In some contexts, the equites were subsumed into the wider category of boni, while in others the two groups were clearly distinguished. The question is how they were separated – what were the criteria? And were there implications for the place of the boni in public life, especially in relation to the judicial process? To clarify these questions, we will first have to define Rome’s second order, the ordo equester. Currently the debate evolves around two basic positions, which adopt what we might call the ‘minimalist’ and the ‘maximalist’ approach. The former focuses on the archaic institution of the equus publicus – ‘the public horse’ – as the sole qualifying attribute of an eques, while the latter applies a much broader definition that comprises all those who fulfilled the equestrian census requirement, probably set at HS 400,000 during the late republic.

According to the ‘minimalist’ interpretation, only the 1,800 men whom the censors had granted the equus publicus held proper equestrian status and were allowed to vote in the eighteen equestrian centuries, sit on the equestrian juror panels, wear the equestrian insignia and take part in the public ceremonies performed by the equites. In addition to holding the ‘public horse’, they would also have to meet the equestrian census.Footnote ¹ Alternatively, it has been suggested that all those who passed the census threshold counted as equites, whether holding the equus publicus or not.Footnote ² The equus publicus model raises insurmountable practical problems, since it reduces what was clearly an important and substantial class to fewer than 2,000 men. A compromise between the two positions has therefore gained traction in recent years, which posits that only equites equo publico officially counted as equites, but everybody with the right amount of property was informally considered to be equites. The result is two categories of equites: a select body of 1,800 ‘proper’ equites holding the public horse, and a much larger group of wealthy men who considered themselves to be equites – and were acknowledged by others as such.Footnote ³

The two-tier structure implied by this model poses fundamental questions. It has left no trace whatsoever in the historical record from the late republic; no source ever alludes to the existence of two different types of equites. And while there is ample evidence for property being the basic requirement, the ‘public horse’ is virtually absent. On numerous occasions Cicero is quite explicit about the role of the census. In the speech for the actor Roscius, he comments on the qualities of a witness, Cluvius, whose social position is explained in these terms: ‘if you consider his census, he is a Roman eques’ – ‘quem tu si ex censu spectas, eques Romanus est’, 42. In the Verrines, he mentions a scriba who received the golden ring, a distinction reserved for senators and equites, because he had made money, again suggesting it remained the key criterion, Verr. 2.3.176. The equestrian census served as a standard reference point, as underlined by Cicero’s intervention on behalf of two men, C. Subernius from Cales and M. Planius Heres – ‘One of the two has very little money, the other hardly up to equestrian level’ – and his comment on a certain Catienus, who is ‘fickle and base, but with a the equestrian census’.Footnote ⁴

Cicero offers no hint that there might ever have been more than one kind of eques in this period. No one is described as belonging either to the broader or the arguably more prestigious, narrower type. Instead, we find throughout Cicero’s speeches, letters and treatises plenty of people labelled straightforwardly as equites Romani. The absence of any qualification of their status suggests that the title was considered unambiguous and in no need of further explication. An eques was to Cicero – and presumably also to his audiences – simply an eques. In theory, these men might all have been ‘real’ equites granted the ‘public horse’, although that seems unlikely. For example, many hailed from small Italian towns which had only recently received citizenship after the Social War. It would be surprising if their local elites had been immediately admitted to the exclusive inner circle of the Roman equestrian order, especially if still restricted to just 1,800 members. Indeed, it raises the wider question of how a category with a supposedly fixed membership could have accommodated the vast expansion of the citizen body that took place during the first century.

Further complications derive from the fact that equestrian status appears to have been a hereditary distinction, rather than one awarded individually by the censors. The sources imply that the rank was passed on from father to son, which makes sense if closely linked to the patrimonium and the familial estate. Cicero often notes that he was born into the equestrian class, and in the Pro Cluentio he mentions honourable equites who prefer the quiet life to that of the senator, being content with the ordo of their fathers.Footnote ⁵ Similarly, in the Pro Rabirio Postumo, he again implied that the equites enjoyed privileges that had been passed down to them, asking, ‘Will you, equites, abandon the right received from your fathers?’Footnote ⁶ If we are dealing with a heritable distinction, that would explain also his reference to the long-standing equestrian status of the Plancii, their ‘vetustate equestris nominis’.Footnote ⁷

We also find references to young equites, such as Cluentius’ nephew, who was adulescens and eques Romanus, and to an ‘L. Bruttius, eques Romanus, adulescens’.Footnote ⁸ Their equestrian status is best understood as one they had inherited from their fathers, in which case the term simply means ‘very wealthy’. The ‘equites adulescentes’ were probably the sons of rich men, including the sons of senators, and therefore they did not constitute a particular type of equites. It also explains why no doubt is ever expressed regarding the equestrian status of any given individual, suggesting there was only one type – which was based on the census.

If, as it seems, sons were automatically admitted into their fathers’ rank, it becomes even more difficult to see how the number of equites could have remained fixed, as implied by the ‘public horse’ theory. The notion of an ordo equester consisting of just 1,800 men seems unrealistic in the vastly expanded Roman state of the late republic, when, as Davenport has pointed out, such a small number could not possibly have filled the large jury panels they controlled during certain periods.Footnote ⁹ This figure, we should not forget, comes from antiquarian sources and relates to the age of the kings and the early republic. Moreover, the centuriate assembly had already by the middle republic lost any direct correlation with the structure of the army and become a purely timocratic institution. The basic organising principle was now the census which defined membership of the different classes and voting groups; logically that would have applied also to the eighteen equestrian centuries.Footnote ¹⁰

References to the ‘public horse’ are extremely rare during this period, and almost invariably concerned with the past and particularly with instances of the horse being punitively withdrawn, which seem to have been the source of some fascination.Footnote ¹¹ The only occasion on which we hear of this institution was the recognitio equitum of 70, when Pompey famously surrendered his horse and accounted for his past military service. It was to all intents and purposes a publicity stunt since he had already entered the consulship. Therefore, we have no reason to assume this ceremony was regularly performed during the first century BCE.Footnote ¹² The only other reference from the late republic comes from the Philippics, where Cicero describes a series of controversial dedications to Lucius Antonius, who claimed to be the patron of a variety of groups that had honoured him with public statues, Phil. 6.12–15. The first was commissioned by all the thirty-five tribes, followed by a statue put up by the ordo of ‘equites Romani equo publico’ for their patron, 6.13. The next dedication came from veterans who had twice served as tribuni militum in Caesar’s army, and finally one from the Ianus medius, the financial quarter near the Forum.Footnote ¹³ Cicero implies that the alleged dedications were all fraudulent, asking how these groups could possibly appoint a patron – and Antonius at that. The implication is that Antonius was making absurd claims since these entities did not represent defined civic bodies able to take collective decisions or nominate patrons.Footnote ¹⁴ Most likely the statues in question were put up by Antonian supporters claiming some association with these groups.

Cicero never alludes to himself having held a ‘public horse’, nor are there any signs that Atticus or other prominent equites from the late republic did so. We are left with the conclusion that membership of the ordo equester was defined by census alone; presumably all those with wealth above HS 400,000 would have been inscribed in the equestrian centuries, been eligible for juror service and entitled to any further privileges such as reserved seating in the theatre.Footnote ¹⁵ A small subsection may have belonged to a historic body, composed of those formally in possession of a ‘public horse’. This archaic distinction was largely defunct by this time, and the fact that it is virtually never mentioned suggests that it did not confer much added status either. Historically, it would have comprised mostly younger equites, and later their role became entirely ceremonial. It might still have been possible to lose the distinction on grounds of misconduct, which might explain Cicero’s comment on Gellius being unworthy of ‘the equestrian order, the name of which he retains but has lost its distinctions’.Footnote ¹⁶ Since Gellius kept the title of eques and hence membership of the order, the ornamenta must logically refer to additional features, the loss of which did not affect his fundamental status. These might have included equestrian insignia, the right to reserved theatre seats and perhaps also the honorific ‘public horse’.Footnote ¹⁷

In short, the equites appear, like the rest of Roman society, to have been defined by wealth, which brings us back to the opening question about their relationship to the rest of the boni, whose fortunes fell short of the equestrian census but still guaranteed them a place among the upper echelons of the influential first class. The financial distinction between equites and boni draws attention to the composition of the juror panels after the reform of 70, when they were split equally between three groups: senators, equites and tribuni aerarii. The identity of the latter has been the source of much debate. In accordance with the prevailing interpretation of the equites, the jurors sitting on the equestrian panel are conventionally identified as those holding the ‘public horse’, while the tribuni aerarii supposedly were drawn from the wider, unofficial class of equites who merely met the property qualification. As argued above, there is no evidence for the existence of two types of equites in Rome – and many indications that the census remained the sole qualification.

The evidence for the jury composition is vague and to some extent contradictory, since some statements imply that the tribuni aerarii were equites, while others suggest they were not. On one occasion, Cicero first states that fifty jurors at the trial, i.e. two panels, were drawn from the ordo equester, but he then goes on to describe them as ‘principes eius ordinis’, leaders of this order, which hardly fits the theory that half them were lower-ranking, ‘informal’ equites.Footnote ¹⁸ In the same vein we are told in the Pro Murena that the jurors were drawn ‘ex amplissimis ordinibus honestissimi atque sapientissimi viri’, and in the speech for Milo he describes the trial as decided by ‘the most prominent men of all the orders’, which shows not just their elevated status but also that they were drawn from more than two orders.Footnote ¹⁹

In the Pro Cluentio, Cicero countered the charge that his client on a previous occasion had conspired to secure a conviction in court, arguing that this particular provision did not apply to Cluentius since he was an eques, 148. As Cicero states, equites are, unlike senators, exempt from this clause, because they have chosen a quiet life and decided not to seek honores. Senators, on the other hand, are rightly subject to greater strictness, which leads Cicero to warn against extending liability beyond this class: ‘Now apply the same conditions of life to the order of knights, and to the other orders’ – ‘they won’t put up with it’, ‘non perferent’.Footnote ²⁰ The passage suggests that, in addition to the equites, other orders would be affected by a widening of the liability clause. In this instance Cicero focused primarily on the equestrian order to which his client belonged, but the implication is that other ordines were also represented on the juries.Footnote ²¹

The passage of the Pro Cluentio is one of many examples of the tribuni aerarii appearing as a separate order with their own distinct profile. They are, for example, listed independently when writers report the outcome of trials, often delivering verdicts different from those of the other panels.Footnote ²² In one letter Cicero tells his brother that at the trial of Sex. Cloelius the senators acquitted by a wide margin, the equites were divided and the tribuni aerarii convicted, and on another occasion the tribuni aerarii acquitted, while the senators and the equites convicted.Footnote ²³ These disparities would be difficult to explain if they were indistinguishable from the equites and belonged to the same class.Footnote ²⁴

There are also indications that the separate identity of the tribuni aerarii extended beyond the court room. In the fourth Catilinarian Cicero describes the crowd that had gathered in his support, first mentioning the equites who had now, after years of strife, been united with the senate. He then moves on to praise the tribuni aerarii and other lower ordines such as the scribae, Cat. 4.15. Finally, he notes that all freeborn men are there, even the poorest. A similar division of the populus is found in the Pro Rabirio, where Cicero again praises the equites, the tribuni aerarii and the other ordines for coming to the rescue of the res publica, and in the Pro Plancio he describes how the tribuni aerarii have turned up to show their support for his client along with the equites.Footnote ²⁵ In this speech Cicero deals extensively with the equites, who are consistently presented as a single unambiguous category that extends across Italy and comprises local elites from the entire peninsula. His distinction between equites and tribuni aerarii is therefore significant, suggesting a substantive difference between these two orders.

The tripartite panels were introduced in 70 by the lex Aurelia, which for the first time created three categories of jurors.Footnote ²⁶ According to Brunt, ‘the second class undoubtedly consisted only of holders of the public horse (Cic. Phil. i.20), but Cicero himself could describe the third too as equites (e.g. Flac. 96), and this is only explicable on the basis that by property and birth they too were of equestrian standing’.Footnote ²⁷ The passage of the Pro Flacco has, as noted earlier, no direct parallel, while the section of the Philippics evoked by Brunt would seem to challenge rather than support the ‘public horse-theory’, since it mentions only the census as qualification for jury service.

In the first Philippic, Cicero attacks Antony for his proposed changes to the third panel of jurors, which he planned to fill with centurions, Phil. 1.20. Cicero asks rhetorically whether they had not already been allowed under Caesar’s, Pompey’s and Cotta’s judicial laws. Antony seems to have argued that they were prevented because of the census requirement, to which Cicero responds that the census applied not just to centurions but also to the equites, and that centurions who fulfilled it were already sitting on juries and had done so also in the past. According to Cicero, Antony now intended to introduce a panel exclusively made up of centurions, which he finds unacceptable, for ‘in a juror both financial means and status ought to be considered’.Footnote ²⁸ The passage is not easily reconciled to the theory of the second panel being defined by the equus publicus and the third by the census. On the contrary, Cicero points out that both panels were defined by the census, which had always allowed the wealthiest centurions to serve on juries.Footnote ²⁹ Again, the implication is that the qualification for the second panel would have been the HS 400,000 recorded for the equites, while for the third, composed of tribuni aerarii, it was presumably somewhat lower.Footnote ³⁰ The Caesarian reform, mentioned by Cicero, had removed the third panel; as Suetonius says, ‘He limited the right of serving as jurors to two classes, the equestrian and senatorial orders; the tribuni aerarii, which was the third, he removed’.Footnote ³¹ Interestingly, Dio states that Caesar transferred the courts to the senators and the equites, while previously also some of the commons (‘ek tou homilou’) had joined them, suggesting that the tribuni aerarii could be interpreted as part of ‘the people’, Dio 43.25.2.

Cicero also mentions a Pompeian law, and according to Asconius, Pompey passed a judicial reform in 55 to the effect ‘that jurors should be chosen from the highest census from the centuries in a manner different from previous practice, but in equal number from those three orders, and these should be jurors in court cases’.Footnote ³² Despite its vagueness, the passage leaves little doubt as to the importance of the census for the selection of jurors; presumably the new rule stipulated that jurors be chosen from among the wealthiest of the members of each of the three ordines.Footnote ³³

In his history of the equestrian order, Davenport recently ventured a new interpretation of the juror question.Footnote ³⁴ He proposes that within the equestrian census class, which he rightly interprets as the decisive criterion, existed several sub-ordines, including the tribuni aerarii, the equites equo publico and the publicani, which might explain some of the apparent contradictions. The solution is ingenious but not fully convincing. His examples of ‘sub-ordines’ are not comparable, for while the publicani might be described honorifically as an ordo, their equestrian status was never in doubt (e.g. Planc. 23: ‘flos equitum Romanorum’). On the other hand, the tribuni aerarii are usually presented as distinct from the equites. Davenport also fails to explain the disparity in the labelling of the juror panels, one of which was known simply as equites, while the other was called tribuni aerarii, a distinction that would be surprising if they were all equites. Finally, his model runs into the same problem of political logic as the standard ‘compromise theory’, since it leaves unexplained the political context in which the Aurelian jury reform was conceived, its rationale or the problems it was intended to solve.

The reform of 70 becomes difficult to explain politically if the tribuni aerarii were in fact equites, whether ‘unofficial’ or not. The lex Aurelia was a milestone in the history of the Roman courts. It represented a historic compromise that settled a long-running dispute over control of the courts that had raged since the tribunate of C. Gracchus, caused great upheaval and left deep scars and divisions within the elite. As far as we know, there was no attempt to challenge the Aurelian settlement over the next generation. It is hard to see how such consensus could have been reached by awarding one side of the dispute two-thirds of the jury places.Footnote ³⁵ If the reform was an attempt to create an equitable division of power, it would seem to have failed. Moreover, it does not explain why the ‘winning’ side would be divided into two separate panels composed of ‘official’ and ‘unofficial’ equites, whose shared background and lifestyle would have made them practically indistinguishable. In short, it is not evident how the reform managed to satisfy the senators. On the conventional reading they lost control over the courts, but over the next generation we find no complaints of senators being unfairly prosecuted in equestrian courts similar to those of the pre-Sullan age. Viewed from this perspective, the interpretation of the tribuni aerarii as leading members of a separate class, the boni inscribed in the prima classis, gains credence.Footnote ³⁶ The ancient title they were given may historically have been associated with the leading men of the prima classis, in which case its revival in 70 would logically have been linked to this class rather than to the equites.Footnote ³⁷ On this reading, the new juror panel was established in order to create a balance between two existing groups that had for decades been at loggerheads over the courts.Footnote ³⁸ Introducing a third panel dissolved the binary nature of the conflict and added an element of external adjudication to the process. Sometimes the boni would side with the senate, sometimes with the equites and sometimes with neither.