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The Lex Valeria de provocatione of 300 B.C.

Author(s): R. A. Bauman
Source: Historia: Zeitschrift für Alte Geschichte, Vol. 22, No. 1 (1st Qtr., 1973), pp. 34-47
Published by: Franz Steiner Verlag
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THE LEX VALERIA DE PROVOCATIONE OF 300 B.C.*
The lex Valeria of 300 B. C. is the only one of the three Valerian laws of
provocatiol to enjoy unanimous acceptance by scholars. This unusual state of
affairs almost arouses suspicion, so conditioned have we become to doubt
and deception in these matters, but despite one uncomfortable passage in Ci-
cero2 there is no serious reason to challenge the communis opinio. There is,
however, anything but the same unanimity on the question of the purpose of
the law, and it is on that aspect, in the main, that this paper will concentrate.
The position on provocatio as a whole from which the discussion will proceed
is based, with some reservations, on the system of C. H. Brecht: the restric-
tion of 'echte Provocation' to the verdicts of iviperium-holders.3 As for the
leges Valeriae on the subject of provocatio prior to 300, the writer's position is
that the law of 509 suffers from an unbridgeable credibility gap and that the
Valerio-Horatian legislation of 449 is at best an act of faith, although one
cannot be quite so emphatic about this as about the earlier law.4 This may
make the third Valerian in reality the first lex de provocatione, but that is by no
means the same thing as saying that this law marks the beginning of the insti-
tution known as provocatio adpopulum: current opinion is quite prepared to
assume the imperium-holder's customary observance of the limits ofprovocatio
*This article is a slightly revised version of a paper read at the conference of the Australian So-
ciety for Classical Studies in Sydney in August, 1971.
2
For the sources for the other two laws, of 509 and 449, see Rotondi, LPPR 190, 204.
' Cic. Rep. 2. 53 ff., where mention is made of regal provocatio, the lex Valeria of 509, the XII
Tables, the lex Valeria Horatia of 449 and the three leges Porciac (on which see below), leaving the
lex Valeria of 300 as the one striking omission.
' Brecht, ,Zum romischen Komitialverfahren', ZSS 64 (1939), 261 if. The one aspect for which
Brecht's assumptions are not convincing is the jurisdiction of the pontifex maximus, to which the
writer hopes to advert on another occasion. For a full discussion of provocanao theories since
Mommsen and for the most comprehensive statement of the 'anti-provocatio' view see Bleicken,
,Ursprung u. Bedeutung d. Provocation', ZSS 76 (1959), 324 ff. with lit. Add Staveley, 'Provocatio
during the fifth and fourth centuries B. C, Historia 3 (1954/55), 412 ff.; v. Lubtow, Das romiscbe
Volk, Frankfurt a/M, 1955, 93, 102, 128, 149 f., 156 f., 216, 250 ff.; Kunkel, Unters. z. Eniwicklung
d. rom. Kriminalverfabrens in vorsullanischer Zeit, Munchen, 1962, 9 f., 24 ff., 30 ff., 87 f., 131; Bau-
man, 'The Duumviri in the Roman Criminal Law and in the Horatius Legend', Hisaoria: Ein-
zelscbr. 12 (1969), with lit.
4
For arguments rejecting both laws see Staveley, o. c. 413 ff.; Ogilvie, Commentary on Livy, Ox-
ford, 1965, 252, 499 (with some reservations in regard to the law of 449). A view more favourable
to at least the second Valerian is taken by Siber, Rom. Verfassungsrecht, Lahr, 1952, 127 ff.
The Lex Valeria de Provocatione of 300 B. C. 35
long before those limits were defined by statute,5 and that is a perfectly suffi-
cient basis for the enquiry to be undertaken here.
The lex Valeria of 300 was the work of a Marcus Valerius who held the
consulship that year6 and who is either the polyconsular M. Valerius Corvus
or his son, M. Valerius Maximus.7 One might be inclined to favour the lat-
ter, if only because a man who first held the consulship in 348 is not a persu-
asive candidate for the same office nearly fifty years later, even if he lived to a
hundred as the sources say he did.8 It is, however, extremely difficult, and
not strictly necessary for our purpose, to unravel the entanglements of the
two Valerii, and it is proposed to weigh up the evidence on the assumption
that the author of the lex Valeria was one or the other of them.
Livy, who is our sole source for the law, says that Valerius proposed a law
of provocatio with a stricter sanction.9 It was the third law of its kind to eman-
ate from the Valerii, the other two having failed because the wealth of a few
had outweighed the liberty of the plebs. But in reality only the lex Porcia
protected the backs of citizens, because it alone exposed those who scourged
or executed citizens to a gravis poena.10 The lex Valeria also forbade the
scourging or execution of a citizen who had exercisedprovocatio, but it mere-
ly made contraventions improbefactum;11 this, adds Livy, might have sufficed
in those days of pudor hominum, but not in more recent times.12
There are two preliminary observations to be made on this passage. The
first is that the si quisfecisset which Livy attests as part of the phraseology of
the lex Valeria is a more primitive form than the qui fecisset attested for the
Valerio-Horatian legislation of 44913 and enhances the prospects of the third
Valerian. The second observation concerns Livy's allusion to the sanctions
attaching to the Porcian and Valerian laws. The penalty of improbefactum un-
der the lex Valeria may not have been nearly as innocuous as Livy professes
to think. It may have been censorial infamiaH4 (cf. pudor hominum and the simi-
lar penalty in a law of the XII Tables15), and if in 58 a lex Clodia required the
censors to accuse formally before excluding from the senate or imposing ig-
nomninial it is quite possible that this penalty was already viewed seriously at
5
See esp. Staveley, o. c. passim. Cf. v. Likbtow, o. c. 250 if.; Ogilvie, o. c. 499.
6
Livy 10. 9. 3.
7 On these two Valerii see Volkmann, RE 8A. 1. 2413 fr., 2. 120 ff., s. v. 'M. Valerius Corvus',
'M. Valerius Maximus'. 8 Cic. DeSen. 17. 60; Val. Max. 8. 13. 1.
9 Livy 10. 9. 3: 'M. Valerius consul de provocatione legem tulit diligentius sanctam.'
10 Ib. 10. 9. 3 f. and esp. 'Porcia tamen lex sola pro tergo civium lata videtur, quod gravi poena,
si quis verberasset necassetve civem Romanum, sanxit.'
11
lb. 10. 9. 5: 'Valeria lex cum eum qui provocasset virgis caedi securique vetuisset, si quis ad-
versus ea fecisset, nihil ultra quam "improbe factum" adiecit.' 12 lb. 10. 9. 6.
13
Cf. the tests laid down by Daube, Forms of Roman Legis/alion, Oxford, 1956, 1, 3 ff.
14
Cf. Bleicken, o. c. 361. 16 FIRA 1. 62: 'inprobus intestabilisque esto.'
16
Rotondi, LPPR 398.
3*
36 R. A. BAULMAN
the end of the fourth century, especially in the wake of the lex Ovinia of,
probably, 312 transferring senatorial admissions and exclusions from the
consuls to the censors.7 As for thegravispoena which Livy attests for the lex
Porcia, it is not simply 'a heavy penalty'.'8 It is, in Livy's context, clearly
'heavier' than the Valerian sanction, but it seems capable of bearing a more
precise technical connotation, namely 'a capital penalty': it is perhaps no ac-
cident that Livy elsewhere attests a capital safeguard for provocatio, although
in a chronologically impossible setting,"9 and there is also room for the
suggestion that gravis specifically implies a capital penalty in contrast to the
levispoena or non-capital remedy.20
The immediate predecessor to the lex Valeria in Livy is the lex Ogulnia ad-
mitting plebeians to the priesthoods,2' and on the face of it we simply have
here two measures in the plebeian interest. But the age of Appius Claudius
Caecus is well past the days of such innocent diversions, and it should not
readily be supposed that opinions on measures such as these were polarised
around specifically patrician and plebeian nuclei. Moreover, it was not the
Roman practice to legislate in isolation, and the lex Valeria will gain in credi-
bility if the particular abuse that prompted a law of provocatio in 300 B. C. can
be identified, and if it can be linked to the realities of the contemporary polit-
ical scene. Livy's Sallustian commonplace is fatuous, but Mommsen and oth-
ers have suggested that the law brought the dictatorship under provocatio,22
and the possibility of this having been one of the objectives of the law23 is
what it is proposed to test in this paper.
17
On the sources for this law see Rotondi, LPPR 233.
1
Pace Foster, Loeb. ed. ad loc.
1? Livy 3. 55. 14, attesting a plebiscite qui magistralum sine provocatione creasset, tergo ac capile puni-
relur, thus duplicating (although with a different penalty - see below) the Valerio-Horatian ban on
the creation of provocatio-free magistrates which Livy 3. 55. 5 dates to the same year (449).
20 See for example Cic. Cat. 1. 1. 3 (s. c. grave); Livy 29. 21. 5 (gravi edicto . . . non levi poena - cf.
the undoubtedly capital proceedings against Pleminius): Suet. Aug. 51. 1 (alterum pecunia, alterum
levi exilio - both, in Suetonius' context, non-capital). 21 Livy 10. 6. 3-9. 2.
22 Mommsen, Staatsr. 1. 150 n. 2, 2.165; Greenidge, The Leg. Proc. of Cicero's Time, Oxford,
1901, 319 (with the qualification that the dictator's powers were only thus restricted in Rome, not
militiae); Staveley, o. c. 428; and (in the course of a most informative discussion of the whole
question of the dictator's jurisdiction) v. Liibtow, o. c. 284 f.
23 There will undoubtedly have been other objectives, especially if - as is believed by almost a
communis opinio today - the law of 300 was the first formal legislative recognition of provocatio. So
for example Staveley loc. cit.: 'The jurisdictional competence of the dictator will in all probability
have been officially restricted at precisely the same time as that of the consul - by the only authen-
tic lex Valeria of 300 B. C.' The only amplification of this that seems to be needed is that the lex
will have done two slightly different things: (i) it will have formalised previous customary practice
in the case of imperium-holders other than the dictator; and (ii) it will have imposed on the dictator
a limitation not previously existing at all (at first only domi, as Greenidge thought, since there is no
question of the intervention of provocaito in the area of Kriegsrecht as early as this). The view of
Bleicken, o. c. 360 f., that in 300 the tribunes were given competence in political cases and that as a
The Lex Valeria de Provocatione of 300 B. C. 37
The first piece of evidence is the dictatorship of L. Papirius Cursor, Gar-
zetti's 'patrizio illuminato',24 in 325. Papirius, according to Livy, summarily
condemned his magister equiitum, Q. Fabius Maximus Rullianus for engaging
the Samnites in breach of orders, although successfully.25 (The engagement
and the lack of authority have epigraphical validation,26 although the sequel
does not.) Papirius' legati having urged that Rullianus' execution was not in
the public interest, but in vain (the discretionary jurisdiction refusing to be
guided by the consilium?), Rullianus escaped to Rome and consulted the sen-
ate, but was arrested by Papirius. Rullianus' father invokedprovocatio on his
son's behalf, and called on the dictator to subordinate his office to provocatio,
as even a king had done. The father then addressed a contio, saying that the
people had never sentenced even unsuccessful commanders to more than a
fine, but now capital proceedings were being brought ob rem bello malegestam.
The account ends with Papirius refusing to exonerate Rullianus, but agree-
ing to pardon him as an act of grace after being abjectly e ntreated by thepo-
pulus Romanus, the tribunes and the Fabii.27 Livy informs us in a postscript
that M. Valerius, a legatus placed in command during Papirius' absence,
refused to take independent action to save a foraging detachment, so great
was the fear inspired in him by Papirius' treatment of Rullianus.28 This critic
of the provocatio-free dictatorship (he is also one of the legati who opposed
the execution of Rullianus) is either Valerius Corvus or h-is son.29
Bleicken rejects the Papirius-Rullianus episode as a doublet of the con-
frontation between Fabius Cunctator and Minucius Rufus,30 but other than
engaging the enemy without authority the similarities are not obvious, quite
apart from the fact that the doublet could just as easily have run the other
way: there is, after all, no special virtue in the tradition for Fabius Cunctator
and Minucius Rufus. If a doublet is wanted, the trial of Horatius, Livy's oth-
er leading case on provocatio, has the identical phenomenon of the father
speaking for the son and beginning with a confident submission of law, only
to end up with an abject plea for mercy.3' But relegation to the realm of
Gracchan legerdemain should be resisted here, if only because there is not,
despite Plaumann,32 sufficient proof of a direct line of descent from the provo-
result the informal provocatio that had hitherto been a dc facto brake on imperium became redundant
- in other words, that the first lex de provocatione did not so much formaliseprovocatio as abolish it -
has not attracted support. See the criticisms of Kunkel, o. c. 29 n. 91.
24 Garzetti, 'Appio Claudio Cieco nella storia politica del suo tempo', Athenaeum 25 (1947),
175 if. at 185. 2S Livy 8. 30. 2-32. 10. "6 ILS 53.
"7 Livy 8. 32. 14-35. 9. *8 Ib. 8. 35. 10 f.
29
On the identity of this Valerius cf. Broughton, MRR 1. 148 and n. 2.
20
Bleicken, o. c. 333. The case seems, however, to be accepted as genuine by v. Lubtow, o. c.
283 f. a1 Bauman, o. c. 27 f., 30 ff.
82 ,Das sogenannte Senatus consultum ultimum', Klio 13 (1913), 321 ff.
38 R. A. BAUMAN
catio-free dictatorship to the senatus consultm ultjmu,,,,33 and it should be sup-
posed that beneath the embroidery of the Papirius Cursor affair there lurks a
genuine crisis. The rejection of provocatio by a friend of Q. Publilius Philo
and its advocation by the patrician Fabii and the senate is no doubt prima fa-
cie anomalous, but the annalist does not seem to have seen anything incon-
gruous in it. In any event, let us first examine our next, and most important,
case, the trials of 314 arising out of the disaffection in Campania.
Livy says, under 314, that secret conspiracies of the nobles at Capua were
reported to the senate, whereupon quaestiones were decreed and C. Maenius
was nominated as dictator quaestionibus exercendis. The Capuan leaders antici-
pated trial by suicide, but Maenius retained his commission and transferred
the investigation to Rome, claiming that the senate had not merely ordered
an enquiry into certain individuals at Capua, but a general investigation of
those who had combined or conspired anywhere adversus rem
publicam,
and as
combines for securing office had been entered into against the Republic, the
terms of the senate's decree applied.34 This ingenious extension of the decree
(and of the concept of treason which it embraced) from conspiracies proper
to electoral combines enabled Maenius, who found his unfettered jurisdic-
tion by no means unwelcome, to conduct a wide-ranging enquiry. Charges
having been laid against a number of unnamed nobles, the accused appealed
to the tribunes; but they were refused auxilium, drawing from Maenius the
taunt that they did not seem to mind seeking refuge in plebeian safeguards.
Thereupon the united nobility, and not merely those against whom charges
were pending, claimed that the real exponents of electoral corruption were
the new men. This induced Maenius to resign his dictatorship in order to
stand trial. The senate gave the consuls a mandate to take over the enquiry,
but Maenius and his mvagister equitum, M. Folius, were acquitted, despite
the
testimony of the nobles, as was Publilius Philo who was charged with them.
The quaestio ran out of illustrious defendants and began trying the lower ord-
ers (viliora capita), until the combines and factions which had called it into
being finally put it down.35
33
Plutarch CG 18. 1 says that Opimius was the first consul to exercise the power of a dictator
(np(iroC
i0V(rIx
q 6LKTaiTOpO!
E'v
t5naretq XpparadyvoC),
but Appian BC 1. 16 expresses astonish-
ment at the fact that the senate did not appoint a dictator against Ti. Gracchus, and at the fact that
a resource which had been found most useful in former times was never even recalled to mind,
either then or later. Appian is to be preferred, inter alia because Cicero Dc Oral. 2. 132 ff. and Part.
Oral. 104 makes not the slightest suggestion that dictatorial authority was the basis of Opimius'
defence in 120, nor does he suggest in his Catilinarian Corpus that he himself possessed such au-
thority in 63. Moreover, the dictatorship had ceased to be provocatio-free by the Gracchan period
irrcspectivc of whether such cessation had occurred in 300 or subsequently, so that there was no
dormant power left to revive.
34
Livy 9. 26. 5-9 and esp.: 'non nominatim qui
Capuae sed in universum qui usquam
coissent
coniurassentve advcrsus rem publicam quaeri scnatum iussissc; et coitiones honorum adipiscen-
dorum causa factas advcrsus rem publicam esse.' 35 lb. 9. 26. 10-22.
The Lex Valeria de Provocatione of 300 B. C. 39
This important case has not received the attention that it deserves. The
Otaestio MUaeniana is, on the face of it, a special commission instigated by the
senate, and as such the ancestor of the Bacchanalian and subsequent commis-
sions, except that it is the only instance of such a commission being conduct-
ed by a dictator rather than by the consuls (unless the enquiry de coniurationi-
bus principum in Etruria in 203 was held by the dictator P. Sulpicius Galba, as
Livy implies in one place, rather than by the consul C. Servilius Geminus, as
he implies in another36). As to whether it is the first special commission of any
description, whether dictatorial or consular, to be set up under the aegis of
the senate, the trials of women poisoners in 33137 no doubt have priority, but
since the accused were, as women, precluded in any event from provocatio
their case is not directly in point. A more serious rival is Papirius Cursor, not
so much during his dictatorship in 325 as in his capacity as consul (or mag.
equiturn) in 320 or 319,38 when he conducted a quaestio against the Roman ci-
tizens responsible for the defection of Satricum and scourged and beheaded
the guilty under the authority, we are told, of a plebiscite giving the senate
the ius de Satricanis sententiae dicendae.39 If this is genuine40 there may have been
a similar law for the Quaestio Maeniana, and indeed the whole idea of such a
plebiscite might have large consequences for the later criminal jurisdiction of
the senate, although that cannot be gone into here.
One of the difficulties of the
Quaestio
Maeniana is the fact that the Capito-
line Fasti differ from Livy by making Maenius dictator rei gerundae caussa in-
stead of quaestionibus exercendis - a version partly corroborated by Diodorus,4'
although he does know of the institution of trial proceedings at Capua and of
the suicides of the defendants. But Kunkel has suggested that the more gen-
eral title of reigerundae caussa is not necessarily irreconcilable with Livy, to
which we may add that the annalist had nothing to gain by falsifying the de-
signation, and his message should be accepted at face value: not just Kriegs-
recht, but public crimes proper were now being brought under the provoca-
tio-free dictatorial jurisdiction.
It is possible that the new enlargement of the dictator's forensic powers
was prompted in the first instance by uncertainty as to the judicial rights of
the Capuans. If the defectors derived their title from the Campanian equites
3l lb. 30. 24. 4, 30. 26. 12. 87 On these see Kunkcl, o. c. 26 f., 57 n. 216.
38 On Papirius' fluctuations in this period see below.
Il
Livy 9. 16. 10, 26. 33. 10.
40
There is no obvious reason to doubt thc tradition herc. Exiernal treason was involved, which
rules out any Gracchan implication. It is instructive to find the same PaDirius Cursor who (nearly)
scourged and beheaded in summary fashion in 325 now doing the same thing in a much more con-
trolled fashion, and the possibility cannot be excluded that the Satrican plebiscite represents a re-
action against his previous modus operandi. On the citizenship rights of the Satricans see below.
41
Diod. 19. 76. 3-5.
40 R. A. BAUMAN
who had been made citizens as the reward of loyalty in 340,42 they will have
been cives optimo iure and clearly entitled to provocatio. But what if they be-
longed to those who had acquired their citizenship under the general grant
of 338? In that case they will have possessed the rights of the civitas sine
suffra-
giov,43
but it is by no means certain that even this limited form of citizenship
was unequivocally sine provocatione. On general grounds it should be safe to
assume that the civitas conferred on the Campanians in honour of their
equites" carried some privileges as well as obligations ;I moreover, there is
nothing in what is known about any of the laws ofprovocatio to suggest that a
restricted meaning should be given to the cives who were entitled to protec-
tion under those laws. There is some specific evidence to corroborate these
general probabilities. It was certainly clear by 210 that because the Capuans
were Roman citizens the senate could not act against them iniussu populi;48
but the question was being canvassed long before that, notably in 270, when
the mutinous Campanian legionaries were executed in spite of the objections
of the tribune, M. Fulvius Flaccus, to the execution of citizens adversus morem
maiorum.47 Even earlier, in 323, the tribal assembly at Rome had tried the
people of Tusculum, under the Flavian rogation, for helping the enemies of
Rome;
48 the citizenship of the Tusculans was sine
suifragio
in Mommsen's
view, and although current opinion holds otherwise it is by no means certain
that Mommsen was wrong.49 The case of the citizens of Satricum belongs
here. They were probably cives sine
suffragio,50
and when regard is had to the
confused career of Papirius Cursor in 320-19, a period in which he is reputed
to have held two consulships and two appointments as miagister equitum,51 it
may just possibly be supposed that the quaestio that he conducted against the
Satrican defectors52 was in his capacity as subordinate to aprovocatio-free dic-
tator rather than as consul; in other words, the Satricans may have possessed
2
On this grant see Bernardi, 'Roma e Capua nella seconda meta del quarto sec. av. C.', Athe-
naeum 20 (1942), 86 ff., 21 (1943), 21 ff. at 86 f. and passim, with lit.
" Bernardi, o. c. 87 and passim.
u Livy 8. 14. 10: "Campanis equitum honoris causa, quia cum Latinis rebellare noluissent,...
civitas sine suffragio data.'
'"
On the nature of the civitas sine
suffragio
in general see esp. Sherwin-White, The Roman Citizen-
ship, Oxford, 1939, 37 if. The right of prowocatio could be conferred quite independently of citizen-
ship, as lex Acilia 78 shows, and it was a fortiori well suited to the entitlement side of the unen-
franchised citizenship.
46
Livy 26. 33. 10 ff. and esp. 'per senatum agi de Campanis qui cives Romani sunt, iniussu po-
puli non video posse.' Cf. Bernardi, o. c. 90.
47
Val. Max. 2. 7. 15. 48
Livy
8. 37. 8 ff.
49
Mommsen, Staatsr. 3. 571 n. 1, 573. Contra Sherwin-White, o. c. 56 f.; Salmon, Samnium and
the Samnites, Cambridge, 1967, 210 n. 1.
'I
Salmon loc. cit.
"I
Broughton, MRR 1. 152 f., 154. 52 Above.
The Lex Valeria de Provocatione of 300 B. C. 41
the right of provocatio and the sub-dictatorial jurisdiction53 may have been
used in order to circumvent that right.
It is, on all the evidence, reasonably possible that the Capuan defectors
were entitled to claim trial apudpopulum in Rome, or at any rate that at that
early stage of the unenfranchised citizenship there was an arguable case for
such a right, and this gives a feasible motive for the creation of a new type of
dictatorial provincia, namely quaestionibus exercendis, which could be exercised
on the spot at Capua and without provocatio, so as to termninate what was ob-
viously a serious state of disaffection without the considerable delays in-
volved in the procedure of tribunes and assembly. This perfectly credible ex-
ploitation of the dictatorial jurisdiction will have been the work of a faction
intent upon preserving the progressive mercantile policy focussed on the
south, and especially on Campania, to which scholars have recently drawn at-
tention.64 We may see this policy as having enjoyed the general support of
the patricio-pleibeian nobility over the preceding decades but as having been
called in question in 314,6$ and thus at about the time of
theQuaestio
Maeniana.
Those who now opposed it will have included Fabius Rullianus,66 who
thereby possibly ushered in the long Fabian policy of caution that found its
greatest exponent in Fabius Cunctator. The continued protagonists of the
progressive mercantile policy will have been found among those who sup-
ported Publilius Philo and will have included C. Maenius and Appius Clau-
dius Caecus (cf. his Appian Way to Capua). Indeed it would not be surprising
if the subsumption of public crimes proper under the dictator's jurisdiction
had originated in the fertile mind of Appius Claudius, the first credible figure
in Pomponius' catalogue of jurists.67 There must, at any rate, have been
some signal service rendered by Appius to his party if he was supported for
the censorship in 312 without having been consul.68
Thus far the Quaestio Maeniana makes good sense, but its second stage, the
transference to Rome and the proceedings de ambitu, is more difficult, suffering
as it does not only from the anonymity of Livy's account, but from the fact
that not even anonymously are any condemnations attested. If one looks for
acts that might have generated charges of electoral corruption at about
this time, there are possible indications of manoeuvring by the Publilius
group in 326, a dominant year for their faction, the rear of the first ever
prorogation of imperiumr69 and also, as Staveley has pointed out,60 the year
63 Such a
jurisdiction is not attested but seems a feasible inference from Mommsen's analysis of
the position and powers of the mag. eq., SIaa/sr. 2. 162 f., 178 ff., and in particular from the dicta-
tor's power of delegation.
5" Staveley, 'The political aims of Appius Claudius Caccus', Historia 8 (1959), 410 ff., passim;
Salmon, o. c. 240 and passim. 55 Salmon, o. c. 240. 5" lb. 240 n. 3.
57 Dig. 1. 2. 2. 36; 58 On his career sec Broughton, MRR 2. 545.
59 Livy 8. 23. 10-2. 'I 0. c. (n. 54 above) 427.
42 R. A. BAUMAN
of the fifteen interreges. Another interesting year is 328, in which there
was a blatant case of bribery to which we shall advert presently. It is less
easy to cite even general possibilities for the anti-mercantile group, but
fortunately Livy does observe, in another context,61 that in 320 Maenius
conducted certain quaestiones harshly and to the prejudice of the powerful.62
This allocation of Maenius' dictatorship quaestionibus exercendis to 320 is mis-
taken,63 or is perhaps a deliberate attempt to associate the early plebeian dicta-
torship with the traditional calling to account by the plebs, but in either ev-
ent it indicates a durable tradition for the fact that Maenius'
quaestio
had
pressed hard on the nobles. It is also worth noting that the annalist makes no
attempt to shift any of the burden of these trials on to the tribunes, and in-
deed the masterly inactivity of the tribunes throughout the Maenian episode
is altogether a guarantee, in some measure, that genuine tradition has been
used. There are some obvious embellishments, notably the annalist's insist-
ence on ranging the united nobility against Maenius. This clearly cannot cor-
respond with reality, if only because there must have been a substantial
Maenian lobby in the senate to get the quaestio going in the first place, but the
falsification is understandable if there was a strong body of opinion opposed
to the provocatio-free dictatorial jurisdiction and if the annalist has blown this
up into unanimous opposition in order to drive the point home. We may
conclude, as Miinzer does on different grounds,64 that there is a core of truth
to both phases of the Quaestio Maeniana.
The consular trials of Maenius and his friends are less credible. Ostensibly
they do not raise a crisis of provocatio, since Maenius himself proposed the
transfer of the enquiry to the consuls when he resigned his dictatorship,64a
but that solution is too convenient. The consuls of the year, M. Poetelius
Libo and C. Sulpicius Longus, were presumably not hostile to Maenius if
they nominated him as dictator, and a fordiori if they preferred his testimony
"I
Livy 9. 34. 14, on the events of 310 B. C.
62
'Nuper intra decem annos C. Maenius dictator, quia, cum quaestiones severius quam qui-
busdam potentibus tutum erat exerceret, contagio eius quod quaerebat ipse criminis obiectata ab
inimicis est, ut privatus obviam iret crimini, dictatura se abdicavit.'
63 Cf. Miinzer, RE 14. 1. 250, s. v. 'C. Maenius'. That Maenius held the dictatorship in 320 can-
not easily be denied, in view of the evidence of the Capitoline Fasli (cf. Munzer loc. cit.), but that
is certainly not the dictatorship in which he investigated the Capiian disaffection. It is of course al-
ways possible that he held two forensic dictatorships, one in 320 for electoral corruption and the
other in 314 for the Capuan troubles, and that the two became conflated in the tradit i on, but on the
whole the probabilities are against this, although one would feel more secure if M. Folius Flacci-
nator were not attested as magister equilum to Macnius in both 320 and 314 (cf. Broughton, MRR
1. 152, 157). In the final analysis, however, the decisive test is the strong emphasis placed by Livy
on the fact that the investigation of electoral corruption was based on an extensive interpretation
of the sena/us consultum concerning the Capuan disaffection. 64 Munzer, o. c. 250 f.
64a
Livy 9. 26. 19: 'vos quaeso, consules, si vobis datum ab senatu negotium fuerit.'
The Lex Valeria de Provocatione of 300 B. C. 43
to that of the nobles, but other than this they neither increase nor diminish
the veracity of the consular quaestio. There is, however, one point against
consular trials, and that is the concluding activities of the commission, when
it ran out of illustrious defendants and turned its attention ad viliora capita. In
Livy's context this phase belongs to the consular quaestio rather than to the
dictatorial, but 314 was an extremely difficult year,65 and even if the consuls
had been able to spare the time to try Maenius, Folius and Philo it is scarcely
to be supposed that they were able to linger in Rome trying underlings. Con-
sequently the Quaestio Maeniana, presided over by someone whose services
were not urgently required for military purposes, is probably the only au-
thentic tribunal of the two, and even then it seems reasonable to assume that
the underlings were tried for complicity in the Capuan rebellion rather than
for corrupt particpation in Roman politics. It is therefore suggested that af-
ter the abortive proceedings at Capua itself the Maenian commission operat-
ed at Rome on two different levels: it continued with charges of rebellion,
against the accomplices, and it enlarged its competence by bringing in
charges of electoral corruption against the political enemies of those who
were controlling the quaestio.6 (This does not quite require the total rejection
of the trials of Maenius and his friends, because their trial by the people at
the instance of the tribunes and the subsequent suppression of this by the tra-
dition is always possible; alternatively, as long as the consuls are not called
upon to waste their time trying viliora capita [for ambitus
-
Livy in no way im-
plies that the rebeliion trials went before any tribunal except the Quaestio
AVlaeniana] there is no fundamental objection to their having tried Maenius,
Folius and Philo.)
The Ouaestio Maeniana represents the mercantile faction's deliberate ex-
ploitation of the provocatio-free dictatorship against internal political oppo-
nents as well as against enemies of the state. This does not, however, imply a
foreshadowing of the senatus consultum ultimum. The group that should pre-
dictably have set its face against the abuse of legal process certainly capitalised
on the unique advantages of the dictatorship, but unlike the Ouaestio AMami-
liana, about which even Sallust has some hard things to say,67 the Maenian
commission did not act arbitrarily, as the annalist is at pains to make clear
when he has Maenius rather preciously decline to comment on the nobles'
reasons for fearing his quaeshio, on the grounds that any such comment would
be an improper prejudgment of their guilt.68 Those who agree with Plau-
mann about the antecedents of the s. c. ultimum can no doubt say that the an-
65
lb. 9. 24. 1-26. 5 (esp. 'eodcm anno, cum omnia infida Romanis essent'), 9. 27.
'I
A further point in favour of the viliora capita having been tried by the Maenian commission
rather than by the consuls is Livy 9. 26. 9, where it is said (at a stage well before Maenius' abdica-
tion) that the enquiry was broadened in respect of both charges and persons: 'latior et re et perso-
nis quaestio fieri.' 67 Sall.Jug. 40. 5. 68 Livy 9. 26. 10 f., 15.
44 R. A. BAUMAN
nalist constructed this fair-minded dictatorship in order to deny L. Opimius
his precedent, but even if falsification on this score could be urged it would
by no means require the total rejection of the quaestio. On the contrary, the
more unfair the tribunal in fact was, the stronger does the hypothesis here
being advanced become, since the need for the subsumption of the dictator's
jurisdiction underprovocatio becomes even greater.
There are, in the light of the argument thus far, prima facie grounds for
saying that the events of the last quarter of the fourth century had shown
that the dictatorship was capable of being used to the detriment of the foren-
sic rights of citizens even in the non-military sphere, and that one of the ob-
jects of the lex Valeria deprovocatione of 300 B. C. was the alignment of that ju-
risdiction with the other jurisdictions of
imperium-holders.
There are, how-
ever, three other difficulties that must be overcome before this proposition
can be accounted reasonably secure.
The first difficulty is that the lex Valeria of 300 should arguably have im-
posed a general ban on the creation of provocatio-free magistrates, as the Va-
lerio-Horatian laws had allegedly done in 449,69 in which case the Valerio-
Horatian penalty of outlawry70 might have to be rerouted to 300, with des-
tructive results. But fortunately that penalty is unstable, being replaced by
scourging and beheading in a tribunician law on the same subject of provoca-
tio-free magistrates which Livy also allocates to 449.71 Moreover, Festus says
that when the dictator's immunity from provocatio was abolished, the formula
appointing him simply omitted the words ut optima /ege.72 On
bala2ce,
there-
fore, there is no compelling need for a general ban in 300, and the first diffi-
culty falls away.
The second difficulty is the interval between 314 and 300 during which
there was no further crisis, thus possibly making dictatorialprovocatio at best
a smouldering issue in the latter year. But the same goes for any other moti-
vation of the lex Valeria, and with much greater force, since no other crisis
in the vicinity of the lex is visible at all. There is certainly
no trace of the
sup-
posedly traditional oppression of sturdy plebeians by wicked patricians.
The
victims of both Papirius Cursor and C. Maenius were (except for the viliora
capita in the latter's case) members of the patricio-plebeian nobility, and one
is reminded of the suggestion of A. Heuss,73
that
originally provocatio may
Il
See Rotondi, LPPR 204.
70
Livy 3. 55. 5: 'eum ius
fasque
esset occidi, neve ea caedes capitalis noxae haberetur.'
71
Cf. n. 19 above.
72
Fest. 198 M: 'Optima lex: . . . In magistro populi faciendo,
qui
vulgo "dictator" appellatur,
quam
plenissimum posset ius eius esse, significabatur, ut fuit Mani Valerii M. F. Volusi nepotis,
qui primus magister populi creatus est; postquam vero provocatio ab eo magistratu ad populum
data est, quae ante non erat, desitum est adici "ut optima lege", utpote imminuto iure priorum ma-
gistrorum."
7a 'Zur Entwicklung des Imperiums der rmm. Oberbeamten', ZSS 64 (1944), 57 ff. at 80 ff., 107.
The Lex Valeria de Provocatione of 300 B. C. 45
have been needed by the patricians rather than by the plebs, as a check on the
new Republican magistracies. It was, at all events, always provocatio adpopu-
lum, not adplebem.
A further point in favour of the postulated scope of the lex Valeria is the
sudden cessation of dictatorial appointments after 301: where the fourth cen-
tury exhibits appointments at an average rate of one every other year, the
only attested cases between the end of that century and the Punic wars are Q.
Hortensius in 287 and three or four minor appointments thereafter.74 In par-
ticular, some loss of advantage by the dictatorship may lie behind Livy's cu-
rious assertion that in 299 the senate was about to recommend the nomina-
tion of M. Valerius Corvus as dictator, but changed its mind when he was
unanimously elected suffect consul.75
The third difficulty is that the author of the lex Valeria has to be seen as a
collaborator of the anti-mercantilists, and in particular of Fabius Rullianus,
the man whose friends sponsored the contemporaneous lex OgWlnia to which
Appius Claudius objected so strenuously.76 Such a posture for M. Valerius
runs counter to the close relations usually presumed to have existed between
the two Valerii and Philo and Appius,77 but fortunately the main prop on
which those relations depend, Valerius Maximus' non-interference, as censor
in 307, with the reforms of Appius' censorship, has been pried loose by Le-
jay, who suggests with much justification that one of the reasons why Appius
was constrained to spend his consulship of 307 in Rome was precisely in ord-
er to forestall interference with his reforms.78 Furthermore, a dislike of dicta-
torial jurisdiction, and sympathy with Rullianus, were exhibited by the Va-
lerius who was Papirius Cursor's leg ttus in 325, and also by the Valerius who,
as dictator in 302/1, took no punitive action, so far as can be judged, against
his magister equitum, Aemilius Paulus or Fabius Rullianus, for making an
unauthorised (and unsuccessful) foraging expedition79
-
a story that may be
apocryphal, but not in so far as it illustrates the thinking of the Valerii on the
subject of dictatorial provocatio. It may even be supposced that the law of Va-
lerius Corvus as dictator in 342, granting the mutinous leg,ions an indemnity
and so imposing a limitation on imperium militare,80 implies a long-standing
and consistent Valerian attitude.
There may, finally, be positive evidence of hostility between the Valerii
and Appius Clauditis Caecus. Livy reports under 328 that a certain NI. Fla-
vius gave a visceratio to the people at the funeral of his mother, although some
thought he was paying his debt for his acquittal on a charge of stuprum
74
Cf. Broughton, MRR 1. 185, 187, 191, 204, 207. 7S Livy 10. 11. 3. f.
76
On the affiliations of the Ogulnii see Staveley, o. c. (n. 54) 432.
77
See for example Stavelcy, o. c. 426.
78
Lejay, 'Appius ClaudiLs Caecus', RP 44 (1920), 92 ff. at 107.
7" Livy 10. 3. 3-8. '0 Rotondi, LPPR 225.
46 R. A. BAUMAN
brought by the aediles. At all events his generosity also brought office to
Flavius, since he was elected tribune for 327 in absentia.8' Now, the charge
of stuprum is that which Valerius Maximus (the author) says was brought by
C. Valerius as aedile in 329, against Q. or A. Flavius, when the patent malice
of the accuser secured absolution for the accused.82 If the accused was indeed
A. Flavius, as one possible reading of Valerius Maximus suggests,83 and if he
is the same man as Livy's M. Flavius, as the common charge of stuprum al-
most guarantees, the prospects are intriguing. One thinks of the well-known
Cn. Flavius, son of a freedman, scribe to Appius Claudius Caecus and pub-
lisher of the fasti and the ius civile FlavianUM,84 the latter in the opinion of
some the XII Tables.86 This man was Annifilius,86 and when regard is had to
the confusion in the sources as to the offices held by him in 304, with the eld-
er Pliny giving him both the tribunate and the aedileship at the same time,87
it may very well be that the tribune of 327 was his father88 and that he himself
was only aedile, in which case there will have been significant hostility be-
tween a Valerius and a connection of Appius Claudius.
One hesitates to seek further corroboration of the case here made out by
pressing parallels between Appius Claudius and the fifth century whipping-
boy of the same name, but there is certainly a striking resemblance, and one
that might have appealed to Pais, between the shadowy figure who calls for a
provocatio-free dictator in 492,89 thereafter regularly impedes the provocatio
policy of the Valerii, and illegally prolongs the decemvirate in order to com-
plete his programme, and the historical figure who aligned himself with
those who were exploiting theprovocatio-free dictatorship, opposed the provo-
catio legislator and his friends, and prolonged his censorship, as some thought
illegally, in order to complete his programme.9"
We conclude with a brief note on the lex Porcia to which Livy refers in his
account of the lex Valeria of 300 B. C. There are two distinct strands in Livy,
the Valerian claim to pre-eminence in provocatio legislation and the Porcian
denial of that claim. Contention is also manifest in Cicero's allusion to three
81
Livy 8. 22. 2-4. 82 Val. Max. 8. 1. 7.
83
Cf. Broughton, MRR 1. 144. 84 Cf. Gundel, Ki. Pauly2. 569 f.
85
Cf. Pais, Sloria di Roma, 1898, vol. 1, part 1, 546 ff., 631 ff. For a recent view tending in the samc
direction (,eine fachjuristische
Rezension') as Pais see Wieacker, ,Die XII Tafeln in ihrem Jahr-
hundert', Fond. Hardi 13 (1966), 291 ff. at 297 n. 3 and 297 f.
88
Broughton, MRR 1. 168 n. 1.
87
Pliny N. H. 33 17 i. The fact that Pliny insists on the double officc to the cxtent of having
the nobles 'lay aside their rings' in protest does not greatly verify his attestation, since Livy 9. 46
makes the laying aside of the rings the result of the aedileship only, in as much as in his version
Flavius had held the tribunate in a previous year.
88 Flavius is Cn. filius in Livy loc. cit., but Annif. in Piso fr. 27 Peter,
Cic. Att. 6. 1. 8 and Pliny
loc. cit. 89 Livy 2. 29. 1 1.
? On Appius' censorship see esp. Garzetti, o. c. passim; Staveley, o. c. (n. 54) passim.
The Lex Valeria de Provocatione of 300 B. C. 47
Porcian laws
by
three different authors9l
-
evidently
a Porcian claim to numer-
ical parity with the Valerii, although weakened by Cicero's assertion that
none of the leges Porciae added anything new except a sanction.92 Elsewhere
Cicero, in common with all the other sources, attests only one Porcian law,93
and indeed nowhere is there any specific identification of any of the three
Porcians - understandably so, since the Valerii had preoccupied all the best
seats. There is, however, one important indication, and that is the fragment
of Pro Cornelio in which Cicero speaks of three laws - a lex Porcia and two
leges
Cassiae
-
as haec recentiora.94 The two Cassian laws in
question
are the law
of 137 providing for secret ballots in iudicia populi and the law of 104 expell-
ing damnati from the senate,95 and in this context the lex Porcia is not recent if
it is attributed to either of the favourite Porcian authors, Cato in 198 or P.
Porcius Laeca in 195.96 As the numismatic evidence seems to demand a Por-
cius Laeca97 one might think of M. Porcius Laeca, monetalis in the mid-se-
cond century98 and conceivably a magistrate as well, or of P. Porcius Laeca, a
senator in c. 165 and possibly a son of the praetor of 195.99 A strong counter-
indication is, of course, the fact that Cato delivered a speech Pro Scapulis
which is arguably reflected in Livy's pro tergo civium,100 and this is one of the
reasons why more than one Porcian law cannot be entirely excluded. Anoth-
er reason is the capital penalty attributed by Livy to the lex Porcia known to
him: it might be argued from this, especially in view of Cicero's assertion that
the three Porcian laws differed only on sanction, that the law to which Livy
alludes must be the second or third in a series of leges Por,^iae. This does, how-
ever, leave one of the other laws with no discernible type of sanction, since
one would not expect greater variety of penalty here than in the iudicia populi
as a whole, and on balance one is inclined to see the threefold Porcian
achievement as no more secure than its Valerian counterpart.
University of Sydney R. A. Bauman
"
Cic. Rep. 2. 54. Cf. n. 2. above.
92
'Neque vero leges Porciae, quae tres sunt trium Porciorum, ut scitis, quicquam praeter sanc-
tionem attulerunt novi.' 98 For these sources see Rotondi, LPPR 268.
"4 Ascon. In Cornel. p. 84 Giarratano. 95 Rotondi, LPPR 297, 327.
"
On these as the possible authors of leger Porciac see v. Lubtow, o. c. 291 ff.
97
On the 'provoco' coin see v. Liibtow, o. c. 293. I' Cf. Broughton, MRR 2. 449.
99 Ib. 495. 100 Cf. v. Liubtow, o. c. 292.