Tiberius and Murena

Author(s): R. A. Bauman
Source: Historia: Zeitschrift für Alte Geschichte , Nov., 1966, Bd. 15, H. 4 (Nov., 1966),
pp. 420-432
Published by: Franz Steiner Verlag

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 TIBERIUS AND MURENA

The maiestas trials of M. Primus and of Caepio and Murena raise an acute
chronological problem, which has recently been discussed at some length.'
Much of the evidence has been well sifted, and although none of the solutions
proposed has won general acceptance, it would be idle to hope for ignes suppo-
sitos cineri doloso. But I believe that a useful argument can be based on an
aspect of the trials which does not seem to have been noticed. Before presenting
this argument it will be convenient to summarise so much of the tradition as
is in point,2 and to outline the nature of the problem.
M. Primus, governor of senatorial Macedonia, was accused in the quaestio
maiestatis, soon after vacating office, of having made war on the Odrysians
without authority.3 He was defended by Licinius Murena. Augustus went to
court unsummoned to rebut Primus' allegation that he had acted with the
authority of Augustus.4 Murena subjected Augustus to a hostile cross-exami-
nation. Primus was condemned, although a number of iudices voted for an
acquittal. After this there was a conspiracy against Augustus, led by Fannius
Caepio. His accomplices included a man variously described as Murena, Licinius
Murena, L. (= Lucius) Murena, Varro Murena, Varro, and Licinius.5 Murena

1 R. Hanslik, "Horaz und Varro Murena," Rheinisches Museum 96 (1953) 282 ff.
Kathleen M. T. Atkinson, "Constitutional and Legal Aspects of the Trials of Marcus
Primus and Varro Murena," Historia IX (I960) 440ff. D. Stockton, "Primus and Murena,"
Historia XIV (I965) i8ff. For earlier investigations see particularly H. Volkmann, "Zur
Rechtsprechung im Principat des Augustus: Historische Beitrage," Miinchener Beitrdge
z. Papyrus/orschung u. antiken Rechtsgeschichte 2I (I935) 5I ff. Stockton's assertion (o
that his case "has never been stated in print in its full detail and force" does Volkmann
less than justice.
2 Dio 54. 3. 2ff. Velleius Paterculus 2. 91. If., 93. I. Suetonius, A ug. I9. I, 56. 4,
66. 3; Tib. 8; de gramm. 9. Horace, Odes 2. I0, 3. I9; Sat. I. 5. Strabo I4. 5. 4. p. 670.
Macrobius, Sat. I. II. 2I. Seneca, de clem. I. 9. 6; de brev. vit. 4. 5. Tacitus, Ann. I. I0.
3 In breach, in the general view, of Sulla's lex Cornelia maiestatis (Cic., in Pis. 21. 50).
I have argued elsewhere for a lex Julia maiestatis of 27 B.C. for which I postulate a similar
provision to that included in Sulla's law, but the point need not be pressed here. The
Crimen Maiestatis in the Roman Republic and Augustan Principate, to be published
shortly by Witwatersrand University Press and University of Queensland Press.
4 In the alternative Primus alleged the authority of Marcellus, who was either the son-
in-law of Augustus (Volkmann O.c. 53; Stockton 0.c. 35 ff.) or the consul of 22 B.C. (Atkinson
0.c. 444ff., 450). Marcellus did not attend court.
5 Murena: Suet., Aug. 56. 4, 66. 3. Sen., de clem. I. 9. 6; de brev. vit. 4. 5. Strabo
I4. 5. 4. p. 670. Vell. 2. 93. I. Hor., Odes 3. I9. II; Sat. I. 5. 38. Licinius Murena: Dio

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 Tiberius and Murena 42I

was the brother of C. Proculeius, and his sister Terentia was the wife of
Maecenas. The plot was disclosed to Augustus, and Tiberius undertook a
prosecution in the quaestio maiestatis. Condemnations in absentia were obtained
against at least Caepio and Murena. Soon afterwards they were executed,
neither Proculeius nor Maecenas being able to save Murena. Some thought
that Murena was the victim of his outspokenness. A thanksgiving was decreed
and a law was introduced prohibiting secret voting at trials in absentia and
prescribing a unanimous vote for condemnation in such cases.
Dio6 assigns these trials to 22 B.C. His date would never have been doubted7
were it not for an entry in the Fasti Capitolini for 23 B.C.8 This entry records
that A. Terentius Varro Murena was consul ordinarius with Augustus, but was
replaced by the suffect Cn. Calpurnius Piso. Due to a crucial lacuna9 the reason
for Varro Murena's vacation of office is conjectural. Mommsen'0 supplied:
in mag. mort., which does not disturb Dio's date, for the (apparently) innocuous
death in office of the consul Murena in 23 is not necessarily connected with
the trial and execution of the conspirator Murena in 22. But there has been
support for an alternative supplement: in mag. damn." This, if Dio's date is
retained, means that two Murenae were tried in successive years: Varro Murena,
consul in 23, who was condemned in office; and Licinius Murena, who defended
Primus in 22 and thereafter conspired with Caepio. The coincidence is so improb-
able that the consul, if he was condemned, would have to be identified with
the conspirator,'2 and the conspiracy and the trials of Caepio and Murena
would have to be assigned to 23 B.C. It follows that 22 B.C. would also have to
be rejected for the trial of Primus, for his case preceded the conspiracy, and
his defender, if the consul, was not alive in 22.

54. 3. 4 (cf. 54. 3. 3). L. (= Lucius) Murena: Vell. 2. 9I. 2. Varro Murena: Suet., Aug.
I9. I; Tib. 8; de gramm. 9. Varro: Tac., Ann. I. I0. Licinius: Hor., Odes 2. I0 (pace
Kiel3ling-Heinze'0 i98f.). 6 54 3.
7 The fact that the conspirator's sister was a Terentia would not in itself (despite
Stockton O.C. 22, 4o) have aroused suspicion. 8 CIL I2. I. p. 28.
9 A. T[erentius A. f. ? n. Varr]o Murena.
[ ] est.
10 CIL I2. I. p. 28. cf. D
the City of Rome," Washington Univ. Studies Humanistic Series X. 2 (1923) 237. H.
Dessau, Geschichte d. rdm. Kaiserzeit I (1924) 5o and n. I. Gelzer, RE IO. I. 48I. Fluss,
RE 5A. 708. Atkinson oc. 462.
11 Volkmann O.C. 52. cf. Ehrenberg & Jones, Documents (1949) 36. Kappelmacher,
RE 6. 2. I993. Grant, From lnperium to Auctoritas (I946) 84. Syme, The Roman Revolution
(I960) 325 n. 5, 333.
12 Those who make the identification overcome the difference in nomenclature by
assuming the adoption of L. Licinius Murena by an A. Terentius Varro. The conspirator's
full name is then: A. Terentius Varro Licinius Murena. Volkmann oc. 5i and n. Syme
o.c. 325 n. 5. Stockton o.c. 2I f. Hanslik (o.c. 283 f.), rejecting both supplements and pro-
posing magistratu motus, makes the identification but accepts Dio's date.

27*

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 422 R. A. BAUMAN

I believe that Dio's date should stand. My case is that 23 B.C. is an im-
possible date for the trials, for two reasons. The first is the fact that Tiberius
prosecuted Caepio ;13 and the second is the fact that Murena defended Primus.14
I suggest that the first of these events cannot have taken place in 23 B.C.
without a flagrant breach of law, because this was the year of Tiberius'
quaestorship,15 and a magistrate in office was not permitted to act as an
accuser. And the second event, if the consul was the conspirator, means that
a magistrate practised advocacy while holding office, an action which would
have run counter to established custom.
The prohibition of accusations by magistrates was known clearly and
unequivocally in Classical Roman Law: proiibentur accusare ... alii propter ma-
gistratum potestatemve.'6 It has been said that this rule was operative in the late
Republic,'7 or at all events in the Principate.18 But Berger makes his assertion
without discussion, and Mommsen demonstrates little more than the existence
of such a rule in the third century A.D. The operation of the rule in 23 B.C. iS
not readily extractable from the tradition. I propose arguing that in the late
Republic the principle existed as a desirable practice, but not as a specific
legal prescription. It hardened into a rule of law shortly before Caepio's trial.
As for the custom which frowned on magisterial advocacy, Mommsen'9 believes
that a legal rule regulated the position. But his pronouncement is made ex
cathedra, and the evidence does not warrant the assumption of more than
established custom in this case.
In the late Republic the iudices refused to enrol an accusation of peculatus
against Faustus Sulla on the ground that the accuser was a tribune, a fact
which it was thought might militate against a fair trial.20 Cicero contrasts this
ruling with the prosecution of C. Junius by a tribune and castigates this trial
as a mockery which violated custom.2' It seems clear that the action of the
iudices in the case of Faustus Sulla was not an isolated incident, for Cicero
suggests that they would always have the right to intervene in this way.22 But
the principle did not go further than mos consuetudoque. C. Memmius held

13 Suet., Tib. 8: Fannium Caepionem, qui cum Varrone Murena in Augustum conspi-
raverat, reum maiestatis apud iudices fecit et condemnavit.
14 Dio 54. 3. 3: '5oi5 t' cuvoyope6ovtoq TF llp[Lc AtxLv0ou Moupnvou.
15 Dio 53. 28. 4. The date is free of controversy and supplies a welcome fixed point.
16 Macer, de publicis iudiciis II (Dig. 48. 2. 8). See also n. 65 below.
17 Berger, Encyclopedic Dictionary of Roman Law (I953) 340.
18 Mommsen, Rdmisches Strafrecht (1899) 37I and n. 4. 19 O.C. 376.
20 Cic., pro Cluent. 34. 94: quod accusante tribuno plebis condicione aequa disceptari
posse non putarunt ... statuerunt iniqua condicione reum causam dicere, cum adversario
eius ad ius accusationis summa vis potestatis accederet.
21 ib. 35. 96: non fuit illud igitur iudicium iudicii simile, iudices, non fuit: in quo non
modus ullus est adhibitus, non mos consuetudoque servata, non causa defensa.
22 ib. 35. 95: nedum his temporibus his moribus his magistratibus sine vestra sapientia
ac sine iudiciorum remediis salvi esse possimus.

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 Tiberius and Murena 423

office as tribune when he accused Gabinius and Rabirius de repetundis,23 but

Cicero, who defended both accused, did not challenge Memmius' right of
accusation. It can perhaps be urged that Cicero's attitude was so equivocal
throughout the Gabinius affair24 that nothing turns on his silence. The argu-
ment is tenable if only a matter of custom was involved, but it is not con-
ceivable that Cicero would have failed to take advantage of a specific legal rule.
The consul L. Visellius Varro came forward as the accuser at the trial of
C. Silius for maiestas in 24 A.D. Silius asked that the trial be adjourned until
Varro's term of office expired. Tiberius opposed this on the grounds that it was
customary for magistrates diem privatis dicere25 and that there should be no
interference with the rights of a consul, whose responsibility it was to see to it
that the State took no harm.26
This case, although on the face of it against the postulated rule, yields quite
a different result on analysis. My first point is that Silius would not have raised
his objection unless he had had legal grounds for doing so. His motion for an
adjournment was moved at a preliminary hearing which Tiberius conducted
prior to the trial in the Senate,27 and indeed the proceedings seem to have
taken the form of a praeiudicium on the specific question of Varro's right to
prosecute. As Tiberius was constrained to rest his ruling on a legal argument,
it may reasonably be supposed that he was replying to submissions of law
made by Silius. It is also significant that Tacitus, although noticing that Varro
bore Silius a grudge,28 does not suggest that Tiberius referred to this fact in
his ruling. If the adjournment had been sought because of Varro's hostility,
Tiberius would have mentioned it and Tacitus would have made much of it.
My second suggestion is that the reasons adduced by Tiberius need careful
scrutiny. His first point was: solitum quippe magistratibus diem privatis dicere.29
If, as we are entitled to assume, diem dicere is used in a technical sense, Tiberius
stands convicted of a deliberate distortion. Silius would have argued: magistra-
tibus postulare non licet, the expression postulare being that which was used to
denote the institution of a prosecution in a iudicium publicum (or quaestio
perpetua),30 and which was also appropriate to the initiation of criminal pro-
ceedings in the Senate.3' To this Tiberius replied, in effect: magistratibus diem

23 Cic., ad Q. fr. 3. I. I5, 3. 2. I, 3. 3. 2; pro Rab. Post. 7, 32.

24 Cic., ad Q. /r. 3. I. I5, 3. I. 24, 3. 2. 2, 3. 3. 3, 3. 4. I ff., 3. 6. 5, 3. 9. I; pro Rab.
Post. 32, 33.
25 The Latin is crucial. See below. 26 Tac., Ann. 4. 19. I, 2.
27 This is clear from igitur multa asseveratione . . . coguntur patres (ib. 4. 19. 3). cf.
3. IO- 3ff. 28 ib. 4. I9. I. 29 ib- 4. I9. 2.
30 Mommsen o.c. 382 ff. Greenidge, The Legal Proce
Approximate equivalents of postulare were: reum facere, reum deferre, accusare. Cic., pro
Cluent. 20. 56; Div. in Caec. 20. 64. Ascon., in Cornelian. p. 59. Suet., Tib. 8. Dig.,
48. 2. I, 3, 8. See also n. 65 below.
31 Mommsen, Romisches Staatsrecht (I887) 2. I. I2I and n. 4.

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 424 R. A. BAUMAN

dicere licet. This answer was a non sequitur, for diem dicere was only appropriate
to the older form of criminal procedure, the iudicium populi, where it simply
denoted the suhmmoning of the accused by the magistrate who conducted the
proceedings.32 Even more significantly, the magistrate who conducted a
iuidicium populi acted in a jutdicial capacity, and not as an accuser.3 Further-
more, consuls had no part in iudicia populi, which were, at least after the lex
Hortensia, under the exclusive jurisdiction of the tribunes.34 The power of a
tribune (acting in a judicial capacity) to summon the accused under a procedure
which was already obsolete35 was no possible precedent36 for a magistrate's
right of accusation in a iudicium publicum or in the Senate.37 Tacitus' criticism
of Tiberius' ruling is in point: proprium id Tiberio fuit scelera nuper reperta
priscis verbis obtegere.38 Tiberius' second point was: nec infringendum consulis
ius, cuius vigiliis niteretur ne quod res publica detrimentum caperet.39 The
reference is to the so-called senatus consultum ultimum.40 As this decree spe-
cifically involved the suspension of regular criminal procedure,41 it could have
no possible bearing on the question.42 Tiberius again clouded the issue, and
Tacitus' criticism is again in point. Finally, 23 B.C. as the date of Caepio's
trial would mean that Tiberius omitted a most apposite argument from his
ruling. If he had been authorised by divus Augustus to do precisely what he
proposed permitting to Varro, this would surely have been a more persuasive
argument than prisca verba.
It is relevant to consider two cases undertaken by Pliny the Younger
during his term of office as praefectus aerarii Saturni. Pliny at first refused to

32 Mommsen, Strafr. i63f., 324. Berger c.C. 434.

33 Mommsen, Strafr. 35ff., 40, 135ff., i67, 457, 473ff.; Staatsr. I. 137f., 150, i62ff.;
3. I. 354. cf. Girard, Histoire de lOrganisation Judiciaire des Romains (I9OI) iioff.
Strachan-Davidson, Problems of the Roman Criminal Law (I912) I. 133ff. Schulz, Prin-
ciples of Roman Law (I936) I73. Jolowicz, Hist. Intr. to the Study of Roman Law (I954)
324ff. Brecht's view (SZ [RA] LXXII ['9391 26iff.) that the magistrate functioned as
an accuser has not attracted support.
34 Mommsen, Strafr. I56 n. 2. Greenidge Oc. 329. Girard O.C. 239. Strachan-Davidson
oc. I. I07. 35 Mommsen, Strafr. 172ff.
36 The praetor secured the attendance of the accused at a iudicium publiculn
Cic., in Vat. I4. 33. Ascon., in Cornelian. p. 59. It cannot be suggested that di
was loosely used for the issue of the edict. Cicero (de domo 29. 77) draws a clear
between the initiation of a iudicium publicun and of a iudicium populi: qui
quis diem dixit? cf. Mommsen, Strafr. 387 n. 3, 388 n. 2.
37 The rules governing iudicia publica applied to trials in the Senate. Mommsen, Staatsr.
2. I. I2Iff. The extension of these rules to the Senate may have been accomplished by a
specific lex. Jones, "Imperial and Senatorial Jurisdiction in the Early Principate,"
Historia III ('954/5) 48i ff. 38 Ann. 4. I9. 3. 39 ib. 4. 19. 2.
40 Cic., in Cat. I. 2. 4. Sall., Orat. Phil. 22.
41 Greenidge oc. 397ff. Merrill, Class. Phil. XIII (I9I8) 34ff.
42 Unless Tiberius meant that any doubt about the consul's title could be resolved
giving him plenary powers,

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 Tiberius and Murena 425

represent the provincials in their actio de repetundis against Marius Priscus,

but afterwards reconsidered his decision at the express request of the Senate.
He made it clear that he had done so only in deference to the Senate, and also
found it necessary to submit his decision to Trajan for approval.43 He similarly
hesitated when the provincials asked the Senate to appoint him as their
counsel in the actio de repetundis against Caecilius Classicus. His colleagues in
the prefecture having supported his request to be excused because of the
obligations of his office, he finally accepted the brief when a decree of the
Senate authorised him to do so. And even after the trial he was still uneasy,
for he sought the approval of Caecilius Macrinus.44
The precise significance of Pliny's attitude depends on how we understand
his part in these trials. Roman Criminal Law, while allowing accused persons
a generous measure of representation by counsel, denied accusers a similar
right entirely and obliged them to conduct their prosecutions in person.45
The only exception to this rule was the quasi-civil actio de repetundis, probably
as a corollary to the restriction of the right of accusation in this case to the
injured person or persons.46 The question then is whether Pliny merely acted
as counsel on behalf of clients when he appeared in an extortion trial, which
would not constitute the bringing of an accusation (although it would be
relevant on the question of forensic activity in general47); or whether he was
so identified with his clients' cause as to fall under the category of an accuser.
There is evidence on both sides of the line. Pliny had nothing to do with the
preliminary steps taken by the accusers,48 and at the trial he acted throughout
on their instructions.49 The difficulty lies in his description of his activity, for
although he sometimes speaks of it as a representative function,50 he also
describes it as that of an accuser.5' Cicero seems to have recognised a clear
distinction, although a very close association, between the provincials and their
counsel: the latter was actor or cognitor rather than accusator.52 And the lex de
repetundis gave counsel his usual appellation, patronus.53 It is safer to assume
that in strict law counsel was not identified with his client in this case, any more
than when he defended an accused or acted for a party to a civil suit. But the
evidence suggests that Pliny knew an express legal prescription against
magisterial accusations, for only this assumption explains why he refused to
act without a decree of the Senate,54 and why he was so anxious to secure the
approval of Trajan and Macrinus.55 He was uneasily aware that men were

43Pliny, Ep. Io. 3A. cf. ib. 6. 29. 7, 9. 44 ib. 3. 4. 1-4.

45 Mommsen, Strafr. 375f. Greenidge o.c. 474f.
46 Mommsen O.C. 367. Greenidge o.c. 475. 47 See below.
48 Pliny, Ep. 2. II. 2, 3. 4. 2, 3. 9. 6f., IO. 3A. 2. 49 ib. 3. 9. 2I, 35.
50 ib. 6. 29. 8: adfui Baeticis ... adfui ... de Caecilio Classico.
51 ib. 6. 29. 9: accusavi Marium Priscum. cf. ib. 3. 4. 8.
52 Cic., Div. in Caec. I6. 54, 4. II, 5. I9; in Very. I. I. 2. 53 lex A cilia 9-I2.
54 Ep. IO. 3A. 2; 3. 4. 3, 4, 5. 55 ib. IO. 3A. 3; 3.4. I, 2,

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 426 R. A. BAUMAN

criticising the doing in a representat

be done personally, for there can be n
appeal to Macrinus: quamvis et amici q
factum meurm comprobasse videantur
It has been shown that the principle denying magistrates the right of
accusation was known as a custom in the late Republic, had possibly hardened
into a legal rule in the early Principate, and undoubtedly had the full force of
law in the early third century A.D.57 In order to take the matter further an
attempt should be made to identify the statutory source of the rule attested
by Macer.58 Macer based his treatise de publicis iudiciis on the lex Julia
iudiciorum publicorum, a general judiciary law which regulated procedure in the
iudicia publica.59As this was the definitive lex on the subject, the provision with
which we are concerned originated either in the lex Julia itself or in a senatus
consulturm or imperial rescript extending or interpreting the lex. There is no
internal evidence, as Macer does not cite a statutory or any other source for the
rule which he attests. But there is ample evidence for his wide knowledge of the
criminal legislation of the late Republic and early Principate. He had access
to the entire corpus of statutes regulating individual crimes,6 and also shows
close familiarity with senatus consulta and imperial rescripts.6' He not only
saw the lex Julia iudiciorum publicorum, but compared its provisions with
those of all other leges and senatus consulta dealing with iudicia publica.62
An important demonstration can be based on an excerpt from Venuleius
Saturninus, who lived under Hadrian and was by far the earliest of the authors
of the known works de iudiciis publicis.63 Venuleius discusses the rules pro-
hibiting accusations against certain persons, including magistrates." These
rules are therefore the counterpart of those attested by Macer, and it is
reasonable to assume that the two sets of rules were introduced by the same
legislation.65 Venuleius, like Macer, begins with a statement of the general rule,

56 ib. 3. 4. I. 57 For Macer's dates see J6rs, RE I. 568. 58 Above.

59 On this lex see Wlassak, Rimische Processgesetze I (i888) I68 ff. Girard, "Les Leges
Iuliae Iudiciorum," SZ (RA) XXXIV (I9I3) 295ff. Arangio-Ruiz, "La Legislazione,"
Augustus (I938) 105ff. McFayden, o.c. 2i9ff.
60Dig. 48. I. i.cf. 47. I2. 8; 47. 3.2; 48-5. 25, 33; 48. 1I. 3,5, 7; 47. I2.8; 48. 2. III.
61 ib. 48. I0. I0; 48. I6. 5; I. I8. I4; 29. 2. 6I; 47. 10. 40; 49. I. 4. I; 49. 13. I pY;
49- I6- I3- 6; 49. I6. I2. I. 62 ib. 47. I5. 3. I, 3.
63 Schulz, Hist. Rom. Leg. Science (I946) 256. Jolowicz o.c. 399.
65 cf. Girard o.c. 304 n. 1; 3I0 n. I; 352. Greenidge, Jurid. Re
Perhaps even more than general probability can be inferred from the full terms of the
rule stated by Macer: prohibentur accusare ... alii propter magistratum potestatemve, in
qua agentes sine fraude in ius evocari non possunt (Dig. 48. 2. 8). If in ius evocaye was
another equivalent of postulaye (cf. n. 30 above), Macer here expressly correlates accusations
by and against magistrates. cf. lex Acilia 8: dic., cos., ... nei in ious educitor. Sen.
Rhet., Contr. 3 pr. I9: eum in ius ad praetoyem voco et ... postulavi. Ps. Ascon. p. I28:
cum . . . in isus vocatus esset, dicebat accusator apud praetorem reo.

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 Tiberius and Murena 427

i.e. the categories (quos) accusare non licet.66 On this aspect Venuleius, like
Macer, does not cite a statutory source. Nor does he cite any other source,
except that for the category legatus imperatoris he quotes an opinion which
Lentulus expressed in 3I A.D .67 This category was therefore not in the lex itself.
It remains to identify the source of the remaining categories. This task is
assisted by the fact that the excerpt does not eild with the statement of the
general rule, for where Macer has come under Tribonian's scissors, Venuleius
continues with a discussion of special cases.68 This part of the excerpt is
unusually well documented,69 including a citation of the lex Julia iudiciorum
publicorum.70 Indeed Venuleius himself asserts that he consulted every lex
pertaining to iudicia Publica.7' And the citation of Lentulus in the general
statement suggests that Venuleius paid no less attention to detail in that part
of his discussion. It is therefore suggested that the apparent absence of source
citation in the general statement is due to the truncation by the compilers of
an introductory lege Julia iudiciorum publicorum cavetur. The possibility that
Venuleius' source for the rule in regard to magistrates in particular was the
lex Julia is strengthened by consideration of the rule prohibiting accusations
against anyone qui rei publicae causa afuerit. This rule, which is clearly an
extension of the rule concerning actual magistrates, is stated by Venuleius72
in language which is strikingly similar to the known ipsissima verba of the
Augustan lex Julia de adulteriis coercendis.Y3 Furthermore, the categories in
Venuleius' general statement whose source remains to be identified are:
(i) provincial legates; and (ii) magistrates and those absent on public service.74
Unless the unlikely assumption is made that both these categories were
introduced by extensive interpretation, at least one of them would have
originated in the lex Julia. This must surely be the category of magistrates,
for if either category was overlooked by the original legislator it would have
been the less obvious one of provincial legates. Finally it is suggested on gene-
ral grounds that accusations by or against magistrates would not readily have
been omitted from the original lex.
It remains to date the lex Julia iudiciorum publicorum. This law was either
Caesarian,75 or Augustan,76 or both.77 For the present purpose any of these
818 Dig. 48. 2. 12 pY. fi7 ib.: Sulla et Trione consulibus. cf. Ehr. & Jo., Docs. 42.
68 Dig. 48. 2. 12. 1, 2, 3, 4.
69 ib. 48. 2. 12. 4: leges Julia de vi privata, Pompeia parricidii, Cornelia iniuriarum.
ib. 48. 2. 12. I: epistula divi Hadriani. ib. 48. 2. I2. 3: senatus consultum of 20 A.D.
70 ib. 48. 2. I2. 2. 71 ib. 48. 2. 12. 4.
72 ib. 48. 2. 12 pr: magistratum populi Romani eumve, qui rei publicae causa afue
dum non detractandae legis causa abest.
73 ib. 48. 5. i6. i: legis Iuliae de adulteriis capite septimo ita cavetur: 'ne quis inter reos
referat eum, qui tum sine detrectatione rei publicae causa aberit'. 74 ib. 48. 2. I2 pr.
75 Mommsen, Strafr. 49, I28ff., igi, 655ff. cf. Jones o.c. 487.
76 Wlassak o.c. 173, i8off., I98. Volkmann O.C. 214f. Arangio-Ruiz O.C. I05ff.
77 Girard 0.C. 32I n. I, 344f. McFayden o.c. 222f.

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 428 R. A. BAUMAN

possibilities will do, because the suggestion is that 27 B.C. is the date of the
Augustan lex.78 The first piece of evidence is supplied by Cassiodorus, who
attests that in 27 B.C. Caesar leges protulit, iudices ordinavit. Velleius, speaking
of the period directly after Augustus' return to Rome, says: Finita ... bella
civilia ... restituta vis legibus, iudiciis auctoritas.79 And Asconius says:
Defenderunt Scaurum sex patroni, cum ad id tempus raro quisquam plnribus
quam quattuor uteretur: at post bella civilia ante legem Inliam ad duodenos
patronos est perventum.80 However vague the references of Cassiodorus and
Velleius to the judiciary arrangements may be, Asconius specifically attests a
lex Julia, which in his context (and therefore in the contexts of Cassiodorus
and Velleius) can only be a lex Julia iudiciorum publicorum. It is suggested
that a passage in Suetonius,8' on which reliance has been placed on the general
question of Caesarian v. Augustan authorship,82 in fact goes further, for it
assigns the lex to the same period as that attested by Asconius and the rest.
Suetonius includes his fairly full account of the judiciary law in a chapter
which opens with a reference to the evils which Augustus set about remedying:
Pleraque pessimi exempli in perniciem publicam aut ex consuetudine licentiaque
bellorutm civilium duraverant aut per pacem etiam exstiterant.83 Despite per pacem
etiam, it is significant that Suetonius' source discussed the judiciary law in the
context of the aftermath of the Civil War. Something may also be made of the
fact that when Suetonius proceeds to enumerate the judiciary measures which
were introduced to meet these evils, he begins with the deletion from the
criminal trial-lists of diuturnorum reorum nomina,84 which suggests a back-log
of cases due to the war. As against all this there is the evidence of Dio,85 who
attests the following under I7 B.C.: (i) a regulation prohibiting counsel from
accepting fees; (ii) a rule forbidding indices to enter anyone's house during
their year of service. As to the former, there is nothing wrong with Dio's date
or his facts. The error lies in the assumption that Dio here attests a lex. The
ban on the acceptance of fees by counsel originated in the lex Cincia of
204 B.c.88 Thereafter the principle was repeatedly restated,87 but the form of
the restatements makes it clear that the lex Cincia continued to be the only
lex on the subject: The Claudian restatement was by senatus consultum which
specifically referred to the lex Cincia;18 the two Neronian restatements were
by the Senate, and the second decree mentioned the lex;89 and Trajan's re-

78 The date generally accepted is I 7 B.C. Wlassak O.c. I82 f., 185sff. Girard OC. 35T ff.
Volkmann I.c. Arangio-Ruiz i.c.
79 2. 89. 3. 80 in Scaur. ed. Stangl p. 23. 81 Aug. 32. 2f.
82 Wlassak o.c. I74f. Girard oc. 319ff., 348, 350. 83 Aug. 32. I.
84 ib. 32. 2. 85 54. I8. 2f. 86 Mommsen, Strafr. 705f.
87 Under Augustus: Dio 54. I8. 2. Under Claudius: Tac., Ann. II. 5. 3. Un
ib. I3. 5. I, 42. 2. Under Trajan: Pliny, Ep. 5. 9. 3f.; 5. 13. 6ff.
88 Tac., Ann. II. 5. 3: consurgunt patres legernque Cinciam flagitant.
89 ib. I3. 5. I, 42. 2.

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 Tiberius and Murena 429

statement was by senatus consultum and imperial decree.90 There cannot be

any serious doubt that Dio9 attests an Augustan restatement, probably by
the Senate. This leaves the ban on visits by jurors. It has been argued92 that
this rule must have been included in the lex Julia, because its counterpart,
visits to jurors, is known to have been in the lex. The latter proposition is
supposed to follow from an assumed provision in the judiciary law, whereby
visitors to a juror were deemed to have contravened the lex Julia ambitus: per
legem Iuliam iudiciariam in legem ambitus committit.93 The argument therefore is
that as the lex ambitus is known to have been introduced in i8 B.C., the judiciary
law must have been passed subsequently, i.e. in 17 B.C., which appears to
agree with Dio's dating. This is at best a slender peg for an entire judiciary
law, and on general grounds this isolated rule does not balance the several
provisions to which Suetonius94 assigns an earlier date. But the matter can be
taken even further. Dio95 discusses the lex ambitus under I8 B.C. and then,
turning to I7 B.C., proceeds to mention in one breath96 a ban on fees which was
demonstrably senatorial, and a rule which had some bearing on ambitus. It
is not clear why either Dio or his source found this rule so typical of the
judiciary law as to mention it alone, and it is permissible to suppose that a
senatus consultum lurks behind this rule as well. The unusual per legem IJuliam
iudiciariam in relation to the counterpart rule, instead of the typical lege
lulia iudiciorsum publicorum cavetur,97 suggests a decree of the Senate extending
a provision of the pre-i8 B.C. judiciary law to the lex ambituts, in respect of
visits both by and to jurors.
The postulated custom which frowned on the undertaking of advocacy
by magistrates is attested by a ruling of Tiberius, who in 22 A.D. refused
to let the consuls appear as advocates, saying that if he were consul he
would not have accepted briefs.98 The custom is also attested by the prac-
tice followed by Pliny the Younger whenever he held office. During his
tribunate Pliny abstained from court appearances entirely,99 and advised
Pompeius Falco to do the same if he regarded the tribunate as potestatem
sacrosanctam rather than as inanem umbram et sine honore nomen.100 It has
been asserted that Pliny's abstention from advocacy was merely due to the
special nature of the tribunate,101 but more than this can be extracted

90 Pliny, Ep. 5.9.4; 5. 13- 8. 91 54. i8. 2. 92 Girard o.c. 304 and n. I; 3IO n. I; 352.
93 Dig. 48. 14. I. 4. (Modestinus, de poenis II).
94 Aug. 32. 2f. 95 54. i6. I. 96 54. 18. 2f.
97 The typical form, where one lex applied the penalty of another, was: lege Pompeia
de parricidiis cavetur, ut, si quis ... occiderit ... poena ea teneatuy, quae est legis Corneliae
de sicariis (Dig. 48. 9. I). The lex ambitus was obsolete when Modestinus jotted down his
few cursory remarks about it (Dig. 48. 14. i pr), and he would not have been much con-
cerned to pinpoint the precise source of the rule in legem ambitus committit.
98 Dio 57. 21. I. 99 Pliny, Ep. I. 23. 2: abstinui causis agendis. 100 ib. I. 23. I.
101 Sherwin-White, JRS 47 (I957) I27 and n. 8.

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 430 R. A. BAUMAN

from his letter to Falco. It is true that he did not wish to expose his
office to the hurly-burly of the courts,'02 and also wanted to avoid an
invidious appeal to his intercession by his own client or even by the opposite
party.103 Pliny is here concerned with the tribunate and advances reasons
peculiar to it, but non constat that he would not have expressed a similar view,
based on appropriate reasons, if consulted on another office.'04 The crisp
question which does not seem to have been asked is: Why did Falco find it
necessary to consult Pliny at all? There are only three possible answers:
(i) because no principle regarding magisterial advocacy was known; (ii) because
a principle was known, but in a form restricted to the tribunate; (iii) because
a principle was known, but in a form which either excluded the tribunate or
did not specifically include it. The first possibility can safely be discarded, for
such an obvious aspect of law and magistracy would scarcely have remained
unformulated through the centuries, awaiting a chance enquiry by Pompeius
Falco. The second rules itself out, for an exclusively tribunician regulation
would have wider and earlier attestation, would have been known to Falco, and
would in any event have been cited by Pliny. It is probable that Falco had
heard of a general principle applicable to magistrates, but was uncertain of its
application to the tribunate. Pliny perhaps gives a hint as to the nature of
the uncertainty. Falco, knowing of a principle applicable to honores, might
have wondered whether the diluted tribunate of his day was properly an
honos. Which gives added point to sine honore nomen.'05
Pliny prefaces his explanation of his decision to appear against Marius
Priscus with the following observation: Ut frimum me, domine, indulgentia
vestra promovit ad praefecturam aerarii Saturni, omnibus advocationibus,
quibus alioqui numquam eram promiscue functus, renuntiavi, ut toto animo
delegato mihi officio vacarem.106 That this already adds his prefecture to his
tribunate is self-evident, and it is to be hoped that no more will be heard of
the "uniqueness" of the tribunician precedent. But is the passage strong
enough to support a general practice on Pliny's part? The answer depends on
quibus alioqui numquam eram Promiscue functus. On Otto's interpretation'07
promiscue implies "mixed with, mingled with" and alioqui refers to Pliny's
previous offices. This results in an assertion by Pliny that he invariably
renounced advocacy during previous offices. But it has been argued'08 that

102 Ep. I. 23. 2. It is strange that the tribunate, of all offices, should have been seen in
this light. 103 ib. I. 23. 3.
104 He might, for example, have relied on: maiestatem minuere e
amplitudine aut potestate ... eorum, quibus populus potestatem dedit, al
de inv. 2. I7. 53.

105 Ep. I. 23. I. cf. Val. Max. 2. IO pr: quam recte quis dixerit longum et beatum honorem
esse sine honore. 106 Ep. IO. 3A. i.
107 Phil. Woch. XLVI (1926) 732f. ib. XLVII (I927) 5IIf.
108 Baehrens, Phil. Woch. XLVII (1927) I7II. Sherwin-White (o.c. 127 n

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 Tiberius and Murena 43I

promiscue cannot support the postulated meaning and should be taken as

"indiscriminately." Pliny is therefore supposed to have said that his present
renunciation is no great matter, for he has never been so eager for briefs as to
accept them indiscriminately. Whatever case Baehrens may have made out
on a word count,109 one thing is clear. It would have been rather impolitic for
Pliny to have said to Trajan, in effect: "I renounced because of my regard for
the office which you entrusted to me. But do not account it a great sacrifice,
for it has never mattered much to me whether I had briefs or not." The
evidence favours the observance of the suggested principle by Pliny as a
general practice. It is true that he failed to observe this practice when he
appeared against Priscus and Classicus,"0 but he at least took the precaution
of obtaining a senatus consultum in both cases, was nevertheless uneasy at
what he had done - and resolved not to do it again.'1'
It is asserted with some confidence that an express legal rule denied magis-
trates in office a right of accusation in 23 B.C. This date must therefore be
discarded for the trial of Caepio. As for Murena, it is clear that he was not
tried jointly with Caepio, for joint trials were expressly forbidden by the
lex Julia: lege Iulia iudiciorum publicorum cavetur, ne eodem tempore de duobus
reis quis quereretur nisi suarum iniuriarum causa.12 This explains why Sue-
tonius"13 attests the separate trial of Caepio. But two facts exclude 23 B.C. in
Murena's case as well. Firstly, it was probably a recognised custom that a
magistrate should not undertake advocacy. Dio found a good deal of material
about Murena's defence of Primus in his source. The report, which was at
pains to show how Murena had offended Augustus,'14 would not have omitted
a consul's breach of custom. Secondly, the trial of the accomplice Murena
would not have preceded that of his principal.115

University of Sydney R. A. BAUMAN

looks the fact that promiscue is crucial. If Otto is right about this he must also be right
about alioqui.
109 Which is supposed to give him a win on points, although it is not clear why mares et
feminae promiscue in fluminibus perluuntur (Caes., BG 6. 2I) is not a comment on mixed
bathing.
110 Whether he failed again when he defended Corellia in a civil suit and Varenus in a
criminal, while holding office as Curator Alvei Tiberis (Sherwin-White o.c. 127 and n. ii),
cannot be known until there is some measure of agreement on the dates of the trials and
the curatorship. See Hanslik, RE 8A. I. 376. Groag, RE 4. I. 1226. Schuster RE 2I. I.440ff.
1"' Ep 3. 4. 8: in summa computabam, si munere hoc iam tertio fungerer, faciliorem mihi
excusationem fore, si quis incidisset, quem non deberem accusare. nam cum est omnium
officiorum finis aliquis, tum optime libertate venia obsequio praeparatur.
112 Venuleius Saturninus, de iudiciis publicis II (Dig. 48. 2. 12. 2.). 113 Tib. 8.
114 Dio 54. 3. 3: &?oc 're ?5 Oc76v o'x 'TuL '&LO &ropp(40VTO xml iruOo6vou ,,tE 8&
evToC5O0 7rOLeZq xOaL TEq aC eX0>gG?Y;
115 Although the argument here presented is independent of the epigraphical crux,

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432 R. A. B3AUMAN, Tiberius and Murena

a note on this question may be apposite. Removal from office, followed by a trial, may be
sufficiently attested (Atkinson o.c. 463 n. i IO; Stockton o. c. 37f.), but the trial of a magistrate
in office was prohibited by the lex Julia iudiciorum publicorum (Dig. 48. 2. 12 pr). (The
condemnation of the consul Hortensius in io8 B.C. not only depends on the restoration
of a mutilated inscription - Stockton o.c. 37 n. 63 - but was in any event before the lex
Julia). The removal and subsequent trial of Terentius Varro Murena would therefore not
have been recorded as in mag. damn. est. And for Augustus to have hoped that the innoc-
uous in mag. mort. would divert undue attention from the conspiracy (Stockton o.c. 25 f.)
is surely unlikely if a consul was implicated. (If this was Augustus' design it failed utterly,

for the trials were the talk of the town - Dio 54. 3. 5.) If we insist that disaster overlook
the consul, magistratu motus (Hanslik o.c. 283 f.) will do. But why must a consular catas-
trophe be assumed, particularly one which the literary sources have unanimously over-
looked? Why did he not simply die of natural causes, as Mommsen realised long ago?

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