The Lex VariaAuthor(s): Erich S. GruenSource: The Journal of Roman Studies, Vol. 55, No. 1/2, Parts 1 and 2 (1965), pp. 59-73Published by: Society for the Promotion of Roman StudiesStable URL: http://www.jstor.org/stable/297431Accessed: 05/01/2010 17:50

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THE LEX VARIA

By ERICH S. GRUEN

The outbreak of the Social War brought in its wake a furious succession of criminal prosecutions with important political implications. The wheels of 'justice' were set in motion by the notorious lex Varia, a criminal law passed on the motion of the tribune Q. Varius Severus Hybrida. It was not long before numerous prominent individuals came under attack and the Roman political scene was thrown into turmoil. The lex Varia will repay close scrutiny.

Modern scholarship has been content with the analysis of this measure delivered by Appian. Some time after the death of M. Livius Drusus, the tribune of 91 B.C., the equites endeavoured to make his liberal policy towards the Italians a ground for malicious prosecu- tion of their enemies, and to this end they induced Q. Varius to pass his law. The purpose was to bring the entire senatorial oligarchy under the odious charge of sympathy with the Italian insurgents and to entrench equestrian control of the state. Such is the version of Appian.1 It is certainly true that, as was by now customary, external crises were made the pretext for attacks upon political opponents.2 The charge of bearing responsibility, in some sense, for the outbreak of war could be stretched to fit a wide variety of activities. But a careful examination of the lex Varia and of the cases heard under it will demonstrate that Appian's judgment leaves much to be desired. Legal and political consequences have never yet been fully understood or analysed, and the law can shed much light on Roman internal struggles in this period.

The date of the lex Varia and of the tribunate of Varius should no longer be called into question. Although some scholars still prefer the year 9i,3 the terms of the law, as given by Asconius and Valerius Maximus, show that it was passed after the Social War was well under way.4 Cicero puts Varius in a context of magistrates belonging to the year 90.5 His tribunate was surely from December, 91, to December, 90, and the law passed probably in the early months of 90.6

More difficult than the dating is the problem of the precise nature of the lex Varia. Modern historians and jurists are almost unanimous in regarding it as a ' special law' establishing a quaestio extraordinaria.7 Dissenting voices have been few and largely unheard.

It is true that the special nature of the law seems implied in the application of it to a special category of individuals: de iis quorum ope consiliove socii contra populum Romanum arma sumpsissent.8 This description parallels closely the Mamilian rogatio of 109 B.C. which did set up a quaestio extraordinaria.9 On the other hand, Cicero refers to the measure as lex Varia de maiestate. This ought to mean that a number of crimes could technically fall within its purview.10 Now, a general law on maiestas, setting up a permanent quaestio, was already on the books. Saturninus had established the court by a lex Appuleia de maiestate probably in o03.11 The relationship between the lex Appuleia and the lex Varia obviously warrants investigation. To install a special court for a charge already covered by legislation

1 BC I, 37. 2 cf. the prosecutions under the Mamilian law in

109 (Sallust, Jug. 40), and the trials of Q. Servilius Caepio and Cn. Mallius in 103 (Gran. Licin. I3, Flemisch; ad Herenn. I, 14, 24; Val. Max. 4, 7, 3). Many more could, of course, be cited.

3 G. Bloch and J. Carcopino, Histoire Romaine ii (Paris, I940), 380; H. Hill, Roman Middle Class in the Republican Period (Oxford, I952), 136 ; L. Pareti, Storia di Roma iII (Torino, 1953), 536.

4 Asconius 22, Clark: ut quaereretur de iis quorum ope consiliove socii contra populum Romanum arma sumpsissent; Val. Max. 8, 6, 4: quorum dolo malo socii ad arma ire coacti essent.

5 Cicero, Brutus 304-5; cf. T. R. S. Broughton, The Magistrates of The Roman Republic In (New York, I952), 26; 30-I, n. 6-9.

6 See the arguments of P. Fraccaro, Opuscula (Pavia, I957) 2, 144, and I. Haug, Wiirzb. Jahrb. 2

(I947), 243-7. The date is accepted by Broughton, MRR II, 26-7.

7 cf. Th. Mommsen, Romisches Strafrecht (Leipzig, I899), I98; J. L. Strachan-Davidson, Problems of the Roman Criminal Law (Oxford, I912), I, 231; 239; H. Siber, Abh. Sachs. Akad. Wiss. 43 (1936), 52; Bloch-Carcopino, Hist. Rom. Ir (I935), 380; E. Gabba, Appiani Bellorum Civilium Liber Primus (Firenze, I958), 124.

8 Asconius 79, Clark; cf. Val. Max. 8, 6, 4; Appian, BC I, 37. 9 Sallust, Jug. 40, i : uti quaereretur in eos quorum consilio lugurtha senati decreta neglegisset . . .

10 Cicero, in the speech Pro Cornelio, quoted by Asconius 79, Clark. The meaning of maiestas was under dispute even in antiquity, as is graphically illustrated by the trial of C. Norbanus in 95 under Saturninus' maiestas law: ad Herenn. 2, I7; Cicero, De Orat. 2, 1 07; 197-201. 11 Broughton, MRR I, 565, n. 4.

and dealt with in a quaestio perpetua would be highly unusual.12 This would be enough to throw serious doubt upon the possibility of a special court, but there is even more compelling evidence. In 89 Q. Varius was condemned under his own law.13 That he, of all people, would have been attacked on the grounds of sympathy with the insurgents is unthinkable. In 88 came the prosecution of Cn. Pompeius Strabo, also under the Varian law.14 The hero of Asculum would hardly have been charged with aiding and abetting the enemy. It appears then that the measure of Varius was a general maiestas law, not a bill instituting a special court for a specific offence. The ground for proceedings against Varius was probably seditio because of forceful passage of his law against tribunician intercessio.15 A similar charge had earlier been levelled against C. Norbanus in 95 for violence and misuse of tribunician power in a case which fell under the lex Appuleia de maiestate.16 Strabo's trial requires more detailed discussion.17

Almost alone among modern scholars, J. Lengle has taken the stand that the lex Varia was a general law on the offence of maiestas.18 But Lengle's view that the lex Appuleia continued to operate alongside the lex Varia seems untenable. There is no certain parallel for two separate general laws on the same criminal offence which were simultaneously valid.19 Moreover, if Lengle's theory were valid, then Pompeius Strabo probably and Varius certainly should have been prosecuted under the lex Appuleia and not, as they were, under the lex Varia. The most reasonable conclusion is that Varius' law supplanted that of Saturninus. It is noteworthy that no further trials under the lex Appuleia are recorded after go. Presumably Varius' law will have incorporated the earlier terms of the lex Appuleia and added the specific provision that those responsible for the Bellum Marsicum would also be subject to the charge of maiestas.20 This would explain both Cicero's reference to it as a lex de maiestate, and the accounts of Asconius, Appian, and Valerius Maximus, who see it as directed against a specific category of individuals. The prosecutions of Strabo and Varius, therefore, no longer provide a difficulty. The defendants were tried under the lex Varia, but were doubtless charged with offences which that law had taken over from the earlier lex Appuleia de maiestate.21

Prosecutions under the lex Varia illustrate the unscrupulous use of the courts for political ends. The ancients themselves were not unaware of this.22 But it is important to avoid the error of Appian, who sees these prosecutions simply as an act of vengeance on the part of the equites. To interpret the events of 9I-88 merely as a struggle between the sena- torial and equestrian orders is to neglect the factional aspect of senatorial politics. Political allegiance shifted more rapidly and factions took on a more mobile and fluid character in the post-Gracchan period than had been true earlier. However, a factional structure remained a permanent feature of Roman politics down to the end of the Republic.23 That the Varian law was a mere instrument of the equester ordo is an over-simplification unwarranted by the evidence.

12 The only certain example is the lex Pompeia de vi of 52; sources in Broughton, MRR II, 234. The year of Pompey's sole consulship was, of course, hardly normal.

13 See below, p. 69. 14 See below, pp. 70 f. 15Appian, BC I, 37; Val. Max. 8, 6, 4; see

J. Lengle, Untersuchungen iiber die Sullanische Ver- fassung (Freiburg, X889), 35.

16 Cicero, De Orat. 2, 107-9; 197-203; Part. Orat. 104-5; Val. Max. 8, 5, 2.

17 See below, pp. 70 f. 18 Lengle, o.c. (n. 15), 32-6. Lengle has been followed now by H. Gundel, RE 15 (2), 389,' Varius,' n. 7. 19 Lengle cites the lex Lutatia and the lex Plautia de vi: o.c., 36. But the lex Lutatia was probably a temporary measure for a special offence and no longer in use when the second law was passed; see J. N. Hough, AJP 51 (I930), I35 ff.

20 For a similar view, now generally ignored, see A. W. Zumpt, Das Criminalrecht der r6mischen Republik II, i (Berlin, i868), 249-264.

21 The penalty under the lex Varia appears to have

been a capital one. Varius, in any case, was apparently executed; Cicero, De Nat. Deor. 3, 8x : summo cruciatu supplicioque Q. Varius, homo importunissimus, periit. Valerius Maximus' curious phrase sua lex eum domesticis laqueis constrictum absumpsit (8, 6, 4) should be taken in a metaphorical sense as ' hoist with his own petard '. Siber's view, Abh. Sachs. Akad. Wiss. 43 (I936), 52, that the lex Varia provided for com- pulsory exile is unconvincing. Cicero's reference, Brutus 305, to the exile of Cotta as est expulsus must be rhetorical. Cotta left the city before the court reached its decision; Appian, BC I, 37; cf. Mommsen, Strafrecht I98; E. Levy, Sitz. Heid. Akad. Wiss. 21 (1930-1), 2i.

22 Asconius 73, Clark : cum multi Varia lege inique damnarentur, quasi id bellum illis auctoribus conflatum esset; Appian, BC I, 37: oi i1rrEis Enipaccnv E acuKocpaviav TCrOV ?XOpv Tr wo-r AroiT-ra OaTOU xiOepEvot, KOIVTOV O&aplov 6niapXov wrectacav eicrnqyioaao0al KpicEIS Elvat... XwcTricraxvTr TOUS SuvCTroUS aT-raVTaS aCUTriKa EIS gyKAla T[iqpOOVOV OTra&eCOa l Kai 81K&cOrEV ,UV aOCroi.

23 cf. R. Syme, The Roman Revolution (Oxford, 1939), passim.

60o ERICH S. GRUEN

THE LEX VARIA 61

The grievances of the knights were clearly exploited, as was the Italian issue, by men like Q. Servilius Caepio and L. Marcius Philippus to mount an assault on their political inimici. But this does not mean that Varius was simply a representative of equestrian interests. The death of Drusus and the repeal of his judiciary law must in any case have eased the situation for most of the knights.24 It is not clear that the Italian question con- cerned them very deeply. Even if Gabba is right that the Social War was largely the consequence of prodding by Italian businessmen who sought a voice in Roman foreign policy, nothing follows from this with regard to the attitude of the Roman equites.25 The outcome of the trials themselves indicates that equestrian vengeance played no major role. Of the six known defendants under the Varian law while the equites controlled the courts, three at least were acquitted, namely M. Scaurus, Q. Pompeius Rufus, and M. Antonius. Even more striking is the fact that Varius himself was convicted by equestrian jurors under his own law, which hardly marks him as a champion of the knights. This event, significantly, goes unmentioned by Appian, who alone regards Varius as acting in the interests of the equites. The hypothesis of an ' attachment' of the equester ordo to Caepio is similarly unfounded.26 His own prosecution of Scaurus did not even end in conviction. That Philippus had any connections with the equites there is no evidence whatever. The trials under the Varian law are best regarded as attacks on the associates of M. Livius Drusus. Seen in this light they provide the best testimony on the personnel of his group.

Thefactio behind Drusus has already been investigated in part by E. Badian in a lengthy and stimulating article.27 Although some of his conclusions may be regarded as dubious, especially on the role of Marius in the 90o's, Badian has demonstrated the association of Drusus with families connected with the Caecilii Metelli. An examination of the trials heard under the lex Varia, which was clearly an attack on his supporters and friends, may offer even more telling evidence on the make-up of his factio. The prosecutions need not, of course, imply sympathy on the part of the victims with Drusus' Italian schemes. Association with Drusus was sufficient to arouse suspicion and warrant prosecution. It is significant that, although M. Scaurus and L. Crassus are specifically associated with Drusus' jury proposals, the tribune alone is connected with the programme of Italian enfranchisement.28 The Metellan group had certainly shown anything but sympathy with the claims of the socii in the past. The lex Licinia Mucia of 95 had been passed by two consuls from this group, Crassus and Q. Scaevola, and Crassus was also partly responsible for the censorial edict of 92 which had banned the Latin rhetors from Rome.29 Scaurus' contemptuous regard for non-citizens has been recorded in a difficult but intelligible fragment.30 It is not easy to believe that men with such strong views, so recently expressed, would have reversed themselves completely.31 The ancient evidence on Drusus suggests that he was sufficiently vain, hot-headed, and obstinate to be pushed to extremes by

24 It is too often forgotten that to speak of the equites as a bloc is seriously misleading, if not erroneous; cf. C. Meier, Gnomon 36 (I964), 64-70. Temporary unity might be achieved over control of business interests abroad or the debt-question at home, but hardly over factional struggles in the senate.

25 Gabba, Athenaeum 32 (I954), 4I-82. Similarly, there is little to warrant Carney's description of Varius as a Marian supporter, A Biography of Marius, Proc. Afr. Class. Ass. Supp. I (Assen, I96i), 52; Rh. Mus. o05 (I962), 326-7, n. 83. Marius did have vested interests in Spain (Carney, Num. Chron. 19 (1959), 8i) and Varius came of Spanish stock, but this is hardly enough to imply a connection. The only evidence for any association between these two men is Valerius Maximus' remark that Marius had C. Caesar Strabo killed in order to avenge Varius; 9, 2, 2. But Marius had much better reasons of his own; Diodorus 37, 2.

26 See R. Thomsen, Class. et Med. 5 (1942), 25-6. Florus' statement, 2, 5, I7, that Caepio supported the cause of the knights carries little weight. Even if correct it shows only that Caepio exploited eques- trian opposition to Drusus' jury reforms in 9g. Nothing follows with respect to the lex Varia.

27 Historia 6 (I957), 3I8-346; now reprinted with additions in Badian, Studies in Greek and Roman History (Oxford, I964), 34-70.

28 For the influence of Scaurus and Crassus, see Asconius 2 , Clark; Cicero, De Domo 50: M. Drusus . . . M. Scauro et L. Crasso consiliariis; cf. De Orat. 3, 2. For the sources on Drusus' programme generally, see Broughton, MRR II, 21.

29 Broughton, MRR II, I ; I7. 30 Cicero, De Orat. 2, 257. Fraccaro, Opuscula 2,

132-5, correctly saw this passage as a reflection of Scaurus' contempt for non-Romans. The objections of L. R. Taylor, The Voting Districts of the Roman Republic (Rome, i960), 142-3, have been decisively refuted by Badian, JRS 52 (I962), 207-8.

31 For the view that Drusus' plans were all of a piece and were advocated down the line by his supporters, see Carcopino, Bull. Ass. Bude 22 (I929), 3-23; Badian, Historia ii (i962), 223-5. Badian, recognizing the volte-face that this involves, believes that the Metellan factio yielded to the inevitable winds of change and sought to gain for the senate the credit for Italian enfranchisement.

opposition.32 When the Social War broke out, however, the enemies of the Metellan clique could and did use this against those who had been associated with Drusus in the past year. Asconius exposes the flimsiness of the circumstantial evidence used: men were condemned quasi id bellum illis auctoribus conflatum esset.33

The ' Metellan group ' may, at first sight, be a misleading expression for the factio behind Drusus.34 There was no prominent Metellus in the go's after the death of Metellus Numidicus and the (apparently) successful prosecution of Q. Metellus Nepos, consul in 98.35 But the far-reaching connections of the Metelli did not evaporate simply because there were no Metelli eligible for the consulship in the decade after Nepos' tenure. The Metellan domination of the curule offices in the three decades before go reveals their widespread patronage and influence. The Jugurthine and Cimbric Wars had, however, weakened the influence of this group, and the outbreak of the Social War opened to their enemies the avenue of a direct and massive assault.

The father of Livius Drusus himself, the anti-Gracchan tribune of 122, may have, at least in the latter part of his career, joined the influential figures who were gathering about the Metelli. He held the censorship in Io9, a year following significant Metellan victories at the polls, the consulship of Metellus Numidicus and the censorship of M. Scaurus. Drusus' brother-in-law was P. Rutilius Rufus, who, in the year of Drusus' censorship, went off to Africa as the legate of Numidicus.36 Since M. Livius Drusus the younger was a nephew of Rutilius Rufus, the notorious conviction of Rutilius by an equestrian jury in 92 may, as has long been recognized, have had no little effect upon his judicial reforms in 91. The Metellan connections are neatly confirmed by the principals involved in the Varian trials.

Most vexed of the trials under the lex Varia was the prosecution of the princeps senatus, M. Aemilius Scaurus. As a friend and counsellor of Drusus, Scaurus was a likely target, whatever his views on Italian enfranchisement. Q. Servilius Caepio, a vetus inimicus of Scaurus,37 apparently left no stone unturned to gain a conviction against him. It was probably in 91 that he had prosecuted Scaurus unsuccessfully on a charge of extortion and was in turn prosecuted by Scaurus.38 The explosive Italian situation, however, provided a more suitable opportunity. Scaurus was now indicted by Caepio under the lex Varia. This much is clear from the explicit statement of Cicero quoted by Asconius : ab eodem etiam lege Varia custos ille rei publicae proditionis est in crimen vocatus.39 It is confirmed by two extant fragments from Caepio's speech In M. Aemilium Scaurum lege Varia.40 However, there is more which indicates complexity and invites confusion. Cicero goes on to say vexatus a Q. Vario tribuno plebis est. Asconius, in a detailed commentary, explains that Caepio instigated Varius to summon Scaurus belli concitati crimine adesse apud se. This confrontation was not before the Varian quaestio but before the people, since Scaurus addresses his audience as vos, Quirites. The story is twice repeated in substantially the same form with the clear statement that Scaurus faced Varius ad populum.41 Relying on prestige and authority rather than argument, Scaurus swiftly won over the populace and Varius had no recourse but to dismiss the hearing. Was Scaurus then placed in double jeopardy ?

That there were two trials, the first before the people with Varius as prosecutor and the second before the Varian quaestio with Caepio as prosecutor, has had its exponents.42 Yet it strains credulity to believe that Scaurus could have been acquitted by the sovereign

32 For an analysis of Drusus' character and Broughton, MRR I, 545; for Rutilius' legateship,

references to the ancient material on him, see Pareti, see I, 547. Storia di Roma in, 520-3. The view expressed here, 37 Asconius 22, Clark. that Drusus' supporters drew back on the Italian 38 Asconius 21, Clark; Val. Max. 3, 7, 8; issue, has been argued by Bernardi, Nuov. Riv. Stor. H. Malcovati, Oratorum Romanorum Fragmenta, 28-9 (1944-45), 92-4, and Gabba, Athenaeum 31 2nd ed. (Torino, I955), I 67. (I953), 259-267. 39 Asconius 22, Clark. Camey, Rh. Mus. 105 33 Asconius 73, Clark. (1962), 316, wrongly states that Varius prosecuted 34 cf. Meier, Bonn. Jahrb.

I 6i (1961), 508. Scaurus under his own law.

3

5 The death of Numidicus may have come not 40 Malcovati, ORF 296. long after his return from exile in 98 ; cf. Cicero, 41 Val. Max. 3, 7, 8 pro rostris accusaretur . . . Ad Fam. i, 9, i6. He is, in any case, not heard from populus conmotus Varium . . . depulit. Vir. Ill. 72, I: again. On the trial of Metellus Nepos, see Asconius Scaurus senex cum a Vario tribuno plebis argueretur . . . 63-5, Clark; Apuleius, Apol. 66. ad populum ait.

36 For the relationship, see Val. Max. 8, I

3, 6; 42 L. Lange, Romische Alterthuimer 3 (Berlin, I 876),

Pliny, NH 7,

I

58. For Drusus' censorship, see io8; Fraccaro, Opuscula 2, 140-4.

62 ERICH S. GRUEN

people in assembly and then be prosecuted on the same charge before a quaestio. It is not surprising that no parallels can be cited for such a view. No less extraordinary, however, is the theory of Pais that the lex Varia set up a tribunal with Varius himself presiding and that this trial was held under the tribunal but before the people.43 This cannot warrant credence. It is surely no coincidence that Asconius here three times refers to Varius as tribune of the plebs. Never is he cited as quaesitor. It was doubtless in his capacity as tribune that Varius summoned Scaurus to answer the charge of collaborating with the enemy. A ' special tribunal' held before the people is unparalleled and there is no reason to con- jecture it here. In fact Asconius does not necessarily refer to a popular trial at all. Vexatus hardly means ' accused', and it is difficult to imagine a criminal prosecution dismissed by the mere words utri vos, Quirites, convenit credere ? The whole problem is immediately alleviated if Asconius is referring not to a criminal charge but to a contio called by the tribune.44 Varius was induced by Caepio to denounce Scaurus publicly in an effort to damage the reputation of the princeps senatus. The scheme back-fired but Caepio went on to file formal charges before the quaestio Variana. The outcome of this prosecution is not recorded, but it is a fair surmise that a conviction would hardly have escaped mention in Asconius' commentary. Scaurus had been acquitted by equites before.45 The bitterness of the knights had been aggravated but Scaurus still, apparently, had enough connections to remain unscathed.

Miinzer, rather oddly, believed that Caepio himself was arraigned before the courts under the Varian law.46 This is, of course, inherently unlikely, since the friends of Caepio were not under fire, and the lex Varia was itself, apparently, an instrument of his factio. If he were prosecuted, it would presumably have been in 89 when the tide seems to have turned and Varius himself was convicted. But Caepio was killed in action in go, so that this alternative is ruled out.47 The only piece of evidence mustered by Mfinzer is the fact that L. Aelius Stilo, a Roman eques who was an expert in composing other people's speeches, wrote a speech on Caepio's behalf. Because Aelius, in this fashion, also obliged C. Aurelius Cotta and Q. Pompeius Rufus, both of whom were tried under the lex Varia, Miinzer argued that Caepio too was a victim of this law. But Caepio is not said to have been tried under the Varian law, and since he was a defendant in at least two other trials, it is gratuitous to invent a third, uncited by the sources and unlikely in itself. That Aelius also composed orations for Pompeius Rufus and Cotta is of no account. A speech for Q. Metellus is noted in this context as well, but there is no suggestion that he was tried under the lex Varia.48

The prosecution of Scaurus in 90 represents, it seems, an attack on the most distin- guished member of the Metellan faction. Scaurus' career was probably promoted by this group from the beginning. Although a patrician, Scaurus was, for all practical purposes, virtually a novus homo. His consulship of I I5 lifted this branch of the Aemilii out of generations of obscurity.49 Even more striking is the fact that in the very year of his consul- ship, Scaurus was named princeps senatus by the censors.50 Prior to this there is no other known example of a princeps senatus who was not at least a patrician censor or ex-censor.51 It is perhaps no coincidence that of the censors of 1I5 who appointed Scaurus one was

43 E. Pais, Dalle Guerre Puniche a Cesare Augusto 47 ILS 29; Livy, Per. 73; Eutropius 5, 3, 2; 1-2 (Roma, 1918), 156-164. Orosius 5, I8, 4.

44 Argueretur, in Vir. Ill. 72, I i, need not bear the 48 For the speech on Caepio's behalf, see Cicero, technical meaning " accused " and could easily refer Brutus I69. This probably belongs to the maiestas to a denunciation at an informal contio. Only Val. trial of 95 ; see Cicero, Brutus I62. For the speeches Max. 3, 7, 8, uses the word accusaretur. But he refers on behalf of Cotta, Pompeius, and Metellus, see to this occasion the charge of accepting bribery from Cicero, Brutus 205-7. Mithridates. This probably reflects propaganda 49 Cicero, Pro IMurena 7, x6; Asconius 20; 24, brought up by Varius against Scaurus on this Clark; Bloch, Melanges d'histoire ancienne 25 (1909), occasion and related to his Asiatic embassy, but the 4-9; Pais, Dalle Guerre Puniche 147. reference to an actual trial is surely a confusion with 50 Sallust, Jug. 25, 4; Broughton, MRR I, 532. the earlier repetundae prosecution of Scaurus by 51 There may, of course, have been no patrician Caepio; cf. Badian, Athenaeum 34 (1956), 117-122. ex-censors alive at this time, but there were surely It is not to be taken as a genuine accusation in 90o. some patrician consulars, including Q. Fabius

45 In I6 (Cicero, Brutus 113 ; De Orat. 2, 280 ; Maximus, cos. I i6, and, more significantly, Q. Fabius Tacitus, Annals 3, 66), in 114 (Cicero, Pro Font. 38; Maximus Allobrogicus, cos. I2I and nephew of Malcovati, ORF i66), and 91 (Asconius 2I, Clark; Scipio Aemilianus himself. Malcovati, ORF I67).

46 F. Miinzer, Rdmische Adelsparteien und Adels- familien (Stuttgart, 1920), 300-I.

63 THE LEX VARIA

a Metellus.52 At some later date Scaurus married a Caecilia Metella, who, in this era of rapid political marriage and divorce, remained his wife to the end of his days.53 Scaurus' continued co-operation with members of the Metellan faction may be documented for the 9o's.54 After a successful acquittal in a repetundae case of 91, Scaurus, along with L. Licinius Crassus, urged jury reform upon young Livius Drusus.55 By 90 he had been censorius for nineteen years and princeps senatus for twenty-five. A conviction would have been a crippling blow to the Metellan bloc. But Scaurus had enough connections even among the business interests in Rome to gain acquittal.56 Proceedings were now undertaken against some of the other prominent members of this circle.

Among those tried under the lex Varia was young C. Aurelius Cotta.57 The relations of the Aurelii Cottae and the Metelli stretched back for at least two generations.58 L. Aurelius Cotta, consul in i44, had been defended in an extortion trial by Q. Metellus Macedonicus against a charge brought by Scipio Aemilianus.59 Another L. Aurelius Cotta, consul in i I9, co-operated with his colleague of that year, L. Metellus Delmaticus, in opposition to Marius' bill for narrowing the voting pens.60 Still another L. Aurelius Cotta, tribune in I03, was a friend of Q. Lutatius Catulus, and a supporter of Q. Servilius Caepio in his trial of that year.61 Thus C. Aurelius Cotta was born into a family of long-standing Metellan associations. His own relations and actions show no inconsistency with his back- ground. Like Drusus the younger, he was a nephew of Rutilius Rufus. His closeness to his uncle is indicated by the fact that the stern Rutilius, who declined the offers of the renowned orators Crassus and Antonius, alloted to young Cotta a role as defence counsel in his trial of 92.62 Cotta was a friend and protege of Crassus.63 Most significant is that Cotta was apparently expected to carry on the work of his great friend Drusus by securing the tribunate for 90.64 Cotta's defeat in this candidature and the victory of Q. Varius were signi- ficant portents.65 It was natural then that the enemies of Cotta should prosecute him under Varius' law. He underwent trial and, arguing in his own behalf, took the opportunity to defend his whole public career. An open denunciation of the jurors indicates that his con- viction was a foregone conclusion, but he withdrew into exile before the case was closed.66 Cicero's remark that Cotta eiectus est e civitate is clearly rhetorical.67 Cotta's speech was composed not by himself but by the renowned ghost writer, L. Aelius Stilo Praeconinus.68 It is hardly fortuitous that Aelius had been a close friend of Metellus Numidicus, whom he accompanied into exile in ioo, and that his speech-writing talents were utilized, as noted above, by other members of the Metellan group, Q. Metellus Celer, Q. Servilius Caepio, and Q. Pompeius Rufus.69 Cotta was not to return to Rome until after Sulla's victory in 82.70

Another condemnation under the lex Varia was secured against L. Calpurnius Bestia. Like Cotta, Bestia chose the avenue of voluntary exile. An earlier conviction by the Mamilian commission had already stained his reputation in I09, so that the outcome in 90 could hardly

52 It has been argued that this Metellus was L. Caecilius Metellus Delmaticus, the father-in-law-to- be of Scaurus, but the Fasti Antiates give his filiation as Q.f., which would apply rather to L. Metellus Diadematus, cos. 11 7; Broughton, MRR I, 532, n. i. In any event it was the Metellan faction which elevated Scaurus to the most distinguished position in the senate.

58 The date of this marriage alliance is uncertain. It may have been as late as 101 ; Miinzer, R6m. Adelsp. 28o-i.

54 See Badian, Athenaeum 34 (I956), 104 ff. = Studies 34 ff. 55 See above, n. 28.

56 For Scaurus' business interests, see Vir. III. 72, i-2; Cicero, De Orat. 2, 283; Pliny, NH 7, 128;

36, 116; Sallust, Jug. 15; 25; 2 8-30; 32; 40. 57 Appian, BC I, 37; Cicero, Brutus 205; 305;

De Orat. 3, II; [id.], Antequam iret in exsil. II, 27. 58 Miinzer, R6m. Adelsp. 245-8; Badian, Studies

36-9. 59 Cicero, Pro Murena 58; Div. in Caec. 69 ; Pro Font. 38; Val. Max. 8, i, ii ; Livy, Oxyr. Per. 55; Appian, BC I, 22.

60 Plutarch, Marius 4; Cicero, De Leg. 2, 38. 61 For the friendship with Catulus, see Cicero, De

Orat. 3, 42; 3, 46. For his support of Caepio in 103, see Cicero, De Orat. i, 229.

62 For the relationship, see Cicero, De Orat. i, 229; Ad Att. 12, 20, 2; De Nat. Deor. 3, 8o. For Cotta's appearance at the trial of Rutilius, see Cicero, De Orat. I, 229. For Rutilius' refusal of Crassus and Antonius, see Cicero, Brutus 115.

63 Cicero, De Orat. i, 30. 64 Cicero, De Orat. I, 25. That the circle around Drusus had laid careful plans for an extended struggle is indicated by Cotta's candidature for 90o and the candidature of another friend of Drusus, P. Sulpicius Rufus, already mooted for 89: adolescentes duo, Drusi maximefamiliares, et in quibus magnam turn spem maiores natu dignitatis suae collocarant, C. Cotta qui turn tribunatum plebis petebat, et P. Sulpicius, qui deinceps eum magistratum petiturus putabatur.

65 Cicero, De Orat. 3, II. 66 Appian, BC I, 37. 67 De Orat. 3, II ; cf. Brutus 305, and see above,

n. 2I. 68 Cicero, Brutus 205. 69 For his accompaniment of Numidicus, see

Suetonius, De Gramm. 2. For his ghost-writing on behalf of the Metellan group, see above, n. 48. 70 Cicero, Brutus 206.

64 ERICH S. GRUEN

be in doubt. He withdrew into exile before the case even came into court.71 Bestia's antecedents are unknown, but his connection with M. Aemilius Scaurus is clear. As consul in i i he was sent against Jugurtha and selected Scaurus, already consularis, as a legate. When accused of bribery by Jugurtha in o09, Bestia was defended by Scaurus, who was himself a quaesitor in one of the Mamilian courts and took considerable risk of involvement in coming to Bestia's assistance, since he was himself under some suspicion.72 It may be significant that Bestia, the first of that branch of the Calpurnii to reach the consulship, had been elected in I2 during the consulship of M. Livius Drusus the elder, also a member of this group, and of another Calpurnius, L. Calpurnius Piso Caesoninus. It is interesting to note that Piso had been prosecuted ca. i I, probably for extortion, and defended by both L. Licinius Crassus and Scaurus.73 The prosecution of Bestia under the Varian law is clearly another example of the attacks on the Metellan group.74

Also attacked by the lex Varia was the future consul of 88, Q. Pompeius Rufus.75 It was probably his father or grandfather Q. Pompeius who was consul in 141 and a bitter opponent of the Metelli, by whom he was prosecuted in 138. But the elder Pompeius also had strained relations with the friends of Scipio Aemilianus by abandoning C. Laelius in the consular elections for I41. He may have drawn closer to the Metelli in his later years. He served with Q. Metellus Macedonicus on the staff of L. Furius Philus in Spain in I36. In 133 he and Macedonicus both opposed Ti. Gracchus in Rome and in I31 he was named to the censorship with Macedonicus as his colleague, the first time that two plebeians had held that most distinguished office.76 The younger Pompeius, in any event, had close connections with the Metelli. As tribune in 99 he had sponsored a measure with L. Porcius Cato for the recall of Metellus Numidicus.77 He reached the praetorship in 9I, during which his one recorded act was a denial of his patrimony to the spendthrift Q. Fabius Maximus, son of Allobrogicus, the consul of 121.78 This may be significant, for Fabius was the great-nephew of Scipio Aemilianus, an old enemy of the Metelli.79 In 89 Pompeius was elected to the consulship for the following year with Sulla, who, shortly thereafter, married Metella the recent widow of M. Scaurus.80 Relations were further cemented by the wedding of Pompeius' son to Sulla's daughter by a previous marriage.81 Finally, Pompeius was a close friend of P. Sulpicius Rufus, who, as early as 9I, appears to have been the Metellan choice to carry on the work of Drusus in a prospective tribunate of 89.82 Pompeius Rufus, then, was clearly at the heart of the Metellanfactio.83 As praetor in 91 he doubtless promoted the programmes of Drusus, and it was probably for this that he was prosecuted under the lex Varia in go. L. Marcius Philippus himself, the enemy of Drusus, brought vehement testimony against him at the trial, but acquittal is implied in the fact that Pompeius could stand for the consulship in the following year.84

71Appian, BC I, 37. For the earlier conviction, see Cicero, Brutus 128; De Orat. 2, 283.

72 Sallust,Jug. 32, I; Vir.Ill.72, 5; Florus I, 36, 5. 73 Cicero, De Orat. 2, 265; 2, 285; cf. Fraccaro,

Opuscula 2, 139 ff.; Malcovati, ORF 258. 74 Bloch, Melanges d'histoire ancienne 25 (I909),

70-2, argued that since Bestia had been convicted in Io9 it was probably his son who was victimized by the Varian law. But a recall from exile would not be unprecedented. Recent years had seen the return of men like Popillius Laenas and Metellus Numidicus; Cicero, Brutus I28; Broughton, MRR II, 5. Even if Bloch is right, however, the younger Bestia would presumably have retained the family connection with Scaurus, so that this will not affect the argument made here.

75 Cicero, Brutus 304. 76 For the trial of Pompeius in 139, see Cicero,

Pro Font. 23 ; Val. Max. 8, 5, i. For the conflict with Laelius, see Cicero, De Amicit. 77; Plutarch, Apophth. Scip. Min. 8. For the service with Mace- donicus, see Val. Max. 3, 7, 5; cf. Dio, fr. 82. For the opposition to Ti. Gracchus, see Plutarch, Ti. Gracch. 14, 3; Orosius 5, 8, 4; Cicero, Brutus 8I ; cf. Appian, BC I, 13. For the censorship, see Livy, Per. 59; Broughton, MRR I, 500. Cf. D. C. Earl, Tiberius Gracchus, A Study in Politics, Collection Latomus 56 (1963), 98-Io3.

77 Orosius 5, I7, II. 78 For the date of the praetorship, see Cicero, De

Orat. i, i68. 79 Val. Max. 4, i, 12; Lucilius v, 232-4; xxvi,

637 (E. H. Warmington, Remains of Old Latin III, (Cambridge, I938), 73; 205). See F. Marx, Lucilii Carminum Reliquiae (Leipzig, I904), xxxiv-xxxv; xlvii; 87; 247; C. Cichorius, Untersuchungen zu Lucilius (Berlin, I908), 87-8; I34; I37-140; 278-9.

80 Plutarch, Sulla 6, Io: u-rrorros piv &toSEiKVUTOl CETC Koiv-roU nVowmrTiou, TrevTriKoVTa T-rq yEyovcbs, yCCa1i 86 y&tov ev8oOTOrcrov, KaCiKlfaV rfv MesrETXou OuyarrEpa -TOi apXitEppos.

81 Livy, Per. 77 ; Appian, BC I, 56 ; Veil. Pat. 2, 8, 6; J. Carcopino, Sylla ou la Monarchie manquee (Paris, I931), 25-9.

82 For the friendship with Sulpicius, see Cicero, De Amicit. 2. For Sulpicius' candidacy, see Cicero, De Orat. I, 25.

83 It should be noted that Pompeius, like others in the Metellan circle, was in the habit of having his speeches written by L. Aelius Stilo, the great friend of Numidicus; Cicero, Brutus 205-7.

84 Cicero, Brutus 304. J. Van Ooteghem, L. Marcius Philippus et sa famille (Memoires Acad. Roy. Belg., Namur, I96I), 134, believes that Philippus testified in Pompeius' behalf and not against him. But Cicero's testimony is explicit: Philippo, cuius in testimonio contentio et vim accusatoris habebat et copiam.

65 THE LEX VARIA

Philippus also bore testimony against another victim of the Varian law, a L. Memmius.85 The identity of this L. Memmius is not easy to determine. The bewildering number of Memmii in the short half-century between the Gracchi and Sulla has raised innumerable and unnecessary difficulties.86 The most famous of the Memmii in this period was, of course, the C. Memmius who had been a fervent popularis tribune in IIi and a vigorous accusator of members of the nobility in 109.87 This C. Memmius had been a prosecutor of Bestia in o09, and an opponent of Scaurus and of L. Crassus.88 He was later prosecuted on an extortion charge by Scaurus.89 Associated with him as a tireless prosecutor of the nobility had been his brother L. Memmius.90 To bring these Memmii into connection with the L. Memmius who was tried under the lex Varia involves awkward assumptions of a change of allegiance. Fortunately, recourse need not be had to such assumptions. Numismatic and epigraphic evidence shows that there were at least two branches of the Memmii, one of the tribe Galeria, and the other of the tribe Menenia. That the two branches did not co-operate on a political level suggests itself as a possible solution and seems to fit the evidence. The Galerian tribe apparently included thepopularis branch of the Memmii, whereas the senator from the Menenia attested for 129 may have been the father of the Varian victim.91

Thus the L. Memmius prosecuted under the lex Varia and attacked by Philippus need present no difficulties. His family may be presumed to have had Metellan connections later strengthened through associations with Sulla and Pompey in the 8o's and 70's. He is obviously the L. Memmius mentioned by Sisenna as a consiliarius of M. Livius Drusus and the father-in-law of C. Scribonius Curio the later consul of 76, who was himself under threat of prosecution by the Varian law.92 The fragment of Sisenna also calls Memmius a tribune of the plebs. This raises an immediate problem. The words tribunum plebis quem Marci Livi consiliarium fuisse callebant indicate that Drusus was already dead. Yet, if Memmius were tribune in 90, he could not have been liable for prosecution in that year. The possibility of a trial in 89 is remote, since the reaction had set in by that time, marked by the condemnation of Varius himself probably early in that year. It has therefore been conjectured that Memmius held the tribunate in 89.93 But if that is true it entails an acquittal for Memmius in go. Now the passage in Cicero, the only direct reference to Memmius' trial, does not state whether or not he was convicted.94 However, there is a curious remark in Appian that a certain ' Mummius the conqueror of Greece ' was condemned and exiled under the Varian law.95 That this cannot be L. Mummius Achaicus, the consul of 146, is evident. Riihl argued that Appian's error is best explained by conjecturing a son or grandson of the consul of 146, who retained the cognomen Achaicus. This has been accepted by many.96 But it is difficult to believe that immediate descendants of the conqueror of Greece held no curule offices while being prominent enough to suffer political prosecution. Since the other defendants under the lex Varia were all more or less distinguished individuals, an

85 Cicero, Brutus 304. 86 See Mommsen, Geschichte des R6mischen Miinz-

wesens (Berlin, i860), 597-9; Miinzer, RE 29, 604- 21, ' Memmius,' n. 4-I4; A. Biedl, Wien. Stud. 48 (I930), 98-107; Wien. Stud. 49 (I931), 107; II4.

87 Sallust, Jug. 27; 30-4. 88 For Memmius' enmity with Scaurus, see Cicero,

De Orat. 2, 283 ; with Crassus, see Cicero, De Orat. 2, 240; 2, 267.

89 Cicero, Pro Font. 24; Val. Max. 8, 5, 2. 90 Cicero, Brutus I36: C. L. Memmii . .. accusa-

tores acres atque acerbi. 91 L. R. Taylor, Voting Districts 233-4, rightly

conjectures that the two branches were on different sides of the political fence, although, consonant with her purpose, she does not develop the argument. The tribe Galeria is attested for a moneyer, L. Memmius, whose coins are dated to 103-IOI (E. A. Sydenham, Coinage of the Roman Republic (London, 1952), n. 574; K. Pink, The Triumviri Monetales and the Structure of the Coinage of the Roman Republic (New York, 1952), n. 52) and who was probably father of the two monetales of ca. 86-85 (Sydenham, op. cit., n. 712). He is perhaps brother of C. Memmius,

tribune III. For the L. Memmius, Cn. f. of the Menenia, a senator in 129, see IGRR 4, 262; A. Passerini, Athenaeum 15 (I937), 252-283. Among his descendants may well be the C. Memmius, praetor 58, who married Sulla's daughter Fausta; Asconius 28, Clark; cf. Miinzer, RE 29, 6io, 'Memmius,' n. 8. Another C. Memmius, perhaps of this branch, was a brother-in-law of Pompey, served with him in Sicily in 8 , and then served with Q. Metellus Pius and Pompey in the Sertorian war, in which he died in 75; Plutarch, Pompey 11, 2; Sert. 21, 2; Orosius 5, 23, 12; Cicero, Pro Balbo 5.

92 Sisenna, fr. 44; H. Peter, Historicorum Roma- norum Reliquiae (Leipzig, 1914) I, 284: Lucium Memmium, socerum Gai Scriboni tribunum plebis, quem Marci Livi consiliariumfuisse callebant et tunc Curionis oratorem. For the threatened prosecution of Curio, see Asconius 74, Clark.

93 G. Niccolini, I Fasti dei Tribuni della Plebe (Milano, 1934), 223; Broughton, MRR II, 38, n. 4.

94 Brutus 304. 95 BC I, 37. 96 F. Riihl, Rh. Mus. 56 (1901), 634-5; see now

Gabba, App. BC Lib. Prim. I25.

66 ERICH S. GRUEN

unknown Mummius becomes very awkward to explain. The obvious solution is that Appian's ' Mummius ' is a mistaken reference to Memmius to which he added ' conqueror of Greece .97 This will mean then that Memmius did not escape the vengeance of his enemies, an inference supported by the fact that he seems to have held no further offices. In that event a tribunate in 89 is, of course, excluded.98 But the text of Sisenna need not imply that Memmius held the tribunate after the death of Livius Drusus. Tribunum plebis quem Marci Livi consiliarium fuisse callebant could mean that he had been a counsellor of Drusus while tribune of the plebs. This provides a happy solution. Memmius would then have been tribune in 91 as a colleague and supporter of Drusus, and prosecuted as such in 90. This is strongly confirmed by Cicero, who mentions Memmius in a context with Pompeius Rufus, praetor 9I, and L. Marcius Philippus, consul 9I, and before a section in which he gives a number of individuals who had held office in 90.99 Memmius, therefore, like Cotta and Bestia, suffered condemnation.

One final trial is recorded for 90, that of M. Antonius, the consul of 99 and censor of 97. This prosecution should stamp Antonius also as a member of the factio around Livius Drusus. Yet Badian has argued that Antonius was a supporter of Marius in the 9o's and an opponent of the Metellan group, a view adopted now by Carney.100 The evidence does not bear scrutiny throughout. The activities of Marius in the 90o's indicate not so much implacable hostility to the Metelli as an effort to reach some form of accommodation after the embarrassing consequences of Marius' sixth consulship.101 The negative testimony of Cicero that Antonius, in his consulship of 99, made no effort to promote the recall of Metellus Numidicus is not conclusive.102 Saturninus was dead but populares tribunes like Sex. Titius and C. Appuleius Decianus were active in that year.103 One proposal to recall Numidicus had already been successfully vetoed.104 The situation was perhaps too delicate to press for his return at that point. Antonius' defence of men like M'. Aquillius and M. Marius Gratidianus, who had Marian connections, indicates that Marius had sought the assistance of Antonius who, with Crassus, was the most sought-after defence counsel of the day.105 This does not imply hostility between Antonius and the Metellan faction. Antonius was a close friend and political associate of Crassus.106 His connections with Rutilius Rufus are indicated by the fact that both he and Crassus offered to defend Rutilius in 92.107

Badian's case rests largely on the trial of C. Norbanus, who was prosecuted in 95 by P. Sulpicius Rufus and M. Scaurus and defended by Antonius.108 Yet it is this very trial which proves the reverse of Badian's argument. Antonius was clearly not expected to take the case. An attack by the Metelli on Norbanus for his activities in 103 certainly had important political connotations and Antonius was not anxious to appear as defence counsel. That he was induced to do so is due only to feelings of obligation towards his ex-quaestor Norbanus.109 Antonius was compelled to defend his very appearance as counsel for the accused by the plea that he was acting pro meo sodali qui mihi in liberum loco more maiorum esse deberet.110 His contemporaries regarded Antonius' actions as dishonourable and it is

97 Hill, Roman Middle Class 137, n. 3. 98 Of course, Memmius' tribunate can be elimi- nated altogether by emendation. Roth suggested altering L. Memmium, socerum Gai Scriboni tribunum plebis to tribuni plebis ; Peter, HRR I, 284, followed by Biedl, Wien. Stud. 48 (1930), 100-3. A solution may, however, be possible without recourse to emendation, as suggested in the text.

99 Brutus 304-5. 100 Badian, Studies 46-50 ; Carney, Wien. Stud. 73 (1960), 10o7-8; A Biog. of Marius 46-52.

101 This warrants fuller treatment in a separate study.

102 Post Red. ad Quir. I i. 103 Broughton, MRR II, 2, 4-5. The chronology

is confused but Decianus' tribunate should probably be dated to 99; see Gabba, App. BC Lib. Prim. i 0o-I Badian, Athenaeum 37 (1959), 300. Contra: Niccolini, Fast. Trib. Pleb. 204; Carney, A Biog. of Marius 46, n. 216; Rh. Mus. 105 (I962), 306. 104 Orosius 5, I7, II.

105 For the trial of Aquillius, see Cicero, Brutus

222; De Orat. 2, I24; 2, I94-6; Verr. 2, 5, 3; De Off. 2, 50; Pro Flacc. 98; Livy, Per. 70; Quint. Inst. Orat. 2, 15, 7; Apuleius, Apol. 66. For the case of Gratidianus, see Cicero, De Orat. I, 178 ; De Off. 3, 67.

106 Cicero, De Orat. I, 24: M. Antonius, homo et consiliorum in republica socius, et summa cum Crasso familiaritate coniunctus.

107 Cicero, Brutus 11 5. 108 Sulpicius is given as the prosecutor and M.

Antonius as defence counsel in Cicero, De Orat. 2, 89; 2, I07-9. Sulpicius is mentioned in this con- nection also in De Off. 2, 49, and by Apuleius, Apol. 66, amidst a list of cases involving young men making a reputation at the bar. Cicero has Antonius recapi- tulate his arguments for the defence; De Orat. 2, 197-203. The appearance of Scaurus is noted in De Orat. 2, 203, and Val Max. 8, 5, 2. On Sulpicius' connections, see below, p. 72.

109 For the quaestorship of Norbanus, see Broughton, MRR I, 569. 110 Cicero, De Orat. 2, 200.

67 THE LEX VARIA

most revealing that his friends even sought to make excuses for his appearance on behalf of

Norbanus.l11 This evidence surely does not suggest that Antonius was a recognized Marian and a supporter of Marius' interests against the Metelli. On the contrary, the implication is that Antonius had strong connections with the group which prosecuted Norbanus, and that his appearance on Norbanus' behalf was a shock which itself required a stringent and, to his contemporaries, a not altogether convincing defence.112 Antonius is at pains to demonstrate that his defence of Norbanus is on purely personal and not political grounds. The contrast is significant. The trial does not seem to have produced any breach with the Metelli. Cicero's De Oratore, set in 9I, shows friendly relations between Antonius and Sulpicius Rufus, the prosecutor of Norbanus.

It is not surprising, therefore, that M. Antonius was prosecuted under the lex Varia. Antonius conducted his own defence, but the outcome is not reported.ll3 He was in Rome in 87 when he was sent on a mission with the two Catuli, urging Metellus Pius to end hostilities with the Samnites.114 This implies an acquittal. Cicero affirms that in 90 Antonius was away from Rome.115 In the context this may indicate that he was serving in the Social War.116 But he is not mentioned in the list of legates given by Appian.117 Cicero notes that Hortensius was a miles and a tribunus militum, and that Sulpicius was a legate, but for Antonius says merely aberat. Possibly, therefore, Antonius was not in a command position in the Bellum Marsicum; in any event, Cicero would certainly not have spoken of condemnation and exile simply as aberat. The acquittal of Antonius may be regarded as virtually certain.

The tally for the men behind Varius, in the recorded trials, was therefore fifty per cent: three convictions and three acquittals. The prestige of the princeps senatus Scaurus and the censorius Antonius must have been influential in their escapes. The third acquittal was that of Q. Pompeius Rufus, who held the praetorship and was probably already linked to Sulla by marriage. Of the three men apparently condemned, L. Memmius was possibly just tribunicius, L. Aurelius Cotta was not even that and had just suffered a repulse at the polls, and the third, L. Calpurnius Bestia (or his father), already had a tarnished reputation. These facts will go far to account for the results of their prosecutions.

Before the end of that bitter year of 90, a moderate reaction had set in against judicial excesses. There were perhaps more trials than are recorded in the sources.118 The serious- ness of the military situation and the indignation felt at the Varian witch-hunt may even have suspended procedure under the lex Varia for the latter part of the year.119 Late 90 also saw the passage of the lex Julia granting citizenship to those who had remained loyal to Rome.120 Obviously the use of the Italian war for purposes of attacking political enemies in Rome was no longer feasible in this atmosphere. The next application of the Varian law was against Varius himself.

That Varius was prosecuted in 89 is clear from Cicero.121 It is most likely that the trial came early in the year, shortly after Varius lost his tribunician immunity. His con- demnation expressed the resentment felt against the misuse of judicial processes. It is often assumed that the trial of Varius did not occur until after the lex Plautia altered the composition of the courts in the interests of the nobility.122 This conjecture is based largely

111 Cicero, De Orat. 2, I98: ViX satis honeste 117 BC I, 40. This is not conclusive evidence, how- viderer seditiosum civem ... defendere ; De Orat. 2, ever. Appian's list is not complete. Sulpicius, 202: Ut illud initio, quod tibi unum ad ignoscendum specifically named by Cicero, Brutus 304, as a legate, homines dabant, tenuisti, te pro homine pernecessario, is not included. quaestore tuo, dicere. 118 cf. Asconius 73, Clark: cum multi Varia lege

112 For some trenchant comments on this, see inique damnarentur. Meier, Bonn. Jahrb. i6i (I96I), 510, who, however, 119 This is a possible interpretation of Asconius tends to throw out the baby with the bathwater. See 74, Clark: senatus decrevit ne iudicia, dum tumultus now M. Gelzer, Kleine Schriften (Wiesbaden, I962), Italicus esset, exercerentur. But see Cicero, Brutus 304. I, 2i8-19.

120 Cicero, Pro Balbo 2I ; Appian, BC I, 49; 113 Cicero, Tusc. Disp. 2, 57. Gellius 4, 43. 114 Granius Licinianus I9, Flemisch. This notice, 121 Brutus 305: consequente anno Q. Varius sua lege

incidentally, also helps to verify the Metellan con- damnatus excesserat. nections of Antonius. 122 cf. e.g., H. Last, CAH ix, I96; Bloch-

115 Brutus 304. Carcopino, Hist. Rom. II, 400; Hill, Roman Middle 116 This is the construction put upon the passage Class 138.

by Miinzer, RE 2, 2591, ' Antonius,' n. 28; so also

Badian, Studies 56.

68 ERICH S. GRUEN

on the commonly held assumption, as earlier noted, that the struggles of these years were simply between senate and knights.123 That this is patently false has been demonstrated by the fact that equestrian jurors acquitted the more prominent members of the nobilitas who were charged before them. It is clear that many of the equites recognized the injustices involved in Varius' law and used the opportunity in 89 to condemn the author himself, thus belying the blanket statement of Appian that the law was simply an instrument of equestrian vengeance.124 A remark of Cicero proves that Varius was prosecuted before the passage of the Plautian law. The trial of Cn. Pompeius Strabo took place cum primum senatores cum equitibus Romanis lege Plotia iudicarent.125 Since Strabo was consul in 89, his trial must be dated to 88. Varius was, therefore, convicted by an equestrian court.126

Miinzer believed that the prosecution of Varius somehow involved an attack on his citizenship.127 But Valerius Maximus connects Varius' allegedly shady grant of citizenship only with his cognomen Hybrida.128 After the passage of the lex Julia, it is unlikely that a false assumption of citizenship would have been the basis of a criminal prosecution and certainly not one on a capital charge. There is no reason to doubt, of course, that such accusations were mentioned at the trial. Anything was fair game at a criminal trial. Rumours had been spread about that Varius was also responsible for the death of Drusus, and even for the death of Metellus Numidicus.129 This evidence may also derive ultimately from statements made at the trial. But the charge, as appears from the fact that it was tried under the lex Varia, was maiestas. The most reasonable explanation is that the offence cited was seditio, i.e. the violent passage of his measure against tribunician intercession.130 Following condemnation it seems that Varius was executed.131 If so, this is the only execution known under the lex Varia. He must therefore have been detained and forbidden to opt for the alternative of exile.132 Resentment against Varius must have been bitter indeed.

No further trials under the lex Varia are known for the year 89. Now that the original purpose for which the law had been passed was obviated, this is not surprising. Additional prosecutions under it would simply have been cases of maiestas, for the lex Varia was still the operative law on this offence. There is no reason to believe that the lex Plautia of 89 was an attack on the equites for misconduct in the Varian trials. The evidence shows, as has been seen, that equestrian jurors had not excessively betrayed their trust in these cases. Badian may be right to associate the Plautian law with the assassination of the praetor Asellio by equites in 89.133 The senate probably took advantage of popular indignation over the excesses of the creditor class, but not necessarily over their mismanagement of the courts. The lex Plautia provided for the selection by each tribe of fifteen jurors regardless of their status.134 This gave the measure a democratic appearance and perhaps appealed to the populace, but Asconius is surely right in affirming that it was passed in the interests of the nobility. The control of voting power in the tribes would assure that the personnel of the courts would be drawn overwhelmingly from the senatorial order.135 The lex Plautia

123 Even those who cannot be charged with this erroneous assumption continue to misdate Varius' trial; cf. Gelzer, Abh. Preuss. Akad. Wiss. 2 (1941), 13 (= KI. Schrift. ii, 17); Badian, Foreign Clientelae (Oxford, 1958) 229, n. 5.

124 BC I, 37. 125 Asconius 79, Clark. Of course, the meaning

here may simply be that it was under the lex Plautia that senators and equites first sat on the courts together. But even if this be the point of Cicero's remark, the mention of Strabo's trial in this context surely implies that it was the first case heard under the new system.

126 Badian, Proc. Afr. Class. Ass. i (1958), 305 (= Studies 76-7), shows that the evidence is not con- clusive for dating Plautius' tribunate. 89 or 88 remain possibilities. Asconius' remark, 79, Clark, that the lex Plautia iudiciaria was passed during the consular year 89 surely makes a tribunate for 89 more probable, though it is just possible that the bill was passed in Dec. 89 at the outset of a tribunate for 88. This will not, in any case, affect the argument advanced here.

127 Rom. Adelsp. 301. 128 Val. Max. 8, 6, 4: propter obscurum ius civitatis

Hybrida cognominatus.

129 Cicero, De Nat. Deor. 3, 81 ; Philippus and Caepio, naturally, were also suspected of the murder of Drusus; Pliny, NH 28, 148; Vir. Ill. 66, I3.

130 Lengle, o.c. (n. 15), 32-6; Gundel, RE 15 (2), 389, ' Varius,' n. 7. See above, p. 60.

131 See above, n. 21. 132 A parallel may be cited in the case of Q.

Servilius Caepio in Io3; Val. Max. 4, 7, 3; 6, 9, I3 ; Cicero, Pro Balbo 28. The accuser of Varius is unknown; perhaps C. Julius Caesar Strabo; Val. Max. 8, 2, 2.

133 Livy, Per. 74; Appian, BC I, 54; Val. Max. 9, 7, 4 ; Badian, For. Client. 227, n. 4.

134 Asconius 79, Clark: ex ea lege tribus singulae ex suo numero quinos denos suffragio creabant qui eo anno iudicarent.

135 How long the lex Plautia remained in effect is beyond knowing. No jury law is recorded between that of Plautius and the Sullan law of 8 . Yet much of the ancient evidence implies that Sulla's law replaced equites with senators. That the Plautian law was repealed within a year and equites reinstalled is not impossible but there is no explicit testimony. For a summary of the ancient evidence and modern con- clusions see Hill, Roman Middle Class 137-8.

69 THE LEX VARIA

did not, of course, repeal the Varian law, but simply changed the composition of the juries who would hear cases under it. The first case heard under the new arrangement and the last recorded prosecution under the lex Varia was the trial of Cn. Pompeius Strabo.

Pompeius Strabo was too strong-willed and individual a personage to be put in a rigid political classification. Nevertheless, the evidence shows him to have been no friend of the Metelli. Rutilius Rufus, in his memoirs, referred to Strabo as Trapcr6vorpov.l36 This may indicate that the latter had been involved in Rutilius' prosecution.137 That Strabo had some connections with L. Marcius Philippus, the enemy of Drusus, is suggested by Philippus' defence of the young Pompey in 86 in a peculatus trial.138 Finally, the animosity between Strabo and Q. Pompeius Rufus, the associate of Drusus, is clearly attested by the assassina- tion of Pompeius Rufus by Strabo's troops in 88.139 All the evidence, then, points to hostility between Strabo and those around Drusus. He may well have been a supporter of Philippus in 9I.

The purpose of Strabo's trial and the charges made have never received a satisfactory explanation. Cicero, quoted by Asconius, provides the only evidence for the trial, saying simply that Strabo was prosecuted for maiestas under the Varian law.140 Pais and Gelzer have suggested a number of possible charges which may have been levelled, though neither preferred any particular charge.l41 Both point to the statement of Velleius that Strabo was blocked in a bid for a second consecutive consulship for 88.142 This is not entirely implausible, though there is no other explicit testimony for it. Strabo was perhaps capable of anything. Licinianus states that he desired a consulship in 87 for 86.143 On the other hand, Strabo must have presided over the consular elections of 89, for his colleague L. Porcius Cato had been killed in the course of the year,144 and there is no evidence for disturbances or difficulties in the elections. But whether or not Strabo canvassed for a second consulship, this would not have been made the ground of a maiestas charge. Two consecutive consul- ships would have been highly unusual but not unprecedented. Only a decade earlier Marius had held five consecutive consulships. That the mos maiorum had become somewhat lax on this is indicated by the fact that Sulla felt obliged to pass a law in 8 enforcing a compulsory ten year gap between two consulships.145 A maiestas charge would hardly have been appropriate.

Pais suggested that Strabo's making off with the booty of Asculum may have been used against him at the trial.146 No doubt it was introduced. But it was certainly not the formal accusation laid against Strabo. It is true that Strabo's son, Pompeius Magnus, was prose- cuted in 86 for having in his possession property which was regarded as stolen from the state by Strabo. But the trial, quite properly, was a case of peculatus, not of maiestas.147 If Strabo had been called to account on these grounds earlier it would also have been for peculatus and would not have fallen under the lex Varia.

Another suggestion connects Strabo's trial with his attitude towards the Italians. Pais believed that his lex Pompeia which gave Latin rights to the Transpadani must have been involved in the prosecution. Gelzer adds that Strabo may have been charged with unneces- sary prolongation of the war because of the shipwreck of negotiations with the Italian leader Vettius Scato.148 But these suggestions are based on the assumption that the lex Varia

136 Plutarch, Pomp. 37, 4. On the hostility of the 144 Livy, Per. 75; Appian, BC I, 50; Veil. Pat. 2, optimate tradition generally to Strabo, cf. G. H. I6, 4; Eutropius, 5, 3, 2. Stevenson, JRS 9 (1919), 97-8. 145 Appian, BC I, 100.

137 See Gelzer, Abh. Preuss. Akad. Wiss. 2 (1941), 146 Orosius 5, i8, 26; Pais, Dalle Guerre Puniche I5 (= Kl. Schrift. in, i 9). I09 ; 64-7.

138 Plutarch, Pomp. 2, 2 ; Cicero, Brutus 230. 147 Plutarch, Pomp. 4, I: 51iKrI KAownTrs E^XEV u-rrp 139 Appian, BC I, 63 ; Veil. Pat. 2, 20, I ; Livy, cauTo0 85rioaicov xpOcrTcov 6 Rlonrr'los. Per. 77; Val. Max. 9, 7, ex. 2. It may also be added 148 For the lex Pompeia on the Transpadani, see that Strabo is specifically said to have been unfriendly Asconius 3, Clark; Pliny, NH 3, I38. For the to Sulla, Pompeius Rufus' adfinis; Appian, BC I, 80. negotiations with Vettius Scato, see Cicero, Phil. I2,

140 Asconius 79, Clark: Cn. Pompeium causam 27. A further suggestion by Stevenson, JRS 9 (1919), lege Varia de maiestate dixisse. 98, that Strabo was prosecuted because of his friend-

141 Pais, Dalle Guerre Puniche 109; 164-7; ship with P. Sulpicius Rufus cannot be substantiated. Gelzer, Abh. Preuss. Akad. Wiss. 2 (I94i), 13-15 That Sulpicius was, in fact, Strabo's lieutenant in 89 (= Kl. Schrift. II, 117-19). is itself uncertain; cf. Cichorius, R6mische Studien

142 Vell. Pat. 2, 2I, 2: frustratus spe continuandi (Leipzig-Berlin, I922), 137-9. All these conjectures consulatus are summed up by Miltner, RE 42, 2258, ' Pompeius,' 143 Granius Licin. 19, Flemisch. n. 45.

70 ERICH S. GRUEN

was a special law dealing only with offenders who assisted Italian aims. As has been argued, this is not a likely interpretation of that law. But, even apart from this, Strabo was hardly the man to be prosecuted on these grounds. Not only was he an enemy of thefactio behind Drusus, but it had been largely his victories in go and 89 which kept the Roman cause in the Social War alive. His enfranchisements under the lex Julia149 were, of course, perfectly legal, and there is no reason to believe that his grant of Latin status to the Transpadane Gauls was any the less so. It is very doubtful if, after the legislation of go, sympathy with the Italians was ever again used as a reason for prosecution. It could hardly have been used against Varius. Strabo was prosecuted for maiestas. There is no need to invent possible offences, for a flagrant offence by Strabo is attested which would fall neatly under this charge.

Sometime late in 88, the consul Sulla sent his colleague Q. Pompeius Rufus to take over the troops of Strabo in Picenum. The army, however, took matters into its own hands and murdered Rufus, doubtless at Strabo's prompting.150 It is this action of Strabo in defiance of constitutional authority which would perfectly justify a trial for maiestas. That this has never been suggested before is due to a misunderstanding of the lex Plautia and a consequent misdating of Strabo's trial. Cicero says simply that the lex Plautia was passed in the consular year 89 and that Strabo's trial was the first heard under the new judicial arrangements.151 Since Strabo was consul in 89 he could not have been prosecuted before 88. But this does not mean that Strabo was tried at the outset of the year; still less that the lex Plautia was passed in order to be applied against him and other enemies of the nobilitas. 152 Cicero implies no such thing, nor does Asconius. The point which has been overlooked is that the lex Plautia made no change in the substance of the lex Varia; it simply altered the composition of the courts in the interests of the nobility. There is no reason to believe that this change was directed specifically against Strabo, and that his enemies were waiting to pounce upon him immediately after the expiration of his consular immunity. If this had been the only purpose of the bill, it would have been superfluous. Equestrian jurors who had convicted Varius in 89 might well have been expected to condemn Strabo as well. Earlier jury reforms such as the lex Acilia, lex Servilia Caepionis, and lex Servilia Glauciae had not been passed in order to make conviction of particular individuals more feasible. The lex Plautia was no different. Its aim was to restore senatorial influence in the courts, not to condemn Pompeius Strabo. Therefore Strabo's trial need not be dated to the early days of 88 and based on unattested offences in the previous years. A refusal to accept release from command, and the assassination of an appointed successor, whether or not Strabo was directly involved in the murder, provides a legitimate basis for a maiestas trial.153 The case was therefore probably heard in late 88. The outcome is not recorded. Strabo continued in command of his troops in 87,154 but in view of his character and actions this may simply imply that he had ignored the decision of the court.

One final reference has usually been connected with the lex Varia. P. Sulpicius Rufus, tribune in 88, proposed, among other things, the recall of exules.155 To understand whether or not this event was, in fact, related to the lex Varia, it is important to investigate Sulpicius' background.

149 ILS 8888. linguistic standpoint, opens the way for a solution of 150 This is the story given by Livy, Per. 77, Val. the historical problem.

Max. 9, 7, ex. 2, and Vell. Pat. 2, 20, i. Appian, 152 This is the assumption behind, e.g. Badian's BC I, 63, states that Strabo was indignant after the remarks in For. Client. 229, and Studies 76. murder was revealed, but adds that he lost no time 153 Badian's argument, Hermes 83 (I955), 109-I 2, in restuming command. Obviously, Strabo was not that the despatching of Pompeius Rufus was vetoed interested in acceding to the senatorial decision to by a tribune and therefore sanctioned only by a replace him. senatus consultum is ingenious and not implausible;

151 Quoted by Asconius, 79, Clark: cum primum see Sallust, Hist. 2, 21, Maur. But this will not affect senatores cum equitibus Romanis lege Plotia iudicarent, the case argued here. Pompeius Rufus was still the hominem dis ac nobilitati perinvisum Cn. Pompeium consul in office and could legitimately assume causam lege Varia de maiestate dixisse. Cicero's cum command of any Roman troops. Defiance by Strabo primum may, of course, mean either ' when first ' or of a senatorial order would have led to prosecution ' as soon as '. The latter translation, usually assumed, by his enemies anyway, regardless of the constitu- has been responsible for many of the difficulties tional niceties involved. surrounding the trial. It has necessitated the search 154 Sources in Broughton, MRR II, 48-9. for a possible and unattested maiestas offence in 89. 155 Livy, Per. 77 ; P. Sulpicius tribunus plebis The former translation, equally possible from a auctore Mario perniciosas leges promulgasset, ut exules

revocarentur ; also ad Herennium 2, 45.

THE LEX VARIA 7I

His activities and career prior to the tribunate of 88 all stamp him as a member of the circle of Drusus, Scaurus, and the Metelli. As a young man in 95, he had prosecuted C. Norbanus in a case in which Scaurus appeared as witness for the prosecution.156 He was a pupil and close friend of L. Crassus, and his friends, on the whole, were all members of the Metellan group, Antonius, C. Aurelius Cotta, Q. Pompeius Rufus, C. Caesar Strabo, and, for the rest, his connections with this circle are readily seen from his role in the De Oratore generally.157 That his association with Drusus himself was particularly close is evident from their personal friendship, and from Sulpicius' prospective candidature for the tribunate of 89 to continue Drusus' work.158 Sulpicius even seems to have been threatened with prosecution under the lex Varia. Cicero affirms, immediately after mentioning the trial of Cotta, that Sulpicius was involved in eadem invidiae flamma.l59

There had thus been no firmer friend of the faction behind Drusus than P. Sulpicius Rufus. Yet when he became tribune in 88 he reversed himself entirely and became an ally of Marius.l60 The first piece of evidence concerning Sulpicius' reversal of form is his opposition to his former friend C. Julius Caesar Strabo in Strabo's illegitimate attempt to reach the consulship of 87 before he had held the praetorship.l61 This switching of allegiance by Sulpicius seems to be reflected in the story of the unknown author of the ad Herennium that Sulpicius first vetoed the recall of exiles and then, changing his mind, proposed the law himself.162 But modern scholars who, without exception, regard these exules as victims of the Varian law have not faced up to the difficulties which this entails.'63 The men who had gone into exile under the lex Varia in 90 had, of course, been friends of Sulpicius. But if his reversal of form is reflected in the volte-face on the exiles, Sulpicius should have first supported their recall and then opposed it, rather than the reverse which he is, in fact, said to have done.'64 It will not do to assume that this bill referred only to the men exiled after the passage of the lex Plautia iudiciaria. This makes the inference, earlier shown to be dubious, that the lex Plautia was an act of vengeance directed against the enemies of Drusus, as the lex Varia had been directed against his friends. A general recall of exiles under the lex Varia would have had to involve all those exiled in 90, and there is no evidence that the bill of Sulpicius made any such distinctions.'65 The point is that the evidence on Sulpicius'

156 See above, p. 67. 157 For the friendship with Crassus, see Cicero, De

Orat. i, 97; I, I36; 2, 89; 3, 47; Brutus 203; with Antonius, see De Orat. I, 99; 2, 89; 3, I ; with C. Aurelius Cotta, see De Orat. I, 25 ; with Q. Pom- peius Rufus, see De Amicit. 2; with C. Caesar, see De Orat. 2, I6.

158 Cicero, De Orat. I, 25 ; see above, n. 64. 159 Cicero, De Orat. 3, 11 ; cf. on Sulpicius' con-

nections Miinzer, RE 7 (2), 843-6, ' Sulpicius,' n. 92, and W. Schur, Das Zeitalter des Marius und Sulla, Klio Beiheft (Leipzig, I942), I27-9.

160 The reasons for Sulpicius' volte-face are prob- ably unfathomable and cannot be investigated in detail here. It is only to be expected that optimate sources would not be kind to a renegade. His con- version, therefore, is ascribed to heavy debts and bribery by the equites; Plutarch, Sulla 8; see Pareti, Storia di Roma III, 556-8. More probably, the potential involved in an alliance with Marius was too tempting to be ignored. Marius had long coveted the command against Mithridates and employed Sulpicius to block the similar desires first of C. Caesar Strabo and then Sulla.

161 Cicero, De Har. Resp. 43; Brutus 226; Asconius 25, Clark; Quint., Inst. Orat. 6, 3, 75; Priscian 5, 44. Badian, For. Client. 231, and Studies 51, believes that Caesar Strabo was standing in 89 for 88 and that Sulpicius opposed him at the very outset of his tribunate in December of 89. This is very difficult to accept. In the De Har. Resp. 43, Cicero does affirm that Sulpicius opposed Caesar Strabo ab optima causa and was then carried away by popularis aura. But the optima causa ought not to be pressed. In any case, this passage offers no chrono- logy. Diodorus 37, 2, 12, is explicit that the rivalry between Strabo and Marius for the chief magistracy

occurred during the consulship of Sulla, i.e. 88. There is thus no justification for Badian's statement that Sulpicius acted here ' on behalf of the boni ' and that 'it was only by accident that he found himself co-operating with Marius and his supporters '. Since Sulpicius acted in concert with Marius in 88, it is hardly necessary to describe his activity here as 'accidental '

162 Ad Herennium 2, 45 : velut Sulpicius, qui inter- cesserat ne exules quibus causam dicere non licuisset reducerentur, idem posterius, immutata voluntate, cum eandem legem ferret, aliam se ferre dicebat propter nominum commutationem ; nam non exules, sed vi eiectos se reducere aiebat. In the context, immutata voluntate must mean that Sulpicius alleged he had not changed his mind.

163 cf. e.g. Last, CAH IX, 202; Bloch-Carcopino, Hist. Rom. II, 404; Hill, Roman Middle Class 142; Pareti, Storia di Roma III, 556; A. H. J. Greenidge and A. M. Clay, Sources for Roman History I33-70 B.C., rev. by E. W. Gray (Oxford, I960), I62; H. H. Scullard, From the Gracchi to Nero, 2nd ed. (New York, I963), 71.

164 This measure on the exiles was presumably mplemented in 87 when Cinna revived the leges

Sulpiciae; Appian, BC I, 73. Yet C. Aurelius Cotta did not return to Rome before 82; Cicero, Brutus 311.

165 Lange, Rom. Alterth. 3, I23, makes the extra- ordinary statement that the law sought to recall all the equites banished after the passage of the lex Plautia. There is no evidence to suggest that any eques was prosecuted under this law. Carney, A Biog. of Marius 54, n. 250, believes that all the exiles in question were Marians. But not a single 'Marian' is known to have been in exile in 88.

72 ERICH S. GRUEN

action makes no mention of the lex Varia. Since the recall of Varian exiles would be incon- sistent with Sulpicius' attitude in any case, there is no need to impose this upon the ancient evidence which does not give it. Moreover, Sulpicius' defence of his motion was that these men were banished without benefit of trial,166 whereas the exiles under the lex Varia had been tried by a duly constituted quaestio. The rogation to recall exiles, then, can have had nothing to do with the Varian law.

It would be a tempting hypothesis to associate the exules comprised in Sulpicius' measure with the Latins and Italians who had been victims of the lex Licinia Mucia of 95 and of the censorial edict of 92.167 These measures had been inspired by the Metellan factio. Crassus and Scaevola were the consuls in 95 and Crassus was censor in 92. This would make Sulpicius' actions in 88 intelligible. While still maintaining his old loyalties, he dutifully vetoed a proposal to recall the exules, but after his desertion of his old com- patriots he sponsored the measure himself. Such a motion would also go hand in hand with his pro-Italian bill to distribute new citizens among all the thirty-five tribes. However, the lex Licinia Mucia does not appear to have been an expulsion measure. It sought simply to remove from the citizen rolls men who had been illegally registered.168 The censorial edict of 92 did expel Latin rhetors, it seems, but this will not have affected an appreciable number. Perhaps there were other similar edicts, unrecorded but related. Further conjecture is pointless.169 The lex Varia, in any case, already neutralized in late 90 and in 89, could no longer have been an issue in 88.

In sum, therefore, an attempt has been made to understand the lex Varia and the trials connected with it in their proper historical context. The law did not establish a quaestio extraordinaria, but redefined the notion of maiestas to correspond with its own political purposes. The equites should no longer be made scapegoats for an iniquitous bill. The Metellan group was the object of this measure, which defined sympathy with the allies as a maiestas offence in order to attack the men associated with Livius Drusus. Equestrian jurors acquitted themselves honourably, for the most part, and the Metellan group, though damaged, survived. Varius, the homo importunissimus, himself suffered condemnation, but his measure remained until Sulla the operative legislation on high treason. Factors other than judicial caused disenchantment with the business classes; one of the consequences, however, was a more equitable distribution of personnel on the courts under the lex Plautia. The trial of Pompeius Strabo was the first under the new jury arrangements; it was also the last recorded under the lex Varia. The powerful and unscrupulous Strabo ushers in a new era. In 88 hostile passions flared into open violence. Though Marius drew with him the ex-Metellan Sulpicius Rufus, the group as a whole backed L. Cornelius Sulla. The clash over an Eastern command precipitated a crisis. Violence and civil war disrupted legal procedure in the following decade until Sulla, himself a product of this era, restored it under a tightened and more comprehensive regimen.170

Harvard University.

166 Ad Herennium 2, 45: exules quibus causam opposed the recall of exiles, rather than the reverse. dicere non licuisset. This solution does not seem possible, however. The

167 Sources in Broughton, MRR ii, ; I7. Epitomator of Livy 77, states that Sulpicius proposed 168 This has been convincingly demonstrated by the recall of exiles at the instigation of Marius:

R. W. Husband, CP Ii (I9i6), 32I-3; Gabba, auctore C. Mario. Athenaeum 31 (1953), 260-2; Badian, For. Client. 170 Much improvement in this paper is due to 297, Note R. Cicero, De Off. 3, 47, clearly contrasts advice provided by Prof. E. Badian of Leeds, the lex Licinia Mucia with decrees of expulsion. Prof. T. R. S. Broughton of Bryn Mawr, and

169 The problem would be resolved if the author Prof. M. Hammond of Harvard. Remaining defects of the ad Herennium is assumed to have made an are to be ascribed to the author alone. error, and if Sulpicius first supported and then

THE LEX VARIA 73