The Lex Varia

Author(s): Erich S. Gruen

Source: The Journal of Roman Studies, Vol. 55, No. 1/2, Parts 1 and 2 (1965), pp. 59-73
Published by: Society for the Promotion of Roman Studies
Stable URL: http://www.jstor.org/stable/297431
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THE LEX VARIA
By ERICH S. GRUEN
The outbreak of the Social War
brought
in its wake a furious succession of criminal
prosecutions
with
important political implications.
The wheels of
'justice'
were set in
motion
by
the notorious lex
Varia,
a criminal law
passed
on the motion of the tribune
Q.
Varius Severus
Hybrida.
It was not
long
before numerous
prominent
individuals came
under attack and the Roman
political
scene was thrown into turmoil. The lex Varia will
repay
close
scrutiny.
Modern
scholarship
has been content with the
analysis
of this measure delivered
by
Appian.
Some time after the death of M. Livius Drusus, the tribune of
91 B.C., the
equites
endeavoured to make his liberal
policy
towards the Italians a
ground
for malicious
prosecu-
tion of their enemies, and to this end
they
induced
Q.
Varius to
pass
his law. The
purpose
was to bring the entire senatorial
oligarchy
under the odious
charge
of
sympathy
with the
Italian
insurgents
and to entrench
equestrian
control of the state. Such is the version of
Appian.1
It is
certainly
true
that, as was
by
now
customary,
external crises were made the
pretext
for attacks
upon political opponents.2
The
charge
of
bearing responsibility,
in
some sense, for the outbreak of war could be stretched to fit a wide
variety
of activities. But
a careful examination of the lex Varia and of the cases heard under it will demonstrate that
Appian's judgment
leaves much to be desired.
Legal
and
political consequences
have never
yet
been
fully
understood or
analysed,
and the law can shed much
light
on Roman internal
struggles
in this
period.
The date of the lex Varia and of the tribunate of Varius should no
longer
be called into
question. Although
some scholars still
prefer
the
year 9i,3
the terms of the law, as
given by
Asconius and Valerius Maximus, show that it was
passed
after the Social War was well under
way.4
Cicero
puts
Varius in a context of
magistrates belonging
to the
year
90.5 His tribunate
was
surely
from
December, 91,
to
December, 90,
and the law
passed probably
in the
early
months of
90.6
More difficult than the
dating
is the
problem
of the
precise
nature of the lex Varia.
Modern historians and
jurists
are almost unanimous in
regarding
it as a '
special
law'
establishing
a
quaestio
extraordinaria.7
Dissenting
voices have been few and
largely
unheard.
It is true that the
special
nature of the law seems
implied
in the
application
of it to a
special category
of individuals: de iis
quorum ope
consiliove socii contra
populum
Romanum
arma
sumpsissent.8
This
description parallels closely
the Mamilian
rogatio
of
109
B.C. which
did set
up
a
quaestio
extraordinaria.9 On the other
hand,
Cicero refers to the measure as
lex Varia de maiestate. This
ought
to mean that a number of crimes could
technically
fall
within its
purview.10 Now,
a
general
law on
maiestas, setting up
a
permanent quaestio,
was
already
on the books. Saturninus had established the court
by
a lex
Appuleia
de maiestate
probably
in
o03.11
The
relationship
between the lex
Appuleia
and the lex Varia
obviously
warrants
investigation.
To install a
special
court for a
charge already
covered
by legislation
1
BC I, 37.
2
cf. the
prosecutions
under the Mamilian law in
109 (Sallust, Jug. 40),
and the trials of
Q.
Servilius
Caepio
and Cn. Mallius in
103 (Gran.
Licin.
I3,
Flemisch;
ad Herenn. I, 14, 24;
Val. Max.
4, 7,
3). Many more could, of course, be cited.
3
G. Bloch and J. Carcopino, Histoire Romaine ii
(Paris, I940), 380;
H. Hill, Roman Middle Class in
the Republican Period (Oxford, I952), 136 ;
L. Pareti,
Storia di Roma iII (Torino, 1953), 536.
4
Asconius
22,
Clark: ut quaereretur
de iis
quorum ope consiliove socii contra populum Romanum
arma sumpsissent; Val. Max. 8, 6, 4: quorum dolo
malo socii ad arma ire coacti essent.
5
Cicero, Brutus
304-5;
cf. T. R. S.
Broughton,
The Magistrates of
The Roman
Republic In (New York,
I952), 26; 30-I,
n. 6-9.
6
See the
arguments
of P. Fraccaro, Opuscula
(Pavia, I957) 2, 144,
and I.
Haug,
Wiirzb. Jahrb. 2
(I947), 243-7.
The date is
accepted by Broughton,
MRR II, 26-7.
7
cf. Th. Mommsen, Romisches Strafrecht (Leipzig,
I899), I98; J.
L. Strachan-Davidson, Problems of
the Roman Criminal Law
(Oxford, I912), I, 231; 239;
H. Siber, Abh. Sachs. Akad. Wiss.
43 (1936), 52;
Bloch-Carcopino, Hist. Rom. Ir
(I935), 380;
E. Gabba, Appiani Bellorum Civilium Liber Primus
(Firenze, I958), 124.
8
Asconius
79, Clark; cf. Val. Max. 8, 6, 4;
Appian, BC I, 37.
9
Sallust, Jug. 40,
i : uti quaereretur in eos
quorum
consilio lugurtha senati decreta neglegisset . . .
10
Cicero, in the speech Pro Cornelio, quoted by
Asconius 79, Clark. The
meaning
of maiestas was
under dispute even in
antiquity,
as is
graphically
illustrated by the trial of C. Norbanus in
95
under
Saturninus' maiestas law: ad Herenn. 2, I7; Cicero,
De Orat. 2, 1
07; 197-201.
11
Broughton, MRR I, 565,
n. 4.
and dealt with in a
quaestio perpetua
would be
highly
unusual.12 This would be
enough
to
throw serious doubt
upon
the
possibility
of a
special court,
but there is even more
compelling
evidence. In
89
Q.
Varius was condemned under his own law.13 That
he,
of all
people,
would have been attacked on the
grounds
of
sympathy
with the
insurgents
is unthinkable.
In 88 came the
prosecution
of Cn.
Pompeius Strabo,
also under the Varian law.14 The hero
of Asculum would
hardly
have been
charged
with
aiding
and
abetting
the
enemy.
It
appears
then that the measure of Varius was a
general
maiestas
law,
not a bill
instituting
a
special
court for a
specific
offence. The
ground
for
proceedings against
Varius was
probably
seditio because of forceful
passage
of his law
against
tribunician intercessio.15 A similar
charge
had earlier been levelled
against
C. Norbanus in
95
for violence and misuse of tribunician
power
in a case which fell under the lex
Appuleia
de maiestate.16 Strabo's trial
requires
more detailed discussion.17
Almost alone
among
modern
scholars, J. Lengle
has taken the stand that the lex Varia
was a
general
law on the offence of maiestas.18 But
Lengle's
view that the lex
Appuleia
continued to
operate alongside
the lex Varia seems untenable. There is no certain
parallel
for two
separate general
laws on the same criminal offence which were
simultaneously
valid.19
Moreover,
if
Lengle's theory
were
valid,
then
Pompeius
Strabo
probably
and
Varius
certainly
should have been
prosecuted
under the lex
Appuleia
and
not,
as
they were,
under the lex Varia. The most reasonable conclusion is that Varius' law
supplanted
that
of Saturninus. It is
noteworthy
that no further trials under the lex
Appuleia
are recorded
after
go. Presumably
Varius' law will have
incorporated
the earlier terms of the lex
Appuleia
and added the
specific provision
that those
responsible
for the Bellum Marsicum would also
be
subject
to the
charge
of maiestas.20 This would
explain
both Cicero's reference to it as a
lex de
maiestate,
and the accounts of
Asconius,
Appian,
and Valerius
Maximus,
who see it
as directed
against
a
specific category
of individuals. The
prosecutions
of Strabo and
Varius, therefore,
no
longer provide
a
difficulty.
The defendants were tried under the lex
Varia,
but were doubtless
charged
with offences which that law had taken over from the
earlier lex
Appuleia
de maiestate.21
Prosecutions under the lex Varia illustrate the
unscrupulous
use of the courts for
political
ends. The ancients themselves were not unaware of this.22 But it is
important
to
avoid the error of
Appian,
who sees these
prosecutions simply
as an act of
vengeance
on the
part
of the
equites.
To
interpret
the events of
9I-88
merely
as a
struggle
between the sena-
torial and
equestrian
orders is to
neglect
the factional
aspect
of senatorial
politics.
Political
allegiance
shifted more
rapidly
and factions took on a more mobile and fluid character in
the
post-Gracchan period
than had been true earlier.
However,
a factional structure
remained a
permanent
feature of Roman
politics
down to the end of the
Republic.23
That
the Varian law was a mere instrument of the
equester
ordo is an
over-simplification
unwarranted
by
the evidence.
12
The
only
certain
example
is the lex
Pompeia
de vi
of
52;
sources in
Broughton,
MRR
II, 234.
The
year
of
Pompey's
sole
consulship was,
of
course, hardly
normal.
13
See
below, p. 69.
14
See below, pp. 70
f.
15Appian,
BC
I, 37;
Val. Max.
8, 6, 4;
see
J. Lengle, Untersuchungen
iiber die Sullanische Ver-
fassung (Freiburg, X889), 35.
16
Cicero,
De Orat.
2, 107-9; 197-203;
Part.
Orat.
104-5;
Val. Max.
8, 5,
2.
17
See
below, pp. 70
f.
18
Lengle,
o.c.
(n. 15), 32-6. Lengle
has been
followed now
by
H.
Gundel,
RE
15 (2), 389,' Varius,'
n.
7.
19
Lengle
cites the lex Lutatia and the lex Plautia
de vi:
o.c., 36.
But the lex Lutatia was
probably
a
temporary
measure for a
special
offence and no
longer
in use when the second law was
passed;
see
J.
N.
Hough, AJP 51 (I930), I35 ff.
20 For a similar view, now
generally ignored,
see
A. W.
Zumpt,
Das Criminalrecht der r6mischen
Republik II,
i
(Berlin, i868), 249-264.
21 The
penalty
under the lex Varia
appears
to have
been a
capital
one.
Varius,
in
any case,
was
apparently
executed; Cicero,
De Nat. Deor.
3,
8x : summo
cruciatu
supplicioque Q. Varius,
homo
importunissimus,
periit.
Valerius Maximus' curious
phrase
sua lex eum
domesticis
laqueis
constrictum
absumpsit (8, 6, 4)
should
be taken in a
metaphorical
sense as ' hoist with his
own
petard
'. Siber's
view,
Abh. Sachs. Akad. Wiss.
43 (I936), 52,
that the lex Varia
provided
for com-
pulsory
exile is
unconvincing.
Cicero's
reference,
Brutus
305,
to the exile of Cotta as est
expulsus
must
be rhetorical. Cotta left the
city
before the court
reached its
decision; Appian,
BC
I, 37;
cf.
Mommsen, Strafrecht I98;
E.
Levy,
Sitz. Heid.
Akad. Wiss. 21
(1930-1),
2i.
22 Asconius
73,
Clark : cum multi Varia
lege inique
damnarentur, quasi
id bellum illis auctoribus
conflatum
esset; Appian,
BC
I, 37:
oi i1rrEis Enipaccnv E acuKocpaviav
TCrOV ?XOpv
Tr wo-r AroiT-ra OaTOU
xiOepEvot, KOIVTOV O&aplov
6niapXov
wrectacav
eicrnqyioaao0al KpicEIS
Elvat... XwcTricraxvTr
TOUS SuvCTroUS aT-raVTaS aCUTriKa EIS gyKAla T[iqpOOVOV
OTra&eCOa l Kai 81K&cOrEV ,UV aOCroi.
23 cf. R.
Syme,
The Roman Revolution
(Oxford,
1939), passim.
60o ERICH S. GRUEN
THE LEX VARIA 61
The
grievances
of the
knights
were
clearly exploited,
as was the Italian issue, by
men
like
Q.
Servilius
Caepio
and L. Marcius
Philippus
to mount an assault on their
political
inimici. But this does not mean that Varius was
simply
a
representative
of
equestrian
interests. The death of Drusus and the
repeal
of his
judiciary
law must in
any
case have
eased the situation for most of the
knights.24
It is not clear that the Italian
question
con-
cerned them
very deeply.
Even if Gabba is
right
that the Social War was
largely
the
consequence
of
prodding by
Italian businessmen who
sought
a voice in Roman
foreign
policy, nothing
follows from this with
regard
to the attitude of the Roman
equites.25
The
outcome of the trials themselves indicates that
equestrian vengeance played
no
major
role.
Of the six known defendants under the Varian law while the
equites
controlled the courts,
three at least were
acquitted, namely
M.
Scaurus, Q. Pompeius Rufus,
and M. Antonius.
Even more
striking
is the fact that Varius himself was convicted
by equestrian jurors
under
his own law,
which
hardly
marks him as a
champion
of the
knights.
This
event, significantly,
goes
unmentioned
by Appian,
who alone
regards
Varius as
acting
in the interests of the
equites.
The
hypothesis
of an ' attachment' of the
equester
ordo to
Caepio
is
similarly
unfounded.26 His own
prosecution
of Scaurus did not even end in conviction. That
Philippus
had
any
connections with the
equites
there is no evidence whatever. The trials
under the Varian law are best
regarded
as attacks on the associates of M. Livius Drusus.
Seen in this
light they provide
the best
testimony
on the
personnel
of his
group.
Thefactio
behind Drusus has
already
been
investigated
in
part by
E. Badian in a
lengthy
and
stimulating
article.27
Although
some of his conclusions
may
be
regarded
as dubious,
especially
on the role of Marius in the
90o's,
Badian has demonstrated the association of
Drusus with families connected with the Caecilii Metelli. An examination of the trials
heard under the lex Varia, which was
clearly
an attack on his
supporters
and
friends, may
offer even more
telling
evidence on the
make-up
of his
factio.
The
prosecutions
need
not,
of course, imply sympathy
on the
part
of the victims with Drusus' Italian schemes.
Association with Drusus was sufficient to arouse
suspicion
and warrant
prosecution.
It is
significant that, although
M. Scaurus and L. Crassus are
specifically
associated with
Drusus'
jury
proposals,
the tribune alone is connected with the
programme
of Italian
enfranchisement.28 The Metellan
group
had
certainly
shown
anything
but
sympathy
with
the claims of the socii in the
past.
The lex Licinia Mucia of
95
had been
passed by
two
consuls from this
group,
Crassus and
Q. Scaevola,
and Crassus was also
partly responsible
for the censorial edict of 92 which had banned the Latin rhetors from Rome.29 Scaurus'
contemptuous regard
for non-citizens has been recorded in a difficult but
intelligible
fragment.30
It is not
easy
to believe that men with such
strong views,
so
recently expressed,
would have reversed themselves
completely.31
The ancient evidence on Drusus
suggests
that he was
sufficiently vain, hot-headed,
and obstinate to be
pushed
to extremes
by
24
It is too often forgotten
that to
speak
of the
equites
as a bloc is seriously misleading, if not
erroneous; cf. C. Meier, Gnomon
36 (I964), 64-70.
Temporary unity might
be achieved over control of
business interests abroad or the
debt-question
at
home, but hardly over factional struggles
in the
senate.
25
Gabba, Athenaeum
32 (I954), 4I-82. Similarly,
there is little to warrant Carney's description
of
Varius as a Marian supporter,
A Biography of Marius,
Proc. Afr. Class. Ass.
Supp.
I
(Assen, I96i), 52;
Rh. Mus.
o05 (I962), 326-7,
n.
83.
Marius did have
vested interests in
Spain (Carney,
Num. Chron.
19 (1959), 8i)
and Varius came of
Spanish stock,
but
this is hardly enough
to imply
a connection. The
only
evidence for
any
association between these two men is
Valerius Maximus' remark that Marius had C. Caesar
Strabo killed in order to
avenge Varius; 9, 2, 2. But
Marius had much better reasons of his own;
Diodorus
37,
2.
26
See R. Thomsen, Class. et Med.
5 (1942), 25-6.
Florus' statement, 2, 5, I7,
that
Caepio supported
the cause of the
knights
carries little weight.
Even
if correct it shows only
that
Caepio exploited eques-
trian opposition to Drusus' jury
reforms in
9g.
Nothing follows with respect to the lex Varia.
27
Historia 6
(I957), 3I8-346;
now reprinted with
additions in Badian, Studies in Greek and Roman
History (Oxford, I964), 34-70.
28
For the influence of Scaurus and Crassus, see
Asconius 2 , Clark; Cicero, De Domo
50:
M.
Drusus . . . M. Scauro et L. Crasso consiliariis; cf.
De Orat.
3,
2. For the sources on Drusus' programme
generally,
see
Broughton,
MRR
II, 21.
29
Broughton, MRR II, I
; I7.
30
Cicero,
De Orat. 2, 257. Fraccaro, Opuscula 2,
132-5, correctly saw this
passage as a reflection of
Scaurus' contempt
for non-Romans. The objections
of L. R. Taylor, The Voting Districts of the Roman
Republic (Rome, i960), 142-3, have been decisively
refuted by Badian, JRS 52 (I962), 207-8.
31
For the view that Drusus' plans were all of a
piece and were advocated down the line
by
his
supporters,
see Carcopino, Bull. Ass. Bude 22 (I929),
3-23; Badian, Historia ii
(i962), 223-5. Badian,
recognizing
the volte-face that this
involves,
believes
that the Metellan factio yielded
to the inevitable
winds of
change
and
sought to gain
for the senate
the credit for Italian enfranchisement.
opposition.32
When the Social War broke
out, however,
the enemies of the Metellan
clique
could and did use this
against
those who had been associated with Drusus in the
past year.
Asconius
exposes
the flimsiness of the circumstantial evidence used: men were condemned
quasi
id bellum illis auctoribus
conflatum
esset.33
The
'
Metellan
group
'
may,
at first
sight,
be a
misleading expression
for the
factio
behind Drusus.34 There was no
prominent
Metellus in the
go's
after the death of Metellus
Numidicus and the
(apparently)
successful
prosecution
of
Q.
Metellus
Nepos,
consul in
98.35
But the
far-reaching
connections of the Metelli did not
evaporate simply
because there
were no Metelli
eligible
for the
consulship
in the decade after
Nepos'
tenure. The Metellan
domination of the curule offices in the three decades before
go
reveals their
widespread
patronage
and influence. The
Jugurthine
and Cimbric Wars
had, however,
weakened the
influence of this
group,
and the outbreak of the Social War
opened
to their enemies the
avenue of a direct and massive assault.
The father of Livius Drusus
himself,
the anti-Gracchan tribune of
122, may have,
at
least in the latter
part
of his
career, joined
the influential
figures
who were
gathering
about
the Metelli. He held the
censorship
in
Io9,
a
year following significant
Metellan victories
at the
polls,
the
consulship
of Metellus Numidicus and the
censorship
of M. Scaurus.
Drusus' brother-in-law was P. Rutilius
Rufus, who,
in the
year
of Drusus'
censorship,
went
off to Africa as the
legate
of Numidicus.36 Since M. Livius Drusus the
younger
was a
nephew
of Rutilius
Rufus,
the notorious conviction of Rutilius
by
an
equestrian jury
in
92
may,
as has
long
been
recognized,
have had no little effect
upon
his
judicial
reforms in
91.
The Metellan
connections are
neatly
confirmed
by
the
principals
involved in the Varian trials.
Most vexed of the trials under the lex Varia was the
prosecution
of the
princeps
senatus,
M. Aemilius Scaurus. As a friend and counsellor of Drusus, Scaurus was a
likely target,
whatever his views on Italian enfranchisement.
Q.
Servilius
Caepio,
a vetus inimicus of
Scaurus,37
apparently
left no stone unturned to
gain
a conviction
against
him. It was
probably
in 91 that he had
prosecuted Scaurus unsuccessfully
on a
charge
of extortion and
was in turn
prosecuted by Scaurus.38 The
explosive
Italian situation, however, provided
a
more suitable
opportunity.
Scaurus was now indicted
by Caepio
under the lex Varia. This
much is clear from the
explicit
statement of Cicero
quoted by
Asconius : ab eodem etiam
lege
Varia custos ille rei
publicae proditionis est in crimen vocatus.39 It is confirmed
by two
extant
fragments
from
Caepio's speech In M. Aemilium Scaurum
lege
Varia.40 However,
there is more which indicates
complexity
and invites confusion. Cicero
goes
on to
say
vexatus a
Q.
Vario tribuno plebis est. Asconius, in a detailed
commentary, explains that
Caepio instigated Varius to summon Scaurus belli concitati crimine adesse
apud
se. This
confrontation was not before the Varian
quaestio
but before the
people,
since Scaurus
addresses his audience as
vos,
Quirites.
The
story
is twice
repeated
in
substantially the
same form with the clear statement that Scaurus faced Varius ad
populum.41 Relying
on
prestige
and
authority
rather than
argument,
Scaurus
swiftly
won over the populace
and
Varius had no recourse but to dismiss the
hearing.
Was Scaurus then
placed
in double
jeopardy
?
That there were two
trials, the first before the
people
with Varius as
prosecutor and
the second before the Varian
quaestio
with
Caepio
as
prosecutor,
has had its
exponents.42
Yet it strains
credulity
to believe that Scaurus could have been
acquitted by
the
sovereign
32
For an analysis of Drusus' character and
Broughton, MRR I,
545;
for
Rutilius'
legateship,
references to the ancient material on him, see Pareti, see I,
547.
Storia di Roma in,
520-3.
The view expressed here,
37
Asconius 22, Clark.
that Drusus' supporters drew back on the Italian
38
Asconius 21, Clark; Val. Max.
3,
7, 8;
issue, has been argued by Bernardi, Nuov. Riv. Stor. H. Malcovati, Oratorum Romanorum
Fragmenta,
28-9
(1944-45),
92-4, and Gabba, Athenaeum
31
2nd ed. (Torino,
I955),
I
67.
(I953), 259-267.
39
Asconius 22, Clark. Camey, Rh. Mus.
105
33
Asconius
73,
Clark.
(1962), 316,
wrongly states that Varius
prosecuted
34
cf. Meier, Bonn.
Jahrb.
I
6i
(1961), 508.
Scaurus under his own law.
3
5
The death of Numidicus may have come not
40
Malcovati, ORF 296.
long after his return from exile in 98
;
cf. Cicero,
41
Val. Max.
3,
7, 8 pro rostris accusaretur . .
.
Ad Fam. i, 9, i6. He is, in any case, not heard from populus conmotus Varium . . .
depulit.
Vir. Ill. 72,
I:
again. On the trial of Metellus
Nepos,
see
Asconius Scaurus senex cum a Vario
tribuno
plebis argueretur
. . .
63-5,
Clark; Apuleius, Apol. 66. ad populum ait.
36
For the relationship, see Val. Max. 8,
I
3,
6;
42
L. Lange, Romische Alterthuimer
3
(Berlin,
I
876),
Pliny, NH 7,
I
58.
For Drusus' censorship, see io8; Fraccaro, Opuscula
2, 140-4.
62 ERICH S. GRUEN
people
in
assembly
and then be
prosecuted
on the same
charge
before a
quaestio.
It is not
surprising
that no
parallels
can be cited for such a view. No less
extraordinary, however,
is the
theory
of Pais that the lex Varia set
up
a tribunal with Varius himself
presiding
and
that this trial was held under the tribunal but before the
people.43
This cannot warrant
credence. It is
surely
no coincidence that Asconius here three times refers to Varius as
tribune of the
plebs.
Never is he cited as
quaesitor.
It was doubtless in his
capacity
as tribune
that Varius summoned Scaurus to answer the
charge
of
collaborating
with the
enemy.
A '
special
tribunal' held before the
people
is
unparalleled
and there is no reason to con-
jecture
it here. In fact Asconius does not
necessarily
refer to a
popular
trial at all. Vexatus
hardly
means '
accused',
and it is difficult to
imagine
a criminal
prosecution
dismissed
by
the mere words utri
vos,
Quirites,
convenit credere ? The whole
problem
is
immediately
alleviated if Asconius is
referring
not to a criminal
charge
but to a contio called
by
the
tribune.44 Varius was induced
by Caepio
to denounce Scaurus
publicly
in an effort to
damage
the
reputation
of the
princeps
senatus. The scheme back-fired but
Caepio
went on to
file formal
charges
before the
quaestio
Variana. The outcome of this
prosecution
is not
recorded,
but it is a fair surmise that a conviction would
hardly
have
escaped
mention in
Asconius'
commentary.
Scaurus had been
acquitted by equites
before.45 The bitterness
of the
knights
had been
aggravated
but Scaurus
still, apparently,
had
enough
connections
to remain unscathed.
Miinzer,
rather
oddly,
believed that
Caepio
himself was
arraigned
before the courts
under the Varian law.46 This
is,
of
course, inherently unlikely,
since the friends of
Caepio
were not under
fire,
and the lex Varia was
itself, apparently,
an instrument of his
factio.
If he were
prosecuted,
it would
presumably
have been in
89
when the tide seems to have
turned and Varius himself was convicted. But
Caepio
was killed in action in
go,
so that this
alternative is ruled out.47 The
only piece
of evidence mustered
by
Mfinzer is the fact that
L. Aelius Stilo,
a Roman
eques
who was an
expert
in
composing
other
people's speeches,
wrote a
speech
on
Caepio's
behalf. Because
Aelius,
in this fashion, also
obliged
C. Aurelius
Cotta and
Q. Pompeius Rufus,
both of whom were tried under the lex
Varia,
Miinzer
argued
that
Caepio
too was a victim of this law. But
Caepio
is not said to have been tried
under the Varian
law,
and since he was a defendant in at least two other
trials,
it is
gratuitous
to invent a
third,
uncited
by
the sources and
unlikely
in itself. That Aelius also
composed
orations for
Pompeius
Rufus and Cotta is of no account. A
speech
for
Q.
Metellus is noted
in this context as
well,
but there is no
suggestion
that he was tried under the lex Varia.48
The
prosecution
of Scaurus in
90
represents,
it
seems,
an attack on the most distin-
guished
member of the Metellan faction. Scaurus' career was
probably promoted by
this
group
from the
beginning. Although
a
patrician,
Scaurus
was,
for all
practical purposes,
virtually
a novus homo. His
consulship
of I
I5
lifted this branch of the Aemilii out of
generations
of
obscurity.49
Even more
striking
is the fact that in the
very year
of his consul-
ship,
Scaurus was named
princeps
senatus
by
the censors.50 Prior to this there is no other
known
example
of a
princeps
senatus who was not at least a
patrician
censor or ex-censor.51
It is
perhaps
no coincidence that of the censors of
1I5
who
appointed
Scaurus one was
43
E. Pais, Dalle Guerre Puniche a Cesare
Augusto
47
ILS 29; Livy,
Per. 73; Eutropius 5, 3, 2;
1-2
(Roma, 1918), 156-164.
Orosius
5, I8, 4.
44
Argueretur,
in Vir. Ill. 72,
I
i, need not bear the 48 For the speech
on
Caepio's behalf,
see
Cicero,
technical meaning
" accused
"
and could easily refer Brutus I69.
This
probably belongs
to the maiestas
to a denunciation at an informal contio. Only Val. trial of
95 ;
see Cicero, Brutus I62. For the
speeches
Max.
3, 7, 8, uses the word accusaretur. But he refers on behalf of Cotta, Pompeius,
and
Metellus,
see
to this occasion the charge
of
accepting bribery
from
Cicero,
Brutus
205-7.
Mithridates. This
probably
reflects
propaganda
49
Cicero,
Pro IMurena
7, x6;
Asconius
20; 24,
brought up by
Varius
against Scaurus on this
Clark; Bloch, Melanges
d'histoire ancienne
25 (1909),
occasion and related to his Asiatic embassy, but the 4-9; Pais,
Dalle Guerre Puniche
147.
reference to an actual trial is
surely
a confusion with
50
Sallust, Jug. 25, 4; Broughton,
MRR
I, 532.
the earlier repetundae prosecution
of Scaurus by
51 There may, of course,
have been no
patrician
Caepio;
cf. Badian, Athenaeum
34 (1956),
117-122. ex-censors alive at this time,
but there were surely
It is not to be taken as a
genuine accusation in 90o. some patrician consulars, including Q.
Fabius
45
In I6 (Cicero,
Brutus
113 ;
De Orat. 2, 280
; Maximus, cos. I i6, and,
more
significantly, Q.
Fabius
Tacitus,
Annals
3, 66),
in
114 (Cicero,
Pro Font.
38;
Maximus
Allobrogicus,
cos. I2I and
nephew
of
Malcovati, ORF
i66),
and 91 (Asconius 2I, Clark; Scipio
Aemilianus himself.
Malcovati, ORF I67).
46
F. Miinzer, Rdmische Adelsparteien
und Adels-
familien (Stuttgart, 1920), 300-I.
63
THE LEX VARIA
a Metellus.52 At some later date Scaurus married a Caecilia
Metella, who,
in this era of
rapid political marriage
and
divorce,
remained his wife to the end of his
days.53
Scaurus'
continued
co-operation
with members of the Metellan faction
may
be documented for the
9o's.54
After a successful
acquittal
in a
repetundae
case of
91,
Scaurus, along
with L. Licinius
Crassus, urged jury
reform
upon young
Livius Drusus.55
By 90 he had been censorius for
nineteen
years
and
princeps
senatus for
twenty-five.
A conviction would have been a
crippling
blow to the Metellan bloc. But Scaurus had
enough
connections even
among
the
business interests in Rome to
gain acquittal.56 Proceedings
were now undertaken
against
some of the other
prominent
members of this circle.
Among
those tried under the lex Varia was
young
C. Aurelius Cotta.57 The relations
of the Aurelii Cottae and the Metelli stretched back for at least two
generations.58
L.
Aurelius Cotta, consul in
i44,
had been defended in an extortion trial
by Q.
Metellus
Macedonicus
against
a
charge brought by Scipio
Aemilianus.59 Another L. Aurelius
Cotta,
consul in i
I9, co-operated
with his
colleague
of that
year,
L. Metellus
Delmaticus,
in
opposition
to Marius' bill for
narrowing
the
voting pens.60
Still another L. Aurelius
Cotta,
tribune in
I03,
was a friend of
Q.
Lutatius
Catulus,
and a
supporter
of
Q.
Servilius
Caepio
in his trial of that
year.61
Thus C. Aurelius Cotta was born into a
family
of
long-standing
Metellan associations. His own relations and actions show no
inconsistency
with his back-
ground.
Like Drusus the
younger,
he was a
nephew
of Rutilius Rufus. His closeness to
his uncle is indicated
by
the fact that the stern Rutilius,
who declined the offers of the
renowned orators Crassus and
Antonius,
alloted to
young
Cotta a role as defence counsel in
his trial of
92.62
Cotta was a friend and
protege
of Crassus.63 Most
significant
is that Cotta
was
apparently expected
to
carry
on the work of his
great
friend Drusus
by securing
the
tribunate for
90.64
Cotta's defeat in this candidature and the
victory
of
Q.
Varius were
signi-
ficant
portents.65
It was natural then that the enemies of Cotta should
prosecute
him under
Varius' law. He underwent trial and, arguing
in his own
behalf,
took the
opportunity
to
defend his whole
public
career. An
open
denunciation of the
jurors
indicates that his con-
viction was a
foregone conclusion,
but he withdrew into exile before the case was closed.66
Cicero's remark that Cotta eiectus est e civitate is
clearly
rhetorical.67 Cotta's
speech
was
composed
not
by
himself but
by
the renowned
ghost writer,
L. Aelius Stilo Praeconinus.68
It is
hardly
fortuitous that Aelius had been a close friend of Metellus
Numidicus, whom he
accompanied
into exile in
ioo,
and that his
speech-writing
talents were
utilized,
as noted
above, by
other members of the Metellan
group, Q.
Metellus
Celer, Q.
Servilius
Caepio,
and
Q. Pompeius
Rufus.69 Cotta was not to return to Rome until after Sulla's
victory
in 82.70
Another condemnation under the lex Varia was secured
against
L.
Calpurnius
Bestia.
Like
Cotta,
Bestia chose the avenue of
voluntary
exile. An earlier conviction
by
the Mamilian
commission had
already
stained his
reputation
in
I09,
so that the outcome in 90 could
hardly
52
It has been argued
that this Metellus was L.
Caecilius Metellus Delmaticus, the father-in-law-to-
be of Scaurus, but the Fasti Antiates give his filiation
as
Q.f.,
which would apply rather to L. Metellus
Diadematus, cos. 11
7; Broughton, MRR I, 532,
n. i. In any event it was the Metellan faction which
elevated Scaurus to the most
distinguished position
in the senate.
58 The date of this marriage alliance is uncertain.
It may have been as late as 101
; Miinzer, R6m.
Adelsp. 28o-i.
54
See Badian, Athenaeum
34 (I956), 104
ff.
=
Studies
34
ff.
55
See above, n. 28.
56
For Scaurus' business interests, see Vir. III.
72,
i-2; Cicero, De Orat. 2, 283; Pliny,
NH
7, 128;
36, 116; Sallust,
Jug. 15; 25; 2
8-30; 32; 40.
57
Appian, BC I, 37; Cicero, Brutus
205; 305;
De Orat.
3, II; [id.], Antequam iret in exsil. II, 27.
58
Miinzer, R6m. Adelsp. 245-8; Badian, Studies
36-9.
59
Cicero, Pro Murena
58;
Div. in Caec. 69 ;
Pro
Font.
38;
Val. Max. 8, i,
ii
; Livy, Oxyr. Per.
55;
Appian, BC I, 22.
60
Plutarch, Marius
4; Cicero, De Leg. 2, 38.
61
For the
friendship with Catulus, see Cicero, De
Orat.
3, 42; 3, 46.
For his
support
of
Caepio
in
103,
see Cicero, De Orat. i, 229.
62
For the relationship, see Cicero, De Orat.
i,
229;
Ad Att. 12, 20, 2;
De Nat. Deor.
3,
8o. For
Cotta's appearance
at the trial of Rutilius, see Cicero,
De Orat. I, 229.
For Rutilius' refusal of Crassus and
Antonius, see
Cicero,
Brutus
115.
63
Cicero, De Orat. i, 30.
64
Cicero, De Orat. I, 25. That the circle around
Drusus had laid careful
plans for an extended struggle
is indicated by
Cotta's candidature for 90o and the
candidature of another friend of Drusus, P. Sulpicius
Rufus, already mooted for 89: adolescentes duo,
Drusi maximefamiliares, et in quibus magnam
turn
spem
maiores natu dignitatis suae collocarant, C. Cotta qui
turn tribunatum plebis petebat,
et P. Sulpicius, qui
deinceps
eum
magistratum petiturus putabatur.
65
Cicero, De Orat.
3,
II.
66
Appian, BC I,
37.
67
De Orat.
3,
II ; cf. Brutus
305,
and see above,
n. 2I.
68
Cicero,
Brutus
205.
69
For his
accompaniment of
Numidicus,
see
Suetonius, De Gramm. 2. For his
ghost-writing
on
behalf of the Metellan
group, see above, n.
48.
70
Cicero, Brutus 206.
64
ERICH S. GRUEN
be in doubt. He withdrew into exile before the case even came into court.71 Bestia's
antecedents are
unknown,
but his connection with M. Aemilius Scaurus is clear. As consul
in i i he was sent
against Jugurtha
and selected
Scaurus, already consularis,
as a
legate.
When accused of
bribery by Jugurtha
in
o09,
Bestia was defended
by
Scaurus,
who was
himself a
quaesitor
in one of the Mamilian courts and took considerable risk of involvement
in
coming
to Bestia's
assistance,
since he was himself under some
suspicion.72
It
may
be
significant
that
Bestia,
the first of that branch of the
Calpurnii
to reach the
consulship,
had been elected in
I2
during
the
consulship
of M. Livius Drusus the
elder,
also a member
of this
group,
and of another
Calpurnius,
L.
Calpurnius
Piso Caesoninus. It is
interesting
to note that Piso had been
prosecuted
ca. i
I, probably
for
extortion,
and defended
by
both L. Licinius Crassus and Scaurus.73 The
prosecution
of Bestia under the Varian law
is
clearly
another
example
of the attacks on the Metellan
group.74
Also attacked
by
the lex Varia was the future consul of
88, Q.
Pompeius
Rufus.75 It was
probably
his father or
grandfather
Q.
Pompeius
who was consul in
141
and a bitter
opponent
of the
Metelli, by
whom he was
prosecuted
in
138.
But the elder
Pompeius
also had strained
relations with the friends of
Scipio
Aemilianus
by abandoning
C. Laelius in the consular
elections for
I41.
He
may
have drawn closer to the Metelli in his later
years.
He served
with
Q.
Metellus Macedonicus on the staff of L. Furius Philus in
Spain
in
I36.
In
133
he
and Macedonicus both
opposed
Ti. Gracchus in Rome and in
I31
he was named to the
censorship
with Macedonicus as his
colleague,
the first time that two
plebeians
had held
that most
distinguished
office.76 The
younger Pompeius,
in
any
event,
had close connections
with the Metelli. As tribune in
99
he had
sponsored
a measure with L. Porcius Cato for the
recall of Metellus Numidicus.77 He reached the
praetorship
in
9I, during
which his one
recorded act was a denial of his
patrimony
to the
spendthrift
Q.
Fabius
Maximus,
son of
Allobrogicus,
the consul of 121.78 This
may
be
significant,
for Fabius was the
great-nephew
of
Scipio Aemilianus,
an old
enemy
of the Metelli.79 In
89 Pompeius
was elected to the
consulship
for the
following year
with
Sulla, who, shortly
thereafter,
married Metella the
recent widow of M. Scaurus.80 Relations were further cemented
by
the
wedding
of
Pompeius'
son to Sulla's
daughter by
a
previous marriage.81 Finally, Pompeius
was a close
friend of P.
Sulpicius Rufus, who,
as
early
as
9I, appears
to have been the Metellan choice
to
carry
on the work of Drusus in a
prospective
tribunate of
89.82 Pompeius
Rufus, then,
was
clearly
at the heart of the
Metellanfactio.83
As
praetor
in 91 he doubtless
promoted
the
programmes
of
Drusus,
and it was
probably
for this that he was
prosecuted
under the lex
Varia in
go.
L. Marcius
Philippus himself,
the
enemy
of
Drusus, brought
vehement
testimony against
him at the
trial,
but
acquittal
is
implied
in the fact that
Pompeius
could
stand for the
consulship
in the
following year.84
71Appian,
BC
I, 37.
For the earlier
conviction,
see
Cicero,
Brutus
128;
De Orat.
2, 283.
72
Sallust,Jug. 32, I; Vir.Ill.72, 5;
Florus
I, 36, 5.
73
Cicero,
De Orat.
2, 265; 2, 285;
cf.
Fraccaro,
Opuscula 2, 139 ff.; Malcovati,
ORF
258.
74
Bloch, Melanges
d'histoire ancienne
25 (I909),
70-2, argued
that since Bestia had been convicted in
Io9 it was
probably
his son who was victimized
by
the Varian law. But a recall from exile would not be
unprecedented.
Recent
years
had seen the return of
men like
Popillius
Laenas and Metellus
Numidicus;
Cicero,
Brutus
I28; Broughton,
MRR
II, 5.
Even
if Bloch is
right, however,
the
younger
Bestia would
presumably
have retained the
family
connection with
Scaurus,
so that this will not affect the
argument
made
here.
75
Cicero,
Brutus
304.
76 For the trial of
Pompeius
in
139,
see
Cicero,
Pro Font.
23 ;
Val. Max.
8, 5,
i. For the conflict with
Laelius,
see
Cicero,
De Amicit.
77; Plutarch,
Apophth. Scip.
Min. 8. For the service with Mace-
donicus,
see Val. Max.
3, 7, 5;
cf.
Dio,
fr. 82. For
the
opposition
to Ti.
Gracchus,
see
Plutarch,
Ti.
Gracch.
14, 3;
Orosius
5, 8, 4; Cicero,
Brutus
8I
;
cf.
Appian,
BC
I, 13.
For the
censorship,
see
Livy,
Per.
59; Broughton,
MRR
I, 500.
Cf. D. C.
Earl,
Tiberius Gracchus, A
Study
in
Politics,
Collection
Latomus
56 (1963), 98-Io3.
77
Orosius
5, I7, II.
78
For the date of the
praetorship,
see
Cicero,
De
Orat.
i,
i68.
79
Val. Max.
4, i, 12;
Lucilius
v, 232-4; xxvi,
637 (E.
H.
Warmington,
Remains
of
Old Latin
III,
(Cambridge, I938), 73; 205).
See F.
Marx,
Lucilii
Carminum
Reliquiae (Leipzig, I904), xxxiv-xxxv;
xlvii; 87; 247;
C.
Cichorius, Untersuchungen
zu
Lucilius
(Berlin, I908), 87-8; I34; I37-140; 278-9.
80
Plutarch,
Sulla
6, Io: u-rrorros piv &toSEiKVUTOl CETC
Koiv-roU nVowmrTiou, TrevTriKoVTa T-rq yEyovcbs, yCCa1i
86
y&tov
ev8oOTOrcrov, KaCiKlfaV
rfv MesrETXou
OuyarrEpa
-TOi
apXitEppos.
81
Livy,
Per.
77 ; Appian,
BC
I, 56 ; Veil.
Pat.
2, 8, 6; J. Carcopino, Sylla
ou la Monarchie
manquee (Paris, I931), 25-9.
82
For the
friendship
with
Sulpicius,
see
Cicero,
De Amicit. 2. For
Sulpicius' candidacy,
see
Cicero,
De Orat.
I, 25.
83
It should be noted that
Pompeius,
like others in
the Metellan
circle,
was in the habit of
having
his
speeches
written
by
L. Aelius
Stilo,
the
great
friend
of
Numidicus; Cicero,
Brutus
205-7.
84
Cicero,
Brutus
304. J.
Van
Ooteghem,
L.
Marcius
Philippus
et sa
famille (Memoires
Acad.
Roy.
Belg., Namur, I96I), 134,
believes that
Philippus
testified in
Pompeius'
behalf and not
against
him.
But Cicero's
testimony
is
explicit: Philippo,
cuius in
testimonio contentio et vim accusatoris habebat et
copiam.
65
THE LEX VARIA
Philippus
also bore
testimony against
another victim of the Varian law, a L. Memmius.85
The
identity
of this L. Memmius is not
easy
to determine. The
bewildering
number of
Memmii in the short
half-century
between the Gracchi and Sulla has raised innumerable
and
unnecessary
difficulties.86 The most famous of the Memmii in this
period was,
of
course,
the C. Memmius who had been a fervent
popularis
tribune in IIi and a
vigorous
accusator of members of the
nobility
in
109.87
This C. Memmius had been a
prosecutor
of
Bestia in
o09,
and an
opponent
of Scaurus and of L. Crassus.88 He was later
prosecuted
on
an extortion
charge by
Scaurus.89 Associated with him as a tireless
prosecutor
of the
nobility
had been his brother L. Memmius.90 To
bring
these Memmii into connection with the
L. Memmius who was tried under the lex Varia involves awkward
assumptions
of a
change
of
allegiance. Fortunately,
recourse need not be had to such
assumptions.
Numismatic and
epigraphic
evidence shows that there were at least two branches of the
Memmii,
one of the
tribe
Galeria,
and the other of the tribe Menenia. That the two branches did not
co-operate
on a
political
level
suggests
itself as a
possible
solution and seems to fit the evidence. The
Galerian tribe
apparently
included
thepopularis
branch of the
Memmii,
whereas the senator
from the Menenia attested for
129 may
have been the father of the Varian victim.91
Thus the L. Memmius
prosecuted
under the lex Varia and attacked
by Philippus
need
present
no difficulties. His
family may
be
presumed
to have had Metellan connections later
strengthened through
associations with Sulla and
Pompey
in the 8o's and
70's.
He is
obviously
the L. Memmius mentioned
by
Sisenna as a consiliarius of M. Livius Drusus and
the father-in-law of C. Scribonius Curio the later consul of
76,
who was himself under threat
of
prosecution by
the Varian law.92 The
fragment
of Sisenna also calls Memmius a tribune
of the
plebs.
This raises an immediate
problem.
The words tribunum
plebis quem
Marci Livi
consiliarium
fuisse
callebant indicate that Drusus was
already
dead.
Yet,
if Memmius were
tribune in
90,
he could not have been liable for
prosecution
in that
year.
The
possibility
of
a trial in
89
is
remote,
since the reaction had set in
by
that
time,
marked
by
the condemnation
of Varius himself
probably early
in that
year.
It has therefore been
conjectured
that
Memmius held the tribunate in
89.93
But if that is true it entails an
acquittal
for Memmius
in
go.
Now the
passage
in
Cicero,
the
only
direct reference to Memmius'
trial,
does not
state whether or not he was convicted.94
However,
there is a curious remark in
Appian
that a certain ' Mummius the
conqueror
of Greece ' was condemned and exiled under the
Varian law.95 That this cannot be L. Mummius
Achaicus,
the consul of
146,
is evident.
Riihl
argued
that
Appian's
error is best
explained by conjecturing
a son or
grandson
of the
consul of
146,
who retained the
cognomen
Achaicus. This has been
accepted by many.96
But it is difficult to believe that immediate descendants of the
conqueror
of Greece held
no curule offices while
being prominent enough
to suffer
political prosecution.
Since the
other defendants under the lex Varia were all more or less
distinguished individuals,
an
85
Cicero,
Brutus
304.
86
See
Mommsen,
Geschichte des R6mischen Miinz-
wesens
(Berlin, i860), 597-9; Miinzer,
RE
29, 604-
21,
'
Memmius,'
n.
4-I4;
A.
Biedl,
Wien. Stud.
48 (I930), 98-107;
Wien. Stud.
49 (I931), 107;
II4.
87
Sallust, Jug. 27; 30-4.
88
For Memmius'
enmity
with
Scaurus,
see
Cicero,
De Orat.
2, 283 ;
with
Crassus,
see
Cicero,
De Orat.
2, 240; 2, 267.
89
Cicero,
Pro Font.
24;
Val. Max.
8, 5,
2.
90
Cicero,
Brutus
I36:
C. L. Memmii . .. accusa-
tores acres
atque
acerbi.
91 L. R.
Taylor, Voting
Districts
233-4, rightly
conjectures
that the two branches were on different
sides of the
political fence, although,
consonant with
her
purpose,
she does not
develop
the
argument.
The
tribe Galeria is attested for a
moneyer,
L.
Memmius,
whose coins are dated to
103-IOI (E.
A.
Sydenham,
Coinage of the Roman
Republic (London, 1952),
n.
574;
K.
Pink,
The Triumviri Monetales and the
Structure
of
the
Coinage of
the Roman
Republic (New
York, 1952),
n.
52)
and who was
probably
father of
the two monetales of ca.
86-85 (Sydenham, op. cit.,
n.
712).
He is
perhaps
brother of C.
Memmius,
tribune III. For the L.
Memmius,
Cn. f. of the
Menenia,
a senator in
129,
see IGRR
4, 262;
A.
Passerini,
Athenaeum
15 (I937), 252-283. Among
his descendants
may
well be the C.
Memmius,
praetor 58,
who married Sulla's
daughter Fausta;
Asconius
28, Clark;
cf.
Miinzer,
RE
29, 6io,
'Memmius,'
n. 8. Another C.
Memmius, perhaps
of this
branch,
was a brother-in-law of
Pompey,
served with him in
Sicily
in 8
,
and then served with
Q. Metellus Pius and
Pompey
in the Sertorian
war,
in which he died in
75; Plutarch, Pompey 11, 2;
Sert. 21, 2;
Orosius
5, 23, 12; Cicero,
Pro Balbo
5.
92
Sisenna,
fr.
44;
H.
Peter,
Historicorum Roma-
norum
Reliquiae (Leipzig, 1914) I, 284:
Lucium
Memmium,
socerum Gai Scriboni tribunum
plebis, quem
Marci Livi
consiliariumfuisse
callebant et tunc Curionis
oratorem. For the threatened
prosecution
of
Curio,
see Asconius
74,
Clark.
93
G.
Niccolini,
I Fasti dei Tribuni della Plebe
(Milano, 1934), 223; Broughton,
MRR
II, 38,
n.
4.
94
Brutus
304.
95
BC
I, 37.
96 F. Riihl, Rh. Mus.
56 (1901), 634-5;
see now
Gabba, App.
BC Lib. Prim.
I25.
66 ERICH S. GRUEN
unknown Mummius becomes
very
awkward to
explain.
The obvious solution is that
Appian's
' Mummius ' is a mistaken reference to Memmius to which he added '
conqueror
of Greece .97 This will mean then that Memmius did not
escape
the
vengeance
of his
enemies, an inference
supported by
the fact that he seems to have held no further offices.
In that event a tribunate in
89 is, of course, excluded.98 But the text of Sisenna need not
imply
that Memmius held the tribunate after the death of Livius Drusus. Tribunum
plebis
quem
Marci Livi consiliarium
fuisse
callebant could mean that he had been a counsellor of
Drusus while tribune of the
plebs.
This
provides
a
happy
solution. Memmius would then
have been tribune in
91
as a
colleague
and
supporter
of Drusus,
and
prosecuted
as such
in
90.
This is
strongly
confirmed
by
Cicero, who mentions Memmius in a context with
Pompeius Rufus, praetor 9I,
and L. Marcius
Philippus,
consul 9I, and before a section
in which he
gives
a number of individuals who had held office in 90.99 Memmius,
therefore,
like Cotta and
Bestia,
suffered condemnation.
One final trial is recorded for 90, that of M. Antonius, the consul of
99
and censor of
97.
This
prosecution
should
stamp
Antonius also as a member of the
factio
around Livius
Drusus. Yet Badian has
argued
that Antonius was a
supporter
of Marius in the
9o's
and an
opponent
of the Metellan
group,
a view
adopted
now
by Carney.100
The evidence does not
bear
scrutiny throughout.
The activities of Marius in the
90o's
indicate not so much
implacable hostility
to the Metelli as an effort to reach some form of accommodation after
the
embarrassing consequences
of Marius' sixth
consulship.101
The
negative testimony
of
Cicero that Antonius, in his
consulship
of
99,
made no effort to
promote
the recall of
Metellus Numidicus is not conclusive.102 Saturninus was dead but
populares
tribunes like
Sex. Titius and C.
Appuleius
Decianus were active in that
year.103
One
proposal
to recall
Numidicus had
already
been
successfully
vetoed.104 The situation was
perhaps
too delicate
to
press
for his return at that point. Antonius' defence of men like M'.
Aquillius
and
M. Marius
Gratidianus,
who had Marian connections, indicates that Marius had
sought
the
assistance of Antonius
who,
with
Crassus,
was the most
sought-after
defence counsel of the
day.105
This does not
imply hostility
between Antonius and the Metellan faction. Antonius
was a close friend and
political
associate of Crassus.106 His connections with Rutilius Rufus
are indicated
by
the fact that both he and Crassus offered to defend Rutilius in 92.107
Badian's case rests
largely
on the trial of C. Norbanus, who was
prosecuted
in
95
by
P.
Sulpicius
Rufus and M. Scaurus and defended
by
Antonius.108 Yet it is this
very
trial
which
proves
the reverse of Badian's
argument.
Antonius was
clearly
not
expected
to take
the case. An attack
by
the Metelli on Norbanus for his activities in
103 certainly
had
important political
connotations and Antonius was not anxious to
appear
as defence counsel.
That he was induced to do so is due
only
to
feelings
of
obligation
towards his
ex-quaestor
Norbanus.109 Antonius was
compelled
to defend his
very appearance
as counsel for the
accused
by
the
plea
that he was
acting pro
meo sodali
qui
mihi in liberum loco more maiorum
esse deberet.110 His
contemporaries regarded
Antonius' actions as dishonourable and it is
97
Hill, Roman Middle Class
137,
n. 3.
98
Of course, Memmius' tribunate can be elimi-
nated altogether by emendation. Roth suggested
altering L. Memmium, socerum Gai Scriboni tribunum
plebis
to tribuni
plebis ; Peter, HRR I, 284, followed
by Biedl, Wien. Stud. 48 (1930), 100-3.
A solution
may, however, be possible without recourse to
emendation, as
suggested in the text.
99
Brutus
304-5.
100
Badian, Studies
46-50 ; Carney, Wien. Stud. 73
(1960), 10o7-8; A
Biog. of Marius 46-52.
101
This warrants fuller treatment in a separate
study.
102
Post Red. ad Quir. I i.
103
Broughton,
MRR II, 2,
4-5.
The chronology
is confused but Decianus' tribunate should probably
be dated to
99; see Gabba, App.
BC Lib. Prim.
i 0o-I Badian, Athenaeum
37 (1959), 300.
Contra:
Niccolini, Fast. Trib. Pleb. 204; Carney, A Biog. of
Marius 46, n. 216; Rh. Mus.
105 (I962), 306.
104
Orosius
5,
I7, II.
105
For the trial of Aquillius, see Cicero, Brutus
222; De Orat. 2, I24; 2, I94-6; Verr. 2, 5, 3;
De
Off. 2, 50;
Pro Flacc. 98; Livy, Per. 70; Quint.
Inst. Orat. 2, 15, 7; Apuleius, Apol. 66. For the case
of
Gratidianus, see Cicero, De Orat. I, 178 ; De
Off.
3, 67.
106
Cicero, De Orat. I, 24: M. Antonius, homo et
consiliorum in
republica socius, et summa cum Crasso
familiaritate coniunctus.
107
Cicero,
Brutus
11
5.
108
Sulpicius is given
as the prosecutor
and M.
Antonius as defence counsel in Cicero,
De Orat. 2,
89; 2, I07-9. Sulpicius is mentioned in this con-
nection also in De Off. 2, 49,
and by Apuleius, Apol.
66, amidst a list of cases involving young men making
a reputation at the bar. Cicero has Antonius
recapi-
tulate his
arguments
for the defence; De Orat. 2,
197-203. The
appearance
of Scaurus is noted in De
Orat. 2, 203, and Val Max. 8, 5,
2. On
Sulpicius'
connections, see below, p. 72.
109
For the quaestorship
of
Norbanus, see
Broughton,
MRR I, 569.
110
Cicero, De Orat. 2, 200.
67
THE LEX VARIA
most
revealing
that his friends even
sought
to make excuses for his
appearance
on behalf of
Norbanus.l11
This evidence
surely
does not
suggest
that Antonius was a
recognized
Marian
and a
supporter
of Marius' interests
against
the Metelli. On the
contrary,
the
implication
is that Antonius had
strong
connections with the
group
which
prosecuted Norbanus,
and
that his
appearance
on Norbanus' behalf was a shock which itself
required
a
stringent
and,
to his
contemporaries,
a not
altogether convincing
defence.112 Antonius is at
pains
to
demonstrate that his defence of Norbanus is on
purely personal
and not
political grounds.
The contrast is
significant.
The trial does not seem to have
produced any
breach with the
Metelli. Cicero's De
Oratore,
set in
9I,
shows
friendly
relations between Antonius and
Sulpicius Rufus,
the
prosecutor
of Norbanus.
It is not
surprising,
therefore,
that M. Antonius was
prosecuted
under the lex Varia.
Antonius conducted his own
defence,
but the outcome is not
reported.ll3
He was in Rome
in
87
when he was sent on a mission with the two
Catuli, urging
Metellus Pius to end
hostilities with the Samnites.114 This
implies
an
acquittal.
Cicero affirms that in 90
Antonius was
away
from Rome.115 In the context this
may
indicate that he was
serving
in
the Social War.116 But he is not mentioned in the list of
legates given by Appian.117
Cicero notes that Hortensius was a miles and a tribunus
militum,
and that
Sulpicius
was a
legate,
but for Antonius
says merely
aberat.
Possibly, therefore,
Antonius was not in a
command
position
in the Bellum
Marsicum;
in
any event,
Cicero would
certainly
not have
spoken
of condemnation and exile
simply
as aberat. The
acquittal
of Antonius
may
be
regarded
as
virtually
certain.
The
tally
for the men behind
Varius,
in the recorded
trials,
was therefore
fifty per
cent:
three convictions and three
acquittals.
The
prestige
of the
princeps
senatus Scaurus and the
censorius Antonius must have been influential in their
escapes.
The third
acquittal
was that
of
Q.
Pompeius Rufus,
who held the
praetorship
and was
probably already
linked to Sulla
by marriage.
Of the three men
apparently
condemned,
L. Memmius was
possibly just
tribunicius,
L. Aurelius Cotta was not even that and had
just
suffered a
repulse
at the
polls,
and the
third,
L.
Calpurnius
Bestia
(or
his
father), already
had a tarnished
reputation.
These facts will
go
far to account for the results of their
prosecutions.
Before the end of that bitter
year
of
90,
a moderate reaction had set in
against judicial
excesses. There were
perhaps
more trials than are recorded in the sources.118 The serious-
ness of the
military
situation and the
indignation
felt at the Varian witch-hunt
may
even
have
suspended procedure
under the lex Varia for the latter
part
of the
year.119
Late
90
also saw the
passage
of the lex
Julia granting citizenship
to those who had remained
loyal
to Rome.120
Obviously
the use of the Italian war for
purposes
of
attacking political
enemies
in Rome was no
longer
feasible in this
atmosphere.
The next
application
of the Varian
law was
against
Varius himself.
That Varius was
prosecuted
in
89
is clear from Cicero.121 It is most
likely
that the
trial came
early
in the
year, shortly
after Varius lost his tribunician
immunity.
His con-
demnation
expressed
the resentment felt
against
the misuse of
judicial processes.
It is
often assumed that the trial of Varius did not occur until after the lex Plautia altered the
composition
of the courts in the interests of the
nobility.122
This
conjecture
is based
largely
111
Cicero, De Orat. 2, I98: ViX satis honeste
117
BC
I, 40.
This is not conclusive evidence, how-
viderer seditiosum civem ...
defendere ;
De Orat.
2,
ever.
Appian's
list is not
complete. Sulpicius,
202: Ut illud
initio, quod
tibi unum ad
ignoscendum specifically
named
by Cicero,
Brutus
304,
as a
legate,
homines
dabant, tenuisti,
te
pro
homine
pernecessario,
is not included.
quaestore tuo,
dicere.
118
cf. Asconius
73,
Clark: cum multi Varia lege
112
For some trenchant comments on
this,
see
inique
damnarentur.
Meier,
Bonn. Jahrb. i6i
(I96I),
510, who, however,
119 This is a
possible interpretation
of Asconius
tends to throw out the
baby
with the bathwater. See
74,
Clark: senatus decrevit ne
iudicia,
dum tumultus
now M.
Gelzer,
Kleine
Schriften (Wiesbaden, I962),
Italicus
esset,
exercerentur. But see
Cicero,
Brutus 304.
I,
2i8-19.
120
Cicero,
Pro Balbo 2I ; Appian,
BC I, 49;
113
Cicero,
Tusc.
Disp. 2, 57.
Gellius 4, 43.
114
Granius Licinianus
I9,
Flemisch. This
notice,
121
Brutus
305: consequente
anno Q. Varius sua lege
incidentally,
also
helps
to
verify
the Metellan con- damnatus excesserat.
nections of Antonius.
122 cf.
e.g.,
H.
Last,
CAH
ix, I96;
Bloch-
115
Brutus
304. Carcopino,
Hist. Rom.
II, 400; Hill,
Roman Middle
116
This is the
construction
put
upon the passage Class
138.
by Miinzer, RE 2,
2591,
'
Antonius,' n. 28; so also
Badian, Studies
56.
68 ERICH S. GRUEN
on the
commonly
held
assumption,
as earlier
noted,
that the
struggles
of these
years
were
simply
between senate and
knights.123
That this is
patently
false has been demonstrated
by
the fact that
equestrian jurors acquitted
the more
prominent
members of the nobilitas
who were
charged
before them. It is clear that
many
of the
equites recognized
the
injustices
involved in Varius' law and used the
opportunity
in
89
to condemn the author
himself,
thus
belying
the blanket statement of
Appian
that the law was
simply
an instrument of
equestrian vengeance.124
A remark of Cicero
proves
that Varius was
prosecuted
before
the
passage
of the Plautian law. The trial of Cn.
Pompeius
Strabo took
place
cum
primum
senatores cum
equitibus
Romanis
lege
Plotia iudicarent.125 Since Strabo was consul in
89,
his
trial must be dated to 88. Varius
was, therefore, convicted
by
an
equestrian
court.126
Miinzer believed that the
prosecution
of Varius somehow involved an attack on his
citizenship.127
But Valerius Maximus connects Varius'
allegedly shady grant
of
citizenship
only
with his
cognomen Hybrida.128
After the
passage
of the lex
Julia,
it is
unlikely
that a
false
assumption
of
citizenship
would have been the basis of a criminal
prosecution
and
certainly
not one on a
capital charge.
There is no reason to
doubt,
of
course,
that such
accusations were mentioned at the trial.
Anything
was fair
game
at a criminal trial. Rumours
had been
spread
about that Varius was also
responsible
for the death of
Drusus,
and even
for the death of Metellus Numidicus.129 This evidence
may
also derive
ultimately
from
statements made at the trial. But the
charge,
as
appears
from the fact that it was tried under
the lex
Varia,
was maiestas. The most reasonable
explanation
is that the offence cited was
seditio,
i.e. the violent
passage
of his measure
against
tribunician intercession.130
Following
condemnation it seems that Varius was executed.131 If
so,
this is the
only
execution known
under the lex Varia. He must therefore have been detained and forbidden to
opt
for the
alternative of exile.132 Resentment
against
Varius must have been bitter indeed.
No further trials under the lex Varia are known for the
year 89.
Now that the
original
purpose
for which the law had been
passed
was
obviated,
this is not
surprising.
Additional
prosecutions
under it would
simply
have been cases of
maiestas,
for the lex Varia was still
the
operative
law on this offence. There is no reason to believe that the lex Plautia of
89
was an attack on the
equites
for misconduct in the Varian trials. The evidence
shows,
as
has been
seen,
that
equestrian jurors
had not
excessively betrayed
their trust in these cases.
Badian
may
be
right
to associate the Plautian law with the assassination of the
praetor
Asellio
by equites
in
89.133
The senate
probably
took
advantage
of
popular indignation
over
the excesses of the creditor
class,
but not
necessarily
over their
mismanagement
of the
courts. The lex Plautia
provided
for the selection
by
each tribe of fifteen
jurors regardless
of their status.134 This
gave
the measure a democratic
appearance
and
perhaps appealed
to the
populace,
but Asconius is
surely right
in
affirming
that it was
passed
in the interests
of the
nobility.
The control of
voting power
in the tribes would assure that the
personnel
of the courts would be drawn
overwhelmingly
from the senatorial order.135 The lex Plautia
123
Even those who cannot be
charged
with this
erroneous
assumption
continue to misdate Varius'
trial;
cf.
Gelzer,
Abh. Preuss. Akad. Wiss. 2
(1941),
13 (=
KI.
Schrift. ii, 17); Badian, Foreign
Clientelae
(Oxford, 1958) 229,
n.
5.
124
BC
I, 37.
125
Asconius
79,
Clark. Of
course,
the
meaning
here
may simply
be that it was under the lex Plautia
that senators and
equites
first sat on the courts
together.
But even if this be the
point
of Cicero's
remark,
the mention of Strabo's trial in this context
surely implies
that it was the first case heard under
the new
system.
126
Badian,
Proc.
Afr.
Class. Ass. i
(1958), 305
(=
Studies
76-7),
shows that the evidence is not con-
clusive for
dating
Plautius' tribunate.
89
or 88 remain
possibilities.
Asconius'
remark, 79, Clark,
that the
lex Plautia iudiciaria was
passed during
the consular
year 89 surely
makes a tribunate for
89
more
probable,
though
it is
just possible
that the bill was
passed
in
Dec.
89
at the outset of a tribunate for 88. This will
not,
in
any case,
affect the
argument
advanced here.
127
Rom.
Adelsp. 301.
128
Val. Max.
8, 6, 4: propter
obscurum ius civitatis
Hybrida cognominatus.
129
Cicero,
De Nat. Deor.
3, 81 ; Philippus
and
Caepio, naturally,
were also
suspected
of the murder
of
Drusus; Pliny,
NH
28, 148;
Vir. Ill. 66, I3.
130
Lengle,
o.c.
(n. 15), 32-6; Gundel,
RE
15
(2), 389,
'
Varius,'
n. 7. See
above, p.
60.
131
See
above,
n. 21.
132
A
parallel may
be cited in the case of
Q.
Servilius
Caepio
in
Io3;
Val. Max.
4, 7, 3; 6, 9,
I3 ; Cicero,
Pro Balbo 28. The accuser of Varius is
unknown; perhaps
C.
Julius
Caesar
Strabo;
Val.
Max.
8, 2,
2.
133
Livy,
Per.
74; Appian,
BC
I, 54;
Val. Max.
9,
7, 4 ; Badian,
For. Client.
227,
n.
4.
134 Asconius
79,
Clark: ex ea
lege
tribus singulae
ex suo numero
quinos
denos
suffragio
creabant
qui
eo
anno iudicarent.
135 How
long
the lex Plautia remained in effect is
beyond knowing.
No
jury
law is recorded between
that of Plautius and the Sullan law of 8 . Yet much of
the ancient evidence
implies
that Sulla's law
replaced
equites
with senators. That the Plautian law was
repealed
within a
year
and
equites
reinstalled is not
impossible
but there is no
explicit testimony.
For
a
summary
of the ancient evidence and modern con-
clusions see
Hill,
Roman Middle Class
137-8.
69
THE LEX VARIA
did
not,
of
course, repeal
the Varian
law,
but
simply changed
the
composition
of the
juries
who would hear cases under it. The first case heard under the new
arrangement
and the
last recorded
prosecution
under the lex Varia was the trial of Cn.
Pompeius
Strabo.
Pompeius
Strabo was too
strong-willed
and individual a
personage
to be
put
in a
rigid
political
classification.
Nevertheless,
the evidence shows him to have been no friend of the
Metelli. Rutilius
Rufus,
in his
memoirs,
referred to Strabo as
Trapcr6vorpov.l36
This
may
indicate that the latter had been involved in Rutilius'
prosecution.137
That Strabo had some
connections with L. Marcius
Philippus,
the
enemy
of
Drusus,
is
suggested by Philippus'
defence of the
young Pompey
in 86 in a
peculatus
trial.138
Finally,
the
animosity
between
Strabo and
Q.
Pompeius Rufus,
the associate of
Drusus,
is
clearly
attested
by
the assassina-
tion of
Pompeius
Rufus
by
Strabo's
troops
in 88.139 All the
evidence, then, points
to
hostility
between Strabo and those around Drusus. He
may
well have been a
supporter
of
Philippus
in 9I.
The
purpose
of Strabo's trial and the
charges
made have never received a
satisfactory
explanation. Cicero, quoted by Asconius, provides
the
only
evidence for the
trial, saying
simply
that Strabo was
prosecuted
for maiestas under the Varian law.140 Pais and Gelzer
have
suggested
a number of
possible charges
which
may
have been
levelled, though
neither
preferred any particular charge.l41
Both
point
to the statement of Velleius that Strabo
was blocked in a bid for a second consecutive
consulship
for 88.142 This is not
entirely
implausible, though
there is no other
explicit testimony
for it. Strabo was
perhaps capable
of
anything.
Licinianus states that he desired a
consulship
in
87
for 86.143 On the other
hand,
Strabo must have
presided
over the consular elections of
89,
for his
colleague
L. Porcius
Cato had been killed in the course of the
year,144
and there is no evidence for disturbances
or difficulties in the elections. But whether or not Strabo canvassed for a second
consulship,
this would not have been made the
ground
of a maiestas
charge.
Two consecutive consul-
ships
would have been
highly
unusual but not
unprecedented. Only
a decade earlier Marius
had held five consecutive
consulships.
That the mos maiorum had become somewhat lax on
this is indicated
by
the fact that Sulla felt
obliged
to
pass
a law in 8
enforcing
a
compulsory
ten
year gap
between two
consulships.145
A maiestas
charge
would
hardly
have been
appropriate.
Pais
suggested
that Strabo's
making
off with the
booty
of Asculum
may
have been used
against
him at the trial.146 No doubt it was introduced. But it was
certainly
not the formal
accusation laid
against
Strabo. It is true that Strabo's son, Pompeius Magnus,
was
prose-
cuted in 86 for
having
in his
possession property
which was
regarded
as stolen from the
state
by
Strabo. But the
trial, quite properly,
was a case of
peculatus,
not of maiestas.147
If Strabo had been called to account on these
grounds
earlier it would also have been for
peculatus
and would not have fallen under the lex Varia.
Another
suggestion
connects Strabo's trial with his attitude towards the Italians. Pais
believed that his lex
Pompeia
which
gave
Latin
rights
to the
Transpadani
must have been
involved in the
prosecution.
Gelzer adds that Strabo
may
have been
charged
with unneces-
sary prolongation
of the war because of the
shipwreck
of
negotiations
with the Italian leader
Vettius Scato.148 But these
suggestions
are based on the
assumption
that the lex Varia
136
Plutarch, Pomp. 37, 4. On the hostility of the
144
Livy, Per. 75; Appian, BC I, 50; Veil. Pat.
2,
optimate
tradition
generally
to
Strabo, cf. G. H. I6, 4;
Eutropius,
5, 3,
2.
Stevenson, JRS 9 (1919), 97-8.
145
Appian, BC I, 100.
137
See Gelzer, Abh. Preuss. Akad. Wiss. 2 (1941),
146
Orosius
5, i8, 26; Pais, Dalle Guerre Puniche
I5 (=
Kl. Schrift. in,
i
9). I09
; 64-7.
138
Plutarch, Pomp. 2, 2 ; Cicero, Brutus 230.
147
Plutarch, Pomp. 4, I: 51iKrI KAownTrs E^XEV u-rrp
139
Appian,
BC
I, 63 ;
Veil. Pat. 2, 20,
I
; Livy,
cauTo0 85rioaicov
xpOcrTcov
6
Rlonrr'los.
Per. 77; Val. Max. 9, 7, ex. 2. It may also be added 148 For the lex Pompeia on the
Transpadani,
see
that Strabo is
specifically
said to have been unfriendly Asconius
3, Clark; Pliny, NH
3, I38.
For the
to Sulla, Pompeius
Rufus'
adfinis; Appian, BC I, 80. negotiations with Vettius Scato, see Cicero, Phil.
I2,
140
Asconius 79, Clark: Cn. Pompeium causam 27. A further suggestion by Stevenson,
JRS 9 (1919),
lege
Varia de maiestate dixisse.
98,
that Strabo was prosecuted because of his friend-
141
Pais,
Dalle Guerre Puniche 109;
164-7; ship with P. Sulpicius Rufus cannot be substantiated.
Gelzer, Abh. Preuss. Akad. Wiss. 2
(I94i), 13-15
That Sulpicius was, in fact, Strabo's lieutenant in 89
(= Kl. Schrift. II, 117-19). is itself uncertain; cf. Cichorius, R6mische Studien
142
Vell. Pat. 2, 2I, 2:
frustratus spe
continuandi (Leipzig-Berlin, I922), 137-9. All these conjectures
consulatus are summed up by Miltner, RE 42,
2258,
'
Pompeius,'
143
Granius Licin. 19, Flemisch.
n.
45.
70
ERICH S. GRUEN
was a
special
law
dealing only
with offenders who assisted Italian aims. As has been
argued,
this is not a
likely interpretation
of that law.
But,
even
apart
from
this,
Strabo was
hardly
the man to be
prosecuted
on these
grounds.
Not
only
was he an
enemy
of
thefactio
behind
Drusus,
but it had been
largely
his victories in
go
and
89
which
kept
the Roman cause in
the Social War alive. His enfranchisements under the lex
Julia149
were,
of
course, perfectly
legal,
and there is no reason to believe that his
grant
of Latin status to the
Transpadane
Gauls was
any
the less so. It is
very
doubtful
if,
after the
legislation
of
go, sympathy
with
the Italians was ever
again
used as a reason for
prosecution.
It could
hardly
have been used
against
Varius. Strabo was
prosecuted
for maiestas. There is no need to invent
possible
offences,
for a
flagrant
offence
by
Strabo is attested which would fall
neatly
under this
charge.
Sometime late in 88, the consul Sulla sent his
colleague
Q.
Pompeius
Rufus to take
over the
troops
of Strabo in Picenum. The
army, however,
took matters into its own hands
and murdered
Rufus,
doubtless at Strabo's
prompting.150
It is this action of Strabo in
defiance of constitutional
authority
which would
perfectly justify
a trial for maiestas. That
this has never been
suggested
before is due to a
misunderstanding
of the lex Plautia and a
consequent misdating
of Strabo's trial. Cicero
says simply
that the lex Plautia was
passed
in the consular
year 89
and that Strabo's trial was the first heard under the new
judicial
arrangements.151
Since Strabo was consul in
89
he could not have been
prosecuted
before
88. But this does not mean that Strabo was tried at the outset of the
year;
still less that the
lex Plautia was
passed
in order to be
applied against
him and other enemies of the nobilitas.
152
Cicero
implies
no such
thing,
nor does Asconius. The
point
which has been overlooked is
that the lex Plautia made no
change
in the substance of the lex Varia;
it
simply
altered the
composition
of the courts in the interests of the
nobility.
There is no reason to believe that
this
change
was directed
specifically against Strabo, and that his enemies were
waiting
to
pounce upon
him
immediately
after the
expiration
of his consular
immunity.
If this had
been the
only purpose
of the bill, it would have been
superfluous. Equestrian jurors
who
had convicted Varius in
89 might
well have been
expected
to condemn Strabo as well.
Earlier
jury
reforms such as the lex Acilia, lex Servilia Caepionis,
and lex Servilia Glauciae
had not been
passed
in order to make conviction of
particular
individuals more feasible.
The lex Plautia was no different. Its aim was to restore senatorial influence in the courts,
not to condemn
Pompeius
Strabo. Therefore Strabo's trial need not be dated to the
early
days
of 88 and based on unattested offences in the
previous years.
A refusal to
accept
release from command, and the assassination of an
appointed successor, whether or not
Strabo was
directly
involved in the murder, provides
a
legitimate
basis for a maiestas trial.153
The case was therefore
probably
heard in late 88. The outcome is not recorded. Strabo
continued in command of his
troops
in
87,154
but in view of his character and actions this
may simply imply
that he had
ignored
the decision of the court.
One final reference has
usually
been connected with the lex Varia. P.
Sulpicius Rufus,
tribune in 88, proposed, among
other
things,
the recall of exules.155 To understand whether
or not this event was, in fact, related to the lex Varia, it is
important
to
investigate Sulpicius'
background.
149
ILS 8888. linguistic standpoint, opens the way for a solution of
150
This is the story given by Livy, Per. 77, Val. the historical problem.
Max. 9, 7, ex. 2, and Vell. Pat. 2, 20, i. Appian,
152
This is the assumption behind, e.g.
Badian's
BC I, 63, states that Strabo was indignant after the remarks in For. Client. 229, and Studies 76.
murder was revealed, but adds that he lost no time 153 Badian's argument, Hermes 83 (I955), 109-I 2,
in restuming command. Obviously, Strabo was not that the despatching of Pompeius Rufus was vetoed
interested in acceding to the senatorial decision to by a tribune and therefore sanctioned only by a
replace him. senatus consultum is ingenious and not implausible;
151
Quoted by Asconius, 79, Clark: cum primum see Sallust, Hist. 2, 21, Maur. But this will not affect
senatores cum
equitibus
Romanis
lege
Plotia iudicarent, the case argued here. Pompeius Rufus was still the
hominem dis ac nobilitati perinvisum Cn. Pompeium consul in office and could legitimately assume
causam lege Varia de maiestate dixisse. Cicero's cum command of any Roman troops. Defiance by Strabo
primum may, of course, mean either ' when first
'
or of a senatorial order would have led to prosecution
' as soon as '. The latter translation, usually assumed, by his enemies anyway, regardless of the constitu-
has been responsible for many of the difficulties tional niceties involved.
surrounding the trial. It has necessitated the search
154
Sources in Broughton, MRR II, 48-9.
for a possible and unattested maiestas offence in 89.
155
Livy, Per. 77
;
P. Sulpicius tribunus plebis
The former translation, equally possible
from a auctore Mario perniciosas leges promulgasset, ut exules
revocarentur ; also ad Herennium 2,
45.
THE LEX VARIA
7I
His activities and career
prior
to the tribunate of 88 all
stamp
him as a member of the
circle of
Drusus, Scaurus,
and the Metelli. As a
young
man in
95,
he had
prosecuted
C. Norbanus in a case in which Scaurus
appeared
as witness for the
prosecution.156
He was
a
pupil
and close friend of L.
Crassus,
and his
friends,
on the
whole,
were all members of
the Metellan
group,
Antonius,
C. Aurelius
Cotta, Q.
Pompeius
Rufus,
C. Caesar
Strabo,
and,
for the
rest,
his connections with this circle are
readily
seen from his role in the
De Oratore
generally.157
That his association with Drusus himself was
particularly
close
is evident from their
personal friendship,
and from
Sulpicius' prospective
candidature for
the tribunate of
89
to continue Drusus' work.158
Sulpicius
even seems to have been
threatened with
prosecution
under the lex Varia. Cicero
affirms, immediately
after
mentioning
the trial of
Cotta,
that
Sulpicius
was involved in eadem invidiae
flamma.l59
There had thus been no firmer friend of the faction behind Drusus than P.
Sulpicius
Rufus. Yet when he became tribune in 88 he reversed himself
entirely
and became an
ally
of Marius.l60 The first
piece
of evidence
concerning Sulpicius'
reversal of form is his
opposition
to his former friend C.
Julius
Caesar Strabo in Strabo's
illegitimate attempt
to
reach the
consulship
of
87
before he had held the
praetorship.l61
This
switching
of
allegiance
by Sulpicius
seems to be reflected in the
story
of the unknown author of the ad Herennium
that
Sulpicius
first vetoed the recall of exiles and
then, changing
his
mind, proposed
the
law himself.162 But modern scholars
who,
without
exception, regard
these exules as victims
of the Varian law have not faced
up
to the difficulties which this
entails.'63
The men who
had
gone
into exile under the lex Varia in 90
had,
of
course,
been friends of
Sulpicius.
But
if his reversal of form is reflected in the volte-face on the
exiles, Sulpicius
should have first
supported
their recall and then
opposed
it,
rather than the reverse which he
is,
in
fact,
said
to have done.'64 It will not do to assume that this bill referred
only
to the men exiled after
the
passage
of the lex Plautia iudiciaria. This makes the
inference,
earlier shown to be
dubious,
that the lex Plautia was an act of
vengeance
directed
against
the enemies of
Drusus,
as the lex Varia had been directed
against
his friends. A
general
recall of exiles under the
lex Varia would have had to involve all those exiled in
90,
and there is no evidence that the
bill of
Sulpicius
made
any
such distinctions.'65
The
point
is that the evidence on
Sulpicius'
156
See
above, p. 67.
157
For the
friendship
with
Crassus,
see
Cicero,
De
Orat.
i, 97; I, I36; 2, 89; 3, 47;
Brutus
203;
with
Antonius,
see De Orat.
I, 99; 2, 89; 3,
I
;
with
C. Aurelius
Cotta,
see De Orat.
I, 25 ;
with
Q.
Pom-
peius Rufus,
see De Amicit.
2;
with C.
Caesar,
see
De Orat.
2,
I6.
158
Cicero,
De Orat.
I, 25 ; see
above,
n.
64.
159
Cicero,
De Orat.
3, 11 ;
cf. on
Sulpicius'
con-
nections
Miinzer,
RE
7 (2), 843-6,
'
Sulpicius,'
n.
92,
and W.
Schur,
Das Zeitalter des Marius und
Sulla,
Klio
Beiheft (Leipzig, I942), I27-9.
160 The reasons for
Sulpicius'
volte-face are
prob-
ably
unfathomable and cannot be
investigated
in
detail here. It is
only
to be
expected
that
optimate
sources would not be kind to a
renegade.
His con-
version, therefore,
is ascribed to
heavy
debts and
bribery by
the
equites; Plutarch,
Sulla
8;
see
Pareti,
Storia di Roma
III, 556-8.
More
probably,
the
potential
involved in an alliance with Marius was
too
tempting
to be
ignored.
Marius had
long
coveted
the command
against
Mithridates and
employed
Sulpicius
to block the similar desires first of C. Caesar
Strabo and then Sulla.
161
Cicero,
De Har.
Resp. 43;
Brutus
226;
Asconius
25, Clark; Quint.,
Inst. Orat.
6, 3, 75;
Priscian
5, 44. Badian,
For. Client.
231,
and Studies
51,
believes that Caesar Strabo was
standing
in
89
for 88 and that
Sulpicius opposed
him at the
very
outset of his tribunate in December of
89.
This is
very
difficult to
accept.
In the De Har.
Resp. 43,
Cicero does affirm that
Sulpicius opposed
Caesar
Strabo ab
optima
causa and was then carried
away by
popularis
aura. But the
optima
causa
ought
not to be
pressed.
In
any case,
this
passage
offers no chrono-
logy.
Diodorus
37, 2, 12,
is
explicit
that the
rivalry
between Strabo and Marius for the chief
magistracy
occurred
during
the
consulship
of
Sulla,
i.e. 88.
There is thus no
justification
for Badian's statement
that
Sulpicius
acted here ' on behalf of the boni ' and
that 'it was
only by
accident that he found himself
co-operating
with Marius and his
supporters
'. Since
Sulpicius
acted in concert with Marius in
88,
it is
hardly necessary
to describe his
activity
here as
'accidental '
162 Ad Herennium
2, 45
: velut
Sulpicius, qui
inter-
cesserat ne exules
quibus
causam dicere non licuisset
reducerentur,
idem
posterius,
immutata
voluntate,
cum
eandem
legem ferret,
aliam se
ferre
dicebat
propter
nominum commutationem
;
nam non
exules,
sed vi
eiectos se reducere aiebat. In the
context,
immutata
voluntate must mean that
Sulpicius alleged
he had not
changed
his mind.
163 cf.
e.g. Last,
CAH
IX, 202; Bloch-Carcopino,
Hist. Rom.
II, 404; Hill,
Roman Middle Class
142;
Pareti,
Storia di Roma
III, 556;
A. H.
J. Greenidge
and A. M.
Clay,
Sources for Roman
History I33-70
B.C.,
rev.
by
E. W.
Gray (Oxford,
I960), I62;
H. H.
Scullard,
From the Gracchi to
Nero,
2nd ed.
(New
York, I963), 71.
164
This measure on the exiles was
presumably
mplemented
in
87
when Cinna revived the
leges
Sulpiciae; Appian,
BC
I, 73.
Yet C. Aurelius Cotta
did not return to Rome before
82; Cicero,
Brutus
311.
165
Lange,
Rom. Alterth.
3, I23,
makes the extra-
ordinary
statement that the law
sought
to recall all
the
equites
banished after the
passage
of the lex
Plautia. There is no evidence to
suggest
that
any
eques
was
prosecuted
under this law.
Carney,
A
Biog.
of
Marius
54,
n.
250,
believes that all the exiles in
question
were Marians. But not a
single
'Marian'
is known to have been in exile in 88.
72
ERICH S. GRUEN
action makes no mention of the lex Varia. Since the recall of Varian exiles would be incon-
sistent with
Sulpicius'
attitude in
any case,
there is no need to
impose
this
upon
the ancient
evidence which does not
give
it.
Moreover, Sulpicius'
defence of his motion was that these
men were banished without benefit of
trial,166
whereas the exiles under the lex Varia had
been tried
by
a
duly
constituted
quaestio.
The
rogation
to recall
exiles, then,
can have had
nothing
to do with the Varian law.
It would be a
tempting hypothesis
to associate the exules
comprised
in
Sulpicius'
measure with the Latins and Italians who had been victims of the lex Licinia Mucia of
95
and of the censorial edict of
92.167
These measures had been
inspired by
the Metellan
factio.
Crassus and Scaevola were the consuls in
95
and Crassus was censor in
92.
This
would make
Sulpicius'
actions in 88
intelligible.
While still
maintaining
his old
loyalties,
he
dutifully
vetoed a
proposal
to recall the
exules,
but after his desertion of his old com-
patriots
he
sponsored
the measure himself. Such a motion would also
go
hand in hand with
his
pro-Italian
bill to distribute new citizens
among
all the
thirty-five
tribes.
However,
the
lex Licinia Mucia does not
appear
to have been an
expulsion
measure. It
sought simply
to
remove from the citizen rolls men who had been
illegally registered.168
The censorial edict
of
92
did
expel
Latin
rhetors,
it
seems,
but this will not have affected an
appreciable
number.
Perhaps
there were other similar
edicts,
unrecorded but related. Further
conjecture
is
pointless.169
The lex Varia, in
any case, already
neutralized in late
90
and in
89,
could no
longer
have been an issue in 88.
In sum, therefore, an
attempt
has been made to understand the lex Varia and the trials
connected with it in their
proper
historical context. The law did not establish a
quaestio
extraordinaria, but redefined the notion of maiestas to
correspond
with its own
political
purposes.
The
equites
should no
longer
be made
scapegoats
for an
iniquitous
bill. The
Metellan
group
was the
object
of this
measure, which defined
sympathy
with the allies as a
maiestas offence in order to attack the men associated with Livius Drusus.
Equestrian
jurors acquitted
themselves
honourably,
for the most
part,
and the Metellan
group, though
damaged,
survived.
Varius, the homo
importunissimus,
himself suffered
condemnation, but
his measure remained until Sulla the operative legislation
on
high
treason. Factors other
than
judicial
caused disenchantment with the business classes; one of the
consequences,
however, was a more
equitable
distribution of
personnel
on the courts under the lex Plautia.
The trial of
Pompeius
Strabo was the first under the new
jury arrangements;
it was also
the last recorded under the lex Varia. The
powerful
and
unscrupulous
Strabo ushers in a
new era. In 88 hostile
passions
flared into
open
violence.
Though
Marius drew with him
the ex-Metellan
Sulpicius Rufus,
the
group
as a whole backed L. Cornelius Sulla. The clash
over an Eastern command
precipitated
a crisis. Violence and civil war
disrupted legal
procedure
in the
following
decade until
Sulla,
himself a product
of this
era,
restored it under
a
tightened and more
comprehensive regimen.170
Harvard
University.
166
Ad Herennium 2,
45:
exules
quibus
causam opposed the recall of
exiles,
rather than the reverse.
dicere non licuisset. This solution does not seem possible, however. The
167
Sources in Broughton, MRR ii, ; I7. Epitomator of Livy 77, states that Sulpicius proposed
168
This has been
convincingly demonstrated by the recall of exiles at the instigation of Marius:
R. W. Husband, CP Ii (I9i6), 32I-3;
Gabba,
auctore C. Mario.
Athenaeum 31
(1953), 260-2;
Badian, For. Client.
170
Much improvement in this paper is due to
297, Note R. Cicero, De Off. 3,
47,
clearly contrasts advice provided by Prof. E. Badian of Leeds,
the lex Licinia Mucia with decrees of expulsion. Prof. T. R. S. Broughton of Bryn Mawr, and
169
The problem would be resolved if the author Prof. M. Hammond of Harvard.
Remaining defects
of the ad Herennium is assumed to have made an are to be ascribed to the author alone.
error, and if Sulpicius first supported and then
THE LEX VARIA
73