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CATO AND THE COURTS IN 54 b.c.*

Published online by Cambridge University Press:  20 November 2014

Kit Morrell
Kit Morrell*
Affiliation:
University of Sydney
*
kit.morrell@sydney.edu.au
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In the 50s b.c. the Roman republic faced serious challenges, not least among them the related problems of electoral bribery and provincial extortion. The year 54 b.c., which this article takes as a case study, witnessed both the worst electoral scandal Rome had ever seen and the high-profile extortion trial of M. Aemilius Scaurus. These events defy analysis in terms of the political allegiances and prosopographical connections usually tracked. It is more helpful to think of problems and (attempted) solutions, in which the younger M. Porcius Cato played a leading role. Scaurus’ prosecutor summed up a vicious circle: governors who had engaged in extortion would buy the consulship with the money they had stolen and go on to plunder other provinces. Cato countered from both sides: in the Senate, he proposed a new form of process to combat electoral corruption; as president of the extortion court, he allowed the prosecution to hurry through a case that was as much about ambitus as repetundae. These initiatives, while not immediately successful, helped lay the groundwork for future reforms.

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Research Article
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The Classical Quarterly , Volume 64 , Issue 2 , December 2014 , pp. 669 - 681
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Copyright © The Classical Association 2014 

In the 50s b.c. the Roman republic faced serious challenges, not least among them the related problems of electoral bribery and provincial extortion. The year 54 b.c., which this article takes as a case study, witnessed both the worst electoral scandal Rome had ever seen and the high-profile extortion trial of M. Aemilius Scaurus. These events defy analysis in terms of the political allegiances and prosopographical connections usually tracked.Footnote 1 It is more helpful to think of problems and (attempted) solutions, in which the younger M. Porcius Cato played a leading role. Scaurus’ prosecutor summed up a vicious circle: governors who had engaged in extortion would buy the consulship with the money they had stolen and go on to plunder other provinces.Footnote 2 Cato countered from both sides: in the Senate, he proposed a new form of process to combat electoral corruption; as president of the extortion court, he allowed the prosecution to hurry through a case that was as much about ambitus as repetundae. These initiatives, while not immediately successful, helped lay the groundwork for future reforms.

I

‘If [the tribunician] elections go ahead without bribery, as it is believed they will, Cato will have achieved more single-handedly than all the laws and all the jurors.’ So Cicero wrote in July 54.Footnote 3 He was talking about the pact made by the candidates for the tribunate to conduct their election with Cato as umpire and a large sum to be forfeited by anyone who engaged in bribery.Footnote 4 We do not know what this ‘umpiring’ involved, but it seems to have been effective. According to Plutarch, only one candidate breached the pact, and Cato found him out. Indeed, the same device was adopted by Augustus in 8 b.c.Footnote 5

The consular elections presented a greater challenge. In June a senatus consultum de provinciis had been passed which may have been intended to curb electoral corruption, though Cicero thought it unlikely to work.Footnote 6 By July bribery was worse than ever,Footnote 7 to the point where the interest rate doubled on account of the sums involved.Footnote 8 This was the year of the notorious coitio, whereby the sitting consuls, Ap. Claudius Pulcher and L. Domitius Ahenobarbus, undertook to secure the election of two of the candidates for 53, C. Memmius and Cn. Domitius Calvinus, in return for the promise of provincial grants or, failing that, a huge sum of money.Footnote 9 In the first week of August, Memmius revealed the whole arrangement in the Senate.Footnote 10 A scandal erupted, but the effect was to clear the way for other candidates to bribe their way to the consulship.Footnote 11 Among them was M. Aemilius Scaurus, who had recently returned from Sardinia, hoping to outbid everyone.Footnote 12

For several days the Senate debated what to do,Footnote 13 and here Cato took the lead. Cicero does not name him, but Plutarch's account identifies Cato as the driving force behind the attempt to introduce a tacitum iudicium. This ‘silent process’ would have required each candidate to render an account of his campaign before a panel of iudices.Footnote 14 Beyond that, we do not know what the process involved or why it was called ‘silent’,Footnote 15 but it was probably a simplified trial procedure designed to be completed before the electionsFootnote 16 and (like Cato's intervention in the tribunician elections) to have some preventative effect.Footnote 17 The consequence of an adverse iudicium is likely to have been disqualification from standing in the consular elections.Footnote 18 The proposal may have drawn on Greek models.Footnote 19

Cato's idea was controversial and he had difficulty persuading the Senate to adopt it.Footnote 20 However, around 6 August a senatus consultum was passed instituting a tacitum iudicium against each candidate.Footnote 21 Like the arrangements for the tribunician elections, the process was expected to be effective. The candidates were greatly alarmed and perhaps leaned on ‘certain jurors’, who complained to the tribunes about having to serve without the authority of a law.Footnote 22 Therefore the Senate decreed that the elections should be delayed while a lex de tacito iudicio was passed.Footnote 23 The Senate further specified that, if the bill was vetoed, the matter should be referred back to the house – which is precisely what happened when voting day came and the tribune Terentius cast his veto. He was not just doing the candidates a favour: Plutarch states that the people resented Cato's interference with the annual handout.Footnote 24

At that point the Senate lost its nerve. When the consuls raised the matter again – very reluctantly, as Cicero points out – the idea of a silent process was abandoned and the Senate decreed instead that elections should be held as soon as possible.Footnote 25 But Cato and his supporters were not ready to accept defeat. The issue remained live throughout the long September recess, though unfortunately Cato fell ill,Footnote 26 leaving only his friends M. Favonius and C. Ateius Capito to pursue the matter when the Senate met on 1 October.Footnote 27 The silent process was not revived: the Senate was never keen, still less so the consuls, and the people were opposed.Footnote 28 Without Cato to push it, the idea was forgotten. Instead, in the following days, regular ambitus charges were laid against all four candidates.Footnote 29

But the elections were not held, thanks to the tribune Q. Mucius Scaevola, who used obnuntiatio (the announcement of contrary omens) to block all the comitial days. Cicero reports:

Scaurus, qui erat paucis diebus illis absolutus, cum ego patrem eius ornatissime defendissem, obnuntiationibus per Scaevolam interpositis singulis diebus usque ad pr. Kal. Oct., quo ego haec die scripsi, sublatis, populo tributim domi suae satis fecerat.   (Cic. Att. 4.17.4 [= SB 91])

Scaurus – who was acquitted a few days before, when I defended his father most splendidly – has paid off the public in his own house, tribe-by-tribe, each day right up to 29 September, the day I write this, having been cancelled by obnuntiationes interposed by Scaevola.Footnote 30

The mention of Scaurus and Scaevola together has led scholars to argue that Scaevola's actions were intended either to help or to hinder Scaurus’ electoral campaign. Münzer saw Scaevola's obnuntiatio as part of a struggle against electoral bribery in general or against Scaurus in particular.Footnote 31 Shackleton Bailey thought Scaevola was trying to help Scaurus.Footnote 32 As Cicero goes on to say, Scaurus’ trial had put him at a disadvantage, for, while he was busy defending himself, his competitors were engaged in lavish bribery.Footnote 33 Certainly one effect of Scaevola's obnuntiatio was to let Scaurus play catch-up, but Cicero gives no hint that that was Scaevola's intention, and Scaevola was hardly doing Scaurus any service when he continued to obstruct the elections long after Scaurus had paid out his money and his campaign had gone stale.Footnote 34 Furthermore, if Scaevola was trying to help Scaurus, we might ask why he did not block the silent process, which posed a more serious threat to all the candidates.Footnote 35

It is more likely that it was the failure of the silent process, rather than Scaurus’ acquittal, that prompted Scaevola to obstruct the elections. The chronology supports this: Scaevola's obnuntiationes began after Scaurus’ acquittal, but more precisely after the veto of the bill de tacito iudicio and the Senate's decree that elections should be held.Footnote 36 I suggest that Scaevola's actions were designed to circumvent the Senate's decree and that, in doing so, he was working with Cato, as he certainly was a few weeks later in the attempt to block Pomptinus’ triumph.Footnote 37 By delaying the elections in this way they gave the silent process a second chance when the Senate met again on 1 October; when that failed, Scaevola continued to use obnuntiatio to ensure that the elections were not held until something could be done to bring corruption under control.Footnote 38 Cicero hints at this in a letter of 21 October: ‘Day by day comitial days are cancelled by obnuntiationes, much to the approval of all honest men.’Footnote 39 We may be confident that Cato approved, and that he was not alone. His increasingly inventive tactics had the support not only of the tribune Scaevola but also, it seems, of the majority of the boni.

In this case, Cato did not enjoy the success which he achieved in the tribunician elections – in fact, no consuls were elected until midway through 53.Footnote 40 But the attempt is significant and, as we shall see, Cato attacked the problem from another direction as well, as praetor at Scaurus’ trial.

II

Scaurus was charged with extortion but, as the prosecutor argued, the problem of extortion was inseparable from the problem of electoral corruption. Cato's stance is harder to discern, as he was praetor in the court and could not openly take sides. However, I suggest that, by facilitating the prosecutor's approach and enabling him to accelerate the trial in various ways, Cato used his position in an attempt to break the cycle of ambitus and repetundae.

M. Aemilius Scaurus governed Sardinia following his praetorship in 56. He retuned to Rome in June 54 to campaign for the consulship. On 6 July, he was charged de repetundis by P. (or C.?) Valerius Triarius.Footnote 41 Triarius was a friend of CatoFootnote 42 – a fact which caused Scaurus considerable anxiety – and one of his subscriptores may have been connected to Cato as well.Footnote 43 Scaurus was defended by six patroni, including the bizarre combination of Cicero and Clodius, with Milo among the numerous supplicatores.Footnote 44 The trial ended in acquittal on 2 September.Footnote 45

The political significance of the trial has attracted much debate. Prosopographical approaches produce more anomalies than solutions.Footnote 46 One interpretation which has found favour is Gruen's, that the prosecution was a political attack and the defence an attempt by a united aristocracy to protect a tradition of consular elections free from political prosecutions.Footnote 47 But there is no compelling evidence for such a tradition;Footnote 48 nor would it explain why Scaurus at first found little sympathy but was well represented by the time that the case came to court.Footnote 49

The role of the consul Ap. Claudius suggests an alternative solution. He was certainly much discussed at the trial. According to Cicero, Appius initially backed the prosecution in order to help his brother C. Claudius, who was expected to stand against Scaurus for the consulship.Footnote 50 When Gaius did not become a candidate, Appius continued to oppose Scaurus to further his own interests – namely, the election of Memmius and Domitius Calvinus.Footnote 51 The electoral pact was exposed after Scaurus was charged and before the trial began.Footnote 52 Even before then, Appius’ ‘approval rating’ was at rock-bottom.Footnote 53 The scandal probably worked in Scaurus’ favour, since he could claim to be the victim of the consul's machinations – mere ambitus paled in comparison.Footnote 54 In other words, the defence was perhaps not so much pro-Scaurus as anti-AppiusFootnote 55 – a sentiment which (tellingly) did not translate into support for Scaurus’ electoral campaign.Footnote 56

Nor should the prosecution be seen purely as a political attack. Triarius probably saw advantages in cooperating with the consul,Footnote 57 but he had other reasons for prosecuting Scaurus. A family connection with Sardinia made Triarius an appropriate choice of prosecutor,Footnote 58 even more so if Douglas is right in identifying Asconius’ ‘Publius’ as the talented orator C. Valerius Triarius.Footnote 59 His key witness was a Valerius enfranchised by his father and no doubt an injured party.Footnote 60 Despite the use of some unorthodox tactics, there is no reason to doubt that the case was a genuine attempt to obtain justice for the Sardinians.

Asconius describes Triarius as an ‘eloquent young man of noted industry’.Footnote 61 This was apparent at the trial, where he produced evidence on a ‘pile of crimina’,Footnote 62 going to the core of repetundae Footnote 63 and various aggravating circumstances,Footnote 64 including one particularly important charge about grain.Footnote 65 Alexander argues that Triarius’ case resembled Cicero's Verrines in its complexity and variety of charges.Footnote 66 In contrast, Scaurus’ defence seems to have had little to do with his administration in Sardinia, relying instead on tearful appeals to the jury, his father's reputation, and his own generosity.Footnote 67 Cicero refuses to discuss the extortion charges; in fact he says he cannot refute them,Footnote 68 and resorts instead to racial slurs and blanket accusations of perjury.Footnote 69 Such tactics raise serious doubts about Scaurus’ innocenceFootnote 70 – doubts which Cicero himself expressed in private.Footnote 71 Certainly Scaurus’ background made the charge a very plausible one. He had a reputation for extravagance and avarice,Footnote 72 and had fallen badly into debt after a particularly lavish aedileship.Footnote 73 When he returned from his province in 54, ready to embark on an expensive consular campaign, he must have looked guilty until proven innocent.Footnote 74 It was an all too familiar pattern.

Triarius’ case had an obvious weak point, however, in that he never went to Sardinia to collect evidence.Footnote 75 Cicero records one excuse: that the whole case had been reported to him in Rome, so there was no need to go.Footnote 76 There was truth in that – by Cicero's admission, Triarius was able to produce ‘columns and companies of Sardinians’.Footnote 77 But, more importantly, he was acting under constraints of time. According to Asconius, that was the chief explanation offered by the prosecution:

… interea comitia consularia futura essent; timere ergo se ne Scaurus ea pecunia quam a sociis abstulisset emeret consulatum et, sicut pater eius fecisset, ante quam de eo iudicari posset, magistratum iniret ac rursus ante alias provincias spoliaret quam rationem prioris administrationis redderet.   (Asc. 19C)

… the consular elections were to take place in the mean time; therefore they were afraid that Scaurus would buy the consulship with the money he had stolen from the allies, enter office before the case could be decided, as his father had done, and once again plunder other provinces rather than account for his earlier administration.

The fact that Scaurus had been charged with repetundae did not prevent him from standing for the consulship. If he was elected, he would become immune from conviction when he entered office on 1 January.Footnote 78 The prosecutors were therefore anxious to complete the case before the end of the year. It was a legitimate concern,Footnote 79 and they could cite Scaurus’ own father as an example of ‘one that got away’.Footnote 80

But the timing was more critical than that. As Asconius shows, Triarius was anxious not only to complete the case before the end of the year but to begin it before the consular elections. That is the force of interea – normally, the trial would not have begun until after the elections were expected to be held. As it happened, they were postponed, but Triarius did not know that in July, when he made the decision not to go to Sardinia.Footnote 81 For Cicero, that made the case a political attack, trumped up and rushed through to affect the outcome of the elections.Footnote 82 But Triarius had little choice, precisely because the defendant was also a candidate in the most corrupt elections Rome had ever seen – and no-one doubted that Scaurus would join the spending spree. Whether he was elected or not, the Sardinians would not recover much if he had already spent the spoils on an expensive consular campaign. Therefore, to really win the case – to make sure that there was something left for the Sardinians to recover – the prosecution not only needed to secure a conviction but also to prevent Scaurus from campaigning, and the way to do that was to bring him to court as soon as possible.

Scaurus was acquitted, but the sequel validates Triarius’ tactics. As soon as the trial ended, Scaurus began handing out money.Footnote 83 Evidently he had not been able to do so during the trial; otherwise he would not have put himself at a disadvantage: ‘while his largesse has been more abundant’, said Cicero, ‘it seems those who got in first will be more popular’.Footnote 84 We do not know why Scaurus had to wait,Footnote 85 but his prosecutors must have anticipated the effect, and they need not have been thinking of electoral results. Money spent on bribes meant less money for damages; thus, postponing Scaurus’ largesse was an advantage to his competitors, but absolutely vital to the Sardinians.

In short, Triarius probably felt that he had more to lose by delaying than he would gain from a visit to the province, and he abbreviated the proceedings in other ways as well. By this time the elections had been postponed and he was probably attempting to complete the trial before they could be held.Footnote 86 According to Cicero, Triarius called only one witness in the actio prima.Footnote 87 It was a different tactic from that which Cicero had employed against Verres,Footnote 88 but it was a tactic: we know that Triarius had no shortage of witnesses. He miscalculated; he was probably over-hasty, but his case was by no means the empty political stunt that Cicero tries to depict it as. Tellingly, when a vote was taken as to whether the prosecutors had engaged in misconduct (calumnia), there was no vote against Triarius.Footnote 89

It is time to consider Cato's part in all of this. Cato as praetor seems to have approved and even abetted Triarius’ conduct. According to Asconius, Scaurus greatly feared Cato because of his friendship with Triarius,Footnote 90 and, no doubt, because of Cato's tough stance on corruption. Asconius adds that Cato did not abandon his aequitas,Footnote 91 but he assisted Triarius in ways that did not (strictly speaking) compromise his integrity. The praetor had considerable control over the conduct of trials in his court. Presumably Cato did not object when Triarius failed to visit Sardinia and called only one witness before comperendinatio; it is possible that the exercise of Cato's imperium prevented Scaurus spending his money until the trial was completed.Footnote 92 Most significantly, Cato seems to have helped Triarius to cut short the inquisitio.Footnote 93 According to the most widely accepted interpretation of Asconius, the prosecutors were given 60 days to carry out their investigations, that is, 30 days in each of Sardinia and Corsica – already quite a short period.Footnote 94 If that is correct, Cato must have agreed to bring forward the trial by a considerable margin, for it had not only begun but had actually finished before 60 days were up.Footnote 95 While technically within the praetor's prerogative,Footnote 96 it was an important concession which surely indicates Cato's sympathy with the prosecution. Not only had he changed the date of the trial but, in doing so, he gave Triarius a chance to complete the case before the elections, which by then had been postponed.Footnote 97 His actions must have been controversial.

In fact, Cato's conduct during Scaurus’ trial seems to have made him some enemies. Plutarch records one episode in which an angry crowd pelted Cato with abuse and missiles and drove him from his court.Footnote 98 They were protesting against the silent process with which Cato proposed to combat ambitus. It may be significant that the incident occurred in the extortion court, probably during Scaurus’ trial – a trial where ambitus was as much at issue as repetundae. Possibly Cato was thought to be abusing his office as praetor to pursue his anti-bribery agenda. Asconius reports another episode where the crowd threatened Scaurus’ prosecutors and compelled Cato to take a vote on calumnia.Footnote 99 These incidents occurred in close proximity and may have been connected. At the least they show the importance of these issues at this time – and of Cato's role.

III

The events of 54 demonstrated vividly the continuity of corruption between Rome and the provinces. Scaurus’ trial was a cause célèbre. So too was the coitio: the candidates wanted consulships and the consuls wanted provinces – or a cash equivalent. The link could not be more explicit.Footnote 100 But it was also a year of experimentation, in an attempt to find solutions. Cato took the lead in novel, often controversial ways, which serve to complicate conventional characterizations of him as a conservative obstructionist.Footnote 101 His success in 54 was confined to the tribunician elections. Looking ahead, however, Cato's innovations in 54 can be seen to have set the tone for the reforms enacted by Pompey as consul in 52. Shorter trials, stricter laws, and preventative measures wherever possible were all hallmarks of Pompey's legislation.Footnote 102 That Cato is found in this year advising the sole consul on his legislative programme is surely no coincidence.Footnote 103

Of particular interest in this connection is the lex Pompeia de provinciis of 52, which was designed to break the cycle of extortion and electoral corruption by requiring a gap between praetorship or consulship and provincial command.Footnote 104 The law was, in part, an anti-ambitus measure, prompted by the electoral fiasco of 54–53.Footnote 105 It would also have benefited the provinces.Footnote 106 Scholars have already discerned Cato's hand in this measure,Footnote 107 and the strategies that Cato employed in 54 reinforce their case. But there is more. The lex Pompeia confirmed a senatus consultum of 53.Footnote 108 It is possible that the idea behind it originated even earlier, in the decree de provinciis passed by the consuls of 54.Footnote 109 I submit the further hypothesis that the initiative came from Cato. Appius and Domitius, soon to enter their scandalous pact, are unlikely to have taken the initiative themselves. On the other hand, it would parallel Cato's method in the case of the silent process if he pursued reform through the consuls, one of whom was his political ally and brother-in-law.Footnote 110 It would also accord with Cato's known actions in 54 if he sought to address the problem of electoral corruption through a measure touching the provinces. Cato's conduct in 54 and the lex Pompeia of 52 seem to reflect a common way of thinking: ambitus and extortion were two parts of the same problem, thus requiring a coordinated solution.

APPENDIX: EVENTS IN 54 b.c.Footnote 111

Footnotes

*

Versions of this paper were presented to the Australasian Society for Classical Studies in Sydney and the Classical Association in Exeter. I would like to thank those who participated in discussion on each occasion, as well as Kathryn Welch, Martin Stone, Bruce Gibson, and CQ’s anonymous reader for their helpful comments on written versions.

References

1 E.g. Gruen, E.S., ‘The consular elections for 53 b.c.’, in Bibauw, J. (ed.), Hommages à Marcel Renard II (Brussels, 1969), 311–21Google Scholar; Courtney, E., ‘The prosecution of Scaurus in 54 b.c.’, Philologus 105 (1961), 151–6CrossRefGoogle Scholar.

2 Asc. 19C.

3 Cic. Q. Fr. 2.15.4 (= SB 19): quae quidem comitia si gratuita fuerint, ut putantur, plus unus Cato potuerit quam omnes leges omnesque iudices. Cf. Cic. Att. 4.15.8 (= SB 90).

4 Plut. Vit. Cat. Min. 44.5–7.

5 Dio Cass. 55.5.3; cf. 54.16.1 on Augustus’ law barring anyone who engaged in bribery from holding office for five years.

6 Cic. Att. 4.16.5 (= SB 89): senatus consultum quod hi consules de provinciis fecerunt, ‘quicumque posthac …’, non mihi videtur esse valiturum (‘the senatus consultum which the consuls have passed about the provinces, “whoever henceforth …”, does not look to me like it will be effective’). Nothing further is known about the measure, but a connection with ambitus is suggested by context: Cicero reports the decree between C. Cato's trial for electoral disturbances in 56 and his assessment of the four candidates’ chances for 53 (Att. 4.16.5–6 [= SB 89]). A possible parallel is the senatus consultum on provincial commands passed in 53, which was intended to reduce electoral competition (Dio Cass. 40.46.2); indeed, the two decrees may have been related (see below).

7 Cic. Q. Fr. 2.15.4 (= SB 19).

8 Cic. Att. 4.15.7 (= SB 90).

9 Cic. Att. 4.17.2 (= SB 91).

10 On the date, see Sumner, G.V., ‘The coitio of 54 bc, or Waiting for Caesar’, HSPh 86 (1982), 133–9Google Scholar, at 136–7.

11 Cic. Att. 4.17.3 (= SB 91).

12 Cic. Att. 4.17.4 (= SB 91).

13 Cic. Q. Fr. 2.16.2 (= SB 20).

14 Cic. Att. 4.17.3 (= SB 91); Plut. Vit. Cat. Min. 44.2–3. In Plutarch's version the process was directed at magistrates-designate (οἱ κατασταθέντες ἄρχοντες), whereas Cicero says it was to take place ante comitia. Plutarch may be confusing the tacitum iudicium with Cato's proposal concerning the praetors-elect in 55 (Cic. Q. Fr. 2.8.3 [= SB 13]) or perhaps with Athenian dokimasia (see n. 19, below).

15 Scholars have suggested that it dispensed with the role of prosecutor (Bailey, D.R. Shackleton, Cicero's Letters to Atticus, Vol. 2 [Cambridge, 1965], 215Google Scholar) or with the long speeches usual in regular trials (Fehrle, R., Cato Uticensis [Darmstadt, 1983], 190 n. 157Google Scholar).

16 Cic. Att. 4.17.3 (= SB 91).

17 It was intended to prevent the election of corrupt candidates and the people's hostile reaction suggests that it was also expected to curtail the distribution of money (Plut. Vit. Cat. Min. 44.3; cf. 49.3 on the elections for 51).

18 This would explain why the candidates, who had flouted a series of anti-bribery laws, were so alarmed by the proposal: Cic. Att. 4.17.3 (= SB 91).

19 One possibility is that it was modelled on dokimasia, the examination of an Athenian magistrate-elect with respect to formal qualifications and general fitness to serve ([Arist.] Ath. Pol. 55.2–5). The effect of apodokimasia was disqualification from office. Unlike dokimasia, the tacitum iudicium was to take place before the elections. None the less, Plutarch's description of Cato's proposal resembles the Greek process, particularly in the power of the jury to vote against a candidate even if he had no accuser (compare Plut. Vit. Cat. Min. 44.2 and [Arist.] Ath. Pol. 55.4). A iudicium reached without any specific accusation having been made might well be described as ‘silent.’ Note also Plutarch's use of εὐθύνας διδῶσιν. The phrase probably means simply ‘give an account’ (i.e. of the electoral campaign); however, it may be that the silent process adapted elements of both dokimasia and euthynai, the rendering of accounts after a magistrate left office ([Arist.] Ath. Pol. 48.4–5; Lys. 24.26). Cf. Cic. De or. 2.280 for an example of electoral accounts exhibited in an ambitus trial and Leg. 3.47 for Cicero's proposal to include a form of euthynai in his ideal constitution.

20 Plut. Vit. Cat. Min. 44.2.

21 Cic. Att. 4.17.3 (= SB 91); Sumner (n. 10), 137.

22 Cic. Att. 4.17.3 (= SB 91): magnus timor candidatorum. sed quidam iudices, in his Opimius, Veiento, Rantius, tribunos pl. appellarunt ne iniussu populi iudicarent.

23 Presumably a trinum nundinum after the decree: see Sumner (n. 10), 137.

24 Plut. Vit. Cat. Min. 44.3.

25 Cic. Att. 4.17.3 (= SB 91).

26 Cicero first mentions Cato's illness on 20 September, the day following the ludi Romani: Q. Fr. 3.1.15 (= SB 21). He was still ill at the end of the month and Cicero knew in advance that he would not attend the meeting on 1 October (Att. 4.17.4 [= SB 91]). He had recovered by 11 October: Q. Fr. 3.2.1 (= SB 22).

27 Cic. Att. 4.17.4 (= SB 91). Favonius was Cato's constant ally and Ateius had worked with them both in opposing the lex Trebonia in 55: see Dio Cass. 39.35.

28 Plut. Vit. Cat. Min. 44.3.

29 Cic. Q. Fr. 3.2.3 (= SB 22).

30 I retain the manuscript reading patrem over partem (‘part of him’) as emended by Manutius and adopted by Shackleton Bailey ([n. 15], 216). Scaurus relied heavily on his late father's reputation (Asc. 19C) and Cicero seems to have spoken of him at length during the trial (Asc. 20–23C). Cicero's joke that he had defended Scaurus’ father might allude to his client's guilt (see n. 71, below), and/or to the prosecution's attack on Scaurus senior. Shackleton Bailey's translation ‘a few days ago’ for paucis diebus illis looks like a slip.

31 F. Münzer, RE ‘Mucius’ (23), col. 446.

32 Shackleton Bailey (n. 15), 216–17.

33 Cic. Att. 4.17.4 (= SB 91).

34 Cic. Q. Fr. 3.2.3 (= SB 22), of 11 October. The elections were blocked at least until 21 October (Cic. Q. Fr. 3.3.2 [= SB 23]).

35 Terentius vetoed the bill (Cic. Att. 4.17.3 [= SB 91]), which would not have been necessary if the voting day had been voided by obnuntiatio. It is worth noting, also, that Scaevola's name is not among the numerous supplicatores at Scaurus’ trial (Asc. 28C).

36 See Appendix.

37 Cic. Q. Fr. 3.4.2 (= SB 24); Att. 4.18.4 (= SB 92). They were joined by the younger P. Servilius Isauricus, one of Cato's aemulatores (Cic. Att. 2.1.10 [= SB 21]). Other evidence points to amicitia between Cato and Scaevola: a contemporary Scaevola, probably identifiable as the tribune of 54, was a friend of Cato's nephew Brutus (Cic. Brut. 147, with Douglas, A.E., Cicero: Brutus [Oxford, 1966]Google Scholar, 118), and Cato was related to the family of Scaevola ‘the Pontifex’ (Plut. Vit. Cat. Min. 14.3), who may have been the tribune's grandfather (Eilers, C.F. and Milner, N.P., ‘Q. Mucius Scaevola and Oenoanda: a new inscription’, AS 45 [1995] 73–89Google Scholar, at 82–3). Scaevola's subsequent service with Ap. Claudius in Cilicia (Cic. Fam. 3.5.5 [= SB 68]; cf. Shackleton Bailey [n. 15], 217) is perhaps best explained by Scaevola's friendship with Brutus, Appius’ quaestor and son-in-law, rather than any close connection between Appius and Scaevola; Cicero's tone suggests the two were not on such good terms as Appius claimed.

38 We do not know how long he continued. On 21 October the elections were still blocked by obnuntiatio, surely Scaevola's (Cic. Q. Fr. 3.3.2 [= SB 23]). Dio Cass. 40.45.3 suggests that the elections continued to be obstructed by religious means well into 53.

39 Cic. Q. Fr. 3.3.2 (= SB 23): comitiorum cottidie singuli dies tolluntur obnuntiationibus magna voluntate bonorum omnium. Admittedly the candidates did not want the elections held either, but their reasons were different from Scaevola's: C. Memmius, for instance, was hoping for Caesar's return (Cic. Q. Fr. 3.2.3 [= SB 22], 3.6.3 [= SB 26]). Likewise, the fact that Scaurus had an opportunity to distribute bribes was a consequence and not the object of Scaevola's actions.

40 Read together, Dio Cass. 40.46.1 and Plut. Vit. Pomp. 54.3 suggest that it was on Cato's initiative in 53 that the Senate authorized Pompey to have elections held. Messalla and Domitius Calvinus were elected, as Cicero had anticipated in September 54 (Cic. Att. 4.17.3 [= SB 91]). By then, it seems, Cato had decided that even corrupt magistrates were better than no magistrates at all (see Plut. Vit. Cat. Min. 47.3).

41 Asc. 18C. See below on Triarius’ praenomen.

42 Through Cato's sister Servilia, who was very close to Triarius’ mother Flaminia: Asc. 19C.

43 L. Marius L. f., perhaps a relative of Cato's colleague in the tribunate, L. Marius, who joined him in passing the lex Porcia Maria regulating the award of triumphs (Val. Max. 2.8.1): see Gruen, E.S., The Last Generation of the Roman Republic (Berkeley, CA, 1974)Google Scholar, 333 n. 107.

44 Asc. 20C.

45 Asc. 18C, 28C.

46 See e.g. Courtney (n. 1) and the data collected by Marshall, B.A., A Historical Commentary on Asconius (Columbia, MO, 1985), 150–5Google Scholar. The results of prosopographical analysis are summarized and critiqued by Alexander, M.C., The Case for the Prosecution in the Ciceronian Era (Ann Arbor, MI, 2002), 101–2Google Scholar. Pompey's role was particularly ambiguous: he provided a written laudatio for Scaurus but his support was lukewarm (Asc. 19–20C, 28C), and around this time he also withdrew his support for Scaurus’ consular campaign (Cic. Att. 4.15.7 [= SB 90]; Q. Fr. 3.6.3 [= SB 26]).

47 Gruen (n. 43), 336–7, followed by Alexander (n. 46), 102–6.

48 The year of his consular campaign was the natural time to prosecute an ex-praetor. Extortion charges were usually laid immediately upon the governor's return from his province, which (following an ex praetura command of at least one year) was also the first year in which he was eligible to stand for the consulship. A survey of Alexander, M.C., Trials in the Late Roman Republic 149 bc to 50 bc (Toronto, 1990)Google Scholar shows numerous prosecutions of ex-praetors de repetundis. At least one, M. Aemilius Lepidus (cos. 78), was prosecuted, like Scaurus, in the year of his consular campaign, though the charge was dropped (Alexander [this note], no. 131). In other cases it is impossible to tell whether the defendant had consular aspirations which were affected or abandoned on account of the criminal charge; naturally, those who were convicted will not have gone on to the consulship, and it is normal to hear nothing of defeated candidates: Broughton counted only fifty or so for the whole of the Republic (Broughton, T.R.S., ‘Candidates defeated in Roman elections: some ancient Roman “also-rans”’, TAPhS 81 [1991], i–vi and 1–64Google Scholar). Alexander (n. 46), 106, endorses Gruen's view, even though his own earlier work provides the basis for questioning it.

49 Cic. Att. 4.16.6 (= SB 89); Asc. 28C.

50 Cic. Scaur. 31–7.

51 Presumably the coitio was formed after it became known that C. Claudius would not be standing for the consulship. See Marshall, B.A., ‘Faustus Sulla and political labels in the 60's and 50's b.c.’ Historia 33 (1984), 199–219Google Scholar, at 212. Courtney (n. 1), 154, doubts whether C. Claudius ever intended to stand for 53.

52 Cic. Q. Fr. 2.16.3 (= SB 20).

53 Cic. Q. Fr. 2.11.4 (= SB 15), c. 13 February 54.

54 The coitio reflected particularly badly on the consuls, e.g. Cic. Q. Fr. 3.3.2 (= SB 23): tanta invidia sunt consules propter suspicionem pactorum a candidatis praemiorum (‘such is the odium the consuls are in, owing to the suspicion that they have done a deal with the candidates’). Cicero, at least, was prepared to defend all four candidates.

55 Even Appius’ brother Clodius joined the defence (Asc. 20C) and, according to Cicero, spoke critically of Appius (Scaur. 37). Tatum, W.J., The Patrician Tribune: Publius Clodius Pulcher (Chapel Hill, NC, 1999), 233Google Scholar, explains Clodius’ involvement as ‘a foot in both camps’ for the Claudii Pulchri and a means for Clodius (soon to become a candidate for the praetorship) to distance himself from his brother's disreputable behaviour. Note also that Clodius seems to have been moving closer to Pompey in October (Cic. Q. Fr. 3.4.2 [= SB 24]), while Appius was acting against Pompey's interests by attacking Gabinius (Q. Fr. 3.2.3 [= SB 22]). See also Gruen, E.S., ‘Pompey, the Roman aristocracy, and the conference of Luca’, Historia 18 (1969), 71–108Google Scholar, at 101–3, on Appius’ independence.

56 By 11 October, Scaurus’ campaign had ‘gone cold’ (Scaurus refrixerat): Cic. Q. Fr. 3.2.3 (= SB 23).

57 Appius was not only consul but a former governor of Sardinia. The Sardinians may have appealed to him as patron: Alexander (n. 46), 100.

58 His father had served there: Asc. 18–19C. See also Greenidge, A.H.J., The Legal Procedure of Cicero's Time (Oxford, 1901), 460Google Scholar; Marshall (n. 46), 122.

59 Douglas (n. 37), 194; Cic. Brut. 265. In fact, some MSS give Triarius’ praenomen as ‘C.’ at Asc. 29C. Asconius’ description of Triarius (Asc. 18C) supports the identification, as does the fact that both men were family friends of Servilia: Asc. 19C; Cic. Brut. 266 (C. Triarius was a close friend of Servilia's son Brutus). Cicero's references to ‘Triarius’ without praenomen suggest that there was only one important Valerius Triarius in this period.

60 Cic. Scaur. 29.

61 Asc. 18C: adulescente parato ad dicendum et notae industriae.

62 Cic. Scaur. fr. g: congesta fuit accusatio magis acervo quodam criminum.

63 Cic. Scaur. 18: Poposcit, imperavit, eripuit, coegit (‘he demanded, he requisitioned, he seized, he extorted’).

64 E.g. the allegations concerning Aris and Bostar's mother (Cic. Scaur. 5–13).

65 Cic. Scaur. 21–2. Unfortunately, the part of Cicero's speech dealing with the frumentarium crimen is lost. Alexander (n. 46), 107, hypothesizes profiteering analogous to Verres’. The charge may have had particular significance in light of Pompey's grain commissionership. Cicero's brother had recently visited Sardinia on that business (Cic. Scaur. 30).

66 Alexander (n. 46), 107.

67 Asc. 20C; cf. 28C on Scaurus’ laudatores. Earlier in the year, the abuse of laudationes had been raised in the Senate (Cic. Q. Fr. 2.12.2 [= SB 16]). Scaurus’ was probably the sort of acquittal that prompted the prohibition on character testimony in 52 (Dio Cass. 40.52.2; Plut. Vit. Cat. Min. 48.4).

68 Cic. Scaur. 18–20; e.g. Cicero claims that it is impossible to prove whether a ‘gift’ was given voluntarily or not (19), but even voluntary gifts seem to have been forbidden by the lex Julia de pecuniis repetundis, if the relevant rules in the Digest reflect the Republican statute (e.g. Dig. 48.11.1, 48.11.6.1).

69 E.g. Cic. Scaur. 15, 20, 38–45. Cicero even tries to make the unanimity of the Sardinian witnesses an argument against their credibility (38).

70 Alexander (n. 46), 108–9.

71 Cic. Att. 4.15.9 (= SB 90). Indeed, if the patrem of the MSS is maintained (see n. 30), Cicero in Att. 4.17.4 (= SB 91) seems to imply that he could only defend Scaurus’ father. See also R.G. Lewis, Asconius: Commentaries on Speeches by Cicero (Oxford, 2006), 219.

72 For example, Cicero was obliged to explain Scaurus’ possession of a magnificent house: Asc. 26–27C. As proquaestor under Pompey, he was said to have behaved avariciously and accepted bribes from foreign kings: Joseph BJ 1.127–32. Asc. 18C seems to reflect general feeling that Scaurus had not been a model of virtue in Sardinia; cf. Cic. Att. 4.16.6 (= SB 89).

73 Asc. 18C.

74 Scaurus was worried: Asc. 19C; cf. Cic. Att. 4.15.9 (= SB 90).

75 Cic. Scaur. 23–8.

76 Cic. Scaur. 24: ‘Delata enim’, inquit, ‘causa ad me Romam est.’

77 Cic. Scaur. 17: Agmen tu mihi inducas Sardorum et catervas. However, Triarius seems to have had no written evidence: Cic. Scaur. 18–19.

78 Note that a magistrate-elect did not become immune until he actually entered office, as this passage shows; see also Weinrib, E.J., ‘The prosecution of magistrates-designate’, Phoenix 25 (1971), 145–50CrossRefGoogle Scholar, at 149.

79 If the prosecutors had spent (say) sixty days collecting evidence, Scaurus’ trial would not have commenced before the ludi Romani in September, and thus might not have been completed before the end of the year, even without the sort of delaying tactics used by Verres’ supporters in 70 (e.g. Cic. 2 Verr. 1.30). It seems that extortion trials could easily take three months (Brennan, T.C., The Praetorship in the Roman Republic [Oxford, 2000], 2.456Google Scholar) and, under the epigraphic law at least, normally could not be commenced after 1 September (Lex. rep. lines 7–8), though Gabinius was charged with extortion in October 54 (Cic. Q. Fr. 3.2.1 [= SB 22]). Triarius’ concern was justifiable. As Alexander (n. 46), 105, points out, Cicero had been equally anxious to complete Verres’ trial by the end of the year.

80 The trial in question is often dated to 114, following Scaurus’ consulship (e.g. Alexander [n. 48], no. 96), but the parallel suggested by Asc. 19C seems to require a trial following a praetorian command. Marshall ([n. 46], 124–5; Marshall, B.A., ‘Two court cases in the late second century b.c.’, AJPh 98 [1977], 417–23Google Scholar) would identify it with the prosecution of the elder Scaurus for repetundae by M. Iunius Brutus.

81 Scaurus was charged on 6 July, before the coitio was revealed or the silent process proposed. By the end of July Cicero suspected that the elections would drag on, but he nonetheless expected them to be completed before Scaurus’ trial: Cic. Att. 4.15.9 (= SB 90). The senatus consultum postponing the elections was passed shortly before Scaurus’ trial began (Cic. Q. Fr. 2.16.3 [= SB 20]).

82 Cic. Scaur. 30.

83 Cic. Att. 4.17.4 (= SB 91), quoted above.

84 Cic. Att. 4.17.4 (= SB 91): sed tamen, etsi uberior liberalitas huius, gratior esse videbatur eorum qui occuparant.

85 Surprisingly, no sureties were taken in extortion trials in this period unless and until a guilty verdict was reached (Cic. Rab. Post. 37). In theory, the provision quo ea pecunia pervenerit provided for the recovery of res repetundae from third parties (Cic. Rab. Post. 8), but it would be of little use in cases such as Scaurus’, where the recipients were Roman voters at large. It may be that Scaurus chose not to commit his money until the case was decided, or he may have been unable to obtain finance, as the prosecution made him a credit risk. A further possibility is that Cato placed some sort of ad hoc control on Scaurus’ property by virtue of his praetorian imperium. The seizure of property was among the regular forms of magisterial coercion (Greenidge [n. 58], 336–7) and the taking of pledges was a key feature of Cato's arrangement with the tribunician candidates (Plut. Vit. Cat. Min. 44.6). Note also that, during his mission to Cyprus in 58–56, Cato threatened his friend Munatius with pignora capere for refusing to obey orders (Plut. Vit. Cat. Min. 37.3: ἐνέχυρα λήψεσθαι).

86 While a magistrate-elect was not immune, in practice it was more difficult to secure the conviction of a designatus: Cic. Att. 4.15.9 (= SB 90); Weinrib (n. 78), 149 n. 8.

87 Cic. Scaur. 29. Triarius probably thought that Valerius, a Roman citizen, would be a particularly weighty witness.

88 Cic. 2 Verr. 1.29–31.

89 Asc. 29C. There were three votes against L. Marius and ten against each of the two other subscriptores, M. and Q. Pacuvius.

90 Asc. 19C: M. Catonem … metuebat admodum propter amicitiam quae erat illi cum Triario.

91 Asc. 20C.

92 See n. 85.

93 Cic. Scaur. 30.

94 Asc. 19C: Qui inquisitionis in Sardiniam itemque in Corsicam insulas dies tricenos acceperunt. The alternative – 30 days in total – would mean that Cato agreed to an extraordinarily short inquisitio, which likewise would be a significant concession to the prosecution. By way of comparison, Cicero says that 110 days was a ‘very short’ time (perexiguus) for an inquisitio in Sicily (Cic. 1 Verr. 6; 2 Verr. 1.30).

95 See Appendix.

96 Neither Asconius nor Cicero gives any indication that Cato acted improperly. Indeed, Cicero had cut short his own inquisitio in Sicily, using only 50 of the 110 days granted him, so enabling Verres’ trial to commence before the trial which Verres’ supporters had tried to interpose by requesting a 108-day inquisitio in Achaia (Cic. 1 Verr. 6; 2 Verr. 1.30). In 70, as in 54, the praetor must have agreed to the new schedule.

97 Scaurus’ trial began shortly after the decree delaying the elections. Cic. Q. Fr. 2.16.3 (= SB 20): comitia in mensem Septembrem reiecta sunt. Scauri iudicium statim exercebitur (‘the elections have been pushed back into September. Scaurus’ trial will proceed immediately’). This passage might just indicate that the trial had been brought forward, now that there was a chance of completing it before the elections.

98 Plut. Vit. Cat. Min. 44.2–3. This was not the only violent episode connected with the trial. Scaurus’ half-brother Faustus Sulla claimed that he was attacked by Scaurus’ electoral rivals shortly after postulatio (Asc. 20C).

99 Asc. 29C: Cato praetor, [Cicero] cum vellet de accusatoribus in consilium mittere multique e populo manus in accusatores intenderent, cessit imperitae multitudini ac postero die in consilium de calumnia accusatorum misit (‘the praetor Cato, when [?] wanted a decision taken on the accusers and many from the people shook their fists at the accusers, yielded to the ignorant multitude and the following day had the jury consider the question of false accusation by the prosecutors’). A textual problem here obscures the circumstances of the calumnia enquiry. The text as transmitted would mean that Cato wanted an enquiry, which would be hard to explain if, as I have argued, he sympathized with the prosecution. However, it seems clear from what follows that Cato acted against his will. Some change is therefore necessary, either emending vellet to nollet (Mommsen, T., Römisches Strafrecht [Leipzig, 1899], 494 n. 7Google Scholar) or supplying an alternative subject (‘Cicero’ is Clark's guess). From a legal point of view, Marshall (n. 46), 157, suggests that the praetor was required to put the question of calumnia to the jury as a matter of course (see also Greenidge [n. 58], 469); Lewis (n. 71), 231, argues that the initiative came from the defendant. The latter seems more likely, since Cato is described as yielding to pressure from the mob rather than legal obligation.

100 Cf. Dio Cass. 43.47.5 on the praetor L. Basilius, to whom Caesar gave a large sum of money in lieu of a province.

101 Thus Flower's recent assessment of Cato's ‘politics of constant obstruction’ and insistence on ‘narrow family tradition over constructive dialogue or innovation’ (Flower, H., Roman Republics [Princeton, NJ, 2010], 144–5Google Scholar) is not far removed from Mommsen's biting portrait of ‘the Don Quixote of the aristocracy’ (Mommsen, T., Römische Geschichte [Berlin, 1922 13], 3.166–7Google Scholar), though more positive appraisals are to be found as well.

102 See e.g. Gruen (n. 43), 233–9.

103 At Pompey's invitation: Plut. Vit. Cat. Min. 48.1–4; Vit. Pomp. 54.5–6. Plutarch specifically reports that Cato advised Pompey on his ambitus law (Vit. Cat. Min. 48.3). While Cato is usually thought of as an opponent of Pompey, cooperation was possible in 52. Note that Cato and his son-in-law M. Calpurnius Bibulus (cos. 59) had been instrumental in bringing about Pompey's sole consulship in the wake of Clodius’ death (Plut. Vit. Cat. Min. 47.3; Vit. Pomp. 54.4; Vit. Caes. 28.7; Asc. 36C; Dio Cass. 40.50.4; App. B Civ. 2.23.1). Plutarch (Vit. Pomp. 54.3) reports that Cato had earlier called on Pompey to restore order in 53.

104 Dio Cass. 40.46.2, 40.56.1. The law cannot be considered in detail here; for discussion, see e.g. A.J. Marshall, ‘The lex Pompeia de provinciis (52 b.c.) and Cicero's imperium in 51–50 b.c.: constitutional aspects’, ANRW 1.1 (1972), 887–921; Gruen (n. 43), 457–60; Brennan (n. 79), 402–3; Steel, C., ‘The lex Pompeia de provinciis of 52 b.c.: a reconsideration’, Historia 61 (2012), 83–93Google Scholar.

105 Dio (40.46.2) describes the measure as an attempt to curb electoral competition. See Steel (n. 104), 88–90, on the connection with the consular elections for 53.

106 See e.g. Gruen (n. 43), 459; Brennan (n. 79), 402; Steel, C., Cicero, Rhetoric, and Empire (Oxford, 2001), 224Google Scholar.

107 Bailey, D.R. Shackleton, Cicero's Letters to Atticus, Vol. 3 (Cambridge, 1968), 246Google Scholar; see also Gelzer, M., Cicero (Weisbaden, 1969), 232Google Scholar.

108 Dio Cass. 40.56.1.

109 Unfortunately, the content of the decree is unknown, but there is reason to think that it was concerned, in some way, with electoral corruption: see n. 6 above. Cobban, J.M., Senate and Provinces, 78–49 b.c. (Cambridge, 1935), 82Google Scholar, and Vervaet, F.J., ‘The scope of the lex Sempronia concerning the assignment of the consular provinces (123 bce)’, Athenaeum 94 (2006) 625–54Google Scholar, at 654 n. 102, suggest that it was a forerunner of the lex Pompeia. See also Steel (n. 104), 88 n. 21.

110 Domitius Ahenobarbus: see e.g. Plut. Vit. Cat. Min. 41. The silent process was also a consular motion, though not to the consuls’ liking. Cic. Att. 4.17.3 (= SB 91): consules, qui illud levi bracchio egissent, rem ad senatum detulerunt (‘the consuls, who had managed this very slackly, referred the matter to the Senate’).

111 This table follows Sumner (n. 10), 137–8, with additional dates from Asconius and Cicero.