Published online by Cambridge University Press: 19 January 2015
Erich Gruen long ago put forward the view that, in the twenty-five years or so before the introduction of the lex Calpurnia, the senate saw that it was losing control of foreign policy and that tribunes were playing a larger role in stirring up popular outrage at the conduct of provincial governors. Therefore, he claims, the senate felt that something had to be done. Gruen and others also stress that the catalyst for the introduction of the lex Calpurnia arose from atrocities committed by Sulpicius Galba in 150. The first part of this article examines a whole series of atrocities over those twenty-five years to test how accurate these two views are, and concludes that the senate did play a large part in attempting to curb the excesses of some governors and that all the atrocities contributed to the climate of opinion which led to the establishment of the Calpumian court. The second part describes the scope, limitations and implementation of the law, leading to the conclusion that it was not really of benefit to the socii and peregrini, since actions could be brought only by Roman citizens or by patroni acting on their behalf.
The conference in honour of Erich Gruen at The Australian National University in Canberra in September 2011 provided an opportunity not only to honour the work and influence of this distinguished international scholar, but also to assess the impact which his major publications have had. The two of us took the opportunity to examine the views put forward in the opening chapter of his first book. If we subject those views to critical examination, we do so in the consciousness that he would be the first to say that was only fair, since, if the positions were reversed, he would do exactly the same – and when the original paper was delivered, he was there to defend himself stoutly, as he did.
Hereafter RPCC. The opening chapter is titled ‘Politics in the Age of Scipio Aemilianus’.
2 E.g. Richardson, J.S., ‘The Purpose of the Lex Calpurnia de repetundis’, JRS 77 (1987) 2Google Scholar. The first part of the present article, describing the atrocities of Roman governors, was written largely by Bruce Marshall, and the second part, on the scope and limitations of the lex Calpurnia, by Ian Betts.
3 Gruen, RPCC 11 and 14 comments on the senate's concern about loss of control of foreign policy: ‘Senators with foresight may already have recognised the ominous signs [referring to the imposition of a fine on the praetor C. Lucretius by the tribal assembly in 170]. Tribunes were playing a larger role in mobilising popular outrage. The unsystematic and haphazard nature of treating offenses against the provincials might eventually threaten senatorial control of external affairs. Now senatorial control of provincial governors and of external policy generally was more clearly in jeopardy than ever before … The law of Calpurnius Piso, by organising a permanent quaestio staffed by members of the senate to hear all future extortion cases,… obviously aimed at resolving the problem in the interests of that body.’
4 Liv. 42.8.3. On the relationship between deditio and fides on both sides, see now Burton, P.J., Friendship and Empire: Roman Diplomacy and Imperialism in the Middle Roman Republic (353-146 BC) (Cambridge 2011) 114-9CrossRefGoogle Scholar; he lists some of the extensive bibliography to date in ‘Ancient International Law, the Aetolian League and the Ritual of Surrender during the Roman Republic: A Constructivist View’, International History Review 31.2 (2009) 237 n. 1CrossRefGoogle Scholar.
5 To judge from the requirement imposed by the senate that Popillius personally return the purchase price to those who had bought Statellates (pretio emptoribus reddito): Liv. 42.8.7.
6 The standard formula between dediti and the conquering general is found in Liv. 1.38.1-2: deditisne vos populumque Collatinum, urbetn, agros, aquam, terminos, delubro, utensilia, divina humanaque omnia, in meam populique Romani dicionem? (‘Do you surrender yourselves and the people of Collatia, together with your town, lands, water, boundary-stones, shrines, utensils and everything else sacred and profane to my authority and that of the Roman people?’) Cf. Liv. 7.31.3-4; Polyb. 36.4.2. The continuing use of the formula is confirmed by the discovery of a tablet detailing the deditio of a Spanish people in 104: see Nörr, D., Aspekte des römisches Völkerrechts: Die Bronztafel von Alcantara (Munich 1989)Google Scholar; Burton, , ‘Ancient International Law’ (n. 4) 242Google Scholar; Eckstein, A.M., ‘“Ancient International Law”, the Aetolian League, and the Ritual of Surrender during the Roman Republic: A Realist View’, International History Review 31.2 (2009) 253 and 260-1CrossRefGoogle Scholar.
7 This is the conclusion of, e.g., Gruen, , ‘Greek πύστις and Roman fides’, Athenaeum 60 (1982) 53-4Google Scholar, and Burton, Friendship and Empire (n. 4) 116 with n. 86.
8 See e.g. Cic, . Off. 1.35Google Scholar: cum Us, quos vi deviceris consulendum est, turn ii, qui armispositis ad imperatorum fidem confugient, quamvis murum aries perçussent, recipiendi. in quo tantopere apud nostros iustitia eulta est, ut ii, qui civitates aut nationes devictas bello in fidem recepissent, earum patroni essent more maiorum. (‘Not only must we show consideration for those whom we have conquered by force, but we must also receive those who have laid down their arms and fled to the good faith of our commanders, even though their battering rams have struck against our walls. In this a sense of justice has been so carefully observed that those who have conquered states or peoples in war and received them into their trust become their patrons in the manner of our ancestors.’)
9 Liv. 42.21.2-3: contra ius ac fas. There is a moral tone in Livy's account of the senate's reaction to Popillius’ cruelty, with reference to the fides which his actions had jeopardised.
10 He was shielded from senatorial scrutiny by the incoming consuls for 172, one of whom was his brother Gaius. They had both been assigned to Liguria, but had not yet set out for their province because they would not concede to the senate and refer the matter of Popillius to its deliberation, while the senate determined that no other business would have precedence (Liv. 42.21.1-3).
11 Liv. 42.22.7-8. C. Licinius Crassus was assisted in this process by another praetor, Cn. Sicinius. Livy comments that the investigation was evaded by a subterfuge (rogatio … arte fallaci elusa est).
12 Liv. 43.5.1-2. The delegation was from Cincibilus, king of the Gauls, and led by the king's brother. It is likely that Cassius personally profited from the sale.
13 A new colony founded only recently in 181 in agrum Gallorum (Liv. 40.34.2).
14 Cassius clearly – and wrongfully – requisitioned the grain against the wishes of the Aquileians, as they said they were fearful of him Their disclosure about Cassius to the senate was timorous: ‘they knew but dared assert nothing more than that thirty days’ grain had been issued to the soldiery.’
15 Liv. 43.1.12: metus de consule atque exercitu distulit eo tempore muniendae Aquileiae curam.
16 Cassius' appointment was most probably under the consul Aulus Hostilius in Macedonia. He would have been appointed by one of the higher magistrates, as the tribuni militum and praetors for 170 were to be chosen by the consuls because of the impending Macedonian war, and not by vote of the people (Liv. 42.31.5).
17 Liv. 42.63.10: in primo tumultu captae urbis seniores impubesque quos casus obvios obtulit passim caesi… armati… cum spei nihil superesset, deditione facta sub corona venerum.
18 Livy makes clear that Lucretius profited personally from the ransacking. In 170 he let a contract for diverting water from a nearby river to his estates in Antium; the work was financed from the spoils (ex manubiis) from Haliartus. He also decorated the temple of Aesculapius with paintings which were part of the praeda (Liv. 43.4.6-7).
19 He was involved in his estates at Annum: see n. 18.
20 Liv, . Per. 43Google Scholar: P. Licinius Crassus pro cos. complures in Graecia urbes expugnavit et crudeliter corripuit: ob id captivi, qui ab eo sub corona venierant, ex s.c. postea restituii sunt. The perioche says that these acts were committed by Crassus as proconsul and therefore in 170; the main narrative (43.4.5) attributes the acts of cruelty to Crassus as consul, which implies that they were committed in 171. The chronology of Livy's narrative is to be preferred as more reliable.
The renewal of Crassus’ Imperium, like that of Popillius in 172, is perplexing. These were decisions of the senate, although it had been severely critical of both of them.
21 The reason for this atrocity was that the praetor had demanded a hundred thousand denarii and fifty thousand pecks of wheat to be handed over. The people of Abdera sought a stay during which they might send envoys (presumably to object) to the consul Hostilius and to Rome. On reaching the consul the envoys heard the terrible news of the massacres and enslavement (Liv. 43.4.8-10). These provisions were apparently required of the allies for the war against Perseus.
22 The claim that a war was unjust was also made in Popillius' case in relation certainly to the second war on the Statellates.
23 Liv. 43.4.13 and Per. 43. There are gaps in Liv. 42-43 which would have covered these events.
24 Liv. 43.2.1-2: Hispaniae deinde utriusque legati aliquotpopulorum in senatum introducti. ii de magistratuum Romanorum avaritia superbiaque conquesti, nixi genibus ab senātu petierunt ne se sodos foedius spoliari vexarique quam Höstes patiantur. (‘Envoys of several peoples from each of the Spains were next presented to the senate. After complaining of the greed and arrogance of Roman magistrates, on bended knee they begged the senate not to permit them, their allies, to be more wretchedly despoiled and harrassed than their enemies.’)
25 For Cato's role, see Astin, A.E., Cato the Censor (Oxford 1978) 110-11Google Scholar. Cato and Nasica did their job so well that Furius withdrew into exile before hearing the verdict.
26 Gruen, , RPCC 10Google Scholar: “The existence of recuperatores implies a civil proceeding … The use of civil procedure to handle what was basically a criminal offence brought satisfaction neither to Rome nor to the socii.’ That two of the defendants went off into voluntary exile might suggest (a) that they were aware of their guilt and (b) that there was more than a civil offence involved.
27 Plutarch says that the troops received only eleven drachmas (Aem. Pauli. 29.3), a figure perhaps bome out by the troops’ opposition, led by Ser. Sulpicius Galba, one of the military tribunes, to the award of a triumph to Paullus on their return because of the claimed stinginess of the rewards he handed out to them (Liv. 43.35.9).
Paullus gave his troops additional amounts at his triumph: 100 denarii per infantryman, 200 per centurion and 400 per cavalryman (Liv. 45.40.5), but said they would have received double those amounts if they had supported the vote for his triumph more enthusiastically. Despite the grumblings, the necessary proposal granting it was eventually passed.
28 Polyb. 30.15; Liv. 45.34.2; Plut, . Aem. Pauli. 29.5, 30.1Google Scholar. On Paullus' unease about carrying out these instructions, see Scullard, H.H., Roman Politics 220-150 B.C., 2nd edn (Oxford 1973) 213Google Scholar; against, Badian, E., Foreign Clientelae (264-70 BC) (Oxford 1958) 98 with n. 2Google Scholar.
29 Plin, . NH 33.56Google Scholar. For other ancient references to the amounts paid into the treasury by Paullus and the abolition of the tributum, see Scullard, Roman Politics (n. 28) 218 n. 2.
30 Cicero makes clear that the bill of Scribonius was for the establishment of a quaestio and that Scribonius influenced the assembly with his oratory: quod is, L. Scribonio quaestionem in eum ferente, populi misericordiam concitasset (de Orat. 1.227). Gruen, , RPCC 33-4Google Scholar holds the view the Galba's actions led directly to the lex Calpurnia: ‘We have had reason to note the crimes of Sulpicius Galba that directly precipitated the passage of the lex Calpurnia.’ Cf. ibid. 12.
31 App, . Hisp. 59–60Google Scholar.
32 On Cato see Cic, . Mur. 59Google Scholar. Cato had had a part in the earlier process in 171 involving patroni and recuperatores: see above, n. 25. Burton, , Friendship and Empire (n. 4) 325Google Scholar, while admitting this might be interpreted as an example of the realistic view of international relations that normal Machtpolitik was in operation, still believes it was exceptional and the constructivist view obtains; cf. id., ‘Ancient International Law’ (n. 4) esp. 249-50. Against, , Eckstein, , ‘Ancient International Law’ (n. 6) esp. 266-7Google Scholar.
33 Val. Max. 8.1.2 describes Galba's histrionics and the role of Cato; cf. Cic, . Mur. 59Google Scholar.
34 Cic, . Brut. 89Google Scholar: cum Lusitanis a Ser. Galba praetore contra interpositam, ut existimabatur, fidem interfectis.
35 E.g. Gruen, , RPCC 12 and 33-4Google Scholar (quoted above, n. 30); Badian, , Roman Imperialism in the Late Republic, 2nd edn (Oxford 1968) 9 and 41Google Scholar; Lintott, A.W., ‘The Leges de Repetundis and Associate Measures under the Republic’, ZSS 98 (1981) 172-6Google Scholar; against, Richardson, ‘The Purpose of the Lex Calpurnia’ (n. 2) 1-2, who sees the Calpurnian law as an inappropriate response to atrocities like those carried out by Galba.
36 See above, n. 10.
37 Astin, , Cato (n. 25) 59Google Scholar, does think his election was delayed because of the taint of scandal.
38 Main sources: Cic, . Brut. 106Google Scholar; Off. 2, 21,75; Verr. 2.3.195, 2.4.56; repetundae law engraved on the Urbino fragments = Riccobono, FIRA 1.7 lines 23, 74 and 81; Schol. Bob. in oratio pro Fiacco, p. 233 St; Tac, . Ann. 15.20Google Scholar.
Some useful modem scholarship includes: Ferguson, W.S., ‘The Lex Calpurnia of 149 BC’, JRS 11 (1921) 86–100Google Scholar; Lintott, , ‘The Leges de Repetundis’ (n. 35) 162–212Google Scholar; Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 1–12Google Scholar; Forsythe, G., “The Political Background of the Lex Calpurnia of 149 BC’, Ancient World (Summer 1988) 17, nos 3-4, 109-19Google Scholar; Lintott, , Judicial Reform and Land Reform in the Roman Republic (Cambridge 1992)Google Scholar; Crawford, M.H.et al., Roman Statutes, 2 vols, Bulletin of the Institute of Classical Studies, Supplement 41 (London. 1996)Google Scholar.
Apart from the mention by Cicero of this being the first lex de repetundis, in the passage from the Brutus (see n. 39), and the references to those prosecuted under the lex Calpurnia and the lex Julia in the lex de repetundis inscribed on the Urbino fragments (hereafter ‘Epigraphic Law’) and a passing reference by Tacitus, there is nothing more in the sources to elucidate the nature or content of the lex Calpurnia de pecuniis repetundis. That this is the limit of our information, see e.g. Crawford, M.H., ‘Origini e sviluppi del sistema provinciale romano’, in Storia di Roma, 2.1 (Torino 1990) 101Google Scholar; Ferrary, J.-L., ‘Patroni et accusateurs dans la procedure de repetundis’, Rev. hist, droit. 76.1 (1998) 30Google Scholar.
39 Cic, . Brut. 106Google Scholar: L. enim Fiso tribunus plebis legem primus de pecuniis repetundis Censorino et Manilio consulibus tulit. (‘For it was L. Piso who as tribune of the people first passed a law to deal with cases of extortion in the consulship of Censorinus and Manilius.’) Other passages of Cicero are listed in n. 38.
40 For the Ciceronian view, see below pp. 53-4. For some modem examples of this view, see Brunt, P.A., The Fall of the Roman Republic (Oxford 1988) 526-30Google Scholar; Lintott, , Judicial Reform and Land Reform (n. 38) 16Google Scholar; Riggsby, A.M., Crime and Community in Ciceronian Rome (Austin 1999) 127-8Google Scholar. Gruen, , RPCC 13–14Google Scholar is more circumspect.
41 [quoi socio no]minisve Latini exterrarumve nationum, quoive in arbitratu dicione potestate amicitiav[e populi Romanei res suae repetundae erat …](‘… any man from among the allies, either of the Roman name or of foreign nations, or within the sovereignty, dominion, power, or friendship of the Roman people, who needs to seek the return of what is his, …’). The passages from and the translation of the Epigraphic Law are those proposed Lintott, Judicial Reform and Land Reform (n. 38). For 1.1 see Lintott, 88-9. In the translations, words in italics are those of the reconstructed text.
42 Cic, . Rab. Post. 8–9Google Scholar provides a good example of this process. We owe this suggestion to one of the journal's anonymous referees.
43 The law of 149 adhered to the old form of action, the legis actio sacramento: the supervising praetor was not to appoint as a judge [… de eo lege Calpu]rnia aut lege Iunia sacramento actum siet …(‘… a man . . stigmatised . . because of an action by a sacramentum under the Calpurnian or Iunian law …’) (Epigraphic Law, 1. 22: Lintott, , Judicial Reform and Land Reform [n. 38] 94-5Google Scholar).
This procedure was available only to Roman citizens: Richardson, “The Purpose of the Lex Calpurnia’ (n. 2) 5-7. Others suggest there might have been ways around it: see below, nn. 51 and 52.
Under the Epigraphic Law the action was undertaken by nominis delatio using the formulary procedure. It is possible that the lex Calpurnia was drawn up at a time of experimentation with the form of an action, transitioning from the old procedure of legis actio sacramento to the newer nominis delatio. See Greenidge, A.H.J., The Legal Procedure of Cicero's Time (New York 1971 repr.) 415-7Google Scholar; Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 4–5 with n. 21Google Scholar; Crawford, , ‘Origini e sviluppi’ (n. 38) 101Google Scholar.
44 Poste, E., Institutes of Roman Law by Gaius, 4th edn (Oxford 1904) 450Google Scholar: ‘It follows that the action for obtaining restitution logically competent to the owner who still remained owner was vindicatio, and not an action based on an obligation to convey property to the plaintiff.’
45 Gaius, Inst. 4.16Google Scholar: … si in rem agebatur, mobilia quidem et moventia, quae modo in ius adferri adducive possent, in iure vindicabantur ad hunc modum … (‘If it was a real action they vindicated before the court moveable and living property which could be carried or led into court in this way…’) Gordon, W.M. and Robinson, O.F., The Institutes of Gaius, trans, with intro. (Duckworth 1988) 413Google Scholar.
46 Gaius, Inst. 4.16Google Scholar. This passage explains that the claimant before the praetor would take hold of the actual property (Gaius' example is a slave) and assert: hunc ego hominem ex iure Quiritium meum esse aio secundum suam causam; sicuti dixi, ecce tibi, vindicatam inposui. (‘I declare that this slave is mine by Quiritiary right in accordance with my case. As I have spoken, see, I have imposed the claim.’) Gordon, and Robinson, , Institutes (n. 45) 413Google Scholar.
47 Gaius, Inst. 4.30Google Scholar: namque ex nimia subtilitate veterum, qui tunc iura condiderunt, eo res perducta est, ut vel qui minimum errasset, litem perderei … (‘For as a result of the excessive subtlety of the old lawyers who built up the legal institutions of those times, matters reached such a pitch that a person who made even the slightest error lost his case.’) Gordon, and Robinson, , Institutes (n. 45) 427Google Scholar.
48 E.g. Lintott, , Judicial Reform and Land Reform (n. 38) 16Google Scholar, writes: ‘I prefer to believe that the leges Calpurnia and Iunia were intended to be of value to the allies.’
49 Lintott, , “The Leges de Repetundis’ (n. 35) 173Google Scholar; Ferrary, , ‘Patroni et accusateurs’ (n. 38) 29–30Google Scholar; Cloud, J.D.. CAH2, chap. 13, 506-8Google Scholar; Riggsby, , Crime and Community (n. 40) 122 and 128Google Scholar (accepting the idea of an actio alieno nomine); against, Richardson, , ‘The Purpose of the Lex Calpurnia’ (n. 2) 5Google Scholar, who notes the view of some scholars that use of the legis actio sacramento, requiring representation by patroni, may have been a deliberate attempt to restrict attacks by peregrini on Roman governors. Cf. also the procedure used in 170 when Spanish envoys were allowed to appoint their own patroni: see above, p. 45.
50 The patronus could not state: hunc ego hominem ex iure quiritium meum esse aio. Moreover, the insistence on compliance with the verba certa may have given rise to the rule cited by Gaius, Inst. 4.82Google Scholar: cum olim, quo tempore legis actiones in usu fuissent, alieno nomine agere non liceret, praeterquam ex certis causis. (‘In earlier times, when actions in the law were in use, litigation in another's name was not allowed, with the exception of certain specific cases.’) Gordon, and Robinson, , Institutes (n. 45) 469Google Scholar. Justinian, (Inst. 4.10)Google Scholar refers to the same rale and gives exceptions, none of which would appear to encompass the situation under discussion: cum olim in usu fuisset alterius nomine agere non posse, nisi pro populo, pro liberiate, pro tutela. (‘The practice in earlier times was not to allow litigation through representatives except on behalf of the people, to assert a man's freedom or as a guardian.’) In the Digest from Ulpian (Dig. 50.17.123) the rale is simply stated: nemo alieno nomine lege agere potest. (‘No one can legally act on behalf of another.’)
51 See Ferrary, , ‘Patroni et accusateurs’ (n. 38) 31 n. 71Google Scholar for a brief bibliography of some who put forward this possibility; against, Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 6Google Scholar.
52 Crawford, , ‘Origini e sviluppi’ (n. 38) 100-1Google Scholar.
53 Gaius, Inst. 4.30Google Scholar: itaque per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones, ejfectumque est, ut per concepta verba, id est per formulas litigaremus. (“Therefore by the Aebutian Law and the two Iulian Laws these actions in the law were swept away and the system of litigating by means of specially drafted phrases, that is, by formulas, was introduced.’) Gordon, and Robinson, , Institutes (n. 45) 427Google Scholar. There is considerable doubt about when the lex Aebutia was passed; it may well have been after 149, while the date of the leges Iuliae is completely unknown: Greenidge, , Legal Procedure (n. 43) 170Google Scholar (perhaps even Augustan?); Jolowicz, H.F. and Nicholas, B., Historical Introduction to the Study of Roman Law, 3rd edn (Cambridge 1972) 232Google Scholar.
54 Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 6Google Scholar; Ferrary, , ‘Patroni et accusateurs’ (n. 38) 31-3Google Scholar.
55 See the end of n. 3 8 above.
56 Lines 58-59 of the Epigraphic Law.
57 It may be that the nobiles were content that any complaints of brutality against senatorial governors be dealt with in the comitia, with the result that not all problems would be determined by the votes of their own order.
58 Line 3: [… sei petet ab eo quei dic(tator), co(n)s(ul), mag(istster) eq(uitum), cens(or), aid(ilis), tr(ibunus) pl(ebei), q(uaestor), IIIvir cap(italis), IIIvir a(greis) d(andeis) a(dsignandeis), tr(ibunus) mi(litum), l(egionibus) IIII primis aliqua earum fuerit, queive filius eorum quoius erit, quious pater senator siet, in annos singolos pequniae quod amp[lius HS…n(ummum)…] [quod ipsei parenteive suo filiove suo, quo]ive ipse{i} paren(te) <s> ve suos filiusve suos heres siet, ablatum captum coactum conciliatum aversumve siet, de ea re petitio nominisque delatio esto … (‘… if he sues a man who has been] been [dictator, consul, praetor, magister equitum, aedile, tribune of the plebs, triumvir capitalis, triumvir for the allocation of lands, tribune of the soldiers] for any of the first four legions, or the son of any of these, whose father is a senator, for a sum of money more than … sestertii in any single year, in respect of property which has been seized, extorted, procured or diverted from himself, his parent, his son, or from a man to whom he himself, his parent or son is heir, he shall have the right to sue and denounce in that matter …’) Lintott, , Judicial Reform and Land Reform (n. 38) 88-9Google Scholar.
59 Cic, . Div. in Caec. 17–18Google Scholar: ‘There is certainly no doubt the whole law about the recovery of money was framed for the benefit of our allies. When our own citizens are robbed of their money, they can usually bring civil actions to recover it, in accordance with private law. But this law is for our allies. This is the charter of rights for foreign peoples; this is their strong defence, somewhat less strong a defence now than it once was, but still, if our allies have any hope left with which to comfort their spirits, it is to be totally placed on this law alone.’ Cf. ibid. 65: etenim cum lex ipsa de pecuniis repetundis sociorum atque amicorum populi Romani patrona sit, … (‘After all, the law about the recovery of money itself is meant to champion the allies and friends of the Roman people …’); and Verr. 2.6.15:… tarnen vos in hac quaestione de pecuniis repetundis, quae sociorum causa constituta est lege iudicioque sociali, sociorum querimonias audire oportet. (‘Yet in this court for the recovery of money, which was established for our allies’ benefit when the law and the procedure concerning allies was set up, it is the grievances of our allies to which you must listen.’)
60 Verr. 1.51: fac tibi paternae legis Aciliae veniat in mentem, qua lege populus Romanus de pecuniis repetundis optimis iudiciis severissimisque iudicibus usus est. (‘Remember the Acilian law, your father's work – the law whereby the Roman people gained efficient courts and strictly honourable judges to deal with extortion claims.’) Cicero implies that equestrian juries made for more efficient and honest courts.
61 Cf. Cicero's, claim in Verr. 1.38Google Scholar: cum equester ordo iudicaret, annos prope quinquaginta continues in nullo, iudices, equite Romano iudicante ne tenuissima quidem suspicio acceptae pecuniae ob rem iudicandam constituta sit. (‘While the equestrian order sat in judgment, for a period of almost fifty years, not the faintest suspicion, members of the jury, rested on a single Roman knight when sitting as a judge of accepting a bribe to give a particular verdict.’)
62 Gruen, , RPCC 13Google Scholar dismisses Cicero's remark as mere rhetoric and not to be taken literally.
63 See above, n. 41.
64 Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 11 ffGoogle Scholar. conveniently lists the cases by reference to the name of the accused. Cf. the list in Gruen (1968) 304-5, and Alexander, M.C., Trials in the Late Roman Republic 149 BC – 50 BC (Toronto 1990) 3–14Google Scholar.
65 The peregrini were thus following the time-honoured diplomatic process. This is the only recorded case of a complaint by a provincial community in the period: Richardson, , ‘The Purpose of the Lex Calpurnia’ (n. 2) 9Google Scholar.
66 Cic, . Fin. 1.24Google Scholar: quid? T. Torquatus, is qui consul cum Cn. Octavio fuit, cum Mam severitatem in eo filio adhibuit, quem in adoptionem D. Silano emancipaverat, ut eum Macedonum lega tis accusantibus, quod pecunias praetorem in provincia cepisse arguèrent, causam apud se dicere iuberet reque ex utraque parte audita pronuntiaret, (‘Consider T. Torquatos who was consul with Cn. Octavius, when he dealt so sternly with his son who had passed out of his control through adoption by D. Silanus. He summoned him into his presence to answer the charges brought against him by delegates from Macedonia who claimed that he had extorted money while praetor in that province, and announced that he would hear both sides of the argument.’)
67 Gruen, , RPCC 32Google Scholar.
68 Liv, . Per. 54Google Scholar: de querellis cognoscere.
69 Val. Max 5.8.3: nam cum ad senatum Macedonia de fllio eius D. Silano, qui earn provinciam optinuerat, querellas per legates detulisset, a patribus conscriptis petiit ne quid ante de ea re statuèrent quam ipse Macedonum flliique sui causam inspexisset. (‘When Macedonia presented to the senate through envoys complaints against his son, D. Silanus, who had been governor of the province, he requested the conscript fathers not to come to any decision until he had examined the case of the Macedonians and his son.’) T. Manlius Torquatos (cos. 165) was Silanus’ natural father; the son had been adopted into the Iunian family.
70 Ibid.
71 Indeed, Gruen, , RPCC 33Google Scholar seems to regard the quaestio as a foreign policy arm of the senate.
72 Most significantly, his view is expressed despite an earlier acknowledgement that the legis actio sacramento procedure, as far as the evidence goes, was open only to those possessing Roman citizenship: ibid. 13.
73 The senate's acceptance that extortion had occurred was a significant factor in the appointment of the recuperatores in 171. Liv. 43.2.1: manifestum autem esset pecunias captas.
74 In the case of C. Cassius in 170, the senate had offered to hear, and give satisfaction in respect of, a complaint, which included extortion, brought by a provincial delegation of Gauls. See above, p. 43.
75 Veil. Pat. 2.1.4: ad turpissima deduxit foedera. Cf. App, . Iber. 79Google Scholar.
76 App, . Wer. 79Google Scholar.
77 Cic, . Rep. 3.109Google Scholar: sine senatus auctoritate foedus fecerat. Cf. Polyb. 6.15. Rosenstein, N., ‘“Imperatores Vieti“: The Case of C. Hostilius Mancinus’, Classical Antiquity 5.2 (1986) 230-52, at 241CrossRefGoogle Scholar.
78 Ibid. Cicero says (Off. 3.109) his entreaties persuaded the people, while Vellerns says his influence got him off (2.1.5: Pompeium gratia impunitum habuit).
79 Val. Max. 8.5.1. That Pompeius was termed reus repetundarum indicates the charge.
80 Rosenstein, , ‘“Imperatores Vieti”’ (n. 77) 248Google Scholar argues that the aborted treaty would have been at the heart of the repetundae proceedings, but a treaty in and of itself does not constitute extortion.
81 Gruen, , RPCC 36Google Scholar. As has been noted in relation to Silanus' case, this view is expressed despite an earlier acknowledgement that the legis actio sacramento procedure was available only to those possessing Roman citizenship (ibid. 13, with above n. 32).
82 Cic, . Font. 11.Google Scholar
83 Val. Max 8.5.1. Cf. the outcome of the case of Cotta (below), where none other than P. Cornelius Scipio Africanus undertook the prosecution.
84 Cic, . Font. 11Google Scholar.
85 Bell. Civ. 1.22, where Appian notes the presence of ambassadors, who had been sent by their nations to complain about Cotta, Salinator and Aquillius and bitterly denounce them.
86 Gruen, , RPCC 38Google Scholar maintains that the case was heard, like that of Pompeius, in the quaestio.
87 Cic, . Div. in Caec. 66Google Scholar.
88 Ibid. For Cato's role in the proceedings in 171, see above, p. 45.
89 Cicero calls the jurors sapientissimi homines (Cic, . Mur. 58Google Scholar): see next note.
90 Cic, . Mur. 58Google Scholar: erat in eo [P. Africanus] summa eloquentia, summa fides, summa integritas, auctoritas tanta quanta in imperio populi Romani quod illius opera tenebatur. saepe hoc maiores natu dicere audivi, hanc accusatoris eximiam vim et dignitatem plurimum L. Cottae profuisse, noluerant sapientissimi homines qui tum rem Mam iudicabant ita quamquam cadere in iudicio ut nimiis adversarii viribus abiectus videretur. (‘He [P. Africanus] had the greatest eloquence, the greatest confidence, the greatest integrity; his influence was as great as that of the government of the Roman people which his deeds had preserved. The wise men who were judging the case at that time did not believe that a man should lose a case in a way that it could be thought that he had been convicted by the excessive influences of his accusers.’)
91 Ibid. 59: nolo accusator in iudicium potentiam adferat, non vim maiorem aliquam, non auctoritatem excellentem, non nimiam gratiam. (‘I do not like an accuser bringing his personal power, or any predominant influence, or his own eminent authority, or his own excessive popularity, into a court of justice.’)
92 App, . Bell. Civ. 1.22Google Scholar.
93 Val. Max. 8.1.11. Livy (43.2) uses the same language in respect of two of the praetors who were subject to the proceedings before the recuperatores in 171. Valerius Maximus states that the proceedings were apud populum, but this is usually rejected in the light of the other sources: e.g. Gruen, , RPCC 37 n. 66Google Scholar; Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 12Google Scholar.
94 Cic, . Div. in Caec. 69Google Scholar. Gruen, , RPCC 77 n. 164Google Scholar argues that, as Lentulus was appointed princeps in 125, the proceedings against Aquillius occurred in 124.
95 Ps.-Ascon. p. 204 Stangl: hic M'. Aquillius de pecuniis repetundis accusants est. App, . Bell. Civ. 1.22Google Scholar includes his name among those who were notorious bribe-takers.
96 App, . Mithr. 12.57Google Scholar.
97 E.g. Gruen, , RPCC 36Google Scholar: ‘the quaestio de repetundis was originally designed to protect the interests of the senate against encroachments by tribunes and the assembly …’
98 Richardson, , “The Purpose of the Lex Calpurnia’ (n. 2) 5Google Scholar. His views have formed the basis of the discussion here of the legis actio sacramento. Alternatively, one would have to accept the speculation (which we do not) that patroni could act on behalf of allies and provincials under arrangements in the law allowing a charge to be laid alieno nomine or by the device of flctio civitatis and/or by a variation of the certa verba. See above, pp. 50-2.
99 Gruen, , RPCC 15Google Scholar has referred to the quaestio as ‘in essence a committee of the senate’. He would presumably regard a tribunal of recuperatores in the same light and this may be a way of reconciling his position with the argument being made here.
100 Gruen, , RPCC 14Google Scholar.
