bucher, appian b.c. 2.24 and the trial de ambitu of m. aemilius scaurus

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Appian B.C. 2.24 and the Trial "de ambitu" of M. Aemilius ScaurusAuthor(s): Gregory S. BucherSource: Historia: Zeitschrift für Alte Geschichte, Bd. 44, H. 4 (4th Qtr., 1995), pp. 396-421Published by: Franz Steiner Verlag

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APPIANBC 2.24 AND THE TRIALDEAMBITU OFM. AEMILIUSSCAURUS

I. Introductionndbackground

M. AemiliusScaurus, he praetorof 56 BC, is found as the defendant nthreetrials n M.C. Alexander's ecentcompilation f trialsunder he Roman

republic.'These are a trialrepetundarumforwhich we have thefragmentary

Ciceronian peechandtheAsconianScauriana)and a trialde ambitu,both in

54; there s alsoa presumed xtension orcontinuation)f the latter rial n 52,

during he torrent f prosecutionsn Pompey's hird onsulship.A problematic

passage n one of our sources Appian'sBellumcivile2.24:see below)has led

many scholarsto posit this third(or continued) rial in 52 where none is

supported y good evidence;2 urther, ffortstojustifytheerroneous eportn

Appianhave led to interesting mis)useof the evidence from other ancient

sources.Because herewill be a constantneed o refer oAppianBC2.24.89-91

throughouthis essay, I reprint he text thatconcernsScaurushere,withmytranslation:

On Scaurus,MRR I 208. M.C.Alexander,Trials n theLate RomanRepublic,149 BCto

50 BC (Toronto1990). Cases will be referred o with their Alexandernumbers n the

following format (TLRR123). Unless otherwisenoted, the sources for each trial are

assumedto be tabulatedhere.All dates areBC.

2 The followingis a representativeist of scholarswhoexplicitlyortacitly accepta thirdor

continued rial n 52: L. Lange (RdmischeAlterthiimerII [Berlin21876]),P. Willems(Le

s6natde la republiqueromaineI [Paris1883]476477), E. Meyer(CaesarsMonarchie

und das Principat des Pompejus [Stuttgart 31922] 237), F. Munzer (RE XV [1932] 614),

M. Gelzer (Pompeius[Munich1949] 176), F. Miltner REXXI [1952] 2165), H. Volk-

mann (RE VIII A [1955] 234), C. Henderson,Jr. ("The Careerof the YoungerM.

Aemilius Scaurus",CJ 53 [1957-58] 203-204), E.S. Gruen TheLast Generationof the

Roman Republic [Berkeley 1974] 332; 348), and T.R.S. Broughton, Candidates Defeated

in Roman Elections: Some Ancient Roman Also-rans, TAPhS 81.4 (Philadelphia 1991)

21-22. Others,perhapswaryof trustingAppian,do not attempt o put a precisedateon

the trial, andonly affirm hatScauruswas ultimately onvicted:cf. E. Klebs(RE I [1894]

589), and E. Badian(OCD2 [1970] s.v. "Scaurus"2]). Extremeskepticismmarksthe

view of A.C. Clark n his commentary n the Pro Milone(Oxford1895)xi-xiv. He notonly thinks hatAppianwas inerror n hisplacementof the trialsof GabiniusandScaurus

in 52 (thusanticipatingheviewadoptedhere),butgoes so far as to denytheretrospective

qualityof the lex Pompeiade ambitu.See below,n. 8.

Historia, Band XLIV/4 (1995)

C Franz Steiner Verlag Wiesbaden GmbH, Sitz Stuttgart







AppianBC 2.24 and the Trialdeambituof M. AemiliusScaurus 397

2.24.89 Tot5cra 8' ein(iv ?iCOpOO sc. Orloginjt5o] dv vo6gov [sc. the

lex Pompeia de ambitu,52 BC],KsankTjO; ilv aiCmK(X&1KCVo0t1CitX)V.1.CXtS J.T E.EX 01 K3C1,%At tJO lonE) ~p~iiva TE ANl 8EI,(YECv ot 8tKao'cat, alUxo'; auXkovk bco')1tTE?V? (;Cpxp cv

sp1tl1qacevod . 90 KOt. p6 toi jI?v &to,vts;q'aXOxTavMiwkv T?e'tECXco6io( qvqp, cn Fractivio0;uxpavoplitx ogou KcLaeIetia;, onr

xPtop n ypialicvro; i A'iynrrov getra arparid; iGc,PaXEv 'layopez-

OVrEoVci5vZtPXkXicOV, YVaCot;be KaXiM?tjuo; Ksaxt aro; Kcaci

urpot itX'iove; bt 8wpo8ociat; niXou; SSKWYaJCo.1 Xcafipov

&eTOO) kioiot) napatTow?vo0 iKtjpigsV OHloj 'to; tcxKaKouaat

mr i Kcait ACTc1v8oi io o ; K ny6poi; evoxXoiv-ro;, c(Pa

r; EK T6v HoTrlitiou mpapTctrtot ?napacx,6v-rtcv iyiVETO, KaCt6 EV

5iqRo; KaTEatwlCliaEV,6 Se6 cKrpO; dAXo3.2 KW.[Ibno6] adv-ov u( n

KateYvcwoaO, rFCttviou S6 KQX ijieu?aXt 1v Ent ii (ptuy). (App. BC

2.24.89-92)

2.24.89 Having said this, he enacted the law, and there was immediately a

number of varied trials. In order that the jurors might not be afraid, he

himself watched over them, having stationed a surroundingguard. 90 The

first convictions, in absentia, were those of Milo for Clodius' murder,and

Gabinius for both illegality and impiety at the same time, because he had

invaded Egypt without a decree although the Sibylline books forbade it.

Hypsaeus, Memmius, Sextus, and many others were also convicted for

taking bribes or for ambitus. 91 Although the people pleaded on his behalf,

Scauruswas orderedto submitto the courtby Pompey, andwhen the people

again hindered the prosecutors, some bloodshed occurred in an onrush of

Pompey's soldiers; the people lapsed into silence, and Scaurus was con-

demned. 92 All were condemned to exile, butGabiniussuffered a confisca-

tion of propertyin additionto his exile.

i. The trials of M. Aemilius Scaurus

Thanks to Asconius (18-29C), the facts surroundingthe first trial (TLRR

295) are well enough known. Scaurus had been proconsul of Sardinia in 55,

where he had availed himself of the opportunityto collect monies to make good

his political campaign expenses (18C). Having returned,he submitted his name

on 28 June 54 (18C) as a competitor for the consulship of 53, but was

indicted on 6 July by P. Valerius Triarius, whose familial clients the Sar-

dinians were;3 a large constellation of late-Republicannobles bandedtogether

to defend and serve as character witnesses for Scaurus, and he was duly

3 Cf. H. Volkmann (as in n. 2) 234.







398 GREGORYS. BUCHER

acquitted on 2 September.4On 1 October Cicero wrote to Atticus (Att.

4.17.5)5 thatScaurushadbeen acquitted, ut thatanothernominisdelatiowasin the air, to be deliveredby eitherTriarius r L. Caesar, videntlyde ambitu,

since he mentions the indictment n connectionwith the campaign or the

consulship of 53 (tres candidati fore rei putabantur). On 11 October, Cicero

wrote to Quintus Q.F. 3.2.3) thatall competitors or theconsulshiphad been

indicted,and in particular, caurusby Triarius.This bringsus to the second

case (TLRR 00).

Triariusmayhave nitiated his secondprosecutions amatter f continued

fides towardshis clients.It was probably pparent y thatpointthatScaurus'

hopes for the consulshipwere fading,and herewascertainly possibility or aconvictionbeforethedelayedelectionsor even afterScaurus' xpectedrepul-

sa. Triariushad little to lose by trying,sinceevenif Scaurus houldhave been

elected,thetrialcould havecontinued uring he time hewouldbedesignatus;

if Scaurusshouldenteroffice beforethe trialcould be completed, hecharge

would wait until afterhis immunityo prosecutionnded.6

We hearthat a movementwas afootto scuttletheprosecutionsCic. Q.F.

3.2.3, 11 October: opera datur ut iudicia nefiant), but this apparentlycame to

nothing,since mattersproceededuntil ate Novemberwhen t becameobvious

to Cicero hatPompeyhadabandoned cauruso his fate(Q.F.3.6.3: Scaurumautem iam pridem Pompeius abiecit). The letter does at least tell us that

Scaurushad not been convictedby lateNovember,and thathe was probablystill in therace for theconsulship.

4 It is worthnotingthat hetrialdidnot evenlasttwomonths romthepostulatio 6 July)to

acquittal 2 September).Thiswasin spiteof a grantof sixtydays for the inquisitio,notto

mentionthe six advocati,threesubscriptores o the prosecution, en knownlaudatores

and eleven supplicatoresand an unknown(but perhaps arge, cf. Val. Max. 8.1.10)

numberof hostilewitnesseswho hadto be heard.Thisis the mostcomplextrialforwhich

we have data,andyet it wascarriedoutwithgreatexpedition,eventhough t predates he

time-saving measures of the lex Pompeia. Shackleton Bailey (Cicero's letters to Atticus

v.2 [Cambridge19651ad Att. 4.16.6, n.) thinksthat while Asconius says postulatus

(19C), we ought to interpret t to indicatethe nominis delatio. In view of Asconius'

immediately ollowing words(ut inActis scriptum st), this is probablyn error.

S The numberingof the letters of Cicero cited in this paper follows the revisions of

ShackletonBailey.

6 See ShackletonBailey (as in n. 4) 212, citing Mommsen,R. Strafrecht Leipzig 1899)

353, andPhoenix24 (1970) 162-165.

7 Pompey'sabandonmentf Scaurusprobably efersto a withdrawlbothof his support n

the electionand his effortsto secure Scaurus'acquittalas he hadin the trialrepetunda-

rum.The phraseoperadatur ut iudicia nefiant cannotbe supportedby Q.F. 3.4.1: sed

vides nullamesse rempublicam, ullumsenatum,nulla iudicia, nullam n ullo nostrum

dignitatem(25 October54); see E.S. Gruen,"Theconsularelections for 53 B.C.", in

Hommages MarcelRenard,J. Bibauw(ed.) (Brussels1969)II 311. It shouldbe noted

herethatthere s also no evidencethatScauruswithdrewhiscandidacy ortheconsulship.







AppianBC 2.24 and theTrialde ambituof M. Aemilius Scaurus 399

Then, one of several things must have happened. Either 1) Scaurus was

convicted under the lex Tullia late in 54 or perhaps in 53 and went into exile(and thus Appian's account placing a trial in 52 under the lex Pompeia is simply

in error),or somehow he evaded conviction (thoughonly temporarily:we know

that he was ultimately convicted), by 2) a derailmentof the trial process or 3)

simple acquittal. There is also the logical (though improbable) possibility 4)

thatScaurus could have been convicted twice de ambitu, once in 54 andonce in

52.

The idea of an acquittalunder the lex Tullia followed by another trialfor the

same charges underthe lex Pompeia de ambitu is unlikely to be true. Although

our sources do not give us all of the provisions of the law, the lex Pompeiawould have probablycontained a tralaticianprovision similar to thatwhich we

see in the lex repetundarum,namely an express injunction against prosecution

underthe new law of somebody who had alreadybeen prosecutedfor the same

crime under an antecedent law (?? 74-5). This seems all the more probable in

view of the retrospective nature of Pompey's law.8

The idea of two convictions in a row is almost certainly impossible. What

benefits could accrue by prosecuting Scaurus under the lex Pompeia if he had

already been convicted under the lex Tullia? The latter law entailed a 10 year

banishmentin the case of conviction. Scaurus, in exile, would not have been in

8 It is difficult to know exactly what Appian means by stating that Pompey's law was

retrospective,valid for cases going back to his first consulship.The lex repetundarum

explicitly states that men who had alreadybeen prosecutedrepetundarum nder the

antecedent eges Calpurniaand lunia could not be prosecutedagainfor the same crime

underthe new law andthere is also a provision hat the law was specifically invalid for

actions takenbeforeits passage. Unfortunately,he lack of information oncerningthe

provisionsof Pompey'slex de ambitu rom morereliable or detailed)sourcesmeans we

really cannot make any certain statementsabout the retrospectivityor the provisions

againstrunning"double eopardy" see MC. Alexander,"Repetition f Prosecution,and

the Scope of Prosecutions n the StandingCriminalCourtsof the Late Republic",CA I

[1982] 141-166). Clark as in n. 2) xiii actuallygoes so faras to denythe existence of the

retrospective lause (exceptfor thosewho had a "share n the briberyprevalent n 53 and

52" [by whichhe means the consularelections for 53 and 52]), making t an inferenceof

Appian.Appianwill occasionally ill in detailsby inference or guess), but theretrospec-

tive natureof the law seems at least moderately onfirmedby Plutarch,Cat.Min.48.3,

who uses the lamentablyvague phraseb't'i tom 5EKaaaVTXa; fi6 r6OV&u.ov ntrijnga

icav& IaC Kc;a *; tCoi3opnOolluiO v0Orovto{vto;. For a blatant example of

Appian filling in a blank with conjecture,see his explanation or the lack of officialsenatorialmeetingsfor the balanceof Caesar' firstconsulship BC2.11.37):fP 3oiXhbe

(o01yp tp; atv 'v vifv, oi68'fvbt4 ,trppq XcvXranTv mCRvcaxtvI a6jv) ?;

niv oixacv ToOB3)Xov OuvEXOTvEv;.ee Mommsen,R.Staatsrecht3 44 n. I, andthe

discussion of inferences in T.J. Luce, Appian's Exposition of the Roman Constitution

(diss. Princeton1958) 85-87.








Rome, and would no longer have even been a Roman citizen in 52.9 It seems

unlikely that the clause under the lex Pompeia de ambitu which reinstated thecivic privileges of convicts who secured the conviction of another under the

same law would have allowed the prosecution of somebody who was already

convicted and in exile (and all of the figures mentioned by Appian at BC 2.24

are expressly stated by him to have suffered exile)

We are thus left with an unresolved tension between two choices. Either

Appian is in error(and Scaurus was simply tried andcondemned under the lex

Tullia in 54-53), or he is correct, and we must postulate a third trial in 52 lege

Pompeia after abortedproceedings under the lex Tullia. We could perhaps play

the dangerous game of assumingthatAppianis 'half-right', and take him at his

word in reference to the date of Scaurus' trial andthus necessarily postulate the

strange (and unattested) postponementof his trial underthe lex Tullia from at

least 11 October 54 (the terminus ante quem for the nominis delatio) to some

point after 24 or 25 Intercalaris 52 (when Pompey became sole consul [Asc.

36C]).10 However, this then necessitates the assumptionthat Appian is wrong

when he lists the trial of Scaurus among the trials under the lex Pompeia, and

the absence of corroboratingor conflicting reportselsewhere makes it difficult

to discover any good criteria for discerning where Appian goes wrong, and

where we can pluck the truthfrom the middle of error.

ii. A general overview of the evidence

We know thatScaurus was in fact convicted at some point.This can be seen

from Cicero's statement(De off. 1.138: in domummultiplicatamnon repulsam

9 See G. Rotondi,LegespublicaepopuliRomani Milan1912)379 on the penaltiesof the

lex Tullia. On the implications of aquae et ignis interdictio see A.H.J. Greenidge, The

Legal Procedure of Cicero's Time (Oxford 1901) 512, who points out that once a

defendanthad eft forvoluntary xile in the courseof a trial,"theverdictmight ndeedbe

pronouncedat Rome, but it was now null and void: for no Romanassemblycould

condemnthe citizen of anotherstate."This ought to be bornein mind if one were to

proposethate.g., Scauruscould have been convictedunderthe trial institutedby the

nominis delatio (de ambitu) of Triarius in 54, and been subsequently tried again lege

Pompeia in 52.

10 See B.A. Marshall, A Historical Commentary on Asconius (New York 1985) 177. 24

Intercalariss proposedby J. Ruebel,"TheTrialof Milo in 52 BC",TAPhA109(1979)

239. Casesotherthanthose focusingon thedeathof Clodiusprobablyhadto waituntil

theseweretried.We knowthatMilo's lastconviction inabsentia,TLRR 12) was on 11

or 12 April;the last trialconnectedwith the murder or whichwe havean approximate

date is that of Sex. Cloelius (TLRR 15), whichis datedto after22 April.As Asconius

says, multi praeterea et praesentes et cum citati non respondissent damnati sunt, ex

quibus maxima pars fuit Clodianorum.







Appian BC 2.24 and the Trial de ambituof M. Aemilius Scaurus 401

solum rettulit, sed ignominiam etiam et calamitatem) that Scaurus had brought

shame upon his house - the word ignominia indicates a conviction, and calam-itas refers to a sentence of exile.1

It is also reasonably certainthatCicero defended Scaurus twice, as we find

out from Quintilian 4.1.69, a passage which merits careful examination:

ac ne quis cbroaTpo(prjvmiretur, idem Cicero pro Scauro ambitus reo,

quae causa est in commentariis (nam bis eundemdefendit), prosopopoeia

loquentis pro reo utitur, pro Rabirio vero Postumo eodemque Scauro reo

repetundarumetiam exemplis, pro Cluentio, ut modo ostendi, partitione.

Here, Quintilianis describingvariationsthatoccur in the exordia of speech-es, picking up after a section on alroatpo(pat. Two different variations of

exordia were used in different defenses written for Scaurus(pro Scauro ambi-

tus reo, pro ... eodemque Scauro reo repetundarum),and Cicero defended the

same man twice (nam bis eundem defendit). This last piece of information

should not be seen as a statementthatCicero defended Scaurustwice de ambitu,

for many reasons.

The trial of Scaurus repetundarumwas one of the causes celebres of the

late republic, as has been mentionedbefore; it was probablythe case thatwould

spring to any reader's mind immediately upon hearing the name Scaurusin

connection with Cicero, and perhapsthe oratorhimself may have subsequently

published this successful speech. The speech for the later trial de ambitu was

(by the time of Quintilian) only to be found buried in Cicero's commentaries,

perhapsbecause as an unsuccessful speech, it was never published.'2 However,

the first mention of Scaurusin our passage is in reference to the trial de ambitu,

and Quintiliannot only has to inform the readerwhere the speech can be found,

but to assure the readerthat Cicero did indeed defend that Scaurus twice. The

extra informationglossing the phrase pro Scauro ambitus reo will therefore be

Quintilian's way of forestalling confusion or a possible objection by the reader

familiar only with the more famous speech repetundarum.

One might arguethatthe phrase quae causa est in commentariis is evidence

for two speeches de ambitu, by taking causa to be predicative, as in the

translation "which is the case in the commentaries",so as to distinguish it from

1 1 Onthesignificanceof ignominiam andcalamitatem see A. Stickney,De officiis libri tres

(New York 1885), H.A. Holden, De officiis libri tres (Cambridge71891), and F.E.

Rockwood,De officiis liberprimus New York 1901) adloc. as well as C. Henderson, r.

(as in n. 2) n. 25. The significance of calamitas is neatly broughtout by Cicero inFam.13.19.2: C. Maenius Gemellus, cliens meus, cumnn calamitate exsili sui Patrensis

civisfactus esset.

12 Cicero was in the habitof collecting at least some of his morenotablespeeches into a

corpus, as we know he didwith the most noteworthy peeches of his consulship,etc. See

Schanz-Hosius, Geschichte der romischen Literatur (Munich 41927) 404-405.







402 GREGORY . BUCHER

another(we must suppose) well-known publisheddefense for the samecrime. If

this were true,though, Quintilianwould scarcely have found it necessaryto addwhat he evidently thought would be a surprise:that Cicero defended Scaurus

twice. Rather,we might expect him to have written nam ter eundem defendit.

Lastly, can we expect a teacherof rhetoricto have writtenthatCicero defended

Scaurus twice (intending de ambitu), and then, within the same sentence men-

tion a third defense writtenfor Scaurus?Such confusion could be so easily done

away with that one must conclude that the simple interpretation s what was

intended,andthatScauruswas defendedon only two occasions by Cicero to the

best of Quintilian's knowledge.

On the basis of Quintilian, it is necessary to posit that if there were twotrialsde ambituin 54 and 52, thenCicero was Scaurus' patronfor one (andonly

one) of them. Att. 4.17.5 suggests that Cicero was going to undertake the

defense of Scaurusin 54, since he was alreadywonderingwhat he might say in

defense of the manifestly guilty: "quidpoteris," inquies, "pro iis dicere?" ne

vivam si scio.13 Although the simplest explanation involving the least number

of unprovable assumptions is that Cicero defended Scaurus(unsuccessfully) in

a trialof 54, this passage cannotprove it. Even if we were to assumefor the sake

of argumentthatthis passage proves thatCicero was Scaurus' patronin 54, we

are still not advanced in our inquiry. Cicero mayhave undertakento defend

Scauruson threeoccasions but only actually defended him twice, as Quintilian

asserts: the trial of 54 could conceivably have been quashed (and thus not be

counted by Quintilian),and the conviction arise from a new trial in 52. Howev-

er, it seems that if Scaurus was convicted in 52, there must have been only a

single, greatly delayed trial, since a nominis delatio did occur in 54, and we

would almost certainly know about it, as we do subsequently with Metellus

Scipio, if he had been rescued from prosecution through devious means (see

also the objection raisedbelow, at n. 37). Thereis no evidence of this sort in the

case of Scaurus.

One more thing mustbe considered.The solution thatis invoked to explain

this delay between a nominis delatio in 54 and a conviction in 52 is the

admittedlygreatcivil disturbancewhich wrackedthe dying republic injust that

interval. A possible connection between the civil disorders and a presumed

delay in a trial is certainly desirable for those interestedin seeing a conviction

in 52: but it may be no more than a coincidence. There are several ways to

attack it.

On a minimal estimate, there would have been a 19-20 month lapse or

interval in the proceedings. It should be noted thattherewere praetorstheoreti-

cally capable of presiding over the trial in person for the balance of 54 (almost

13 Contra: Shackleton Bailey, Epistulae ad Quintum Fratrem et M. Brutum (Cambridge

1980) ad Q.F. 3.3.2.







AppianBC2.24 andtheTrialde ambituof M. AemiliusScaurus 403

threemonths),andfromthetime of the elections n July53 (assuminghat he

praetorswere electedsoon after heconsuls,as wascustomary'4)o theendofthe year, for a total of seven monthsof thetwenty:more hanenough imefor

the trial(see n. 4 above).

E.Fantham uggested hat hepresident f atrial,whenhe saw thathisterm

in office was about o expire,could havemadea privatus includinghimself,

oncehis office expired) heiudexquaestionisortheremainder f thetrial,andthus, public trialsneednot have ground o a halton 1 January 3.15Whileit

would be convenient or the argumentsdvancedhereif this were the case, it

seems unlikely.Themenwho formulatedhe laws governing hecourtswere

well awareof the annualnature f the Romanmagistracies, ndwerecapableofwriting provisions o handlethe (no doubtcommon)circumstance f a trial

lastingbeyond he yearof officeof the presidingmagistrate.Under hetermsof

the lex repetundarum,t any rate, the 50 iudices were empaneledfor the

durationof a case (??27-28); in the eventof the retirement, esignation,or

deathof thepresidingmagistrate,hesucceedingmagistratewas tocontinue he

case intact rom he pointat whichtheprecedingmagistrate ad eft off (??72-73) 16

Anotherfactor which gives the (perhaps alse) impression hat public

business had ground o a halt in 53 is the regrettablecantinessof Cicero'sletters or thatyear.Therearenoneto Atticus,andthe extremely ich series to

Quintus ndsin 54. Tyrrell-Purserssignonlythirteen etters 166-178) to53;

14 On the typicalorder of elections, see Mommsen,R. Staatsrecht (Munich31887)561:

,,Die Reihenfolgeder Wahlender ordentlichenpatricischenBeamtenrichtetsich wenig-

stens in den oberenStufennachder Rangfolge," tc.

15 Fantham "The Trials of Gabinius n 54 B.C.",Historia 24 [1975] 443) suggested this

solutionto theproblemof running he courtsafterthe expiryof thetermsof office of the

outgoing praetorsof 54: "Since an ex-official or privatus could be appointedas iudexquaestionis,an outgoingpraetor f 54 who wished to completea trialcould namehimself

or anotheras iudex quaestionisso as to continuethe hearing nto 53; what magistrate

could supersedehimor challengehis authority?"

16 See Mommsen,R.Strafrecht 53. One finds evidence of quasi-magisterialudicesquaes-

tionis who wieldedpowerin individual ases delegatedby the praetor,perhapsowing to

the fact that there were too manycases for the competentpraetor o preside over at the

moment (see, e.g., the discussionin Greenidge as in n. 9] 428-33). However,once the

office of the presidingmagistrateexpired,so did the power of his deputies (see the

discussionin Mommsen,R. Staatsrecht 3 633-4 on "Anordnung er Stellvertretung");

and(to jumpto thespecific fora moment) ince a presidingpraetorn 54 couldexpecthis

successorin 53 (wheneverhe might finallybe elected) to continue a pendingcase, andsince on 31 December54 no praetorwouldhave any reasonto think that the elections

mustneeds be long delayed(the long anarchicperiod o followin 53 being unprecedented

evenbythedelayedelectionsin55, andthusunforseeable),whywould a praetor aveany

reasonto act outsideof the normalprovisionsof the established aws, even if it were

possible?








most of them are either addressed to Curio and of a general nature, or brief

jesting notes to Trebatius Testa. Cicero does not seem to have wanted tocommit himself to Curio, and suppresses materialwhich he might have written

to Atticus or Quintus:ita sunt omnia debilitata ac iamprope extincta. sed haec

ipsa nescio rectene sint litteris commissa (Fam. 2.5.2). WithoutCicero, we are

seriously hinderedin our attemptto know in any detail whathappenedat Rome.

II. The sources cited for a trial in 52

i. The sources besides AppianBC 2.24

What evidence do moderns adduce for a second (or continued) trial de

ambitu in 52? Alexander's list is representative:"Cic. De off. 1.138; Quint.

4.1.69; App. BC 2.24; see also Att. 4.17.5; Q.F. 3.2.3; Brut. 324".

As we have seen (above at n. 11), Cicero's De officiis tells us absolutely

nothing except perhaps the simple (and single) fact that Scaurus had been

condemned; thereareno chronological indicationswhatsoeverto supporta trial

in 52, besides the unhelpful terminusante quemof its composition date, in late

44 (but see below, at n. 41).Quintilian tells us three things about Scaurus: Cicero defended Scaurus

twice, they were cases repetundarumand de ambitu, and the speech from the

ambitus trial was extant in Quintilian's time, in Cicero's commentaries.None

of these dataoffers a direct solution to the chronological question, andit is best

to admit thatsince they areconsonantwith a trialandconviction in 54 as well as

a trial and conviction in 52, these datacannot be used to prove either (see the

discussion above).

As we saw above (at n. 5), Att. 4.17.5 tells us only that Scaurus had been

acquitted repetundarum,and that he was thought to be about to be indicted by

eitherTriariusor Lucius Caesar.In anyevent, thatletteris from 54; it cannotbe

used to supporta trial in 52. This can also be said aboutQ.F. 3.2.3; while it does

show that Scaurus suffered an indictment de ambitu in 54, the only support

which could be graspedby those wanting a trial in 52 is the phraseopera datur

ut iudicia ne fiant. This proves nothing and even suggests very little, as one

quickly realizes rememberingthe fruitless efforts to preventthe trialof Verres

in the year 70.

Brutus 324 is a passage concerned with the new proceduresestablished in

the courts under Pompey's law of 52 and its effect upon oratory. It is very

difficult to see how it can be cited as supportfor a trialof M. Aemilius Scaurus

de ambituin 52, althoughmoderntreatmentsdo so regularly.The only possible

(though erroneous) connection might be the following sentence from the pas-

sage:







AppianBC2.24 and theTrialdeambituof M. AemiliusScaurus 405

cum lege Pompeia ternis horis ad dicendum datis ad causas simillumas

inter se vel potius easdem novi veniebamus cotidie.

The meaning of the sentence in context is clear enough: such a spate of

similar cases began to arise after Pompey's ambitus law (especially with its

retrospective clause) that Cicero and others were pleading extremely similar

cases on a daily basis. vel potius easdem is a bit of rhetorical exaggeration and

enhances the self-compliment implicit in novi: "we came daily with new ideas

to cases that were extremely similar to one another, or I should say, the same

old cases".17

It would seem, however, that those who cite Brutus 324 are pressing the

word easdem literally to mean "the same cases which had been tried before",

vel sim. Aside from the fact that the context amply shows this not to be the case,

one wonders what rational criterionallows the word easdem to be stressed and

burdenedwith literality,but exempts cotidie. This rhetoricalpassage was never

meant by Cicero to be read literally, and doing so quickly invites refutation by

reductio ad absurdum.

ii. Appian BC 2.24

So much then, for the other sources adduced for a trial in 52. What remains

as the sole support for a trial de ambitu of M. Aemilius Scaurus in that year is

Appian BC 2.24, which we must now examine. Appian's account can be

attacked on two levels. First, it can be shown that this passage is full of terrible

blunders and gross internal inconsistencies, and almost certainly several more

errors of conflation or carelessness: for example, although Gabinius was defi-

nitely tried (or rather his trial definitely began) in 54 (TLRR303), Appian has

expressly placed all the trials mentioned in this passage in 52, duringPompey's

third consulship. This ought to give us pause before we put too much stress onany chronological indications in the rest of this passage. Secondly, Appian's

narrativecovering the period from the conspiracyof Catiline to the outbreak of

the Civil War (i.e., from 2.8.26-2.32.127) is disastrously exiguous and care-

lessly composed; it is full of curious chronological jumbles and errors of fact of

just the type under discussion here. A brief catalog of five within only a few

chaptersof BC 2.24 proves very interesting:

17 This is the spirit of the translations by G. Masera (Brutus [1947] 262), J. Martha (Brutus[Paris 31960] 120), G.L. Hendrickson (Brutus [Cambridge, MA 19621 281), E.V. D'Arbela

(Bruto [Milan 1968] 261), and B. Kytzler (Brutus [Munich 1970] 251). Further, the

comments of M. Kellogg (Brutus [Boston 1889] 158), 0. Jahn-W. Kroll-B. Kytzler

(Brutus [Berlin 61962] 230), and A.E. Douglas (Brutus [Oxford 1966] 229) all support

this interpretation.








2.14.52/16.59:In the formerpassage,AppianstatesthatCaesarhad Vatinius

andP. Clodiuselectedto the tribunate uringhisconsulship &TJ.adpxol);6i? 3pe^vtoatvt6v TEKOstI X66&ovxov Kakov einiicXiv), though

Vatiniuswasactually ribunen 59, as is well known. nthe latterpassage,

Appian ntroducesMilo, who will act as tribune n 57 to effect Cicero's

recall, but makes Clodius his colleague (6 &?Mitwva, TOvaiov tc

KXcxSiqrilv acpXilv cpctbap6e'8ivov). Appianhas managed o contra-

dict himselfwithin50 lines of text, andhe has associated he renowned

(even infamous)nameof Clodiuswith the namesof two other famous

tribunes f nearbyyears,or vice-versa.Thisis strongevidence hathe was

not simplytaking henamesof colleaguesnthe tribunicianollegesof the

years n question lavishly roma source,but wasworking rommemory.

2.17.61: Appian ntroduceshis chapterson the meetingat Lucain 56 with a

briefresumeof Caesar'sactions ince leaving or Gaul o 6? KaoacapCvTE

KsXtOi; KcW'pet-ravoS; iokkX&KcaLt agnp&a ipyaaipvo;, 6aa Rot

nE?pK?vk v tpl kovxov g(v i; mv 8ov kaxiqc

raxaicav, ti"v adp' tov 'Hpt&xvovCoxagov,7

iev). Caesardid indeed

carryout two expeditions o Britain,butneitheroccurred efore he meet-

ing at Luca;therewas anexploratoryxpedition n (perhaps utumn) 5,

and the main expedition was in 54.18 What is interesting is that in theepitome of Appian's Celtica (fr. 1.12-13), the crossing to Britain follows

the famous slaughter of the Usipetes and Tencteri (the slaughterand then

the first exploratory expedition both occurred in 55: see MRR II 219);

though the chronology is only relative, it is nevertheless correct. In com-

posing the very condensed narrativeat BC 2.17, Appian evidently did not

trouble to go back and rereadhis own work, which he cited.19

2.17.64: Appian here conflates two events. He describes the consular election

for 55, emphasizing the violence thateruptedbetween the clients in attend-

ance upon Pompey and Domitius Ahenobarbus.He adds what must have

struck him as a remarkabledetail: Pompey's bloodied clothes were borne

home (Hlol9rltio1) V'r;v aixajtd tvE; i aypEkviv ?pepOV o'iVoa&),an

indication of how close to dangerhe had come. This detail actually derives

from anotherincident, at the aedilician elections in 55; we have the story in

both Plutarchand Dio.

Plut. Pomp. 53.3-4: ev &'OV ayopaVOIttKo; apXatpEG'tO S1 X%EtpaP

tivow ?Xi60VTCOV,iat pOVEU EVTCOVpt aliv o1) 6Xiyw,

18 Cic. Q.F. 3.1.17, 25; Att. 4.18.5. See Klotz in RE X (1919) 205-206, andM. Gelzer,

Caesar (Oxford1968) 130.

19 Admittedly nternalcross referencescannotbe pressedtoo closely. See C.B.R.Pelling,

"Plutarch'sMethodof Workin the RomanLives",JHS99 (1979) 80-82 on problems

withthe internalreferences n Plutarch.







AppianBC 2.24 and theTrialde ambituof M. AemiliusScaurus 407

dvwaXiak&IG ; aciiaToo; ixxXct t& WidTa. nroxXoi 6? tiopiSI3oo iaccx

6pogot lppo6;tiv otitav wVo0EVOiV TC6V olvORIvwv T& titaua

15spotrO6VToV, EtuVX gI?V 11 KCOpIrc0ouaw tThaaagvrj 8? iaiM ay-

'VfV -V -EVVOV, ?4?X1x? Kat 'XtIX;Veyic, ?K 6? t tapcxf;

?KEtV1S KOatO) naEO) nlTXKV.

Dio 39.32.2: nFep't8? to; iOyopav6oRo); TOtIo; coupouxiou5; a(payat

acv a cv, 6T? Ksatov Fognpiriov loXoii aiiwxro;avanoX11alfvat.

The story is easy to remember because it is striking, but Appian has

erroneously connected it to another election, evidently because he has

pulled it from memory and placed it where he thinks it belongs.

2.18.67: Appian places the grant of Pompey's cura annonae in 53. He was

actually chosen for this task in September 57 (Cic. Att. 4.1.7); Appian

furtherexpressly states that the numberof Pompey's legates was 20, andhe

goes on to say that this is the same as the number that was grantedfor the

piratecommand in 67. In fact, Pompey was probablygiven 25 legates in 67

as Appianhimself claims at Mith. 94.431 .20The actual number of legates in

57 is reportedas 15 by Cicero (Att.4.1.7).

2.23.85: Appian remembered from his research that Cato had been sent to the

island of Cyprus to annex it in orderto get him out of Rome. This actuallyhappenedin 58, moved by a tribunicianbill of Clodius.21Appian,however,

deduced that Pompey would have wanted Cato out of his way during his

third consulship, and he duly places Cato's mission in 52: Kai iputo;Un cuv 66e [sc. Pompey] F-VflvtS 8150JEtV(YLGTa W. CTTPOCTlCaVX(OVK(Xt

20 Plut.Pomp. 26.3statesthat WyLovticot &c ca' atpatqymoKt KcarSXkVrav a&roPooux;

avbpE ELKOaitEGOapEqn' ati5toi3, 56o 8&'taciat zapfaav. In the passagecited

from the Mith., Appianuses the followingterminology:5)npc'rat& a6LotrqPo1XiT,oi); iccaoi6n tpsat3e'utc0;, nEVtEKoi dKoatv. InBC 2, Appianremembershe details

fromhis earlierexpositiononly vaguelyat best (certainlyhe was not excerptinganother

author losely here),sincehe uses muchmoregeneral erminology ashe is oftenwont to

do: see Luce[asin n. 8] passim,esp. 143; H. Mason,GreekTermsforRoman nstitutions,

in American Studies in Papyrology 13 [Toronto1974] 16): o'i icati5ep ?int Xov Xr-

cFTt1piO)VlKOmV aCltO Tr P3oUXTh)Jncpe'TcC;`&Kcav. See F. Miltner (as in n. 2) 2136-

2137 and R. Seager, Pompey. A Political Biography (Oxford 1979) 110-112.

21 The brief report of Velleius (2.45.4) is representative: Idem P. Clodius in tribunatu sub

honorificentissimo ministerii titulo M. Catonem a re publica relegavit .... Where a date

can be found in a source, it is almost always one linking Cato's mission to Clodius'

tribunate,as is the case in Velleius, Strabo 14.6.6), Plutarch Cat. Min. 34-40; Pomp.48.6), Florus (1.44), and Dio (38.30). In the periochaof book 104 of Livy, the event is

relatedamongthe events of 58 whereit belongs.There is no tradition save for Appian)

placing Cato's mission in 52. See Broughton,MRR11198, 204, and 211 for the other

sources.The storyabout the captureof Clodiusby the piratesappears o be true andis

echoedin Strabo 14.6.6 andDio 36.17.3.








Xpijgata KcatrhivTno 7?XwO;glovapxiav &TaTO Iovo; i1rato; dVot

Kadtowva F?v en(piaato, tva ni irapcov ?VoXkoilr,K6lrpov

6tpcxua-t*at HtoXpaiou pacatXco;, VEVOgO*STngFJIVOVi6r tofrto V'6iO W-

&ioi., on ot ious a,X6v-tvior XiZar6)vo FfloXcdio; S;X-6'rpa 5ior

cTYKLXpOko'cc; Vi'orTdXav-r sinetOppei .... Appian had a good memory,

as the details he adducedseem to show; he even remembered hat Cato was

sent to Cyprus at the instigation of Clodius, though he has inserted this

event into the narrativesubsequentto Clodius' death(hence presumablyhis

use of the perfect vevogo*?riiEvov)

However, here as in the other passages cited, Appian was apparently

working largely from memory alone, since he could hardly have bungled thechronology so badly if he hadbeen closely following anothersource. It does not

seem possible to absolve Appian of his chronological problemshereby assum-

ing that he was following a non-annalistic source of some sort, for if he were

following (e.g.) a treatmentof Pompey's third consulship in a source, thereare

too many inexplicable inconsistencies between his account and the general

tradition. For example, Cato was a juror at Milo's trial for the murder of

Clodius; there is also the reportpreservedin Plutarch'slife of Catowhich states

that Pompey was offered the sole consulship by a motion of Bibulus at Cato's

suggestion, and that, far from wanting Cato out of the way, Pompey asked himto be his special counsellor. Plutarch also reports a small dialogue between

Clodius and Cato in which Cato rejects the specious claim that he was being

sent to Cyprusas an honor, andClodius retortsthathe may thenconsider it to be

a punishment: there was a vivid traditionof the actual confrontationover the

mission to Cyprusbetween Cato and Clodius.22

Appian's account of the mission to Cyprus is therefore characterizedby

many details which are sharedwith our other sources, and even highlights the

role of Clodius in instigating the mission. Yet no source takes the mission as

having been in 52, but rather(when some informationis given to allow datingthe event) in 58; in addition,we even have Appian'sembarrassedacknowledge-

ment that he seems to know the predominant raditionin his statementthat the

law had been moved by Clodius, together with his use of the perfect tense for

Clodius' action. The only mechanismwhich seems to be able to account for the

inclusion of memorable details, the murky knowledge of the predominant

tradition,and the confidence with which the incident has been inserted into the

wrong setting (with Appian's own justification included for good measure) is

memory. It is possible thatAppianhad writtendown the event in a sketchy note

without a date; this would helpto

explain whythe passage seems to have been

22 Catojuror:Cic. Mil. 26; 44; 58; Asc. 47C. Bibulusmoves thatPompeybecome sole

consulat Cato's suggestion,Plut. Cat.Min.47.2-3; Catosolicitedas Pompey'scounsel-

lor, Cat.Min.48.1; dialoguebetweenClodiusandCato,Cat.Min.34.3.







AppianBC 2.24 andthe Trialde ambituof M. AemiliusScaurus 409

inserted whole as a discrete piece into the narrative,and would also help to

smooth over the apparentcontradictionif we were to proposethatAppian had apoor enough memory to make wrong connections and chronological jumbles

with great frequency, but on the other hand had a good enough memory to

remember striking details. However, it should be noted that the process of

remembering striking details and writing them down in an imprecise way (in

essence creating a caricature) is not so difficult a task as the analysis and

handling of large amounts of data in memory that the making of correct

connections, causal and temporal,would have required.

Several interesting observations can immediately be made. First, as men-

tioned above, Appian has confidently inserted the incident where he thinks itbelongs, without any explicit equivocation. Further,he has written what is not

true, namely thatPompey, as sole consul, has caused Cato to be voted the task.

The verb irr(pimaro appears to be factitive, though Luce, who studied Ap-

pian's understandingof Republican institutions, thought that what look like

factitive verbs in the middle voice are in reality symptoms of Appian's igno-

rance anderroneously signify directaction by the subject. In addition,Luce has

adduced many cases where Appian has taken a shortcutand attributesan act

(law, election) to a magistrate when it really was a product of the public

assemblies.23 It is important o bear in mind, therefore,thatwhen faced with anaporia in his knowledge, Appian often took an easy route and wrote a simpli-

fied account so as to facilitate the flow of his narrative.There is, for example, a

tiny grain of the truth in his statement (BC 2.14.51-2) that Caesar chose the

consuls and tribunesof 58, but this brief notice disguises the truth,which is far

more subtle and complex, and vastly overstates Caesar's responsibility.

23 See Luce (as in n. 8) 110-121, discussing (i.a.) the following notable examples: the

senate elects Bibulus consul in 59 (2.9.34), elects Merulaconsul in 88 (1.65.296), and

publishesthe publicnotice of an assembly (1.24.105); Cinna chooses Flaccus consul of

87 (1.75.346)andCarboconsul of 86 (1.75.346),while Caesardesignates he consulsand

chooses the tribunesfor 58 (2.14.51-2); Saturninus atifies his own law (1.31.140), as

doesPompeyat the headof the passageunder pecialconsiderationn this essay (2.24.89);

the consuls "vote" o make foreignersamici of the Romans Gall. 16), to make war(111.

11.33), declareenemiesof thestate (1.81.370; 1.86.390), and assign provinces 3.16.58);

Pompey orders Milo as tribuneto vote for Cicero's recall (2.16.59), while Servilius

Glaucia,the praetorof 101, presidesover the tribunician lections. See also p. 113 on

Appian's use of the word njpio. (used bothfor the votingof laws in thecomitia andforthe decrees of the senate), and 119 n. 37 on factitiveand causative uses of verbs for

ratificationand voting. In general,Luce demonstrates hatAppiantends to use words

inconsistently,and thatAppian'sknowledgeof the workingsof the assembliesat Rome

was so confused and error-pronehat"in his treatment f them,perhapsmore than nany

otherphaseof the constitution,we oughtmostto be on ourguard 110)."








Appian thus is prone to such odd temporaldislocations and factual errors;

the explanation probablylies in his working methodand ignorance.24He seemsto have spent a fair amount of work gathering data, as is shown by the

interestingdetails he preserves,but he was not interestedin carefully and(more

importantly) accurately documenting every fact, and he often created gross

simplifications to cover areaswhere he failed to understand he complex causes

of events. He was content to rely on his memory, particularly f he had already

studied a certainevent for anotherportionof his own work. He addeddetails as

they seemed appropriateandas he remembered hem,anddid not revise his text

to correct any errors. This probably arises from the fact that at least in his

narrativeof the fifties, as the natureof his mistakes indicates,he has greatly

compressed events and appearsnot to have followed any source directly.25

Appian was mostly interested in the conflict between Caesarand Pompey

and Caesar's subsequent sole rule in BC 2 (as Appian makes clear at Praef.

14.59, BC 1.4.12-17, and BC 2.1.1), and accordingly he hastens from the

conspiracy of Catiline to the opening of the civil war in a highly abbreviated

and compressed prologue: the entire narrativecovering the period fromthe end

of the Catilinarian conspiracy through the Kalends of January,49 consumes

approximately 25 pages of Teubner text (the entirety of BC 2 consumes 158

pages),whereas the text concerned with the events after Caesar's death, com-

prising only a fractionof the year44, consumes 30 pages. The qualityanddetail

of Appian's narrativevaries greatly depending upon his interest level and its

usefulness to his programmaticdesire to display the disastrous consequences of

the factional strife between the greatdynasts of the late republic.26

What then of the passage concerning the trials of 52? It appearsto be cut

from the same cloth as the five examples discussed above and, since it shares

many common features with them, should probablybe added to the list.

First, we have the manifest temporal dislocation of Gabinius' trial de

maiestate. The trial began and ended in 54 (an acquittal was reached on 23

24 Compare he similarobservationsof Pelling,Plutarch'sMethod as in n. 19)passim.

25 It is K. Brodersen'sview ("AppianundseinWerk",n ANRWII34.1 [Berlin19931358),

baseduponempiricalobservation,hatAppianconsultedonlyone sourcescrollat a time.

Thisheexplainsbythe exigenciesof the physicalmanipulationf scrollsforconsultation

andcomposition.Inthesamevolume,D. Magnino "Le'guerrecivili' di Appiano" 24-

526; 536-549) adduces estimonyandevidencefromthetext for Appian'swide reading

andargues hatAppianmusthaveconsultedat leastseveralsources.Theseviewsareable

to be reconciled,at least in the case of the narrativen theearlyportionsof BC2, by the

solution proposedhere: Appian wasconversantwith more than one source, but he

probablydirectlyfollowedonly oneof them,orperhapsmore ikely,a skeletaloutlineof

his own manufacture,illing in therestfrommemory.

26 Appian's interest n and approvalof the rise of monarchicalpowerout of the hopeless

self-destruction f the late republichaslongbeenseen:cf. E. Gabba,Appianoe la storia

delle guerrecivili (Florence1956)3-9.







AppianBC 2.24 and the Trialde ambituof M. Aemilius Scaurus 411

October 54, TLRR296); yet Appian not only writes that the trial took place

under Pompey's third consulship, but the natural inference is that he was triedunder some lex Pompeia. There can be no mistake that it is the trialde maiestate

to which Appian is prominently referring with his mention of the Sibylline

books;27however, it must be rememberedthat Gabinius was only subsequently

convicted repetundarum(underthe lex Iulia) in a roughly concurrenttrial (the

divinatio for which occurred duringthe course of the trial de maiestate, on 12

October 54, TLRR303). The litis aestimatio was probably for the 10 million

sesterces reputedly given by Ptolemy to Gabinius (mentioned at Pro Rab. Post.

21), and Gabinius chose exile eitherbecause he was unwilling or simply unable

to pay.The terminology which Appianuses to describe the charges against Gabin-

ius is nontechnical, and thus really does not assist in resolving the uncertainty.

Thechargesarenapavoi.iia anda&c?,Bsu&T(opn ; rr"(ptiagcto; ; Altyurrov

jiTa OnTOCvTICaC43aXav&lnxyopsu6vtovxTVvtoXXdACov). icapavogiic

is not a technical term under Roman law (or rather,not the translation of one);

nor does Appian use it so.28 a&Y4kia is sometimes used to translate the term

maiestas imminuta,29but here it is being used in the more common, nontechni-

cal sense of impiety, as can be seen by Appian's immediate gloss of the word.

Gabinius was not tried de maiestate because he had defied the oracle of theSibyl but because he had (inter alia) disobeyed the senatus consultum (of 14

January 56, resulting in partfrom the consultation of the oracle: cf. Cic. Fam.

1.2.1) forbidding armed entry into Egypt, or more precisely, because on the

basis of the earlier decree, no new decree had been passed giving explicit

permission to Gabinius to leave his province with an army and carryout other

actions otherwise prohibitedunder the lex Cornelia de maiestate.30acre,ta is

27 On the Sibyllinebooks, see e.g., Dio 39.55.2ff.;39.56.4; 39.59.3; 39.61.4; 39.62.3. The

incident of the public readingof the Sibylline oracle by the tribuneC. Cato while the

restorationof Ptolemy was being debated was notorious,so much so that even Lucan

made mentionof theoracle (8.823-26), thepartialwordingof which is to be found nDio

39.15.2.

28 The word s not given a technicaldefinition n LSJ9,norwill it be found neitherMason's

Greek Terms for Roman Institutions (as in n. 20), or D. Magie's De Romanorum iuris

publici sacrique vocabulis sollemnibus in Graecum sermonem conversis (Leipzig 1905).

Appianuses wordsbeginningniapavot- 27 times,and it seems thatthey simplyindicate

"an llegality"or"illegally"or"contraryo established aw".nrapavoj.iacs even usedto

describe the murder f Pompeyby Achillas and Pothinus BC2.90.377).

29 See Mason (as in n. 20) s.v.30 Cf. the charges as listed by Cicero, Pis. 50: exire de provincia, educere exercitum, bellum

sua sponte gerere, in regnum iniussu populi aut senatus accedere ... cum plurimae leges

veteres, tum lex Cornelia maiestatis, lulia de pecuniis repetundis planissime vetat.

Appian knows that a lack of authorization s what got Gabinius into trouble(x)wp'tq

jpiactato;); but he seems to think hatthe law that was brokenwas theSibyl's oracle.








further ruled out as a technical charge because Cicero had caused a further

search of the oracles to discover if they contained penalties for those whodisobeyed them (cf. Dio 39.59.3; 60.4), and no penalties were found (Dio

39.61.4). Thus, although Appian manifestly refers to the trial de maiestate, he is

guilty of using imprecise or nontechnical language, as he is often wont to do.3'

Appian further states that Gabiniuswas convicted (in absentia) and thathe

suffered a confiscation of propertyon top of his exile.32Here, as usual, Appian

seems to have been working frommemory:while writing a passage to describe

the famous spate of trials in Pompey's third consulship, he simply inserted the

famous trial (de maiestate) of Gabinius into the list of true trials of that year,

and conflated Gabinius' two trials into a single episode, for the episode of theSibylline oracle and the conviction stem from two different trials; the public

confiscation which Appian mentions would have precipitatedGabinius' self-

imposed exile. The facts are there, but Appianhas hopelessly muddled them.

The trials or indictments of Milo, Hypsaeus, and Metellus Scipio (who

appearsin Appian's narrativeshortly after the portionof the text quoted above

[2.24.93-94]) all belong in 52. The trial of Memmius is subject to the same

temporal uncertaintiesas thatof Scaurus,but in the case of Memmius we have

no other clues to discover the truth.33As for the mysterious ,arto;, his

Cf. Syr. 51.258 where he gives the report n slightly more detail (thoughwith equal

confusion):o Frc4ivioq .. vno6& T5; 'Pwliaiov povxfj E,quwv'i. xT4ave0 i(pit7-

axto; ; Altywnov t>aketv br' noX4gx 'PNoatiot; XUatatiqTopIogvqr- rv yp

u 1tPhSXXtova-6ot; dmocyopeiov.What is really interestinghere is that Appian

placestheresponsibility orGabinius'exile on the senate; here s nosuggestionof a trial,

muchless one set amidthemanyhe relatesunder eges PompeiaeduringPompey'sthird

consulship.It is not possible to makeany certainstatementsabout the developmentof

Appian'sthought n thismatter,because nternal eferencesare uncertain nd we thuscan

makeno ironcladstatementaboutthe primacyof theSyr.over BC 2. It is worthnoting,

however,thatAppianhas differentversionsof the samestory,andhas not revisedoneversionin thelightof the laterone (whichever hatone was).

31 In this respectAppianis typicalof his age: see H. Mason,"TheRomanGovernmentn

GreekSources", n Phoenix24 (1970) 150-159.

32 One of the provisionsof that law was quadruple epaymentof the illegally accepted

monies:see Rotondi,Leges publicae(as in n. 9) 390.

33 Trials of Milo: TLRR309, 310, 311, 312; Hypsaeus:TLRR322; Scipio: TLRR321;

Memmius:TLRR 20. Munzer as in n. 2) 614 placesthecondemnation f Memmius n

52 on the basisof the passageof Appianunderconsideration.nthecaseof Memmiuswe

have the additionaldetailat BC 2.24.93-4 thatMemmius riedto takeadvantageof the

retrospectiveclause of Pompey'sambitus aw in orderto clearhimself by securingin

exchangethe convictionof MetellusScipio. If thisdetailis accurate, henhis conviction

would probably mmediatelyprecedehis attemptto secure a pardon,since he would

scarcelyhavebeenallowedto remain n Romefor too long a periodafterhis conviction

(despitethe fact thattheRomanswerefairly enienton thispoint:see A.H.M.Jones,The

Criminal Courts of the Roman Republic and Principate [Oxford 19721 77); Asconius







Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 413

identity cannot be ascertainedfor sure, though it has long been proposedthathe

be identified with Cicero's friend P. Sestius.34 Sestius was tried in 56 andacquitted, and it seems probablethat he was indicted (and acquitted, inasmuch

as he was a provincial governor in 49) lege Pompeia in 52 (or perhapsa year or

two later). Certainit is thatAppian madeyet anothermistake if he thought that

Sestius was convicted.35

The trial of Scaurus was probably drawn into the narrative of 52 by the

same reliance on memory (and perhapscarelessness) which led to the inclusion

of Gabinius' trial. Scaurus' earlier (and far more famous) trial had occurred in

54, ending in September; the trial of Gabinius de maiestate for his actions in

Egypt (the trialwhich Appianhad in mind: see at n. 30) began on 28 September54 and ended 23 October. Appian would appear to have read in his sources

about the nearlycontemporarytrials of Gabinius and Scaurus in 54, and the two

were associated in his memory. When he came to write of the trials of 52,

Appian's desire to supporthis claim that there were "anumber of varied trials",

as well as an unwillingness to check his sources again influenced his memoryto

include that of Gabinius; Scaurus was also dragged in, either for the same

reason, or because of an association in the historian's mind between the two

trials.

Appian states quite carefully and specifically that with the introductionofthe lex Pompeia there was immediately a number of various trials.36He thus

reports that after his conviction, Milo in exsilium Massiliam intra paucissimos dies

profectus est (54C). This would be the sole piece of evidence to place Memmius' trial in

52, however. Against it is the common silence of Plut. Pomp. 55.6-10, Dio 40.53.1-2,

and Val. Max. 9.5.3, all of whom mention Scipio and Hypsaeus while omitting both

Scaurus and Memmius (and of course Gabinius). Appian thinks that the two Memmii

mentioned in BC 2.24 are the same man, presumably the praetor of 58. There is also C.

Memmius the tr. pi. of 54 who might easily have been the prosecutor of Metellus Scipio;

but see Shackleton Bailey (Cicero's Letters to Atticus v.2 [as in n. 4] ad Att. 4.17.5 and

Cicero: Epistulae ad Quintum Fratrem et M. Brutum [as in n. 13] ad Q.F. 3.2.3) on the

confusion between these Memmii possible for users (presumably ancient as well as

modern) of the primary sources; there is also the instructive example of Alexander (as in

n. 1), who takes the Memmius who prosecuted Metellus Scipio (TLRR321 ) to be the tr.pl.

of 54, trying to recover his civic status after his condemnation in TLRR 320 (where he is

C. Memmius pr. 58 ).

34 See Munzer in RE IIA (1923) 2040 s.v. "Sextius" (5), and 1887-88 s.v. "Sestius" (6).

A.C. Clark (as in n. 2: xiii) took the name as Sestius already in 1895.

35 Clark (as in n. 2: xiii), for example, thinks that "one would naturally expect to find him in

trouble together with Milo" (which may be the same reason Appian included his namehere).

36 One must note that Appian states that Pompey ratified the law, attributing to him the

action of the popular assembly; Pompey is the focal point of the narrative, and he is

treated as the sole person responsible for the events at Rome during his third consulship.

See the discussion in note 23.








thinks that all of the trials fell completely under Pompey's third consulship.

While Appian nowhere actually states explicitly that Scaurus was tried deambitu, this would seem to be the best way to interpretthe passage; the two

chapters (BC 2.23.87-88) immediately preceding the sections quoted at the

head of this paper begin 6o& nog ijRo; SiKai; iEpoVirt t65v te Exxov

&j.aprjj.atwv iKca.aXita &opo5oicxK SeKacshou, ct., andproceed

into two long sections on the retrospectivenatureof the new ambitus law and

how it affected Caesar,Pompey and their relationship.The pro fonna mention

of iXkXajczapTq1a?a seems to be there mostly to explain the presence of the

trials of Milo and Gabinius, which are the only ones for which charges other

than ambitus have been specified, though imprecisely (see text at n. 28).Immediately thereaftercomes the passage quoted at the head of this paper(BC

2.24.89ff.), beginning with the words Totaiva 8' Feirbv 'cipov oU v vo6ov,

ia't k7E v*O; avctiicKa&KC6VotiXcov. The latter phrase once again ap-

pears to be in anticipation of the anomalous trials he is about to mention, and

indeed, his enumerationof the trialscommences with a neatsplittingof the non-

ambitus trials from the ambitustrials by the use of a p1?v... &?structure.Once

Appian commences with his list of ambitus trials, he does not introduce any

other type of case right throughthe end of the passage, at BC 2.24.94, though

there is some intervening materialon

penaltiesmeted out, and the senate's

rewardto Pompey for his diligence (2.24.92). Scaurus' trial is describedimme-

diately afterthe first list of trialswhich areexplicitly statedto be de ambitu,and

would have been incorporated nto the list in that sentence but for the fact that

Appianhadtoo much to say aboutScaurus'trial not to putit into abrief passage

of its own. When the list of trials recommences at 2.24.93, we have Memmius,

&Xovi;?i' 6&KacCsTgand thus to be naturallytaken as the same Memmius, as

far as Appian is concerned, as the Memmius mentioned immediately above as

convicted de ambitu:see n. 30), tryingto redeem his conviction by securing the

conviction of "Lucius"(really Q. Caecilius Metellus Pius) Scipio, the father-in-

law of Pompey, for the same crime, yet again explicitly designated ambitus.

Thus, according to Appian, Scaurus' conviction fell under the new lex

Pompeia de ambitu.The idea that Scauruswas indicted in 54 (and thus neces-

sarily underthe lex Tullia), butthaton the basis of Appian's testimony this trial

was delayed in its completion until 52 thereforerunsinto a serious problem. If

we choose to press Appianclosely on the date (and he is the only reason to put

Scaurus' trial in 52)237we cannot then ignore other (perhaps inconvenient)

details of his report.This contradiction arguesstronglyagainst the theoryof the

37 Gruen as in n. 2) 348 placesScaurus'conviction n 52 primarily n the basisof Appian

(see the sources for convictionhe cites in his n. 182). Yet he has alreadydismissed

Appian's downdatingof Gabinius'trialand convictionto 52 from the same passage,

thoughhe ignoresthe mixtureof two trials n Appian'sreport,327 n. 83.








single, delayed trial. There is no escape through argumentthat what Appian is

referringto are proceduralchanges established underthe lex Pompeia, applica-ble to all the quaestiones. Appian is innocent of all of this, as can be seen from

his remarks beginning at BC 2.23.87ff. He knew from his reading that there

were a great many trials under a new ambitus law which contained striking

provisions (retrospectivity, redemption for conviction), but when he writes of

other trials, his knowledge of charges and the termsof the relevant laws fails, as

the vague language he uses, as well as his errors,show. The singular 6ovvo6jov

at 2.24.89 seems to show that the ambitus law remains the chief object of

Appian's interest in the following, crucial passage, despite the perfunctory

mention of "varied trials"andthe convictions of Milo and Gabinius. However,since it seems that the lex Pompeia de ambitu actually set up an independent

and permanent quaestio and thus simply replaced the lex Tullia, the idea that

Appian might be giving us an accurate report of a single delayed trial (of

Scaurus) fails by an immediatecontradiction.38

Appian's statementthatMilo andGabiniuswere both convicted dclcovte is

interesting. Milo was in fact not convicted in absentia for the murderof Clodius

(at least not in the trial for which Cicero delivered his unsuccessful defense),

but, as Asconius states, departedinto exile intra paucissimos dies (54C) after

the verdict. Since the trial of Gabinius which Appiandescribes is not the sameone as the trial which led to his conviction, one mustwonderwhere the notice of

conviction in absentia comes from.Was it attached to the notice of the outcome

of the trial repetundarum,which Appianhas conflated with the earliertrial? Or

has Appian simply assumed, on the basis of his own knowledge or to simplify

matters, that people naturally went into exile to evade penalties? It seems as

though cmotvtc; refers only to Milo and Gabiniusbecause it is within theirpkIV

clause, but Appian might even have meantit in connection with the others in the

6' clause, because it is in close connection with the verb ?adX(ouav, which,

though buried in the gE'vclause, manifestly goes with both. We know thecircumstances of the conviction of none of the others (if X ato; is Sestius he

was not convicted at all), though Appian's own testimony that Memmius was

still aroundto indict Metellus Scipio would seem to indicatethatAppiandid not

intend the adjective to apply to both halves of the ,U?V .. &?sentence.

There is one other important topic to discuss. Appian seems to give the

impression that he knows a great deal about the trial of Scaurus, since he

describes it in relatively great detail (one full sentence, 2.24.91). The question

immediately arises: do the details Appian adduces concerning the trial of

Scaurus indicate that here he is speaking with greater authority, and that we

ought therefore to believe the notice about the date of the trial as well? If the

38 On the leges Pompeiae, procedure. and the new quaestio de ambitu, see Gruen (as in n. 2)

236-239.








same method that brought the conflated notice of Gabinius' trials into this

passage was operatingin connection with Scaurus' trial, it is not at all unlikelythat what we have is perhapsa slightly muddled version of some event at his

trial repetundarumorde ambituoreven a conflation of the two. As we saw with

the reportaboutCato's mission to Cyprus,temporaldislocation of the story did

not dislodge factual materialsurrounding t. Nor need Appian's statementthat

Pompey ordered Scaurus to submit to the court delay us long. In the story of

Cato's mission we saw that inasmuch as Appian had decided that the report

belonged in Pompey's sole consulship, he confidently fit it into the context and

made Pompey personally responsible. Also understandable s the story of the

"onrush of Pompey's soldiers". Once Appian had decided that the trial ofScaurus belonged underPompey's thirdconsulship, any suppression of disor-

der was perhaps almost inevitably to be ascribed to Pompey's famous praesi-

dium of guards, about which Appian had at least some knowledge, as 2.24.89

shows.

It is importantto rememberthat Pompey's praesidium,to follow the best of

our evidence, was an ad hoc response to violence, actual or threatened,during

the trial of Milo for the murderof Clodius. Cicero's revampedspeech for Milo

contains several references to thepraesidium, but they cannot really be used to

indicate much beside the simple (and unquestionable) fact that therewere

soldiers in the Forum during the trial of Milo - the notices are ambiguous,

inasmuch as they might have been included to appease Pompey or protect his

reputation,or to excuse Cicero's own performanceat the trial. When we come

to the secondary sources, the best is Asconius, who consulted i.a. the Acta for

the period in question.39The passage is very importantand merits careful

observation:

quem [sc. one of the witnesses] cum interrogare M. Marcellus coepisset,

tanto tumultu Clodianae multitudinis circumstantis exterritus est ut vim

ultimamtimensin tribunala Domitio reciperetur.quamob causamMarcel-lus et ipse Milo a Domitio praesidium imploraverunt.sedebat eo tempore

Cn. Pompeius ad aerarium, perturbatusqueerat eodem illo clamore: itaque

Domitio promisit se postero die cum praesidio descensurum, idquefecit.

(Asc. 40C)

According to him, thepraesidium was a resultof a requestoriginatingwith

Milo and his patronus M. Marcellus, who were concerned by the intimidation

tactics of the Clodian mob. Asconius also carefully states that Cicero quailed

39 Asconius was very careful in collecting data for his commentary. Marshall (as in n. 10)

55-57 notes that of the six references to the Acta in the surviving body of the commen-

tary, five are within the Miloniana; further, Asconius even makes the explicit claim that

he went through the Acta: sed ego, ut curiosius aetati vestrae satisfaciam, Acta etiam

totius illius temporis persecutus sum (44C).







AppianBC 2.24 andtheTrialde arnbitu f M. Aemilius Scaurus 417

not at the sight of the soldiers, but at the threatsof the Clodians who could not

be stilled in spite of the guards:

Cicero cum inciperet dicere, exceptus acclamatione Clodianorum, qui se

continere ne metuquidemcircumstantiummilitumpotuerunt. Itaquenon ea

qua solitus erat constantia dixit. (Asc. 41-2C)

Lucan and Suetonius also makereferenceto thepraesidium. Lucan(1.319-

323) describes the fearful court surroundedby an unaccustomed corona of

soldiers with shining swords, but makes it clear that only the trial of Milo is

meant: Pompeiana reum clauserunt signa Milonem. Suetonius encapsulates

Caesar's motives for marchingon Rome:cum M. Cato identidem nec sine iure iurando denuntiaret delaturum se

nomen eius, simul ac primum exercitum dimisisset; cumque vulgo fore

praedicarent, ut si privatus redisset, Milonis exemplo circumpositis arma-

tis causam apud iudices diceret. (DJ 30.3)

Perhaps because some authoror authorstook Caesar's assertion to be a fact,

another tradition seems to have developed in which the praesidium became a

constant fixture at the trialsof 52. Dio (40.53-54) states thatMilo was unable to

avail himself of violence in order to get off, because Pompey put the rest of the

city under guard, and himself entered the court with soldiers. He continues:

i5opPrlac,vtwv Te bTrTOU5OTqtv)6vTpOCSaEtEc0ti atpatl6tL at bc&6uiat

OB'YtcO'6 ?K Ur; w(yopCX;7cXwyot0 KOct1XLtES(YtTOt; tUpECmllaiovtOa;. ?1E?t-

6 j TE oljX 17EtKOV atXa Ksat KaftaXEp ?v nat&cw -rtVt xaytCoj.tevot

iI"PtIOV, KI't ?tp6t5flGV ttVc; avTOWv Mat dXifavov. (40.53.3) Dio then

states that thanks to Pompey's measures, the courts met in peace - it is

impossible to say whether he means that Pompey's guards were there for all of

the trials of Pompey's sole consulship (or some other span of time) or not. At

the very least Dio seems to know thatthepraesidium was prompted by the trial

of Milo,40even though he did not make clear (or perhapseven understand)its

ad hoc nature. The similaritybetween the passage quoted here and the story in

Appian concerning the events at Scaurus' trial ought to be noted as a possible

40 In this same category might also be listed Schol. Bob. 1 12St. and 125St., where the

praesidium is implied to be a direct tool of Pompey in securing Milo's conviction; the

same is true of Schol. Gronov. 323St. The passages in question are much compressed and

reveal the influence of a tradition that held Pompey to have used his power to get rid of

Milo (as opposed to what Asconius reports, that Pompey gave the praesidium as aresponse to a very real need-even if he was glad to get rid of Milo). Velleius (2.47.4) also

partook of this tradition, making Pompey hostile to Milo. Quintilian (4.2.25) mentions the

praesidium in an analysis of whether the Pro Milotne seemed to have been written

effectively, in particular with regard to Cicero's question to the jury whether the praesi-

dium indicated that Pompey was against Milo: but he adds no new information.








mode by which a reportof violence connected with Pompey's soldiers might

have entered Appian's narrative - there was even a tradition ofviolence

connected with the trialof Scaurus repetundarum Asc. 20C) which could have

furtherfacilitated the connection in Appian's mind.

In his obscure brevity, Appiancertainly gives the impressionthathe thinks

the praesidium was permanent.In the passage quoted at the head of the paper

(2.24.89ff.), Pompey enacts his law, and various trials immediately begin.

Then, inserted before any trial gets mentioned, is the notice that Pompey

himself kept watch over the jurors with a guard, in order that the jurors might

not be afraid. There follow the notices of the trials, with no special connection

between that of Milo and the praesidium- in fact the only furthermention of

thepraesidium is in the reportof events at Scaurus'trial.It thus seems thatonce

again we have caught Appianreportingfalsely thanksto his method.He hadno

idea of how and why a praesidium might have been present at a trial, and

indeed, his mannerof writing shows clearly thathe simply knew something like

"Pompey surroundedthe court with soldiers when he was sole consul".

To summarize the discussion of the passage: Appian has made at least one

straightforwardblunder;he has conflated events from several different trials;

his narrativeis inconsistent within its own framework;the narrative s marred

by imprecisionand vagueness; and Appian does not seem to have fully under-

stood either the laws or the penalties underdiscussion fully. In simple words,

his accuracy and method have suffered greatly because he seems to want to

demonstratemore than anything else that there were a great many trials under

Pompey's third consulship, and in his rush to get from the conspiracy of

Catiline to the opening of the civil war he has carelessly written this passage

from memory andnotes without (it seems highly probable)consulting any good

source while doing so or going back over the passage to correcterrors.

III. Otherconsiderations

To this point, we have considered the various scenarios thatwere theoreti-

cally possible and have triedto eliminate possibilities thatarenot supportedby

evidence, and then we examined the evidence cited by moderns to support a

trial in 52. The evidence boils down to the very suspect passage of Appian,

which is the sole reason for considering a trial underPompey's new law. There

is, however, an almost totally overlooked piece of evidence thatthe conviction

of Scaurusoccurredwell before 52.41As we have seen, Cicero wrote in the De

officiis that Scaurus in domummultiplicatamnon repulsamsolum rettulit, sed

ignominiam etiam et calamitatem. A careful examination of the passage in

41 Pointedout by Clark as in n. 2) xiii.








context is merited. De officiis 1.138 concerns the house which Cn. Octavius

(cos. 165) built, the impressiveness of which worked to Octavius' advantagewith the result that he attainedthe consulship first of his family. Then Cicero

turns to the Nachleben of this illustrious piece of property:

hanc [sc. domumlScaurus demolitus accessionem adiunxitaedibus. itaque

ille in suam domum consulatumprimusattulit, hic, summi et clarissimi viri

filius, in domummultiplicatamnon repulsamsolum rettulit, sed ignomini-

am etiam et calamitatem.

The naturalimplication is that Scaurus inflicted this disgrace on his house

(i.e., suffered conviction) inasmuchas it was still in his possession whereas welearn from Asconius in a passage concerning the events immediately after

Clodius' murder (32C) erat domus Clodi ante paucos menses empta de M.

Scauro in Palatio. Clodius was murderedon 18 January52, and thus the house

was bought well within 53, probably as a part of the breaking up of Scaurus'

estate into cash for his exile, as we know was done for Milo (Asconius 54C).42

There is another unexpected clue in the words of Cicero, however. If we

pay close attention to the ironicparallelCicero is tryingto draw,we see thatthe

exemplumreally concerns the quest for the consulship in both cases. Octavius

built an impressive house andit worked in his favor, and he won the consulshipthough a novus homo. Scaurus, on the other hand, in spite of his enlarged (and

presumablyeven more magnificent) property,broughtnot only the shame of an

electoral defeat, but even a conviction andexile upon this house. The notice that

Octavius was a novus homo is paralledwith the reminder hatScaurus,a nobilis,

stood in the line of his renownedfather;the strengthof the parallel rests on their

respective quests for the consulship. Scaurus, then, brought the shame of a

repulsa in a consular election upon his house. A repulsa, as we are reminded by

Broughton, was a full-fledged electoral defeat, not to be confused with a

voluntary or forced withdrawal from the competition.43

42 See Marshall'scommentary n Asconius(as in n. 10) 208-209.

43 Broughton as in n. 2) 1: BroughtonputsScaurus n the categoryof those who "withdrew

or were preventedfrom competing"without any evidence (pp. 22-23), and puts the

convictionin 52 on the basis of Appian.Cf. OLD s.v. "repulsa" 1): "failure o secure

office, electoral defeat; repulsam erre, to suffer defeat in an election." It is in this last

technicalsensethatCicero uses the term, houghhe has tailored hephrase o his purposes

by using theverbsattulitand rettulit.C. Henderson, r.(as in n. 2) 204 also examined he

implicationsof the repulsamentionedby Cicero,buthis analysiswas unsoundbecausehetook the adjectivemultiplicatam o go with repulsam and not with domum,where it

belongs: see the threecommentaries n theDe officiis [as in n. 1I]ad loc.) andto mean

"multiple".Hethus took thetrial n which Scauruswas condemned o be aftera repulsa n

52 (in orderto follow Appian),andpostulatedanacquittal n 53 connectedwithanother

repulsa.








Although the passage in question seems to amply indicateby context thata

repulsa for the consulship is meant, is it possible thatCicero could be referringto an earlier repulsa for a lesser office? Scauruswas seeking the consulship of

53, which was after the minimum interval from his praetorship n 56; Scaurus

had been curule aedile in 58, and campaigned for the praetorship(of 56) in the

following year, which was surely a minimal interval(one would actuallyexpect

a biennium to intervene between the curule aedileship and the praetorship).4

This would make the curule aedileship the office of highest rank for which

Scauruscould have suffered a repulsa before 53. The passage in the De officiis

would lose all of its force if Cicero were comparingOctavius' successful bid for

the consulship with a repulsa for the curule aedileship (or lesser office) onScaurus' part

It thus seems as though Scaurusstuck throughthe campaignfor the consul-

ship of 53, but, as we know, he failed to secure the consulship. After the

praetors were finally elected, Scaurus' trial continued, and ended with a con-

demnation, the disgrace of which, like thatof the repulsa itself, redoundedupon

Scaurus' house. In the aftermath of the condemnation, Scaurus (or agents

working for him, if he had already departed Rome for exile) had his (now

useless) real estate converted into cash, and the house went onto the market,to

be eventually sold to P. Clodius Pulcher,"a few months"before Clodius' death

on 18 January 52, thus perhaps in October or November 53. If this line of

reasoning is correct, then we could date Scaurus'conviction to between July 53

(when Messalla and Domitius were returned as consuls for that year) and

perhapsNovember 53, at the latest.45

These considerations areof course only as valid as Cicero was accurate;yet

Cicero was no fool, and he did take pains to get things right.46In addition, he

had been Scaurus' patronus in the trial, and was doubtless familiar with what

had happened to Scaurusand his house in the aftermathof the trial, which had

occurred only nine years before he composed the De officiis. Lastly, Cicero was

interested in the house as the common point in the parallel between Octavius

44 On the biennial interval between the curule aedileship and the praetorship see Mommsen,

R. Staatsrecht 13 528; but Cic. Fam. 10.25.2 is pivotal to his interpretation, and he has

interpreted it wrongly (see Shackleton Bailey, Epistulae adfamiliares v. 2 (Cambridge

1977] ad loc., citing E. Badian, JRS 49 11959] 81-89). This does not affect the argument

that Scaurus suffered no repulsa in an election for the praetorship.

45 Scaurus' curule aedileship: MRRI1 195; praetorship: MRRII 208; election of the consuls

of 53: MRRI1 228.46 On Cicero's motivation, inclination, resources, and ability to research his works, see the

discussions of E. Rawson ("Cicero the Historian and Cicero the Antiquarian", JRS 62

[1972] 33-45), E. Badian ("Cicero and the Commission of 146 B.C.", Hommages Li

Marcel Renard, J. Bibauw [ed.], I [Brussels 1969] 54-65), and G. V. Sumner (Orators in

Cicero's Brutus: Prosopography and Chronology [Toronto 1973] 161-176).







Appian BC2.24 and the Trial de ambitu of M. Aemilius Scaurus 421

and Scaurus (the jab at the nobiles and the extolling of his fellow novus homo

was impossible for Cicero to resist), and he seems to have taken some pains toroughly familiarize himself with its history. Therefore, while there are certainly

grounds for uncertainty,we should notjettison Cicero's testimony overhastily.

IV. Conclusion

Scaurus was tried once in 54 repetundarum,for which he was acquitted.

Cicero defended him then, and again at a second trial (de ambitu) which began

with a nominis delatio under the lex Tullia enteredby Triariussoon after the endof the first trial. The trial lapsed for some months in 53 duringthe anarchy, but

after Scaurus lost the consulship and a new praetorwas able to continue the

trial, Scaurus was ultimately convicted and went into exile; his house was sold

after his disgrace, but still in 53. When Appian wrote his narrative of the year

52, he incorporated into it, by a characteristic error, reports of the trial of

Gabinius and (perhaps the trial repetundarum)of Scaurus. Save for Appian's

suspect testimony, there is no evidence for any proceedings against him under

the new leges Pompeiae in 52 (naturally,since he was probablyin exile). The

passage in Appian concerning the trials of 52 ought to be seen for the hopeless

muddle it is, and the trial and conviction of Scaurus (and perhaps that of

Memmius the praetorof 58?) in 52 underPompey's thirdconsulship ought to be

excised from the literature.47

The American Academy in Rome Gregory S. Bucher

47 I wish to thank the following colleagues and mentors for their help: Michael C. Alexan-

der, Malcolm Bell III, Edward Champlin, and Karen Edwards. I owe a special debt of

gratitude to E. Badian and Kurt A. Raaflaub, who not only gave me excellent advice, but

saved me from many errors of fact and omission.

bucher, appian b.c. 2.24 and the trial de ambitu of m. aemilius scaurus

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