I INTRODUCTION
A Roman army famously first ventured across the sea from Italy to Messana in Sicily to intervene in a dispute on behalf of the (Campanian) Mamertines against King Hieron II of Syracuse in 264.Footnote 1 The crossing brought Rome into conflict with the Carthaginians, who controlled much of western Sicily, and subsequently led to the First Punic War (264–241).Footnote 2 At the time, no one could have predicted how momentous this event would prove to be for the development of Roman imperialism overseas. Polybius claimed around one hundred years later that the war — which he describes as the ‘longest, most continuous and greatest’ — was fought precisely ‘for Sicily’.Footnote 3 This is certainly how it might have appeared with the benefit of hindsight: the resulting peace treaty, following the Roman victory in a decisive naval battle fought near the Aegates Islands (modern Egadi Islands), just off north-west Sicily, in 241, stipulated that Carthage had to evacuate Sicily completely.Footnote 4 Rome was left nominally in possession of the areas that had previously been Carthaginian-controlled — namely the parts that were outside of King Hieron II's Syracusan kingdom. The end of the war marked the beginning of Roman territorial overseas empire.
Yet, the Roman victory in the First Punic War did not immediately result in the annexation of western Sicily as a permanent prouincia — that is to say, a territorial or military or administrative command that was continually assigned to a Roman magistrate or promagistrate every year.Footnote 5 For Polybius, for instance, the control of Sicily meant only that the Romans were able to give orders there and ensure that those orders were obeyed.Footnote 6 Similarly, Sardinia did not become a permanent prouincia immediately after the Romans forced the Carthaginians to evacuate the island in 237 and, then, subdued a number of tribes there between 235 and 231.Footnote 7 Whilst two consuls and two praetors were elected each year during this period, the former were usually dispatched to the most important active military spheres (e.g. both consuls were sent to Illyria in 229), whereas at least one of the latter (if not both) would have been needed in Rome (and Italy).Footnote 8 The Senate could, therefore, only regularly designate both Sicily and Sardinia as prouinciae each year — alongside at least one, if not two, jurisdictions based in Rome/Italy — after it had decided to increase the number of praetors annually elected from two to four, most probably through a lex de praetoribus, several years after the subjugation of Sardinia, around 228.Footnote 9 Further Roman conquests in Spain during the Second Punic War (218–202) led to a similar law in 198, enabling the election of an additional two praetors so that magistrates could be sent to Hispania Citerior and Hispania Ulterior from 197.Footnote 10 As a result of these laws, the Senate consistently named Sicily and Sardinia — and, later, Hispania Citerior and Hispania Ulterior — as praetorian prouinciae from the late third and early second centuries.Footnote 11 Cicero looked back on these developments in describing Sicily as the ‘first’ of all the prouinciae (which were still regularly named) when he composed his Verrine Orations in 70.Footnote 12 The same could equally have been applied to Sardinia.Footnote 13
Modern scholars would unanimously agree that there were a number of de facto regular prouinciae that were named by the Senate from around 228 onwards.Footnote 14 However, Brennan and Ferrary — following an idea of Mommsen — have gone even further in providing an ingenious explanation for two passages from Livy's Ab Vrbe Condita that refer to the rôle of the people in altering regular praetorian provincial assignments in Sardinia and the Hispaniae.Footnote 15 They argue that there were specific provisions included in the leges de praetoribus from around 228 and 198 (above) which constitutionally fixed Sicily and Sardinia (from 227) and the Hispaniae (from 197) as praetorian prouinciae.Footnote 16 In other words, the Senate would have been bound to name these ‘fixed’ prouinciae as sortes (lots) for inclusion in the annual praetorian sortitio (drawing of lots), unless the people gave it permission to exclude one or more of them in a particular year. If correct, the laws would have seriously limited the freedom of the Senate to name the praetorian provincial assignments each year. As the same restriction did not apply to the two consular prouinciae, the ‘fixed’ praetorian prouinciae would almost certainly have been viewed in a different light.Footnote 17 Indeed, the existence of constitutionally fixed prouinciae would suggest that Rome had decided to maintain a permanent presence in Sicily and Sardinia as early as c. 228 and, then, later, in the Hispaniae from 198. Thus, these prouinciae would have been regarded as permanent possessions, which would have been likely to influence how the Romans conceived the territories associated with their prouinciae and their empire.Footnote 18
The purpose of this paper is two-fold: first, it challenges the theory of constitutionally ‘fixed’ praetorian prouinciae; and, second, it uses this as a means of exploring the Roman people's rôle in allocating prouinciae and, in particular, in arbitrating contentious senatorial decisions on provincial assignments. This will involve examining both the institutional framework underpinning the assignment of prouinciae and the domestic politics which affected this process. The paper will first examine the extremely limited evidence for the notion of ‘fixed’ prouinciae, comprising, in total, just two ambiguous passages from Livy's Ab Vrbe Condita (Section II). In contrast with the theory of constitutionally ‘fixed’ prouinciae — which is never explicitly attested in any ancient source — the hypotheses presented in this paper will be based on empirical research. We shall explore a number of cases, dating between 295 and 131, in which the people played a decisive rôle in determining the assignment of prouinciae after political disagreements in the Senate (Section III). On the basis of this evidence, the paper will then propose that the people were involved in the allocation of Sardinia in 208, and Hispania Citerior and Hispania Ulterior in 192, as briefly recorded by Livy, in order to forestall or arbitrate political disputes among the political élite over the assignment of these commands (Section IV). The people's involvement in the allocation of prouinciae — and, in particular, the relationship between ‘élite’ and ‘popular’ elements in this decision-making process — will be placed within the broader context of popular politics in the Roman Republic, which has been a topic of much debate, especially following the publication of Millar's articles from the mid-1980s in the Journal of Roman Studies.Footnote 19
II THE THEORY OF CONSTITUTIONALLY ‘FIXED’ PROVINCIAE: THE STATUS QUAESTIONIS
The notion of constitutionally ‘fixed’ prouinciae originates with Mommsen, who cites the evidence from Livy's record of the senatorial resolutions about the praetorian prouinciae of 208:Footnote 20
The other [non-consular] prouinciae were distributed among the praetors as follows: the urban jurisdiction to P. Licinius Varus; the peregrine jurisdiction and wherever the Senate should have voted to P. Licinius Crassus, the Pontifex Maximus; Sicily to Sex. Iulius Caesar; and Tarentum to Q. Claudius Flamen. Imperium was prorogued for a year for Q. Fulvius Flaccus so that he could hold Capua as his prouincia with one legion, which had previously belonged to the praetor T. Quinctius. Imperium was also prorogued pro praetore for C. Hostilius Tubulus so that he could succeed C. Calpurnius in Etruria with command of two legions. Imperium was likewise prorogued pro praetore for L. Veturius Philo so that he could retain the same prouincia Gallia with the same two legions which he had held as praetor. The same order, which was made for L. Veturius, was decreed by the Senate for C. Aurunculeius, who as praetor had held Sardinia as his prouincia with two legions, and a law concerning the prorogation of his imperium was proposed to the people. Fifty warships, which P. Scipio was to send from Spain, were added to the command for the protection of the prouincia.Footnote 21
Mommsen noticed that the people were asked to approve the Senate's decision to extend the command of C. Aurunculeius (pr. 209) in Sardinia, whereas they were apparently not involved in any of the other prorogations of imperium (ex senatus consulto) that year.Footnote 22 Accordingly, he suggested that the Senate had to consult the people in 208 in order to obtain an exemption from a law of around 228 — passed alongside the lex de praetoribus that enabled the election of two additional praetors each year — which had legally bound it to name both Sicily and Sardinia as praetorian lots every year from 227.
Mommsen's suggestion was followed, more recently, by Brennan and Ferrary, who added that the Senate would also have required a lex/plebiscitum to omit Hispania Citerior and/or Hispania Ulterior from the praetorian sortitiones from 197 onwards.Footnote 23 Ferrary explains that this was why both a senatus consultum and a plebiscitum were used to change the praetorian allotments of Hispania Citerior and Hispania Ulterior to the Bruttii and the fleet and Macedonia in 192:Footnote 24
The praetors then drew lots for their prouinciae: the urban jurisdiction was allotted to M. Fulvius Centumalus, the peregrine jurisdiction to L. Scribonius Libo, Sicily to L. Valerius Tappo, Sardinia to Q. Salonius Sarra, Nearer Spain to M. Baebius Tamphilus and Further Spain to A. Atilius Serranus. But the prouinciae of these last two were changed first by senatorial decree and then again by a vote of the plebs: the fleet and Macedonia were voted to Atilius, whereas the Bruttii were voted to Baebius. Imperium was prorogued for both [C.] Flaminius and [M.] Fulvius [Nobilior] in the Hispaniae.Footnote 25
Brennan explicitly differentiates between the so-called ‘fixed’ prouinciae above — the urban jurisdiction, the peregrine jurisdiction, Sicily, Sardinia, Hispania Citerior and Hispania Ulterior — which were usually allotted to praetors each year de iure and what he refers to as ‘special’ (i.e. irregularly named) prouinciae, such as the Bruttii and the fleet and Macedonia.Footnote 26 He suggests that the legal obligation to name the six ‘fixed’ prouinciae continued until the passage of the Lex Baebia in 181, which stipulated that four praetors should be elected in alternate years rather than six.Footnote 27 As a result of this law, Hispania Citerior and Hispania Ulterior were named as praetorian lots only every other year. Brennan and Ferrary argue that the Baebian Law allowed, for the first time, the omission of the ‘fixed’ (or ‘regular’) prouinciae from the praetorian sortitio without a lex or plebiscitum.Footnote 28 Even though the law was short-lived, they claim that it set an important precedent, which, in effect, abrogated the laws of c. 228 and 198 supposedly fixing Sicily, Sardinia, Hispania Citerior and Hispania Ulterior as praetorian prouinciae each year.Footnote 29 This would have meant that the Senate was no longer constitutionally bound to name any of the so-called ‘fixed’ prouinciae as lots each year after 181.
One might be sceptical that the fixing of two praetorian prouinciae as Sicily and Sardinia in a rigidly deterministic way would have been implemented as early as 228. As Lintott emphasizes in The Constitution of the Roman Republic, ‘It is significant that the best known and fundamental modern attempt to give an account of the constitution, Theodor Mommsen's Römisches Staatsrecht, is highly theoretical, in spite of the assembly of the source-material in the footnotes’.Footnote 30 Mommsen's suggestion concerning ‘die dauernd eingerichteten Provinzialstatthalterschaften’ certainly fits this description.Footnote 31 There have been various moves in modern scholarship away from the institutionalization of the Roman constitution towards viewing the political system as more fluid and evolutionary.Footnote 32 Indeed, the theory of constitutionally ‘fixed’ prouinciae has not remained unchallenged. Richardson rightly observes that, ‘… the single report in Livy of the details of the allotments in 208 is a slender foundation on which to base a theoretical distinction between “fixed” and “special” praetorian provinciae’.Footnote 33
However, Richardson's own arguments against the theory are not entirely convincing.Footnote 34 He first highlights that Livy gives no indication that there were votes of the people in the various other instances in the late third and early second centuries in which the so-called ‘fixed’ prouinciae (i.e. Sicily, Sardinia, Hispania Citerior and Hispania Ulterior) were omitted from praetorian sortitiones (and (pro)magistrates were prorogued with them instead).Footnote 35 As he acknowledges, though, the argument from silence is weak, since Livy might have simply omitted the record of votes by the people in the other cases.Footnote 36
Richardson next claims that the question about the prorogation of Aurunculeius’ imperium was posed only after the Senate had already omitted Sardinia from the praetorian sortitio and after the praetorian allotments had been made.Footnote 37 Accordingly, he puts weight on the following proposition: ‘If the decision which was made in the popular assembly was about the decision of the senate as to which provinciae were to be included in the allotment, this would surely take place before the allotments were made, not after it.’Footnote 38 We can imagine that the Senate first named the praetorian sortes and determined which magistrates/promagistrates would continue to hold their prouinciae for the year. Yet, we do not know whether Livy (or his source) maintained the chronology of what immediately followed this — i.e. whether it was the actual praetorian sortitio, as Richardson suggests, or the law confirming Aurunculeius’ prorogatio imperii.Footnote 39 In other words, the people may have been consulted about Aurunculeius’ imperium prior to the sortitio and the outcome of their decision may, therefore, have affected whether the Senate changed the name of one of the praetorian lots.Footnote 40 Even if the praetorian allotment took place before the vote on Aurunculeius’ imperium, it is still possible that the Senate regarded the vote as a formality and did not feel that it was necessary to hold up the sortitio. In the event of a negative vote, the Senate could have still opted to change one praetorian lot to Sardinia rather than repeat the entire sortitio.Footnote 41 With these considerations in mind, it remains entirely possible that the vote of the people determined whether Sardinia was allowed to be excluded from the list of praetorian prouinciae in 208.
Finally, Richardson tentatively suggests that the people may have been concerned with proroguing Aurunculeius’ imperium owing to their general involvement in approving prorogatio imperii.Footnote 42 However, although the people had customarily been involved in confirming the prorogation of imperium in the late fourth and early third centuries, the Senate appears to have gained exclusive responsibility for this at some point between 292 and 218 (the period covered by the (now lost) eleventh to twentieth books of Livy's Ab Vrbe Condita).Footnote 43 In any case, it would be very strange that the people were only mentioned with regard to the extension of Aurunculeius’ imperium and not the other magistrates (e.g. L. Veturius Philo) in 208 if they were still generally involved in prorogations at the time. Livy's language implies that a vote of the people was held for Aurunculeius with his prouincia Sardinia and not for Veturius with his prouincia Gallia.Footnote 44 There must have been something extraordinary in Aurunculeius’ case alone.
Despite Richardson's objections, Brennan and Ferrary must be right that we need a reason why a vote of the people was necessary in the specific case of Aurunculeius’ imperium alone. However, Ferrary goes too far in concluding that, ‘Le seule explication qu'on en ait pu donner est celle de Mommsen …’.Footnote 45 As we shall see in the following sections of this paper, viable alternative — and, arguably, more plausible — explanations for the evidence can be offered, which, at the very least, cast substantial doubt on the theory of constitutionally ‘fixed’ prouinciae.Footnote 46
III THE PEOPLE'S RÔLE AS ARBITRATORS
This section and the next will provide alternative explanations for the people's rôle in the allocation of prouinciae in order to demonstrate the weakness of the hypothesis first proposed by Mommsen and later expanded on by Brennan and Ferrary. They will suggest that the people may have been involved in the extension of Aurunculeius’ imperium in 208 — as well as the modification of the praetorian lots from Hispania Citerior and Hispania Ulterior to the Bruttii and the fleet and Macedonia in 192 — in order to forestall or arbitrate political disputes.Footnote 47
This counter-hypothesis has a distinct advantage in that it is grounded in modern understandings of how Roman politics functioned. In a series of articles from the mid-1980s, Millar famously championed the people's rôle in politics and, in particular, the power they were able to exert in the comitia.Footnote 48 He noticed that, ‘… problems over office-holding, and disputes between office-holders, were resolved either by legislation by an assembly, or by a trial before a popular court’.Footnote 49 As Hölkeskamp, among others, argues, though, Millar's emphasis on the people is too ‘one-sided’ and distorts the importance of the interrelationship between ‘popular’ and ‘élite’ elements within the ‘political culture’ of the Roman Republic.Footnote 50 In contrast with Millar, Hölkeskamp suggests that the Senate also functioned as an ‘arbiter of acute conflicts’ between magistrates.Footnote 51 As we shall see, there is clear evidence for both the Senate and the comitia acting as arbiters of disagreements among the political élite (and it is worth adding that societal pressures alone rather than formal institutions sometimes resolved disputes).Footnote 52 It is well-known that magistrates and tribunes of the plebs were solely responsible for calling meetings of the people (contiones) and proposing legislation to the comitia (or concilium plebis in the case of the tribunes). The key point is that the impetus for popular dispute resolution usually came from the Senate: there was not a dichotomy between ‘Senate’ and ‘people’. Cicero, for example, as consul, suggested that the Roman people act as arbitrators (following a contio) when he opposed the agrarian legislation of P. Servilius Rullus (tr. pl.) in the Senate in 63.Footnote 53 Roman politicians understood that they were able to make use of the people as arbitrators of their disputes and, in doing so, potentially legitimize or strengthen their own position. Indeed, North argues that this was the fundamental political rôle played by the people in the Republic:
The popular will of the people found expression in the context, and only in the context, of divisions within the oligarchy. Democratic politics in Rome was consequently a function of the degree and type of competition in progress between oligarchic families, groups or individuals. It is simply a fact that the ruling class accepted the arbitration of popular voting in certain extremely important circumstances, just as they accepted the power and success of families and individuals should be limited by the rotation of office, regular succession to commands, and so on.Footnote 54
Arguably, the important question is not to what extent the people's rôle was ‘democratic’ (which is such a loaded term), but rather why the political élite felt that it was sometimes desirable and/or necessary to gain popular approval for particular decisions (e.g. as Cicero suggested in 63).Footnote 55 One possible answer is that the Senate was able to use the people to mitigate the potentially harmful and divisive effects of élite competition, such as between individual senators over the chance to win military glory and the honours and prestige that could follow this.Footnote 56 The rationale for using the comitia in this way would have been to create what may be termed a senatorial-popular political consensus — by which I mean a general agreement among individual senators, especially the particular stakeholders in the debate, and with the people as a whole (which included senators and the politicians who claimed to be representing the interests of the populus and the res publica populi Romani), that the outcome of a vote was final and represented the best course of action, even if not everyone favoured it unanimously.Footnote 57 As we shall see, this was crucially important for maintaining political stability and the status quo of the élite.Footnote 58
Such a senatorial-popular consensus was sought on various occasions to forestall or mitigate disagreements over provincial commands.Footnote 59 I shall focus on the evidence for six political disputes dating from the early third century to the late second century. These examples will further elucidate the interrelationship between the Senate and people in the decision-making process and the importance of achieving a political consensus for mitigating the negative effects of élite competition. They may, in turn, also provide a key to understanding the legislation concerning the praetorian commands in Sardinia and the Hispaniae (and over the Bruttii and the fleet and Macedonia) in 208 and 192.Footnote 60
The earliest example comes from Livy's report of a disagreement in the Senate over the consular allotments in 295: the patrician senators reportedly wanted to assign Q. Fabius Maximus Rullianus (cos.) the prouincia Etruria without drawing lots, whereas the plebeian senators urged his colleague, P. Decius Mus (cos.), to insist on the use of the sortitio.Footnote 61 The case was brought before the people, who decided that Fabius should have the prouincia Etruria without drawing lots (i.e. extra sortem/sine sorte).Footnote 62
There is no need to reject the whole account as an invention by either Livy or his so-called ‘annalistic’ source/s.Footnote 63 Livy's sources clearly had access to authentic details of senatorial activities and what may be termed archival material.Footnote 64 Livy's records of this type of material are much more detailed for the latter part of the ninth book and the tenth book of his Ab Vrbe Condita — i.e. dealing precisely with the period in which the dispute between Fabius and Decius took place. As Cornell suggests, this implies that, ‘… there was a marked improvement both in the quality and quantity of the information available to Roman historians around the turn of the fourth and third centuries’.Footnote 65
The dispute between Fabius and Decius (and their supporters) took place only around a generation before the birth of Q. Fabius Pictor (the first Roman to write a history of Rome), who may have been able to speak to some of the senators involved.Footnote 66 Fabius Pictor was also the great-nephew of Fabius Rullianus, one of the main protagonists in the dispute of 295. It is most probable that he narrated an earlier dispute between his great-uncle and the dictator L. Papirius Cursor when the former was serving as the master of the horse and ignored the latter's advice not to engage the enemy in 325.Footnote 67 The dispute over the consular prouinciae in 295 may well have been part of the same ‘Fabian tradition’, especially given the popular favour shown to Fabius Rullianus. It follows that Livy would have been able to incorporate this family tradition (via Fabius Pictor) into his own history when recounting the dispute between Fabius Rullianus and Decius in 295.Footnote 68 We know that he made use of Fabius Pictor in his account of the following year.Footnote 69 Livy's possible use of the ‘Fabian tradition’ does not, of course, necessarily make his account more reliable, given that it could have been skewed in favour of Fabius Pictor's relative.Footnote 70 Nonetheless, it is reasonable to imagine that he would have been able to gain insights from Fabius and, perhaps, from other annalistic material into the fundamental issues at stake in the debate of 295.
Prima facie, this looks like a straightforward case whereby the people settled a dispute over which consul received the more desirable prouincia Etruria. However, there may have been another issue at stake in the disagreement. Livy reports that Decius complained of the Senate's injustice (iniuria) in seeking to assign a prouincia without using the sortitio, thereby circumventing the decisions of Fortune (arbitria fortunae) concerning the allocation of prouinciae:Footnote 71
All the consuls before him had drawn lots for their prouinciae, whereas the Senate was now giving a prouincia to Fabius without drawing lots.Footnote 72
The implication is that the proposal to assign a prouincia extra sortem did not follow the mos maiorum, which comprised various ‘rules of the game’ affecting how political events, such as provincial allocations, unfolded.Footnote 73 These (unwritten) ‘rules’ ensured that the consuls had an equal chance of winning the highest honours (for which, note especially Livy's reference to fortuna). In this case, as both consuls did not agree to allow the Senate to assign the prouinciae directly, there was an expectation (implied by Decius’ complaints) that the sortitio would be used to determine which consul acquired the prouincia providing the best opportunities to win military glory.Footnote 74 In comparison, M. Valerius Corvus (cos.) and M. Atilius Regulus Calenus (cos.) appear to have agreed that the former should be assigned to the war against the Sidicini extra sortem ‘lest there should by fortune be some miscarriage’ in 335.Footnote 75 The question of the mos maiorum — or the customary practices for allocating prouinciae — seems to have been an issue only when it suited one or more of the individuals involved in a disagreement; if there was no controversy, then the Senate could have presumably taken a decision to depart from the mos maiorum without worrying about obtaining a senatorial-popular consensus. The judgement of a ‘third party’ (i.e. the people as a whole) was required to settle the dispute in 295 and legitimize the decision to break with the established mos maiorum within this context only.Footnote 76
There was no need to ask the people to determine the allocation of prouinciae when both consuls mutually agreed to forego the sortitio without any disagreement in 205.Footnote 77 However, there was a fierce debate in the Senate after P. Cornelius Scipio, one of the two consuls of that year, wanted Africa to be named as his prouincia rather than Sicily.Footnote 78 Livy produced one speech for the preeminent senator Q. Fabius Maximus Verrucosus (cos. 233, 228, 215, 214, 209 and princeps senatus in 205) in opposition to naming Africa as a prouincia and another speech for Scipio.Footnote 79 According to Livy, Scipio's speech was received less favourably because it had been revealed that he would propose a law to the people if the Senate did not decree Africa as his prouincia.Footnote 80 Q. Fulvius Flaccus (cos. 237, 224, 212 and 209) reportedly asked the tribunes of the plebs to support him if he refused to express his opinion (as a senior consularis and ex-censor) given that he thought Scipio would ignore the outcome of a senatorial vote if it was not favourable to his wishes.Footnote 81 Livy reports that the tribunes intervened in the dispute by resolving that:
… if the consul [i.e. Scipio] permits the Senate to assign the prouinciae, we decide that he must stand by the vote of the Senate, and we will not allow a bill touching that matter to be brought before the people. If he does not permit, we will come to the defence of a man who refused to express an opinion on that matter.Footnote 82
As a result of this resolution, Scipio agreed to allow the Senate to settle the matter without interfering, and a compromise was reached: Scipio received Sicily as his prouincia, but was given permission to cross into Africa if he should consider it to be in the interest of the state.Footnote 83 In this case, Scipio was (presumably) discouraged from putting forward his own bill to the people not only owing to strong senatorial opposition, but also the threat of tribunician veto (intercessio).Footnote 84 As Flower observes, ‘Consensus systems typically deploy significant veto power (or other ways to obstruct business) in order to prevent controversial or divisive initiatives from gaining ground or even from being proposed’.Footnote 85 The unfavourable reception of Scipio's speech in the Senate, the opposition of Fulvius and the tribunes’ resolution, at least, in part, may have stemmed from the fact that Scipio's threat to go straight to the people contravened the mos maiorum.Footnote 86 It was generally accepted that the Senate determined the provincial assignments and, therefore, Scipio's stance breached a ‘collective consensus’ on the accepted practice concerning the definition of the prouinciae.Footnote 87 Consulting the people in order to bypass a senatorial decision was not part of the ‘rules of the game’.
Indeed, Cn. Cornelius Lentulus (cos.) also used his position as consul a few years later in 201 to block senatorial proceedings until he received Africa as his prouincia.Footnote 88 Two tribunes of the plebs reminded him that the people had already voted — ex auctoritate patrum — that Scipio should have imperium in Africa in 202!Footnote 89 The decision was ultimately left to the Senate following many contests both in the Senate and before the people:Footnote 90
The senators therefore under oath — for such had been the agreement — decided that the consuls should determine their prouinciae by mutual agreement or by lot, which of them was to have Italy and which the fleet of fifty ships …Footnote 91
The oath was almost certainly intended to add further weight to a senatorial consensus (that is, an agreement among senators that the outcome of the senatorial vote was the best and final course of action). Once again, this consensus, as governed by the mos maiorum, determined that the Senate was ultimately responsible for naming the two consular prouinciae and that it would then be for the consuls to decide whether they would agree among themselves how they would be allocated (comparatio) or whether they would draw lots for them (sortitio).
A similar situation arose when two tribunes of the plebs intervened in the consuls’ plan to draw lots for Macedonia and Italy in 197. The tribunes argued that T. Quinctius Flamininus, who had been assigned Macedonia as consul the previous year, had been delayed in leaving for his prouincia during his magistracy and was now in a position to end the war against Philip V of Macedon by the summer.Footnote 92 In other words, they proposed that Flamininus needed more time with his prouincia Macedonia and should not be replaced by one of the consuls.Footnote 93 Just as Scipio and Lentulus agreed to stand by the Senate's resolutions in 205 and 201, the tribunes were able to persuade the consuls to accept the Senate's decision (as long as they promised to do the same) in 197.Footnote 94 The actions of the tribunes (and, presumably, the prospect of tribunician veto) ensured, again, that there was a senatorial consensus (as defined above): the Senate decreed a prouincia Italia to both consuls and Flamininus’ imperium was prorogued until a successor should have arrived (ex senatus consulto).Footnote 95
It was agreed that the Senate should fulfil its traditional rôle in determining the provincial assignments without interference in 205, 201 and 197. There seems to have been a senatorial consensus that this is how the internal conflicts among the élite, who were competing for the best opportunities to win glory and further their careers, should be resolved.Footnote 96 However, there was a second recourse if this failed: if the individual consuls and/or tribunes had not agreed to submit to the wishes of the Senate as a body and if no compromise could be reached (and political deadlock ensued), there may have been no option but for the Senate to call upon the people to arbitrate, just as they did in 295 (above).Footnote 97
This is exactly what had happened in very similar circumstances when the plebs were asked to arbitrate a political impasse after Ti. Claudius Nero (cos.) and M. Servilius Pulex Geminus (cos.) wanted Africa to be named as a consular prouincia in 202 — just one year after P. Cornelius Scipio's command had been continued (pro consule) until the war there had been brought to an end!Footnote 98 (The consuls’ interest in this stemmed from the fact that Hannibal had sailed to Africa from Italy in 203.)Footnote 99 Unlike the disputes from 205, 201 and 197 when the consuls agreed to allow the Senate to choose the prouinciae without interference, Livy records that Q. Caecilius Metellus (cos. 206) was instrumental in preventing the Senate from making a final decision in 202.Footnote 100 This presupposes not only a difference of opinion in the curia, but also suggests that there was a political stalemate.Footnote 101 In this case, the Senate directed the consuls to urge the tribunes of the plebs to consult the people about whom they wished to carry out the war in Africa.Footnote 102 Although Livy does not provide further details about what prompted the decision to put a motion to the people, we can infer that the decision to consult the people stemmed from a disagreement in the Senate about whether one of the new (and clearly highly ambitious) consuls should take over the command of the war in Africa against the Carthaginians — including Hannibal — from Scipio (cf. the actions of Cn. Cornelius Lentulus (cos.) in 201 and both of the consuls in 197).Footnote 103
Finally, Cicero records in his Eleventh Philippic that there was a dispute over which consul should be entrusted with the war against Aristonicus (a pretender to the Attalid throne) in Asia in 131.Footnote 104 This must have been reasonably well attested, given that Cicero selected the episode as one example of several in which consuls rather than extraordinary promagistrates had been entrusted with important wars in the past.Footnote 105 The consul P. Licinius Crassus Mucianus (also the Pontifex Maximus) reportedly threatened his colleague, L. Valerius Flaccus (also the Flamen Martialis), that he would fine him if he left the city. This suggests that Flaccus had received the prouincia Asia (and, with this, the war against Aristonicus) in the sortitio.Footnote 106 Crassus clearly desired the command for himself and most probably claimed that Flaccus should not be allowed to leave the city as the Flamen Martialis.Footnote 107 P. Cornelius Scipio Aemilianus, who held neither a magistracy nor a promagistracy at the time, was even put forward as an alternative commander for the war.Footnote 108 It is reasonable to assume that the Senate was unable to reach an agreement on the matter and so, once again, the people were called upon to settle a political dispute over a provincial command: the people resolved that Crassus should be entrusted with conduct of the war against Aristonicus (and, therefore, the prouincia Asia), which, as far as we can tell, settled the disagreement.Footnote 109
The six cases discussed above indicate that there was a general consensus among the political élite that the Senate was responsible for the designation of prouinciae, which usually prevented competition getting out of hand. As we have seen, the protagonists involved in disputes in 205, 201 and 197 all accepted the Senate's overall decision as final. However, as the examples above demonstrate, the Senate had another option available to it if political deadlock could not be broken internally: it could direct a magistrate or a tribune of the plebs to ask the people to arbitrate and, thus, ensure that the political instability arising as a result of the divisive effects of élite competition could be mitigated. In this way, the people had an important function as ‘third party’ arbitrators in senatorial disputes in 295, 202 and 131.
IV THE PEOPLE AND THE PROVINCIAE IN 208 AND 192: NEW EXPLANATIONS
On the basis of the six cases explored in the previous section, we might hypothesize that the Senate asked the people to extend Aurunculeius’ command, and to change the two praetorian lots from Hispania Citerior and Hispania Ulterior to the Bruttii and the fleet and Macedonia, in order to acquire a senatorial-popular consensus (as defined earlier) for these decisions. One can imagine that such a consensus may have been sought out in 208 and 192 to forestall or to arbitrate disagreements, which may have also included some contention over breaking with the traditional praetorian provincial allotments.
There is, of course, no explicit evidence to support the theory that the people were used to arbitrate political disputes over the command in Sardinia in 208 and the modification of the praetorian lots in 192. One might argue that Livy would have referred to them if they had indeed occurred, given that he mentioned the debates over the consular prouinciae in 295, 205, 202, 201 and 197. However, he does not report every senatorial dispute and so it would not be entirely surprising that he provides details of the disputes in 295, 205, 202, 201 and 197 — which all involved important consular commands — and does not give any record of disagreements over the praetorian command in Sardinia in 208 and the changes to the praetorian assignments in 192.Footnote 110 He may not have had any information on political disagreements in 208 and 192: perhaps his source (presumably Valerius Antias) simply recorded the senatorial decrees and, then, gave the results of the votes — i.e. that the people simply confirmed the decisions taken by the Senate — rather than the reasons that led the Senate to consult the people in the first place.Footnote 111 Alternatively, even if his source/s did record the disputes, it does not follow that Livy would necessarily reproduce these details in his own account. For example, we learn from Cicero that there was a fierce debate between M. Pinarius Rusca (pr. 181) and the senior consularis M. Servilius Pulex Geminus (cos. 202) in the 180s over the proposal of a lex annalis by the former.Footnote 112 The information was available to Cicero, who took Rusca's response to Servilius as an example of allegorical phraseology, and was presumably still accessible to Livy.Footnote 113 Yet, Livy does not mention the disagreement or any attempts to pass a lex annalis before the Lex Villia Annalis of 180.Footnote 114 He also sometimes omits details of the political rôle played by the tribunes of the plebs, who could have vetoed the senatorial resolutions on Sardinia and the alterations to the praetorian lots of Hispania Citerior and Hispania Ulterior in 208 and 192.Footnote 115 The lack of evidence for disputes over the provincial assignments in 208 and 192 may, then, be explained by Livy's tendency to omit certain political events and/or the nature of historical writing, which invariably involves some selection of material.
However, the alternative suggestion that popular votes were intended to forestall disputes in 208 and 192 would also explain Livy's silence. If the votes prevented disagreements arising in the first place, then there would have been nothing for Livy to report. It is, therefore, necessary to consider next what sort of factors could have led to arguments and, hence, might have been anticipated by the Senate. This is important for pre-empting the potential argument against the above hypothesis that there would not have been any reasons, especially in 208, for serious disagreements which could have led the Senate to consult the people. It is also an important exercise in itself, as a means of elucidating some of the factors influencing élite competition in domestic politics. The purpose of what follows is not to assert what necessarily happened, but rather to highlight what could have been behind the Senate's desire to obtain a senatorial-popular consensus for the decision to prorogue Aurunculeius’ imperium in 208 and to change the praetorian lots of Hispania Citerior and Hispania Ulterior to the Bruttii and the fleet and Macedonia in 192.
First, the Senate may have consulted the people in order to forestall or mitigate the negative effects of competition between those officials who were affected by their decisions. We have seen that fierce élite competition was behind the senatorial disputes over the command in Etruria in 295, Africa in 202 and 201, Macedonia in 197 and Asia in 131. One can imagine that one (or a number) of the praetors of 208 wanted Sardinia to be named as one of the praetorian prouinciae instead of Tarentum, which would primarily have involved undertaking garrison duties under the supreme authority of the consuls.Footnote 116 There were arguably more opportunities to win military glory in Sardinia following a rumour that the Carthaginians were planning to cover the coasts of Italy, Sicily and Sardinia with two hundred ships.Footnote 117 The annalistic tradition preserves the record of the capture of around eighty transport ships by Cn. Octavius, a praetor in Sardinia, in 205.Footnote 118 An ambitious individual could well have sought similar fame a few years earlier.
Similarly, A. Atilius Serranus and M. Baebius Tamphilus — the two praetors allotted the Hispaniae — may have objected to their prouinciae being changed. They may well have thought that their careers would be better served by going to Spain, especially given that this was a period in which competition for the consulship was fiercer than ever owing to the increase in the number of praetors annually elected from 198 onwards.Footnote 119 There were significant political advantages associated with the commands in Spain at this time. The praetors would have received the title of praetor pro consule (or pro praetore pro consule after prorogation) if they had gone to Spain and would have been entitled to twelve lictors rather than the six customarily used by praetorian commanders.Footnote 120 This would have enhanced the prestige of the praetorian commanders assigned to Hispania Citerior and Hispania Ulterior, especially if they managed to win military success and were granted permission to triumph back in Rome and flaunt their status pro consule (rather than pro praetore).Footnote 121 In addition, there was a significant rise in praetorian triumphs from the Hispaniae in the early second century, which both Atilius and Baebius surely would have been aware of.Footnote 122 It is notable that C. Flaminius and M. Fulvius Nobilior, who had been allotted Hispania Citerior and Hispania Ulterior as praetors the previous year, won important victories in 192 and Fulvius even celebrated an ouatio (the so-called ‘lesser triumph’) in Rome the following year.Footnote 123 Baebius and Atilius, perhaps, reasonably assumed that they would have a greater chance of acquiring military gloria in Spain than they would by taking command of forces that would primarily have been charged with defensive duties.Footnote 124 This could have led them — alongside their supporters — to fight fiercely against the proposal to change their praetorian prouinciae of Hispania Citerior and Hispania Ulterior. Indeed, it is even possible that the friends (and/or relatives) of Flaminius and Fulvius supported the proposal to change the allotments so that they could continue their own quests for military glory in Spain, just as Flamininus had asked his friends and relatives to fight for his prorogatio imperii in late 197 (for 196).Footnote 125
Furthermore, it is possible that an individual or a group objected to the decision to break with the mos maiorum in not allocating ‘regular’ praetorian prouinciae to praetors in 208 and/or 192.Footnote 126 As discussed in Section I, there were a number of de facto regular prouinciae named by the Senate each year following the increase in the numbers of praetors annually elected in around 228 and in 198: Sicily and Sardinia and, then, Hispania Citerior and Hispania Ulterior were regularly named as praetorian prouinciae from around 227 and 197 respectively. Whilst there is no need to return to Mommsen's theory that the naming of these prouinciae was stipulated by specific laws, this certainly would have been customary by 208 and 192. It is doubtful that the Senate would have been concerned about acquiring popular support for breaking with the mos maiorum per se if there was a senatorial consensus that it was the right course of action. The custom of using the sortitio to allocate prouinciae was apparently not an issue when both consuls agreed to allow the Senate to assign their prouinciae extra sortem in 335.Footnote 127 However, a senatorial-popular consensus may well have been desirable if the Senate thought that diverging from the mos maiorum would cause disagreement or if this was actually used in an argument against their proposals concerning the provincial assignments in 208 and/or 192 (cf. Decius’ reference to the customary use of the sortitio within the context of the dispute in 295).Footnote 128 If that was the case, such a consensus would have legitimized the resolution in the eyes of all, especially those directly affected by the decision to break with the mos maiorum, which, in turn, would have maintained political stability.
A second possible reason for consulting the people in 192, aside from alleviating the potentially negative effects of élite competition, is that some senators may have been anxious about committing extensive military resources to the East.Footnote 129 There must have been some anxiety that war with Nabis of Sparta and Antiochus III was imminent in 192, even though the formal declaration of war was not made until the following year.Footnote 130 As a result, Baebius, who received a prouincia Bruttii, was assigned two legions from the previous year (i.e. the same number regularly assigned to consuls) and fifteen thousand infantry and five hundred cavalry from Rome's allies; whereas Atilius, who had been allotted the fleet and Macedonia, was instructed to build thirty quinqueremes, to launch any usable old ships from the naualia and to levy so-called socii nauales.Footnote 131 The two new commands not only comprised considerable military resources, but the Senate also anticipated that both Baebius and Atilius would cross over to Greece (though primarily in a defensive capacity).Footnote 132 It is even possible that the Senate recalled the opposition to the proposal to declare war against Philip V of Macedon eight years earlier in 200 and, hence, sought to confirm the people's support in advance of an actual vote on war in the East.Footnote 133 It is worth noting that Macedonia had already been designated as a prouincia when the people voted to reject the war against Philip V in 200.Footnote 134 The Senate may have been wary about pre-empting a popular vote on the declaration of war against Antiochus III and Nabis of Sparta when it decided to change Atilius’ prouincia from Hispania Ulterior to the fleet and Macedonia in 192. In any case, as Vervaet suggests, it remains possible that the Senate simply wished to obtain ‘popular endorsement’ (or the ‘strongest possible public legitimation’) for committing such vast resources, as well as the two praetors, to the East: ‘Exceptional circumstances thus led to a quite unusual procedure’.Footnote 135
V CONCLUSIONS
I have proposed in this paper that the Senate consulted the people over the command of Aurunculeius in 208 and the prouinciae of Atilius and Baebius in 192 in order to achieve a senatorial-popular consensus which either forestalled or solved disputes. One can imagine that such disputes would have been fuelled by élite competition over access to the prouinciae which were thought to provide the best chances for winning military glory and the honours and prestige which followed this. The fact that the Senate departed from the mos maiorum in not allocating regular praetorian prouinciae to praetors (Sardinia in 208 and Hispania Citerior and Hispania Ulterior in 192) would most probably have been an issue, if at all, only within the context of these disputes (or, perhaps, the prevention thereof).
These hypotheses must, of course, remain speculative. Nonetheless, they provide viable alternatives to the theory that a vote of the people was necessary in order to exclude so-called constitutionally ‘fixed’ prouinciae from the praetorian sortitio between c. 227 and the passage of the Lex Baebia in 181. They serve to underline just how insecure the evidence is for a de iure distinction between constitutionally ‘fixed’ and ‘non-fixed’ praetorian prouinciae. We no longer have to follow Ferrary's suggestion concerning the people's rôle in extending Aurunculeius’ command in Sardinia in 208 that, ‘Le seule explication qu'on en ait pu donner est celle de Mommsen …’.Footnote 136
Unlike the theory of constitutionally ‘fixed’ prouinciae — which is never explicitly attested in the surviving ancient sources — there is clear evidence for the people's rôle in determining the allocation of commands after political disputes (Section III). We have seen that the people were used to arbitrate following the breakdown of senatorial consensus over the assignment of the consular prouinciae in 295. This particular case highlights that there was fluidity in interpreting the various ‘rules of the game’ — as influenced by the mos maiorum — which provided a framework for governing élite competition.Footnote 137 Decius reportedly argued that the consular prouinciae were ordinarily allocated through the sortitio; thus, the vote of the people may have legitimized the Senate's decision to break with the mos maiorum in assigning the prouinciae extra sortem.Footnote 138 The dispute was settled by a senatorial-popular consensus — that is, a general agreement among senators, especially those directly involved in the disagreement, and with the populus Romanus as a whole, that the vote of the people represented a final decision, even if not everyone favoured it unanimously.Footnote 139 As Livy has Fabius tell the people during a contio prior to the vote, ‘… if they considered him worthy for the prouincia then they should give it to him; he had submitted to the decision of the Senate and would accept the authority of the people’.Footnote 140
The people's final decision (and the formation of a senatorial-popular consensus) also settled disputes over who should have the command in Africa against the Carthaginians in 202, and in Asia against Aristonicus in 131. In addition, the prospect of consulting the people was reportedly mooted following a clash over the designation of the consular prouinciae in 205 and would have presumably occurred also in 201 and 197 if an agreement had not been reached between the consuls and tribunes. Once again, the (potential) rôle of the people as arbitrators of senatorial disagreements was important in mitigating the harmful effects of élite competition over the assignment of prouinciae. This enabled the fluid constitutional system — which allowed for individuals to compete with each other — to function without breaking down.
It is important to stress that the impetus for the popular votes discussed above consistently came from the Senate. We have seen that the Senate was ordinarily free to designate the various prouinciae, including all of the praetorian sortes, each year during the Middle Republic. It was only in exceptional circumstances that the Senate consulted the people through a particular magistrate or a tribune of the plebs. The notion that the people's rôle was ‘democratic’ obscures the interrelationship between so-called ‘élite’ and ‘popular’ elements in the Roman political system: the Senate and the people arguably functioned, at particular times, together — taking into account a number of different ‘rules of the game’ — to maintain political stability and the status quo in Rome. One may further suggest that the failure of the Senate and the people to work together effectively was either, in part, responsible for or at least exacerbated political crises in the late Republic.Footnote 141
This may best be illustrated by the series of events leading up to and following the catastrophic march on Rome by L. Cornelius Sulla (cos.) and his army in 88. Sulla had drawn Asia as his prouincia — and with this the war against Mithridates — in the consular sortitio at the start of the year. Yet, P. Sulpicius Rufus (tr. pl.), ignoring the wishes of the Senate as a whole and its decision concerning the allocation of prouinciae, managed to carry a plebiscitum transferring the prouincia Asia to his new political ally C. Marius (cos. 107, 104–100 and 86).Footnote 142 In this case, the old (unwritten) ‘rules of the game’ — whereby the Senate would ordinarily determine all of the consular and praetorian prouinciae and would then resolve any subsequent disputes either internally or, if necessary, by using the people as final arbiters — were completely ignored (for which contrast especially the senatorial opposition and the threat of tribunician intercessio when it was thought that Scipio might propose a law to the people if the Senate refused to grant him Africa as his prouincia in 205).Footnote 143 According to Appian, Sulla and his colleague, Q. Pompeius Rufus (cos.), proposed a law soon after their capture of Rome stipulating that, ‘… no question should ever again be brought before the people which had not been previously considered by the Senate, an ancient practice which had been abandoned long ago …’.Footnote 144 Sulla, as dictator, having marched on Rome and defeated his enemies for a second time on his return from the East, passed an even more radical law curtailing the tribunes’ power to legislate and veto in 81.Footnote 145 The laws of 88 and 81 prevented the tribunes of the plebs bypassing the Senate as an advisory body (as Sulpicius had done in 88) and enforced the Senate's traditional right to decide whether the people should vote on certain proposals, such as those concerning the allocation of prouinciae.Footnote 146 Yet, both laws were short-lived:Footnote 147 after the restoration of the tribunes’ power to legislate in 70, divisions within the Senate were manifested, in part, in rival claims concerning whether the Senate or the people as a whole should allocate important military commands.Footnote 148
Serious disputes between individual politicians, who all claimed to be representing the interests of the populus and res publica populi Romani, were no longer settled by a general agreement among the protagonists involved that the people should serve as arbitrators if political deadlock could not be solved in the Senate and that a vote of the people represented a final decision, even if not everyone favoured it. Most famous, perhaps, are the numerous debates, starting in 51, concerning when C. Iulius Caesar should be replaced in his command in Gaul. The contemporary letters sent by M. Caelius Rufus (pr. 48) to Cicero in Cilicia between 51 and 50 provide some fascinating insights into the political turmoil in Rome.Footnote 149 The lingering question about what to do with Caesar's prouinciae — which would traditionally have been decided by the Senate and/or, in the event of a political impasse, by the people — features prominently in Caelius’ letter to Cicero from April 50:
As for the political situation, all conflict is directed to a single question, that of the provinces. As things stand so far, [Cn.] Pompeius [Magnus] seems to be putting his weight along with the Senate in demanding that Caesar leave his province on the Ides of November. [C. Scribonius] Curio [tribune of the plebs in 50] is resolved to let that happen only over his dead body …Footnote 150
In this case, the question of the prouinciae was never satisfactorily settled by the Senate or the people; and Caesar took the historic decision to lead his army across the Rubicon into Italy (and, in doing so, commence civil war) on 10 January 49.Footnote 151 The absence of senatorial-popular consensuses in the late Republic was a highly significant factor in the breakdown of the political system and crisis.Footnote 152
