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1.39.2: eius autem prima causa coeundi est non tam imbecillitas quam naturalis quaedam hominum quasi congregatio; ...

Apropos congregatio Zetzel remarks `the metaphor is qualified by quasi.... as it more properly refers to animals rather than men'. It seems doubtful, however, that in general the -grego compounds were at this date felt as vividly metaphorical: segrego is used of human beings as early as Plautus and Terence (Mil. 1232; Heau. 386; other occurrences at OLD s.v., 1; Forcellini s.v., II); aggrego is commonly so used by Cicero (Zimmermann, TLL s.v., I). Moreover, our passage is the first attestation of congregatio. Cicero uses the word three times in De Finibus (2.109, 3.65, and 4.4), of which the latter two passages also refer to human beings but are without quasi. Hence the use of quasi in our passage is likely to be related above all to the newness of the term, albeit the etymology may be more strongly felt in a new coinage. Cf. TLL 4, 288.26ff.

1.53.1-2: nam aequabilitas quidem iuris, quam amplexantur liberi populi, neque servari potest--ipsi enim populi, quamvis soluti effrenatique sint, praecipue multis multa tribuunt, et est in ipsis magnus dilectus hominum et dignitatum--eaque quae appellatur aequabilitas iniquissima est. cum enim habetur honos summis et infimis, qui sint in omni populo necesse est, ipsa aequitas iniquissima est; ...

In this passage the usage of aequitas and aequabilitas has caused difficulty. Fantham sees this passage as `claiming that political equality for high and low is not real aequabilitas but mere aequitas, falling short of a higher concept of fairness, for which the speaker reserves aequabilitas'.(2) Zetzel paraphrases (ad loc.): `it is claimed that since even radical democrats apportion positions of honour unequally, therefore all equality is impossible. This criticism is sharpened by referring to "so-called equality" as inequitable, and then by making aequitas "fair apportionment" the object of attack.'

Though not coined by him, aequitas was a favourite word of Cicero, whereas aequabilitas, first attested in Cicero, may have been, as Fantham suggests (286), his coinage. Where it refers to ius or iurisdictio it evidently has the sense `even-handed', `fair', as the gloss [GREEK TEXT NOT REPRODUCIBLE IN ASCII] and various passages suggest, e.g. Her. 3.4: iustitiae partibus utemur ... si dicemus in omnibus aequabile ius statui convenire (where Caplan translates in omnibus aequabile ius as `the principle of dealing alike with all'); cf. TLL s.v., 1, 991.81ff. Also relevant here is Cicero's reference to an aequabilis praedae partitio at Off. 2.40, a practice cited to show that the opinio iustitiae counts for something even among bandits. The aequabilitas iuris of our passage which, according to Scipio/Cicero, the democrats pay lip-service to but do not practice surely refers to an even-handed distribution of rights; and the reason they do not practice it is that multis multum tribuunt; this implies that they pass out honours promiscuously to worthy and unworthy alike. Hence the conclusion: ea quae appellatur aequabilitas (sc. iuris) iniquissima est; in other words, the designation of their policy by the democrats, aequabilitas (sc. iuris), is a misnomer and their system of governance itself unfair.

Lest his explanation be found too elliptical, Cicero illustrates further in the following sentence. Here he specifies the case cum ... par habetur bonos summis et infimis, which was not made clear in the previous discussion, where merely the number of honours had been mentioned and a concomitant degradation of honours implied rather than stated. The result is: ipsa aequitas iniquissima est, i.e. the equality (sc. of honours) itself is most unequal (sc. because it takes no account of the differences in worthiness [based on rank or merit] among the recipients). In other words, aequabilitas iuris is the democrats' description, rejected by Scipio/Cicero, of their principle of governance. When we come down to the narrative of a concrete case the situation entailed is aequitas, i.e. an equality (sc. of honour).(3)

The difference between aequabilitas and aequitas in this passage, then, is not so much that between a higher and a lower concept of fairness (cf. Fantham) as between a principle of governance (aequabilitas iuris) and the desciption of a specific situation (aequitas [sc. honorum]); and not aequitas but aequabilitas should be rendered as `fair apportionment' and not aequabilitas but aequitas as `equality' (cf. Zetzel).

1.68.7: Following the lengthy passage compressed from P1. R. 8.562cff., Cicero describes the rise of the tyrant in a democratic polity:

cui quia privato sunt oppositi timores, dantur imperia et ea continuantur ...

These words are commonly referred to Pompey,(4) who received a special five-year cura annonae in 57 to free him from the embarrassment of being virtually under siege in his home by Clodius' partisans. Perhaps even more on Cicero's mind as he wrote De Republica would have been the case of Julius Caesar, whose position in early 56 had become critical, though he was able to repair it brilliantly at the council of Luca in April and then in June to obtain, with some assistance from Cicero (De provinciis consularibus), the continuation of his imperium in Gaul for five more years.(5) The phrase et ea continuantur surely suggests Caesar rather than Pompey, whereas the timores would fit either man.

2.47.1: Videtisne igitur ut de rege dominus exstiterit, uniusque vitio genus rei publicae ex bono in deterrimum conversum sit?

Zetzel comments ad loc.: `The same theme at 59.1 propter unius libidinem; the "one bad apple" theme may be a defence of the upper classes against plebeian criticism'. In both passages there is an implicit locus a comparatione contrasting the altered whole with the one member that served as a catalyst for change.(6) A defence along lines suggested by Zetzel might apply to the crime of the faenerator L. Papirius (cf. Liv. 8.28), alluded to obliquely at 2.59.1. But in our passage the reference is to the iniustus dominus atque acerbus Tarquinius Superbus (2.44.1), so that the upper class in general is scarcely implicated.

2.53-4: idemque, in quo fuit Publicola maxime, legem ad populum tulit earn quae centuriatis comitiis prima lata est, ne quis magistratus civem Romanum adversus provocationem necaret neve verberaret, provocationem autem etiam a regibus fuisse declarant pontificii libri, significant nostri etiam augurales; itemque ab omni iudicio poenaque provocari licere indicant XII tabulae compluribus legibus; et quod proditum memoriae est decemviros qui leges scripserint sine provocatione creatos, satis ostendit reliquos sine provocatione magistratus non fuisse; ...

Cicero's famous account of provocatio raises various difficulties. He is clearly following a narrative source or sources in which this institution is credited to P. Valerius Publicola. This construction, though common coin among annalists of the late Republic, cannot be historical, as modern historians are agreed; it rests rather upon the desire to connect this bulwark of the liberty of the plebs with a great name from early Republican history.(7) Cicero is not uncritical of this version of events either, but his criticism points in a different direction from that of modern historians: he believes not that this account retrojects provocatio to an earlier period, but rather that it dates provocatio too late; in his view there was already a right of appeal (provocatio) from the decisions of the kings. In Livy's narrative Horatius after being convicted of treason interposes the appeal provoco, whereupon the case is referred to the people (1.26.8). This suggests that Cicero may have found regnal provocatio in another annalist tradition.(8) Perhaps to avoid anachronism he appeals, however, to the pontificii libri and the libri augurales. The historicity of the assertion that provocatio existed under the kings need not detain us. Its function is clear: Cicero/Scipio wants to take the wind out of the sails of Publicola, constructed as a popularis-style leader, just as, for instance, Cicero repeatedly impugns the originality of Epicurus;(9) the presence of regnal provocatio in annalist historical narrative will likewise have served such political ends.

That the decemviri were, according to tradition, sine provocatione creati does not, pace Cicero, necessarily show that provocatio was normal at that period. Cicero knows the tradition as written by annalists for whom provocatio was the expected condition. Their statement that the decemviri were sine provocatione creati might be merely a clarification offered for readers who would otherwise expect provocatio to apply, rather than an indicator of the prevalance of provocatio in the fifth century B.C.

Of greater interest is the remaining Ciceronian assertion about early provocatio, namely its comprehensiveness as indicated in the Twelve Tables compluribus legibus. Cicero and his brother Quintus had learned the Twelve Tables by heart in their boyhood (Leg. 2.9 and 59), so that his testimony carries some weight.(10) The statement is thus not easily explained away as based not on the Twelve Tables but rather on annalist accounts or some later redaction of the Twelve Tables.(11) Nevertheless his previous statement about the regnal period indicates caution and the assertion itself seems overstated, a possibility that even one who is inclined to view Cicero's position here as essentially correct allows:(12) so inclusive a right of provocatio never existed?.(13) Sometimes cited in this connexion is Lex XII 9.2: de capite civis nisi per maximum comitiatum ... neferunto.(14) This should perhaps be seen as a first step toward the fully developed provocatio of the lex Valeria of 300.(15)

While a commentator facing restrictions of space may not be able to broach every problem in detail, Zetzel's comment ad Rep. 2.54 (following a good a analysis of the forms of Ciceronian argument but without criticism of the substance of that argument(16)) that `the whole passage is an excellent illustration of C(icero)'s abilities as an antiquarian', with a following reference to Rawson,(17) who points out Cicero's scepticism of tradition here, is seriously misleading. It should have been made clear that Cicero's handling of provocatio is partly dictated by political parti pris and that he is likely to be more dependent on the annalists than the text indicates; and the one historically useful piece of information, that on the Twelve Tables, seems overstated.

(1) These notes are based upon the useful and stimulating volume by J. E. G. Zetzel: Cicero, De Re Publica: Selections (Cambridge, 1995). I should like to thank the Editors and the anonymous referee for helpful advice.

(2) E. Fantham, `Aequabilitas in Cicero's political theory, and the Greek tradition of proportional justice', CQ 23 (1973), 285-90, at 287.

(3) 1.43 contains a similar argument in more pointed form: ... ipsa aequabilitas est iniqua, cum habeat nullos gradus dignitatis. Here aequabilitas evidently again means `even-handedness' and, as the context suggests, refers to the distribution of honours; but there is still some difference between the `evenness' (aequitas) of the honours distributed in the situation described in our passage and `evenhandedness' (aequabilitas) in the distribution of honours in 1.43.

(4) Zetzel ad loc referring to R. Meister, `Der Staatslenker in Ciceros De re publica', WS 57 (1939), 57-112, at 70, who in turn refers to Eduard Meyer, Caesars Monarchie und das Prinzipat des [Pompejus.sup.2] (Stuttgart and Berlin, 1919), pp. 105 and 115ff., with full references to primary sources.

(5) Cf. M. Gelzer, Caesar. Der Politiker und [Staatsmann.sup.6] (Wiesbaden, 1960), pp. 108ff. = Caesar. Politician and Statesman, trans. Peter Needham (Cambridge, MA, 1968), pp. 119ff.

(6) Cf. Heinrich Lausberg, Handbuch der literarischen [Rhetorik.sup.3] (Stuttgart, 1990), [sections] 395.

(7) Cf. Volkmann, RE 8Al (1955), 183.22ff.; J. Bleicken, ibid. 23.2 (1959), 2446.11ff., citing earlier literature; R. M. Ogilvie, A Commentary on Livy Books 1-5 (Oxford, 1965), ad 2.8; Andrew W. Lintott, `Provocatio. From the struggle of the orders to the principate,' ANRW 2 (1972), 22647, at 231 (`a probably anachronistic and invented first provocatio law'); similar to Bleicken is A. Drummond in CAH 72.2, 219-21 (the Lex Valeria of 300 alone authentic); somewhat differently T. J. Cornell, ibid., 400, accepts that the ius provocationis was enshrined in the Twelve Tables but admits that `the history of the institution of appeal ... in the Roman Republic is very obscure' and refers the reader back to Drummond.

(8) For Cicero's probable use of the annalists in the archaeologia of Rep. 2 cf. Elizabeth Rawson, Roman Culture and Society: Collected Papers (Oxford, 1991), 64 and n. 1.

(9) Democritus is played off against him at N.D. 1.73 (see Pease ad loc.); similar use is made of Aristippus at Fin. 1.23 and Off 3.116.

(10) Cf. K. Buchner, Mr. Tullius Cicero, De Re Publica. Kommentar (Heidelberg, 1954), ad 2.54.

(11) Pace Bleicken (n. 7 above), 2447.36-9 and 50-2.

(12) Cf. Lintott (n. 7 above), 235 (`may be an exaggerated deduction from his evidence'). Lintott accepts, however (too readily, I think), based only on Rep. 2.54, that `the XII tables would have had to recognise provocatio as a fact of life'.

(13) Cf. Bleicken (n. 7 above), 2447.48-50.

(14) Cf. P. R. Coleman-Norton, `Cicero's contribution to the text of the Twelve Tables', CJ 46 (1950), 51-60 and 127-34, at 131; cf. also Bleicken (n. 7 above), 2447.15ff.

(15) So E. S. Stavely, `Provocatio during the fifth and fourth centuries B.C.', Historia 3 (1955), 412-28, at 412-15, followed by Ogilvie, loc. cit., n. 7, and in turn by Zetzel ad Rep. 2.54.1. It is difficult to see how the maximus comitiatus should refer to the comitia conturiata, presided over by the consuls, rather than the concilium plebis, as Bleicken (n. 7 above), 2447.39ff., supposes; cf. also M. H. Crawford (ed.), Roman Statutes (London, 1996), 2.699.

(16) He does, however, later (ad 2.54.1) remark that the statement about the Twelve Tables can hardly stand at face value (see previous note).

(17) Rawson (n. 8 above), 64.


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Publication:The Classical Quarterly
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Date:Jul 1, 1998

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