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Clodius and the Lex Aelia Fufia

Published online by Cambridge University Press:  24 September 2012

William F. McDonald
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Extract

That the lex Clodia of 58 B.C. repealed either in whole or in part the lex Aelia Fufia of c. 153 B.C. is adequately attested by our ancient authorities and universally admitted by modern scholars. The crux of the question is: was the lex Aelia Fufia wholly abrogated by the lex Clodia, and, if not, precisely what part of the former law was repealed by the legislation of Clodius? Despite the statement of Cicero—‘mitto eam legem, quae omnia iura religionum, auspiciorum, potestatum, omnes leges quae sunt de iure et de tempore legum rogandarum, una rogatione delevit’—which is obviously rhetorical and biased, no one, so far, as the writer knows, holds the view that all clauses of the lex Aelia Fufia were repealed by the lex Clodia. This inquiry, therefore, is an attempt to determine how much of the lex Aelia Fufia the lex Clodia repealed.

Type
Research Article
Information
The Journal of Roman Studies , Volume 19 , Issue 2 , 1929 , pp. 164 - 179
Copyright
Copyright © 1929. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies

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References

page 164 note 1 Custom and convenience warrant the use of the term lex Aelia Fufia. But that there were two laws, a lex Aelia and a lex Fufia, is clear from several passages in Cicero (post red. in sen. II; in Vatin. 5 and 23; de prov. cons. 46; especially de harusp. resp. 58 ‘sustulit duas leges Aeliam et Fufiam maxime rei publicae salutares’.). But, though there were two laws, the relation between them is unknown. In three places Cicero mentions the lex Aelia alore (pro Sest. 114; ad Att. ii, 9, 1; and possibly ad Att. i, 16, 13), and in one the lex Fufia alone (ad Att. iv, 16, 5); but in none of these passages is the subject matter of such a nature as to form a basis for conjecturing with any assurance how the one law differed from the other.

page 164 note 2 The principal works on this subject with which the writer is acquainted and to which he is deeply indebted are: Lange, C. K. L., De legibus Aelia et Fufia commentatio (Gissae, 1861)Google Scholar; Valeton, I. M. J., ‘Deiure obnuntiandi comitiis et conciliis’, in Mnemosyne (N. S.) xix (1891)Google Scholar; Greenidge, A. H., ‘The Repeal of the Lex Aelia Fufia’, in Classical Review vii (1893), pp. 158–161CrossRefGoogle Scholar. The question is also discussed by Mommsen (Röm. Staatsr. I3, 110–114); Willems, (Le droit public romain 7, 139–140); and Denniston, J. D. in his edition of the Orationes Philippicae Prima et Secunda (The Clarendon Press, Oxford, 1926)Google Scholar, Appendix III, pp. 180–186.

page 164 note 3 Cic. pro Sest. 56.

page 164 note 4 Cic. in Vatin. 23.

page 164 note 5 Cic. in Pis. 10.

page 165 note 1 Cic. in Pis. 9.

page 165 note 2 Cic. pro Sest. 33: ‘qua una rogatione [sc. lege Clodia] quis est qui non intelligat universam rem publicam esse deletam ?’

page 165 note 3 Cic. in Vatin. 18.

page 165 note 4 Cic. post red. in sen. 11.

page 165 note 5 Cic. in Vatin. 23.

page 165 note 6 Cic. in Vatin. 18.

page 165 note 7 Cic. in Vatin. 18.

page 165 note 8 Cic. in Vatin. 5.

page 165 note 9 Cic. in Vatin. 37.

page 166 note 1 Perhaps in 88 B.C. the tribune Sulpicius ignored the lex Aelia Fufia, and certainly in 67 B.C. the Senate evaded it. But these two exceptional instances do not invalidate the generalisation that during the period in question the law was religiously observed. Both instances are examined below.

page 166 note 2 Ascon. (ed. Clark) p. 8, lines 20–22. The lex Aelia Fufia may merely have confirmed, by statute law, the traditional procedure.

page 167 note 1 It may fairly be said that those scholars who have investigated this thorny question have, for the most part, endeavoured to interpret the actual instances of obstruction in the light of notions regarding the lex Aelia Fufia and the lex Clodia derived from Cicero's and the scholiasts' descriptions of them. When, as in this case, the references are biassed or vague, such a method has its pitfalls, and leads to statements such as that of Mommsen, (loc. cit. i, 112Google Scholar) that the lex Clodia was consistently ignored, and that of Greenidge (loc. cit.) that the expression servare de caelo is ambiguous. Mommsen may be answered with the query why, if the lex Clodia was consistently ignored, is there no incident on record wherein a political opponent was taunted for his disregard of this law, much less evidence of an indictment under it. As for the solution of Greenidge, apart from the fact that a formula, so highly technical as servare de caelo unquestionably was, would be very unlikely to be susceptible of a double meaning, his explanation is dangerously like that of obscurum per obscurius. To postulate ambiguity, unless it is obvious, is not calculated to bring order out of chaos.

page 167 note 3 Serv. ad Aen. vi, 190.

page 167 note 4 Donatus ad Ter. Ad. 547. Donatus continues: ‘nam proprie obnuntiare dicuntur augures, qui aliquid mali ominis scaevumque viderint.’ Despite the testimony of Donatus, Mommsen, (op. cit. i, 111Google Scholar, n. 2) would restrict obnuntiatio to the magistrate. But Cicero, (Phil. ii, 84Google Scholar) says ‘augur auguri, consul consuli obnuntiasti’, and again, speaking ex professo (de Div. i, 29) he uses the expression dirarum obnuntiatio, the dirae being the auspicia oblativa with which the augur was properly concerned. Although, of course, the term obnuntiatio was used particularly of the unfavourable report of the magistrate, these passages create the presumption that the nuntiatio of the augur, if unfavourable, might properly be called obnuntiatio.

page 167 note 4 This distinction between the auspicia impetrativa as announced by the magistrate, and the auspicia oblativa as announced by the augur, is the is theme of the passage in the Second Philippic (80–84), which is discussed below.

page 168 note 1 So Cicero says — ‘nos [sc. augures] enim nuntiationem solum habemus, consules et reliqui magistratus etiam spectionem (Cic. Phil. ii, 81Google Scholar). Spectio does not seem to have been formally the same as obnuntiatio. The only ancient passage that describes spectio at length (Festus p. 446, Lindsay) is so corrupt that various scholars have emended it in accordance with their various theories. The general consensus of opinion is that spectio connoted the right of the magistrate to observe the heavens for auspicia impetrativa. Obnuntiatio, the actual report of unfavourable auspicia impetrativa, was the logical consequence of spectio, if the presiding magistrate persisted in attempting to hold the assembly. Usually, however, the mere announcement of the magistrate that he intended to watch the heavens was of itself sufficient to cause the postponement of the assembly.

page 168 note 2 Cic. Phil. ii 80Google Scholar.

page 169 note 1 Cic. Phil. ii, 81–83Google Scholar.

page 169 note 2 Cicero exaggerates. The reference is to January 1st, 44 B.C.

page 169 note 3 Some take prohibiturum auspiciis to refer to impedire, and id facturum esse quod fecit to vitiare in a preceding passage (§80). Others understand prohibiturum auspiciis to refer to the spectio of the magistrate, and id facturum etc. to the nuntiatio of the augur. The latter interpretation would seem to strengthen the antithesis, but for the present discussion the point is a minor one.

page 170 note 1 The passage is difficult, but possibly may best be rendered thus: ‘A thing (sc. to decide to watch the heavens) that is illegal at the comitia, and, if one has watched the heavens, one ought to make a formal declaration of the fact, not after, but before the comitia begin.’ It was against the law (not the lex Clodia, but the traditional augural law) to make the formal declaration ‘se servare de caelo’ once the comitia had begun. Greenidge (loc. cit.) understands by per leges the Clodian law of 58 B.C. According to his interpretation, the lex Clodia abolished the curule magistrates' right of spectio in connection with the auspicia impetrativa. If this is true, then after 58 B.C. the formal announcement ‘se servaturum de caelo’ could not be legitimately used. Since, however, apart from the present passage, there is more than one instance of its use after 58 B.C., Greenidge is driven to postulate ambiguity in the phrase ‘de caelo servare.’ This formula, he contends, is properly applied to the curule magistrates' right of spectio, but may be used in an analogous sense of a tribune (or augur?) who intends to watch for auspicia oblativa. Thus the force of the passage would lie in Cicero's rhetorical play on the double meaning of the term. Against such an interpretation several objections may be urged. First of all, it is, on the face of it, improbable that an expression so highly technical as ‘de caelo servare’ would be, in common use, ambiguous. Again, Cicero clearly states that Antony, acting as consul, and not as augur, could have obstructed the election. If here Cicero is referring to the magistrate's right of spectio, as certainly must be the case, and if, as Greenidge holds, that right was abolished by the lex Clodia, then Antony could make the obvious retort that he had no choice but to act as augur. Finally, when Cicero says ‘nos [sc. augures] enim nuntiationem solum habemus, consules et reliqui magistratus etiam spectionem,' he is speaking as one versed in the augural law, the context is technical, and spectio must be interpretedstrictly, i.e., as the right of the magistrate to watch for auspicia impetrativa. Cicero's point throughout the whole passage is straightforward enough. It is that Antony, who had the choice of two alternatives, chose the less convenient, and even then hopelessly confused the technique of both. Therein lies the significance of the words: ‘augur auguri, consul consuli obnuntiasti.’

page 171 note 1 This right of obnuntiatio which the curule magistrates possessed applied both to the conitia populi and to the concilium plebis. This is clear from the circumstances of Vatinius' conduct in 59 B.C. The validity of the laws of Vatinius was questionable precisely because he persisted in carrying them in the face of the obnuntiationes of Bibulus, a consul. This brazen disregard for the laws is one of the main themes of Cicero's attack on Caesar's tribune. Thus Cicero asks Vatinius' num quern post urbem conditam scias tribunum plebis egisse cum plebe cum constaret servatum esse de caelo ?’ (in Vatin. 17); and again, ‘num quem ex omnibus tribunis plebis, quicumque seditiosi fuerunt, tam audacem audieris fuisse ut umquam contra legem Aeliam et Fufiam concilium advocaret ?’ (in Vatin. 18).

page 171 note 2 addidit Wesenberg, et recte quidem.

page 171 note 3 Cic. ad Att. iv, 3, 3Google Scholar.

page 171 note 4 Cic. ad Att. iv, 3, 4Google Scholar.

page 172 note 1 Cic. ad Q. Fr. iii, 3, 2Google Scholar.

page 172 note 2 Cic. ad Att. iv, 17Google Scholar, 4.

page 172 note 3 Spectio and obnuntiatio, though in origin and in essence religious, were recognized by the Romans as being in practice primarily political institutions. Accordingly, the magistrate's declaration that he had seen unfavourable auspicia impetrativa was accepted without question, whereas that the augur (or any one else) should fabricate auspicia oblativa profoundly shocked the religious sense of the people. This distinction was not altogether arbitrary. Since the magistrate was, in virtue of his office and public pronouncement, watching for a sign that he himself had requested to be vouchsafed to himself for a particular occasion, it was always quite possible that that sign might be given to him privately, and without the cognizance of others. In other words it was never possible to prove that the magistrate was lying, when he announced that he had seen unfavourable auspicia impetrativa. On the other hand since the auspicia oblativa were unsolicited and could be referred only to that occasion on which they occurred, if an augur (or any one else) made an announcement that contradicted the evidence of the senses of the multitude, he was manifestly convicted of a lie. Had Antony, in 44 B.C., chosen to act as consul, and, as such, concerned himself with auspicia impetrativa, Cicero could never have said to him ‘ementitus es auspicia.’ (Phil. ii. 83Google Scholar).

page 172 note 4 Cic. Sest. 79.

page 172 note 5 Cassius Dio xxxix, 6. ὅ τε Νέπως ὁ ὔπατος ἀπ̕ οίκείας τινὸς ἔχθρας τὸν Κικέρωνα μισῶν. Later the attitude of Metellus towards Cicero underwent a change for the better (id. xxxix, 8).

page 173 note 1 It is worthy of note that Sestius made his obnuntiatio to the consul in the temple of Castor, i.e., while the consul was concerned with the preliminaries of the comitia, and before the assembly had formally begun. This shows that the auspicia concerned were impetrativa, and not oblativa.

page 173 note 2 Cic. Phil. i, 25Google Scholar.

page 173 note 3 Cic. pro Sest. 129.

page 174 note 1 Cic. ad Q. Fr. iv, 4, 4–5Google Scholar. The Latinae, being feriae conceptivae, the date of which was not fixed but subject to the decision of the consuls, could always be repeated by the fiction of some flaw or informality. Whether in 88 B.C., when Rome was being agitated by the revolutionary proposals of the tribune Sulpicius, the consuls had recourse to an expedient of a similar nature, is a matter of conjecture. Appian (B.C. i, 55) states that the consuls προὕγαψαν ἡμερῶν ἀργίας πολλῶν ἐν ταῖς έορταῖς εἴωθε γίγνεσθαι ἴνα τις ἀναβολή γένοιτο τῆς χειροτονίας και τοῦ κακοῦ. The pharse ἡμερῶν ἀργίας πολλῶν may refer to the instauratio of a feast, or to a supplicatio, or, again, to the consequence of the consul's declaration ‘se servaturum esse de caelo.’ Since the occasion was antecedent to the Clodian law, a curule magistrate had the right of obnuntiatio over legislative assemblies. Cassius Dio (xxxviii, 6) uses the word ίερομηνία to describe the consequence of the obnuntiationes of Bibulus in 59 B.C.

page 174 note 2 Cic. pro Sest. 78.

page 175 note 1 Gellius, N.A. xiii, 15Google Scholar, 1. The tribune was not affected by this edict.

page 175 note 2 App. B.C. iii, 7Google Scholar.

page 175 note 3 Schol. Bob. ap. Stangl, Ciceronis orationum scholiastae ii, p. 148.

page 176 note 1 Cassius Dio xxxvi, 39.

page 176 note 2 Cic. ad Att. i, 16Google Scholar, 13.

page 176 note 3 For a reconstruction of the events of 67 B.C., wherein this affair is discussed more in detail, see my article, ‘The Tribunate of Cornelius’, The Classical Quarterly, xxiii (Oct., 1929).

page 177 note 1 Probably Clodius's object was to put legislative assemblies on the same footing, in this respect, as the courts of law.

page 178 note 1 See Holden's, H. A. edition of the pro Sestio (London: Macmillan, 1913), p. 120Google Scholar.

page 178 note 2 Suet. Div. Iul. 20.

page 179 note 1 Cic. ad Att. ii. 21Google Scholar, 3.

page 179 note 2 Cassius Dio xxxviii, 13. As Lange (op. cit. p. 15) points out, ὲξείη would be more exact than ἀναγκαῖον εἴη.

page 179 note 3 Cicero, in a letter to Atticus (iv. 16, 5), written in the summer of 54 B.C., says— ‘nunc ad ea quae quaeris de C. Catone. Lege Iunïa et Licinia scis absolutum; Fufia ego tibi nuntio absolutum iri neque patronis suis tam libentibus quam accusatoribus.’ This reference is almost invariably taken to be to the lex Aelia Fufia. But there was also a lex Fufia iudiciaria (Schol. Bob. ap. Stangl, , Ciceronis orationum scholiastae ii, p. 97Google Scholar; Cassius Dio xxxviii, 8), the nature of which is obscure, and it is not inconceivable that it was under this law, and not under the lex Aelia Fufia, that Gaius Cato was indicted. Anyway, the context gives us no clue regarding the nature of the law.