¹ Der altsprachliche Unterricht 9 (1966), 51–73.

² Herrschaft u. Verwaltung im republikanischen Italien (1976), pp. 162 ff.

³ Arch. 10; Balb. 52; Bobb. Schol. 175 St.; MRR 2, 158.

⁴ e.g. de orat. 2. 115; 310.

⁵ ibid. 116–19; there follows a long discussion of the topoi that can be used in ‘instruction’ (130 ff.) that has very little to do with the proofs or legal arguments acceptable to a modern court. Cf. Brunt, JRS 62 (1972), 169.

⁶ ibid. 178. Discussion of the second and third heads runs on to 214, cf. also 32, 72–4, 82, 324, 332.

⁷ ibid. 30.

⁸ ibid. 294.

⁹ ibid. 306.

¹⁰ RE 4, 1260 ff. (Münzer).

¹¹ Polyb. 1. 11. Cf. Mommsen, StR³ 3, 343–5.

¹² Thus the draft treaty negotiated by M. Claudius Marcellus, cos. 152, with certain Celtiberian peoples, was rejected by the senate alone – whereupon Marcellus simply accepted their dedilio infidem on precisely the same terms! See Appian, Iber. 49 f., cf. Polyb. 35. 2–4.

¹¹ StR³ 3, 1172 obscures this. Cf. A. Heuss, Die Völkerrechtlichen Grundlagen der röm. Aussenpolitik (1963), esp. ch. 1.

¹⁴ Livy 32. 2. 5. Balb 35 seems incompatible with this provision being part of the foedus.

¹⁵ StR³ 1. 246 ff. It is of course beyond doubt that a commander could accept deditio (unconditional surrender), which might be followed by a treaty, could grant an armistice, and make a settlement, normally by advice of senatorial legati, in an area which had come under Roman control. But all the dispositions of a commander could be altered by the senate, and a mere SC could be overridden by a lex.

¹⁶ App., Iber. 80; 83 cf. A. E. Astin, Scipio Aemilianus 130–2 with further evidence and bibliography (add E. Täubler, Imperium Romanum, 1913, pp. 137 ff.), cf. Livy 9. 5 and 8–11.

¹⁷ Val. Max. 6. 3. 3; Dio fr. 45.

¹⁸ Polyb. 1. 62. 8, on which see Täubler (n. 16), pp. 106 ff.

¹⁹ See also Polyb. 1. 11. 2 (264); Livy 29. 12. 15 (205); 30. 44. 13 (201).

²⁰ ‘Quid fuit in rogatione ea quae de Pompeio a Gellio et a Lentulo consulibus lata est, in qua (‘quo’ Pantagathus) aliquid sacrosanctum (seel. Madvig) exceptum videretur? Primum enim sacrosanctum esse nihil potest nisi quod populus plebesve sanxisset (‘sanxit’ or ‘sanxerit’ edd.); deinde sanctiones † sacrandae sunt aut genere ipso aut obtestatione et sacratione legis aut poenae, † cum caput eius qui contra fecerit consecratur. Quid habes igitur dicere de Gaditano foedere eius modi? utrum [a] capitis consecratione an † obtestatione legis † sacrosanctum esse confirmas? Nihil omnino umquam de isto foedere ad populum neque legem neque poenam † gratam (or ‘gratam vel ratam’) esse † dico. De quibus igitur etiam (or ‘etiam igitur’) si latum esset † nihil ad plebem latum esse † ne quem civem reciperemus, tamen id esset quod postea populus iussisset ratum (cf. n. 23) nec quicquam illis verbis si quid sacrosanctum esset esse (‘EST’ or ‘EST esse’, edd.) exceptum videretur, de iis, cum populus Romanus nihil umquam iusserit, quicquam audes dicere sacrosanctum fuisse.’ Various deletions, transpositions and emendations of the obelized passages have been tried, none of which produces very clear sense or eliminates all strange expressions; there may well be manuscript corruptions, perhaps substantial omissions, beyond the reach of conjectural skill, and no theory can be safely founded on any modern recension of this section 33. It is only plain that if there was an exception of anything ‘sacrosanctum’ in the lex Gellia Cornelia, Cicero denies that it covers the Gades treaty, as it was not brought before the people or plebs; in the last sentence he probably asserts that a mere lex that had forbidden the reception of foreigners as citizens could be repealed by any later lex that authorized it.

²¹ StR³ 3. 1165 ff. The practice under Caesar and the emperors is irrelevant; they had the right to make treaties, but could take the advice of the senate.

²² e.g. by Vatinius (Vat. 29) and Clodius (Domo 129) as tribunes in 59 and 58. Under the triumvirs Aphrodisias was given treaty privileges by SC and lex (Sherk, Roman Documents from the East, p. 28A, cf. F. Millar, JRS 63 (1973), 57). Cf. n. 24.

²³ Livy 7. 17. 12.

²⁴ The treaties with the Cenomani and Insubres presumably followed their subjugation in 197 and 194, that with the Iapodes the victory over them of C. Sempronius Tuditanus, cos. 129. Caesar mentions no treaty with the Helvetii, and it must have been the result of his campaign of 58. (We need not assume that it was ratified by the people, since Cicero does not scruple to give the name of foedus to the pact with Gades.) It is puzzling that this clause was inserted in any of these treaties. At whose instance? The Romans had no reason to tie their own hands, and the ‘barbarians’ could hardly have expected Rome to make a practice of enfranchising their nationals. But perhaps some deserters to Rome had been given the franchise, and Rome conceded that there would be no more such grants.

²⁵ Walbank in Polyb. 21. 32. 3 argues that this clause (for which cf. Dig. 49. 15. 7. 1) belongs to a form of the treaty revised in 78. ‘Comiter’ means ‘with good will’.

²⁶ Zur Theorie u. Gesch. der röm. Agrargesetze, pp. 28 ff.

²⁷ On this term see Hammond, M., HSCPh 60 (1951), 159 ff.Google Scholar

²⁸ No doubt this rule was in Cicero’s time falling into desuetude (cf. 30), though carefully observed by Atticus (Nepos, Att. 3): I believe that it was not applied to Latins who obtained Roman citizenship per magistratum (JRS 55 (1965), 90 n. 4), and it was abandoned under Augustus, as shown in the letters to Rhosus and the third Cyrene edict (EJ nos. 301 and 311).

²⁹ Dio 41. 24. 1.

³⁰ Rome could and did unilaterally grant citizenship to the rebel communities after their deditio, as she had done in the past to communities incorporated in the Roman state after conquest (Humbert, M., Municipium et Civitas sine Suffragio, 1978, chs. iv and v).Google Scholar

³¹ ILS 8888.

³² ‘Quod si acerbissima lege Servilia principes viri... hanc Latinis, id est foederatis, viam ad civitatem populi iussu (‘as the people had ordered’) patere passi sum (‘bore with equanimity’), neque iis est hoc reprehensum Licinia et Mucia lege, cum praesertim genus ipsum accusationis et nomen et eius modi praemium quod nemo adsequi posset nisi ex senatoris calamitate neque senatori neque bono cuiquam nimis iucundum esse posset...’ (54). (I read ‘neque iis’ with b: other MSS have ‘his’: Madvig and modern editions ‘ius’, but cf. J. S. Reid’s edition, p. 108.) In my view ‘acerbissima’ should not be a dark and irrelevant allusion to any other provision of the lex Servilia, but is explained by the’ cum praesertim’ clause. ‘Neque...lege’ seems to mean that the citizenship of prosecutors under this law was not impugned by the lex Licinia Mucia; the authors of that law, ‘principes viri’, had not sought to repeal the provision, and the fact that it had not been adopted by the Latin foederati was no basis for prosecution in the court it set up. It should then be that lex Servilia which was in force in 95, viz. Glaucia’s, that Cicero has in mind: it did not matter to him if the provision had stood in earlier laws.

³³ cf. Brunt, JRS 55 (1965), n. 119; Sherwin-White, JRS 62 (1972), 96 f. ‘Latinis, id est foederatis’ does not of course imply that all Latins were foederati but means ‘Latins, in this case foederati’. Convictions for repetundae were not common, and conceivably the two Tiburtines Cicero names were the only allied prosecutors rewarded of whom Cicero knew: for other possibilities see Sherwin-White and M. Griffin, CQ n.s. 23 (1973), 124.

³⁴ RE 19. 893 f. (uncritical on the point at issue).

³⁵ W. Schulze, Gesch. Lat. Eigennamen, p. 88. Mommsen, StR³ 200 n. 1 conjectured that Perperna was charged under Pennus’ law of 126, but Cic, de offic. 3. 47, if correct, excludes the possibility that it provided for charges of usurpation of the citizenship: it simply expelled foreigners from the city of Rome. The fragment of C. Gracchus’ speech on the law (ORF² 180) is enigmatic.

³⁶ Livy 39. 3; 41. 8 f.; 42. 10. 3.

³⁷ Ascon. 67C, quoting Cic, pro Cornelio.

³⁸ Hist. 1.20: ‘citra Padum omnibus lex Licinia fratra (fraudi Casselius, frustra Wagner, taetra Dietsch, <in>grata Maurenbrecher, grata Galsterer) fuit’.

³⁹ Caesars Monarchie u. das Prinzipat des Pompeius², 20 n. 3.

⁴⁰ Thus Sulla 11 (disbelieved by C. E. Stevens, Latomus 22 (1963), 401 f.) shows at least that a man like Cicero, perhaps almost any candidate for the consulship, could be expected to hold himself aloof from political wrangles, so that he might be all things to all men; in my view it proves that Cicero did so conduct himself. Cicero’s frequent allusions in the Philippics to widespread enthusiasm for the Republican cause probably illustrate the exaggerations (not altogether without foundation) which it was hard to expose as such.

⁴¹ As did Demosthenes and Aeschines of transactions in 346; not only do they contradict each other, but their versions in 330 are not the same as those of 343.