"rex in senatu": a political biography of m. aemilius scaurus

"Rex in Senatu": A Political Biography of M. Aemilius ScaurusAuthor(s): Richard L. BatesSource: Proceedings of the American Philosophical Society, Vol. 130, No. 3 (Sep., 1986), pp.251-288Published by: American Philosophical SocietyStable URL: http://www.jstor.org/stable/986827 .

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Rex in Senatu: A Political Biography of M. Aemilius Scaurus

RICHARD L. BATES

Pennsylvania State University-Ogontz Villanova University

M arcus Aemilius Scaurus was princeps senatus for over a quarter- century and as such the senior

statesman of the post-Gracchan Age. The details of his political life, however, have not been the subject of a full-scale study since Bloch, Pais, and Fraccaro brought them under scrutiny in the early decades of this century.1 Scaurus, however, warrants greater attention not only because he is the major political figure between the Age of the Grac- chi and the Age of Sulla, but also because he is the link between these two ages. In- deed, he is the chief representative of the Senate's political goals and aspirations before the Social War and the dictatorship of Sulla. It is hoped that this study will encourage a renewed scholarly interest in his career.2

The task of reconstructing Scaurus' life is complicated by the extremely fragmentary nature of the evidence for the period from the death of Gaius Gracchus to the death of Sulla. Modern studies, especially those of Munzer, Badian and Gabba, have helped to clarify the events of this difficult period, but the fact that even these most careful scholars have had to utilize reasonable conjecture to fill in the gaps should caution us against excessive reliance upon the more sweeping judgments of scholars, be they ancient or modem, when we attempt to analyze the evidence anew. The failure to do this has often led scholars astray, thereby detracting from the cogency of otherwise carefully re- searched and documented investigations.

In those studies concerned with the life and times of Scaurus, two views seem to be especially pernicious: Sallust's judgment on the character of Scaurus, and the generally received opinion on the intentions of the elder Livius Drusus.

Sallust's view of Scaurus is best seen in the brief characterization of the Bellum Iug- urthinum at 15.4: Aemilius Scaurus, homo nobilis inpigerfactiosus, avidus potentiae honoris divitiarum, ceterum vitia sua callide occultans. Bloch was the first scholar to free himself from the power of Sallust's authority, but the stigma has left its traces.3 Nonetheless, the bias of Sallust (or his sources) is now generally recognized; thus we need not add to the efforts of those who have suggested how it may have arisen.4 It will be necessary, however, to argue for the basic integrity of Scaurus, since he has never been entirely freed from the suspicions engendered by Sallust. Indeed, it is our contention that the man who was princeps senatus for a generation and cuius nutu prope terrarum orbis re- gebatur5 was in many respects the heir of Cato the Elder and not the criminal suggested by Sallust's innuendos.6

The generally received opinion on the intentions of the elder Drusus, however, re- quires a more extensive treatment, if only because it is more pervasive and pernicious. That opinion, simply stated, is that Livius Drusus' proposals were merely a political ploy to steal the wind from Gaius Gracchus' sails; there was never any intention of car-

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252 RICHARD L. BATES

rying them out.7 This judgment, however, is largely an inference from the fact that little of Drusus' program was put into immediate effect.8 We shall argue, on the other hand, for the sincerity of Livius Drusus' intentions, believing that the purposes he sought to achieve were also those of Scaurus, who was later to be the chief advisor of the younger Drusus, thereby aiding the son in his attempts to effect, at least in part, the programs of his father.

It is, of course, impossible to prove our thesis solely by reference to the evidence for the tribunate of the elder Drusus; indeed, it is primarily the known facts of Scaurus' political life that suggest such an interpretation. Thus it is our present purpose to survey his political life, hoping thereby to clarify some aspects of this "dark age"9 of Roman history.

SCAURUS' EARLY POLITICAL CAREER

Very little is known about the early political career of Marcus Aemilius Scaurus. A passage in the De viris illustribus, which is probably based upon a statement in Scaurus' own De vita sua, tells us that he was not at first sure whether he should enter public life or become a banker.10 His choice in favor of politics will have been the first of his political decisions, though we cannot be sure when he made it. Perhaps it was a decision he made rather late, after distinction while serving as a common soldier in Spain en- abled him to advance to the higher ranks his patrician birth alone could not procure.1" Unfortunately, we do not know just how far he advanced or what foundations he laid for his future political career. It is tempting to see him, as Syme does,12 among the many political hopefuls who served with Scipio Aemilianus at Numantia. Bloch was cautious about Scaurus' service in Spain, merely lo- cating it loosely between 144 and the destruction of Numantia, a span of time sufficient enough to allow Scaurus both to win military distinction and advance to the lower

rungs of the political ladder at Rome. Scaurus may even have held the quaestorship sometime during the latter part of this period; evidence, however, is non-existent.13

When we next hear of Scaurus he is serving in Sardinia under the command of L. Aurelius Orestes (cos. 126).14 Some scholars have supposed that he was Orestes' quaestor, but it is difficult to find a time when that is likely or possible. Gaius Gracchus held that post for over two years, thus excluding the years 126 and 125, if not 124.15 It might be thought that Scaurus held the post in 124 or 123, but the fact that he became augur in the latter year and curule aedile in 122 makes this unlikely.16 Canvassing for those honors ought to preclude a quaestorship in Sardinia. Indeed, it is tempting to think that he returned to Rome either with Gaius Gracchus or shortly thereafter.17 In any event, we ought not make too much of the phrase sub Oreste in Sardinia stipendia fecit (De vir. ill. 72.3), for this can only mean that he cam- paigned under Orestes' command, not that he served as his quaestor.18

One would like to know the details of Scaurus' service under Orestes. Perhaps it was there in Sardinia that he first acquired a dislike of Gaius Gracchus.19 It is easy to see him as one of the aristocratic members in Orestes' entourage who took offense at Gracchus' success in procuring supplies from the natives for the hard-pressed Roman troops, and who later reported their fears to the Senate at Rome.20 It is also possible that Scaurus was one of those who later accused Gaius Gracchus before the censors, charging that he had quitted his post before his commander.21 A more favorable assessment, however, will leave out the motive of envy, preferring instead to think that Scaurus was only outraged at Gracchus' early departure, not jealous of his success. Mos was to be as important to him as ius.

Scaurus' opposition to Gaius Gracchus seems to be an undisputed fact.22 Klebs, however, thought that the author of the De



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viris illustribus (72.9) falsely exaggerated the assistance Scaurus gave to L. Opimius in op- posing Gracchus,23 while Gruen doubts it altogether on the grounds that Scaurus was only an aedilicius.24 Such a man, in other words, did not have the auctoritas to advise a consul. We may well believe exaggeration, but it is unlikely that it extended to the point of outright fabrication. Cicero, in a speech delivered before a quaestio over which the son of Scaurus presided,25 assumes that the elder Scaurus' opposition to Gracchus was as notable as his later hostility to Q. Varius. Certainly on this alone we ought to believe that Scaurus was both active and conspicuous in his opposition, even if his role was unduly exaggerated. The ultimate source of Cicero's information was probably Scaurus' autobiography, yet this was a place for re- working and bending known facts, not blatant lies.26 And even if it were, there are still other grounds for believing that Scaurus was a strong opponent of Gracchus, namely his later political acts and associations: as consul in 115 we find him publicly humiliating the praetor P. Decius Subulo, the former prosecutor of L. Opimius,27 while his censorship with the elder Drusus suggests continuing, if not closer, associations with those optimates who opposed Gaius Gracchus.28

Sometime during the first year of Gaius Gracchus' tribunate, Scaurus was inaugu- rated as an augur.29 His cooptatio to this post implies support within, if not outside of, the college.30 It may be surmised that he used whatever auctoritas this post had given him in the service of the traditionalists,31 perhaps utilizing, wherever possible, the state religion in ways that would hinder the program of Gaius Gracchus.

The next stage in Scaurus' political career is only a little less obscure, for although he was elected curule aedile, apparently for 122,32 our only evidence for his activities is limited to a single, general statement in the De viris illustribus (72.3): aedilis iuri reddendo magis quam muneri edendo studuit. There

seems, however, to be much that is hidden in this brief sentence. Bloch33 saw it as a confirmation of Scaurus' poverty on the grounds that the aedileship was usually sought to win favor among the people for future candi- datures, and Scaurus therefore neglected to provide noteworthy munera because he could not afford them. It is possible, however, that he did not approve of them, dis- daining to make vulgar appeals to the mob. At any rate, such an attitude is appropriate for one who vigorously opposed Gaius Gracchus. We should like to know something about his other activities as aedile during this year: he might have proven himself to be a thorn in Gaius Gracchus' side. By 121 he apparently had enough practical knowledge of both civil and criminal law so that he could have been of service in this regard before he Opimium contra Gracchum . . . privato consilio armaret.34 Whatever the exact nature of Scaurus' services to Opimius, and we may well suppose that he served as a witness for the defense in 120 when the latter was prosecuted by the irate tribune P. Decius Sub- ulo,35 he seems to have been promptly rewarded for his support, for he held the praetorship in either 120 or 119.36

This period has often been regarded as a time of oligarchic triumph and reaction. The triumph, however, was not as complete, nor was the reaction as severe, as is sometimes suggested.37 Senatorial extremists would have to wait for Sulla.38 The very fact that Opimius was brought to trial shows that the optimates were still eager to rule by mos and ius. Opposition to the "establishment" was not to be silenced, nor did men fear to challenge the traditional methods by which the nobiles maintained control. Already in 119, the most likely year for Scaurus' praetorship, the tribune Gaius Marius opposed the wishes of the noble patroni and introduced a law that was to curb the influence they could exert on the voting in the comitia.39 Scaurus' attitude to Marius' proposal may be surmised, even if he was not yet strongly at-




tached to the Metelli.40 Anything that sought to weaken the bonds between patron and client was to be deplored.

It is easy to deride this attitude as old- fashioned and reactionary. Yet historians who choose to do so are discarding the ad- vantages of hindsight. Augustus knew better. Mos could be stronger than ius. Unfortu- nately, the latter could neither replace nor reestablish the former. Moribus antiquis res stat Romana virisque. Cato had clamored for a restoration of mores antiqui; only men of character should rule.4" The Gracchan view was not substantially different,42 only lop- sided: too much emphasis had been placed upon the manpower Rome would need to maintain the state and her armies, not enough upon the character of those who would serve. Scaurus, however, as we shall presently argue, was one of those who sought to redress the balance; the optimates must accept their responsibilities, and that meant that they must strive to attain the ideals embodied in the mores antiqui.

Cynics will regard Scaurus' profession of ideals as self-delusion: a political policy based upon them was doomed to failure. Some, like Sallust,43 were even less chari- table: Scaurus' professions were mere pre- tense. It is not difficult to see how this latter judgment was formed. Sulla's victory was too complete; true idealism must have died long before Scaurus entered politics.44 Such, at any rate, will be the assessment of those historians who have deceived themselves into believing that an ideal world once ex- isted.45 Scaurus, however, was like Cato: an idealist with his feet on the ground. Ideals were something to strive for, even if they could not always be attained. There were limits, however, which no man could exceed. Scaurus would not have approved of Sulla.

A PROBLEMATICAL PRAETORSHIP

To Sallust, Scaurus was a political oppor- tunist, a master of deceit.46 Thus it is all the

more surprising to find Tacitus, one who is generally regarded as an imitator of Sallust, expressing a different opinion: Scaurus was an honest man.47 Yet, in spite of Tacitus, the judgment of Sallust was not to be overcome in antiquity. Our latest ancient source on Scaurus (outside the citations of the gram- marians), the De viris illustribus, was harsh: already in his praetorship Scaurus was politically compromised.48 This change in his public character is even more glaring because it is related in the sentence that immediately follows the statement that Scaurus' aedileship was noted more for his dispensing of justice than for his giving of games.

It is, of course, impossible to fathom what truth there is, if any, in all of this, but reservations are in order, especially since the most probable date for Scaurus' praetorship (119) makes it unlikely that he or anyone else took a strong public stand either in favor of or against Jugurtha. Bloch was the first to note the difficulties with this passage of the De viris illustribus, and he concluded that it must involve some confusion between Scaurus' actions as praetor and his activities as a legatus of L. Calpurnius Bestia (cos. 11 1).49 Unfortunately, we have no evidence to indicate how such a confusion might have arisen. It could be the result of extreme ab- breviation, or the author may have confused Scaurus' praetorship with an office held at a later time pro praetore. The only other likely possibility is that this passage records an opposition to Jugurtha in 119 which is otherwise unrecorded, while the reference to Scaurus as eius [Iugurthae] pecunia victus refers to an alleged later instance. On the other hand, this passage in the De viris illustribus is so vague that we need not connect it with the more notable phases of the Jugurthine affair, for it is possible to regard it as simply an indication of Scaurus' awareness of and hostility to certain intrigues of Jugurtha which took place before the death of Hiempsal. On the whole, however, the passage is too problematic to be accepted with-



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out reservations, especially since it is unsupported by other evidence. Moreover, it seems unlikely that Sallust would have failed to mention such a compromising episode when he was attempting to impugn Scaurus' behavior on the Numidian embassy of 112. The result, of course, is not very satisfactory: even this meager bit of evidence for Scaurus' praetorship must be called into question and thereby remains an unreliable foundation upon which to build a solid image of his earlier political career.

THE PATH TO THE CONSULSHIP

Our information regarding the next two years of Scaurus' political life is almost equally unsatisfactory. Only in 117, if Sal- lust's chronology may be trusted, do we learn something of Scaurus' political activities, for then he is found in the forefront of those few quibus bonum et aequom divitiis carius erat, namely those who favored aiding Ad- herbal in his struggle with Jugurtha.50 In spite of his role as a champion of justice, however, Scaurus suffered a repulsa in the elections for the consulship of 116, his victorious rival being the patrician Q. Fabius Maximus Eburnus.5" The notice is tantalizing, but wisely ignored by even the most zealous of prosopographers. Imagination might have conjured up great rivalries between factions. The gaps in our evidence, however, have left us only a calm. Perhaps rightly so.

The sequel to this repulsa while not surprising is striking: Scaurus fought exception- ally hard for the consulship. His dignitas may have been at stake, for this time he was not facing a patrician rival, but a plebeian up- start: P. Rutilius Rufus. Scaurus won the election, but his defeated opponent, doubtless with wounded pride and a sense of righteous indignation, haled him into court on a charge of ambitus. Scaurus, in turn, could not be content with acquittal, but brought Rutilius into court on the same charge.52 Although we are not expressly informed on the outcome of this second trial,

it seems that Rutilius, too, was acquitted. Posterity, however, cared little about the outcome or its political importance. In Ci- cero's day the trial seems to have been re- membered chiefly because of a bon mot: At some point during his prosecution of Rutil- ius, Scaurus had Rutilius' account books brought into court. Above one of the entries stood the rubric AFPR. Scaurus, it seems, argued that the letters stood for the phrase: actum fide Publii Rutilii. In other words, it was a reference to a payment Rutilius promised to make to those who fixed his election to the consulship, a payment which was to be made as soon as he was assured of victory. The defense, however, maintained that the letters stood for ante factum post relatum, i.e. it was simply a late entry correcting a previous mistake made in the account books. One of Rutilius' supporters present at the trial, a Roman knight named C. Canius, proposed a third interpretation: Aemilius fecit; plectitur Rutilius ("Aemilius did it, but Ru- tilius gets the blame").53

We would like to know more about the circumstances of this trial, even if it were only a clue as to the strength of the hostility between Scaurus and Rutilius. On the whole, scholars are of the opinion that this inimicitia was short-lived, chiefly because both Scau- rus and Rutilius later had close ties with the Metelli.54 This, however, tells us nothing about Scaurus' broader political stance during these years. For this, we must have recourse again to Sallust. A close examination of the first notice of Scaurus and its context in the Bellum lugurthinum reveals that Sallust was not really interested in telling us about Scaurus' political allegiances: his character portrait was more important. Nonetheless, a curious fact does emerge from Sallust's narrative, for after he has identified Scaurus as the chief of those who favored the bonum et aequom,55 he tells us (16.1-3): vicit tamen in senatu pars illa, quae vero pretium aut gratiam anteferebat. decretum fit uti decem legati reg- num, quod Micipsa obtinuerat, inter lugurtham




et Adherbalem dividerent. cuius legationis princeps fuit L. Opimius, homo clarus et tum in senatu potens, quia consul C. Graccho et M. Fulvio Flacco interfectis acerrume victoriam nobilitatis in plebem exercuerat. eum lugurtha tametsi Romae in inimicis [Kurfess: in amicis] habuerat, tamen accuratissume recepit, dando et pollicendo multa perfecit, uti fama, fide, postremo omnibus suis rebus commodum regis anteferret.

This passage is significant, and more closely connected with Scaurus than its jux- taposition to his character portrait would lead us to believe. Surprisingly, however, Sallust himself either did not know or chose not to reveal the link between Scaurus and Lucius Opimius; we learn of it only from Cicero and the De viris illustribus.56 The evidence is here unambiguous: Scaurus supported Opimius against Gaius Gracchus. We need not doubt continuing associations between these two optimates. Indeed, if Badian is right in his suggestion that Scaurus' public humiliation of P. Decius Subulo was politically motivated,57 then strong ties between Opimius and Scaurus will have continued into the latter's consulship, for Decius' chief claim to distinction was his earlier prosecution (in 120) of Opimius quod indemnatos cives in carcerem coniecisset.58

There is, however, another reason for believing that Scaurus and Opimius found themselves in the same political camp: they both seem, at least in the beginning, to be strongly opposed to Jugurtha. This seems to be secure on the evidence of Sallust alone, though we might wish (in view of the as- persions he cast upon Scaurus' character) to seek additional support in the phrase lug- urthae adversus of the De viris illustribus, even while admitting that the reference to Scaurus' praetorship is still problematic.59 Moreover, if the generally accepted emendation of Sallust (lug. 16.3) is correct, then Jugurtha clearly regarded Opimius as an inimicus.60 Thus before his embassy to Numi- dia, Opimius must have been a conspicu-

ously fierce opponent of Jugurtha and his designs. Indeed, Sallust can only attribute Opimius' apparent change of attitude to the success of Jugurtha's bribes and promises,61 just as Scaurus was later said to have been pecunia [Iugurthae] victus.62

SCAURUS' CONSULSHIP AND NOMINATION AS PRINCEPS SENATUS

We come now to 115, the year of Scaurus' consulship. It was an eventful year for Scau- rus; not only did he obtain the office which he had so eagerly sought, he was also appointed princeps senatus, the censors of that year apparently disregarding the claims of Q. Fabius Maximus Ebumus (cos. 116) and Q. Fabius Maximus Allobrogicus (cos. 121).63 This appointment was a signal achievement, unexpected in light of the meager information on Scaurus' earlier career. Some have sought to explain it by postulating closer ties with the powerful Metelli at this time, suggesting that Scaurus either now or in the previous year sought the bond of adfinitas by marrying Metella, the daughter of Me- tellus Delmaticus (cos. 119).64 Scaurus will therefore owe his nomination as princeps senatus to the censor L. Caecilius Metellus Diadematus.65 The difficulty with this interpretation is the age of Metella. Even if she were only fourteen when she married Scau- rus, she will have been at least forty when she married Sulla in late 89, too old, it seems, to be the mother of Sulla's twins.66 It is not impossible that Metella married Scaurus at a younger age, nor are pregnancies unknown in women past the age of forty. Such pos- sibilities, however, ought not be assumed as proof of an early marriage alliance with the Metelli.67 It is just as easy to believe that Scaurus had the support of the Metelli because his political views were close to their own. Adfinitas need only be a consequence, not a cause of their support. Moreover, other, more general, factors can be adduced to explain why Scaurus enjoyed such an over- whelming political success at this time. The



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first of these was his undoubtedly conser- vative, traditionalist viewpoint, reminiscent of the elder Cato.68 It made Scaurus a safe candidate for the consulship: the nobiles could expect that a man who had supported Opimius against Gaius Gracchus was not about to undertake revolutionary or radical steps to challenge their authority. Rutilius Rufus, of course, posed no such radical threat, and he may also have enjoyed the support of the Metelli. His rigid moral stance, however, may already have been quite pro- nounced and deemed unsuitable in an age which seemed to require political compro- mise, at least with regard to domestic politics.

The favor of the nobiles was certainly not the only factor that brought Scaurus to such heights of political success. His own deter- mination, manifest in the legal battles he fought with Rutilius, was doubtless significant though we cannot observe it at close range. We ought not forget, however, that even before his election to the consulship Scaurus' views about Jugurtha were well known. As one of the few (and, if Sallust may be believed, he was chief among them)69 who had supported Adherbal and the cause of justice and fairness,70 he was endowed with a moral authority that may have smoothed the way for his appointment as princeps senatus. Moreover, despite Sallust's denigration of his character, Scaurus commanded enough respect to maintain this moral authority and the position of princeps senatus to the end of his life.

The most outstanding event of Scaurus' consulship was his public humiliation of the praetor P. Decius Subulo. It was a violent affair: Scaurus ripped the praetor's vest- ments, broke his curule chair, and forbade anyone to bring legal cases before him.71 There is certainly much hostility here, and more motivation behind it than a praetor's failure to show proper respect to a consul. Badian must be right: Scaurus cannot have forgotten that this Decius was the prosecutor of Opimius.72 We may surmise more: some-

thing about Decius' character rankled Scau- rus. We would certainly like to know what Decius thought of Scaurus. At best, his judgment will not have been very different from Sallust's.

We would like to know what Scaurus thought about Jugurtha at this time. Did he follow the lead of Opimius (who headed the ten-man commission to Numidia in 116) and support the division of the kingdom between Adherbal and Jugurtha? If so, it is strange that Sallust did not mention it; it would have supported his contention that Scaurus' earlier opposition to Jugurtha was insincere. Scau- rus, however, may have withheld his judgment; he had more pressing business: a military campaign to wage against Gallic and Ligurian tribesmen.73 No true nobilis could let politics take precedence over war. In any event, Scaurus' attack on Decius could be construed as continuing approval for the policies of Opimius. Some reservations, however, are in order.

Later events, especially Scaurus' appointment to the Numidian embassy of 112, suggest that either Scaurus was not wholly satisfied with the settlement Opimius had made in 116 or he thought that the terms of that settlement had not been adhered to by Ju- gurtha. The latter is rendered more likely by Sallust's statement that of all the legati Ju- gurtha feared Scaurus the most.74 Indeed, this statement suggests that Scaurus at some point must have committed himself to the support of the Opimian settlement, perhaps only after voicing his misgivings and insist- ing upon the most solemn pledges from Ju- gurtha. The important point is that Scaurus maintained his integrity (at least in the public eye) not only throughout his consulship,75 but also in the years that followed, certainly to 112,76 and most probably to the very end of his life.

Two other facts are known about Scaurus' consulship. He carried a lex de libertinorum suffragiis and passed what seems to be a rather rigorous sumptuary law.77 The first is




attested only by the author of the De viris illustribus, and so little is known about the electoral status of freedmen antecedent to this law that no definitive judgment can be made on its true import. In view of Scaurus' traditionalist proclivities we may assume, with Botsford,78 that it attempted to restrict freedmen to the four tribus urbanae. The evidence for Scaurus' lex sumptuaria is fuller, but not totally unambiguous. It seems that Scaurus was not content with limiting the amounts that could be spent on banquets, but actually hoped to eliminate certain dishes from the menus of self-indulgent aristo- crats.79 The exact details of this legislation, however, are relatively unimportant. Their general purport is clear and shows that Scaurus was a worthy successor to Cato the Elder, who once had vigorously opposed the repeal of one of the first major sumptuary laws of Rome, the lex Oppia.80

Cato, of course, had no doubts about the responsibilities of the governing class; thus his solution to the political difficulties of his time was simple: men must return to the mores antiqui. The Gracchi, too, were no less insistent than Cato that the governing class ought to live up to its responsibilities. Their programs, however, were less centered upon the moral questions involved. More attention was paid to finding practical ways of ensur- ing that all Roman citizens would have the means to meet their responsibilities. The sequel, however, is difficult to assess for a number of reasons, the thinness of our sources and the biases inherent in both ancient and modem accounts being the principal ones. Many modems choose to follow the lead of Sallust and accuse the optimates of shirking their responsibilities. The truth, however, is rarely this simple. Doubtless there were men among the boni (as there are in almost any class of men) who cared for little but the satisfying of their own ambi- tions. Men such as this will have opposed the Gracchi for the most selfish ends. It is

wrong and historically unsound, however, to place all the nobiles in this category. It must not be forgotten that the Gracchi themselves were nobiles, supported at first by a segment of the nobilitas. Indeed, the weight of ancient evidence inclines us towards the conclusion that the quarrels between the Gracchi and their political oppo- nents were not disputes over ends, but over the means to achieve those ends.81 Optimates like Scaurus thought that the state would be restored to health if only the nobiles would reassert their moral authority, and this could be done by proving that they were still worthy of possessing it.

We shall see such purposes when we come to examine some later episodes in Scaurus' life and political career.82 Yet they already seem to underlie the known activities of his consulship; in fact, they might even be de- tected in the events of the following year, for Scaurus, if he was a pontifex,83 will have been one of the judges at the famous trial of the Vestal Virgins in 114.84 It is certainly ap- pealing to attribute to his stem auctoritas the fact that only Aemilia, of the three accused, was condemned. Scaurus could be especially harsh when dealing with members of his own family or gens.85 Perhaps this, too, was an episode of that type. It is interesting to note that the people were not at all satisfied with the results of this trial, namely the acquittal of the other two Vestals involved, for the next year saw the election of a special prosecutor, L. Cassius Longinus Ravilla, who secured their condemnation.

The election of Ravilla under the provisions of the lex Peducaea has the unmistak- able tone of a popularis attack on the en- trenched privileges of the old nobilitas. 86 Certainly the tenure of any judicial post by this scopulus reorum boded ill for those nobiles who would abuse their social perqui- sites. That much could be expected of the man who as tribune in 137 had introduced the secret ballot at all trials before the people



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(except those involving perduellio), thereby weakening further the hold patroni could exercise over their clients.87

At the same time that this controversy over the Vestals was raging, Scaurus himself was the object of an attack that may have been politically motivated, for he was accused by a certain M. Brutus on a charge de repetundis.88 Although scholars have given various dates for this trial, a date close to Scaurus' consulship is usually preferred, largely on the grounds that Scaurus' consulship would have offered him the greatest opportunities for extortion, and the time between the alleged commission of a crime and its prosecution will not have been great.89 These are plausible assumptions, but not certainties. Yet this trial can be easily fitted in with the general tenor of events during these years: being first a manifestation of popular discontent with the continuing abuses of the old nobility, its outcome, the acquittal of Scaurus, will only have vindicated the princeps senatus and cast him firmly in the role of the one nobilis the people could trust. We can also imagine how this trial might have influenced Scaurus' attitude towards the trial of the Vestal Virgins: severity on his part would have strengthened his reputation for stern auctoritas, a quality he seems to have stressed in his oratio de pecuniis repetundis contra M. Brutum.90 Further speculation, however, leads us too far afield and puts us on excessively dangerous ground, given the extreme paucity of our sources. The outcome of these events, however, is unmistakably clear: Scaurus came through with his auctoritas intact. Thus we find that in 112 he was appointed a member (probably also the leader) of the senatorial delegation that was to be sent to Africa to induce Jugurtha to desist from his siege of Cirta.91

SCAURUS AND THE JUGURTHINE WAR

For the next four years Scaurus was intimately involved in events pertaining to the

relations between Numidia and Rome. These events and Scaurus' involvement have been the subject of much scholarly research; thus we shall confine ourselves to those aspects which are of especial importance for judging Scaurus' character and policies.92 The first point to be stressed is that all the evidence we have about Scaurus up to this time leads us to believe that he was not well disposed towards Jugurtha or his intrigues;93 indeed, we find a confirmation of this view in Sal- lust's explicit statement that Jugurtha feared Scaurus very much.94 Moreover, the brief report Sallust gives of the contents of the letter the senatorial ambassadors sent to Ju- gurtha suggests strong wording.95 The failure of this embassy to achieve its objective is certainly no proof that there was complicity between Jugurtha and the senatorial legates, and even Sallust does not imply it. The real victory of Jugurtha's partisans (if, indeed, he had any strong supporters in the Senate at this time)96 will have been the blocking of attempts to send an army to Africa. This much was clear to Sallust, living in an age that was even more aware of how ineffective auctoritas could be without exercitus. Yet although it seems evident that this senatorial commission could achieve little against a wanton miscreant without an army to back it up, it is by no means certain that the Senate viewed Jugurtha in this light. We must remember that an interval of at least three years separates the settlement of Opimius and the embassy headed by Scaurus. In the interim only a minor delegation was sent to compose the differences between Adherbal and Jugurtha.97 While this may be due in part to the failure of the Senate to take full cognizance of events in Numidia, it is also not unlikely that Jugurtha's infractions of the terms of the Opimian settlement were not as severe as Adherbal alleged. Nor ought we to neglect the possibility that Jugurtha may not always have been the party who provoked the crisis.98 Sallust's account is clearly biased:




Adherbal presents his case at length in highly emotional oratio recta while Jugurtha's views are dismissed in a few lines of rather limp oratio obliqua.99 The Senate, however, will have had different perspectives and more to go on than this; thus we ought not judge senatorial policy as though it were formu- lated solely on the basis of the information Sallust has given us.

The sequel to the Scauran embassy of 112 was the declaration of war against Jugurtha. If we may believe the notice in the Periochae of Livy, this declaration was a direct result of Jugurtha's failure to heed the express command of the Senate that Adherbal should not be harmed."'0 Sallust, however, gives us a slightly different picture: the Sen- ate was hesitant and held in thrall by the agents of Jugurtha. Only the prodding of the tribune-elect C. Memmius, vir acer et infestus potentiae nobilitatis, forced the Senate to action.'0' The account is, however, tenden- tious. Sallust himself tells us that Calpurnius Bestia, the consul chosen to lead the war, had many good qualities of body and mind;'02 moreover, he pursued his invasion of Numidia with vigor.'03 This certainly indicates that the Senate had finally decided to take strong action against Jugurtha; the prodding of Memmius may have been un- necessary. Another passage in Sallust seems decisive on this point, and it is so important for our understanding of the situation at the time of Bestia's appointment to the Numi- dian command that it must be quoted in full (Iug. 28.4): interim Calpurnius parato exercitu legat sibi homines nobiles factiosos, quorum auctoritate quae deliquisset munita fore sper- abat. in quis fuit Scaurus, cuius de natura et habitu supra memoravimus.

Translations of this passage may contain more bias than is actually warranted by the text, implying that Bestia sought partisans from among the nobiles who would defend his misdeeds.'04 In other words, it looks as though Sallust is stacking the cards against Bestia even before his mission is under way.

The verb delinquere, however, need not de- note a deliberate wrong;'05 thus this Sallus- tian passage may simply mean that Bestia chose powerful men from the nobilitas so that he might be reinforced in those areas of war and diplomacy where he thought his own capabilities might be found wanting. He merely wanted knowledgeable and ex- perienced advisors who could help him overcome his own deficiencies. There is no criminal intent in that.

The appointment of Scaurus as one of Bestia's legati offers some confirmation of our argument, for he had been up to this time the one senior statesman who had consis- tently opposed Jugurtha and his designs, and he had most probably been the head of the last embassy sent to Numidia. Thus by experience and temperament he was best suited to be Bestia's chief advisor. Certainly we hear of no popular opposition to Scaurus' appointment, nor does Memmius seem to have raised any objections against it. There is, indeed, not the slightest scrap of evidence that the people or the tribunes thought that Rome's interests were going to be sold out. Had there been so, we would expect from Sallust a long harangue in oratio recta delivered by a tribune, perhaps even Memmius himself. Sallust was, after all, out to castigate the potentia paucorum, and this would have been the perfect opportunity.

What follows in Sallust's narrative ap- pears, at first glance, to be damaging to our thesis: here we find damning innuendo and accusation. We are told that although Bestia had many good qualities, avaritia praepedie- bat (Iug. 28.5). Then comes the invasion of Africa. Jugurtha approaches Bestia with offers of money; moreover, he reveals to him that the war will be difficult. Bestia's mind, already predisposed to avarice, is easily turned (Iug. 29.1). It ought to be noticed, even in passing, that something is amiss. Do not Jugurtha's offers of money reveal a certain weakness on his part? And as far as the difficulties of war are concerned, was not Ju-



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gurtha especially aware of these? Bestia did, after all, (and it is Sallust himself who con- cedes this) invade Numidia with vigor: acriter Numidiam ingressus est multosque mortales et urbes aliquot pugnando cepit (Iug. 28.7). Let us concede for the moment that Bestia's mind was turned by Jugurtha's money and the difficulty of waging the war. What about Scau- rus? Here again the evidence of Sallust is damning: ceterum socius et administer omnium consiliorum adsumitur Scaurus, qui tametsi a principio plerisque ex factione eius conruptis acerrume regem inpugnaverat, tamen magnitudine pecuniae a bono honestoque in pravom abstractus est (Iug. 29.2). Yet is this not beg- ging the question? What proof has Sallust actually adduced to establish Scaurus' guilt? Note, on the other hand, that this passage confirms what Sallust only equivocally stated or implied elsewhere: namely that Scaurus, even after most of the nobility had been won over by Jugurtha, still most vigorously opposed him.

We may admit that Scaurus supported Bestia and agreed to grant Jugurtha a truce; we may even concede that the consul received a large sum of money as part of the bargain. This, in itself, was not unusual. It is well known, for example, that L. Cornelius Scipio, the brother of Africanus, had received five hundred talents from Antiochus the Great long before any formal peace was concluded, and although he was later brought to trial, the point at issue was not that he had unjustly taken the money, but that he had abused his authority in dispensing it.106 Then we have, on Sallust's testimony, the terms of the truce granted to Ju- gurtha (Iug. 29.6): he was to hand over to the quaestor thirty elephants, a large number of horses and cattle, and a small amount of silver (parvo argenti pondere). It would be interesting to know how small this amount was, and revealing of Sallust's methods of innuendo. These terms, however, do not seem to be indicative of a betrayal of Roman interests. We must remember, after all, that

Jugurtha was a petty princeling, command- ing no vast array of military resources. His greatest military assets were to be the great distances and deserts of Numidia. Hindsight, indeed, leads us to pity this foolish bedouin, even though it was probably an excessive contempt for his resources that needlessly prolonged the war. Sallust portrays Jugurtha as a man who thinks he can buy influence at Rome. For Jugurtha the reality may have been harsher: he had to buy influence, for he knew that he could not ultimately emerge victorious from a major military conflict with Rome.

This line of argument can also be pursued from a Roman point of view: there was no need to rush into a war when Jugurtha might be dealt with by diplomatic means. More- over, we must remember that Roman military resources were still under the strain that had resulted from the disaster at Noreia. Let us return, however, to the narrative of Sal- lust. What evidence does he now bring for- ward to establish the guilt of Bestia and Scaurus? The answer can be briefly stated: very little for Bestia and even less for Scau- rus. What must be stressed is that Sallust at once assumes that the agreement made by Bestia with Jugurtha was a criminal act (flagitium), adding that it was Scaurus' power (potentia) that prevented the Senate from doing what was just (vero bonoque in- pediebat), not because Scaurus had instructed it to act in this manner, but because he was said to be (ferebatur) Bestia's ally and the one who had really originated the agreement that had been made.'07 Note again that this equivocal statement of Sallust only impli- cates Scaurus indirectly: the senators only acted as they did because of what was said and believed about Scaurus, not because his actions warranted it. While this is good evidence for the strength of Scaurus' auctoritas, it is certainly insufficient to convict him of criminal activities or intent.

What follows next in Sallust's narrative is the passionate speech of Memmius (Iug. 31-




32). It is difficult to conceive of a more political speech than this. We look in vain for specific charges leveled against specific in- dividuals. Instead we find a general assault upon the nobility: the whole first part of the speech (31.1-17) is, in fact, nothing but a tirade against the power and abuses of power the nobiles have maintained since the tribunate of Tiberius Gracchus. Interwoven with this is a strong rebuke of the people, for it is their sloth and cowardice that have allowed this state of affairs to arise.

In the second part of this speech Memmius proceeds to the immediate issue: those who have betrayed the Republic to the enemy must be punished, not by a violent reaction, but through judicial proceedings at which Jugurtha himself will be called upon to give testimony.'08 What is especially important here is that Memmius is made to refer to Jugurtha as a dediticius who must obey the commands of the Roman people, for if he does not, then everyone will see what a sham this peace and deditio are.'09 It is significant that Jugurtha did indeed obey the summons, even if the veto of a tribune ultimately prevented him from giving testimony, for this proves that his status was, in fact, that of a dediticius.110 This certainly suggests that Bestia and Scaurus' agreement with Jugurtha was not a blatant sell-out of Roman interests, yet this is the charge leveled by Memmius, for he says that no money has been embez- zled from the public treasury nor has any been extorted from the allies, and even if there had been-no matter-it is so usual that it can be dismissed. The real crime is that the auctoritas of the Senate and the imperium of the people have been betrayed."' This is a charge not unlike those later brought out de maiestate after the legislation of Sa- tuminus. Unfortunately, we have no means of ascertaining whether this was the prelim- inary stage of the process that culminated in that legislation or whether Sallust was de- picting a remoter age with more recent colors.112

The immediate result of Memmius' harangue was the dispatch of L. Cassius Lon- ginus to Africa to bring Jugurtha back to Rome. Cassius, of course, was well suited for the role since he had earlier been an agent of the people's wrath against the nobility, having been chosen special prosecutor for the retrial of the Vestals."13 Now his mission was to bring in the person of Jugurtha evidence that would "more easily reveal the crimes of Scaurus and the others whom Memmius was summoning on the grounds that they had accepted bribes."'"14

There is no need to recount here Sallust's narrative of Jugurtha's arrival in Rome and the sensational events surrounding it, nor need we trace once again the stages that led to a renewal of hostilities. Sallust's account of Sp. Albinus' campaign, which, after his departure for Rome to hold the elections, was continued under the command of his legate and brother Aulus, is filled with allegations of bribery and corruption not unlike those leveled against Scaurus and Bestia. The biased reader or undiscerning popularis would assume at worst that Bestia and Scau- rus were still involved, at best that the nobilitas had not changed its ways.

The next stage in this apparent struggle between the populares and optimates, therefore, is something of a surprise, revealing once again that the reality is more complex than we imagine or Sallust tells us. The proposal of the tribune C. Mamilius Limetanus setting up a commission uti quaereretur in eos, quorum consilio Iugurtha senati decreta neglegisset, quique ab eo in legationibus aut imperiis pecunias accepissent, qui elephantos quique perfugas tradidissent, item qui de pace aut de bello cum hostibus pactiones fecissent (Iug. 40.1) might have been anticipated. The appointment of Scaurus as one of the quaesitores,"15 however, is unexpected and even unsettling, especially for those who believe that he was one of the guiltiest of all.116 Nonetheless, we need not question Scaurus' appointment, as some have done,117 on the



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grounds of political improbability. Indeed, if our understanding and interpretation of Scaurus' previous career are anywhere near the mark, then it was fitting, even if it was unprecedented, that Scaurus should be appointed one of the quaesitores. Scaurus, after all, was the one nobilis who was especially noted for his previous opposition to Jugurtha; Sallust tells us that he was adamant even after other nobles had succumbed to the wiles of the Numidian prince."18 It might be expected, therefore, even amid rumors to the contrary, that Scaurus would be one aristo- crat who would not countenance a wholesale abdication of Rome's interests in the face of Jugurtha's opposition. Moreover, if Scaurus' harshness towards members of his gens was in fact instrumental in securing the condemnation of the Vestal Aemilia five years before, it is perhaps not too fanciful to think that his stem severity was now responsible for the excessive rigor with which the Mamilian commission was conducted. Even Sallust, though we might expect him to be sympathetic towards this commission and its aims, thought it was conducted aspere violenterque ex rumore et lubidine plebis."9 Though no source specifically makes Scaurus responsible for the harshness and vindictiveness of the prosecutions-indeed Scaurus himself seems to have acted as an advocate (or character witness) for Bestia, with whom he had been a legatus, and who was now one of the accusedt20-it must not be forgotten that Scaurus held the censorship this very same year. Thus he may not have been able to hinder actively the proceedings of the Mam- ilian commission without also compromising his position as censor.

SCAURUS' CENSORSHIP

With his election to the censorship Scaurus attained what had doubtless been one of his greatest desires, and most of what we know about his activities at this time suggests that he in no way forsook his earlier political

principles nor ignored the responsibilities and tasks usually associated with that office. His colleague was none other than Marcus Livius Drusus the Elder, a man whose political sympathies he doubtless still shared. (Indeed, if our thesis is correct, he was des- tined to pass them on, as mentor and advisor, to the younger Drusus.) Unfortunately, most of what we know about Scaurus' censorship is of a decidedly non-political nature: he restored the Mulvian bridge, constructed the Via Aemilia, and was perhaps responsible for the draining of some low-lying areas of Cispadine Gaul."2'

One event of Scaurus' censorship, however, lends itself well to political interpretation: his refusal to abdicate the office after his colleague Drusus died. Plutarch tells us that Scaurus gave in only after some of the tribunes ordered him to be led off to prison. 22 Fraccaro proposed an attractive theory to explain Scaurus' behavior: Scaurus wanted to retain the censorship so that he could carry out to the fullest extent the provisions of his earlier law de libertinorum suffragiis.123 In other words, Scaurus hoped to restrict, by exercising censorial rigor in the application of his earlier law, the electoral influence of libertini even more than before. Unfortunately, our evidence for this law is as weak as that for his censorship; thus Frac- caro's theory must remain in the realm of pure conjecture. We may surmise that there will have been other, even more compelling, political reasons for Scaurus' fight to retain his censorial powers, though we have no way of fathoming what they may have been. Perhaps he hoped to strengthen the position of the nobilitas by a rigorous exercise of this office, and when the death of his colleague imperiled his designs he uncharacteristically acted contrary to mos and ius as once the younger Cato counseled bribery to save the state. In the last analysis, Scaurus' motives may not be unlike those of Sulla when the latter marched on Rome. Like Sulla, he came from a patrician family that had fallen into




obscurity in recent generations, and since he had to compete in political life like a novus homo, he was unwilling to give up without a fight what he had struggled so hard to achieve.

SCAURUS AND SATURNINUS

Our sources fail us for the next few years of Scaurus' life, yet whatever his precise activities may have been, he seems not to have strayed from the camp of the optimates or veered from his earlier political course. In 104 we find him appointed by the Senate to take charge of the cura annonae at Ostia, a task which had originally belonged to the quaestor L. Appuleius Saturninus.'24 If we can believe Cicero's testimony, it was the ig- nominia occasioned by this transfer that drove Saturninus into the camp of the populares. 125

There is, of course, no way of confirming Cicero's assertions about Satuminus. On the whole, they seem to have been engineered more for rhetorical effect than for historical accuracy. It seems more probable that Scau- rus' appointment was an attack on an already proclaimed popularis rather than a first step in inducing a political conversion to this status. It is safe to assume, however, that Scau- rus and Satuminus were from this point on political enemies, even though we lack the details of the various clashes that must have ensued. Certainly, to the extent that Satur- ninus was the political heir of Gaius Grac- chus, we may expect Scaurus to be implaca- bly opposed to not only his policies, but also his methods. It does not appear to be a mere coincidence that it was Scaurus as princeps senatus who played a leading role in urging Marius to take action against Saturninus and his supporters in 100.126

Though Scaurus' early associations with nobiles like L. Opimius betoken the political stance of a die-hard reactionary, a stance which his vigorous opposition to Saturninus seems to confirm, we are largely ignorant of the particulars of Scaurus' political views.

Scholars have usually deduced these from the preconceptions they have about the nature of his political alignments, and it must be admitted that our evidence is such that we, too, are compelled to have recourse to this method, though our conclusions shall differ to the extent that we have deemed it necessary to modify earlier preconceptions.

It has long been recognized that the chief problems confronting those who attempt to reconstruct the politics of the age of Scaurus lie in the paucity and tendentiousness of our sources."27 Yet despite these inadequacies, scholars are in general agreement as to what the major political issues were. Broadly speaking, these may be grouped under four headings as follows: 1) problems relating to the public land, 2) the problem of the courts, 3) the problems concerning the status of the Italian allies, and 4) the question of maiestas. Of these, all but the last were clearly defined before the death of Gaius Gracchus; thus Scaurus will have entered upon the political scene after most of the stage had already been set. The question of just where to place him on that stage, however, is by no means easy. Most scholars opt for the simple solution: they place him among the boni or optimates and leave it at that. There should be some room, however, for informed conjecture. Even if we cannot precisely define Scaurus' stance on the major political questions of his age, we should at least be aware that it was more complex than those analyses based upon the assumption of "party programs" suggest.

The issue of the public land, however, presents us at once with a major stumbling block: there is virtually no direct evidence (other than Scaurus' general associations with the boni) that allows us to ascertain his views on this matter. Scaurus, however, seems to have imbibed much of the Catonian philosophy and made it his own;128 hence it does not seem that he would have been wholly unsympathetic to the Gracchan view of ager publicus inasmuch as it, too, embod-



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ied much that was Catonian in outlook.129 If this interpretation is correct, it will also lend support to our overall contention that Scau- rus did not object to the "programs" of the populares as much as he did to their methods.

Scaurus' stance on the other key issues of the age cannot be so easily conjectured. The chief reason for this is that the issues themselves were inextricably interwoven. Indeed, sometimes the complexities are so great that one is tempted to say quot homines, tot sen- tentiae and avoid the problems altogether. It is, however, possible to pick up enough threads to get an understanding of Scaurus' relative position on the issues, an understanding which is not wholly dependent upon broad categorizations.

Undoubtedly the best evidence for Scau- rus' early political views is most concerned with the issue of maiestas. Of course, in its first stages the issue is not defined as such,130 yet the fact that the honor of Rome and the integrity of her magistrates were at stake makes it clear that the substance to be found in the later leges de maiestate was already taking shape. This must be stressed if only to counter the frequent assumption that Sa- turninus was the first to define the charge. Even if we allow for the exaggerations of Sallust, it must be acknowledged that already in the tribunate of Gaius Memmius (111 B.C.) the substance of the accusations against the nobiles was that they had diminished the maiestas of the Roman people.'13 Moreover, if Sallust's wording is a faithful reflection of the rogatio Mamiliana, then the Mamilian commission of 109 was set up uti quaereretur in eos, quorum consilio Iugurtha senati decreta neglegisset, quique ab eo legationibus aut imperiis pecunias accepissent, qui elephantos quique perfugas tradidissent, item qui de pace aut de bello cum hostibus pactiones fecissent.132 In other words, the commission was to investigate behavior that was, at the very least, bordering on the treasonous. Scaurus' appointment to serve on this commission is a clear indication that he was not entirely op-

posed to its principles, while his service as an advocatus for one of those haled before its tribunal (Bestia) suggests that he was not in favor of indiscriminate persecution.133 It is not too fanciful to think that Scaurus may have been responsible for the unusual severity of the Mamilian quaestio, though we must admit there is no direct evidence for this. His earlier harsh attitude towards Ju- gurtha134 suggests that this may have been the case, and one event in Scaurus' later personal life lends support to it: After the Ro- mans suffered a defeat at the hands of the Cimbri, Scaurus learned that his own son had fled from the field of battle, thereby de- serting both his post and his vanquished commander. Scaurus became so incensed at this that he forbade his son to enter his pres- ence, whereupon the son, despairing of either forgiveness or reconciliation, committed suicide.135 This episode at the very least shows that Scaurus could at times be cen- sorious and severe, especially in circumstances that seemed to involve actions that were dishonorable or bordering upon the treasonous.

It has been necessary to return to Scaurus' role on the Mamilian quaestio and suggest his stance on the issue of maiestas because this was the issue that was to be of para- mount importance during the first tribunate of Saturninus (104/3), a year in which Scau- rus himself was to play a major role. We have already seen that Scaurus had been appointed by a decree of the Senate to take over the functions previously performed by Satuminus as quaestor Ostiensis, but our sources tell us more about Saturninus' anger at his removal than they do about the possible political motivations behind the act; indeed there were none, if it was Saturninus' removal that induced him to become a popularis.136 Cicero is vague about the reasons for the transfer to Scaurus, saying only that it was done in annonae caritate;137 Diodorus' excerptor, however, is more specific, accusing Satuminus of laziness and a want of ability




(pa0vtiaV KaXt 4MavX8r0ra r7 a'yy).'38 In light of what we know about Saturninus' later activities, it does not seem that he could be justly accused on these counts, though Cicero's expression annonae caritate could be interpreted to imply them. On the other hand, if we assume that Saturninus was already a popularis, there is much that would fall into place, for Scaurus' appointment could be viewed as an attempt to take the wind from the sails of the populares: a successful resolution of the problem of the city's grain supply would reveal to the people that the Senate was concerned with their problems. It would be a measure, in other words, which would help the optimates gain firmer control of the government by strengthening the auctoritas of their princeps.

Another event of this year reveals that Saturninus was not the only one to be upset at Scaurus' activities, and its resolution was to undermine to some extent optimate control of the constitution. This was the prosecution of Scaurus by the tribune Cn. Dom- itius Ahenobarbus because sacra publica populi Romani deum Penatium, quae Lavini fi- erent, opera eius minus recte casteque fieri.139 Domitius initiated the prosecution because Scaurus had not coopted him into the college of augurs,140 but his sense of honor made him unwilling to use the evidence that one of Scaurus' own slaves offered to provide against his master, and the trial ended in Scaurus' acquittal.14' Domitius did not rest content with this outcome, but immediately introduced and carried a bill which made the appointment of new members of the priestly colleges dependent on the popular vote of seventeen tribes.142 Thus the grip of the optimates on the constitution was thereby further reduced.143

Although there is no other specific evidence on Scaurus in this year, other events were to have a direct bearing on his activities in the following year, and these were centered on the person of the optimate Q. Ser- vilius Caepio.144 Caepio was a perfect target

for those who wished to weaken optimate control of affairs. In his consulship (106) he had been instrumental in passing a law that gave control of the quaestiones to mixed panels of senators and knights, thereby de- priving the equites of some of their influence.145 This action put Caepio clearly in the camp of men like Scaurus who wanted to restore as much as possible the pristine powers and prerogatives of the Senate and the senatorial order. In view of the recent ongoing struggle between the optimates and populares to secure every available means of establishing political control, it should not be surprising that Caepio was to be the object of a double attack. The first'46 of these was a law passed by the tribune L. Cassius Lon- ginus requiring that anyone who had been condemned by the people or had had his imperium abrogated should be expelled from the Senate. This law was unmistakably directed at Caepio since his imperium had in fact been abrogated by the people sometime in late 105, ostensibly because his refusal to cooperate with the consul Cn. Mallius Max- imus had led to the disaster at Arausio on October 6th of that year.'47 The second attack seems to have been launched as a result of Caepio's weakened position: he was now to become the principal object of investigation by a quaestio that had been especially set up to inquire into the affair of the Tolosan gold. During his consulship (106) Caepio had commanded the forces which had captured the sacred treasures of Tolosa, a tribal settlement of the Volcae Tectosages in Gallia Narbonensis. He was now called upon to account for the mysterious disappearance of the booty while it was en route to Massilia. We do not know if Caepio was condemned in this affair or suffered the confiscation of his property, but our sources do tell us that many were brought to account.148 Indeed, some of the money must have been recov- ered, for Saturninus later (100) used it to buy land for his new colonial settlements.149 Yet regardless of the actual outcome, the very



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fact that Caepio was under investigation cast suspicion on him and further weakened the credibility of those who sought to prove that the optimates had the ability to govern re- sponsibly.

The year 103 was to be a low point for the champions of the senatorial control of affairs. The real initiative in the handling of political/economic problems had been wrested from the firm control of the Senate since the days of the Gracchi; now, however, the collective dignitas and auctoritas of the patres suffered eclipse where they could least afford it, in the conduct of military affairs. A poor showing on the field of battle had plagued the Senate since the days when Scipio Aemilianus had had to salvage op- erations at Numantia in 134,150 but the last decade was the poorest showing yet of senatorial military prowess. In 113 the consul Cn. Papirius Carbo suffered a disastrous defeat near Noreia at the hands of the Cimbri, while the first phase of the Jugurthine War produced no optimate commanders of distinction, unless we except Metellus Numi- dicus, and his abilities were sufficiently un- distinguished that he could be replaced by the consul Marius in 107. Now, however, there was the recent defeat of Arausio. The novus homo Cn. Mallius Maximus might have deflected some of the stigma away from the optimates were it not for the fact that most of the blame fell upon Caepio's shoulders.151 With the military prestige of the nobiles at such a low ebb, it should come as no surprise that 105 was to witness Marius' relection and the beginning of his string of five suc- cessive consulships. Marius' successes on the field of battle had the optimates more on the run than any seditious tribune, for he was beating them on the very ground where they could best reassert their primacy.152

In domestic affairs, however, the hostility of the people toward Q. Servilius Caepio still occupied center stage. To most nobiles the abrogation of his imperium and his subsequent expulsion from the Senate seemed

punishment enough, but the special investigation into the affair of the Tolosan gold revived all the public and private animosities his defeat at Arausio had caused. Indeed, popular superstition attributed Caepio's defeat and the destruction of his army to the sacrilege both he and his soldiers had committed by their seizure of the Tolosan gold, a treasure which was alleged to have been taken from Delphi by the Tectosages and dedicated to their native gods, though Pos- idonius claimed it had been accumulated in Gaul itself.'53

It is regrettable that the lex Servilia Glau- ciae, which restored the courts to the equites and thereby rescinded Caepio's own jury law, cannot be dated with certainty. Scholars still argue between 104, 101, and 100,'14 yet the vehemence of the repercussions of Ar- ausio seem to favor those who opt for 104. On the other hand, the events of the following year can be better explained if 101 is the correct date for the passage of the law.'55

The year 104, then, was not uneventful: Marius had begun his second consulship with his spectacular Jugurthine triumph, while the aftermath of Arausio and the affair of the Tolosan gold dominated the domestic scene, attended, as always, by the usual political prosecutions that arose from the animosities of individual nobiles.'56 The year 103, however, was to reveal that the heated political climate was hitherto only a smol- dering fire which now at last burst into flame, and Scaurus, though now about sixty years old, was again to make a brief appearance at center stage. This was, of course, the year of Saturninus' first tribunate and his famous lex de maiestate; it was also the year when the aftermath of Arausio would see its final resolution.

Fortunately, the state of our evidence for the activities of Scaurus in this crucial year is sufficient to give us a glimpse of his political role, and it shows that he was intimately involved in the new proceedings that were leveled against Mallius Maximus and Ser-




vilius Caepio for their mishandling of the Cimbric War in 105. Unfortunately, modern scholars have been unusually lax in their treatment of this affair, often assuming that Mallius and Caepio were prosecuted before a permanent quaestio that had been set up by the lex de maiestate of that year, i.e. under the terms of Satuminus' own law.'57 J. Lengle has shown, however, that Caepio and Mal- lius were prosecuted before the popular assembly, the former by C. Norbanus and the latter by Saturninus himself.'58 This type of prosecution is especially understandable if the juries of permanent quaestiones were still to be constituted under Caepio's own law, for Norbanus and Saturninus might have feared that a mixed jury would have too easily voted for acquittal, something that may have already occurred in Caepio's case during the earlier quaestio auri Tolosani.159 Pro- ceedings before the assembly, moreover, would give freer vent to the people's wrath than a closed quaestio whose jurors were subject to special selection.'60 This is not to say that the lex Appuleia had not yet been passed, nor that the architect of that law did not have its terms in mind during these subsequent prosecutions. Indeed, he will have framed his law in the light of the events of recent years. Moreover, although the Ro- mans do not seem to have been unduly scru- pulous about ex post facto laws,16' it would have been untoward to prosecute Mallius and Caepio under the terms of a law that had been framed after the fact. Nothing reveals the public nature of these prosecutions more, however, than the attendant circumstances of Caepio's trial. Norbanus, much in the style of Theramenes at the trial of the generals after Arginusae, did all he could to stir the passions of the citizens by arousing their hatred for Caepio and reviving their mourning for the dead.'62 Caepio's own defense, on the other hand, seems to have been largely the plea that he was merely the victim of bad luck!'63 The flimsiness of this defense was apparent to everyone, even to the optimates themselves, for they tried to quash

the proceedings through the services of two tribunes, T. Didius and L. Aurelius Cotta, who were to interpose their veto. Norbanus, however, was resolved to use force: the ve- toing tribunes were ejected from the temple where the proceedings were being held, and Scaurus himself was struck by a stone during the brawl that ensued.'64 The resistance of the optimates was now temporarily broken, and Caepio's condemnation swiftly followed: he was thrown into prison and his goods were seized.'65 Fortunately for Caepio, one of his close friends (a certain L. Antistius [?] Reginus who was tribune of that year)166 freed him from prison and joined him in exile at Smyma.'67

Whatever the precise legal basis was for the prosecution of Mallius and Caepio, the central issue was clearly maiestas (or the nobiles' mismanagement of military affairs, which was pretty much the same thing to populares like Satuminus). On a priori grounds, therefore, we might have expected Scaurus himself to be sympathetic to the principles of Saturninus and Norbanus, especially when we remember the role he himself had played on the earlier quaestio Mamiliana.168 The reason for his opposition, however, is clearly bound up with his own position as a senior statesman and head of the boni.'69 Scaurus was opposed to the prosecution of Caepio because it was in his view a blatant attempt to paralyze the boni by wrenching the traditional means of control from their hands. In other words, Scau- rus was not opposed to judicial proceedings against the nobiles per se (his service on the Mamilian commission is proof of that), but he did object to manifestly political justice, i.e. judicial attacks that were more concerned with upsetting the constitution and destroy- ing the auctoritas of the Senate than they were in establishing justice. This was the chief reason why Scaurus had opposed Gaius Gracchus, and it may have been a factor leading to his appointment to take over the duties of the quaestor Ostiensis Satumi- nus in 104. Indeed, this desire to see that the



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Senate remained firmly in control of the state is the one consistent motive in all of Scaurus' actions. He would bequeath it to Sulla along with his wife.

Scaurus' opposition to Satuminus and his policies was probably the predominating element in his political activities until the death of Saturninus himself. Chronological precision about Scaurus' activities in these years, however, is quite impossible, given the present state of our evidence. We can only approximately locate events involving him within the period 103-100, the latter year being a fixed point since it was Scaurus as princeps senatus who urged Marius to take action against Satuminus and Glaucia.'70

After the prosecution of Mallius and Cae- pio by Saturninus and Norbanus, the next event directly involving Scaurus seems to have been the prosecution of C. Memmius and C. Flavius Fimbria (103/102?), for this could be viewed as an optimate counterat- tack after their failure in the earlier cause ce'- le'bre.171 C. Memmius (who may have been praetor in 104, the year when Fimbria himself was consul)172 was, of course, the same man who had aroused the wrath of the plebs against the optimates by accusing (as tribune in 111) Bestia and even Scaurus himself of misconduct in their dealings with Jugur- tha;173 and Fimbria, although we know little about his career even after his consulship, was the father of Cn. Flavius Fimbria who was so rabidly anti-optimate that he attempted to assassinate (in 86) the senior statesman Q. Mucius Scaevola, though the latter as an adfinis of Marius was protected by the Cinnan government.174 On these facts alone we could assume Scaurus' hostility to both, though fortunately we have a striking confirmation of it in the outcome of the trial: both were acquitted because no one was prepared to believe Scaurus' excessively hostile testimony against them (destricto tes- timonio).175 The optimate recovery from the aftermath of Arausio would have to wait.

Another incident of these years, dated variously by scholars to 103 or 101176-

though the latter seems more likely-most assuredly involved Scaurus, though there is no explicit evidence mentioning him in this regard. This is the affair concerning the ambassadors of Mithridates recorded only in Diodorus (36.15.1-3). Since Mithridates' envoys had brought a large sum of money with which to bribe the Senate (7rpO Tpv TriS aV'yKX'TOV bWpo0oKLcaV), Saturninus abused the ambassadors in an effort to further dis- credit senatorial leadership. The ambassadors, however, were encouraged to press charges by the optimates; thus Saturninus was brought to public trial on a capital charge for abusing the inviolability of ambassadors (eta ri7v rwr 7rpEcfOEv-rw ao'vXtav KaOt Trv uvviO6q rapa sots Pwatots vrfp rzv irpEaftv

utaoorov7ptav). Saturninus, however, fearing that he would be condemned since both his prosecutors and judges would be senators (Oapvarov Kax7-yrOpOv4EPVO5 vro T W^V

fV'yKX7TtKKw V, wU aV EKEtVWV O&Kac OVTWV TaS

-otavTraS Kpl(tc s-perhaps evidence indicat- ing that the lex Servilia Caepionis was still in force?), dressed in shabby garb, let his hair and beard grow long, and supplicated the aid of the plebs, thereby securing both his acquittal and relection to the tribunate (rapabcvs a7rEXVXO?. Kalt wVVEpyOV EXWV rOV

67?7.ov raXtV avEpp77 6'iapXO). Certainly, in light of Scaurus' previous activities, it is not unlikely that he was one of Satuminus' accusers on this occasion, too.

The fact that the censors of 102, Metellus Numidicus and Metellus Caprarius, had reappointed Scaurus princeps senatus in that year,177 might perhaps be regarded as a special gesture of the boni in support of Scaurus for his vigorous opposition to Satuminus.178 But we have no record of any princeps senatus who was not reappointed as long as he lived; which suggests that we should not read too much into such reappointments.179

Scaurus' continuing hostility towards Sa- turninus is confirmed in the sequel to Satur- ninus' relection to the tribunate, and it was also to be the final outcome of the struggle: Scaurus played a leading role in events con-




cerning the passage of the senatus consultum ultimum against Satuminus and his supporters.180 It is possible, however, to over- emphasize this fact, for as Suolahti has pointed out, it probably devolved upon the princeps senatus to initiate action in matters of such import.181 On the other hand, Ci- cero's description of Scaurus as appearing armatus in the assembly even though he could scarcely walk,182 suggests that Scaurus nurtured an especially vigorous personal antipathy towards Saturninus, not to mention the natural enmity of an optimate for a popularis.

SCAURUS AS SENIOR STATESMAN

The last decade of Scaurus' life, although it was one of the most crucial periods in the history of the Roman Republic, is so imper- fectly known that only a probable outline of events can be delineated, and even here much remains that is problematical if not insoluble. What follows is largely based upon the studies of Badian, Gabba, Gruen, and Luce.183 Thus, in order to keep notes to a minimum, I shall cite references only where a specific argument is crucial or where I have chosen to differ sharply from their interpre- tations or preferred the account of another scholar.

After Scaurus' somewhat melodramatic performance as champion of the Senate against the intrigues of Satuminus and Glaucia, we lose track of his political activities for a time. The next politically significant event in his life to surface in our sources is a mysterious legatio Asiatica, 184 a topic much debated by modern scholars with few pos- itive results. Both the dating and the purpose of this embassy are obscure, especially since Asconius, our sole ancient source for this legatio, gives no indication of date other than that it was prior to Scaurus' prosecution by Q. Servilius Caepio the Younger in 92/91.185 Bloch suggested 104 as a possible date,186 yet most scholars have chosen to follow

Badian, the one historian who has carefully tackled the difficult problems of the chronology of the nineties.187 Badian has dated this legatio to 97/96,188 yet this is no longer as secure as we could wish, for it is based upon his earlier conclusion that Q. Mucius Scae- vola's governorship of Asia took place in 94.189 B. A. Marshall has shown, however, that an earlier date for Scaevola's governorship (98 or 97) is more likely;190 thus if we wish to accept Badian's assumption that Scaevola's dispatch to Asia was a result of this legatio, we are compelled to date it to 98 or even earlier. In this case, it would not be unlikely that Scaurus and Marius had both gone to Asia at the same time, if not on the same or similar missions.191 Michael Alex- ander has shown, however,192 that we need not interpret Asconius to mean that Scaurus himself went on an Asian embassy; in fact, the phrase ob legationis Asiaticae invidiam most probably refers to the more famous legatio of Publius Rutilius Rufus, i.e. the latter's activities while serving as the legatus of the governor Q. Mucius Scaevola. This solution is especially satisfactory since it does not require us to send Scaurus on a long embassy when the status of his health did not permit it, for already in 100 he was afflicted with gout and suffered tarditatem pedum.193 On the other hand, we need not reject Badian's assumption that Scaurus was connected with this legatio; indeed, Alexander's interpretation can now be said to prove (as far as proof is possible in this difficult period) Scaurus' associations with Rutilius' legation under Scaevola.

Recognizing, then, that Scaevola's governorship (and therefore the beginnings of Rutilius' legatio) belongs in 97 and that Scaurus was somehow connected with the latter, the following reconstruction of events in the early nineties can now be tendered:

After the domestic turmoil associated with the fall of Saturninus and Glaucia had sub- sided, the Senate now had time to direct its attention towards the affairs of Asia. There



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Mithridates VI had been intriguing in Cap- padocia since at least 100,194 if not before, for he had already sent envoys to Rome to bribe the Senate before Saturninus' relection to the tribunate.195 The Senate, however, needed to get a closer look at the situation; thus Marius was sent out in late 99 or early 98 on a legatio libera, ostensibly to fulfill a vow he had made during the Cimbric War to the Magna Mater, but actually to investigate the situation without arousing too much suspicion in Mithridates.196 There is, moreover, no reason to doubt that Scaurus himself may have supported this legatio of Marius. Indeed, what makes this hypothesis especially attractive is that it helps to explain a passage in Pliny's Natural History that has long troubled scholars, though not curtailed their ingenuity, namely his description of Scaurus as totiens princeps civitatis et Mariani sodalicii rapinarum provincialium sinus.197 The most natural interpretation of the crucial part of this phrase seems to call Scaurus "the lap for the provincial plunder of the Marian clique," a phrase, in other words, which suggests collaboration between Marius and Scaurus, something which Badian, inter alios, has been reluctant to concede. Israel Shatz- man, however, has taken a fresh look at the evidence and shown that the association only implied in this passage of Pliny is confirmed by statements in Valerius Maximus and the De viris illustribus.198 Thus Badian's denial of such an association cannot be allowed to stand. Politics often makes strange bedfel- lows. Indeed, even Badian does not doubt that Scaurus had equestrian connections which he used to his own economic advan- tage.199 This is made all the more likely when we realize that although Scaurus started life relatively poor, he ended it quite rich.200 This does not mean that Scaurus' intent in supporting Marius at this time was primarily economic; his main concern will have been the security of Asia, though this would ultimately have economic benefits. Moreover, nothing prevents us from believing with

Luce that Marius was looking primarily for a military command, for his haughty comment to Mithridates that he should "try to be stronger than Rome or do her bidding in silence"201 was clearly provocative.

When Marius returned from Asia in late 98, the Senate will have been apprised of the situation there. And even if we admit that Marius had strong ties with the equites and their business interests, these need not have induced him to be silent about provincial discontent, especially if military consid- erations were foremost in his mind: a rebel- lious province could make a difficult military situation even more difficult. Even Marius, in other words, may have seen the need for reform. The sequel to Marius' return was, of course, the dispatch of Q. Mucius Scaevola to Asia with Publius Rutilius Rufus as his legatus,202 this latter probably a special choice in view of their earlier friendship and the exceptional seriousness of the situation.203 Their joint administration was to be especially severe, but salubrious to the welfare of the province, so much so that the grateful provincials paid divine honors to Scaevola (rtlUv crO0v),204 while Rutilius himself was later (92) brought to trial by the vengeful equites.205 The internal affairs of the province of Asia could now be regarded as settled, though war clouds still loomed on the ho- rizon in Cappadocia. Thus, perhaps even at Scaevola's insistence, Cilicia was designated a province for the following year (96). There the military abilities of a new proconsul, L. Cornelius Sulla, could be put to the test.206

Sulla was successful in the East, and this was sufficient to allay the fears of the Senate: he had checked Mithridates' advance into Cappadocia, installed Ariobarzanes on the throne, and even received Parthian envoys who were seeking amicitia with Rome.207 Domestic feuds were therefore able to come to the fore again at Rome, and 95 was to be an eventful year.208 As princeps senatus Scaurus will have been involved in much of the political activity of that year, but three




events especially deserve our attention. The first of these is the trial of C. Norbanus. Nor- banus was prosecuted by P. Sulpicius Rufus under Satuminus' maiestas law for his violent treatment of the tribunes who had tried to interpose their veto during his prosecution of the elder Caepio in 103.209 Scaurus, it seems, was the chief witness for the prosecution and most anxious that Norbanus be convicted. Indeed, he made a public declaration (ex professo) asserting that Norbanus had used violence to overcome the tribunes, a declaration which probably mentioned that Scaurus himself had been injured in the fray.210

Although it is not actually attested, we may also believe that Scaurus was involved in the trial of the younger Caepio which probably took place in that year, for not only had Scaurus been a supporter of the elder Caepio in 103, he had also been a vigorous opponent of Satuminus, the very man against whom the younger Caepio was now accused of employing violence during the latter's tribunate in 103.211 Scaurus, in other words, was probably a witness for the defense.212 The importance of this trial for the boni can be seen in the fact that Caepio's defense counsel was none other than the distinguished orator and now consul L. Li- cinius Crassus. The boni could not tolerate a conviction of Caepio, for this would have revived all the old wounds incurred during the political clashes of the late 100S.213 The optimates were unwilling to undergo the traumas of those years, preferring instead to take up new issues.

The central political issue in optimate eyes was the problem of the Italian allies; this much can be inferred from the passage of the lex Licinia Mucia, ea vel maxima causa belli Italici,214 a law that proposed to investigate those who had illegally usurped the role of cives Romani.215 The passage of this law at this time, however, has often baffled scholars, especially since many of those connected with it were later linked with the younger Drusus whose proposal for an ex-

tension of citizenship to the Italian allies is well known.216 How could those who favored Italian aspirations in 91 disregard them so blatantly in 95? Moreover, Fraccaro has suggested (and he is followed by Badian)217 that it was Scaurus himself who inspired the lex Licinia Mucia. This is all the more surprising since Scaurus was probably the chief advisor for the younger Drusus.218 The main indication in our sources that Scaurus was behind the lex Licinia Mucia is a passage from Cicero's De oratore (2.257): saepe etiam versus facete interponitur, vel ut est vel paululum im- mutatus, aut aliqua pars versus; ut Stati a Scauro stomachanti (ex quo sunt nonnulli qui tuam legem de civitate natam, Crasse, dicant):

St, tacete, quid hoc clamoris? quibus nec mater nec pater,

Tanta confidentia? Auferte istam enim su- perbiam.219

Although I think that this passage does link Scaurus with the lex Licinia Mucia, I do not believe we must see in it an implacable hatred for the Italici. Such an interpretation makes Scaurus' support of the younger Dru- sus even more inexplicable. Scaurus and the boni were, of course, disgruntled by those who had usurped the rights of citizenship, either with or without the connivance of Marius and his supporters,220 but this does not necessarily imply a hatred for the Italian allies. Even Scipio Aemilianus knew that the socii ought not be offended, hence his inter- ference in the Gracchan land distributions. The fact that the lex Licinia Mucia offended many allies does not prove that this was the purpose of the law. Moreover, we cannot be sure beyond a doubt that this statement of Scaurus was made to a group of socii. The phrase quibus nec mater nec pater could equally be a gibe against the lower classes of cives. In this case, the passage could mean that Scaurus supported the interests of the socii despite the hostility of the urban plebs. Scaurus' connection with the lex Licinia Mu- cia and its sponsors, however, make this interpretation less likely. On the other hand,



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it is not necessary for us to accept Badian's thesis that the law was primarily an attack upon the Mariani, for Marius did collaborate with the boni when his interests dictated it.221 Yet even if Badian is right in his contention that the Mariani were the prime target, it should be added that this is true only insofar as Marius and his supporters sought by the bestowal of citizenship to wrest control of affairs from the boni themselves, for the one undeniable purpose of the lex Licinia Mucia, as the actions of the boni both before and after the passage of that law demonstrate, was to reassert and strengthen optimate control of the constitution.222 In other words, my main objection to Badian's thesis is that it stresses too much the hostility of the boni for Marius, when in fact the nobiles were hostile to anyone who threatened to weaken their position. There were many who sought refuge in the camp of Marius; this does not mean that they formed part of a permanent factio Mariana. If we can speak of a factio Mariana at all, it should be made clear that it was sometimes part of a larger factio contra nobiles or factio popularis.223 Indeed, the greatest difficulty with Badian's conception of a factio Mariana is that it assumes that Marius had a greater control over events and people than he ever really had. To my mind, Marius seems to have been used by others just as often as he made use of them, something which might be later said of Pom- pey.224 It is best then, I think, to follow the view of Brunt and regard the lex Licinia Mu- cia as the "product of legal conservatism,"225 adding also that the boni hoped thereby to get a better control over affairs: a purpose which still makes it likely that Scaurus was a chief (if not the chief) supporter of the law.

For the next two years of Scaurus' life our sources are a blank; indeed, Rome itself comes close to being a state without a history, though this is due more to the vicissitudes of textual survival than to the felicity of the age.226 This silence is especially unfortunate in light of the fact that in 92 we find Scaurus intimately involved in the political turmoil

caused by the famous trial of P. Rutilius Ru- fus.227 The reasons for this involvement, however, are not beyond recovery now that we have sorted out some of the earlier threads of Scaurus' career: we must now examine his association more closely.

The basic facts of the Rutilius trial are clear: his strict handling of the affairs of Asia as a legatus of the governor Q. Mucius Scae- vola brought the wrath of the equites upon his head, and he was condemned on a charge of extortion though his innocence was generally acknowledged.228 Scaurus' participa- tion in the trial of Rutilius is nowhere directly attested in our sources, but it can probably be safely assumed. As Badian pointed out long ago,229 there is no reason to assume that Scaurus and Rutilius remained enemies after their mutual prosecutions in 116, and we have already maintained, following a suggestion of Badian's,230 that Scaurus himself supported the dispatch of Rutilius Rufus to Asia, if not also the earlier legatio libera of Marius.231 If this is correct, there is no reason not to believe that Scaurus served as a witness for the defense.

The sequel to Rutilius' trial and condemnation, however, was a prosecution of Scau- rus de repetundis.232 That this was somehow connected with Rutilius' fate has always been assumed, though never actually attested in our sources.233 Michael Alexander's interpretation of the phrase ob legationis Asiaticae invidiam in Asconius' account of Scaurus' trial has changed the situation, for he has convincingly established that it must refer to the legatio of Rutilius himself.234 Thus Scaurus' connection with Rutilius and his activities in Asia is now referred to by an ancient source, even if it is not precisely defined. Yet, although this reference is too vague to allow us to fathom Scaurus' exact role at Rutilius' trial, it does help us get a better grasp of the reasons for Scaurus' own prosecution.

According to Asconius, Scaurus was prosecuted by Q. Servilius Caepio the Younger under the lex repetundarum of Servilius




Glaucia.235 The identity of the prosecutor is, of course, surprising when we remember that Scaurus had been one of the chief supporters of Caepio's father during the latter's trial for the disaster at Arausio, yet Badian has shown that the younger Caepio had adequate personal reasons for breaking away from the optimates.236 To these we may add the perhaps even greater reason for the younger Caepio's resentment: namely the failure of the boni to secure his father's acquittal or, after the elder Caepio was convicted, his re- call and reinstatement. The charge against Scaurus, however, may seem even more surprising, especially since we have denied that he ever went himself on a legatio Asia- tica. A closer examination of the Asconius passage seems to indicate that this interpretation is correct, for not only does Asconius say that Scaurus was prosecuted repetundarum lege quam tulit Servilius Glaucia, he also describes Scaurus as a pecuniarum captarum reum.237 In other words, Scaurus was prosecuted not so much because he had extorted money himself, but because he had received money that had already been extorted by someone else. This interpretation also ac- cords well with what we have said about the passage in Pliny's Natural History, for in that we saw that Scaurus was referred to as the "lap of provincial plunder of the Marian clique."238 Thus here, too, Scaurus is accused of receiving money extorted by others. There is a minor difficulty with this passage, however, especially if we agree with Badian,239 as I do, that Marius was somehow responsible for Rutilius' conviction: If Scaurus was associated with Rutilius, how could he be charged with receiving money from the Mariani since the latter were above all opposed to Rutilius and his administration of Asia? Although this question may at first seem insoluble, it is really no more puzzling than the conviction of Rutilius himself. Either the charges against him were unreasonable or the Mariani were somehow involved in the activities for which Rutilius was convicted and in which Scaurus was also im-

plicated. Yet given the vagueness of our sources, it would be useless to speculate how this may have come about. There is, however, a simpler solution: namely, we can believe that Scaurus did in fact receive his share of monies that the Mariani extorted from the provinces.240 Moreover, it is very likely that the younger Caepio, by now a vetus inimicus Scauri,241 would have made such a charge, for as Gruen has stressed, his hatred of Scaurus was largely personal, and his co- operation with Marius, though argued by Badian,242 is nowhere confirmed by our sources.243 In view of all this it seems best to conclude that Caepio's hatred of Scaurus was such that he would level any and every charge he could as long as they promised to lay his enemy low. Scaurus, however, was too adept in the political arena to succumb to this attack, and he actually succeeded in bringing Caepio to trial first.244 We should, moreover, believe with Gruen245 that both Caepio and Scaurus were brought to trial (for such is the implication of Asconius' effecerit ut ille prior causam diceret), and that both were acquitted, otherwise they would not have been able to enter the fray again in the following year.

Caepio's prosecution of Scaurus, even though it ended in acquittal, was to have important consequences, for it induced Scaurus to urge Livius Drusus the Younger to change the composition of the courts.246 These had been dominated by equites since the lex Servilia Glauciae, and Drusus, as is now generally acknowledged, was to pro- pose that the Senate be enlarged by the addition of three hundred equites, and the al- bum iudicum be drawn from the membership of the Senate alone.247 We do not know what changes Scaurus himself may have actually suggested, but in view of his connections both in the Senate and among the equites, it is not unlikely that the whole proposal was devised by him.

Scaurus clearly played a greater role than this in Drusus' tribunate, however, for sev- eral sources indicate that he was one of Dru-



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sus' advisors, if not the chief one.248 Yet here, too, there is no way for us to determine exactly how Scaurus felt about each of the issues. We can only proceed on general con- siderations. The first point to be stressed is Scaurus' early and apparently continuing association with the elder Drusus, beginning in the latter's tribunate in 122 and ending with their joint censorship in 109.249 This association sheds much light on Scaurus' later relationship with the younger Drusus, especially with regard to his role as advisor in 91. It has long been recognized that much of the younger Drusus' program had been foreshadowed by the proposals his father made in 122.250 Scaurus, however, provides an important link. This is not to say that under his direction the younger Drusus produced exactly his father's earlier proposals, but Scaurus' link with the elder Drusus suggests that he will have helped the younger Drusus tackle the problems of his tribunate in a similar spirit. In other words, the un- derlying motive was to strengthen optimate control of the constitution. Newer circumstances, however, necessitated changes, especially with regard to the allies and the courts,251 yet what both Drusus and Scaurus failed to see was that there was still a core of optimate resistance to change among senatorial extremists, men like Philippus who had enough clout to frustrate their plans just as earlier the program of the elder Drusus had failed to be brought to completion.252 Unfortunately, after the murder of Drusus, his supporters could not press on with the program; they buckled under pressure as many an optimate with change on his mind had done before.253 This time, however, politics could not go on as usual, for the Social War was to intervene.

The most important issue in this regard is the question of enfranchisement for the allies. At least we can see it now with our historical hindsight, though the issue may not have been as clear to contemporaries.254 What was Scaurus' position on this issue? We can only guess. The 'statement that he

was hostile to the socii is based entirely upon the interpretation of the witticism in Cicero we have discussed above.255 We must therefore be cautious. The fact that Scaurus did advise the younger Drusus, however, cou- pled with the fact that he was later brought to trial for encouraging the allies to revolt,256 suggests that he was not unsympathetic to the needs of the socii.257 At any rate, the suspicion of his enemies that he was sympathetic with the cause of the allies was to bring him onto the political stage for one last time.

The vigorous activity of Drusus' tribunate, his subsequent murder, and the outbreak of the Social War make 91 a crucial, if difficult, year in Roman history, yet the turmoil and confusion continue into the next, posing countless problems for the modern historian who attempts to get a grasp of events. The central domestic issue of 90, however, is directly linked with the events of 91, for it centers on the tribunate of Q. Varius Severus Hibrida and the trials that were occasioned by the passage of his lex.258 Unfortunately, scholars have not yet reached a consensus on the major issues concerning this law,259 but enough is known of its general import to be able to describe and assess Scaurus' involvement.

The lex Varia was directed against those whose aid and counsel had induced Rome's allies to revolt,260 and it probably established a special court to prosecute those who were charged under its provisions.261 Scaurus' prosecution under the terms of this law, however, has been an especially vexatious problem, chiefly because our main sources dealing with it seem to contradict each other about the nature of the crimen for which Scaurus was prosecuted.262 If Gruen's suggestion that Scaurus was first arraigned before a contio is correct,263 however, then what seems contradictory naturally falls into place, for all accusations against Scaurus at that time need not strictly parallel provisions of the lex Varia. Their general import, that Scaurus' activities were in some sense responsible for the outbreak of the Social War,




is all that Varius, by fair means or by foul, needed to establish when, at the instigation of Q. Servilius Caepio, he summoned Scau- rus to appear before him.264

Scaurus, however, was quite prepared to meet Varius in an open clash, and he used every means at his disposal to win the favor of the people, not the least of which was a dramatic entrance into the forum: Scaurus, now aged and infirm (he was suffering from gout), was escorted by noble youths who helped him make his way to confront his accusers.265 The sequel to this is, of course, Scaurus' famous retort: "Q. Varius the Spaniard says that Marcus Scaurus, the princeps senatus, has summoned the allies to arms. Marcus Scaurus, the princeps senatus, denies the charge, and there is no witness. Which of us, Quirites, is it meet to believe?"266

The outcome of Scaurus' arraignment before the people by Varius was a dismissal, prompted by the clamor of the people.267 This did not, however, deter Scaurus' implacable enemy the younger Caepio, for he clearly arraigned Scaurus formally before a quaestio under the terms of the lex Varia.268 Badian is surely right that this must have been one of the first trials under that law, for Caepio held a command in the Social War and was killed in action probably early in the campaigns of that year (90).269 We do not know the outcome of the trial, but as Gruen has stressed,270 a conviction of Scau- rus seems unlikely, though we cannot be sure whether Scaurus was acquitted or the charges simply dropped.271 In view of the poor condition of Scaurus' health,272 it is not

impossible that he died in the course of the trial. He was certainly dead by 88, for his wife Metella had married Sulla by that year.273 Broughton's supposition that Scau- rus was reappointed princeps senatus in 89 is based upon a small fragment from the fasti sacerdotum populi Romani which seems to confirm that Scaurus was succeeded in his priesthood by 88.274 In other words, this suggests that Scaurus died in 88. Yet the turmoil of the Social War may have delayed the appointment of a successor, so we cannot be sure. One thing seems certain, however: Scaurus cannot have been much of a force in politics after his political swan song in early 90.

Such is the career of M. Aemilius Scaurus, a man who in many ways is the last of the old senatorial leaders, those who followed in the footsteps of Fabius Maximus or the elder Cato. By the time of his death the new age had already begun, the age of Marius and Sulla and military despotism. Thus Scaurus was, in a sense, a bridge between the old and the new in Roman politics. His attempt to reconcile the two in favor of the former, however, was ultimately to fail: Ro- man armies were to prove themselves su- perior to the Roman Senate, and the prestige of the princeps senatus was to be eclipsed. Thus it might be said that the title he bore so proudly for over a generation died with him, for he was the last of the great politi- cians to regard it as the cornerstone of his power and the basis of his prestige.275 The death of Marcus Scaurus Princeps Senatus was thus in a very real sense the death of a Roman institution.

NOTES

1. G. Bloch, M. Aemilius Scaurus: Etude sur l'histoire des partis au VII siecle de Rome, Me1anges d'histoire ancienne: Bibliotheque de la faculte des lettres de Paris, 25, (Paris, 1908). Hereafter: Bloch, Scaurus. E. Pais, Dalle guerre puniche a Cesare Auguste, I (Rome, 1918), 91-167. Hereafter: Pais, Dalle guerre puniche. This is a greatly expanded version of Pais' earlier article, "I frammenti all'autobiografia di

M. Emilio Scauro e la lex Varia de maiestate," Ren- diconti della Reale Accademia dei Lincei 10 (1901): 50-60. P. Fraccaro, "Scauriana," Opuscula II (Pa- via, 1957): 125-147. Hereafter: Fraccaro, "Scau- riana."

2. In addition to the treatments listed above in note 1, the reader is also referred to the brief biography of E. Klebs, s.v. "M. Aemilius Scaurus," cols. 584-



REX IN SENATU 277

588 in A. Pauly, G. Wissowa, and W. Kroll, Real- Encyclopadie der klassischen Altertumswissenschaft. Hereafter: Klebs, s.v. "Aemilius," RE.

3. Bloch, Scaurus, passim. 4. The best study in this regard is still A. R. Hands,

"Sallust and Dissimulatio," IRS 49 (1959), 56-60. 5. Cicero, Pro Font. 7.24. 6. I realize, of course, that this judgment goes against

much of modem experience, yet I think that it will be substantiated in the course of our study.

7. Fritz M. Heichelheim and Cedric A. Yeo, A History of the Roman People (Englewood Cliffs, N.J., 1962), 180, present this view in its most extreme form:

the senate had been planning the destruction of both the Italian citizenship bill and its author. They found the tribune, M. Livius Drusus, a bril- liant agent of their diabolical scheme." On the other hand, we cannot fail to cite the excellent and more reasonable treatment of H. C. Boren in "Liv- ius Drusus, t.p. 122, and his Anti-Gracchan Pro- gram," CJ 52 (1956), 27-36. Unfortunately, his analysis is often ignored as the above quotation proves.

8. H. H. Scullard, From the Gracchi to Nero5 (London, 1982), 35.

9. E. Badian, "Forschungsbericht: From the Gracchi to Sulla," Historia 11 (1962), has noted (214, note 73) that Greenidge and Clay, Sources for Roman History: 133-70 B.C.2, devote only 19 pages to the internal history of the years 120-104, while 15 pages are needed for the years 123-121.

10. De vir. ill. 72.2: ipse primo dubitavit honores peteret an argentarium faceret.

11. De vir. ill. 72.3: primo in Hispania corniculum meruit. On this distinction and Scaurus' service as a common soldier see Bloch, Scaurus, 11-12, and Valerie A. Maxfield, The Military Decorations of the Roman Army (Berkeley and Los Angeles, 1981), 97-99. That Scaurus' patrician birth at first did not destine him for special honors or favors may be inferred from Asconius' statement (20 C): itaque Scauro ae- que ac novo homini laborandum fuit. On the other hand, given his patrician status, it is difficult to believe that he was simply a gregarius miles.

12. Ronald Syme, Sallust (Berkeley and Los Angeles, 1964), 155, note 55.

13. There is no mention of Scaurus' quaestorship in any of our sources. Since he was probably curule aedile in 122, he will have been quaestor sometime before that date. See T. R. S. Broughton, Magis- trates of the Roman Republic (American Philological Association/Case Western Reserve U. Press, 1951), 1: 517, 519-note 3. (Hereafter, Broughton, MRR.)

14. De vir. ill. 72.3: sub Oreste in Sardinia stipendia fecit.

15. Bloch, Scaurus, 13-17. 16. Broughton, MRR, I, 508-509, 511-512, 515, 517.

On Scaurus' priesthood see E. Badian, "Sulla's Augurate," Arethusa 1 (1968), 29-30.

17. For the possibility that Gaius Gracchus returned to Rome in 125, see E. Badian, Foreign Clientelae (Oxford, 1958), 179 with note 3.

18. See Oxford Latin Dictionary, s.v. "Stipendium," 2b.

19. Cicero (Pro Sest. 101) says that Scaurus was a man qui a C Graccho usque ad Q. Varium seditiosis omnibus restitit, quem numquam ulla vis, ullae minae, ulla invidia labefecit. The De viris illustribus is more emphatic (72.9): tantumque auctoritate potuit ut Opimium contra Gracchum . . . privato consilio armaret.

20. Plutarch Gaius Gracchus 2. 21. Ibid. Gaius Gracchus, after his return from Sar-

dinia, delivered an oration contrasting his behavior with that of others who went out to the province (H. Malcovati, Oratorum Romanorum Fragmenta3, Gaius Sempronius Gracchus, Frgs. 26-28 = Gellius 15.12.1-4. Hereafter: Malcovati, ORF3). It is possible that Scaurus might be one of the persons to whom Gracchus refers in F28: alii vini amphoras quas plenas tulerunt, eas argento repletas domum re- portaverunt. We have, of course, no way of proving such a reference or of substantiating the charge, but if Scaurus believed that such a remark was directed at him and his companions, he might have taken umbrage and this would to some extent account for his hostility to C. Gracchus.

22. See above, note 19. 23. E. Klebs, s.v. "Aemilius," RE, col. 585: "Falsch

iubertreibende Notiz." 24. Erich S. Gruen, Roman Politics and the Criminal

Courts, 149-78 B.C. (Cambridge, Mass., 1968), 97. 25. Pro Sest. 101. Quoted above, note 19. 26. On this see Richard L. Bates, Memoirs and the Per-

ception of History in the Roman Republic (Doctoral Dissertation: University of Pennsylvania, 1983), 121-148. On the relation of memoirs to history see Charles W. Fornara, The Nature of History in Ancient Greece and Rome (Berkeley and Los An- geles, 1983), 180 ff.

27. Cf. E. Badian, "P. Decius P. f. Subulo: An Orator of the Time of the Gracchi," JRS 46 (1956), 92.

28. Broughton, MRR, I, 545. 29. Broughton lists Scaurus as a pontifex for this year

(MRR, I, 515). It is more likely, however, that he was appointed an augur at this time. On this see the arguments of E. Badian, "Sulla's Augurate," Arethusa 1 (1968), 29-31. See also Plinio Fraccaro, "Scauriana," Opuscula II (Pavia, 1957), 135-137. G. V. Sumner in his Orators in Cicero's Brutus: Prosopography and Chronology (Toronto, 1973), rightly points out that the statements of Suetonius (Nero 2.1) and Asconius (21C) need not conflict. It should be admitted that ILS 9338 is most likely a list of augurs since a mixed list is unlikely (otherwise we would expect some trace of an attempt to indicate the priesthood held by each individual) and the only man who can be securely assigned to a college is known to have been an augur. It is possible, however, that Scaurus may have been both an augur and a pontifex. On this see below, page 258 with note 83.

30. On cooptation as the means of filling the priestly colleges at this time see G. W. Botsford, The Roman Assemblies (New York, 1909), 341, 391-392, 416.

31. On Scaurus' traditionalist attitudes see below, pages 258, 263-264, and Bates, Memoirs 133-135.




32. Broughton, MRR, I, 517. 33. Bloch, Scaurus, 18. 34. De vir. ill. 72.9. 35. Badian, "P. Decius," 92: A. H. J. Greenidge and

A. M. Clay, Sources for Roman History, 133-70 B. C2, revised by E. W. Gray (Oxford, 1960), 50-51. Hereafter: Greenidge-Clay, Sources.

36. Broughton, MRR, I, 526-527. 37. See, for example, M. Cary, A History of Rome2

(London, 1955), 297. We again find the "reactionary" thesis strongly asserted by F. Heichelheim and C. Yeo in A History of the Roman People (En- glewood Cliffs, N.J., 1962),181: "Lucius Opimius, the destroyer of Fregellae and a violent reactionary, deliberately provoked an incident."

38. Thus E. Badian, Lucius Sulla, the Deadly Reformer, Todd Memorial Lecture (Sydney, 1970).

39. On this measure see Scullard, From the Gracchi to Nero5, 44-45; Robert J. Rowland, "Marius' Bridges," Historia 25 (1976), 252; Plutarch Marius, 4.2; Cicero De leg. 3.17.38.

40. On Scaurus' connections with the Metelli see Bloch, Scaurus, 21-22; F. Munzer, Rdmische Adelsparteien und Adelsfamilien (Stuttgart, 1920), 280; and I. Shatzman, "Scaurus, Marius, and the Metelli," Ancient Society 5 (1974), 197-222.

41. On this see Bates, Memoirs, 58-107. 42. This is a point made by E. Gabba ("Aspetti culturali

dell' imperialismo romano," Athenaeum 55 [1977], 49-74) with which I am in complete agreement.

43. Iug. 15.4: vitia sua callide occultans. 44. Sallust thought that boni mores began to decline

after the destruction of Carthage (Cat. 10.1). 45. It is well to remember Sallust's description of Ro-

man mores before that time (Cat. 9.1-3): igitur domi militiaeque boni mores colebantur; concordia max- uma, minima avaritia erat; ius bonumque apud eos non legibus magis quam natura valebat. iurgia dis- cordias simultates cum hostibus exercebant, civis cum civibus de virtute certabant. in suppliciis deorum magnifici, domi parci, in amicos fideles erant. duabus his artibus, audacia in bello, ubi pax evenerat ae- quitate, seque remque publicam curabant. I think it is wrong to regard this as mere rhetoric. Sallust really believed this, and he is not alone. Certainly many historians, both ancient and modem, have deceived themselves by conjuring up such fan- tasies about an ideal age.

46. Iug. 15.4. 47. Agricola 1.3: ac plerique suam ipsi vitam narrare fi-

duciam potius morum quam adrogantiam arbitrati sunt; nec id Rutilio et Scauruo citra fidem aut ob- trectationi fuit: adeo virtutes iisdem temporibus op- time aestimantur, quibus facillime gignuntur.

48. 72.4: praetor Iugurthae adversus, tamen eius pecunia victus.

49. Bloch, Scaurus, 13. The statement of Peter (His- toricorum Romanorum Reliquiae2 [Stuttgart, 1967], 1: ccxlviii) that Scaurus held Sardinia as a province after his praetorship is based upon the misinter- pretation of a passage of Asconius (18C): ex prae- tura provinciam Sardiniam obtinuit refers to the younger Scaurus who was on trial in 54 for his activities as governor of Sardinia. It is not impos-

sible that the elder Scaurus held Sardinia as a province, for he did do some military service there, and it was not uncommon for a son to hold the same province his father once held. We have, however, no direct evidence for it.

50. Iug. 15.3. 51. Cicero Mur. 36. 52. Cicero Brutus 30.113: cum una consulatum petiv-

issent, non ille solum, qui repulsam tulerat, accusavit ambitus designatum competitorem, sed Scaurus etiam absolutus Rutilium in iudicium vocavit. For a discussion of these trials see Gruen, Roman Politics and the Criminal Courts, 120-122, 261; and Bloch, Scaurus, 25. For a slight modification of these views see Bruce Marshall, "Two Court Cases in the Late Second Century B.C.," AIP 98 (1977), 417-423. Note that if Asconius (19C, lines 11-15) is accu- rately reporting this trial, then Cicero is wrong to speak of Scaurus as absolutus, for the clear implication of Asconius is that Scaurus evaded prosecution by securing magisterial immunity.

53. For the anecdote see Cicero De orat. 2.69.280. For the details of interpretation see Bloch, Scaurus, 25.

54. E. Badian, Studies in Greek and Roman History (Ox- ford, 1964), 40. Hereafter: Badian, SGRH.

55. Iug. 15.3. That Sallust thus identifies Scaurus with this group, albeit grudgingly, must be stressed, for despite his unsupported assertions that Scaurus was vitia sua callide occultans and animum a con- sueta lubidine continuit, the historian nonetheless reveals that Scaurus' public stance supported those who favored the aequom et bonum.

56. De vir. ill. 72.9; Cicero Pro Sest. 101. Although Cicero does not mention Opimius in this passage, his hostility to Gaius Gracchus is well known.

57. Badian, "P. Decius," 94-95. 58. LivyPer. 61. 59. For the difficulties with this passage see above,

page 254. On Sallust's appraisal of Scaurus at this time see K. von Fritz, "Sallust and the Attitudes of the Roman Nobility at the Time of the Wars against Jugurtha," TAPA 74 (1943), 145-146.

60. The manuscript reading of Sallust Iug. 16.3 is in amicis, and this is the reading A. Kurfess keeps in his Teubner edition. He has defended this reading in a note entitled "Zu Sallust, Jug. 16.3," Wurz- burger Jahrbiucher ftir die Altertumswissenschaft 2 (1947), 371. Certainly the most compelling reason for maintaining this reading is that it is the manuscript reading. His citation of the question posed by Wirz for those who emend to in inimicis (". wer sind uberhaupt die Gonner, wenn es nicht hauptsachlich der allmachtige Opimius war, da doch der einflussreiche Scaurus zur Gegnerschaft gehort?") is no real objection to the emendation since Scaurus was earlier a supporter of Opimius (see above, page 253) and the two may reasonably be supposed to be in alliance now. Indeed, the likelihood that Scaurus and Opimius were allies at this time is the most cogent reason for the emendation.

61. Iug. 16.3: dando et pollicendo multa perfecit, utifama, fide, postremo omnibus suis rebus commodum regis anteferret.



REX IN SENATU 279

62. De vir. ill. 72.4. 63. Jaakko Suolahti, "Princeps Senatus," Arctos 7

(1972), 215 with note 3. 64. E.g. E. Badian, SGRH, 39; Bloch, Scaurus, 21-23. 65. Broughton, MRR, I, 531-533 with note 1. 66. F. Munzer, Rdmische Adelsparteien, 280-281. Me-

tella could have married Sulla in early 88, but late 89 seems more likely. See Plutarch, Sulla, 6.10.

67. For a further discussion of Scaurus' marriage see I. Shatzman, "Scaurus, Marius, and the Metelli," 214ff. For a discussion of the probable average marriage age for Roman women see K. Hopkins, "The Age of Roman Girls at Marriage," Population Studies 18 (1965), 309-327, and P. Brunt, Italian Manpower, 225 B.C.-A.D. 14 (Oxford, 1971), 136- 140. Scaurus may have remarried in search of an heir after the death of his son sometime in 102- 1. The younger Scaurus (praetor in 56) was born probably as late as 97 or 96. See Miinzer, Rdmische Adelsparteien, 280-281, and G. V. Sumner, "The Pompeii in Their Families," AJAH 2 (1978), 18. Scaurus' successful, late effort to re-establish his family by having a second son also supports our view that he embodied many of the values of the "Old Roman."

68. On this see Bates, Memoirs, page 148. 69. Iug. 15.4: sed ex omnibus maxume Aemilius Scaurus. 70. Iug. 15.3: . . . pauci, quibus bonum et aequom divitiis

carius erat. 71. De vir. ill. 72.6: [Scaurus] P. Decium praetorem tran-

seunte ipso sedentem iussit assurgere eique vestem scidit sellam concidit, ne quis ad eum in ius iret, edixit.

72. Livy Per. 61. 73. Sources in Broughton, MRR, I, 531. 74. Iug. 25.10: Scaurum quem plurimum metuebat. 75. That his public image remained unsullied in 115

seems proved by the very fact that he was appointed princeps senatus in that year even though there were probably other eligible candidates who had already held the consulship. On this see Suo- lahti, "Princeps Senatus," 215.

76. Certainly his appointment to the delegation of 112 would have been unlikely had he been implicated in shady dealings with Jugurtha on a previous occasion.

77. Broughton, MRR, I, 531. 78. Roman Assemblies, 388. Contrary arguments pre-

sented by L. R. Taylor in her Voting Districts of the Roman Republic (American Academy: Rome, 1960), 141ff., have been refuted by E. Badian in his review of this work URS 52 [1962], 207-208). See also S. Treggiari, Roman Freedmen during the Late Republic (Oxford, 1969), 47ff., and below, page 263 with note 123.

79. The best discussion of this law and its general import is still to be found in Peter, HRR2, I, ccxlviii. Note also the comments of Botsford, Roman As- semblies, 388, note 9.

80. On this see Bates, Memoirs, 70-73. 81. On this see E. Gabba's "Aspetti culturali

dell'imperialismo Romano." Cited above, note 42. 82. See below, pages 37ff. 83. The charge leveled against Scaurus by the tribune

Cn. Domitius Ahenobarbus in 104 suggests that

Scaurus was a pontifex. On this see Russel M. Geer, "Marcus Aemilius Scaurus-Suetonius, Nero, 2.1 and Asconius on Cicero, Pro Scauro, 1," CP 24 (1929), 292. We cannot, however, pinpoint the date when he would have been co6pted into that college. All that can be said is that it would have been sometime before 104. The fact that Scaurus was most probably an augur (see above, note 29) need not exclude him from the college of pontifices. The honor of dual membership in both the college of augurs and pontifices, though rare (see Stefan Weinstock, Divus Iulius [Oxford, 1971], 32 with note 8), is not unknown, and Scaurus' political abilities and auctoritas were certainly sufficient to attain such an honor. If Scaurus was not a pontifex, however, our suggestion that he played a role in the condemnation of Aemilia and the other Vestals becomes less probable.

84. Broughton, MRR, I, 534, 537; Greenidge-Clay, Sources2, 58-60.

85. See below, page 265. 86. Sources in Broughton, MRR, I, 537. For a brief

discussion of the commission set up by the lex Peducaea and its relation to other popularis mea- sures see Botsford, Roman Assemblies, 390.

87. Broughton, MRR, I, 485. 88. Malcovati, ORF3, 165, 207 (following Bloch, Scau-

rus, 26-27) dates the trial in 114. Accepted by Gruen, Roman Politics and the Criminal Courts, 120- 122, 261. Cf. B. Marshall, "Two Court Cases in the Late Second Century B.C.," 417-419, cited above note 52.

89. Broughton, MRR, I, 537. 90. Malcovati, ORF3, Scaurus, frg. 7. 91. Sallust Iug. 25.4. 92. Bloch devoted a third of his monograph on Scaurus

to the events of these years. Kurt von Fritz ("Sallust and the Attitude of the Roman Nobility"-cited above, note 59) still gives the best discussion of the problems, pace R. Syme, Sallust, 157, note 1.

93. On this see above, page 255-256. 94. Iug. 25.10: Scaurum quem plurimum metuebat. 95. Sallust only reveals its contents through indirect

discourse, yet even this suggests that the embassy intended to deal with the situation firmly, for it ordered Jugurtha quam ocissume ad provinciam ad- cedat (Iug. 25.5). Note also that it is after he relates the contents of this letter that Sallust stresses Ju- gurtha's fear of the Senate and Scaurus.

96. It should be borne in mind how difficult it was to send an army into Africa at this time. After the military disaster at Noreia (113) Roman manpower resources were strained (sources: MRR, I, 535). The failure to send an army to Africa, therefore, need not be due to the influence of Jugurtha's supporters; it may merely be an expedient resulting from the force of circumstances.

97. Sallust calls its members adulescentes (Iug. 21.4.). On the role of these adulescentes see S. I. Oost, "The Fetial Law and the Outbreak of the Jugur- thine War," AJP 75 (1954), 147-159.

98. Jugurtha claimed that Adherbal had been plotting against his life (Sallust Iug. 22.4).

99. Compare, for example, Jugurtha's defense in oratio




obliqua (22.2) with the forceful and passionate letter of Adherbal in oratio recta (24.2-10).

100. Livy Per. 64: Adherbal bello petitus ab Iugurtha et in oppido Cirta obsessus contra denuntiationem senatus ab eo occisus est, et ob hoc bellum Iugurthae indictum. If this notice may be taken to mean what it says, then the Senate had expressly forbidden Jugurtha to harm Adherbal. This message was probably delivered by the Scauran embassy of 112, though Opimius had doubtless delivered a similar one in 116.

101. Iug. 27.2. 102. Iug. 28.5: nam in consule nostro multae bonaeque

artes et animi et corporis erant. 103. Iug. 28.7: igitur Calpurnius initio paratis conmeatibus

acriter Numidiam ingressus est multosque mortales et urbes aliquot pugnando cepit.

104. S. A. Handford's translation (Penguin Classics, page 64) is a recent example: "Bestia, who had now levied his army, chose as members of his staff a number of noblemen, good party men whose support he hoped would countenance any misconduct of his own-including Scaurus, whose character and habits I have already described."

105. Cf. Oxford Latin Dictionary, s.v. "delinquo," meaning 1: "to be lacking, etc."

106. On this trial see H. H. Scullard, Roman Politics, 220-1502 (Oxford, 1973), 291ff.

107. Iug. 30.1-2. 108. Iug. 31.18: vindicandum in eos, etc. 109. Iug. 31.19. 110. Iug. 33.1. 111. Iug. 31.25. 112. On the history of maiestas legislation see R. A.

Bauman, The Crimen Maiestatis in the Roman Re- public and Augustan Principate (Johannesburg, 1967). Also see below, note 130.

113. On this see above, pages 258-259. 114. Iug. 32.1: quo facilius indicio regis Scauri et relicuo-

rum, quos pencuniae captae arcessebat, delicta pa- tefierent.

115. Iug. 40.1. 116. Iug. 40.4. 117. E.g. G. V. Sumner, "Scaurus and the Mamilian

Inquisition," Phoenix 30 (1976), 73-75. Bloch (Scaurus, 68-69) suggested that the election of three quaesitores implies the creation of three quaestiones; hence Scaurus, though the presiding officer of one, could have been the advocatus of Bestia in another. Though plausible, such an interpretation seems to imply the investigation of a considerable number of suspects, indeed, a number that is larger than seems warranted by the circumstances.

118. Iug. 29.2: . . . Scaurus, qui tametsi a principio plerisque ex factione eius conruptis acerrume regem inpugnaverat.

119. Iug. 40.5. And he goes on to add: ut saepe nobili- tatem, sic ea tempestate plebem ex secundis rebus insolentia ceperat.

120. Cicero De orat. 2.283: ut cum Scaurus non nullam haberet invidiam ex eo quod Phrygionis Pompeii lo- cupletis hominis bona sine testamento possederat, sederetque advocatus reo Bestiae, cum funus quoddam duceretur, accusator C. Memmius "V/ide," inquit,

"Scaure, mortuus rapitur, si potes esse possessor." On Scaurus' role as a character witness see E. Gruen, Roman Politics, 145, 148.

121. Sources in Broughton, MRR, I, 545. To which add: Ammianus Marcellinus 27.309.

122. Plutarch Quaest. Rom. 50: a'-xo6ai4Two b TLtIr7TOV At3iov /ipoveiov, z2KaVpoS Ay'LXtog aVvcpgpXv OVK

3ovXETO T1V aPX7W acxlrxaelaOat .EXPt ov Trw

?7Aa'PXWV TIVES aVTOP EKEXEVEV ELt TO Of A/.T?pLoV

123. Opuscula, II, 131ff. 124. Sources in Broughton, MRR, I, 561. See below,

page 265. 125. Cicero De har. resp. 43; Pro Sest. 39. 126. Cicero Pro Rab. perd. 21; Valerius Maximus 3.2.18. 127. Cf. Badian, "Forschungsbericht," 214ff. 128. See Bates, Memoirs, 128, 144, and above, pages

253-254. 129. On this see the article of Gabba cited in note 42. 130. On this see Hugh Last's remarks in CAH, IX, 160ff. 131. Sallust Iug. 31.1-29. Note especially the words

Sallust attributes to Memmius in the latter's de- nunciation of the actions of the nobility: itaque postremo leges, maiestas vostra, divina et humana omnia hostibus tradita sunt. For a further discussion of Memmius' position see above, pages 261-262.

132. Iug. 40.1. 133. Cicero De orat. 2.283. For a further discussion of

this commission see above, pages 262-263. 134. Discussed above, page 255. 135. Valerius Maximus 5.8.4; Frontinus Strat. 4.13.3;

De vir. ill. 72.10. This action took place in c. 102/ 101, and young Scaurus was probably a contu- bernalis of the consul/proconsul Q. Lutatius Ca- tulus. It should be noted that since Scaurus had a son old enough for military service at this date, his marriage to Metella (possibly as late as 101) could not have been his first. See above, page 256 with note 67.

136. See above, page 264. For a brief discussion of this affair see David C. Chandler, "Quaestor Ostien- sis," Historia 27 (1978), 330-331.

137. Cicero De har. resp. 20.43; Pro Sest. 17.39. 138. Diodorus 36.12. 139. Asconius 21C. On the date see Fraccaro, Opuscula,

II, 135-136. Contra: Sumner, The Orators in Cic- ero's Brutus, 100.

140. Asconius 21C. Cf. Badian's article cited above in note 29. If Scaurus was also a pontifex (see note 83 for the suggestion), he may also have tried to prevent Domitius' entry into the college of pontifices, and this would also make it easier to accept Sumner's suggestion that Domitius sought membership in both priestly colleges though at different times. (See the previous note for the citation of Sumner's discussion.) Sumner is surely right in his contention that Suetonius need not conflict with Asconius. The acceptance of Suetonius means, however, that we must believe Domitius' father was a pontifex and that the pontifices had failed to coopt him.

141. Asconius 21C; Cicero Pro Deiot. 11.31; Dio 27, frg. 92; Valerius Maximus 6.5.5. The latter is not cited in Greenidge-Clay, Sources2.



REX IN SENATU 281

142. Sources in Broughton, MRR, I, 559. 143. Cf. H. H. Scullard, From the Gracchi to Nero5, 53,

and Botsford, Roman Assemblies, 391ff. 144. On Caepio and the consequences of his military

and political activities see E. Badian, "Caepio and Norbanus," Historia 6 (1957), 318-346 = SGRH, 34-70; J. P. V. D. Balsdon, "The History of the Extortion Court at Rome," PBSR 14 (1938), 98ff. = R. Seager, The Crisis of the Roman Republic (New York, 1969), 132ff. (hereafter: Seager, Crisis), and especially J. Lengle, "Die Verurteilung der romischen Feldherrn von Arausio," Hermes 66 (1931), 302-316.

145. Sources in Broughton, MRR, I, 553. I agree with Balsdon (see previous note) that the jury panels were mixed, i.e. they included both senators and equites.

146. There are no precise chronological indications for these events. See the necessarily vague discussion of Broughton, MRR, I, 565-566, notes 4 and 8. I place the lex Cassia before the quaestio auri Tolosani because in the circumstances the latter seems less significant and consequently less damaging to Caepio's reputation than Arausio and its aftermath. In other words, I think it is likely that the lex Cassia followed immediately upon the heels of the abrogation of Caepio's imperium, whereas the institution of the quaestio auri Tolosani was only a subsidary prosecution.

147. Asconius 78C; Cicero De domo 31.83; Livy Per. 67; and Granius Licinianus 1 F. Note that Livy says that Caepio was the first to have his imperium abrogated since the days of King Tarquin!

148. The most detailed discussion of the quaestio auri Tolosani is that of J. Lengle, "Die Verurteilung," 311-312. Lengle believes that Caepio may have been tried by the mixed jury panels instituted in 106 by his own lex iudicaria. The only real evidence for Caepio's conviction in this affair is the statement in the Periocha of Livy (Per. 67) that Caepionis

. . damnati bona publicata sunt. . ., and the implication of his guilt in the statement of De vir. ill. 73: aurum Tolosanum dolo an scelere partum. On the other hand, jurors constituted on the basis of Caepio's law might have been sympathetic to him, though they condemned others (Dio, frg. 90). Moreover, the notice of the Periocha of Livy suggests that Caepio's goods were confiscated as a result of a condemnation for the defeat at Arausio, not because of the theft of the Tolosan gold. On this see below, pages 267-268.

149. De vir. ill. 73. This passage is fully discussed by J. Lengle, "Die Verurteilung," 311.

150. Cf. A. E. Astin, Scipio Aemilianus (Oxford, 1967), 135 with note 4.

151. Granius Licinianus 11F; Dio Cassius, frg. 91. See J. Lengle, "Die Verurteilung," 306-308, for a detailed discussion of Caepio's responsibility for the disaster and a full analysis of the sources. On Me- tellus Numidicus' military abilities see M. Holroyd, "The Jugurthine War: Was Marius or Metellus the Real Victor?" JRS 18 (1928), 1ff., and T. F. Camey, "Cicero's Picture of Marius," Weiner Studien 73 (1960), 91-92.

152. If both consuls of 105, P. Rutilius Rufus and Cn. Mallius Maximus, were novi homines (and this is quite possible pace A. N. Sherwin-White, "Violence in Roman Politics," JRS 46 [1956], 3 with note 5), then popular discontent with the nobiles and their handling of military affairs was considerable even before the disaster of Arausio.

153. The main ancient sources for popular superstitions about the Tolosan gold are Strabo 4.1.13 (188C), from Timagenes and Posidonius; Dio, frg. 90; Jus- tin 32.3.9-11 (Trogus), especially aurum quod omne magno post tempore Caepio Romanus consul abstulit . . . quod sacrilegium causa excidii Caepioni exer- cituique eius postea fuit. Romanos quoque Cimbrici belli tumultus velut ultor sacrae pecuniae insecutus est; and Gellius 3.9: . . . quisquis ex ea direptione aurum attigit misero cruciabilique exitu periit. For a detailed discussion of these passages see F. Mun- zer, RdmischeAdelsparteien, 291-292, and J. Lengle, "Die Verurteilung," 309-310.

154. Arguments for the dating of the lex Servilia Glauciae are legion, but none can claim to be decisive. The best is still J. P. V. D. Balsdon, "The History of the Extortion Court at Rome," 106-108. But see also H. Last, CAH, IX, 162ff.; C. Niccolini, I fasti dei tribuni della plebe (Milan, 1934), 195ff.; E. Badian, "Lex Servilia," CR n.s. 4 (1954), 101-102, and E. Gabba in Appiani Bellorum Civilium Liber Primus2 (Florence, 1967), on Appian 1.28.127, and in "Notee Appianee," Athenaeum 33 (1955), 218ff.

155. On this see below, page 268. 156. Sources in Broughton, MRR, I, 558-562. In the

forefront of these lesser prosecutions were those initiated by the tribune Cn. Domitius Ahenobarbus against M. Junius Silanus (cos. 109) and, of course, Scaurus. On the latter see above, page 266. We must also not forget the contest between Scaurus and Saturninus for the cura annonae (discussed above, pages 265-266).

157. E.g. T. Mommsen, Romisches Strafrecht (Leipzig, 1889), 197ff., and Badian, SGRH, 35.

158. "Die Verurteilung," 305-309, gives a full discussion of sources. "Prosecution" might be too strong a word since the passage of Granius Licinianus (13F = Crinti 33.24, p. 12: Cn. Mallius ob eandem causam quam et Caepio L. Saturnini rogatione e civitate plebiscito eiectus) suggests that Mallius after learning of Caepio's fate went into voluntary exile which Saturninus' rogatio made official. On this see J. Lengle, 312-313.

159. See above, page 266 with note 148. 160. It is often overlooked that a standing quaestio or

even a quaestio extraordinaria gave the nobiles greater control over judicial proceedings, regardless of the composition of the jury panels, than they would have had in the more open and sometimes more violent judicial proceedings ad populum.

161. Lengle ("Die Verurteilung," 309 with note 1) is too hesitant in recognizing this, but the citations of the laws he adduces hardly prove that the Ro- mans never instituted ex post facto laws. Indeed, in a sense, all special quaestiones such as that of Mamilius in 109 were ex post facto.

162. Cicero De orat. 2.28.124: illam Norbani seditionem




ex luctu civium et ex Caepionis odio, qui exercitum amiserat .

163. Auct. Ad Herenn. 1.14.24: purgatio est, cum consulto negat se reus fecisse. ea dividitur in imprudentiam, fortunam, necessitatem: fortunam, ut Caepio ad tri- bunos plebis de exercitus amissione.

164. Cicero De orat. 47.197: . . . vim, fugam, lapidati- onem, crudelitatem tribuniciam (sc. Norbani) in Caepionis gravi miserabili casu . . . deinde principem et senatus et civitatis, M. Aemilium lapide percussum constabat, vi pulsum e templo L. Cottam et T. Didium, cum intercedere vellent rogationi, nemo potest negare.

165. Valerius Maximus 4.7.3; Livy Per. 67. 166. His nomen is conjectured by Broughton, MRR, I,

564. Cf. the name of Caesar's legate, C. Antistius Reginus (BG 6.1.1).

167. Valerius Maximus 4.7.3: L. Reginus . . . tribunus plebis Caepionem in carcerem coniectum, quod illius culpa exercitus noster a Cimbris et Teutonis videbatur deletus, veteris et artae amicitiae memor publica cus- todia liberavit nec hactenus amicum egisse contentus fugae eius comes accessit. Cicero Pro Balb. 11.23:

Q. Caepione P. Rutilio Zmyrnae . 168. On this see above, pages 262-263. 169. Cicero De orat. 47.197: principem et senatus et civ-

itatis, M. Aemilium . . . 170. Valerius Maximus 3.2.18: cum tr. pl. Saturninus et

praetor Glaucia et Equitius designatus tr. pl. maximos in civitate nostra seditionum motus excitavissent, nec quisquam se populo concitato opponeret, primum M. Aemilius Scaurus C. Marium consulatum sextum gerentem hortatus est ut libertatem legesque manu defenderet, protinusque arma sibi adferri iussit. The SCU is cited in Cicero Rab. perd. 7.20, and implied in De vir. ill. 73. Thus Scaurus seems to have played a leading role in bringing it about. See also above, page 264 with note 126.

171. Valerius Maximus 8.5.2; Cicero Pro Font. 11.24. Gabba's objections to dating these trials to 103/2 (Republican Rome, the Army, and the Allies [Berkeley and Los Angeles, 1976], 227, note 89) do not seem to stand up. Cicero's reference to illi equites Romani (Pro Font. 26) need not mean that the juries were composed exclusively of equites, and if the lex Ser- vilia Caepionis was still in effect, as I believe it was, then the juries were half equestrian. Thus here Cicero could be merely stressing the word equites for effect. On these trials see also E. Gruen, Roman Politics and the Criminal Courts, 166-167.

172. See Broughton, MRR, I, 558-559, 562, note 4. 173. On this see above, pages 261-263. 174. On Scaevola's adfinitas with Marius see Badian,

SGRH, 44. For the younger Fimbria's attack on Scaevola see Cicero Pro Rosc. Amer. 12.33.

175. Valerius Maximus 8.5.2. 176. Last, CAH, IX, 168; E. Pais, "I frammenti all' au-

tobiografia di M. Emilio Scauro e la lex Varia de maiestate," Rendiconti della Reale Accademia dei Lincei 10 (1901), 56.

177. Broughton, MRR, I, 567. 178. Zonaras' epitome of Cassius Dio (7.19) clearly

states that the princeps senatus was not appointed for life.

179. Cf. Suolahti, "Princeps Senatus," 207ff.

180. Sources in Broughton, MRR, I, 576, especially Val- erius Maximus 3.2.18, and Cicero Rab. perd. 7.20- 21.

181. In "Princeps Senatus," 210. 182. Cicero Rab. perd. 7.21: cum ad arma consules ex

senatus consulto vocavissent, cum armatus M. Ae- milius, princeps senatus, in comitio constitisset, qui cum ingredi vix posset, non ad insequendum tibi tarditatem pedum sed ad fugiendum impedimento fore putabat. .

183. For a relatively full listing and review of the scholarship on this period see T. J. Luce, "Marius and the Mithridatic Command," Historia 19 (1970), 161ff. Luce's first note is a useful summary of the most important work on the period, while the article itself is a useful synthesis and discussion of it. Badian's most important articles on the nineties are: "Q. Mucius Scaevola and the Province of Asia," Athenaeum 34 (1956), 104-123; "Caepio and Norbanus," Historia 6 (1957), 318-346 = SGRH, 34-70; "Sulla's Cilician Command," Athenaeum 37 (1959), 279-303 = SGRH, 157-178. E. Gruen's major work on this period can be found in his Roman Politics and the Criminal Courts and his "Political Prosecutions in the 90s," Historia 15 (1966), 32-64. E. Gabba's work on the period is best found in his "Politica e cultura in Roma agli inizi del I. sec. a.C.," Athenaeum 31 (1953), 259- 272, and in his commentary to the first book of Appian's Civil Wars (cited above, note 154).

184. Asconius (21C) is the only mention of this legatio in our sources: Q. Servilius Caepio Scaurum ob legationis Asiaticae invidiam et adversus leges pecuniarum captarum reum fecit repetundarum lege quam tulit Servilius Glaucia.

185. For the date of Caepio's first prosecution of Scaurus see Bloch, Scaurus, 28-29.

186. Scaurus, 30-32. 187. In his important articles cited in note 183. 188. SGRH, 171-173. 189. Argued in "Q. Mucius Scaevola and the Province

of Asia," 117ff. 190. B. A. Marshall, "The Date of Q. Mucius Scaevola's

Governorship of Asia," Athenaeum 54 (1976), 117- 130. Broughton accepted the earlier dating in MRR, II, 5, note 2, 7-8, and Supplement, 47. This was already argued by J. P. V. D. Balsdon in "Q. Mucius Scaevola the Pontifex and ornatio provinciae," CR 51 (1937), 8-10. The earlier data are also accepted by C. Nicolet in his L'ordre e'questre d l'epoque republicaine, 312-43 av. JC. (Paris, 1966), 545-546.

191. On Marius' legatio to Asia (most probably in 98) see Luce, "Marius and the Mithridatic Command," 162-168.

192. Michael C. Alexander, "The legatio Asiatica of Scaurus: Did it take place?" TAPA 111 (1981), 1-9.

193. On this see above, note 182. For his continuing infirmity until his death see Asconius 22C.

194. Badian, SGRH, 165ff. I do not understand Luce's objections to Badian's dating ("Marius and the Mithridatic Command," 166). Badian does not say what Luce thinks he does.

195. On this see above, page 269.



REX IN SENATU 283

196. See the discussion of Luce, "Marius and the Mith- ridatic Command," 162-168. On the vow see T. R. S. Broughton, "Notes on Roman Magistrates," Historia 2 (1953), 211-212.

197. NH 36.116. For the various controversies surrounding this passage see Bloch, Scaurus, 36-38; Fraccaro, Opuscula, II, 138-140, and Badian, "Q. Mucius Scaevola and the Province of Asia," 120, note 3, and his Roman Imperialism in the Late Re- public2 (Ithaca, 1968), 41-42, 101, note 39.

198. The two passages are Valerius Maximus 3.2.18 and De vir. ill. 72.9. For a detailed discussion of these see I. Shatzman, "Scaurus, Marius, and the Me- telli," 197-222, esp. 200-207. See also E. Frank, "Marius and the Roman Nobility," CJ 50 (1955), 150-152, for her view that there was also a period of friendly relations between Scaurus and Marius.

199. Roman Imperialism2, 41-42. 200. On this see Bloch, Scaurus, 19ff. 201. Plutarch Marius 31: jn pELov, Z 0aoatLXEv, ruEpW

obvsea0attPw,uaswv 77 7rOLEL LWi7rVj ro 7rpoaTcraaoAuEvov. 202. Sources in Broughton, MRR, II, 7 and Supplement,

42. 203. Diodorus (37.5) calls Rutilius Scaevola's best friend:

rov apLtrTov IAv /hxwv. 204. Diodorus 37.6. See also OGIS, 437-439. 205. One of Badian's main arguments ("Q. Mucius

Scaevola and the Province of Asia," 110-111) for dating Scaevola's governorship and Rutilius' legatio to 94 is that if it fell in 97 we could not explain why the equites waited until 92 to revenge themselves upon Rutilius. Yet even if the equites were out for blood, it does not seem to me that a five- year interval is any more difficult to account for than a two-year one. Moreover, given the paucity of our sources, I do not think it is incumbent upon those who favor 97 for Scaevola's proconsulship to show why there was a gap of four to five years between Rutilius' legatio and his prosecution. A simple answer is, of course, at hand: political reasons accounted for the delay just as they did in the case of Labienus' prosecution of Rabirius for an alleged crime committed thirty-six years before! A more detailed explanation is beyond the reach of those who would provide one because of lack of evidence. Yet it could be that the unsettled conditions of 92 (with the younger Drusus' candidacy for the tribunate afoot and the rumblings of allied discontent) made the equites quite apprehensive about the political moves of the boni; hence they used the trial of Rutilius as a means of attacking the boni first. We could equally ask of Badian with regard to the Caepio-Norbanus trials of 95: Why did the boni wait eight years to prosecute Norbanus while the populares waited just as long to attack the younger Caepio? Yet the inability for us to account for the delay with regard to these trials should in no way shake the otherwise convincing arguments Badian had adduced for dating these trials to 95.

206. This date for Sulla's Cilician command should now be regarded as certain. See Badian, SGRH, 157ff. A. N. Sherwin-White's criticism of Badian's dating in his article "Ariobarzanes, Mithridates, and

Sulla," CQ 27 (1977), 173-183, does not seem cogent, for Badian only uses the section from Plu- tarch that properly belongs to Sulla's Memoirs to establish his chronological points. Badian in no way suggests that Plutarch's negative comments and the anecdote about Caesar came from Sulla himself. Moreover, Sherwin-White admits in his discussion of the chronology based on the evidence from coins that the "numismatic evidence may not yet be complete" (p. 181). Certainly we ought not attempt to build a hypothesis upon a foundation that is not yet secure. G. V. Sumner in "Sulla's Career in the Nineties," Athenaeum 56 (1978), 395- 396, favored a slightly later date, but he was sure that Sulla had been elected aedile, an office Sulla probably did not hold. On this see Bates, Memoirs, 293-295 with notes 364 and 371, and Arthur Keaveney, Sulla: The Last Republican (London, 1982), 35-36.

207. Sources in Broughton, MRR, II, 18 (under the year 92). Sulla's command is, of course, to be shifted to 96. On this see the previous note.

208. The fundamental article for the events of this year is, of course, Badian's "Caepio and Norbanus" = SGRH, 34-70. Like much of Badian's work (and indeed prosopographical work in general) its merits and insights are often only intelligible to those already initiated in the arcana of prosopography.

209. Cicero De Off. 2.14.49. For the view that the tribune Sulpicius was not a Rufus see H. B. Mattingly, "The Consilium of Cn. Pompeius Strabo in 89 B.C.," Athenaeum 53 (1975), 264ff.

210. Valerius Maximus 8.5.2.: [M. Aemilius Scaurus] C. Norbanum maiestatis crimine publicae quaestioni subiectum ex professo opprimere conatus est. That Scaurus himself referred to his own injuries in his testimony is deduced from the statement (Cicero De orat. 2.47.197) M. Aemilium, lapide percussum esse constabat, constabat suggesting a point established at a public trial.

211. Although 103 seems the most likely, I do not believe that the date of Caepio's actions against Sa- tuminus has been incontrovertibly established. Badian says (SGRH, 63, note 9) that "all the best modem scholars" date Satuminus' frumentary law to 103, i.e. the law against which the younger Caepio had employed violence. This is surely un- fair to Broughton who places Caepio's quaestorship in 100. See MRR, I, 576 and 578, note 3.

212. The sources for the younger Caepio's trial are: Ad Herenn. 1.12.21; 2.12.17; Cicero Brutus 44.162. Brutus 46.169 is problematical and should be left out of the discussion though it is cited in Green- idge-Clay, Sources2, 110.

213. On the importance of the trial and Crassus' defense see Badian, SGRH, 43-44, though I doubt if Bad- ian's comments about the weakness of Crassus' defense (deduced from a brief statement in Cicero's Brutus 44.162) are valid. The potential repercussions arising from a conviction for Caepio were too great for Crassus to trifle with his defense. Crassus will have given his best, even if it was a brevis oratio. We should also note that Crassus had earlier supported the lex Servilia Caepionis with a




major speech (Malcovati, ORF3, 243-245), thus his defense of the younger Caepio reveals a hereditary link.

214. Asconius 67C. 215. The fullest discussion of this law is that of Richard

W. Husband, "On the Expulsion of Foreigners from Rome," CP 11 (1916), 321-323. It ought to be supplemented by E. Gabba, "Politica e cultura," 259-272. Both have shown that this law set up a quaestio to investigate those who had illegally usurped the role of cives Romani. Those who were discovered to have done so were expelled from the ranks of citizens. Moreover, I think we must also agree with Badian ("Quaestiones Variae," Historia 18 [1969], 489-490) that conviction must have entailed a penalty greater than mere removal from the citizen lists, though I do not think it was capital punishment in the modem sense of the term.

216. E. Gruen, "The Lex Varia," JRS 55 (1965), 61, ex- presses this major difficulty succinctly: "It is not easy to believe that men with such strong views, so keenly expressed (i.e. by the lex Licinia-Mucia) would have reversed themselves so quickly (i.e. by supporting Drusus' proposal to grant citizenship to the allies)."

217. Fraccaro, Opuscula, II, 134; Badian SGRH, 43. 218. On this see below, pages 275ff. 219. Fraccaro (Opuscula, II, 134-135) regards this quip

as especially hostile to the socii. Moreover, he links it with Scaurus' behavior at the trial of Norbanus. This, however, is too speculative since no connection between Scaurus' quip and the trial of Norbanus is suggested by our sources. Lily Ross Taylor's interpretation of this passage in her Voting Districts of the Roman Republic (142-143) has been thoroughly refuted by Badian in his review of her book (JRS 52 [1962], 207-208). Indeed, her view of Scaurus on the problem of the libertini seems counter to everything else we know about Scaurus' career. Cf. S. Treggiari, Roman Freedmen during the Late Republic, 47ff.

220. Badian has shown (SGRH, 48-49) that the trial of T. Matrinus, a client of Marius, was a test case for the lex Licinia-Mucia, yet I do not think that this proves that the law was aimed only at those who may have been enrolled illegally at the behest of Marius and his supporters. Cf. the remarks of E. Gabba, "Politica e cultura," 266-267, and Peter Brunt, "Italian Aims at the Time of the Social War," IRS 55 (1965), 106-107. In his "Roman Politics and the Italians: 133-91 B.C.," Dialoghi di Ar- cheologia 4/5 (1970/71), 373-409, Badian has shown that the demand for Roman citizenship was probably not as strong in the early years as scholars have tended to believe, yet I do not think that this can be used to support his contention that only the "Marian" censors of 97 allowed a great many of the allies to usurp illegally the citizenship. The fact that the lex Acilia (122) gave citizenship as a reward for a successful prosecution shows that citizenship was valuable and sought after by non- citizens. Even if large numbers of the allies did

not clamor for citizenship, certainly those most able to benefit by it would have sought it, and these would doubtless be powerful men in their own local communities. In other words, the number of those seeking the citizenship may not be as important as the political and social position of those that did. The more power these domi nobiles had at home, the more of a threat they would be to the native Roman aristocracy unless the latter were able to control the influx of the former into the ranks of citizens. The lex Licinia-Mucia was certainly an attempt to do this. This is why I think that the long view of Brunt deserves greater cre- dence: the lex Licinia-Mucia was attempting to do more than just deal with an ad hoc situation that resulted from a lax censorship in 97. Even the test case of Matrinus involved a claim to citizenship that was established before 97. For the clause of the lex Acilia awarding citizenship to successful prosecutors see FIRA, no. 7, page 101.

221. Badian's thesis is fully elaborated in his Foreign Clientelae, 212-214.

222. It is tempting to think that the boni wanted to dis- enfranchise those upon whom their political adversaries had bestowed citizenship so that they themselves could re-offer it later, thereby reaping the benefits of the beneficium they would confer. The basic objection to this is that statesmen rarely have that much foresight or ingenuity. The boni, of course, were well aware (at least since the tribunate of the elder Drusus) that by making concessions to the citizens and socii they could win over their adversaries' supporters.

223. Factio contra nobiles seems a better term than factio popularis since the latter suggests men more of the stamp of C. Gracchus and Satuminus. There were others who were more moderate (and I think that Marius was one of these), yet still resented the potentia paucorum, especially when they believed that the right to exercise that power was unde- served. Indeed, even Cato resented the power of those whose only claim to rule was their birthright. On this see Bates, Memoirs, 74ff.

224. Satuminus and Cinna are the most conspicuous examples, though even Sulpicius tried to use Mar- ius without success. His plan unexpectedly back- fired when Sulla marched on Rome.

225. In "Italian Aims," 107. 226. Broughton's source listings for 94 and 93 are in-

credibly sparse: MRR, II, 12-17. Compare the scant four pages, containing the text of barely three full pages, of Greenidge-Clay, Sources2, 121-124. Moreover, even this material is inflated since Sul- la's praetorship and his proconsulship of Cilicia should be placed in 97 and 96 respectively. Also, if M. Alexander is correct that the so-called legatio Asiatica of Scaurus is a misunderstanding of As- conius, then evidence is even scarcer. On this see above, page 270 with notes.

227. The main sources for the trial of Rutilius are listed in Greenidge-Clay, Sources2, 125-127.

228. The fundamental discussion of Rutilius' trial is still Badian's in "Q. Mucius Scaevola and the Province



REX IN SENATU 285

of Asia," 112-123, supplemented by his SGRH, 39 and 55. All other discussions have added little except to present further arguments on the date of Scaevola's governorship. The one exception is C. Nicolet, L'ordre equestre d I'epoque republicaine, 546-549, but his effort to eliminate the theme of equestrian vengeance goes against the clear evidence of our sources.

229. SGRH, 39-40. 230. In "Q. Mucius Scaevola and the Province of Asia,"

121-123. We have, of course, altered Badian's context since we believe in the earlier date for Scaevola's governorship of Asia.

231. On this see above, pages 270-271. 232. That Caepio's prosecution of Scaurus followed the

conviction of Rutilius is indicated by the phrase P. Rutilio damnato (Cicero, quoted in Asconius 21C).

233. It is, of course, the implication of Cicero's words in Asconius (21C): [Scaurus] reus est factus a Q. Servilio Caepione lege Servilia, cum iudicia penes equestrem ordinem essent et P. Rutilio damnato nemo tam innocens videretur ut non timeret illa, but implication and attestation are two different things.

234. See above, page 270. 235. Asconius 21C: Q. Servilius Caepio Scaurum ob le-

gationis Asiaticae invidiam et adversus leges pecuniarum captarum reum fecit repetundarum lege quam tulit Servilius Glaucia.

236. SGRH, 41-43. 237. See above, note 235. 238. See above, page 271. 239. SGRH, 39. Badian does have explicit testimony for

this in Dio's words (28.97.3): Kat tLva o M&ptos aLTLaV ri9 AS,arcs ai>oi (i.e. Rutilius) earxcv.

240. See above, page 271. 241. Asconius 22C. 242. SGRH, 54-55. 243. Gruen, "Political Prosecutions in the 90's," 57. 244. Asconius 21C: Scaurus tanta fuit continentia animi

et magnitudine ut Caepionem contra reum detulerat et breviore die inquisitionis accepta effecerit ut ille prior causam diceret. We should also note that Scaurus' extreme hatred of Caepio is much in evidence even in the scant fragments that remain of the speech he delivered (Malcovati, ORF3, 167, frgs. 9 and 10), for he seems to have called Caepio nefarius vulturius, patriae parricida, and vulturius rei publicae.

245. "Political Prosecutions in the 90's," 56-57. Gruen, however, goes too far in his attack on Badian's thesis that Caepio was working in the interest of Marius and the equites, for though the association with Marius is a weak inference on Badian's part, our sources do speak of Caepio as serving equestrian interests, e.g. Florus 2.5: equitem Servilius Caepio, senatum Livius Drusus adserere, and Cicero Brutus 62. 223: eodem Q. Caepionem referrem, nisi nimis equestri ordini deditus a senatu disedisset. Moreover, although I believe Scaurus most probably reaped rewards from his ties with equestrian businessmen, I do not believe we can conclude

from this as Gruen does that "there is no reason to believe that Scaurus had any concern with upsetting equestrian interests in the East" (p. 57). Scaurus was already old, and he had already made his fortune. He could now afford to encourage some restraint on the part of his equestrian friends. Indeed, conditions were such that he could call for restraint on practical grounds. Turmoil in Asia could kill the geese that were laying the golden eggs. Also in light of Scaurus' whole career, it seems that he was always a senator first; equestrian ties would have to take second place. This does not mean that he was adverse to a little "honest graft"; other senators indulged in this too. On Scaurus' business connections see Gruen's discussion, 58-59. On Scaurus' wealth see I. Shatz- man, Senatorial Wealth and Roman Politics, Collec- tion Latomus, 142 (Brussels, 1975), 263-264.

246. Asconius 21C: M. quoque Drusum tribunum plebis cohortatus sit ut iudicia commutaret.

247. This was already convincingly established by R. Thomsen in "Das Jahr 91 v. Chr. und seine Voraussetzungen," Classica et Mediaevalia 5 (1942), 18-20, and is now generally accepted. See, e.g. E. J. Weinrib, "The Judiciary Law of M. Livius Dru- sus," Historia 19 (1970), 414-443; and A. R. Hands, "Livius Drusus and the Courts," Phoenix 26 (1972), 268-274.

248. E.g. Cicero De domo sua 19.50: M. Drusus . . . no- bilissimus ille vir. . . M. Scauro et L. Crasso con- siliariis, and, by implication, the references to Scaurus' prosecution lege Varia: Asconius 22C; Valerius Maximus 3.7.8; De vir. ill. 72.11. On this see Badian, SGRH, 40 and 43, followed by E. Gruen in "The Lex Varia," JRS 55 (1965), 62. The idea that Scaurus was also a friend of Drusus seems to have been first expressed by G. Bloch, Scaurus, 34: "Ami personnel, partisan et conseiller du grand tribun." Though I believe this is a valid inference in light of Scaurus' career (especially his associations with the father of the younger Drusus), I can find no direct reference in our sources to confirm that Scaurus was actually a personal friend of the younger Drusus.

249. Scaurus' association with the elder Drusus during the latter's tribunate is inferred from the fact that Scaurus was a strong opponent of Gaius Gracchus (see above, pages 252-253). His joint censorship with the elder Drusus, however, is firmly attested (see above, pages 263-264).

250. Most especially by H. C. Boren, "Livius Drusus, t.p. 122, and his Anti-Gracchan Program," 27-36. See also Thomsen, "Das Jahr 91 v. Chr. und seine Voraussetzungen," 17-18; H. C. Boren, "Cicero's Concordia in Historical Perspective," in Laudatores Temporis Acti: Studies in Memory of Wallace Everett Caldwell (Chapel Hill, 1964), 51-62; and above, note 244.

251. Basic discussions of these issues are still: Thomsen, "Das Jahr 91 v. Chr. und seine Voraussetzungen," 13-47; E. Gabba, "Le origini della guerra sociale e la vita politica Romana dopo 1'89," Athenaeum 32 (1954), 41-114, 293-345 = Republican Rome,




the Army, and the Allies, 70-130, 214-250; P. Brunt, "Italian Aims," 90-109, and the articles of Weinrib and Hands cited in note 247.

252. On Phillipus see Thomsen, "Das Jahr 91 v. Chr. und seine Voraussetzungen," 26-27, and J. Van Ooteghem, Lucius Marcius Philippus et sa famille, Memoires des Academies Royales de Belgique (Brussels, 1961).

253. It will be recalled that C. Laelius had proposed some sort of land reform, but later withdrew his proposal when he faced too much opposition from the senators (Plutarch Tiberius Gracchus 8.4). See A. E. Astin, Scipio Aemilianus, 307-310. Even L. Marcius Philippus proposed an agrarian reform of some sort, but withdrew it in the face of optimate opposition (Cicero De off. 2.21.73).

254. Thus Thomsen, "Das Jahr 91 v. Chr. und seine Voraussetzungen," 13-47, persuasively argued that the reform of the courts was the central part of Drusus' program, for this theme dominates in all our sources but Appian. Appian, however, clearly had the hindsight of history, and this may have led him to give the problem of the allies the greater weight it deserves, though the contemporaries of Drusus may not have fully realized its import.

The reasons for the allied demand to share in the Roman citizenship cannot be discussed at length here. However, I think that a view which combines the main points presented by Thomsen and Gabba in the articles cited (above, note 251) can best account for it. In other words, I agree with Gabba that the mercantile classes among the socii wanted to get a handle on the making of foreign policy insofar as it affected their mercantile interests. On the other hand, I do not believe that the lower classes of the Italici who were to provide the men for the allied armies just followed their leaders blindly. Thus Thomsen's point that the lower classes of Italy hoped that by obtaining Ro- man citizenship they might be able to share in future land distributions has a lot to commend it. Cf. Brunt, "Italian Aims," 90-109, and T. R. S., Broughton, "Comment" in Trade and Politics in the Ancient World, 1 (Second International Con- ference of Economic History: Aix-en-Provence, 1962), 150-162 = Seager, Crisis, 118-130.

255. See above, page 272. 256. On this see the next paragraph and what follows. 257. The contrary view certainly implies a remarkable

cynicism, namely that the optimates supported enfranchisement merely to win the passage of Drusus' jury law. It is difficult to believe that the boni would risk offending allied feelings just to secure the passage of a lex iudicaria. They must have learned from the aftermath of the passage of the lex Licinia-Mucia that allied feelings were highly inflamed. A specious offer of citizenship on their part would have been even greater folly than the passage of the lex Licinia-Mucia.

258. Sources in Broughton, MRR, II, 26-27.

259. The major discussions are: E. Gabba, Republican Rome, the Army, and the Allies, 87-89; E. Gruen, "The Lex Varia," JRS 55 (1965), 59-73; R. Seager, "Lex Varia de maiestate," Historia 16 (1967), 37- 43; and E. Badian, "Quaestiones Variae," Historia 18 (1969), 447-491.

260. Asconius 21C gives the major import of the law: ut quaereretur de iis quorum ope consiliove socii contra populum Romanum arma sumpsissent.

261. Thus Badian in "Quaestiones Variae," 447-451. This was also the view of Fraccaro, Opuscula, II, 141.

262. Asconius 22C; Valerius Maximus 3.7.8. Asconius (quoted above, note 260) clearly preserves the substance of the crimen.

263. In his "The Lex Varia," 63. 264. Asconius 22C: tum Q. Caepio vetus inimicus Scauri

sperans se invenisse occasionem (some texts read sequestrem for occasionem) opprimendi eius egit ut Q. Varius tribunus plebis belli concitati crimine adesse apud se Scaurum iuberet anno LXXII. For a full discussion of the apparent contradiction of our sources see Bates, Memoirs, 136-144.

265. Asconius 22C: ille [Scaurus] per viatorem arcessitus, cum iam ex morbo male solveretur, dissuadentibus amicis ne se in illa valetudine et aetate invidiae populi obiecerit, innixus nobilissimis iuvenibus processit in forum. . . . See also Valerius Maximus 3.7.8; Quintillian 5.12.10; and De vir. ill. 72.11.

266. Asconius 22C: . . . deinde accepto respondendi loco dixit [Scaurus]: 'Q. Varius Hispanus M. Scaurum principem senatus socios in arma ait convocasse; M. Scaurus princeps senatus negat; testis nemo est: utri vos, Quirites, convenit credere?'

267. Asconius 22C; Valerius Maximus 3.7.8. 268. This is the implication of Cicero's statement

(quoted in Asconius 22C): ab eodem [Q. Servilio Caepione] etiam lege Varia custos ille rei publicae [Scaurus] proditionis est in crimen vocatus, and it is confirmed by the fragments of Caepio's speech: (Charisius, p. 255.7) cotidio ut falso pro cotidie Q. Caepio in M. Aemilium lege Varia: 'cum ab isto vi- derem cotidio consiliis hosteis adiuvari.' Cf. Mal- covati, ORF3, Q. Servilius Caepio, frgs. 6-7, page 296 with notes. This fragment also confirms that the main charge of the lex Varia was that of aiding the socii.

269. Badian, "Quaestiones Variae," 467. 270. In his "The Lex Varia," 63. 271. See Badian's arguments, "Quaestiones Variae,"

467, note 61. 272. See the dramatic description of Scaurus' state of

health in Asconius 22C (quoted above, note 265). 273. Plutarch Sulla 6.10. 274. MRR, II, 33 and 44; ILS 9338, no. 4. See above,

note 29. 275. Suolahti, "Princeps Senatus," 215, lists L. Valerius

Flaccus (cos. 100; princeps senatus 86-64?) as the last official holder of the position, and he followed Scaurus' tenure of that honor.



REX IN SENATU 287

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"rex in senatu": a political biography of m. aemilius scaurus

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