BAUMAN, The Lex Valeria de Provocatione of 300 B.C.

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The Lex Valeria de provocatione of 300 B.C.

Author(s): R. A. BaumanSource: Historia: Zeitschrift für Alte Geschichte, Vol. 22, No. 1 (1st Qtr., 1973), pp. 34-47Published by: Franz Steiner VerlagStable URL: http://www.jstor.org/stable/4435312 .

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THE LEX VALERIA DE PROVOCATIONE OF 300 B.C.*

The lex Valeria of 300 B. C. is the only one of the three Valerian laws of

provocatiolto enjoy unanimous acceptance by scholars. This unusual state of

affairs almost arouses suspicion, so conditioned have we become to doubt

and deception in these matters, but despite one uncomfortable passage in Ci-cero2 there is no serious reason to challenge the communis pinio. There is,

however, anything but the same unanimity on the question of the purpose of

the law, and it is on that aspect, in the main, that this paper will concentrate.

The position on provocatio s a whole from which the discussion will proceed

is based, with some reservations, on the system of C. H. Brecht: the restric-

tion of 'echte Provocation' to the verdicts of iviperium-holders.3As for the

legesValeriae on the subject of provocatioprior to 300, the writer's position is

that the law of 509 suffers from an unbridgeable credibility gap and that the

Valerio-Horatian legislation of 449 is at best an act of faith, although onecannot be quite so emphatic about this as about the earlier law.4 This may

make the third Valerian in reality the first lex deprovocatione,ut that is by no

means the same thing as saying that this law marks the beginning of the insti-

tution known as provocatioadpopulum: current opinion is quite prepared to

assume the imperium-holder'scustomary observance of the limits ofprovocatio

*This article is a slightly revised version of a paper read at the conference of the Australian So-

ciety for Classical Studies in Sydney in August, 1971.2 For the sources for the other two laws, of 509 and 449, see Rotondi, LPPR 190, 204.

' Cic. Rep. 2. 53 ff., where mention is made of regal provocatio,he lex Valeria of 509, the XII

Tables, the lex Valeria Horatia of 449 and the three legesPorciac on which see below), leaving the

lex Valeria of 300 as the one striking omission.

' Brecht, ,Zum romischen Komitialverfahren', ZSS 64 (1939), 261 if. The one aspect for which

Brecht's assumptions are not convincing is the jurisdiction of the pontifex maximus, to which the

writer hopes to advert on another occasion. For a full discussion of provocanaotheories since

Mommsen and for the most comprehensive statement of the 'anti-provocatio'iew see Bleicken,

,Ursprung u. Bedeutung d. Provocation', ZSS 76 (1959), 324 ff.with lit. Add Staveley, 'Provocatio

during the fifth and fourth centuries B. C, Historia 3 (1954/55), 412 ff.; v. Lubtow, Das romiscbe

Volk, Frankfurt a/M, 1955, 93, 102, 128, 149 f., 156 f., 216, 250 ff.; Kunkel, Unters. z. Eniwicklung

d. rom.Kriminalverfabrensn vorsullanischereit, Munchen, 1962, 9 f., 24 ff., 30 ff., 87 f., 131; Bau-

man, 'The Duumviri in the Roman Criminal Law and in the Horatius Legend', Hisaoria: Ein-

zelscbr.12 (1969), with lit.

4 For arguments rejecting both laws see Staveley, o. c. 413 ff.; Ogilvie, CommentarynLivy, Ox-

ford, 1965, 252, 499 (with some reservations in regard to the law of 449). A view more favourable

to at least the second Valerian is taken by Siber, Rom. Verfassungsrecht,ahr, 1952, 127 ff.



The Lex Valeria de Provocatione of 300 B. C. 35

long before those limits were defined by statute,5 and that is a perfectly suffi-

cient basis for the enquiry to be undertaken here.The lex Valeria of 300 was the work of a Marcus Valerius who held the

consulship that year6and who is either the polyconsular M. Valerius Corvus

or his son, M. Valerius Maximus.7 One might be inclined to favour the lat-

ter, if only because a man who first held the consulship in 348 is not a persu-

asive candidate for the same office nearly fifty years later, even if he lived to a

hundred as the sources say he did.8 It is, however, extremely difficult, and

not strictly necessary for our purpose, to unravel the entanglements of the

two Valerii, and it is proposed to weigh up the evidence on the assumption

that the author of the lex Valeria was one or the other of them.Livy, who is our sole source for the law, says that Valerius proposed a law

of provocatiowith a stricter sanction.9 It was the third law of its kind to eman-

ate from the Valerii, the other two having failed because the wealth of a few

had outweighed the liberty of the plebs. But in reality only the lex Porcia

protected the backs of citizens, because it alone exposed those who scourged

or executed citizens to a gravis poena.10The lex Valeria also forbade the

scourging or execution of a citizen who had exercisedprovocatio,but it mere-

ly made contraventions improbefactum;11his, adds Livy, might have sufficed

in those days of pudorhominum, ut not in more recent times.12There are two preliminary observations to be made on this passage. The

first is that the si quisfecissetwhich Livy attests as part of the phraseology of

the lex Valeria is a more primitive form than the qui fecisset attested for the

Valerio-Horatian legislation of 44913and enhances the prospects of the third

Valerian. The second observation concerns Livy's allusion to the sanctions

attaching to the Porcian and Valerian laws. The penalty of improbefactumun-

der the lex Valeria may not have been nearly as innocuous as Livy professes

to think. It may have been censorial infamiaH4 cf. pudorhominum nd the simi-

lar penalty in a law of the XII Tables15), and if in 58 a lex Clodia required thecensors to accuse formally before excluding from the senate or imposing ig-

nomninial it is quite possible that this penalty was already viewed seriously at

5 See esp. Staveley, o. c. passim. Cf. v. Likbtow, o. c. 250 if.; Ogilvie, o. c. 499.6 Livy 10. 9. 3.

7 On these two Valerii see Volkmann, RE 8A. 1. 2413 fr., 2. 120 ff., s. v. 'M. Valerius Corvus',

'M. Valerius Maximus'. 8 Cic. DeSen. 17. 60; Val. Max. 8. 13. 1.

9 Livy 10. 9. 3: 'M. Valerius consul de provocatione legem tulit diligentius sanctam.'10 Ib. 10. 9. 3 f. and esp. 'Porcia tamen lex sola pro tergo civium latavidetur, quod gravi poena,

si quis verberasset necassetve civem Romanum, sanxit.'

11 lb. 10. 9. 5: 'Valeria lex cum eum qui provocasset virgis caedi securique vetuisset, si quis ad-

versus ea fecisset, nihil ultra quam "improbe factum" adiecit.' 12 lb. 10. 9. 6.13 Cf. the tests laid down by Daube, Formsof RomanLegis/alion,Oxford, 1956, 1, 3 ff.14 Cf. Bleicken, o. c. 361. 16 FIRA 1. 62: 'inprobus intestabilisque esto.'16 Rotondi, LPPR 398.

3*



36 R. A. BAULMAN

the end of the fourth century, especially in the wake of the lex Ovinia of,

probably, 312 transferring senatorial admissions and exclusions from theconsuls to the censors.7 As for thegravispoena which Livy attests for the lex

Porcia, it is not simply 'a heavy penalty'.'8 It is, in Livy's context, clearly

'heavier' than the Valerian sanction, but it seems capable of bearing a more

precise technical connotation, namely 'a capital penalty': it is perhaps no ac-

cident that Livy elsewhere attests a capital safeguard for provocatio, lthoughin a chronologically impossible setting,"9 and there is also room for the

suggestion that gravis specifically implies a capital penalty in contrast to the

levispoenaor non-capital remedy.20

The immediate predecessor to the lex Valeria in Livy is the lex Ogulniaad-mitting plebeians to the priesthoods,2' and on the face of it we simply have

here two measures in the plebeian interest. But the age of Appius Claudius

Caecus is well past the days of such innocent diversions, and it should not

readily be supposed that opinions on measures such as these were polarised

around specifically patrician and plebeian nuclei. Moreover, it was not the

Roman practice to legislate in isolation, and the lex Valeria will gain in credi-

bility if the particularabuse that prompted a law of provocation 300 B. C. can

be identified, and if it can be linked to the realities of the contemporary polit-

ical scene. Livy's Sallustiancommonplace is fatuous, but Mommsen and oth-ers have suggested that the law brought the dictatorship under provocatio,22

and the possibility of this having been one of the objectives of the law23 s

what it is proposed to test in this paper.

17 On the sources for this law see Rotondi, LPPR 233.1 PaceFoster, Loeb. ed. ad loc.

1? Livy 3. 55. 14, attesting a plebiscite qui magistralum ineprovocationereasset, ergoaccapilepuni-

relur,thus duplicating (although with a different penalty - see below) the Valerio-Horatian ban on

the creation of provocatio-freemagistrates which Livy 3. 55. 5 dates to the same year (449).

20 See for example Cic. Cat. 1. 1. 3 (s. c. grave); Livy 29. 21. 5 (graviedicto . . non evipoena cf.the undoubtedly capital proceedings against Pleminius): Suet. Aug. 51. 1 (alterumpecunia,alterum

levi exilio - both, in Suetonius' context, non-capital). 21 Livy 10. 6. 3-9. 2.

22 Mommsen, Staatsr. 1. 150 n. 2, 2.165; Greenidge, The Leg. Proc. of Cicero'sTime, Oxford,

1901, 319 (with the qualification that the dictator's powers were only thus restricted in Rome, not

militiae); Staveley, o. c. 428; and (in the course of a most informative discussion of the whole

question of the dictator's jurisdiction) v. Liibtow, o. c. 284 f.

23 There will undoubtedly have been other objectives, especially if - as is believed by almost a

communis pinio oday - the law of 300 was the first formal legislative recognition of provocatio. o

for example Staveley loc. cit.: 'The jurisdictional competence of the dictator will in all probability

have been officially restricted at precisely the same time as that of the consul - by the only authen-

tic lex Valeriaof 300 B. C.' The only amplification of this that seems to be needed is that the lexwill have done two slightly differentthings: (i) it will have formalised previous customary practice

in the case of imperium-holders ther than the dictator; and (ii) it will have imposed on the dictator

a limitation not previously existing at all (at first only domi,as Greenidge thought, since there is no

question of the intervention of provocaiton the area of Kriegsrecht as early as this). The view of

Bleicken, o. c. 360 f., that in 300 the tribunes were given competence in political cases and that as a




The first piece of evidence is the dictatorship of L. Papirius Cursor, Gar-

zetti's 'patrizio illuminato',24 in 325. Papirius, according to Livy, summarilycondemned his magisterequiitum,Q. Fabius Maximus Rullianus for engaging

the Samnites in breach of orders, although successfully.25 (The engagement

and the lack of authority have epigraphical validation,26 although the sequel

does not.) Papirius' legati having urged that Rullianus' execution was not in

the public interest, but in vain (the discretionary jurisdiction refusing to be

guided by the consilium?),Rullianus escaped to Rome and consulted the sen-

ate, but was arrested by Papirius. Rullianus' father invokedprovocatio on his

son's behalf, and called on the dictator to subordinate his office to provocatio,

as even a king had done. The father then addressed a contio,saying that thepeople had never sentenced even unsuccessful commanders to more than a

fine, but now capital proceedings were being brought obrembellomalegestam.

The account ends with Papirius refusing to exonerate Rullianus, but agree-

ing to pardon him as an act of grace after being abjectly entreated by thepo-

pulus Romanus,the tribunes and the Fabii.27Livy informs us in a postscript

that M. Valerius, a legatus placed in command during Papirius' absence,

refused to take independent action to save a foraging detachment, so great

was the fear inspired in him by Papirius' treatment of Rullianus.28This critic

of the provocatio-free dictatorship (he is also one of the legatiwho opposedthe execution of Rullianus) is either Valerius Corvus or h-is son.29

Bleicken rejects the Papirius-Rullianus episode as a doublet of the con-

frontation between Fabius Cunctator and Minucius Rufus,30 but other than

engaging the enemy without authority the similarities are not obvious, quite

apart from the fact that the doublet could just as easily have run the other

way: there is, after all, no special virtue in the tradition for Fabius Cunctator

and Minucius Rufus. If a doublet is wanted, the trial of Horatius, Livy's oth-

er leading case on provocatio,has the identical phenomenon of the father

speaking for the son and beginning with a confident submission of law, onlyto end up with an abject plea for mercy.3' But relegation to the realm of

Gracchan legerdemain should be resisted here, if only because there is not,

despite Plaumann,32sufficient proof of a direct line of descent from the provo-

result the informalprovocatiohat had hitherto been a dc facto brake on imperium ecame redundant- in other words, that the first lex deprovocatione id not so much formaliseprovocatioas abolish it -

has not attracted support. See the criticisms of Kunkel, o. c. 29 n. 91.

24 Garzetti, 'Appio Claudio Cieco nella storia politica del suo tempo', Athenaeum25 (1947),

175 if. at 185. 2S Livy 8. 30. 2-32. 10. "6 ILS 53."7 Livy 8. 32. 14-35. 9. *8 Ib. 8. 35. 10 f.29 On the identity of this Valerius cf. Broughton, MRR 1. 148 and n. 2.20 Bleicken, o. c. 333. The case seems, however, to be accepted as genuine by v. Lubtow, o. c.

283 f. a1 Bauman, o. c. 27 f., 30 ff.

82 ,Das sogenannte Senatus consultum ultimum', Klio 13 (1913), 321 ff.



38 R. A. BAUMAN

catio-freedictatorship to the senatus onsultm ultjmu,,,,33 and it should be sup-

posed that beneath the embroidery of the Papirius Cursor affair there lurks agenuine crisis. The rejection of provocatioby a friend of Q. Publilius Philo

and its advocation by the patrician Fabii and the senate is no doubt prima fa-

cie anomalous, but the annalist does not seem to have seen anything incon-

gruous in it. In any event, let us first examine our next, and most important,

case, the trials of 314 arising out of the disaffection in Campania.

Livy says, under 314, that secret conspiracies of the nobles at Capua were

reported to the senate, whereupon quaestioneswere decreed and C. Maenius

was nominated as dictatorquaestionibusxercendis.The Capuan leaders antici-

pated trial by suicide, but Maenius retained his commission and transferredthe investigation to Rome, claiming that the senate had not merely ordered

an enquiry into certain individuals at Capua, but a general investigation of

those who had combined or conspired anywhere adversusempublicam,and as

combines for securing office had been entered into against the Republic, the

terms of the senate's decree applied.34This ingenious extension of the decree

(and of the concept of treason which it embraced) from conspiracies proper

to electoral combines enabled Maenius, who found his unfettered jurisdic-

tion by no means unwelcome, to conduct a wide-ranging enquiry. Charges

having been laid against a number of unnamed nobles, the accused appealedto the tribunes; but they were refused auxilium, drawing from Maenius the

taunt that they did not seem to mind seeking refuge in plebeian safeguards.

Thereupon the united nobility, and not merely those against whom charges

were pending, claimed that the real exponents of electoral corruption were

the new men. This induced Maenius to resign his dictatorship in order to

stand trial. The senate gave the consuls a mandate to take over the enquiry,

but Maenius and his mvagisterquitum,M. Folius, were acquitted, despite the

testimony of the nobles, as was Publilius Philo who was charged with them.

The quaestio an out of illustrious defendants and began trying the lower ord-ers (viliora capita), until the combines and factions which had called it into

being finally put it down.35

33 Plutarch CG 18. 1 says that Opimius was the first consul to exercise the power of a dictator

(np(iroC i0V(rIxq 6LKTaiTOpO E'vt5naretqXpparadyvoC),but Appian BC 1. 16 expresses astonish-

ment at the fact that the senate did not appoint a dictator against Ti. Gracchus, and at the fact that

a resource which had been found most useful in former times was never even recalled to mind,

either henor later.Appian is to be preferred, inter alia because Cicero Dc Oral. 2. 132 ff. and Part.

Oral. 104 makes not the slightest suggestion that dictatorial authority was the basis of Opimius'

defence in 120, nor does he suggest in his CatilinarianCorpus that he himself possessed such au-

thority in 63. Moreover, the dictatorship had ceased to be provocatio-freey the Gracchan periodirrcspectivc of whether such cessation had occurred in 300 or subsequently, so that there was no

dormant power left to revive.

34 Livy 9. 26. 5-9 and esp.: 'non nominatim qui Capuaesed in universum qui usquam coissent

coniurassentve advcrsus rem publicam quaeri scnatum iussissc; et coitiones honorum adipiscen-

dorum causa factasadvcrsus rem publicam esse.' 35 lb. 9. 26. 10-22.




This important case has not received the attention that it deserves. The

Otaestio MUaenianas, on the face of it, a special commission instigated by the

senate, and as such the ancestor of the Bacchanalian and subsequent commis-

sions, except that it is the only instance of such a commission being conduct-

ed by a dictator rather than by the consuls (unless the enquiry deconiurationi-

busprincipum n Etruria in 203 was held by the dictator P. Sulpicius Galba, as

Livy implies in one place, rather than by the consul C. Servilius Geminus, as

he implies in another36).As to whether it is the firstspecial commission of any

description, whether dictatorial or consular, to be set up under the aegis of

the senate, the trials of women poisoners in 33137 no doubt have priority, but

since the accused were, as women, precluded in any event from provocatiotheir case is not directly in point. A more serious rival is Papirius Cursor, not

so much during his dictatorship in 325 as in his capacity as consul (or mag.

equiturn)n 320 or 319,38when he conducted a quaestioagainst the Roman ci-

tizens responsible for the defection of Satricum and scourged and beheaded

the guilty under the authority, we are told, of a plebiscite giving the senate

the iusdeSatricanis ententiaedicendae.39f this is genuine40there may have been

a similar law for the Quaestio Maeniana,and indeed the whole idea of such a

plebiscite might have large consequences for the later criminal jurisdiction of

the senate, although that cannot be gone into here.One of the difficulties of the QuaestioMaeniana s the fact that the Capito-

line Fasti differ from Livy by making Maenius dictatorreigerundae aussa n-

stead of quaestionibusxercendis a version partly corroborated by Diodorus,4'

although he does know of the institution of trial proceedings at Capua and of

the suicides of the defendants. But Kunkel has suggested that the more gen-

eral title of reigerundaecaussa s not necessarily irreconcilable with Livy, to

which we may add that the annalist had nothing to gain by falsifying the de-

signation, and his message should be accepted at face value: not just Kriegs-

recht, but public crimes proper were now being brought under the provoca-tio-free dictatorial jurisdiction.

It is possible that the new enlargement of the dictator's forensic powers

was prompted in the first instance by uncertainty as to the judicial rights of

the Capuans. If the defectors derived their title from the Campanian equites

3l lb. 30. 24. 4, 30. 26. 12. 87 On these see Kunkcl, o. c. 26 f., 57 n. 216.

38 On Papirius' fluctuations in this period see below.Il Livy 9. 16. 10, 26. 33. 10.

40 There is no obvious reason to doubt thc tradition herc. Exiernal treason was involved, whichrules out any Gracchan implication. It is instructive to find the same PaDiriusCursor who (nearly)

scourged and beheaded in summary fashion in 325 now doing the same thing in a much more con-

trolled fashion, and the possibility cannot be excluded that the Satrican plebiscite represents a re-

action against his previous modus operandi. On the citizenship rights of the Satricans see below.41 Diod. 19. 76. 3-5.



40 R. A. BAUMAN

who had been made citizens as the reward of loyalty in 340,42 they will have

been civesoptimo ure and clearly entitled to provocatio.But what if they be-longed to those who had acquired their citizenship under the general grant

of 338? In that case they will have possessed the rights of the civitassinesuffra-giov,43 but it is by no means certain that even this limited form of citizenship

was unequivocally sineprovocatione.On general grounds it should be safe to

assume that the civitas conferred on the Campanians in honour of their

equites" carried some privileges as well as obligations ;I moreover, there is

nothing in what is known about any of the laws ofprovocatio o suggest that a

restricted meaning should be given to the civeswho were entitled to protec-

tion under those laws. There is some specific evidence to corroborate thesegeneral probabilities. It was certainly clear by 210 that because the Capuans

were Roman citizens the senate could not act against them iniussu opuli;48

but the question was being canvassed long before that, notably in 270, when

the mutinous Campanian legionaries were executed in spite of the objections

of the tribune, M. Fulvius Flaccus, to the execution of citizens adversusmorem

maiorum.47Even earlier, in 323, the tribal assembly at Rome had tried the

people of Tusculum, under the Flavian rogation, for helping the enemies of

Rome; 48 the citizenship of the Tusculans was sine suifragio in Mommsen's

view, and although current opinion holds otherwise it is by no means certainthat Mommsen was wrong.49 The case of the citizens of Satricum belongs

here. They were probably civessinesuffragio,50and when regard is had to the

confused career of Papirius Cursor in 320-19, a period in which he is reputed

to have held two consulships and two appointments as miagister quitum,51t

may just possibly be supposed that the quaestiohat he conducted against the

Satrican defectors52was in his capacity as subordinate to aprovocatio-freedic-

tator rather than as consul; in other words, the Satricansmay have possessed

2 On this grant see Bernardi, 'Roma e Capuanella seconda meta del quarto sec. av. C.', Athe-

naeum20 (1942), 86 ff., 21 (1943), 21 ff. at 86 f. and passim, with lit.

" Bernardi, o. c. 87 and passim.

u Livy 8. 14. 10: "Campanisequitum honoris causa, quia cum Latinis rebellarenoluissent,...

civitas sine suffragio data.''" On the nature of the civitas inesuffragion general see esp. Sherwin-White, The RomanCitizen-

ship, Oxford, 1939, 37 if. The right of prowocatioould be conferred quite independently of citizen-

ship, as lex Acilia 78 shows, and it was a fortiori well suited to the entitlement side of the unen-

franchised citizenship.

46 Livy 26. 33. 10 ff. and esp. 'per senatum agi de Campanis qui cives Romani sunt, iniussu po-

puli non video posse.' Cf. Bernardi, o. c. 90.47 Val. Max. 2. 7. 15. 48 Livy 8. 37. 8 ff.

49 Mommsen, Staatsr. 3. 571 n. 1, 573. Contra Sherwin-White, o. c. 56 f.; Salmon, Samnium nd

the Samnites,Cambridge, 1967, 210 n. 1.'I Salmon loc. cit."I Broughton, MRR 1. 152 f., 154. 52 Above.




the right of provocatioand the sub-dictatorial jurisdiction53 may have been

used in order to circumvent that right.

It is, on all the evidence, reasonably possible that the Capuan defectors

were entitled to claim trial apudpopulumn Rome, or at any rate that at that

early stage of the unenfranchised citizenship there was an arguable case for

such a right, and this gives a feasible motive for the creation of a new type of

dictatorial provincia,namely quaestionibusxercendis,which could be exercised

on the spot at Capua and without provocatio, o as to termninatewhat was ob-

viously a serious state of disaffection without the considerable delays in-

volved in the procedure of tribunes and assembly. This perfectly credible ex-

ploitation of the dictatorial jurisdiction will have been the work of a faction

intent upon preserving the progressive mercantile policy focussed on the

south, and especially on Campania,to which scholars have recently drawn at-

tention.64 We may see this policy as having enjoyed the general support of

the patricio-pleibeian nobility over the preceding decades but as having been

called in question in 314,6$and thus at about the time of theQuaestioMaeniana.

Those who now opposed it will have included Fabius Rullianus,66 who

thereby possibly ushered in the long Fabian policy of caution that found its

greatest exponent in Fabius Cunctator. The continued protagonists of the

progressive mercantile policy will have been found among those who sup-ported Publilius Philo and will have included C. Maenius and Appius Clau-

dius Caecus (cf. his Appian Way to Capua). Indeed it would not be surprisingif the subsumption of public crimes proper under the dictator's jurisdiction

had originated in the fertile mind of Appius Claudius, the first credible figurein Pomponius' catalogue of jurists.67There must, at any rate, have been

some signal service rendered by Appius to his party if he was supported for

the censorship in 312 without having been consul.68

Thus far the QuaestioMaenianamakes good sense, but its second stage, the

transference to Rome and the proceedings deambitu, s more difficult, sufferingas it does not only from the anonymity of Livy's account, but from the factthat not even anonymously are any condemnations attested. If one looks for

acts that might have generated charges of electoral corruption at aboutthis time, there are possible indications of manoeuvring by the Publilius

group in 326, a dominant year for their faction, the rear of the first ever

prorogation of imperiumr69 nd also, as Staveley has pointed out,60 the year

63 Such a jurisdiction is not attested but seems a feasible inference from Mommsen's analysis of

the position and powers of the mag.eq., SIaa/sr. 2. 162 f., 178 ff., and in particular from the dicta-tor's power of delegation.

5" Staveley, 'The political aims of Appius Claudius Caccus', Historia 8 (1959), 410 ff., passim;

Salmon, o. c. 240 and passim. 55 Salmon, o. c. 240. 5" lb. 240 n. 3.

57 Dig. 1. 2. 2. 36; 58 On his career sec Broughton, MRR 2. 545.

59 Livy 8. 23. 10-2. 'I 0. c. (n. 54 above) 427.




to that of the nobles, but other than this they neither increase nor diminish

the veracity of the consular quaestio.There is, however, one point againstconsular trials, and that is the concluding activities of the commission, when

it ran out of illustrious defendants and turned its attention advilioracapita. In

Livy's context this phase belongs to the consular quaestiorather than to the

dictatorial, but 314 was an extremely difficult year,65and even if the consuls

had been able to spare the time to try Maenius, Folius and Philo it is scarcely

to be supposed that they were able to linger in Rome trying underlings. Con-

sequently the QuaestioMaeniana, presided over by someone whose services

were not urgently required for military purposes, is probably the only au-

thentic tribunal of the two, and even then it seems reasonable to assume thatthe underlings were tried for complicity in the Capuan rebellion rather than

for corrupt particpation in Roman politics. It is therefore suggested that af-

ter the abortive proceedings at Capua itself the Maenian commission operat-

ed at Rome on two different levels: it continued with charges of rebellion,against the accomplices, and it enlarged its competence by bringing in

charges of electoral corruption against the political enemies of those who

were controlling the quaestio.6(This does not quite require the total rejection

of the trials of Maenius and his friends, because their trial by the people at

the instance of the tribunes and the subsequent suppression of this by the tra-dition is always possible; alternatively, as long as the consuls are not called

upon to waste their time trying vilioracapita [for ambitus Livy in no way im-

plies that the rebeliion trials went before any tribunal except the Quaestio

AVlaeniana]here is no fundamental objection to their having tried Maenius,

Folius and Philo.)

The OuaestioMaenianarepresents the mercantile faction's deliberate ex-

ploitation of the provocatio-freedictatorship against internal political oppo-

nents as well as against enemies of the state. This does not, however, imply a

foreshadowing of the senatusconsultum ltimum.The group that should pre-dictably have set its face against the abuse of legal process certainly capitalisedon the unique advantages of the dictatorship, but unlike the OuaestioAMami-liana, about which even Sallust has some hard things to say,67 the Maenian

commission did not act arbitrarily, as the annalist is at pains to make clear

when he has Maenius rather preciously decline to comment on the nobles'reasons for fearing his quaeshio, n the grounds that any such comment would

be an improper prejudgment of their guilt.68 Those who agree with Plau-mann about the antecedents of the s. c. ultimum can no doubt say that the an-

65 lb. 9. 24. 1-26. 5 (esp. 'eodcm anno, cum omnia infida Romanis essent'), 9. 27.'I A further point in favour of the vilioracapitahaving been tried by the Maenian commission

rather than by the consuls is Livy 9. 26. 9, where it is said (at a stage well before Maenius' abdica-

tion) that the enquiry was broadened in respect of both charges and persons: 'latior et re et perso-

nis quaestio fieri.' 67 Sall.Jug. 40. 5. 68 Livy 9. 26. 10 f., 15.



44 R. A. BAUMAN

nalist constructed this fair-minded dictatorship in order to deny L. Opimius

his precedent, but even if falsification on this score could be urged it wouldby no means require the total rejection of the quaestio.On the contrary, the

more unfair the tribunal in fact was, the stronger does the hypothesis here

being advanced become, since the need for the subsumption of the dictator's

jurisdiction underprovocatiobecomes even greater.

There are, in the light of the argument thus far, prima facie grounds for

saying that the events of the last quarter of the fourth century had shown

that the dictatorship was capable of being used to the detriment of the foren-

sic rights of citizens even in the non-military sphere, and that one of the ob-

jects of the lex Valeria deprovocationef 300 B. C. was the alignment of that ju-risdiction with the other jurisdictions of imperium-holders.There are, how-

ever, three other difficulties that must be overcome before this proposition

can be accounted reasonably secure.

The first difficulty is that the lex Valeria of 300 should arguably have im-

posed a general ban on the creation of provocatio-freemagistrates, as the Va-

lerio-Horatian laws had allegedly done in 449,69 in which case the Valerio-

Horatian penalty of outlawry70 might have to be rerouted to 300, with des-

tructive results. But fortunately that penalty is unstable, being replaced by

scourging and beheading in a tribunician law on the same subject of provoca-tio-free magistrates which Livy also allocates to 449.71Moreover, Festus says

that when the dictator's immunity from provocatiowas abolished, the formula

appointing him simply omitted the words ut optima/ege.72Onbala2ce, there-

fore, there is no compelling need for a general ban in 300, and the first diffi-

culty falls away.

The second difficulty is the interval between 314 and 300 during which

there was no further crisis, thus possibly making dictatorialprovocatioat best

a smouldering issue in the latter year. But the same goes for any other moti-

vation of the lex Valeria, and with much greater force, since no other crisisin the vicinity of the lex is visible at all. There is certainly no trace of the sup-

posedly traditional oppression of sturdy plebeians by wicked patricians. The

victims of both Papirius Cursor and C. Maenius were (except for the viliora

capita in the latter's case) members of the patricio-plebeian nobility, and one

is reminded of the suggestion of A. Heuss,73 that originally provocatiomay

Il See Rotondi, LPPR 204.70 Livy 3. 55. 5: 'eum ius fasque esset occidi, neve ea caedes capitalis noxae haberetur.'71 Cf. n. 19 above.

72 Fest. 198 M: 'Optima lex: . . . In magistro populi faciendo, qui vulgo "dictator" appellatur,quam plenissimum posset ius eius esse, significabatur, ut fuit Mani Valerii M. F. Volusi nepotis,

qui primus magister populi creatus est; postquam vero provocatio ab eo magistratu ad populum

data est, quae ante non erat, desitum est adici "ut optima lege", utpote imminuto iure priorum ma-

gistrorum."

7a 'Zur Entwicklung des Imperiums der rmm.Oberbeamten', ZSS 64 (1944), 57 ff. at 80 ff., 107.




have been needed by the patricians rather than by the plebs, as a check on the

new Republican magistracies. It was, at all events, always provocatioadpopu-

lum, not adplebem.

A further point in favour of the postulated scope of the lex Valeria is the

sudden cessation of dictatorial appointments after 301: where the fourth cen-

tury exhibits appointments at an average rate of one every other year, the

only attested cases between the end of that century and the Punic wars are Q.

Hortensius in 287 and three or four minor appointments thereafter.74In par-

ticular, some loss of advantage by the dictatorship may lie behind Livy's cu-

rious assertion that in 299 the senate was about to recommend the nomina-

tion of M. Valerius Corvus as dictator, but changed its mind when he was

unanimouslyelectedsuffect onsul.75

The third difficulty is that the author of the lex Valeria has to be seen as a

collaborator of the anti-mercantilists, and in particular of Fabius Rullianus,

the man whose friends sponsored the contemporaneous lex OgWlniao which

Appius Claudius objected so strenuously.76 Such a posture for M. Valerius

runs counter to the close relations usually presumed to have existed between

the two Valerii and Philo and Appius,77 but fortunately the main prop on

which those relations depend, Valerius Maximus' non-interference, as censor

in 307, with the reforms of Appius' censorship, has been pried loose by Le-jay, who suggests with much justification that one of the reasons why Appius

was constrained to spend his consulship of 307 in Rome was precisely in ord-

er to forestall interference with his reforms.78Furthermore, a dislike of dicta-

torial jurisdiction, and sympathy with Rullianus, were exhibited by the Va-

lerius who was Papirius Cursor's leg ttus n 325, and also by the Valerius who,

as dictator in 302/1, took no punitive action, so far as can be judged, against

his magister equitum, Aemilius Paulus or Fabius Rullianus, for making an

unauthorised (and unsuccessful) foraging expedition79 - a story that may be

apocryphal, but not in so faras it illustrates the thinking of the Valerii on thesubject of dictatorial provocatio.It may even be supposcedthat the law of Va-

lerius Corvus as dictator in 342, granting the mutinous leg,ions an indemnity

and so imposing a limitation on imperiummilitare,80 implies a long-standing

and consistent Valerian attitude.

There may, finally, be positive evidence of hostility between the Valerii

and Appius Clauditis Caecus. Livy reports under 328 that a certain NI. Fla-

vius gave a visceratio to the people at the funeralof his mother, although some

thought he was paying his debt for his acquittal on a charge of stuprum

74 Cf. Broughton, MRR 1. 185, 187, 191, 204, 207. 7S Livy 10. 11. 3. f.76 On the affiliations of the Ogulnii see Staveley, o. c. (n. 54) 432.77 See for example Stavelcy, o. c. 426.78 Lejay, 'Appius ClaudiLs Caecus', RP 44 (1920), 92 ff. at 107.

7" Livy 10. 3. 3-8. '0 Rotondi, LPPR 225.



46 R. A. BAUMAN

brought by the aediles. At all events his generosity also brought office to

Flavius, since he was elected tribune for 327 in absentia.8'Now, the charge

of stuprum s that which Valerius Maximus (the author) says was brought by

C. Valerius as aedile in 329, against Q. or A. Flavius, when the patent malice

of the accuser secured absolution for the accused.82If the accused was indeed

A. Flavius, as one possible reading of Valerius Maximus suggests,83 and if he

is the same man as Livy's M. Flavius, as the common charge of stuprumal-

most guarantees, the prospects are intriguing. One thinks of the well-known

Cn. Flavius, son of a freedman, scribe to Appius Claudius Caecus and pub-

lisher of the fasti and the ius civile FlavianUM,84 the latter in the opinion of

some the XII Tables.86This man was Annifilius,86and when regard is had tothe confusion in the sources as to the offices held by him in 304, with the eld-

er Pliny giving him both the tribunate and the aedileship at the same time,87

it may very well be that the tribune of 327 was his father88and that he himself

was only aedile, in which case there will have been significant hostility be-

tween a Valerius and a connection of Appius Claudius.

One hesitates to seek further corroboration of the case here made out by

pressing parallels between Appius Claudius and the fifth century whipping-

boy of the same name, but there is certainly a striking resemblance, and one

that might have appealed to Pais, between the shadowy figure who calls for aprovocatio-freedictator in 492,89 thereafter regularly impedes the provocatio

policy of the Valerii, and illegally prolongs the decemvirate in order to com-

plete his programme, and the historical figure who aligned himself with

those who were exploiting theprovocatio-freedictatorship, opposed the provo-

catio egislator and his friends, and prolonged his censorship, as some thought

illegally, in order to complete his programme.9"

We conclude with a brief note on the lex Porciato which Livy refers in his

account of the lex Valeria of 300 B. C. There are two distinct strands in Livy,

the Valerian claim to pre-eminence in provocatio egislation and the Porciandenial of that claim. Contention is also manifest in Cicero's allusion to three

81 Livy 8. 22. 2-4. 82 Val. Max. 8. 1. 7.

83 Cf. Broughton, MRR 1. 144. 84 Cf. Gundel, Ki. Pauly2. 569 f.

85 Cf. Pais, Sloriadi Roma,1898, vol. 1, part 1, 546 ff., 631 ff. For a recent view tending in the samc

direction (,eine fachjuristische Rezension') as Pais see Wieacker, ,Die XII Tafeln in ihrem Jahr-

hundert', Fond. Hardi 13 (1966), 291 ff. at 297 n. 3 and 297 f.88 Broughton, MRR 1. 168 n. 1.

87 Pliny N. H. 33 17 i. The fact that Pliny insists on the double officc to the cxtent of having

the nobles 'lay aside their rings' in protest does not greatly verify his attestation, since Livy 9. 46makes the laying aside of the rings the result of the aedileship only, in as much as in his version

Flavius had held the tribunate in a previous year.

88 Flavius is Cn.filius in Livy loc. cit., butAnnif. in Piso fr. 27 Peter, Cic. Att. 6. 1. 8 and Pliny

loc. cit. 89 Livy 2. 29. 11.

? On Appius' censorship see esp. Garzetti, o. c. passim; Staveley, o. c. (n. 54) passim.




Porcian laws by three different authors9l-

evidently aPorcian claim to numer-ical parity with the Valerii, although weakened by Cicero's assertion that

none of the legesPorciae added anything new except a sanction.92 Elsewhere

Cicero, in common with all the other sources, attests only one Porcian law,93

and indeed nowhere is there any specific identification of any of the three

Porcians - understandably so, since the Valerii had preoccupied all the best

seats. There is, however, one important indication, and that is the fragment

of Pro Cornelio n which Cicero speaks of three laws - a lex Porcia and two

legesCassiae as haecrecentiora.94The two Cassian laws in question are the law

of 137 providing for secretballots in

iudiciapopuliand the law of 104

expell-ing damnati rom the senate,95and in this context the lex Porciais not recent if

it is attributed to either of the favourite Porcian authors, Cato in 198 or P.

Porcius Laeca in 195.96 As the numismatic evidence seems to demand a Por-

cius Laeca97one might think of M. Porcius Laeca, monetalis n the mid-se-

cond century98and conceivably a magistrate as well, or of P. Porcius Laeca, a

senator in c. 165 and possibly a son of the praetor of 195.99 A strong counter-

indication is, of course, the fact that Cato delivered a speech Pro Scapulis

which is arguably reflected in Livy's pro tergocivium,100nd this is one of the

reasons why more than one Porcian law cannot be entirely excluded. Anoth-

er reason is the capital penalty attributed by Livy to the lex Porciaknown to

him: it might be argued from this, especially in view of Cicero's assertion that

the three Porcian laws differed only on sanction, that the law to which Livy

alludes must be the second or third in a series of legesPor,^iae. his does, how-

ever, leave one of the other laws with no discernible type of sanction, since

one would not expect greater variety of penalty here than in the iudiciapopuli

as a whole, and on balance one is inclined to see the threefold Porcian

achievement as no more secure than its Valerian counterpart.

University of Sydney R. A. Bauman

" Cic. Rep. 2. 54. Cf. n. 2. above.92 'Neque vero leges Porciae, quae tres sunt trium Porciorum, ut scitis, quicquam praetersanc-

tionem attulerunt novi.' 98 For these sources see Rotondi, LPPR 268.

"4 Ascon. In Cornel.p. 84 Giarratano. 95 Rotondi, LPPR 297, 327." On these as the possible authors of legerPorciacsee v. Lubtow, o. c. 291 ff.97 On the 'provoco'oin see v. Liibtow, o. c. 293. I' Cf. Broughton, MRR 2. 449.

99 Ib. 495. 100Cf. v. Liubtow, o. c. 292.

BAUMAN, The Lex Valeria de Provocatione of 300 B.C.

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