The High Command in the Roman Republic

Home , Imperium, Lex curiata de imperio

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Frederik J. Vervaet The High Command in the Roman Republic historia Zeitschrift für Alte Geschichte | Revue d’histoire ancienne | Journal of Ancient History | Rivista di storia antica einzelschriften Herausgegeben von Kai Brodersen, Erfurt | Mortimer Chambers, Los Angeles | Martin Jehne, Dresden | Mischa Meier, Tübingen | Walter Scheidel, Stanford

Band 232 Frederik J. Vervaet

The High Command in the Roman Republic

The Principle of the summum imperium auspiciumque from 509 to 19 BCE

Franz Steiner Verlag Cover illustrations: Coin on the left side: Denarius minted in 45 or early in 44 BCE by M. Mettius representing C. Iulius Caesar as dictator for the fourth time (dictator quarto, spring of 45 – February 44), including the lituus, the curled staff of the augurs, closely associated with (claims to) constitutional legitimacy and the public auspices (Crawford RRC No 480). As dictator IIII, Caesar would hold a series of sweeping powers that marked the beginning of a new era in Roman history: see chapter 7.4. Coin on the right side: Denarius minted in the first half of the 50s BCE by M. Iunius Brutus (pr. urb. 44 BCE) featuring his ancestor L. Iunius Brutus, consul in 509 BCE, flanked by two lictors holding thefasces and preceded by an accensus (Crawford RRC No 433). Significantly, the reverse carries the inscriptionLIBERTAS , displaying the head of the goddess Liberty. © The Trustees of the British Museum

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TABLE OF CONTENTS

Introduction ...... 11

1. The imperium auspiciumque ...... 17 1.1. Introduction ...... 17 1.2. imperium auspiciumque ...... 22 1.3. ductus auspiciumque – ductus imperium auspiciumque ...... 23 1.4. Conclusion ...... 26

2. The principle of the summum imperium auspiciumque ...... 29 2.1. Introduction: the summum imperium – a matter of definition ...... 29 2.2. Collegiate rule and the unity of the high command: the turnus of the fasces ...... 30 2.3. Conclusion: the turnus of the fasces and the summum imperium auspiciumque ...... 51

3. Summum imperium auspiciumque and prouincia ...... 54 3.1. Introduction: the concept of prouincia ...... 54 3.2. Imperium auspiciumque and prouincia ...... 55 3.3. Conclusion: cuius prouincia, eius summum imperium auspiciumque ...... 66

4. The summum imperium auspiciumque and the ius triumphi ...... 68 4.1. Introduction: the dogmatic view of Th. Mommsen ...... 68 4.2. The double triumph under the Republic: the present state of the question ...... 71 4.3. The imperium auspiciumque as a condition sine qua non for full triumphal honours ...... 78 4.4. The summum imperium auspiciumque and the ius triumphi ...... 93 4.5. Conclusive observations: casting off Th. Mommsen’s long shadow ...... 117

5. The consuls and the prouinciae Populi Romani ...... 131 5.1. The consuls, the proconsuls and the provinces: the present state of the question ...... 131 5.2. The consuls as natural summi imperatores of the Roman Republic ...... 141 5.3. The consuls and the proconsuls: theory and practice ...... 151 5.4. The impact of social status, senatorial rank and personal auctoritas ...... 157 5.5. Exceptions to the rule ex senatus consulto and/or e lege ...... 162 5.6. Some other relevant cases ...... 175 8 Table of contents

5.7. The nonexistence of the conditional consulare imperium maius quam under the Republic ...... 185 5.8. The consuls and the summum imperium auspiciumque: conclusions ...... 193

6. The hierarchy of imperatores in prouinciae permixtae ...... 198 6.1. Introduction ...... 198 6.2. Imperators with the same official status ...... 199 6.3. Imperators with different official statuses and par potestas ...... 199 6.4. Imperators with different official statuses and impar potestas ...... 200 6.5. The impact of social status, senatorial rank and personal auctoritas ...... 202 6.6. Exceptions to the rule ...... 212 6.7. Conclusion ...... 213

7. The monopolization of the summum imperium auspiciumque from Cornelius Sulla Felix to Imperator Caesar Augustus ...... 214 7.1. Introduction ...... 214 7.2. The dictatorship of Cornelius Sulla: a dangerous precedent ...... 215 7.3. The commands of Cn. Pompeius Magnus: breaking new ground ...... 216 7.4. Caesar the dictator: unus summus imperator in toto imperio ...... 223 7.5. The triumvirs r.p.c. (43–27 BCE): from oligopoly to monopoly ...... 239 7.6. The Augustan settlements: the lasting supremacy of Imperator Caesar .....253 7.7. Epilogue: Augustus and the public provinces ...... 275 7.8. Conclusions ...... 289

Conclusions ...... 293

Postscript : the scope of the so-called lex curiata de imperio ...... 300 1. Introduction ...... 300 2. A concise state of the question ...... 301 3. A curiate law for the magistratus minores? ...... 304 4. The precise scope of the lex curiata de imperio ...... 310 5. Timing and circumstances of the rogatio curiata de imperio ...... 340 6. The lex centuriata de potestate censoria ...... 343 7. A curiate law for the imperia extraordinaria? ...... 346 8. Conclusions ...... 349

Bibliography ...... 352 Index of persons ...... 363 Index of subjects and places ...... 368 ACKNOWLEDGEMENTS

Though a sole-authored monograph, written over the span of about eight years, this study could not have been completed without the encouragment, support and hos- pitality of a great many friendly colleagues and academic institutes. I first began work on this book as a Visiting Scholar at Wolfson College, Oxford, during Hilary term 2006. I will always owe a debt of gratitude to Wolfson for its relaxed hospita- lity and congenial atmosphere, as well as to Fergus Millar and Alan Bowman, for their invitation and academic geniality. I still cherish those pleasant coffee breaks at the Oriental Institute on Pusey Lane. A series of research intensives in a number of other colleges and academies further allowed me to make significant progress. In the northern autumn of 2008, I enjoyed a stay at Oxford’s Merton College, gra- ciously facilitated by its Tutor in Ancient History, Jonathan Prag. Momentous strides were made during a sabbatical in the autumn of 2010 at the Academia Bel- gica in Rome, as a Visiting Fellow of the Belgian Historical Institute in Rome (BHIR). Both the Academia and the BHIR have my profound gratitude for provi- ding a sanctuary for scholarly endeavour. As in the case of my stay at Wolfson, sponsorship for this extended stay at Rome was liberally provided by the Research Foundation – Flanders, the competitive funding body that had already subsidized my doctoral research on the potestates extraordinariae of the Roman Republic. Although I now work and live at Melbourne, Australia, I will ever remain indebted to the Flemish community and its Research Foundation. During this sojourn in Rome, I also had the privilege of working in the resplendent libraries of the École française de Rome, where I could always count on the amiable assistance of Yann Rivière, Directeur des Études (Antiquité), as well as the equally copious collections of the Deutsches Archäologisches Institut, Abteilung Rom, and British School at Rome. The postscript on the curiate law was largely written in the northern autumn of 2012 during a fortnightly research intensive at the Danish Institute in Rome, courtesy of Carsten Lange, the resident Carlsberg Foundation Postdoctoral Re- search Fellow. In terms of institutional and financial support, I am much obliged to the University of Melbourne’s Research Office as well as the Faculty of Arts. Wit- hout their consecutive votes of confidence in the form of a series of research, travel and teaching support grants, work on this book would have been very difficult indeed. We are also particularly fortunate at Melbourne to enjoy outstanding library facilities, with such excellent and expert staff as Caitlin Stone and Jim Berryman. Courtesy of the generous Henry Arthur Pitt Memorial Bequest, there are no constraints on the acquisition of books and monograph series, old and new alike, a priceless service skillfully administered by Richard Serle. Special gratitude goes to those friends who made the effort of reading all or most of the manuscript in its different stages of completion: Jean-Louis Ferrary, Ronald Ridley, Frédéric Hurlet, Timothy Pepper, Trudie Fraser, Christopher Dart, 10 Acknowledgements and David Rafferty. Christopher also greatly assisted with the painstaking task of indexing, a formidable help made possible by a subsidy by the School of Historical and Philosophical Studies and the Faculty of Arts. The meticulous scrutiny and criticism of this outstanding readership helped me to remove or avoid many flaws and inaccuracies, whilst those remaining errors and imperfections are mine entirely. The main results of the seventh chapter were presented at a conference held in Sep- tember 2009 at the École française de Rome, enabling me to profit from valuable feedback given by, amongst others, John Rich and Werner Eck. For feedback on technicalities and complexities of a more philological nature, I could always fall back on my colleague Andrew Turner. I would also like to convey my warmest thanks to Johnny Devreker, my invariably supportive Doktorvater, and Erich Gruen, who became a sort of Post-Doktorvater ever since I first set foot in Berkeley in November 2002 for an extended period of research and teaching at the vibrant Uni- versity of California. Both never tired to encourage me to complete this at times rather daunting undertaking, reminding me of how books are so much more important than papers in the Humanities. It is, however, no sinecure to research and write a big book in an era of funding-driven academic performance management systems that fit the Sciences and preference the serial production of articles. Neither is find- ing a suitable and internationally esteemed publisher. I am very fortunate, therefore, to have been given this opportunity to publish in the Historia Einzelschriften series, and take particular pleasure in extending my cordial thanks to Kai Brodersen as well as his anonymous referees for their helpful communication as well as their valuable feedback and suggestions. It also was a great pleasure to work with the efficacious and friendly crew from Franz Steiner Verlag – a special note of thanks here goes to Harald Schmitt for his arduous and patient typesetting. Finally, for reasons that require no explanation, I would like to thank my pa- rents, Luc and Mieke, and late grandparents, Juliaan and Mariette, for their unremit- ting, loving and enthusiastic support of many years. Without them, I would not be who I am where I am. I reserve my most affectionate gratitude for Mira, my dearest spouse, who always positively supported me in seeing this project through, if only so I could at long last move on to somewhat less dry, and slightly more interesting, aspects of Roman history. INTRODUCTION

The past few centuries have yielded a great many impressive studies on the institutional, political and administrative history of the Roman Republic and the early Empire. Nonetheless, to the best of my knowledge, the republican constitutional principle of the high command, the summum imperium auspiciumque, has never been subject to comprehensive scrutiny and analysis. So far, official interaction between different (categories of) Roman officials cum imperio has always been discussed in terms of the relative strength of the genera imperii of the imperators involved1. In addition to the praetorium imperium and the consulare imperium, the dictatorium imperium was the third of the traditional genera imperii2. In absolute terms, the hierarchy of these three categories of imperium was crystal clear, with the dictatorium imperium being maius quam the consulare imperium, whereas the con sulare imperium was maius quam the praetorium imperium3. There is every indica- tion that this difference between the three genera imperii was ‘quantitative’ rather than ‘qualitative’ in that all imperia were essentially the same kind of higher official authority but the dictatorium imperium was twice as strong as the consulare impe rium, and the consulare imperium twice as strong as the praetorium imperium. Our

1 This study consistently follows the Roman republican habit of terming any holder of independent imperium ‘imperator’, whereas the same term will be capitalized to designate those imperators who had received a salutatio imperatoria from their army in the field. 2 For some references to the praetorium imperium, see Cic. Pis. 38; Verr. 2.5.40 & Diu. 1.68.; for the dictatorium imperium, see Livy 22.34.2: dictatorio imperio. 3 For the dictatorium imperium being maius quam the consulare imperium, see, e.g., Cic. Leg. 3.3.9; Livy 5.9.7, 7.3.5–8; 8.32.3; 22.10.10; 22.11.5 & 30.24.1–4 (dictator […] pro iure maioris imperii consulem in Italiam reuocauit); Dion. Hal. 5.71.2; ILS 212, col. 1, ll. 29f.; Dig. 1.2.2.18). Contra Brennan 2000, 21 and esp. 38–41, who mounts an unconvincing effort to demonstrate that “we ought to regard the dictator’s powers as the same as the consuls’, but different”, and consequently has no choice but to explain away all evidence to the contrary. Although the consuls held maius imperium vis-à-vis the praetors, they still belonged to the same magisterial college under augural law since the praetors were elected under the same (type of consular) auspices as the consuls. On the one hand, this collegiality meant that praetors could not elect consuls precisely because a greater imperium/collega maior could not be elected by a lower imperium/collega minor, or even praetors, because praetors were proposed as colleagues of the consuls, who held maius imperium – in other words: the praetor’s inability to elect praetors stemmed from the fact that the praetor was (elected as) the colleague of the consuls. On the other hand, this collegiality under augural law also meant that consuls and praetors held the same type and potestas of auspicia patriciorum maxima and that praetors were thus fully capable of vitiating and hindering the consul’s auspices, and vice versa: see Att. 9.9.3 and (M. Valerius Messalla, augur and cos. 53, in) Gell. 13.15.4 & 6f.; comp. also Livy 7.1.6; 8.32.3 & Plin. Paneg. 77.4. That praetors held minus imperium vis-à-vis the consuls is also clear from Livy 43.14.4 & 45.43.2 and Val. Max. 2.8.2 (discussed infra, pp. 94–99). For a rare instance of consular intercessio against an edict of the praetor urbanus, see Val. Max. 7.7.6 (the consul Mamercus Aemilius Lepidus in 77 BCE). 12 Introduction extant sources confirm this is an appropriate representation of constitutional reality. In Leg. 3.3.9, Cicero indeed asserts that the dictator idem iuris quod duo consules teneto4. In N.H. 11.190, Pliny relates that on the first day of C. Octavius’ command (as extraordinary propraetor in 43), the livers of six victims were found with the bottom of their tissue folded back inward, which was interpreted to mean that he would double his imperium within a year: responsumque duplicaturum intra annum imperium. Before the turn of the year, he first usurped a suffect consulship and next the plenipotentiary magistracy of triumuir rei publicae constituendae, equipped with vastly enhanced consulare imperium5. In Syr. 15, Appian explains that praetors accordingly had only half of the dignity (ajxivwsi~) and half of the insignia im perii (viz. fasces) of the consuls6. This pyramidal power structure found its symbol- ical expression in the number of fasces (securesque) held by the dictator (twenty-four), the consul (twelve) and the praetor (six)7.

4 Compare also Dion. Hal. 5.71.2: th;n ajmfotevrwn ejxousivan. This assertion in Leg. 3.3.9 need not be in contradiction with Leg. 3.3.8, where Cicero commends that regio imperio duo sunto, iique praeeundo, iudicando, consulendo praetores, iudices, consules appellamino. Cicero here defines the normal state of affairs in his ideal republican polity, with the consuls being the collegial and annual replacements of the king, and only next recommends that, in case of a dire ex- or internal threat, the Senate should ordain the appointment of a magister populi (i.e., a dictator) with idem iuris quod duo consules teneto, twice the royal power of the consuls but then sine collega and ne amplius sex menses. In Rep. 2.56, Cicero defines the imperium of the dictatorship, which was supposedly called into existence ten years after the establishment of the consulate, as a nouum genus imperii (…) proximum similitudine regiae. 5 See Broughton MRR 2, 336f. & 345f. and App. B.C. 4.2 (kainh;n de; ajrch;n ej~ diovrqwsin tw`n ejmfulivwn nomoqethqh`nai Lepivdw/ te kai; ∆Antwnivw/ kai; Kaivsari, h}n ejpi; pentaete;~ aujtou;~ a[rcein, i[son ijscuvousan uJpavtoi~) & 4.7 (ejnomoqevtei kainh;n ajrchn ejpi; katastavsei tw`n parovntwn ej~ pentaete;~ ei\nai triw`n ajndrwn, Lepivdou te kai; ∆Antwnivou kai; Kaivsaro~, i[son ijscuvousan uJpavtoi~). For a discussion of the powers of the triumuiri r.p.c. under the Titian Law, see Vervaet 2010a, esp. 89–91 & n. 118 of p. 125f. and chapter 7.5 infra. 6 Compare also Dio 37.39.2. 7 That the fasces were the exclusive insignia imperii is clear from, e.g., Livy 1.8.2 & 17.5f. (quoted infra in n. 4 of chapter 2); 2.7.7 & 28.24.14; Cic. Phil. 11.20; Rep. 2.31; Leg. Man. 32 & Lig. 22; Sall. Cat. 36.1 & Dion. Hal. 3.61. For the fact that the dictator was entitled to twenty- four lictors with fasces see, e.g., Dion. Hal. 10.24.1; Pol. 3.87.8; Plut. Fab. 4.2; Dio 54.1.3 and Vervaet 2004, 51–54. Drogula 2007, 431–434 argues against the exclusive interconnection between imperium and the right to carry fasces but fails to produce a single unequivocal example of a Roman (pro)magistrate sine imperio being accompanied by lictors with fasces. In his zeal to demonstrate that “the fasces were merely tokens of prestige”, Drogula (op. cit., 433, n. 98) asserts that “even the duumviri of Capua are recorded as possessing lictors bearing fasces, which Cicero [in Leg. Agr. 2.93] says is highly unusual for a colonly and a sign of great presumption and haughtiness.” First, it should be noted that, indeed very much to Cicero’s displeasure, the Capuans styled their supreme magistrates praetors, and not, as customary in other colonies, duumvirs, and that they went as far as mimicking the Roman practice of having two lictors with fasces precede the praetor urbanus (cf. also n. 65 of chapter 2), and in other respects even behaved as Roman consuls: id quod dixi, cum ceteris in coloniis iiuiri appellentur, hi se praetores appellari uolebant. Quibus primus annus hanc cupiditatem attulisset, nonne arbitramini paucis annis fuisse consulum nomen appetituros? Deinde anteibant lictores non cum bacillis, sed, ut hic praetoribus urbanis anteeunt, cum fascibus bini. Erant hostiae maiores in foro constitutae, quae ab his praetoribus de tribunali, sicut a nobis consulibus, de consili Introduction 13

There is a fundamental and generally ignored difference, however, between, on the one hand, this well-known absolute hierarchy of the traditional genera imperii, and, on the other hand, the more subtle constitutional principle of the summum im perium auspiciumque. The main problem is that this hierarchy fails to clarify and explain the precise nature of power relations between imperators holding the same office or the same kind ofimperium . What happened if, for example, two consuls, a consul and a proconsul or two proconsuls jointly conducted a military campaign, something which regularly occurred under the Roman Republic? Precisely how did the Romans settle the question of who was to hold the supreme command when two imperators with identical imperium operated together? Therefore, this one-sided and often too legalistic approach has unavoidably resulted in several deep-rooted misconceptions concerning the precise nature of the hierarchic relationship between imperators in Rome, Italy and the provinces, as well as a series of erroneous assessments of certain historical command structures. Since the concept of the sum mum imperium auspiciumque is vital to a good understanding of the official and actual power relations between Roman imperators in Rome and beyond, this matter deserves to be fully considered. After a preliminary inquiry into the concepts of imperium auspiciumque and ductus auspiciumque (and its variant ductus imperium auspiciumque), the principle of the summum imperium auspiciumque will be properly defined and examined in chapter two. Special scrutiny will be given to the turnus of the fasces as a means to reconcile collegiate rule and the unity of the high command, both domi militiaeque. This chapter will also demonstrate and clarify the necessary interconnection between the turnus of the fasces and the (alternation of the) summum imperium aus piciumque. As a natural and logical pendant to chapter two, chapters three and four respectively concern the precise nature of the connection between the principle of the summum imperium auspiciumque and the concept of prouincia, and the vital importance of this principle for the establishment of a sort of triumphal hierarchy when victories were gained and claimed by multiple imperators. Careful comparative analysis of a series of illuminating cases will indeed reveal how the summum imperium auspiciumque was the decisive factor in determining which imperator was to be given preferential treatment. The results of this inquiry, then, can explain the phenomenon of the ‘double triumph’, i.e., the triumph(s) celebrated by more than one imperator on account of the same victory. Chapter five concerns the position of the consuls in theory and in practice with respect to the proconsuls and the provinces of the Roman People. Apart from considering the official position of the consuls as Rome’s natural summi imperatores, this chapter will specifically high- light both conceptual and practical aspects of the power relations between consuls and proconsuls in the provinces. In addition to an assessment of how personal fac- tors could seriously affect and distort the official chain of command, separate sec-

sententia probatae ad praeconem et ad tibicinem immolabantur. As for Polybius’ attestation (in 6.43.8) that dead aristocrats were accompanied by fasces during their funeral processions: that would have happened only in so far as (to commemorate that) they had held imperium during their lifetime. For an excellent study into the fasces as a powerful symbol of imperium, the highest form of Roman official authority, see Marshall 1984. 14 Introduction tions of the chapter are dedicated to the power of SPQR to establish exceptions to the rule and to the nonexistence of the conditional consulare imperium maius quam under the Republic. As a sort of practical complement to the preceding chapters, the sixth, and penultimate, offers a survey of the official and semi-official hierarchy of imperators in communal provinces. The seventh and final chapter then discusses how the foundational republican principles of joint consular supremacy and the traditional alternation of power in the provinces would be gradually eroded and subverted during the period from Sulla’s dictatorship to the reign of Imperator Cae- sar Augustus. Rather than a minute comparative analysis of the extraordinary commands of the late Republic and the precise powers held under these commissions, this chapter will focus on how the summum imperium auspiciumque was increasingly concentrated in the hands of a few ambitious dynasts, both in Italy and the provinces. Indeed, it will be argued that the extraordinary dictatorship of Cornelius Sulla inadvertently initiated a process that culminated in the definitive demise of joint consular rule in Rome and Italy under Augustus in 19 BCE. Following the overall conclusions resulting from these inquiries, the postscript endeavours to re- assess the thorny issue of the precise scope of the so-called lex curiata de imperio. Given this statute’s continuous and strong associations with (the exercise of) impe rium auspiciumque, no serious study on the high command can do without a proper analysis of the curiate law. For practical reasons, and in consideration of the high degree of technicality, I thought it better to have this discussion as a postscript to the main body of the study rather than as a preliminary chapter or an unwieldy part of chapter one. Key sections of chapters five and six (esp. 5.4 & 6.5) are inspired by the con- viction that a good understanding of the various public institutions, statutory rules and normative regulations that structure any society is simply impossible without a proper understanding of the social context and the mentality of all protagonists involved. Conversely, however, it is equally true that the public institutions of a certain society constitute the sediment of its social and political paradigms. Whereas 19th century scholarship studied these matters from a predominantly legalistic, almost positivistic angle, the next century would produce historians who instead concentrated on the realities of power or on the structural and informal determinants of Roman social and political life. This study makes a modest attempt to convert this potential field of tension into an integrated approach, believing that the complement of both methods should result in more complete and coherent historical insights. The subtleties and realities of Roman public law as a living and gradually evolving set of written and unwritten rules and regulations can, perhaps, best be understood if one carefully scrutinizes the content and scope of institutions and customary or statutory rules as well as the mentality and ethos of the individual and collective actors who shaped and incarnated them. When, for example, leading senators fought political battles in or outside the curia, all three of their official functions, their senatorial rank and their social status should be considered important determinants. For the sake of this inquiry, it is equally important to emphasize that, after statute laws and senatorial decrees, the largely unwritten doctrines of the mos and exempla maiorum represented the third pillar of the regulatory and normative framework Introduction 15 that governed the administration of the Roman Republic, its dependent territories and (the behaviour of) its official representatives. A summary though powerful for- mulation of the nature and validity of Roman customary law can be found in Dig. 1.3.32 (= Iulianus 84 Dig.): De quibus causis scriptis legibus non utimur, id custodiri oportet, quod moribus et consuetu dine inductum est: et si qua in re hoc deficeret, tunc quod proximum et consequens ei est: si nec id quidem appareat, tunc ius, quo urbs Roma utitur, seruari oportet. Inueterata consuetudo pro lege non immerito custoditur, et hoc est ius quod dicitur moribus constitutum. Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probauit, tenebunt omnes: nam quid interest suffragio populus uoluntatem suam declaret an rebus ipsis et factis? Quare rectissime etiam illud receptum est, ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur. When we encounter situations about which no written statues have been established, we should uphold the precept wich has been established by custom and usage. If such a precept is lacking, we should uphold a precept which is nearest to it in intent. If even this is not available, we should then maintain the law which is observed in the city of Rome. Longstanding usage is quite deservedly upheld as a substitute for statute, and we call this the law established by custom. Indeed, since the statutes themselves are binding on us for no other reason than because they have been approved by the will of the People, surely we should all deservedly be bound by those precepts which the People approve, although without written confirmation. For why does it matter whether the People declare their will by vote or by actual deed and fact? Wherefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all.8 Even though this indeed concerns an early imperial definition, its core principles no doubt derive from the Republic, especially as the People had long ceased to cast their vote by the time of Julian. Therefore, this study puts much effort in diachronic and comparative case studies as the best available means to reconstruct discernable patterns and customary procedures. This inquiry into Roman public law mostly concerns the Republic as it emerged from the so-called Struggle of the Orders around 300 BCE, complemented with discussions of such early republican events or customs that are informative of the constitutional practices of the middle and late Republic. Unavoidably, this effort draws extensively on ‘sub-republican’ or early imperial literary sources like Livy and Cassius Dio. Although these sources should always be treated with due caution, rejecting them as mere propaganda or fictitious retroprojections of late-republican, Augustan or early imperial realities and concepts would not only do great injustice to some of Rome’s finest historians. Such a consequential decision would also invalidate our efforts, however imperfect, to try to reconstruct and understand the gradually evolving social, political and institutional realities of the Roman Repub-

8 On the force of long-established custom (longa consuetudine), see also Dig. 1.3.33 (Ulpianus libro primo de officio proconsulis. Diuturna consuetudo pro iure et lege in his quae non ex scripto descendunt obseruari solet – “It is usual for long established custom to be observed as law in those matters which have not come down in writing.”) as well as 1.3.34–40. In Top. 5.28, Cicero duly includes the mos maiorum among the sources of Roman civil law: ut si quis ius ciuile dicat id esse quod in legibus, senatus consultis, rebus iudicatis, iuris peritorum auctoritate, edictis magistratuum, more, aequitate consistat. 16 Introduction lic. Very much in the same vein one could dismiss Polybius and even Plautus as valid sources for social and political life under the Republic as irrevocably distorted and coloured by their cultural backgrounds or their respective mindsets and pur- poses. Although criticism and careful scrutiny should be duly applied under all circumstances and with regard to any source, this study therefore wishes to distance itself from the excessive skepticism that threatens to undermine the very raison d’être of History as the scholarly discipline that seeks to reconstruct and, above all, explain past events and realities. This work essentially represents an old-fashioned, cautiously positivist, empirical and evidence-based enquiry into Roman socio-institutional history. I sincerely hope it will be judged for what it aspires to be, not for what it is not. As the principle of the summum imperium auspiciumque has never been studied before as a Roman institution in its own right, I have deemed it wise and prudent to quote amply from both the sources and modern scholarship, especially in those sections detailing the current status quaestionis on certain important matters. This intensive, and yet rewarding, method also allows for a better understanding of the origin and genesis of such lines of thought and ideas that have long clouded our understanding of the issues at stake. In the end, I also consider this forensic approach to be a matter of genuine respect for the views and arguments of those who questioned before. CHAPTER 1 THE IMPERIUM AUSPICIUMQUE

1.1. INTRODUCTION.

The connection between imperium legitimum and auspicium publicum is amply recorded in the sources1. Only an official who held both prerogatives optimo iure was capable of commanding suo imperio and suis auspiciis, unlike, for example, commanders with delegated imperium2. Accordingly, the view that imperium and auspicium go “untrennbar zusammen”3 has to be refined in that only full, independent, imperium (iustum) was inextricably connected with auspicium publicum4. To find that there always existed a strong and necessary connection between independent imperium and auspicium publicum, is not, however, the same as to say that imperium and auspicium were essentially different expressions of a single public prerogative. On the one hand, Th. Mommsen rightly makes the following observa- tion: Denn wie jeder Beamte, auch der niedrigste, Geschäfte für den Staat auszuführen hat, so kann und muss er auch, sowohl beim Antritt seines Amts allgemein wie insbesondere vor dem Voll- zug des einzelnen Geschäfts, dafür sichtbare Zeichen des göttlichen Wohlgefallens erbitten; und dies sind eben die auspicia publica. On the other hand, he wrongly claims that: Daher sind Zeichenschau und Beamtengewalt, auspicium und imperium nichts anders als Be- zeichnungen desselben Begriffs nach verschiedenen Seiten, jede des himmlischen, diese des irdischen Verkehrs.5

1 For the term imperium legitimum as a definition for lawfulimperium or authority, see, e.g., Cic. Phil. 11.26 & Sal. Cat. 6.6. For the distinction between auspicia publica and auspicia priuata, see, e.g., Livy 4.2.5 (perturbationem auspiciorum publicorum priuatorumque) & Val. Max. 2.1.1 (Apud antiquos non solum publice, sed etiam priuatim nihil gerebatur nisi auspicio prius sumpto). As the magistratus populi Romani conducted the public affairs of the Roman People, they naturally took the auspicia publica: see, e.g., Nonius Marcellus, ed. Lindsay (1903) 468: magistratus publice cum auspicant. 2 Contra Mommsen & Brennan, infra n. 171 of chapter 4, who believe that officials with delegated imperium also held proper auspicia. 3 von Lübtow 1952, 162. 4 For the necessary link between full imperium (iustum) and auspicium publicum, see, for example, Livy 10.8.9f. & 22.1.5f. In the postscript, it will be argued (on the basis of M. Valerius Messalla in Gell. 13.15.4) that the imperium of the magistratus maiores (i.e., the consuls and the praetors) was made ‘iustum’ by means of the lex curiata de imperio. 5 Mommsen Staatsrecht 1, 91, a thesis since accepted by many, Brennan 2004, 37 being just one recent example (however, on p. 40 of the same chapter, Brennan deduces from M. Valerius Messalla in Gell. 13.15.7 (discussed infra, pp. 304–307) that it “seems that auspices of the highest grade are a necessary prerequisite of imperium, though the two are not equivalent.”). 18 Chapter 1

Ever since Mommsen, the view that imperium or potestas magistratuum and auspi cium publicum are two equivalent pendants of the same official power has found widespread acceptance6. F. Cancelli, however, believes auspicium to represent the primordial and determining concept, basing his case in the first place on the formulaimperium auspici umque and its variations. Cancelli propounds that “la interdipendenza dell’impe rium con l’auspicium maximum traspare ancora dal binomio, o piuttosto endiadi, di imperium auspiciumque, ed anche, e più spesso, auspicium imperiumque”. He next asserts that, Anzi, che l’auspicium non solo includa, come aspetto e presupposto inscindibile di esso, ma che sia l’equivalente dell’imperium, si desume dalla forma ellittica: auspicio, per dire: sotto il comando, la guida di un dato personaggio.7 J. Bleicken streamlines and rationalizes this line of thought. He argues that auspi cium, the sum total of all concrete official activities that traditionally required taking the auspices, was the oldest and foundational form of official authority. Since only those capable of taking the public auspices could conduct these activities, the collective term auspicium resultantly denoted official authority (“staatlichen Gewalt”). As the number of Roman officials holding suchauspicium grew from one to multiple in the context of the so-called Struggle of the Orders, the concept of potestas more prominently emerged as an abstract term for official authority (“ein abstrakter Begriff für Amtsgewalt”) that could be qualified as maior, par or minor in terms of the relative hierarchy amongst respective magistrates. The term impe rium “als Ausdruck für Amtsgewalt”, then, first came into being in the spheremili tiae, deriving “von einem Teilaspekt des Auspiziums”, i.e., those auspices concerning warfare and required for different activities in the field. By the close of the th4 century BCE, this concept had gained in significance, eventually becoming the overall appellation for the authority that was held by those traditionally in command of the military and capable of convening the comitia centuriata. Even though these officials were consequently identified as the distinct category cum imperio, this historical process never resulted in the entire suppression of the older concepts

Mommsen (op. cit., 94) nonetheless rightly believes that imperium and auspicium could not collide. The second prerogative simply enabled the holder of imperium to perform iusta acta, i.e., to make sure that the heavenly gods approved of any given action by means of taking the auspicia publica. 6 Cf. Levi 1938, 101–118, and, especially, Heuß 1982, 72–76. Vogel 1950, 70f.; 78; 83 (lictors have “keine eigenen Auspizien so kein eigenes Imperium”) & 84 (the magister equitum held auspicia of his own, and thus also an imperium of his own) also seems to suppose that imperium sprung from auspicium. On pp. 67f., Vogel – like Mommsen – explains that “auspicium und imperium nur insoweit voneinander unterschieden sind, als dem einen himmlische, dem anderen rein irdische Bedeutung zukommt”. This argument is invalidated by the mere fact that all Roman magistrates held auspicia publica: cf. Varro in Nonius Marcellus, ed. Lindsay (1903) 131 (de caelo auspicari ius nemini est praeter magistratum); compare Festus, ed. Lindsay (1913) 446 & Cic. Leg. 3.10 (omnes magistratus auspicium iudiciumque habento), discussed at length in chapter 7.7 (pp. 277f. & 284f.). 7 Cancelli 1960², 30. The imperium auspiciumque 19 of auspicium and potestas. Bleicken sees proof for this in the term auspicium impe riumque: Wenn man (…) davon ausgeht, daß das Auspizium die älteste uns faßbare Form zur Bezeich- nung staatlicher Tätigkeit ist und es die militärische Kommandogewalt immer eingeschlossen hat, erscheint das Imperium eher als ein später Zusatz, der dem schon bestehenden Gewaltbe- griff nichts prinzipiell Neues hinzufügt, sodnern lediglich einen Teil der magistratischen Tätig- keit, nämlich das Kommando über das Heer, schärfer heraushebt.8 This strand of research is further extended by F. Fabbrini, who, like Cancelli, mostly builds his case on the formula auspicium imperiumque, as he explains that: Infatti auspicium e imperium erano due aspetti di un’unica realtà giuridico-religiosa, ove il supremo comando, l’imperium (…) poggiava su criteri religiosi e derivava dal supremo potere di auspicium.9 In other words, Fabbrini, too, is convinced that imperium stems from auspicium, and that, as Cancelli puts it, “auspicium maius è un aspetto e, a così dire, il genera- tore dell’ imperium nella sua integrità”10. This belief that (the nature of) imperium is determined by, or results from, (the nature of) auspicium has many prominent adherents. E. Badian, for example, argues that when the consul entered upon his office, he ipso facto came into possession of the ‘auspicia domi’. Next, the consul acquired the ‘auspicia militiae’ by means of a lex curiata, provided that “in each case, of course (…) the auspicia define what is of more general importance: his imperium”11. T. C. Brennan likewise asserts that if a consul is capable of carrying his own lex curiata, he already has to hold “civil auspicia (and, with it, imperium domi)”12. To my thinking, however, there is a more plausible alternative to the arguments of Cancelli, Bleicken and Fabbrini. E. S. Staveley already rightly objected to the idea that auspicium was “but the heavenly aspect of imperium”, arguing that the frequent combination of imperium and auspicium, may indicate that these two prerogatives of the Roman magistrate were deemed to be of equal importance and that in consequence the one would in practice have been of little value without

8 Bleicken 1981, esp. 259–278 (concerning the primacy of auspicium) & 287–294 (on its derivative component of imperium, the above quote being from p. 292), with an excellent summary on p. 294f. On p. 278 Bleicken defines potestas as “die Fähigkeit des Beamten, rechtsgültige Akte vorzunehmen”, and adds that “in dieser allgemeinen Bedeutung wird der Begriff sowohl im abstraktem Sinne als auch in bezug auf konkrete Handlungen verwendet.” 9 Fabbrini 1988, 317. In n. 7, Fabbrini emphatically adds “e non viceversa”. 10 Cancelli 1960², 32. 11 Badian 1990, 467. 12 Brennan 2000, 19. Brennan’s view on the legal foundations of the dictatorium imperium auspiciumque makes it quite clear that he believes that the – fictitious – procedure of “auspicial delegation” by definition implied a delegation of (profane) imperium: “As we have seen, the consul, not the People, ‘names’ a dictator. The dictator’s special powers perhaps partly derived from this appointment, which took place in an auspical ceremony, ‘ave sinistra’, as Cicero tells us (…) This combination of auspical delegation and lex curiata must constitute a legal fiction, one which gave him special powers for six months.” Dalla Rosa 2003, too, departs from the incorrect premise that the auspicia were the “fondamento dell’imperium” (p. 244) – see also id. 2011, 250: “there was no imperium without auspicium” (comp. also 252). 20 Chapter 1

the other, but it certainly does not prove that the connection between them was a logically necessary one.”13 Although this issue will be discussed at length in chapter 4 and, especially, the postscript on the scope of the lex curiata de imperio, suffice it for now to say that, in terms of public and augural law, imperium and auspicium publicum are not necessarily interconnected official prerogatives. The necessary connection between (the ability to use) independent imperium and auspicium publicum by no means implies that both prerogatives were simply the profane and heavenly equivalents of one another. Whereas under normal circumstances, the majority of the officials cum imperio held proper auspicia publica until the very end of the Republic, the oppo- site was true from the rule of Augustus onward. In consequence of the arrangements of January 27, the bulk of administrative and military gubernatorial duties were increasingly entrusted to legati Augusti pro praetore and certain praefecti, imperial appointees who owed their imperium to the Emperor and thus lacked their own auspices. As regards the question whether the possession of auspicium was a necessary prerequisite for the possession of imperium or vice versa14, there is every indi- cation that the possession of independent imperium (in the sense of the ius imperii) was the fundamental prerogative, and that the auspicium publicum (in the sense of the ius auspicii publici, the right to take the public auspices) was one of the foremost iura embedded in the ius imperii. Although independent official potestas and auspicium publicum were inextricably intertwined in that all official acts required taking the auspices15, the conferral and assumption of potestas legitima was the necessary precondition for the acquisition of a certain potestas of auspicia publica. Finally, Fabbrini also insists that the formulaic sequence of both prerogatives was not fortuitous. Fabbrini argues that initially the formula auspicium imperium que prevailed, since the imperium was originally held by those who naturally owned the auspicia, i.e., the patricians. The formula imperium auspiciumque came into existence from the time the imperium was also conferred upon plebeians, because from then on everybody who held the imperium was also given the auspicia16. As the deduction that originally every patrician held the imperium by definition is wholly implausible, it is perhaps better to put forward another explanation. Rather than making any drastic inferences from the precise formulaic sequence in terms of

13 Staveley 1963, 462f. n. 21. Staveley also rightly doubts that the auspicial spheres (such as the zone demarcated by the pomerium as the sphere of the auspicia urbana) corresponded exactly with the spheres of the imperium domi and the imperium militiae. 14 Contra Mommsen and Nocera, Fabbrini 1988, 317f. + n. 7 (like Cancelli, supra) argues for the auspicium being the primordial constituent. 15 Cf. infra pp. 313–316. 16 Fabbrini 1988, 340f. Fabbrini (pp. 339f.), who correctly regards the period 451–367 as an age of transition, suggests that in 367 “questo senso dell’unità inscindibile della magistratura romana, cioè dell’imperium, cioè degli auspicia che ad esso sottostanno” finally gave rise to the view “che gli auspicia richiesti per rivestire la magistratura non sono un fatto personale, ma sono connessi con la stessa carica pubblica rivestita: che cioè è la magistratura stessa”. Henceforth the “imperium-auspicium” was formally conferred through a lex curiata as the actual investiture after the “adizione” of the magistracy. As a consequence, the imperium was no longer bound to the person of the magistrate but to the magistracy itself. The imperium auspiciumque 21 which prerogative was the basis or source of the other, the switching of both terms probably reflects a shift in emphasis from the auspicium publicum to the imperium legitimum, as the latter potestas was gradually increasingly advertised as the foundational and thus more important prerogative. In the course of time the order of both terms was reversed properly to express the constitutional primacy of imperium over auspicium. In other words, in conformity with a well-attested tendency to put the stress on independent imperium as being the key prerogative17, the sequence of the formula auspicium imperiumque changed into imperium auspiciumque. In the earlier, more ‘primitive’ days of the Roman Republic, when (the taboos of) religion, religious power and religious scruples must have pervaded public life more than ever after, the stress clearly fell on the auspicium publicum as the power to take the vital auspices on the occasion of important state business in order to sound the gods out. These were also the days that the consulship and hence the imperium and its inherent auspicium patriciorum publicum were indeed the exclusive and jealously guarded reserve of those aristocrats who also held the auspicia patriciorum as pri- vate citizens (i.e., priuatim), namely the patricians18. Last but not least, in order to avoid any confusion, it is also well worth reassert- ing here that, while not every officialpotestas was an imperium, every lawful impe rium was a public potestas. The manner in which that imperium could be exercised would depend on whether the official holding it was a magistrate or a promagistrate, and whether he was using his authority in a civil or military capacity (i.e., domi or militiae), be it inside or outside the pomerium. Whilst imperium would be mostly used domi within and around the pomerium, magistrates as well as promagistrates could exercise their imperium both domi and militiae outside Rome, depending on the nature and scope of their official activity and the legal status of those affected.

17 This historical evolution is illustrated by the fact that from Scipio Africanus’ salutatio imperatoria of 209 (Livy 27.19.4), which was, perhaps, the first of its kind, a steadily growing number of commanders with independent imperium were saluted Imperator by the army. For some most interesting and compelling reflections on the precise meaning of this ritual, see now Assenmaker 2012, 119ff. (esp. 130–134). According to Assenmaker (p. 131), the salutatio imperatoria, often but not invariably made on account of a specific military victory, “prend le caractère d’une nouvelle investiture du commandant, qui ne se référait plus au cadre légal et juridique de la res publica – le commandant avait déjà reçu l’imperium –, mais exprimait le consensus de l’armée, qui le déclarait imperator non seulement en droit, mais en valeur et en mérite.” In other words, the ritual amounted to (p. 134) “l’acceptation enthousiaste du détenteur de l’imperium, qui devient dans l’esprit des soldats – non au regard de la stricte légalité républicaine – leur ‘vrai’ chef.” I remain, however, doubtful of Assenmaker’s suggestion (esp. 126–130 & 134) that the appellatio imperatoria only appeared in the context of the Social War and the ensuing Civil War of 91–82 BCE. In my view, these massive internal upheavals simply shifted the meaning of those salutationes awarded in civil conflict, foreshadowing the acclamations secured in the civil wars of the 40s and 30s BCE and, as duly observed by Assenmaker on p. 139, the inaugural salutations of the early Empire. 18 As it will be argued in the postscript that the comitia curiata probably made the magistratus maiores ‘iusti’ in that the lex curiata de imperio made their imperium ‘iustum’ by means of legally confirming the auspices held by virtue of thatimperium as being the auspicia patriciorum maxima, the recurrent and explicit linking of (independent) imperium and auspicium (publicum) further underscores the necessary connection between both constitutional concepts. 22 Chapter 1

Whereas the use of imperium in civilian matters was subject to closer scrutiny and restriction (especially at Rome, the realm of the tribunes of the plebs), a different set of customary and statutory rules applied to the exercise of imperium in military matters, a reality most keenly felt by Roman and Italian soldiers (i.e., all those sub sacramento) as well as the provincial populations directly subject to the authority of the imperator cum prouincia. Finally, it is equally important to emphasize that the terms consulare/praetorium imperium and consularis/praetoria potestas are entirely interchangeable synonyms denoting the very same and indivisible consular/ praetorian authority, rather than the imperium being just a component of the broader concept of potestas19.

1.2. IMPERIUM AUSPICIUMQUE.

Irrespective of the sequence of both components, this formula stands for ‘the (independent) imperium and the auspicium (publicum)’ of a certain commander. This is clear from a rhetorical question the proconsul Scipio Africanus addressed to a horde of mutineering soldiers in 206 BCE: An milites? Qui imperium auspiciumque ab nuistis, sacramenti religionem rupistis20. This meaning is also quite clear from Plautus, Amph. 192 (Imperio atque auspicio eri mei), and Livy 41.28.8: Eodem anno tabula in aede Matris Matutae cum indice hoc posita est: ‘TI. SEMPRONI GRAC- CHI CONSVLIS IMPERIO AVSPICIOQVE LEGIO EXERCITVSQVE POPVLI ROMANI SARDINIAM SVBEGIT (…) CVIVS REI ERGO HANC TABULAM DONVM IOVI DEDIT’ In the same year [i.e., 175 BCE] a tablet was set up in the temple of Mater Matuta with this inscription: ‘Under the command and auspices of the consul Ti. Sempronius Gracchus the legion and army of the Roman People subjugated Sardinia (…) In commemoration of this event he set up this tablet to Juppiter.’ If a certain act was performed under the imperium auspiciumque of a certain commander, this means that, in terms of public law, this action was taken ‘under the

19 For a series of (more or less) similar appraisals, compare, for example, Mommsen Staatsrecht 1, 61–75 and Lintott 1999, 95f. As such, I entirely reject Drogula’s intricate attempt (2007) to distinguish between imperium, strictly and solely the power of military command that could not normally exist within the pomerium, and potestas, the magistrates’ official authority for intra- pomerial civic duties. That the exercise of imperium domi was not strictly confined by the pomerium, as a sort of geographical border between the civilian and military spheres, but rather task-defined, has been cogently argued by Giovannini 1983, 1–26, even though Giovannini upholds the erroneous view that ‘imperium domi’ and ‘imperium militiae’ are two distinct, separable, components of imperium tout court. Contra Drogula (op. cit., 426, with n. 58), such inscriptions as the lex agraria of 111 BCE (clause 87: mag(istratus) proue mag(istratu) queiue pro eo inperio iudicio [potestateue erit (…)], as published in Crawford 1996, 122) do not at all “differentiate between imperium and potestas as different aspects of a magistracy”. These tralatician clauses are simply meant to include all categories of (pro)magistrates, both those holding that form of potestas also known as imperium and those holding some other form of potestas. 20 Livy 28.27.4. The imperium auspiciumque 23 supreme command and the auspices’ of this commander. Auspicio and, occasion- ally, imperio could be used as abbreviated forms of this formula21.

1.3. DUCTUS AUSPICIUMQUE – DUCTUS IMPERIUM AUSPICIUMQUE.

A brief survey of examples from the sources shows that the formula ductus auspi ciumque refers to the personal (in the sense of physical) leadership and auspicium (publicum) of a certain commander: Auspicio meo atque ductu22. T. Quincti ductu et auspicio agri captum priore anno aliquantum a Volscis esse. Under the leadership and auspices of T. Quinctius a considerable territory had been conquered the year before from the Volsci.23

Ap. Herdonii ductu et auspicio24. Alia omnis penes milites noxia erat, qui ne quid ductu atque auspicio decemuirorum prospere usquam gereretur uinci se per suum atque illorum dedecus patiebantur. The rest of the blame belonged to the soldiers, who, that nothing might anywhere prosper under the command and the auspices of the decemvirs, permitted themselves to be beaten, to their own disgrace and that of their commanders.25

Locus ipse admonebat Camilli, et magna pars militum erat qui ductu auspicioque eius res prospere gesserant. The place itself reminded men of Camillus, and there were many of the soldiers who had fought successfully under his leadership and auspices.26

Ibi Publilio, cuius ductu auspicioque res gestae erant, in deditionem accipiente Latinos popu los, quorum ibi iuuentus caesa erat, Aemilius ad Pedum exercitus duxit. While [the consul] (Q.) Publilius (Philo), under whose command and auspices the campaign had been conducted, was receiving the surrender of the Latin peoples whose soldiers had fallen there, [the consul] (Ti.) Aemilius (Mamercinus) led his army against Pedum.27

21 Livy 4.20.6 (cuius auspicio bellum geritur) & 21.40.3 (meis auspiciis) and 29.27.2 (quae in meo imperio gesta sunt). Cf. also Versnel 1970, 177 (“the terms auspicium and imperium, either in combination or by themselves, do not differ in Livy as to meaning, but simply denote ‘the supreme command’”; and Dalla Rosa 2003, 189 n. 15 (the formula imperium auspiciumque “definisce il potere del generale romano combattentesuis auspiciis”). 22 Plaut. Amph. 657. 23 Livy 3.1.4f., regarding the consul of 468. 24 Livy 3.17.2. Here the formula is used with respect to the supreme command of Ap. Herdonius, a Sabine who had occupied the Capitol in 460. 25 Livy 3.42.2. 26 Livy 5.46.6. See also 6.12.6: Ingens certe, quod inter omnes auctores conueniat, quamquam nuper Camilli ductu atque auspicio accisae res erant. 27 Livy 8.12.6f. 24 Chapter 1

Exitu huius anni cum de agris ueterum militum relatum esset, qui ductu atque auspicio P. Sci pionis in Africa bellum perfecissent (etc.) At the end of this year, when a proposal was made for a distribution of land to the veterans who had brought to an end the war in Africa under the leadership and auspices of P. Scipio28

Plerosque omnium ordinum, milites, inter uos esse uideo, qui in hac eadem prouincia T. Quincti ductu auspicioque militaueris. I see that most among you, soldiers, are men of all ranks, who fought in the same province under the leadership and auspices of Titus Quinctius.29

Ob eas res ductu auspicioque Ti. Sempronii prospere gestas. By reason of the successes obtained under the leadership and auspice of Ti. Sempronius.30

Ob eas res in Gallia Liguribusque gestas duorum consulum ductu auspicioque senatus in tri duum supplicationes decreuit. By reason of the successes in Gaul and among the Ligurians under the leadership and the auspices of the two consuls, the Senate decreed supplications for three days.31

Exitu prope anni diem unum supplicatio fuit ob res prospere gestas in Hispania ductu auspi cioque Ap. Claudi proconsulis. At about the end of the year there was a day of supplication on account of the successes in Spain under the leadership and auspices of Ap. Claudius the proconsul.32

Ob eas res gestas ductu auspicioque L. Anici praetoris senatus in triduum supplicationes de creuit. For this achievement under the leadership and the auspices of the praetor L. Anicius, the Senate voted supplications for three days.33

Itaque ergo prima Romanis inita prouinciarum, quae quidem continentis sint, postrema om nium nostra demum aetate ductu auspicioque Augusti Caesaris perdomita est. In consequence, though the first of the provinces, at least of those on the mainland, to be entered by the Romans, it has been the last of all to be completely conquered, and not until our own times under the leadership and auspices of Augustus Caesar.34 In other words: a victory won under a certain commander’s ductus auspiciumque had been gained under that commander’s personal leadership and auspices, the second component of the formula indicating that the commander involved had conquered as supreme commander, under only his own auspices35.

28 Livy 31.4.1 (201 BCE). 29 Livy 36.17.2 (191 BCE). 30 Livy 41.17.3 (176 BCE). 31 Livy 41.19.2 (175 BCE). 32 Livy 41.28.1 (174 BCE). 33 Livy 45.3.2 (168 BCE). For L. Anicius’ victorious tenure of the praetorship, see Broughton MRR 1, 428. 34 Livy 28.12.12 (on Hispania). 35 In Livy 8.31.1 & 33.22, the defiant claim on the part of both the magister equitum Q. Fabius The imperium auspiciumque 25

The more complete formula ductus imperium auspiciumque refers to the personal (in the sense of physical) leadership, the imperium and the auspicium of a certain commander36. In other words, if a certain action was taken ductu imperio auspicioque of a certain general, this action was taken under that general’s personal leadership (ductus), his legitimate supreme command (imperium), and his public auspices (auspicium). The following examples may suffice to show that this inter- pretation should not be questioned. In 40.52.5f., Livy scrupulously reproduces the wording of an inscription attached to a temple of the Lares permarines, vowed by the praetor L. Aemilius Regillus in 190 and dedicated by the censor M. Aemilius Lepidus (cos. 187) in 179: Duello magno dirimendo, regibus subigendis, patrandae pacis causa haec pugna exeunti L. Aemilio M. Aemilio filio (…) Auspicio imperio felicitate ductuque eius inter Ephesum Samum Chiumque, inspectante eopse Antiocho, exercitu omni, equitatu elephantisque, classis regis Antiochi antehac inuicta fusa contusa fugataque est, ibique eo die naues longae cum omnibus sociis captae quadraginta duae. Ea pugna pugnata rex Antiochus regnumque (…) Eius rei ergo aedem Laribus permarinis uouit. For finishing a great war, for subduing kings, this battle fought for the purpose of winning peace, (gave victory) to L. Aemilius, the son of M. Aemilius, as he left (…) Under his auspices and command, with his good fortune and leadership, in the area bounded by Ephesus, Samos and Chios, under the eyes of Antiochus himself, all of his army, his cavalry and his elephants, the fleet of King Antiochus, hitherto undefeated, was routed, shattered and put to flight, and there on that day forty-two ships were taken with all their crews. As a result of the finishing of this battle King Antiochus and his kingdom (…) By reason of this victory he vowed a temple to the Lares of the Sea.37 An inscription engraved on the occasion of a dedication to Hercules Victor com- memorates the fact that Achaea had been subdued and Corinth destroyed under the personal leadership, the auspices and the command of the consul L. Mummius in 146 BCE:

Maximus Rullianus and his father that the Samnites had been defeated under the former’s ductus auspiciumque is only partially correct in that Q. Fabius was still operating under the summum imperium auspiciumque of L. Papirius Cursor, the dictator, regardless of the fact that the latter had returned to Rome ad renouanda auspicia: see esp. Livy 8.31.3; 8.32.3–8 (esp. 3f.: ‘Quaero’, inquit, ‘de te, Q. Fabi, cum summum imperium dictatoris sit pareantque ei consules, regia potestas, praetores, iisdem auspiciis quibus consules creati, aequum censeas necne, ei magistrum equitum dicto audientem esse; itemque illud interrogo, cum me incertis auspiciis profectum ab domo scirem, utrum mihi turbatis relgionibus res publica in discrimen committenda fuerit an auspicia repetenda, ne quid dubiis dis agerem?’); 8.34.2 & 4 & 8; and 8.35.5 & 7 for the fact that Fabius had engaged the enemy contra auspicia edictumque dictatoris, in flagrant disregard of the dictator’s legitimate summum imperium auspiciumque. The Fabii, for their part, tried to emphasize that the magister equitum had held auspices of his own (propria auspicia) in battle and so qualified for triumphal honours. 36 Combès 1966, 206 explanation that this formula defines “les fonctions politiques, militaires et religieuses du chef d’armée, expliquant sa victoire par ses attributions de magistrat autant que par cette consultation des auspices” is somewhat lacking in clarity. 37 For Regillus’ vow, see also Macr. Sat. 1.10.10. 26 Chapter 1

L. Mummi L. f. cos. duct(u) auspicio imperioque eius Achaia capt(a), / Corintho deleto Romam redieit triumphans. / ob hasce res bene gestas quod in bello uouerat, / hanc aedem et signu(m) Herculis Victoris Imperator dedicat.38 After Achaea had been conquered and Corinth destroyed under the leadership, the auspices and the command of the consul L. Mummius, son of Lucius, he returned to Rome in triumph. In virtue of these successes he as Imperator dedicates this temple and standard, which he had vowed in the war, of Hercules the Victor. Plautus provides us with another beautiful example of this formula in Amph. 196 – the fact that this passage is referring to a mythical Greek being immaterial to our argument: ut gesserit rem publicam ductu, imperio, auspicio suo. “how the state was served under the leadership, command, and auspices of his very own self.”

1.4. CONCLUSION.

A victory won under the imperium auspiciumque of a certain commander was won under his supreme command and auspices. A victory won under the ductus (impe rium) auspiciumque of a certain imperator, however, was won under that commander’s personal leadership, supreme command and auspices. The sources corroborate the obvious deduction that ductus and imperium auspiciumque were not necessarily inextricable, and that a certain achievement could indeed be accomplished under the personal leadership (ductus) of a certain commander who in his turn operated under the supreme command and the auspices (imperio auspicioque, or simply aus picio/is) of another commander39. This is quite clear from, for example, the words Quintus Curtius ascribes to Alexander in 6.3.2, in which the relentless conquerer

38 CIL 1², 2, 626. 39 Meyer 19612, 117 (“Damit hängt es zusammen, daß im Feld nur der Inhaber eines selbständigen Kommandos, der keinem Vorgesetzen unterstellt war, im Besitz eigener Auspizen war, nicht die ihm untergegebenen Feldherrn, so daß der Ausdruck «unter den Auspizien» den Besitz des Oberkommandos bedeutete und streng unterschieden wurde von der Angabe «unter der Führung», also der tatsächlichen militärischen Leitung der Operationen.”) & Versnel 1970, 178 (“Ductus […] denotes the personal strategic command, imperium auspiciumque the supreme command; in later times these were not necessarily in one hand.”) correctly recognize the key distinction between ductu and auspicio, yet fail to draw any further deductions from this important conclusion. Infra it will be shown that Meyer is wrong to believe that only the supreme commander held auspices of his own. These conclusions also invalidate Beard’s (rather inaccurate) observations on the matter (2007, n. 71 of p. 372f.): “The need to assert authoritative command perhaps lies behind the list of terms used to refer to military leadership in several records of victory, and parodied by Plautus: in its fullest form (found only once, Livy 40, 52, 5), “under the command, the auspices, the authority and through the success of so- and-so” (ductu, auspicio, imperio, felicitate). Predictably enough, this phrase and its variants (…) have been minutely scrutinized for what they might reveal about the precise legal or other qualifications for a triumph (…) But the point may be far less technical than that: by piling up different ways of expressing the general’s responsibility for his victory, it may serve rather to make that responsibility seem unconstestable.” The imperium auspiciumque 27 draws a distinction between victories gained under his personal leadership, and successes achieved by subordinate commanders under his imperium auspiciumque: Magnitudinem rerum, quas gessimus, milites, intuentibus uobis minime mirum est et deside rium quietis et satietatem gloriae occurrere. Vt omittam Illyrios, Triballos, Boeotiam, Thra ciam, Spartam, Achaeos, Peloponnesum, quorum alia ductu meo, alia imperio auspicioque perdomui (etc.) When you look back, soldiers, upon the greatness of the deeds we have done, it is not surpri- sing that you feel a desire for repose and a satiety of glory. To say nothing of the Illyrians, the Triballi, Boeotia, Thrace, Sparta, the Achaeans, the Peloponnesus in general, some of whom I have subdued under my own leadership, others under my command and auspices. In Diu. Aug. 21.1, Suetonius explains that some of Augustus’ impressive series of conquests and victories were achieved under his personal leadership (ductus), whereas others had been gained under his auspices, i.e., by other commanders but still under his supreme command (imperium auspiciumque): Domuit autem partim ductu partim auspiciis suis Cantabriam, Aquitaniam, Pannoniam, Del matiam cum Illyrico omni, item Raetiam et Vindelicos ac Salassos, gentes inalpinas. Coercuit et Dacorum incursiones tribus eorum ducibus cum magna copia caesis, Germanosque ultra Albium fluuium summouit, ex quibus Suebos et Sigambros dedentis se traduxit in Galliam atque in proximis Rheno agris conlocauit. Alias item nationes male quietas ad obsequium redegit. In part as leader, and in part with armies serving under his auspices (or: “Either as commander on the spot or as commander-in-chief ”), he subdued Cantabria, Aquitania, Pannonia, Dalmatia, and all Illyricum, as well as Raetia and the Vindelici and Salassi, which are Alpine tribes. He also checked the raids of the Dacians, slaying great numbers of them, together with three of their leaders, and forced the Germans back to the farther side of the Elbe, with the exception of the Suebi and Sigambri, who submitted to him and were taken into Gaul and settled in lands near the Rhine. He reduced to submission other peoples, too, that were in a state of unrest. In his Res Gestae, Imperator Caesar Augustus himself on several occasions empha- sizes that a great many major victories or accomplishments were achieved under his auspices, i.e., by other commanders but under his supreme command (imperium auspiciumque): Ob res a [me aut per legatos] meos auspicis meis terra ma[riqu]e pr[o]spere gestas qui[nquagiens et q]uinquiens decreuit supp[lica]ndum esse dis immortalibus. On fifty-five occasions the Senate decreed that supplications should be offered to the immortal gods on account of the successes on land and sea gained by me or by my legates acting under my auspices.40

Meo iussu et auspicio ducti sunt [duo] exercitus eodem fere tempore in Aethiopiam et in Ar[a] biam. At my command and under my auspices two armies were led almost at the same time into Ethiopia and Arabia Felix.41

40 R.G. 4.2. For the Res Gestae, I have used the excellent edition by J. Scheid (Paris 2007). 41 Aug. R. G. 26.5. 28 Chapter 1

Citr[a] quod [D]a[cor]u[m tr]an[s]gressus exercitus meis a[u]sp[icis uict]us profligatusque [es]t, et pos[tea tran]s Dan]uium ductus ex[ercitus me]u[s] Da[cor]um gentes im[peri]a p(opuli) R[omani perferre] coe[git.] When an army of Dacians crossed the Danube, it was defeated and routed under my auspices, and later my army crossed the Danube and compelled the Dacian peoples to submit to the commands of the Roman People.42 In Ann. 2.41.1 (16 CE), finally, Tacitus indicates that military operations in the war against the Germans were conducted by Germanicus under the auspices of Tiberius: Fine anni arcus propter aedem Saturni ob recepta signa cum Varo amissa, ductu Germanici, auspiciis Tiberii. The close of the year saw dedicated an arch near the temple of Saturn commemorating the recovery, ‘under the leadership of Germanicus and the auspices of Tiberius’, of the standards lost with Varus. In other words, although the proconsul Germanicus personally led the armies against the Germans, he still operated under the auspices and thus the supreme command of the proconsul Tiberius as holder of the universal summum imperium auspiciumque43.

42 Aug. R. G. 30.2. 43 In Ann. 1.14.3, Tacitus duly records that (the redefinition of) Tiberius’ (official position at his) accession to the throne prompted an early grant of a second quinquennium of consulare imperium to Germanicus Caesar. See Dio 56.25.2 for the fact that Germanicus’ first quinquennium of consulare imperium probably ran from January 11 to January 16. As Tiberius did not hold the consulship in 14, he ipso facto exercised his legally privileged consulare imperium as proconsul in 14. For a discussion of how Augustus had gradually monopolized the high command across the entire Roman world from January 27, see chapter 7.6. CHAPTER 2 THE PRINCIPLE OF THE SUMMUM IMPERIUM AUSPICIUMQUE

2.1. INTRODUCTION: THE SUMMUM IMPERIUM – A MATTER OF DEFINITION

Those few scholars who pronounce their opinion on the precise meaning of the amply recorded term summum imperium suppose it simply regards a descriptive definition of the consulare imperium1. However, a quick glance at several relevant attestations shows that reality was more complicated than that. In Livy 6.35.1, sum mum imperium generally refers to the highest official station of power in the Repub- lic. In Livy 4.1.3 & 26.10; Cic. Rab. Post. 3; Mur. 74; Sest. 25 & Nat. Deor. 2.4; and Val. Max. 2.2.3, 6.2.8 & 8.15.8, the term summum imperium is indeed used with respect to the consulship. In Rep. 2.56 Cicero defines both theimperium of the dictator and that of the consul as the summum imperium: uiris summo imperio praedi tis, dictatoribus atque consulibus. The term summum imperium can, however, just as much be used with regard to the consulare imperium of the decemuiri legibus scribundis (Cic. Rep. 2.61) and the tribuni militum consulari potestate (Livy 5.14.1), or that of consular (Livy 28.27.12) and praetorian (Cic. Q.F. 1.31) proconsuls, and even with respect to the imperium of propraetors and other officials cum praetorio imperio (Cic. Verr. 2.14; and Leg. Agr. 1.9; 2.34 & 2.99). This brief survey shows that the term summum imperium mostly refers neither to one specific genus imperii nor to the power of a particular category of officials cum imperio, but rather serves to denote the authority of that official who in a certain, well-defined context holds the supreme command in certain, well-defined matters, be it as magistrate or promagistrate, either in Rome and Italy or in the provinces. Two passages from Caesar’s Civil Wars (3.5.4 & 3.18.2) indeed unambigu- ously attest that summum imperium in this sense refers to the supreme command in a given sphere of activity. Both regard the position of the proconsul M. Calpurnius Bibulus (cos. 59), Pompeius’ naval commander-in-chief, in 49 and 48 BCE: Toti tamen officio maritumo M. Bibulus praepositus cuncta administrabat; ad hunc summa imperii respiciebat.

1 Badian 1965, 112; Girardet 1992a, 178f.; 2000, 180 & 198f.; and 2001, 158 (“das imperium eines Prokonsuls – sei es das prorogierte des Konsuls, sei es das gleichsam ‘aufgestockte’ eines Prätors, sei es das extra ordinem einem privatus zur Ausübung pro consule übertragene – ist das imperium consulare, und als solches ist das imperium des Prokonsuls summum imperium militiae.”); Roddaz 1992, 190 & 201; and Brennan 2000, 39 & 261 n. 50f., who likewise seems to regard the summum imperium as the prerogative of the dictator, the consuls and anybody else with consulare imperium. The equation of consulare imperium with summum imperium is also made in Hurlet 2006, 130 (comp. 178).