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Published online by Cambridge University Press: 16 April 2014
The struggle for and passage of the so-called Licinio-Sextian rogations of 367 b.c. is generally regarded as the climactic moment of the ‘struggle of the orders’. According to Livy, this year saw the ratification of a package of three laws. One limited possession of land. Another required that all money having been paid toward the interest on a debt be counted against the principal, and that the remainder of the debt be paid off in three annual instalments. The third law, which has received far the most attention in the sources and in modern scholarship, ended the practice of the annual election of tribuni militum consulari potestate, restoring the two-man consulship and requiring that one of the two consuls each year come from the plebs. The centrality of the struggle over these laws in Livy's account of the fourth century and their obvious effect, as reflected in the fasti by the subsequent election of two consuls every year, have led scholars to accept as genuine the tradition that an important reform of the Roman constitution took place in this year. However, every element of the laws, and of the narrative of how those laws came to be, has come under the scrutiny of modern scholarship. The most thoroughgoing of these criticisms is that offered by von Fritz, who argued that Livy and his sources completely misunderstood the tradition that they were interpreting.
Special thanks are due both to the anonymous reader and to the editor for saving this paper from many errors and inadequacies. Mark Wright and I have shared our ideas about Livy over countless lunches, and mostly in agreement. Leon Wash has listened to me rehearse the arguments contained herein more times than I can remember and offered salutary advice at every stage. This paper owes its existence in many respects to the kindness, patience, and support of Samantha H. Blatt. It is dedicated to JBP.
1 Livy 6.34–42; unfortunately, no other continuous narrative survives. Plut. Cam. 39–42 offers a briefer account, with some divergent details. Cf. Zonar. 7.24 and the fragments from Dio Cass. 7.
2 von Fritz, K., ‘The reorganization of the Roman government in 366 b.c., and the so-called Licinio-Sextian laws’, Historia 1 (1950), 3–44Google Scholar. I do not mean to imply that von Fritz was the first to attempt to show that Livy's account was so completely confused. That view goes back at least as far as de Beaufort, L., Dissertation sur l'incertitude des cinq premiers siècles de l'histoire romaine (Utrecht, 1738), 308–16Google Scholar. However, in this paper I will focus on von Fritz's important analysis, because it represents the most systematic demolition, and includes all of the major criticisms of this episode from Livy's history. Subsequent scholarship on the episode has almost universally followed von Fritz in finding irreconcilable problems in the text. Oakley, S.P., A Commentary on Livy, Books VI–X (Oxford, 1997–2008)Google Scholar, 1.645–52 arrives at conclusions similar to those of von Fritz regarding the improbability of Livy's narrative and the possibilities for historians. And, as with everything relating to the second pentad, it is the best introduction to the problems of this episode. Some of the conclusions of von Fritz are echoed in Kraus, C.S., Livy. Ab Vrbe Condita VI (Cambridge, 1994), 268–333Google Scholar, though for the most part she offers an innovative and very interesting reading of her own. See also Ridley, R.T., ‘The consular tribunate: the testimony of Livy’, Klio 68 (1986), 444–65CrossRefGoogle Scholar, at 461: ‘Von Fritz, in an epoch-making discussion, demolished Livy's account of the Licinio-Sextian laws.’
3 This approach is followed by, among others, Forsythe, G., A Critical History of Early Rome (Berkeley, 2005), 262–7Google Scholar; Oakley (n. 2), 1.646–52; Cornell, T.J., The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 b.c.) (London, 1995), 333–5Google Scholar, who asserts (p. 334) that ‘the background remains obscure, and although we can document the changes we are not always able to explain them satisfactorily. Once again the literary sources do not seem to have been able to account adequately for the facts at their disposal, and we cannot trust their interpretations of them’.
4 Ridley, R.T., ‘Livy and the concilium plebis’, Klio 62 (1980), 337–354CrossRefGoogle Scholar; id. (n. 2); and id., ‘Patavinitas among the patricians? Livy and the “conflict of the orders”’, in Eder, W. (ed.), Staat und Staatlichkeit in der frühen römischen Republik. Akten des Internationalen Symposiums vom 21–25 Juli 1988 an der Freien Universität, Berlin (Stuttgart, 1990), 103–38Google Scholar.
5 For the purposes of this paper, I leave aside the question of whether the ideas contained in Livy's narrative originated with Livy, or with his sources. That is admittedly an interesting question, but I would suggest that, wherever they began, the ideas became Livy's own once he incorporated them into his account.
6 von Fritz (n. 2), 3.
7 Ibid. 5, followed by Kraus (n. 2), 269 and Oakley (n. 2), 1.646–7. Kraus, C.S., ‘Initum turbandi omnia a femina ortum est: Fabia Minor and the elections of 367 b.c.’, Phoenix 45 (1991), 314–25CrossRefGoogle Scholar, places the episode in the context of a historiographical commonplace wherein episodes of dramatic political crisis originate with the hurt feelings of a woman.
8 von Fritz (n. 2), 4.
9 Ibid. 5.
10 A minor point, but perhaps an important one in showing that Livy had a clear and consistent plan in the composition of this episode: the criticism of Oakley (n. 2), 1.647 that the daughter of the consular tribune of 381 ought to ‘have known all about lictors’ should be reconsidered. Livy (6.34.6) simply calls the girl moris eius insueta, ‘unused to the practice’, not ‘completely unaware of the practice.’ Cf. the defence of the story by Cornell, T.J., ‘The failure of the plebs’, in Gabba, E. (ed.), Tria Corda: scritti in onore di Arnaldo Momigliano. Biblioteca di Athenaeum 1 (Como, 1983), 114–15Google Scholar.
11 von Fritz (n. 2), 7.
12 As I will show, however, the plebs was not in the mood for compromise, but was only interested in the laws on land and debt.
13 One might also wonder why the tribunes would demand a return to the consulship when earlier tribunes had fought so hard to establish the consular tribunate so that they might have access to the highest office in the Roman state. The simple answer to this is that the consulship, not the consular tribunate, is what they had wanted all along. Though Livy never states this explicitly, he does tell us that the original goal of the agitations of the tribune Canuleius, which resulted ultimately in the establishment of the consular tribunate, was access for plebeians to the consulship (4.1–6). I suggest that Livy believed that for Licinius and Sextius this occasio rerum nouandarum finally provided the opportunity to achieve the ultimate goal – the consulship.
14 6.37.5: an iam memoria exisse, cum tribunos militum idcirco potius quam consules creari placuisset ut et plebeiis pateret summus honos, quattuor et quadraginta annis neminem ex plebe tribunum militum creatum esse? Oakley (n. 2), 1.681: ‘L. records that the consular tribunate was established in 444 (iv.7.1) and that in 400 the first plebeian (P. Licinius Calvus) was elected to the office (v.12.9).’
15 von Fritz (n. 2), 8.
16 Oakley (n. 2), 1.652–4, Cornell (n. 3), 334–40, Billows, R., ‘Legal fiction and political reform at Rome in the early second century b.c.’ Phoenix 43 (1989), 112–33CrossRefGoogle Scholar and Richard, J.-C., ‘Sur le plebiscite ut liceret consules ambos plebeios creari (Tite-Live vii.42.2)’, Historia 28 (1979), 65–75Google Scholar, among others, all offer a variation on the theory that the law of 367 did not, in fact, include a provision that one consul must be plebeian and that such a rule was only instituted in 342. Develin, R., ‘The integration of the plebeians into the political order after 366 b.c.’, in Raaflaub, K. (ed.), Social Struggles in Archaic Rome: New Perspectives on the Conflict of the Orders (Oxford, 2005), 293–311CrossRefGoogle Scholar, offers a rare dissenting voice, arguing that the requirement that one consul each year be plebeian can be reconciled with the all-patrician colleges of subsequent years.
17 4.6.11–12 (regarding the first election of military tribunes with consular power): tribunos enim omnes patricios creauit populus, contentus eo quod ratio habita plebeiorum esset. In 353 (7.17.12), two patrician consuls are elected, which was justified by the fact that in duodecim tabulis legem esse ut, quodcumque postremum populus iussisset, id ius ratumque esset.
18 Oakley (n. 2), 1.647: ‘… interreges holding office for five days each could hardly have looked after the state for one year, let alone five’. One may object that this ‘anarchy’ represents a serious stumbling block for my argument. But, if there were no wars, what vital public business really needed to be conducted that was not the responsibility of the plebeian tribunes?
19 von Fritz (n. 2), 9.
20 For the ‘dictator years’, see Drummond, A., ‘The dictator years’, Historia 27 (1978), 550–72Google Scholar; cf. Oakley (n. 2), 1.647–8 (with reference back to 104–6), who provides a succinct explanation.
21 Nor does he ever insist or imply that patrum auctoritas was necessary to ratify any business conducted in the comitia tributa.
22 Livy regards the patrician strategy of exercising influence over the tribunes as a discovery of Appius Claudius in 480 (2.44.2–6).
23 von Fritz (n. 2), 9–10.
24 Ibid. 10.
25 Cf. the translation of Radice, B., Livy: Rome and Italy (London, 1982), 87Google Scholar: ‘When the tribes were summoned to vote and the proposers of the laws would not accept their colleagues’ veto …' I believe that this reading captures Livy's meaning. This interpretation, I think, is also implied by Kraus (n. 2), 293 and Oakley (n. 2), 1.685.
26 We need take no note of the ‘minor inconsistency’ that Manlius was appointed dictator, according to Livy, ‘immediately’ after the abdication of Camillus and yet somehow the tribunes have held a concilium plebis in the interval between the two dictatorships. Livy's account here is truncated, and it would be unnecessary to insist that Livy's extemplo meant that Manlius was appointed dictator at the very moment of Camillus' abdication.
27 von Fritz (n. 2), 11 n. 17.
28 Kraus (n. 2), 301; Oakley (n. 2), 1.692; however, at 1.648, Oakley seems to read the passage in the same way as von Fritz.
29 von Fritz (n. 2), 11: ‘But what follows is still more incongruous. For, according to Livy, Licinius and Sextius declared that the people must vote on all three laws together and could not accept some and reject the others, and this after the people had already taken a separate vote on the three issues. We know, of course, of so-called leges saturae, bills with riders, from ancient Rome … But if such a bill was introduced and put to a vote in this form, there was, of course, no possibility for the voters to accept one part and reject another … On the other hand, it is quite unheard of that three bills on different matters should first be voted on separately – and this is what Livy says (de faenore atque agro rogationes iubebant, de plebeio consule antiquabant) – and then be declared a lex satura, which cannot be accepted or rejected except as a whole. Yet this, according to Livy, is exactly what Licinius and Sextius did.’
30 von Fritz (n. 2), 13.
31 And, as I will discuss below, Livy does not believe that this ratification was required for bills passed in the tribal assembly.
32 von Fritz (n. 2), 11.
33 I find little basis for the argument of Lipovsky, J., A Historiographical Study of Livy Books VI–X (New York, 1981), 45Google Scholar n.1, that Livy has introduced the refutation of the consulship law by the plebs in order to emphasize the unity of the plebs. His assertion that ‘[i]t is not rare for a scene to assume a role in Livy's narrative which is justified by its emotional effect, not by reflective analysis of its factual or logical contents’ seems to be based entirely on a questionable reading (ibid. 92) of Camillus' role in the battle against the Volsci at 6.22.6–24.11.
34 The precedent was set by Thucydides (1.22). A good survey of the subject of speeches in ancient historiography is Marincola, J., ‘Speeches in classical historiography’, in id. (ed.), Companion to Greek and Roman Historiography (Malden and Oxford, 2007), 118–32CrossRefGoogle Scholar. Interesting approaches to the use of speeches in various Roman authors can be found in several papers published in Berry, D.H. and Erskine, A. (edd.), Form and Function in Roman Oratory (Cambridge, 2010), 225–308Google Scholar. C. Smith's contribution thereto, ‘Rhetorical history: the struggle of the orders in Livy’, 264–80, is a fascinating study of speeches in Livy's account of the ‘struggle of the orders’. Oakley (n. 2), 1.695–716 and Kraus (n. 2), 305–27, both provide outstanding analysis; the latter's argument that the speech should be placed in her broader reading of the episode as a narrative of an attempt to ‘capture’ the city is particularly stimulating. See also J. Lipovsky (n. 33), 41–2 and Walter, U., ‘Rollentausch und Übersetzung ins Absurde: zur rhetorischen Strategie in der Rede des Ap. Claudius Crassus (Liv. 6,40,3–41)’, Hermes 129 (200), 251–8Google Scholar. A rhetorical analysis of the speech can be found in Ullman, R., La technique des discours dans Salluste, Tite-Live et Tacite: la matière et la composition (Oslo, 1927), 65–67Google Scholar, to which some revisions have been proposed by Oakley (n. 2), 1.695–6.
35 6.41.4–6: quid de religionibus atque auspiciis – quae propria deorum immortalium contemptio atque iniuria est – loquar? auspiciis hanc urbem conditam esse, auspiciis bello ac pace domi militiaeque omnia geri, quis est qui ignoret? penes quos igitur sunt auspicia more maiorum? nempe penes patres; nam plebeius quidem magistratus nullus auspicato creatur; nobis adeo propria sunt auspicia, ut non solum quos populus creat patricios magistratus non aliter quam auspicato creet sed nos quoque ipsi sine suffragio populi auspicato interregem prodamus et priuatim auspicia habeamus, quae isti ne in magistratibus quidem habent.
36 First introduced at 6.37.12.
37 Livy at 3.10.7 seems to suggest that the motivation for the interpretations offered by the duumuiri was not always religious: libri per duumuiros sacrorum aditi; pericula a conuentu alienigenarum praedicta, ne qui in loca summa urbis impetus caedesque inde fierent; inter cetera monitum ut seditionbus abstineretur. id factum ad impediendam legem tribuni criminabantur, ingensque aderat certamen.
38 Cf. Oakley (n. 2), 1.715.
39 Kraus (n. 2), 327, ‘[T]hat the election is marked by no divine displeasure … significantly counters Appius’ forebodings about plebeian priests'. Cf. Levene, D.S., Religion in Livy (Leiden, 1993), 210Google Scholar.
40 Liv. 6.41.10: nec centuriatis nec curiatis comitiis patres auctores fiant. One might object that Liv. 7.15.12 (et de ambitu ab C. Poetelio tribuno plebis auctoribus patribus tum primum ad populum latum est) contradicts my point. However, this law is the exception in Livy's reporting of legislation and shows only that Livy believed that it was possible for the patres to be auctores of a tribunician law. It is worth noting that Livy portrays somewhat more cooperation between tribunes and senate as the first decade progresses.
41 See Oakley (n. 2), 1.649–52.
42 Nor did he believe that social struggle began with the death of Tarquin, or ended with the lex Hortensia: cf. Mitchell, R.E., ‘Historical development in Livy’, in Bright, D.F. and Ramage, E.S. (edd.), Classical Texts and their Traditions: Studies in Honor of C.R. Trahman (Chico, 1984), 179–99Google Scholar.
43 We should take very seriously the implications of Menenius Agrippa's parable of the belly and the limbs during the first secession of the plebs (2.32.8–12) for Livy's conception of the relationship between patres and plebs.
