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Appian B.C. 2.24 and the Trial "de ambitu" of M.

Aemilius Scaurus
Author(s): Gregory S. Bucher
Source: Historia: Zeitschrift fr Alte Geschichte, Bd. 44, H. 4 (4th Qtr., 1995), pp. 396-421
Published by: Franz Steiner Verlag
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I. Introduction and background
M. Aemilius Scaurus, the praetor of 56 BC, is found as the defendant in
three trials in M.C. Alexander's recent compilation of trials under the Roman
republic.' These are a trial repetundarum (for which we have the fragmentary
Ciceronian speech and the Asconian Scauriana) and a trial de ambitu, both in
54; there is also a presumed extension (or continuation) of the latter trial in 52,
during the torrent of prosecutions in Pompey's third consulship. A problematic
passage in one of our sources (Appian's Bellum civile 2.24: see below) has led
many scholars to posit this third (or continued) trial in 52 where none is
supported by good evidence;2 further, efforts to justify the erroneous report in
Appian have led to interesting (mis)use of the evidence from other ancient
sources. Because there will be a constant need to refer to Appian BC 2.24.89-91
throughout this essay, I reprint the text that concerns Scaurus here, with my
On Scaurus, MRR II 208. M.C. Alexander, Trials in the Late Roman Republic, 149 BC to
50 BC (Toronto 1990). Cases will be referred to with their Alexander numbers in the
following format (TLRR 123). Unless otherwise noted, the sources for each trial are
assumed to be tabulated there. All dates are BC.
2 The following is a representative list of scholars who explicitly or tacitly accept a third or
continued trial in 52: L. Lange (Rdmische Alterthiimer III [Berlin 21876]), P. Willems (Le
s6nat de la republique romaine I [Paris 1883] 476477), E. Meyer (Caesars Monarchie
und das Principat des Pompejus [Stuttgart 31922] 237), F. Munzer (RE XV [1932] 614),
M. Gelzer (Pompeius [Munich 1949] 176), F. Miltner (RE XXI [1952] 2165), H. Volk-
mann (RE VIII A [1955] 234), C. Henderson, Jr. ("The Career of the Younger M.
Aemilius Scaurus", CJ 53 [1957-58] 203-204), E.S. Gruen (The Last Generation of 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, perhaps wary of trusting Appian, do not attempt to put a precise date on
the trial, and only affirm that Scaurus was ultimately convicted: cf. E. Klebs (RE I [ 1894]
589), and E. Badian (OCD2 [1970] s.v. "Scaurus" [2]). Extreme skepticism marks the
view of A.C. Clark in his commentary on the Pro Milone (Oxford 1895) xi-xiv. He not
only thinks that Appian was in error in his placement of the trials of Gabinius and Scaurus
in 52 (thus anticipating the view adopted here), but goes so far as to deny the retrospective
quality of the lex Pompeia de ambitu. See below, n. 8.
Historia, Band XLIV/4 (1995)
C Franz Steiner Verlag Wiesbaden GmbH, Sitz Stuttgart
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 397
2.24.89 Tot5cra 8 ' ein(iv ?iCOpOO [sc. O
o dv
[sc. the
lex Pompeia de ambitu, 52 BC], Ksa
ilv aiCmK(X &1KCV lo0t1CitX)V.
1.CX tS J.T E.EX 01 K3C1,%At tJO lonE) ~p~i 'iva TE
8EI,(YECv ot 8tKao'cat,
alUxo'; auXkovk
sp1tl1qacevod . 90 KOt. np6 toi jI?v
'aXOxTav Miwkv T? re
'tEC KXco6io(
xPtop n ypialicvro;
A'iynrrov getra arparid; iGc,PaXEv a'layopez-
OVrEoV rci5v
be KaXi M?tjuo; Ksaxt
itX'iove; bt
8wpo8ociat; niX iou; SSKWYaJCo. 91 Xcafipov
&e TOO) nkioiot) napatTow?vo0 iKtjpigsV O Hloj 'to; tcxKaKouaat
mr 8i Kcait IACTc1v 8oi io
; K
evoxXoiv-ro;, c(Pa
EK T6v HoTrlitiou
?napacx,6v-rtcv iyiVETO, KaCt 6
6 Se 86
cKrpO; dAXo3. 92 KW. [Ibno6] adv-ov
rFCttviou S6 KQX 8ijieu?aXt 1v Ent mii (ptuy). (App. BC
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 surrounding guard. 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,
Scaurus was ordered to submit to the court by Pompey, and when 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, but Gabinius suffered a confisca-
tion of property in addition to his exile.
i. The trials of M. Aemilius Scaurus
Thanks to Asconius (18-29C), the facts surrounding the first trial (TLRR
295) are well enough known. Scaurus had been proconsul of Sardinia in 55,
where he had availed himself of the opportunity to 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-Republican nobles banded together
to defend and serve as character witnesses for
and he was duly
3 Cf. H. Volkmann (as in n. 2) 234.
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acquitted on 2 September.4 On 1 October Cicero wrote to Atticus
4.17.5)5 that Scaurus had been acquitted, but that another nominis delatio was
in the air, to be delivered by either Triarius or L. Caesar, evidently de ambitu,
since he mentions the indictment in connection with the campaign for the
consulship of 53 (tres candidati
rei putabantur). On 11 October, Cicero
wrote to Quintus (Q.F. 3.2.3) that all competitors for the consulship had been
indicted, and in particular, Scaurus by Triarius. This brings us to the second
case (TLRR 300).
Triarius may have initiated this second prosecution as a matter of continued
fides towards his clients. It was probably apparent by that point that Scaurus'
hopes for the consulship were fading, and there was certainly a possibility for a
conviction before the delayed elections or even after Scaurus' expected repul-
sa. Triarius had little to lose by trying, since even if Scaurus should have been
elected, the trial could have continued during the time he would be designatus;
if Scaurus should enter office before the trial could be completed, the charge
would wait until after his immunity to prosecution ended.6
We hear that a movement was afoot to scuttle the prosecutions (Cic. Q.F.
3.2.3, 11 October: opera datur ut iudicia
but this apparently came to
nothing, since matters proceeded until late November when it became obvious
to Cicero that Pompey had abandoned Scaurus to his fate (Q.F. 3.6.3: Scaurum
autem iam pridem Pompeius abiecit).
The letter does at least tell us that
Scaurus had not been convicted by late November, and that he was probably
still in the race for the consulship.
4 It is worth noting that the trial did not even last two months from the postulatio (6 July) to
acquittal (2 September). This was in spite of a grant of sixty days for the inquisitio, not to
mention the six advocati, three subscriptores to the prosecution, ten known laudatores
and eleven supplicatores and an unknown (but perhaps large, cf. Val. Max. 8.1.10)
number of hostile witnesses who had to be heard. This is the most complex trial for which
we have data, and yet it was carried out with great expedition, even though it predates the
time-saving measures of the lex Pompeia. Shackleton Bailey (Cicero's letters to Atticus
v.2 [Cambridge 19651
ad Att. 4.16.6, n.) thinks that while Asconius says postulatus
(19C), we ought to interpret it to indicate the nominis delatio. In view of Asconius'
immediately following words (ut in Actis scriptum est), this is probably in error.
S The numbering of the letters of Cicero cited in this paper follows the revisions of
Shackleton Bailey.
6 See Shackleton Bailey (as in n. 4) 212, citing Mommsen, R. Strafrecht (Leipzig 1899)
353, and Phoenix 24 (1970) 162-165.
7 Pompey's abandonment of Scaurus probably refers to a withdrawl both of his support
the election and his efforts to secure Scaurus' acquittal as he had in the trial repetunda-
rum. The phrase opera datur ut iudicia ne fiant cannot be supported by Q.F. 3.4.1: sed
vides nullam esse rempublicam, nullum senatum, nulla iudicia, nullam in ullo nostrum
dignitatem (25 October 54); see E.S. Gruen, "The consular elections for 53 B.C.", in
Hommages a Marcel Renard, J. Bibauw (ed.) (Brussels 1969) II 311. It should be noted
here that there is also no evidence that Scaurus withdrew his candidacy for the consulship.
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Appian BC 2.24 and the Trial de ambitu of 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 (though only temporarily: we know
that he was ultimately convicted), by 2) a derailment of the trial process or 3)
simple acquittal. There is also the logical (though improbable) possibility 4)
that Scaurus could have been convicted twice de ambitu, once in 54 and once in
The idea of an acquittal under the lex Tullia followed by another trial for the
same charges under the 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 Pompeia
would have probably contained a tralatician provision similar to that which we
see in the lex repetundarum, namely an express injunction against prosecution
under the new law of somebody who had already been prosecuted for 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
banishment in 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 already been prosecuted repetundarum under the
antecedent leges Calpurnia and lunia could not be prosecuted again for the same crime
under the new law and there is also a provision that the law was specifically invalid for
actions taken before its passage. Unfortunately, the lack of information concerning the
provisions of Pompey's lex de ambitu from more reliable (or detailed) sources means we
really cannot make any certain statements about the retrospectivity or the provisions
against running "double jeopardy" (see MC. Alexander, "Repetition of Prosecution, and
the Scope of Prosecutions in the Standing Criminal Courts of the Late Republic", CA I
[ 1982] 141-166). Clark (as in n. 2) xiii actually goes so far as to deny the existence of the
retrospective clause (except for those who had a "share in the bribery prevalent in 53 and
52" [by which he means the consular elections for 53 and 52]), making it an inference of
Appian. Appian will occasionally fill in details by inference (or guess), but the retrospec-
tive nature of the law seems at least moderately confirmed by Plutarch, Cat. Min. 48.3,
who uses the lamentably vague phrase b't'i tom
fi6 r6OV &u.ov
icav& IaC Kc;a *;
tCoi3 fop inOolluiO v0Orovto{vto;.
For a blatant example of
Appian filling in a blank with conjecture, see his explanation for the lack of official
senatorial meetings for the balance of Caesar' s first consulship (BC 2.11.37): fP
(o01 yp
atv 'v
vifv, oi68'fvb ?t4
XcvX ranTv mCRvcaxtvI a6jv) ?;
niv oixacv ToO B3)Xov OuvEXOTvEv;.
See Mommsen, R. Staatsrecht I3 44 n. I, and the
discussion of inferences in T.J. Luce, Appian's Exposition of the Roman Constitution
(diss. Princeton 1958) 85-87.
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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 the
civic 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 and condemned under the lex
Tullia in 54-53), or he is correct, and we must postulate a third trial in 52 lege
Pompeia after aborted proceedings under the lex Tullia. We could perhaps play
the dangerous game of assuming that Appian is 'half-right', and take him at his
word in reference to the date of Scaurus' trial and thus necessarily postulate the
strange (and unattested) postponement of his trial under the 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 assumption that Appian is wrong
when he lists the trial of Scaurus among the trials under the lex Pompeia, and
the absence of corroborating or conflicting reports elsewhere makes it difficult
to discover any good criteria for discerning where Appian goes wrong, and
where we can pluck the truth from the middle of error.
ii. A general overview of the evidence
We know that Scaurus was in fact convicted at some point. This can be seen
from Cicero's statement (De off. 1.138: in domum multiplicatam non repulsam
9 See G. Rotondi, Leges publicae populi Romani (Milan 1912) 379 on the penalties of the
lex Tullia. On the implications of aquae et ignis interdictio see A.H.J. Greenidge,
Legal Procedure of Cicero's Time (Oxford 1901) 512, who points out that once a
defendant had left for voluntary exile in the course of a trial, "the verdict might indeed be
pronounced at Rome, but it was now null and void: for no Roman assembly
condemn the citizen of another state." This ought to be borne in mind if one were to
propose that e.g., Scaurus could have been convicted under the trial instituted by
nominis delatio (de ambitu) of Triarius in 54, and been subsequently
tried again
Pompeia in 52.
10 See B.A. Marshall, A Historical Commentary on Asconius (New York 1985) 177. 24
Intercalaris is proposed by J. Ruebel, "The Trial of Milo in 52 BC", TAPhA 109 (1979)
239. Cases other than those focusing on the death of Clodius probably had to wait until
these were tried. We know that Milo's last conviction (in absentia, TLRR 312)
was on 11
or 12 April; the last trial connected with the murder for which we have an approximate
date is that of Sex. Cloelius (TLRR 315), which is dated to after 22 April. As Asconius
says, multi praeterea et praesentes et cum citati non respondissent damnati sunt, ex
quibus maxima pars fuit Clodianorum.
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Appian BC 2.24 and the Trial de ambitu of 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 l
It is also reasonably certain that Cicero defended Scaurus twice, as we find
out from Quintilian 4.1.69, a passage which merits careful examination:
ac ne quis cbroaTpo(prjv miretur, idem Cicero pro Scauro ambitus reo,
quae causa est in commentariis (nam bis eundem defendit), prosopopoeia
loquentis pro reo utitur, pro Rabirio vero Postumo eodemque Scauro reo
repetundarum etiam exemplis, pro Cluentio, ut modo ostendi, partitione.
Here, Quintilian is describing variations that occur in the exordia of speech-
es, picking up after a section on
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 statement that Cicero defended Scaurus twice de ambitu,
for many reasons.
The trial of Scaurus repetundarum was one of the causes celebres of the
late republic, as has been mentioned before; it was probably the case that would
spring to any reader's mind immediately upon hearing the name Scaurus in
connection with Cicero, and perhaps the orator himself 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,
perhaps because as an unsuccessful speech, it was never published.'2 However,
the first mention of Scaurus in our passage is in reference to the trial de ambitu,
and Quintilian not only has to inform the reader where the speech can be found,
but to assure the reader that Cicero did indeed defend that Scaurus twice. The
extra information glossing 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 argue that the 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 On the significance of ignominiam and calamitatem see A. Stickney, De officiis libri tres
(New York 1885), H.A. Holden, De officiis libri tres (Cambridge 71891), and F.E.
Rockwood, De
officiis liber primus (New York 1901) ad loc. as well as C. Henderson, Jr.
(as in n. 2) n. 25. The significance of calamitas is neatly brought out by Cicero in
Fam.13.19.2: C. Maenius Gemellus, cliens meus, cumn in calamitate exsili sui Patrensis
civisfactus esset.
12 Cicero was in the habit of collecting at least some of his more notable speeches into a
corpus, as we know he did with the most noteworthy speeches of his consulship, etc. See
Schanz-Hosius, Geschichte der romischen Literatur (Munich 41927) 404-405.
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another (we must suppose) well-known published defense for the same crime.
this were true, though, Quintilian would scarcely have found it necessary to
what he evidently thought would be a surprise: that Cicero defended
twice. Rather, we might expect him to have written nam ter eundem
Lastly, can we expect a teacher of rhetoric to have written that Cicero
Scaurus twice (intending de ambitu), and then, within the same sentence men-
tion a third defense written for Scaurus? Such confusion could be so easily done
away with that one must conclude that the simple interpretation is what was
intended, and that Scaurus was defended on 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 two
trials de ambitu in 54 and 52, then Cicero was Scaurus' patron for one (and
one) of them. Att. 4.17.5 suggests that Cicero was going to undertake the
defense of Scaurus in 54, since he was already wondering what he might say in
defense of the manifestly guilty: "quid poteris," 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)
a trial of 54, this passage cannot prove it. Even if we were to assume for the sake
of argument that this passage proves that Cicero was Scaurus' patron
in 54,
are still not advanced in our inquiry. Cicero may have undertaken to defend
Scaurus on three occasions 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
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 raised below, at n. 37). There is no evidence of this sort in
case of Scaurus.
One more thing must be considered. The solution that is invoked to explain
this delay between a nominis delatio in 54 and a conviction in 52 is the
admittedly great civil disturbance which wracked the dying republic
in just
interval. A possible connection between the civil disorders and a presumed
delay in a trial is certainly desirable for those interested in seeing a
in 52: but it may be no more than a coincidence. There are several ways
attack it.
On a minimal estimate, there would have been a 19-20 month lapse
interval in the proceedings. It should be noted that there were praetors
cally capable of presiding over the trial in person for the balance of 54 (almost
13 Contra: Shackleton Bailey, Epistulae
Fratrem et M. Brutum (Cambridge
1980) ad Q.F. 3.3.2.
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 403
three months), and from the time of the elections in July 53 (assuming that the
praetors were elected soon after the consuls, as was customary'4) to the end of
the year, for a total of seven months of the twenty: more than enough time for
the trial (see n. 4 above).
E. Fantham suggested that the president of a trial, when he saw that his term
in office was about to expire, could have made a privatus (including himself,
once his office expired) the iudex quaestionis for the remainder of the trial, and
thus, public trials need not have ground to a halt on 1 January 53.15 While it
would be convenient for the arguments advanced here if this were the case, it
seems unlikely. The men who formulated the laws governing the courts were
well aware of the annual nature of the Roman magistracies, and were capable of
writing provisions to handle the (no doubt common) circumstance of a trial
lasting beyond the year of office of the presiding magistrate. Under the terms of
the lex repetundarum, at any rate, the 50 iudices were empaneled for the
duration of a case (??27-28); in the event of the retirement, resignation, or
death of the presiding magistrate, the succeeding magistrate was to continue the
case intact from the point at which the preceding magistrate had left off (??72-
Another factor which gives the (perhaps false) impression that public
business had ground to a halt in 53 is the regrettable scantiness of Cicero's
letters for that year. There are none to Atticus, and the extremely rich series to
Quintus ends in 54. Tyrrell-Purser assign only thirteen letters (166-178) to 53;
14 On the typical order of elections, see Mommsen, R. Staatsrecht I (Munich 31887) 561:
,,Die Reihenfolge der Wahlen der ordentlichen patricischen Beamten richtet sich wenig-
stens in den oberen Stufen nach der Rangfolge," etc.
15 Fantham ("The Trials of Gabinius in 54 B.C.", Historia 24 [1975] 443) suggested this
solution to the problem of running the courts after the expiry of the terms of office of the
outgoing praetors of 54: "Since an ex-official or privatus could be appointed as iudex
quaestionis, an outgoing praetor of 54 who wished to complete a trial could name himself
or another as iudex quaestionis so as to continue the hearing into 53; what magistrate
could supersede him or challenge his authority?"
16 See Mommsen, R. Strafrecht 453. One finds evidence of quasi-magisterial iudices quaes-
tionis who wielded power in individual cases delegated by the praetor, perhaps owing to
the fact that there were too many cases for the competent praetor to preside over at the
moment (see, e.g., the discussion in Greenidge [as in n. 9] 428-33). However, once the
office of the presiding magistrate expired, so did the power of his deputies (see the
discussion in Mommsen, R. Staatsrecht I3 633-4 on "Anordnung der Stellvertretung");
and (to jump to the specific for a moment) since a presiding praetor in 54 could expect his
successor in 53 (whenever he might finally be elected) to continue a pending case, and
since on 31 December 54 no praetor would have any reason to think that the elections
must needs be long delayed (the long anarchic period to follow in 53 being unprecedented
even by the delayed elections in 55, and thus unforseeable), why would a praetor have any
reason to act outside of the normal provisions of the established laws, even if it were
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most of them are either addressed to Curio and of a general nature, or
jesting notes to Trebatius Testa. Cicero does not seem to have wanted
commit himself to Curio, and suppresses material which he might have
to Atticus or Quintus: ita sunt omnia debilitata ac iam prope extincta. sed
ipsa nescio rectene sint litteris commissa (Fam. 2.5.2). Without Cicero, we
seriously hindered in our attempt to know in any detail what happened at
II. The sources cited for a trial in 52
i. The sources besides Appian BC 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;
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. 1 1), Cicero's De officiis tells us absolutely
nothing except perhaps the simple (and single) fact that Scaurus had been
condemned; there are no chronological indications whatsoever to support a trial
in 52, besides the unhelpful terminus ante quem of 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 repetundarum and de ambitu, and the speech
from the
ambitus trial was extant in Quintilian's time, in Cicero's commentaries. None
of these data offers a direct solution to the chronological question,
and it is best
to admit that since they are consonant with a trial and conviction in 54 as well as
a trial and conviction in 52, these data cannot be used to prove either (see
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
either Triarius or Lucius Caesar. In any event, that letter is from 54; it cannot
used to support a trial in 52. This can also be said about Q.F. 3.2.3; while it does
show that Scaurus suffered an indictment de ambitu in 54, the only support
which could be grasped by those wanting a trial in 52 is the phrase opera
ut iudicia ne fiant. This proves nothing and even suggests very little, as one
quickly realizes remembering the fruitless efforts to prevent
the trial of Verres
in the year 70.
Brutus 324 is a passage concerned with the new procedures
established 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 support for a trial of M. Aemilius
de ambitu in 52, although modern treatments do so regularly.
The only possible
(though erroneous) connection might be the following sentence from the pas-
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 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 criterion allows the word easdem to be stressed and
burdened with literality, but exempts cotidie. This rhetorical passage 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 (TLRR 303), Appian has
expressly placed all the trials mentioned in this passage in 52, during Pompey's
third consulship. This ought to give us pause before we put too much stress on
any chronological indications in the rest of this passage. Secondly, Appian's
narrative covering the period from the conspiracy of 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
chapters of 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 28 1), 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.
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2.14.52/16.59: In the former passage, Appian states that Caesar had Vatinius
and P. Clodius elected to the tribunate during his consulship
Oatvt6v TE KOstI KX66&ov xov Kakov einiicXiv),
Vatinius was actually tribune in 59, as is well known. In the latter passage,
Appian introduces Milo, who will act as tribune in 57 to effect Cicero's
recall, but makes Clodius his colleague (6 &? Mitwva, TOv aiov
KXcxSiq 'rilv acpXilv ncpctbap6e'8ivov).
Appian has managed to contra-
dict himself within 50 lines of text, and he has associated the renowned
(even infamous) name of Clodius with the names of two other famous
tribunes of nearby years, or vice-versa. This is strong evidence that he was
not simply taking the names of colleagues in the tribunician colleges of the
years in question slavishly from a source, but was working from memory.
2.17.61: Appian introduces his chapters on the meeting at Luca in 56 with a
brief resume of Caesar's actions since leaving for Gaul (o 6? Kaoacap Cv TE
KsXtOi; KcW' Bpet-ravoS; iokkX& KcaLt
6aa Rot
nE?p K?vk v tpl ko vxov g(v
mv 8ov k
adp' tov 'Hpt&xvov
iev). Caesar did indeed
carry out two expeditions to Britain, but neither occurred before the meet-
ing at Luca; there was an exploratory expedition in (perhaps autumn) 55,
and the main expedition was in 54.18 What is interesting is that in the
epitome of Appian's Celtica (fr. 1.12-13), the crossing to Britain follows
the famous slaughter of the Usipetes and Tencteri (the slaughter and 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 narrative at BC 2.17, Appian evidently did not
trouble to go back and reread his own work, which he cited. 19
2.17.64: Appian here conflates two events. He describes the consular election
for 55, emphasizing the violence that erupted between the clients in attend-
ance upon Pompey and Domitius Ahenobarbus. He adds what must have
struck him as a remarkable detail: Pompey's bloodied clothes were borne
V'r;v aixajtd tvE; i aypEkviv ?pepOV o'iVoa&),
indication of how close to danger he had come. This detail actually
from another incident, at the aedilician elections in 55; we have the story in
both Plutarch and Dio.
Plut. Pomp. 53.3-4: ev &' OV
tivow ?Xi60VTCOV, Kiat pOVEU EVTCOV ipt aliv o1) 6Xiyw,
18 Cic. Q.F. 3.1.17, 25; Att. 4.18.5. See Klotz in RE X (1919) 205-206, and M. Gelzer,
Caesar (Oxford 1968) 130.
19 Admittedly internal cross references cannot be pressed too closely. See C.B.R. Pelling,
"Plutarch's Method of Work in the Roman Lives", JHS 99 (1979) 80-82 on problems
with the internal references in Plutarch.
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 407
dvwaXiak &IG ; aciiaToo; ixxXct
nroxXoi 6? tiopiSI3oo iaccx
got lppo6;
tiv otitav wVo0EVOiV TC6V
tvwv T& titaua
KCOpIr ic0ouaw
8? iaiM ay-
'VfV -V
-EVVOV, ?4?X1x?
'XtIX; dVeyic,
?K 6? t tapcxf;
?KEtV1S KOat TO) naEO) nlTXKV.
Dio 39.32.2: nFep't 8?
to; iOyopav6oRo); TOtIo; coupouxiou5; a(payat
acv a cv, 6T? Ksat tov
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
further expressly states that the number of Pompey's legates was 20, and he
goes on to say that this is the same as the number that was granted for the
pirate command in 67. In fact, Pompey was probably given 25 legates in 67
as Appian himself claims at Mith. 94.431 .20 The actual number of legates in
57 is reported as 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 order to get him out of Rome. This actually
happened in 58, moved by a tribunician bill of Clodius.21 Appian, 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
Un tcuv 66e
Pompey] F-VflvtS 8150 JEtV(YLGTa
20 Plut. Pomp. 26.3 states that
&c ca'
avbpE ELKOaitEGOapEq
in' ati5toi3, 56o 8& 'taciat zapfaav. In the passage cited
from the Mith., Appian uses the following terminology: i5)npc'rat & a6Lo trq
oi); iccaoi6n 7tpsat3e'utc0;, nEVtE Koi dKoatv. In BC 2, Appian remembers the details
from his earlier exposition only vaguely at best (certainly he was not excerpting another
author closely here), since he uses much more general terminology (as he is often wont to
do: see Luce [as in n. 8] passim, esp. 143; H. Mason, Greek Termsfor Roman Institutions,
in American Studies in Papyrology 13 [Toronto 1974] 16): o'i icati5ep ?int Xov Xr-
ElKOmV aCltO tTr
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 periocha of book 104 of Livy, the event is
related among the events of 58 where it belongs. There is no tradition (save for Appian)
placing Cato's mission in 52. See Broughton, MRR 11 198, 204, and 211 for the other
sources. The story about the capture of Clodius by the pirates appears to be true and is
echoed in Strabo 14.6.6 and Dio 36.17.3.
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7?XwO; glovapxiav &Ta TO jIovo; i1rato;
Kadtowva F?v
en(piaato, tva ni irapcov
t*at HtoXpaiou
pacatXco;, VEVOgO*STngFJIVOV
ii6r tofrto V'6iO KW-
&ioi., on ot ious a,X6v-t vior XiZar6)v o
FfloXcdio; S;
X-6'rpa i5ior
cTYKLXpOko'cc; Vi'o
rTdXav-r sinetOppei
had a
good memory,
as the details he adduced seem to show; he even remembered that Cato was
sent to Cyprus at the instigation of Clodius,
though he has inserted this
event into the narrative subsequent to Clodius' death (hence presumably his
use of the perfect
However, here as in the other passages cited, Appian was apparently
working largely from memory alone, since he could hardly have bungled the
chronology so badly if he had been closely following another source. It does not
seem possible to absolve Appian of his chronological problems here by assum-
ing that he was following a non-annalistic source of some sort, for if he were
following (e.g.) a treatment of Pompey's third consulship in a source, there are
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 report preserved in Plutarch's life of Cato which 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 him
to 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 Cyprus as an honor, and Clodius retorts that he may then consider it to be
a punishment: there was a vivid tradition of the actual confrontation over the
mission to Cyprus between Cato and Clodius.22
Appian's account of the mission to Cyprus is therefore characterized by
many details which are shared with 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 information is given to allow dating
the event) in 58; in addition, we even have Appian's embarrassed acknowledge-
ment that he seems to know the predominant tradition in his statement that the
law had been moved by Clodius, together with his use of the perfect tense for
Clodius' action. The only mechanism which 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 that Appian had written down the event in a sketchy note
without a date; this would help to explain why the passage seems to have been
22 Cato juror: Cic. Mil. 26; 44; 58; Asc. 47C. Bibulus moves that Pompey
become sole
consul at Cato's suggestion, Plut. Cat. Min. 47.2-3; Cato solicited as
lor, Cat. Min. 48.1; dialogue between Clodius and Cato, Cat. Min. 34.3.
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 409
inserted whole as a discrete piece into the narrative, and would also help to
smooth over the apparent contradiction if we were to propose that Appian had a
poor 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 it
belongs, without any explicit equivocation. Further, he has written what is not
true, namely that Pompey, 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 understanding of Republican institutions, thought that what look like
factitive verbs in the middle voice are in reality symptoms of Appian's igno-
rance and erroneously signify direct action by the subject. In addition, Luce has
adduced many cases where Appian has taken a shortcut and attributes an act
(law, election) to a magistrate when it really was a product of the public
assemblies.23 It is important to bear in mind, therefore, that when faced with an
aporia 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 tribunes of 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 Merula consul in 88 (1.65.296), and
publishes the public notice of an assembly (1.24.105); Cinna chooses Flaccus consul of
87 (1.75.346) and Carbo consul of 86 (1.75.346), while Caesar designates the consuls and
chooses the tribunes for 58 (2.14.51-2); Saturninus ratifies his own law (1.31.140), as
does Pompey at the head of the passage under special consideration in this essay (2.24.89);
the consuls "vote" to make foreigners amici of the Romans (Gall. 16), to make war (111.
1 1.33), declare enemies of the state (1.81.370; 1.86.390), and assign provinces (3.16.58);
Pompey orders Milo as tribune to vote for Cicero's recall (2.16.59), while Servilius
Glaucia, the praetor of 101, presides over the tribunician elections. See also p. 113 on
Appian's use of the word
(used both for the voting of laws in the comitia and for
the decrees of the senate), and 1 19 n. 37 on factitive and causative uses of verbs for
ratification and voting. In general, Luce demonstrates that Appian tends to use words
inconsistently, and that Appian's knowledge of the workings of the assemblies at Rome
was so confused and error-prone that "in his treatment of them, perhaps more than in any
other phase of the constitution, we ought most to be on our guard (110)."
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Appian thus is prone to such odd temporal dislocations and factual errors;
the explanation probably lies in his working method and ignorance.24 He seems
to have spent a fair amount of work gathering data, as is shown by the
interesting details he preserves, but he was not interested in carefully and (more
importantly) accurately documenting every fact, and he often created gross
simplifications to cover areas where he failed to understand the complex causes
of events. He was content to rely on his memory, particularly if he had already
studied a certain event for another portion of his own work. He added details as
they seemed appropriate and as he remembered them, and did not revise his text
to correct any errors. This probably arises from the fact that at least in his
narrative of the fifties, as the nature of his mistakes indicates, he has greatly
compressed events and appears not to have followed any source directly.25
Appian was mostly interested in the conflict between Caesar and Pompey
and Caesar's
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 narrative covering the period from the 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 fraction of the year 44, consumes 30 pages. The quality and detail
of Appian's narrative varies greatly depending upon his interest level and its
usefulness to his programmatic desire to display the disastrous consequences of
the factional strife between the great dynasts of the late republic.26
What then of the passage concerning the trials of 52? It appears to be cut
from the same cloth as the five examples discussed above and, since it shares
many common features with them, should probably be 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 the similar observations of Pelling, Plutarch's Method (as in n. 19)
25 It is K. Brodersen's view ("Appian und sein Werk",
in ANRWII 34.1
[Berlin 19931
based upon empirical observation, that Appian consulted only one source scroll at a time.
This he explains by the exigencies of the physical manipulation of scrolls for consultation
and composition. In the same volume, D. Magnino ("Le 'guerre
civili' di
526; 536-549) adduces testimony and evidence from the text for
wide reading
and argues that Appian must have consulted at least several sources. These views are able
to be reconciled, at least in the case of the narrative in the early portions of BC 2, by
solution proposed here: Appian was conversant with more than one source, but he
probably directly followed only one of them, or perhaps
more likely,
a skeletal outline of
his own manufacture, filling in the rest from memory.
26 Appian's interest in and approval of the rise of monarchical power
out of the hopeless
self-destruction of the late republic has long been seen: cf. E. Gabba, Appiano
e la storia
delle guerre civili (Florence 1956) 3-9.
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 411
October 54, TLRR 296); yet Appian not only writes that the trial took place
under Pompey's third consulship, but the natural inference is that he was tried
under some lex Pompeia. There can be no mistake that it is the trial de maiestate
to which Appian is prominently referring with his mention of the Sibylline
books;27 however, it must be remembered that Gabinius was only subsequently
convicted repetundarum (under the lex Iulia) in a roughly concurrent trial (the
divinatio for which occurred during the course of the trial de maiestate, on 12
October 54, TLRR 303). 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 either because he was unwilling or simply unable
to pay.
The terminology which Appian uses to describe the charges against Gabin-
ius is nontechnical, and thus really does not assist in resolving the uncertainty.
The charges are napavoi.iia and a&c?,Bsu (&T
y(opn ;
jiTa OnT pOCvTI CaC43aXav &lnxyopsu6vtov xxTVv
TtoXXdACov). 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,29 but 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 the
Sibyl but because he had (inter alia) disobeyed the senatus consultum (of 14
January 56, resulting in part from 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 carry out other
actions otherwise prohibited under the lex Cornelia de maiestate.30 acre,ta is
27 On the Sibylline books, see e.g., Dio 39.55.2ff.; 39.56.4; 39.59.3; 39.61.4; 39.62.3. The
incident of the public reading of the Sibylline oracle by the tribune C. Cato while the
restoration of Ptolemy was being debated was notorious, so much so that even Lucan
made mention of the oracle (8.823-26), the partial wording of which is to be found in Dio
28 The word is not given a technical definition in LSJ9, nor will it be found in either Mason'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).
Appian uses words beginning niapavot- 27 times, and it seems that they simply indicate
"an illegality" or "illegally" or "contrary to established law". nrapavoj.iac is even used to
describe the murder of Pompey by Achillas and Pothinus (BC 2.90.377).
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 is what got Gabinius into trouble
but he seems to think that the law that was broken was the Sibyl's oracle.
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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 who
disobeyed 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 Gabinius was convicted (in absentia) and that he
suffered a confiscation of property on top of his exile.32 Here, as usual, Appian
seems to have been working from memory: 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 the
Sibylline oracle and the conviction stem from two different trials; the public
confiscation which Appian mentions would have precipitated Gabinius' self-
imposed exile. The facts are there, but Appian has hopelessly muddled them.
The trials or indictments of Milo, Hypsaeus, and Metellus Scipio (who
appears in Appian's narrative shortly after the portion of the text quoted above
[2.24.93-94]) all belong in 52. The trial of Memmius is subject to the same
temporal uncertainties as that of Scaurus, but in the case of Memmius we have
no other clues to discover the truth.33 As for the mysterious ,arto;,
Cf. Syr. 51.258 where he gives the report in slightly more detail (though with equal
confusion): o
... vno6 &
t'i. xT4 ave0 i(pit7-
axto; i; Altywnov
t>aketv br'
dmocyopeiov. What is really interesting here is that Appian
places the responsibility for Gabinius' exile on the senate; there is no suggestion of a trial,
much less one set amid the many he relates under leges Pompeiae during Pompey's third
consulship. It is not possible to make any certain statements about the development
Appian's thought in this matter, because internal references are uncertain and we thus can
make no ironclad statement about the primacy of the Syr. over BC 2. It is worth noting,
however, that Appian has different versions of the same story, and has not revised one
version in the light of the later one (whichever that one was).
31 In this respect Appian is typical of his age: see H. Mason, "The Roman Government in
Greek Sources", in Phoenix 24 (1970) 150-159.
32 One of the provisions of that law was quadruple repayment of the illegally accepted
monies: see Rotondi, Leges publicae (as in n. 9) 390.
33 Trials of Milo: TLRR 309, 310, 311, 312; Hypsaeus: TLRR 322; Scipio: TLRR 321;
Memmius: TLRR 320. Munzer (as in n. 2) 614 places the condemnation of Memmius in
52 on the basis of the passage of Appian under consideration. In the case of Memmius we
have the additional detail at BC 2.24.93-4 that Memmius tried to take advantage
of the
retrospective clause of Pompey's ambitus law in order to clear himself by securing
exchange the conviction of Metellus Scipio. If this detail is accurate, then his conviction
would probably immediately precede his attempt to secure a pardon, since he would
scarcely have been allowed to remain in Rome for too long a period after his conviction
(despite the fact that the Romans were fairly lenient on this point: see A.H.M. Jones, The
Criminal Courts of the Roman Republic and Principate [Oxford 19721 77); Asconius
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 413
identity cannot be ascertained for sure, though it has long been proposed that he
be identified with Cicero's friend P. Sestius.34 Sestius was tried in 56 and
acquitted, and it seems probable that he was indicted (and acquitted, inasmuch
as he was a provincial governor in 49) lege Pompeia in 52 (or perhaps a year or
two later). Certain it is that Appian made yet another mistake 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 perhaps carelessness) 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 trial which Appian had in mind: see at n. 30) began on 28 September
54 and ended 23 October. Appian would appear to have read in his sources
about the nearly contemporary trials 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 support his claim that there were "a number of varied trials",
as well as an unwillingness to check his sources again influenced his memory to
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
Appian states quite carefully and specifically that with the introduction of
the lex Pompeia there was immediately a number of various trials.36 He 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 (TLRR 321 ) to be the
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 name
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.
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thinks that all of the trials fell completely under Pompey's third consulship.
While Appian nowhere actually states explicitly that Scaurus was tried de
ambitu, this would seem to be the best way to interpret the passage; the two
chapters (BC 2.23.87-88) immediately preceding the sections quoted at the
head of this paper begin 6o &
tjRo; SiKai; iEpoVirt t65v te
iKca.aXita &opo5oicxK SeKacshou, ct., and proceed
into two long sections on the retrospective nature of the new ambitus law and
how it affected Caesar, Pompey and their relationship. The pro fonna mention
of iXkXa
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 thereafter comes 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
avctiicKa &KC6V notiXcov. The latter phrase once again ap-
pears to be in anticipation of the anomalous trials he is about to mention,
indeed, his enumeration of the trials commences with a neat splitting of the non-
ambitus trials from the ambitus trials 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 through the end of the passage, at BC 2.24.94, though
there is some intervening material on penalties meted out, and the senate's
reward to Pompey for his diligence (2.24.92). Scaurus' trial is described imme-
diately after the first list of trials which are explicitly stated to be de ambitu, and
would have been incorporated into the list in that sentence but for the fact that
Appian had too much to say about Scaurus' trial not to put it into a brief passage
of its own. When the list of trials recommences at 2.24.93, we have Memmius,
(and thus to be naturally taken as the same Memmius,
far as Appian is concerned, as the Memmius mentioned immediately above as
convicted de ambitu: see n. 30), trying to redeem his conviction by securing
conviction of "Lucius" (really Q. Caecilius Metellus Pius) Scipio, the father-in-
law of Pompey, for the same crime, yet again explicitly designated
Thus, according to Appian, Scaurus' conviction fell under the new lex
Pompeia de ambitu. The idea that Scaurus was indicted in 54 (and thus neces-
sarily under the lex Tullia), but that on the basis of Appian's testimony this
was delayed in its completion until 52 therefore runs into a serious problem.
we choose to press Appian closely on the date (and he is the only reason to put
Scaurus' trial in 52)237 we cannot then ignore other (perhaps
details of his report. This contradiction argues strongly against the theory of the
37 Gruen (as in n. 2) 348 places Scaurus' conviction in 52
on the basis of Appian
(see the sources for conviction he cites in his n.
Yet he has
Appian's downdating of Gabinius' trial and conviction to 52 from the same passage,
though he ignores the mixture of two trials in Appian's report,
327 n. 83.
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 415
single, delayed trial. There is no escape through argument that what Appian is
referring to are procedural changes established under the 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 terms of the relevant laws fails, as
the vague language he uses, as well as his errors, show. The singular 6ov vo6jov
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" and the 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 immediate contradiction.38
Appian's statement that Milo and Gabinius were both convicted dclcovte is
interesting. Milo was in fact not convicted in absentia for the murder of Clodius
(at least not in the trial for which Cicero delivered his unsuccessful defense),
but, as Asconius states, departed into exile intra paucissimos dies (54C) after
the verdict. Since the trial of Gabinius which Appian describes is not the same
one as the trial which led to his conviction, one must wonder where the notice of
conviction in absentia comes from. Was it attached to the notice of the outcome
of the trial repetundarum, which Appian has conflated with the earlier trial? 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 Gabinius because it is within their pkIV
clause, but Appian might even have meant it 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
clause, manifestly goes with both. We know the
circumstances 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 around to indict Metellus Scipio would seem to indicate that Appian did 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)
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same method that brought the conflated notice of Gabinius' trials into this
passage was operating in connection with Scaurus' trial, it is not at all unlikely
that what we have is perhaps a slightly muddled version of some event at his
trial repetundarum or de ambitu or even a conflation of the two. As we saw with
the report about Cato's mission to Cyprus, temporal dislocation of the story did
not dislodge factual material surrounding it. Nor need Appian's statement that
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 is the story of the
"onrush of Pompey's soldiers". Once Appian had decided that the trial of
Scaurus belonged under Pompey's third consulship, 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
It is important to remember that 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 murder of Clodius. Cicero's revamped speech for Milo
contains several references to the praesidium, but they cannot really be used to
indicate much beside the simple (and unquestionable) fact that there were
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 performance at the trial. When we come
to the secondary sources, the best is Asconius, who consulted i.a. the Acta for
the period in question.39 The passage is very important and merits careful
quem [sc. one of the witnesses] cum interrogare M. Marcellus coepisset,
tanto tumultu Clodianae multitudinis circumstantis exterritus est ut vim
ultimam timens in tribunal a Domitio reciperetur. quam ob causam Marcel-
lus et ipse Milo a Domitio praesidium imploraverunt. sedebat eo tempore
Cn. Pompeius ad aerarium, perturbatusque erat eodem illo clamore: itaque
Domitio promisit se postero die cum praesidio descensurum, idque fecit.
(Asc. 40C)
According to him, the praesidium was a result of a request originating
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.
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
claim that
he went through the Acta: sed ego, ut curiosius aetati vestrae satisfaciam,
Acta etiam
totius illius temporis persecutus sum (44C).
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Appian BC 2.24 and the Trial de arnbitu of M. Aemilius Scaurus 417
not at the sight of the soldiers, but at the threats of the Clodians who could not
be stilled in spite of the guards:
Cicero cum inciperet dicere, exceptus acclamatione Clodianorum, qui se
continere ne metu quidem circumstantium militum potuerunt. Itaque non ea
qua solitus erat constantia dixit. (Asc. 41-2C)
Lucan and Suetonius also make reference to the praesidium. Lucan (1.319-
323) describes the fearful court surrounded by 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 marching on 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 author or authors took Caesar's assertion to be a fact,
another tradition seems to have developed in which the praesidium became a
constant fixture at the trials of 52. Dio (40.53-54) states that Milo 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:
Te bTr TOU5OTqtv)6v 1TpOCSaEtEc 0ti atpatl6tL at bc&6uiat
OB'YtcO'6 ?K Ur; w(yopCX;
7cXwyot0 KOct 1XLtES(Yt
17EtKOV atXa Ksat
?v nat&cw -rtVt
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
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 that the praesidium was prompted by the trial
of Milo,40 even though he did not make clear (or perhaps even understand) its
ad hoc nature. The similarity between 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 a
response 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.
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mode by which a report of violence connected with Pompey's soldiers
have entered Appian's narrative - there was even a tradition of
connected with the trial of Scaurus repetundarum (Asc. 20C) which could
further facilitated the connection in Appian's mind.
In his obscure brevity, Appian certainly gives the impression that he thinks
the praesidium was permanent. In the passage quoted at the head of the
(2.24.89ff.), Pompey enacts his law, and various trials immediately
Then, inserted before any trial gets mentioned, is the notice that
himself kept watch over the jurors with a guard, in order that the jurors
not be afraid. There follow the notices of the trials, with no special
between that of Milo and the praesidium - in fact the only further mention
the praesidium is in the report of events at Scaurus' trial. It thus seems that once
again we have caught Appian reporting falsely thanks to his method. He had no
idea of how and why a praesidium might have been present
at a trial,
indeed, his manner of writing shows clearly that he simply
knew something
"Pompey surrounded the court with soldiers when he was sole consul".
To summarize the discussion of the passage: Appian has made at least one
straightforward blunder; he has conflated events from several different trials;
his narrative is inconsistent within its own framework; the narrative is marred
by imprecision and vagueness; and Appian does not seem to have fully
stood either the laws or the penalties under discussion fully. In simple
his accuracy and method have suffered greatly because he seems to want to
demonstrate more than anything else that there were a great many trials under
Pompey's third consulship, and in his rush to get from the
Catiline to the opening of the civil war he has carelessly
written this passage
from memory and notes without (it seems highly probable) consulting any
source while doing so or going back over the passage to correct errors.
III. Other considerations
To this point, we have considered the various scenarios that were
cally possible and have tried to eliminate possibilities that are not supported
evidence, and then we examined the evidence cited by moderns to support
trial in 52. The evidence boils down to the very suspect passage
of Appian,
which is the sole reason for considering a trial under Pompey's new law.
is, however, an almost totally overlooked piece of evidence that the conviction
of Scaurus occurred well before 52.41 As we have seen, Cicero wrote in the
officiis that Scaurus in domum multiplicatam non repulsam solum rettulit,
etiam et calamitatem. A careful examination of the passage
41 Pointed out by Clark (as
in n. 2)
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Appian BC 2.24 and the Trial de ambitu of M. Aemilius Scaurus 419
context is merited. De officiis 1.138 concerns the house which Cn. Octavius
(cos. 165) built, the impressiveness of which worked to Octavius' advantage
with the result that he attained the consulship first of his family. Then Cicero
turns to the Nachleben of this illustrious piece of property:
hanc [sc. domuml Scaurus demolitus accessionem adiunxit aedibus. itaque
ille in suam domum consulatum primus attulit, hic, summi et clarissimi viri
filius, in domum multiplicatam non repulsam solum rettulit, sed ignomini-
am etiam et calamitatem.
The natural implication is that Scaurus inflicted this disgrace on his house
(i.e., suffered conviction) inasmuch as it was still in his possession whereas we
learn 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 murdered on 18 January 52, 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 ironic parallel Cicero is trying to draw, we see that the
exemplum really concerns the quest for the consulship in both cases. Octavius
built an impressive house and it worked in his favor, and he won the consulship
though a novus homo. Scaurus, on the other hand, in spite of his enlarged (and
presumably even more magnificent) property, brought not only the shame of an
electoral defeat, but even a conviction and exile upon this house. The notice that
Octavius was a novus homo is paralled with the reminder that Scaurus, a nobilis,
stood in the line of his renowned father; the strength of 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's commentary on Asconius (as in n. 10) 208-209.
43 Broughton (as in n. 2) 1: Broughton puts Scaurus in the category of those who "withdrew
or were prevented from competing" without any evidence (pp. 22-23), and puts the
conviction in 52 on the basis of Appian. Cf. OLD s.v. "repulsa" (1): "failure to secure
office, electoral defeat; repulsam ferre, to suffer defeat in an election." It is in this last
technical sense that Cicero uses the term, though he has tailored the phrase to his purposes
by using the verbs attulit and rettulit. C. Henderson, Jr. (as in n. 2) 204 also examined the
implications of the repulsa mentioned by Cicero, but his analysis was unsound because he
took the adjective multiplicatam to go with repulsam (and not with domum, where it
belongs: see the three commentaries on the De officiis [as in n. 1I] ad loc.) and to mean
"multiple". He thus took the trial in which Scaurus was condemned to be after a repulsa in
52 (in order to follow Appian), and postulated an acquittal in 53 connected with another
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Although the passage in question seems to amply indicate by context that a
repulsa for the consulship is meant, is it possible that Cicero could be referring
to an earlier repulsa for a lesser office? Scaurus was seeking the consulship of
53, which was after the minimum interval from his praetorship in 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 actually expect
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
Scaurus could have suffered a repulsa before 53. The passage in the De officiis
would lose all of its force if Cicero were comparing Octavius' successful bid for
the consulship with a repulsa for the curule aedileship (or lesser office) on
Scaurus' part!
It thus seems as though Scaurus stuck through the campaign for 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 that of the repulsa itself, redounded upon
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
perhaps November 53, at the latest.45
These considerations are of course only as valid as Cicero was accurate; yet
Cicero was no fool, and he did take pains to get things right.46 In addition, he
had been Scaurus' patronus in the trial, and was doubtless familiar with what
had happened to Scaurus and his house in the aftermath of 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
and he has
interpreted it wrongly (see Shackleton Bailey, Epistulae adfamiliares
v. 2
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:
MRR I1 195; praetorship:
MRR II 208;
election of the consuls
of 53: MRR I1 228.
46 On Cicero's motivation, inclination, resources, and
to research his works,
see the
discussions of E. Rawson ("Cicero
the Historian and Cicero the
JRS 62
[1972] 33-45),
E. Badian ("Cicero
and the Commission of 146 B.C.", Hommages
Marcel Renard, J. Bibauw [ed.],
I [Brussels 1969] 54-65),
and G. V. Sumner (Orators
Cicero's Brutus: Prosopography and Chronology [Toronto 1973] 16 1-176).
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Appian BC 2.24 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 to
roughly familiarize himself with its history. Therefore, while there are certainly
grounds for uncertainty, we should not jettison 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 entered by Triarius soon after the end
of the first trial. The trial lapsed for some months in 53 during the anarchy, but
after Scaurus lost the consulship and a new praetor was 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 probably in 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 praetor of 58?) in 52 under Pompey's third consulship 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.
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