the East, pointing to the negative effect foreign luxuries had on the unsullied Roman character. A taste for luxury was transmitted, like some hideous disease, back to Rome, and consequently these luxuries caused the very same avaricious symptoms at home as abroad. This school thought, therefore, that the process of imperial expansion brought Rome into contact with older decadent civilizations which infected the conquering Romans with the disease of corruption. The other school, represented by Sallust, emphasized the internal origins of vices, which had been bottled up by external pressures but were released when Rome reached the height of her power with the destruction of Carthage in 146. For the followers of this school of thought, corruption, greed, and the taste for luxuries were an inherent part of any society. They believed that while Rome struggled to gain her empire, the fear that she might lose everything she had won kept these base instincts under control. Once she had acquired her empire, however, and had no strong external enemies or serious outside pressures, the citizens of Rome were able to enjoy a decadent lifestyle without fear, an opportunity that few Romans were capable of resisting. Regardless of their differences, the two schools of thought exhibit certain basic similarities—similarities traced at least in part to their common origins in the writings of Polybius, Cato, and Calpurnius Piso. In fact, the similarities were significant enough to prompt the vast majority of later authors to simply combine the (Ithaca, 1992): 61-62. 9 A.W. Lintott, “Imperial Expansion and Moral Decline in the Roman Republic,” Historia 21 (1972): 638.

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views of both schools, as illustrated by the following quotation from Florus: Such are the events overseas…of the history of the Roman people, during which, having once ventured to advance outside Italy, they carried their arms over the whole world. The first hundred years…were pure and humane,…a golden age, free from vice and crime, while the innocence of the old pastoral life was still untainted and uncorrupted, and the imminent threat of our Carthaginian foes kept alive the ancient discipline. The following hundred years…were as deplorable and shameful owing to internal calamities as they were illustrious for the glory of their military achievements.…The resources and wealth thus acquired spoiled the morals of the age and ruined the state, which was engulfed in its own vices as in a common sewer.10

The belief that the acquisition of empire knocked the original noble Roman character out of balance and that this loss of balance was responsible for the moral crisis and political turmoil at the end of the Roman Republic is so fundamental to any analysis of extant sources of information that it must be paramount in the thinking of those who seek to unravel the mysteries of these sources. This is where attention should have been focused on when, why, and how the Romans perceive that they started to go wrong and how the assumption about change and decline impacted the narrative accounts of the city’s history. The influence of this theory must have been phenomenal. Even though later Romans believed that Timaeus’s chronology of Rome’s formation was wrong, the picture he painted of the predestined confrontation between Rome and Carthage was so vivid that it was impossible for subsequent writers to dismiss it out of hand; they simply corrected his date for the foundation of the city and incorporated his theories into their works. Although they knew Rome and Carthage were not founded in the same year and that the two cities had not developed simultaneously, they liked Timaeus’s image so much that it found its place in the writings of every later historian. By synchronizing all of the major events in Roman and Carthaginian history, Timaeus made the Punic Wars the only possible result: from the very 10

Florus, Epitome 1.47.1-8.

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beginning, Rome and Carthage were locked into a collision course, and by extension, to the victor went the spoils and the corruption of the very character that achieved victory. But what were Polybius’s reasons for altering the high opinion of Timaeus he held when starting his history? Walbank’s explanations extend from a true distaste for Timaeus’s methodology and scholarship to simple professional jealousy.11 The fact that Timaeus’s history continued to be so popular in Polybius’s day−over a hundred years after his death−must have infuriated Polybius: “Behind the attack on the arm-chair scholar is his resentment that such a man should enjoy a reputation as the historian of the western lands.”12 We must also note the development, during the middle of the second century, of new theories concerning Roman history, theories of which Polybius was well aware. Polybius was familiar with the newer versions of Roman history that included a more complete version of the Trojan story and new foundation dates for Rome. Timaeus played an important role in the development of these legends and of Rome’s early history, but his ideas “represent a transitional stage.”13 The Trojan legend at the time of Timaeus had many inconsistencies such as “the chronological problem of Aeneas’s arrival date and Romulus’s later foundation of the city.”14 Such discrepancies were in the process of being worked out during the time Polybius was writing. For instance, Polybius dated the foundation of Rome to 751/750, sixty-three years later than Timaeus’s date of 814/813. However, the question of why Polybius changed his attitude is complicated by Polybius’s theory on the nature of states, by his indebtedness to Timaeus’s views, and by the evolution of his own theories during the course of his composition. Polybius once believed Rome was the best of all possible states. In Book Six Polybius described the Roman constitution at its prime as unique in its combination and balance of elements;15 it was an ideal constitution, better than any other constitution which had

F. W. Walbank, Historical Commentary on Polybius, I (Oxford, 1957): 48-56. 12 Ibid. 52. 13 T. S. Brown, Timaeus of Tauromenium (Berkeley, 1958): 36. 14 Mitchell, “Roman Coins as Historical Evidence:” 83. 15 Polybius 6.11-18. 11

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governed any other state at any other time.16 The idea of Rome’s supremacy is given credence at the very beginning of Polybius’s introduction, where he described the achievements of the Romans as unparalleled in human history and stated that Rome possessed “an empire which is not only immeasurably greater than any which preceded it, but need not fear rivalry in the future.”17 This view is expressed in the same passage where Polybius, following Timaeus, stated that prior to the Punic Wars both Rome and Carthage were “still uncorrupted in morals, moderate in fortune, and equal in strength.”18 The Punic Wars would change all that. We are all familiar with Polybius’s cycle of change that led states through six stages of maturation and decay, but we must be reminded that Polybius believed that when the leaders who had struggled so hard to establish the uncorrupted constitutions died, it was their successors, who had achieved their power and status through no effort of their own and felt no allegiance to the inherited state, who abandoned themselves and their country to a life of avarice and luxury.19 History now became a natural, evolutionary process,20 useful in examining a state’s past and predicting its future.21 In developing this philosophy, Polybius was certainly influenced by Timaeus, who may not have applied this theory specifically to Rome but did apply these ideas to earlier Greek states. It is therefore only logical for Polybius, who had the fate of the previously successful historical empires prominently in mind,22 to assume that once Rome achieved the same prominence Polybius 6.43-56. Polybius 1.2.7-8. This text is very badly corrupted and the lines quoted above merely serve to indicate the probable meaning of Polybius’s actual words. See Walbank, Commentary I: 41-42, for a discussion of the reconstruction of the lost passage. 18 Polybius 1.13.12. 19 Polybius 6.7.7: monarchy to tyranny; 6.8.4: aristocracy to oligarchy; 6.9.5: democracy to mob-rule. 20 Polybius 6.9.10. 21 Polybius 6.4.12-13. 22 Polybius not only witnessed the defeat of his own home city and the Achaean League at the hands of Rome, but the opening of his first book shows how well he knew the fate of earlier empires (1.2). Indeed, Polybius says he never forgot the prophecy of Demetrius of Phalerum, who predicted that, just as Persia fell to the Macedonians, so Macedon would eventually succumb to the whims of Fortune. Polybius 16 17

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as the Greeks, the city would suffer a similar fate. This reasoning, therefore, led Polybius to predict Rome’s decline and to remark: “This state, more than any other, has been formed and has grown naturally, and will undergo a natural decline and change to its contrary.”23 Modern scholars, focusing especially on the structure of Polybius’s sixth book, neatly divided it into two halves representing the two different views held by Polybius.24 They try to determine whether Polybius changed his views of Rome’s future as he was writing and revising this book and, in particular, whether he rewrote the contents of this book as a direct result of the events of the Third Punic War and the destruction of Carthage.25 Certainly the Third Punic War and the fall of Carthage had a profound impact on Polybius. Although Polybius knew that Timaeus’s synchronization of events in Roman and Carthaginian history was factually in error, he seemed to believe the basic theory that events in the history of one state could be linked in some way to the events of the other.26 Thus, at the beginning of the First Punic War, both Rome and Carthage were as yet unsullied.27 Both were still confined to their homelands, but during the Second Punic War Carthage began to deteriorate while Rome, in comparison, remained pure: “At the time when they entered on the Hannibalic War, the Carthaginian constitution had degenerated, and that of

saw this happen with his own eyes (29.21.8). 23 Polybius 6.9.13. 24 F. W. Walbank, “Polybius and the Roman Constitution,” CQ 37(1943): 83. 25 C. O. Brink and F. W. Walbank, “The Construction of the Sixth Book of Polybius,” CQ. 4 (1954). 103. 26 There are many examples of Polybius’ belief that fate tended to synchronize important historical events. Indeed, the very use of the Olympiad dating scheme lends itself to just this sort of belief. For example, for the 140th Olympiad (220-216), the beginning of Polybius’s 53 years, Polybius listed all of the events around the Mediterranean which had occurred during that Olympiad (1.3.1-3). He then stated: “Ever since this date history has been an organic whole, and the affairs of Italy and Libya have been interlinked with those of Greece and Asia, all leading up to one end. And this is my reason for beginning their systematic history from that date” (1.3.4). 27 Polybius 1.13.12.

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Rome was better.”28 As stated, Polybius came to believe that Carthage was founded 63 years before Rome. Inevitably, he concluded and stated the following in Book Six: For as every body or state or action has its natural periods first of growth, then of prime, and finally of decay, and as everything in them is at its best when they are in their prime, it was for this reason that the difference between the two states [Rome and Carthage] manifested itself at this time [the Second Punic War]. For by as much as the power and prosperity of Carthage had been earlier than that of Rome, by so much had Carthage already begun to decline.29

Therefore, since Carthage’s decline was dated to the beginning of the Hannibalic War, then Rome’s moral decline would be precisely 63 years later, or 157/155. This was the very time when Polybius was revising his history, including Book Six, and the very time when so many others, Cato and Piso for instance, were pointing to the 150s as a period of decline.30 The point of all this is that Polybius 6.51.3. Polybius 6.51.4-5. It is possible that this displacement of 63 years directly affected Polybius’s development of the process of anacyclosis. Each stage in that process (monarchy to tyranny, aristocracy to oligarchy, and democracy to mob rule) involved the corruption of the generations that followed the generation which established the uncorrupted form of government. In 6.9.5, Polybius specifically spoke of “the grandchildren of the founders” as the generation which becomes corrupted. If one assumes a generation to be 21 years, then three generations (grandparent to grandchild) would equal 63 years. It is also interesting to note that the emperor Augustus believed that the optimum length of a man’s life was 63 years: “I have passed the climacteric (κλιμακτῆρα) common to all old men, the sixty-third year” (Gellius, NA 15.7.3). 30 Piso identified the middle of the second century, specifically 154, as the precise time of Rome’s decline. The fact that Piso focused on the same time period as Polybius to date Rome’s moral decay indicates that he may have agreed with Polybius’s theories which placed the date of Rome’s corruption in the middle 150s. However, Piso, writing his annals well after witnessing the economic crisis of the Gracchan period, had other reasons for tracing the collapse of Roman morals to 154. While tribune in 149, Piso passed the lex calpurnia de repetundis, which set up a permanent extortion court (quaestio de rebus repetundis) composed of 28 29

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events, details−historical facts so to speak−become historically significant because of the interpretation that contains them. Here we have arrived at Valerie Warrior’s paper. At the outset I want to make a general observation seldom—if ever—noticed before about Roman imperialism. The Romans defeated the Carthaginians in three wars. After the first two treaties were signed, the next war began the year after the treaty terms ended. In other words, Rome was not at war with Carthage while the later was under Roman treaty obligations but in each case declared war immediately following the end of those obligations. Doesn’t this say something about Roman imperialism at least as early as the outbreak of the Second Punic War? Does this help explain Livy’s note, as Valerie cited, that the Carthaginians were outraged by Rome’s treatment of them following the First Punic War? Moreover, should we be surprised if the Romans, again as Valerie suggests, were diplomatically active and engaged in preparing for war against Phillip and later against Antiochus, if you will, even before the formal “declaration” of war? May we add here that such confusing material as outlined by Valerie may be the result of records that were available and used by eyewitnesses who, while having reliable information, did not always use it properly, completely, or clearly? The fact is, to use John Rich’s warning about “annalistic fabricators,” our account maybe confusing, inconsistent, and even unreliable in part, without being fabrication. In general, I have no problem with Valerie’s dating and reconstruction of events, but she does not contextualize her findings within Roman history generally. She presents this episode as “the first instance of a new method of beginning war…” but the pattern she presents differs not a whit from what we know about events leading up to the First Punic War and even jibes with the background material about the Pyrrhic War and earlier. Rome achieved hegemony in 53 years, but more important than the specific details of that achievement are the various interpretations and apologies that enclosed the material. Indeed, these are the determinants of the inclusion of specific information. senators to try the growing numbers of cases of provincial mismanagement by Roman magistrates. These cases, however, rarely resulted in convictions, since the governor on trial, himself a senator, was unlikely to be found guilty by his fellow senators who themselves had hopes of some day extorting large sums from provincials.

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In the beginning, Rome fights noble wars “at home,” but a sequence of “firsts” occur which amount to a prediction of impending illness: the first time Rome began to treat all of Italy as her own property; the first time she crossed the sea to Sicily; the first navy; the first time she thought of taking all of Sicily. I could go on: in fact, this list of firsts—a subject that has always intrigued me—also includes the first barbers and cooks as well as the other list of firsts that came in from the eastern conquest. I mention this material because of the connection between going outside your “god-given borders” and the acquisition of foreign ideas, practices, and corrupting influences. In other words, like all peoples, Romans went wrong when they no longer danced with the ones they brought to the ball. Clearly there were those in second century Rome who disapproved of all this nova sapientia and who drew a clear contrast between the noble, pure Romans who fought and defeated Pyrrhus with iron and those who eventually overcame Hannibal with gold. It is often impossible to identify reliable details in such stories because they are so much a part of the interpretation, part of the narrative story, part of the message. Finally, we come to Luigi Pedrone’s argument about the Roman destruction of a nearly finished stone theatre c. 150. It may be, as Luigi suggests, that factional and personal enmities played a role in the decision, but, as we have already indicated, there was a very real second-century debate about declining standards and moral corruption as dangers confronting the original Roman character. Perhaps, to quote Joni Mitchell, the senate did not want it said that “they paved paradise/and put up a parking lot.” In any case, certainly it is more valid to assume that the senate and the nobility forbade the construction of a permanent theater in order to defend the mos maiorum from vulgarized satire and because of the fear that consequent assemblages of people would be dangerous and difficult to control. Indeed, this perhaps remains the most reliable explanation since it fits the pattern of historical interpretation current in second-century Rome. Romans were guardians of their character much in the manner as Mae West about whom it was said she “reinvented history in order to create a past that suited her idea of herself.”31 So much for the tradition. 31 Martha McPhee reviewing E. W. Leider, Becoming Mae West (NY, 1997), in NYT Book Review, 7/27/97: 11.

THE ROLE OF MARITIME COLONIES IN ROMAN EXPANSION The presentation Mitchell made at the Savannah Georgia meeting of the Association of Ancient Historians in 2002, published here for the first time, is to some extent a commentary on the inherent conservatism of the field. As has been indicated throughout this volume, Mitchell is by no means the only scholar to have developed strong arguments against certain structural assumptions governing our understanding of the republic. There are a host of related topics that might be informed—but are not, it would seem—by this ongoing reassessment. Mitchell shows here that applying what are increasingly mainstream revisions of consensus on, for example, Roman coinage and Romans treaties, allows us to consider the evidence for related topics such as Roman colonization, especially the so-called maritime colonies, and the development of the Roman navy, in a new light. Some interpretations of specific aspects of Roman Republican history have changed so dramatically over the last decades that it is surprising to notice what remains unchanged. For example, the date and importance of Rome’s earliest coins and related economic and urban developments as well as the importance of Rome’s early diplomatic activity and related expansion have been significantly changed by a body of work to which I have contributed. However, these changes in interpretation have resulted in only a partial re-examination of many aspects of fourth and third century Roman historical development. For instance, a

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few years ago Stephen Oakley observed that “recent studies of Roman imperialism in the later Republic are abundant, and there are classic narratives of her early history. Yet it is hard to find many works devoted primarily to the dynamics of the conquest of Italy before the First Punic War.”1 Oakley’s brief but admirable remedy of this state of affairs fell short in several particulars, most notably his acceptance of the customary role assigned to Roman maritime colonies in the state’s expansion, his failure to fully appreciate early Roman naval prowess, and his acceptance of the received wisdom concerning the outbreak of the First Punic War. My even briefer attempt to treat these subjects will by necessity leave out a great deal of material. To summarize my argument, Roman desire for territorial expansion and control helps to explain the maritime colonies. This understanding contributes to our appreciation of early Roman naval developments. This in turn tells us a great deal about the outbreak of the First Punic War. I focus on the period from 343 to 260, a time of constant warfare punctuated by the foundation of nearly two dozen Latin and perhaps as many as eight maritime or citizen colonies. During this same stage of relentless expansion in Italy, Roman contact beyond the peninsula also dramatically increased. However, since historians can never begin at the beginning, the stage must be set with a few observations about the earlier period. Developments before the conquest of Veii are problematic because only after Veii’s defeat did Rome control both sides of the Tiber and extend her interest beyond Latium. I provocatively suggest that only after Veii’s defeat did Rome create tribal districts, at first four in number, and that the ten tribal districts created between 387 and 318 were the only ones at the time Appius Claudius Caecus reformed the so-called Roman constitution in 312/308. The tribal districts and confiscated territories were parceled out to victorious soldiers, as colonists, with a lion’s share going to commanders and their clients. Admittedly, the division of spoils may well have been the basis for conflict but not one between rich and poor or between patricians and plebeians. “The Roman Conquest of Italy,” in John Rich & Graham Shipley, War and Society in the Roman World (London, 1993): 9. 1

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Moreover, all the so-called “struggles” demanding land and debt relief are greatly misunderstood. Oakley, for instance, says, “a substantial programme of colonization meant the exporting of large numbers of settlers, and this must have had consequences for the Roman economy. Our sources provide no sophisticated analysis of fourth-century economics, but they do suggest both that debt was rife and that there was a great hunger for land; and these factors must have provided pro-plebeian politicians with their supporters. Indeed, the theme of debt recurs time and again.”2 True, it does occur, but our sources depict plebeians and enslaved debtors (nexi) as soldiers or veterans.3 In addition, while there were nearly two dozen agrarian bills before 367, the only subsequent agrarian reform attempted before the second century was that of Gaius Flaminius in 232. Agrarian reforms between the proposal of Spurius Cassius and Licinius and Sextius clearly owe more to the second and first century crises than to reliable complaints made by poor soldiers in the fifth and fourth centuries. Poor soldiers may have remonstrated about being cheated out of booty (land), but land was not an issue before the fall of Veii unless it was a question of small parcels taken or retaken in conquest and not given to soldiers. We must clearly distinguish between allotments made to veterans from conquered Oakley, “The Roman Conquest:” 19. Tentatively I suggest that nexi were enslaved soldiers, or others taken in battle, who were required to work off their indebtedness over a period of years. Manumission per censu then implies that debtors worked for a period of five years and could be manumitted at the next census. This was more likely the case when slaves were ethnically very like Romans but conditions changed later in the third century when many slaves no longer were Italian. Enslavement for debt did not end in either 326 or 313; notice that the son of soldier enslaved after the Caudine Forks disaster could be enslaved and forced to work off his debt (Dion. Hal., 16.5). The situation may have changed by the end of the fourth century when Romans no longer could be enslaved as nexi inside Roman territory. This may have been part of Appius Claduius Caecus’s reforms. For more on this possibility see R. E. Mitchell, “Demands for Land Redistribution and Debt Reduction in the Roman Republic,” in K. D. Irani and M. Silver eds., Social Justice in the Ancient World (Greenwood Press, Westport, Ct., 1995): 209ff; and “From Public Property to Private Wealth: Roman ager publicus,” in Michael Hudson, ed., Privatization in Ancient Societies (Peabody Museum Publication, Harvard University Press, 1996): 275ff (n.b., both of these are reprinted supra). 2 3

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territory and the demands for reform and redistribution of ager publicus made by the urban poor. The latter belong to the second century, while earlier land grants to soldiers were routine. The fall of Veii unmistakably had more to do with the Licinian-Sextian law than did plebeian demands for land redistribution. After the defeat of her chief rival, Rome had a great deal of ager publicus and the four-decade hiatus in colonization, if reliable, doubtless was due to extensive territory beyond the Tiber for the first time being open to Roman and Latin settlements. Moreover, placing a limit of 500 iugera on occupation by individuals must have been more in the nature of a simple statutory limitation than an attempt to curb the greed of the patricians—or Latins for that matter, since they shared in the land according to the terms of the foedus Cassianum. Colonization becomes more common following the Latin Revolt, precisely when Roman military successes are more frequent and reliable. Latin colonies are the reason we do not hear demands for land redistribution in the fourth century. Soldiers received their share of the booty in the form of colonial allotments; and, therefore, so-called “plebeian” demands for agrarian reform are not heard again until the second century. Oakley notes that the importance of the Latin colonies established between 334 and 263 “lay above all in their strategic positions...which dictated precisely when and where a colony was to be founded.”4 But colonies are no longer viewed only as part of a defensive bulwark; they are seen as part of the “structural impulse in Roman society towards warfare, [and] the subsequent acquisition of land....Hence colonization is central to Roman imperialism before 264.”5 Oakley concludes, “Hungry for booty and slaves, in great need of fresh land, and impelled forward by an ideology of victory and an annual rhythm of warfare, the Romans around 300 can scarcely be regarded as fighting only to protect the fatherland.”6 Rome’s maritime or citizen colonies, however, are not seen as part of that same “impulse.” For example, Oakley dismisses “the...‘citizen’ colonies, founded on coastal sites with only 300 settlers...,” as “less important for [his] purposes.”7 But maritime Oakley, “The Roman Conquest:” 19. Oakley, “The Roman Conquest:” 22. 6 Oakley, “The Roman Conquest:” 31. 7 Oakley, “The Roman Conquest:” 19 n.2, cites the fuller treatment by T. Salmon, Roman Colonization: 55-81. 4 5

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colonies were also strategically located and were not independent of the network of communities on which Rome relied. Latin colonies were often established nearby, but it is only conjecture that claims citizen colonies were established along the coast on an unbroken ribbon of ager romanus while Latin colonies were separated from Roman lands. Before the second century, Romans and allies contributed settlers to all colonies. In return, all colonists and allies were required to render military assistance to Rome. But the standard interpretation of maritime colonists is they were exempt from military service and fulfilled their obligation by guarding the coast. Their sacrosancta vacatio militiae was unique.8 According to Togo Salmon: They had to stay where they were, on the alert at all times, to resist raiders from the sea and prevent them from establishing beachheads. Their obligation to remain uninterruptedly at their coastal stations meant that they were, quite literally, coloni maritimi,...Not that they were expected to go down to the sea in ships and fight. If obligated to take up arms, they fought on the beaches or in the nearby countryside. Their duty was to deny passage to enemies: normally these would be enemies landing from the sea, but they might also be enemies thrusting by land.9

The unique status of the colonists should make us suspicious. The archaeological record is incomplete, yet we know several colonies did not occupy advantageous observational positions, but all occupied territory that afforded easy access to the sea and most were known ports. I suggest another explanation for the status of these colonists, based on the fundamental assumption that no one was exempt from military service—not the poor, not slaves, not allies, and certainly not maritime colonists. The 300 colonists in each new coastal settlement were lowborn individuals recruited as rowers and sailors.10 They were not honored veterans but were recruited from the urban poor and as Each settlement consisted of 300 colonists, all of whom received two iugera of land and were exempt from regular military service—because they were already on garrison duty it is argued. 9 Cf. Salmon, Roman Colonization: 77. 10 Polybius 1.26.7, later in the war said that each Roman ship had 300 rowers and 120 marines. 8

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such were forerunners of those who demanded land redistribution in the second century. This would explain why neither maritime colonies nor colonists were held in high repute, despite their Roman status. Moreover, maritime colonists became or remained Roman citizens not because they occupied ager romanus but because they were active over a wide coastal area where they might have to seek a safe harbor and their Roman status would protect them.11 In other words, the military exemption of maritime colonists is an illusion. We know that ships docked in, and sailed from, most colonies. During the Hannibalic War, except for Ostia and Antium, which were known naval stations, maritime colonies were compelled, against their wishes, to contribute to the regular military forces. More to the point, in 191 maritime colonists were impressed into the regular Roman navy over their objection,12 a fact that speaks volumes about their low status and naval qualifications. When colonists received two iugera allotments, it was recorded in the colonial census, and this alone created a continuing military obligation.13 The two iugera grant was not only the standard minimum amount of land necessary to establish the military obligation for citizens; it was also the amount soldiers received as booty. Two iugera grants possibly go back to the distant past when campaigns were seasonal and annual 11 Also note the protection afforded in the treaties with Carthage. J.F. Lazenby, The First Punic War (London, 1996): 65, actually is the only one to point out that in addition to socii navales “the citizens of Roman maritime colonies—Ostia, Antium (Anzio), Tarracina (Terracina)—were also liable for naval service (Livy 36.3.4-6), and freedmen may also have been.” 12 Livy (36.3.3) says that C. Livius Salenator (cos. 188, pr. 202 and 191) was delayed preparing the fleet by complaints from maritime colonists levied for fleet when they appealed to plebeian tribunes because they were exempted from such service. The tribunes referred the matter to the senate, which unanimously declared that there was no exemption from the navy for the colonists. The colonies concerned were Ostia, Fregenae, Castrum Novum, Pyrgi, Antium, Tarracina, Minturnae, and Sinuessa. 13 It is important to note that colonists might well avail themselves of other lands—including unoccupied ager publicus. However, occupation of additional public lands simply did not matter in terms of the obligation to serve militarily and had no impact on the comitia centuriata. In fact, a colony was a military outpost, and although farmers (coloni) were sent out, they went out with all the pomp and circumstance of a military force and there is little doubt about their future obligation to serve; cf. Salmon, Roman Colonization: 24-25.

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and all acquisitions lay within a short distance of Rome. However, by the second century soldiers received two iugera for every year of service.14 Consider the possibility that two iugera grants, attributed to Romulus and known as the heredium, were not the alienable owned “private” property contrasted with the possessed ager publicus but, since time out of mind, two iugera established military obligations and served as the basis for citizenship.15 The colonial ships served as part of an early warning system, a coast guard, and were used for communication, logistic support, and reconnoitering purposes. Their importance and role cannot be separated from Roman advances generally, especially during the last quarter of the fourth century when Pontiae was colonized (313) and the duumviri navales created (311).16 At this time Appius Claudius Caecus laid out the early route of the via Appia close to the shore as far as Capua. Colonies, roads, and ships formed a uniform policy motivated by expansion and security and created because naval transport and support were faster and safer than by land. By the end of the fourth century, duumviral squadrons and other fleets patrolled the Tyrrhenian coast and frequented the Livy 31.49.5. On the eve of the Second Macedonian War, Livy reported that ager publicus consisting of confiscated land in Samnium and Apulia was assigned to Scipio Africanus’s African veterans. Each man was to receive two iugera for each year he served in Spain and Africa. Other examples exist, but we do not know how long these troops served. However, the grants may have been calculated on the formula of two iugera for every year of service−except for the poor who obtained only two iugera and then only as an afterthought (Livy 40.34.2-3; 41.13.4-5). 15 See Jolowicz, Historical Introduction: 126-32; on succession. The heredium is debated but usually seen as a small private orchard and technically the only personal land alienable. Varro, RR 1.10.2; and Pliny, NH 18.2.7, said the heredium consisted of the two iugera assigned to each citizen. Zuleuta, II: 174-78, discusses the archaic form of societas between sui heredes who did not divide their heres but treated it as community property (Gaius, Inst 3.154a-b). Cf. D. M. Mac Dowell, The Law of Classical Athens (London, 1978): 92-108; and F. Frost, “The Athenian Military before Cleisthenes,” Historia (1984): 294, n.54, for Greek parallels, but I do not agree with Frost that “the reforms of Cleisthenes [were] crisis legislation designed to mobilize a national army by some rationale other than the land hunger of surplus sons.” 16 There was also an increase in the number of elected military tribunes and the first literary references to four consular armies. 14

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Adriatic. Rome called on—or called in—an increasing number of coastal cities in addition to her own colonies. From countless later examples, we learn that Naples, Velia, Tarentum, Locrus, Rhegium, Paestum, several Sicilian cities, and even Carthage, after the Second Punic War, supplied Rome with vessels. There is no reason to interpret these contingents as anything but part of a Roman fleet and as later examples of a long-established tradition. This flies directly in the face of the common scholarly assumption that the Romans were soldiers, not sailors; in Thiel’s terms, “double-distilled landlubbers” more at home in the country than the city.17 Such preconceptions turn Roman maritime colonies into a coastal defense system that “spared Rome the necessity of maintaining a permanent fleet,” to quote Sherwin-White.18 As a result, Italiot allies are turned into “sailors,” the socii navales, who presumably were not permitted to join the legions, although we know differently. The end result is William Harris’s belief that Rome hesitated to undertake the First Punic War because she failed to develop a navy. This misses the boat on two fronts: first, Rome had a navy; and second, Rome did not hesitate. In 338, following the Latin Revolt, Rome enfranchised many communities, including Antium, to which a maritime colony was sent. The city surrendered her warships to Rome; some were taken to Rome’s navalia while the prows—rostra— of others became a forum monument.19 In 311 dummviri were charged with refurbishing and reequipping existing Roman ships. Only 17 For the denial of Roman maritime developments prior to the First Punic War, see J. H. Thiel: passim; and A. Alföldi, Early Rome and the Latins (Ann Arbor, 1965): 347ff. I attempted to correct the standard view; cf. R.E. Mitchell, “Roman-Carthaginian Treaties, 306 and 279/8 B.C.,” Historia (1971): 640ff. (n.b., and reprinted above); and C.G. Starr, The Beginnings of Imperial Rome: Rome in the Mid-Republic (Ann Arbor, 1980): 57ff, added his auctoritas to the alternative interpretation of the evidence. 18 A.N. Sherwin-White, The Roman Citizenship (Oxford, 1973): 77, supports the conclusions of Salmon, Roman Colonization: 70ff. 19 Cornell, CAH VII.2: 365, but cf. 315 n.15. The colony sent to Antium−colonia civium Romanorum−and most ancient historians consider this citizen garrison colony as part of a coastal defense system, the first stage of which was the foundation planted at Ostia. “A Roman garrison was then established at Antium in order to guard the coast.” Cornell goes on to interpret the settlements at Tarracina (329), Minturnae, Sinuessa (296), and many other foundations as part of the coastal defense network.

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Mommsen’s auctoritas turns these officials into ad hoc commanders whose squadrons were allowed to decay before the outbreak of the First Punic War. In fact, some very poorly documented duumviri may have been colonists since duumviri were commonly found military officials in maritime colonies.20 That Rome first crossed to Sicily without her own fleet comes essentially from Polybius, who said Rome “borrowed 50 oared boats and triremes from Tarentum, Locrus, Velia, and Naples.”21 Rome and Carthage were at war for three years before the condition was remedied, so we are told. Polybius said one reason for his writing was to tell “how, when and for what reason the Romans first took to the sea,” and he noted Appius’s crossing was the “first time Romans crossed from Italy with an army.”22 Only when the war dragged on did Rome initially undertake to build ships−a hundred quinqueremes and twenty triremes. However, they were inexperienced in building quinqueremes, such ships never having been in use in Italy. With great difficulty, but with spirit and daring the Romans were determined to succeed. So without any resources, experience, or knowledge whatsoever, the Romans boldly took to the sea and soon engaged the Carthaginians, who, for generations, held undisputed command of the sea.23 Although Frank Walbank considers Polybius’s treatment romantic,24 he does not correct the impression of Rome’s lack of maritime interests. Actually, Roman naval information is unreliable for any period, but it is particularly suspect in 264. A few problems and inconsistencies will suffice to illustrate. Presumably, Romans seized a grounded Carthaginian ship, took it apart, and used the pieces as a pattern to build their first fleet. Evidently it took three years to take it apart but only two months to build the fleet. Also, before Duilius sailed out with the new fleet for Mylae, the other consul, Cornelius Scipio, made an ass of himself by losing a naval battle to the Carthaginians—apparently with ships Rome did not have. The 20 Salmon, Roman Colonization: 80, said that the prospects of political activity in the maritime colonies were so limited that it might explain the reluctance of settlers to take up the call. 21 Polybius 1.20.8-12. 22 Polybius 1.12.5 (note Livy, Periocha, XVI; “first time Equites crossed the sea.”). 23 Polybius 1.20.9-16. 24 Ibid. Walbank, Commentary I: 72ff.

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accounting of Roman and Carthaginian ships in the battles of the First Punic War appears to have been done by Arthur Anderson.25 Can we separate reliable information—if it exists—from the untrustworthy details contained in the encounter of the two giants? To do so, once more we cannot begin at the beginning. We turn to the Mamertine request for assistance. Hiero declared himself king of Syracuse after the battle of Longanus in 270/269 and immediately thereafter the Mamertines requested assistance from both Rome and Carthage, but only Carthage responded. The Roman Senate debated the request for a long time—apparently four or five years—before sending assistance. When the Romans eventually arrived in Sicily, they found Carthage and Syracuse allied and, inexplicably, the Carthaginian garrison expelled from Messana. Here’s what I think happened. In 270 Rome was not prepared to embark on a Sicilian campaign. Bruttium was being subdued in 269 and fighting was still going on in Sallentium in 267/6. Subduing southern Italy and bringing the Italian peninsula under control was not easy, but preparation for the future kept pace. Bruttium lost half of its considerable timber stands, although scholars question whether Rome made immediate military or economic use of the timber resources. Yet the creation of quaestores classici in 267 and the Roman naval activity in the First Punic War are inextricably connected to the timber. To argue that the quaestores were concerned with the “new” minting activity in the city, or with the collection of increased Italian revenuesruns contrary to their strict interpretation as “classici.” Stripped of their maritime, military, and administrative associations, quaestores have now been saddled with an interpretation that reinforces the late nature of Rome’s economic development and revenue requirements based upon the questionable late dating of certain Roman coins. Turning these quaestores into officials with primarily financial or coast guard concerns is part of the failure to recognize early Roman naval prowess or the new and accepted earlier dating of Roman coins. Moreover, even if the quaestores helped organize the naval contributions of the socii navales, it does not follow 25 Arthur Anderson was a major accounting firm that was forced to surrender its license in the wake of the Enron scandal of 2001. For the year during which Enron’s stock plummeted from $90 to less than $1, Anderson was found guilty of “obstructing” disclosure of the fraud by means of which Enron had disguised its position. The verdict was later overturned by the U.S. Supreme court. R.S.H.

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that the duumviral squadrons had decayed or were not mobilized.26 Let us return the First Punic War. In describing the origins of the war in Sicily, Livy’s summary focuses on Hiero, a focus supported by other sources. Rome’s primary goal was to aid the Mamertines in their battle against Hiero. Hiero had been Pyrrhus’s trusted lieutenant and succeeded him as king of Syracuse. Mamertines requested assistance against Hiero, not Carthage. Hiero later became such a respected and honored Roman ally that a story was concocted that he assisted Rome when Rhegium was brought back under control in 270. However, attempts to turn Appius Claudius Caudex’s Sicilian venture into a conflict with Carthage fail because the triumphal fasti make no mention of Appius’s triumph found in literary sources. On the other hand, Appius’s colleague, M. Fulvius Flaccus, celebrated a triumph over the Volsinii. As Fergus Millar suggests, “to us the outbreak of the First Punic War must indeed, in retrospect, seem the crucial event of 264, as it did to Polybius. But to Romans at the time perhaps equal significance attached to the capture of Volsinii, and to the victory monument erected in the Forum Boarium.”27 With one consul otherwise occupied, Rome was unlikely to assist the Mamertines if the conflict in Sicily was known to be against both Syracuse and Carthage. In all probability, Appius’s activity was extremely limited, perhaps confined to the defense of Messana and the temporary relief of the city. The next year, the consul Valerius Maximus defeated Hiero conclusively, celebrated a triumph, and thereby acquired the nickname “Messalla.”28 What we know about Valerius can also clear up the question of Roman maritime preparedness in 264.29 26 W.V. Harris, “The Development of the Questorship,” CQ 26 (1976): 92ff., esp. 102ff. See M. R. Torelli, Rerum Romanarum fontes ad annum ccxcii ad annum cclxv a.Ch. n. (Pisa, 1978): 246f., for additional references. 27 F. Millar, “Political Power in Mid-Republican Rome: Curia or Comitium?” JRS (1989): 150. 28 This interpretation is confirmed by Zonaras, 8.9. Hiero routed Claudius and his cavalry in 264 and this maybe the cavalry that Livy said was the first to cross the sea: one of only many firsts in Roman history! 29 The unknown author of the Ined. Vat., 4, credited Valerius with making the Romans sea worthy because island warfare necessitated a fleet. Pliny, NH, 16.192, said that Rome in its war with Hiero built a fleet of 220 vessels in 45 days. J.F. Lazenby, The First Punic War (Palo Alto, 1996): 54, thinks the two passages are contradictory because Valerius’s preparations (the anonymous author “implies”) appear to have been undertaken after

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A fragment of Lucius Calpurnius Piso’s work, now found so conveniently in Gary Forsythe’s monograph, informed us that 220 ships were built to send against Hiero.30 We know that Valerius Maximus defeated Hiero and celebrated a triumph. Valerius was also the acknowledged architect of Rome’s naval strategy. In short, Rome did not initially go to war in Sicily against the Carthaginians—hence the concentration on Hiero and the withdrawal of Roman forces after the king’s defeat. Even Polybius acknowledged that Rome became alarmed only after hearing about the Carthaginian buildup at Agrigentum, and, only when news reached Rome of Agrigentum’s fall in 262 was the original plan for assisting the Mamertines discarded. The Senate now decided to drive the Carthaginians from Sicily, but while the land war went well, Carthage controlled the sea. As a result, inland states surrendered to Rome and seaboard cities deserted to Carthage. Therefore Italy was in danger from the Punic fleet while Libya was free. Consequently, only then did Romans first take to the sea.31 We might as well add to this romantic depiction a comment made by a marine veteran in one of my classes: “the only reason to have a navy is because marines can’t walk on water.” In some small measure I have now tried to correct this view and have attempted to refute Sir Frank Adcock’s declaration that “it is hardly too much to say that the naval policy of Rome was to avoid the need of having one.”32

Hiero’s initial defeat. 30 The Historian L. Calpurnius Piso Frugi and the Roman Annalistic Tradition (University Press of America, New York, 1994): 482 for frag. 39. 31 1.20. 32 F.E. Adcock, The Roman Art of War under the Republic (London, 1960): 37.

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361 Rose, H.J., “Patricians and Plebeians at Rome,” JRS 12 (1922): 10633. Rotondi, G., Leges Publicae populi romani (Milan, 1922). Rouland, N., “Les esclaves romains en temps de guerre,” Latomus 151 (1977): 1-106. Round, J. H., Feudal England, 2d ed. (London, 1964). Roussel, D., Tribu et cite: Etudes sur les groupes sociaux dans les cites grecques aux epoques archai”que et classique (Paris, 1976). Saller, R., Personal Patronage under the Early Empire (Cambridge, 1982). --------, and B. Shaw. “Tombstones and Roman Family Relation in the Principate: Civilians, Soldiers, and Slaves,” JRS 74 (1984): 124-56. --------, “Roman Dowry and the Devolution of Property in the Principate,” CQ 34 (1984): 195-205. --------, “Patria potestas and the Stereotype of the Roman Family,” Continuity and Change 1 (1986): 7-22. --------, “Progress in early Roman Historiography,” JRS 81 (1991): 157-163 --------, Patriarchy, Property and Death in the Roman Family (Cambridge, 1994). Salmon, E. T., Samnium and the Samnites (Cambridge, 1967) --------, Roman Colonization under the Republic (Ithaca, 1969). --------, “Political Hoplites?,” JHS 97 (1977): 84-101. Sambon, A., Les monnaies antiques de l’Italie (Paris, 1903). K. Sandberg, Magistrates and Assemblies: A Study of Legislative Practices in Ancient Rome (Rome, 2001). Sarstrom, M., A Study of the Coinage of the Mamertines (Lund, 1940) Schilling, R., “La situation des etudes relatives a la religion romaine de la Republique (1950-1970),” ANRW 1.2 (1972): 317-47. Schlag, U., Regnum in Senatu (Stuttgart, 1968). Schulz, F., History of Roman Legal Science (Oxford, 1967). Scott, R. T., “Seating Space in the Roman Senate and the senatores pedarii,” TAPA, 100 (1969). Scullard, H. H., A History of the Roman World from 753 to 146 B.C. (London, 1961). --------, “The Political Career of a ‘Novus Homo,’’’ in T. A. Dorey (ed.), Cicero (New York, 1965). --------, The Etruscan Cities and Rome (London and Ithaca, 1967). --------, Scipio Africanus: Soldier and Politician (Bristol, 1970).

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INDEX

Agathocles, 16, 21, 39, 43, 45, 58-61, 89 annales libri, 152, 162, 228 pontifical, 148, 151, 154, 157-8, 181, 185, 226, 237 Cato the Elder, 117, 130, 158, 219-20, 224, 323-5, 330 Claudius Caecus, Appius, 63, 123, 132, 206, 237, 253, 334, 339 fasti, 112, 168-9, 181, 183, 185, 188, 193, 224, 234-5, 237, 297, 321, 343 foedus Cassianum, 273, 302, 307, 311, 336 gens, 101-171, 179, 180-1, 183, 286, 299-302, 306, 309 heredium, 287, 291. 312, 314, 339 ius Flavianum, 183 ius Papirianum, 183

Kings Romulus, 165, 230, 264, 287-9, 291, 322, 327, 339 Numa, 264, 268, 268 Tarquin Priscus, 369 Servius Tullius, 57, 85, 216-7, 265-7, 267. 272, 276, 289, 303-7 leges actiones, 114, 133, 181, 183, 185, 188, 190, 192-3, 297 lex Claudia, 119-20 lex curiata, 240, 244 lex frumentaria, 270 lex Hortensia, 2, 162-70, 1956, 208-10, 228, 230, 232-9 lex Ogulnia, 232, 238 lex Poetelia-Papiria, 232, 279 lex Valeria, 158, 160, 191 lex Villia Annalis, 138-9 lex Voconia, 257 Licinius Macer, 155, 162-5, 170, 225, 228-9

370

HEARSAY, HISTORY, AND HERESY COLLECTED ESSAYS ON THE ROMAN REPUBLIC BY RICHARD E. MITCHELL

mos maiorum, 105, 129, 154, 182, 196, 332 patres, 104, 170, 186, 195, 232-3, 261-2, 287-8 Pictor, 151, 156, 204, 224-6, 320-1 pontifex maximus, 114-5, 1503, 147-171, 175, 178, 181, 238 populus, 129, 131, 136, 168, 208, 210, 233, 301, 304 praerogativa, 244-5 provocatio, 158-61, 170, 191, 269 Punic Wars First, 2, 47-52, 65, 75, 108, 119. 197, 201, 206-7, 210-1, 215-7, 220-24, 309, 311, 320, 326, 328-334, 340-3 Second, 81, 109-11, 11920, 125, 132, 134, 138, 194, 200- 1, 213, 240, 248, 252- 5, 276, 331, 340 Pyrrhus, 2, 4, 7, 28, 30-1, 48, 61-77, 80, 86-7, 89, 162, 197-222, 228, 281, 310, 322- 3, 332, 343 quaestores classici, 212, 342 Rhodes, 14, 44, 60

Samnite Wars, 14, 27, 35, 40, 53, 202, 253, 280, 317 sex suffragia, 277 ships, 2, 14, 34, 42-3, 54-9, 67,73,5, 204-5, 211-2. 215, 313, 337-44 Sicily, 7, 18-9, 43, 50-81, 89, 197-8, 210, 204, 221, 270, 323, 332, 341-4 Sulla, 116, 121, 133, 139, 155, 163, 224, 279 tabula, 148, 151-3, 158, 181, 187 Timaeus, 197-9, 216-22, 3224, 326-9 treaties, 2, 14, 18-9, 32-3, 405, 47-78,148, 182, 208, 224, 307, 331, 333 tributum, 248-9, 252-6, 271 tripartita, 298-9 Twelve Tables, 107, 154, 168, 179, 183, 185-8, 191-5, 234, 237, 266, 285, 289, 294-9 Valerius Antias, 155, 159, 161, 163, 165, 225, 228-9 Veii, 271-4, 274, 306-8, 3112, 334-6 Via Appia, 14, 41