Sorting out the lot in Republican Rome.
78 For sources on the trial see above, note 8.
79 On the lex Papia see above, note 6: on the selection of ambassadors, note 2.
80 Voting on new Vestals would have made candidates out of young girls, clearly something quite out of keeping with women's exclusion from the public sphere at Rome, whereas electing ambassadors will have appeared far more Remarkably, no general study illuminates sortition in Republican Rome despite the lots' prominence in the city's public affairs. Most scholars are aware that the sortes picked the highly influential centuria praerogativa and apportioned provinces, armies, and a variety of other tasks among consuls and praetors, but the lots did a lot more than that.(1) They matched quaestors with magistrates and scribes with quaestors, determined which censor would choose the princeps senatus and found the lustrum, and were even selecting the Senate's emissaries by the end of the Republic.(2) At the comitia tributa or the concilium plebis, the lots established the sequence in which the tribes voted on legislation and picked the tribe where the Latins exercised their right to vote when in Rome.(3) When these same assemblies elected minor magistrates, sortilege determined the order in which the presiding officer announced each tribe's choice.(4) It even served as a tie breaker when candidates finished their races in a dead heat.(5) In areas as diverse as religion,(6) the military,(7) the criminal courts,(8) and colonization,(9) sortition's contribution to the conduct of the res publica was vital. Its pervasiveness makes a proper understanding of the practice essential, yet despite the fact that over a quarter of a century has passed since Lily Ross Taylor called for such a study, this need remains unmet.(10)
In particular, the fundamental question of sortition's religious status is still in doubt. Did the Romans believe that when magistrates cast lots to select a centuria praerogativa or to allot provinciae, the sortes would show those assembled in the comitia for whom the gods wanted them to cast their votes or, once he was elected, what public duties the deities wished him to perform? As surprising as such ideas might appear, the former received the endorsement of no less eminent an authority than Professor Taylor herself, and her auctoritas has led other scholars to maintain the latter.(11) If they are correct, our understanding of how the Romans conducted their res publica must change dramatically, for it is not immediately obvious why the deities should not have played an equally decisive role When sortilege assigned jurors to hear criminal cases, helped select priests, or determined the composition of embassies. On such an analysis, the Romans will have accepted a degree of theocracy in the management of the city's public affairs that heretofore few would have suspected. Yet Victor Ehrenberg, the only scholar to have surveyed Republican sortition in detail prior to Taylor, strongly rejected any connection between the lot and religion in a political context.(12) The puzzle of sortition's religious status needs sorting out, therefore, in order to clarify the gods' role in public life at Rome as well as for the light that an accurate appraisal of what the practice represented to contemporary Romans can shed on the problem of limiting aristocratic competition under the Republic.
Any political system built, as the Republic's was, upon its ruling elite's struggles for the glory, honor, and authority derived from political and military success required firm limits upon the pursuit of those ambitions in order to protect both the state and its rulers from the dangers inherent in such a system.(13) Without ways of setting reasonable bounds upon aggressiveness and of defining the point at which rivalry must give way to cooperation, political contests brought with them the serious risk that men's short-sighted battles for prominence would ultimately generate competitive pressures intense enough to ignite civil strife and split the elite into warring camps. The result would not only imperil the Republic but end the cohesiveness among its ruling class that, at bottom, underwrote their corporate dominance at Rome.(14) Sortition helped temper the intensity of competition in two ways. On the one hand, the lot offered a method of dividing the duties and perquisites of office other than by vote of the Senate or the populus. The availability of a nonpolitical procedure for reaching these decisions made it possible to avoid such potentially divisive questions as which consul was more fit to conduct a particularly important water which censor more worthy to receive the privilege of naming the princeps senatus. The custom of casting lots instead underscored the essential equality of colleagues in a magistracy by placing them on the same footing in any division, no matter what the vote had been to elect them. Consequently, the competition essential to win the office could cease, and the partisanship it had generated might subside. Once a candidate had won his election, he no longer as a rule had any immediate need for organized supporters to secure further victories in contests over who would obtain the particular fruits of any magistracy. The answer depended on the outcome of a procedure that politics could not affect.(15) Resort to casting lots in this way aided the reestablishment of cooperation among the aristocracy as well as within the larger body politic after the temporary fissures that the struggle for office had opened. This regular relaxation of party lines, in turn, helped foster the impermanence of most political coalitions during the middle and later Republic.(16)
The lots thus enabled competition to subside in some cases; in others they facilitated its onset by resolving procedural questions that needed to be addressed before contests could begin. Sortition supplied a relatively simple and impartial way to settle such potentially contentious issues as how to choose a centuria praerogativa, who would serve as jurors in a criminal trial, or in what order the votes of the assembled tribes should be announced.(17) The lots thereby obviated the possibility that one side or the other could manipulate such preliminaries in its favor and thereby helped "level the playing field" on which aristocrats would contend. Placing controversy over these matters out of bounds in turn contributed much towards making the ruling class's intense political rivalry compatible with the efficient and orderly conduct of public affairs. Without the lot, aristocrats would either have had to resort to lengthy and awkward procedures to establish fair ground rules for their contests or have found themselves all too frequently gridlocked over the terms on which a contest would take place, paralyzing the res publica in the process until one side or the other backed down.(18) In providing an expedient alternative to such logjams, sortition also concurrently helped enhance aristocratic solidarity. Even as the Republic's political class regularly, divided itself among a succession of sides in various partisan struggles, its members could find common ground in support of the lots as a neutral aid in establishing the essential "rules of the game." Consensus on this point furthered unity in another way as well, for the vitality of competition depended upon insuring that potential contenders did not perceive its terms as so unfair that they refused to take part. The alternative was schism within the elite between those the rules helped and handicapped, and down that road lay stasis and a challenge to the political status quo.
Thus the lot helped impose necessary restraints within a highly competitive political system where the latent potential for divisiveness and strife constantly threatened to undermine the stability of the system itself. Yet the critical problem in understanding any such limit is how those it affected could agree to respect it. No external source of authority existed outside the aristocracy to control its individual members: the populace could not act without aristocratic leadership, and so rife was the Republican constitution with opportunities for obstruction and veto that only rarely could a magistrate accomplish anything in the face of senatorial opposition. Whatever limits there were, then, the political class would ultimately have to impose upon itself. Yet several hundred or a few thousand men at most comprised the Republic's ruling elite, intensely ambitious men who had long known and contended with one another in public affairs and whose families had been marrying into each other longer still.(19) In such an intimately combative world, just how was such self-regulation possible? The extent and complexity of their connections to one another must have made "objective" decisions - those that men could approach dispassionately because their choices would not in some way affect the interests of friends and relatives or inimici - but rarely possible. When politics could bestow an advantage on one side or the other, why did highly competitive aristocrats regularly elect to employ an impartial method like sortition? Magistrates dividing the responsibilities of their office frequently had even more at stake; why did those with greater political support than their colleagues not mobilize it to gain prize assignments? Taylor's thesis concerning the religious nature of the lot provides an answer, and that is its great attraction here. If the Romans understood sortilege as an act whereby Jupiter and the other gods communicated their will to mortals, then the Romans' piety will have made such consultation imperative and imparted legitimacy and authority to its results. Moreover, the aristocracy's corporate need to maintain belief in the pax deorum among the populace in order to buttress its authority over the res publica will have further contributed to their willingness to resort to the lots. But Taylor made her claim in passing, without a thorough examination of the evidence, and against Ehrenberg's vigorous assertion to the contrary. Thus the question remains open whether Taylor was right to believe the lots gave voice to the will of the gods. And if not, then some other way must be found to account for the success of sortition in limiting aristocratic competition at Rome.
Sortilege at the oracular shrines of Praeneste, Caere, Falerii, and Antium demonstrates clearly the wide acceptance that the notion of a connection between the gods and the lots had gained in the religious milieu of central Italy by the middle Republic.(20) Although Rome itself never possessed a cultic site where priests used sortition to divine the gods' will, good evidence from the early second century reveals the public's readiness to believe in a link between the two. In depicting a comic sortition carried out for possession of the slave girl Casina in the play of the same name, Plautus could repeatedly present one character as insisting that the outcome of the matter lay in the hands of the gods. Although Plautus adapted his Casina from a Greek original and hence may simply have taken these lines directly from that source, his decision to include them in a work intended for performance on a Roman stage indicates that he saw nothing in them out of keeping with the religious sentiments of a contemporary Roman audience.(21) Nearly two centuries later, Cicero attests the persistence of similar beliefs well into the late Republic. Writing in De Inventione (1.101), he explains how a speaker can arouse an audience's indignatio by an appeal to authority: Primus locus sumitur ab auctoritate cure commemoramus quantae curae res ea fuit iis quorum auctoritas gravissima debeat esse: diis immortalibus qui locus sumetur ex sortibus, ex oraculis, vatibus, ostentis, prodigiis, responsis, similibus rebus. The connection between the disposition of the gods and the determination of the sortes was thus sufficiently commonplace in the public's mind to merit a place in any competent orator's bag of rhetorical tricks. Cicero's efforts in De Divinatione to rebut his brother's contention that sortition could reveal the future similarly reflect the seriousness with which many of his contemporaries took the oracular powers of the lot.(22)
Yet Roman religious doctrine apparently restricted such beliefs to the private sphere. Cicero concludes his discussion of sortition in De Divinatione by asking Quis enim magistratus aut quis vir inlustrior utitur sortibus? - a longstanding prejudice within the senatorial class, to judge by a notice in Valerius Maximus that the patres forbade the consul of 241, Q. Lutatius Cerco, to consult the lots at Praeneste.(23) Certainly, the Senate held the lots at Caere and Falerii in sufficient awe to accept alterations in their condition as prodigia, but senatorial reverence never went so far as to sanction an official consultation of the gods by such means.(24) Much more significantly, in conducting those aspects of the res publica most directly affecting the gods, the Romans almost never had recourse to sortition. Thus, for example, among all those charged with religious duties at Rome, only Vestal virgins got their appointments through the lot. The Greeks, by contrast, commonly selected priests through sortition and thus allowed the gods themselves to choose those who supervised their rites.(25) Yet even the use of the sortes to designate new Vestals scarcely seems to reflect a desire to involve the goddess herself in the process. A lex Papia, perhaps of 65 B.C., at any rate after 253, introduced the procedure to replace the pontifex maximus' traditionally unfettered choice in the captio of a candidate. The primary purpose of the innovation was undoubtedly to diminish the potential for favoritism and corruption, not at long last to place the matter in Vesta's hands.(26) Roman temple dedications likewise reveal no great concern to allow the gods to participate through the lots. Although Livy's account of the early Republic preserves one or two cases where sortition determined a dedicator, the custom, if it ever existed at all, never established itself as part of the raps maiorum and had vanished completely by the third century's close.(27) Note as well what ensued when C. Valerius Flaccus, the flamen Dialis, won election to a praetorship for 183. The extensive taboos surrounding his person made holding a provincia outside Rome impossible, yet rather than let the gods arrange their priest's assignment through the lots in such a way as to avoid any conflict between Flaccus' civil and religious obligations, the patres ordered the sortition procedure modified to secure an acceptable result.(28) The arrangement at least avoided a repetition of the angry debates that had erupted six years before, when the lots had bestowed an overseas province upon another flamen holding a praetorship, Q. Fabius Pictor the flamen Quirinalis whom the pontifex maximus, P. Licinius Crassus, had thereupon forbidden to leave his religious duties in Rome. Yet if the sortes represented the gods' own decision in the matter, Crassus' obstruction becomes puzzling, to say the least.(29) None of this suggests any official readiness to rely on the lots to reveal the divine will in religious matters.
We have little reason to expect, therefore, that when magistrates cast lots in connection with the Republic's more mundane business, the results represented anything more than the outcome of an impartial method for making certain choices. Certainly when Cicero wrote his frother Quintus about the provincial assignments allotted each of them as praetors or to C. Coelius Caldus of the fact that the lot had assigned the latter to serve as his quaestor, his language betrays little consciousness of anything divine at work in the sortition.(30) Other cases of provincial sortilege likewise leave little room for the gods. Livy frequently reports that the Senate left it up to the new consuls at the beginning of their year in office to decide whether they would cast lots or come to an arrangement between themselves concerning the division of their provinciae.(31) Although consuls resorted to sortition far more commonly than they were able to agree on a mutually acceptable partition, instances of comparatio occurred. Scipio Africanus obtained the province of Sicily in 205 extra sortem, concedente collega, while the consuls Cn. Cornelius Lentulus and P. Aelius Paetus apparently reached a similar arrangement four years later in 201.(32) In the late Republic the consuls of 75, C. Aurelius Cotta and L. Octavius, reached a mutually acceptable division of the provinces the Senate had decreed them, and at the close of 54 one consul of that year, Ap. Claudius Pulcher, apparently came to an agreement with his colleague in order to obtain the province of Cilicia: Cicero reports that Appius had foreseen no difficulty in doing so earlier that year, when tribunician obstruction of passage of a lex curiata prevented the consuls from casting lots for their provinces, and Appius subsequently governed Cilicia.(33)
That recorded cases of comparatio are rare should not surprise; given the competitiveness of the men involved and the stakes, it will not often have been a matter of indifference to a magistrate which province he got. That comparatio occurred at all, however, indicates that consuls never treated sortition as a requirement in dividing their provinciae.(34) Neither did the Senate or the populus of Rome, for on several occasions one body or the other accepted an appeal from the consuls to assign them their provinces. According to Livy, in 190 the consul L. Cornelius Scipio agreed to a proposal by his colleague, C. Laelius, to let the patres decide which of them should take charge of the war with Antiochus rather than cast lots for it, and the senators, after hearing Africanus volunteer to serve as his brother's legate, gave the war to Lucius.(35) Something similar apparently happened in 144, when a major debate roiled the Senate over which of the year's consuls should proceed against Viriathus in Spain.(36) In the end, the patres accepted Scipio Aemilianus' motion that neither consul be sent to Spain. In 104 the Senate decreed that Marius take charge of the crisis in Gaul extra ordinem and possibly placed Scipio Aemilianus in command of the war against Numantia in 134.(37) Instances of the populus passing legislation to assign provinciae are even more numerous. Particularly revealing is Scipio Aemilianus' recourse to the concilium plebis in 147 to gain command of the war with Carthage despite his colleague's insistence on casting lots for it.(38)
Even more remarkably, when the outcome of sortition was inconvenient, senators and magistrates displayed little compunction about altering the results. In 210 the lots gave the consul M. Claudius Marcellus command in Sicily once again. That result prompted a bitter outcry from the Syracusan ambassadors then in Rome in complaint of Marcellus' treatment of their city following his capture of it in the preceding year, for they quite naturally feared reprisals when Marcellus returned to their island. Marcellus therefore volunteered to exchange provinces with his colleague in order to forestall a decree from the Senate on the question and spent the year fighting in Italy instead.(39) Twenty years later, according to Cicero's account of the division of the consuls' provinciae in 190, the patres sought to have Lucius Scipio and Laelius trade provinces after sortilege had bestowed the war with Antiochus upon the former.(40) Cicero himself had no qualms about giving away what the sortes had given him: as is well known, he swapped his allotted province of Macedonia for his colleague's in order to secure the latter's loyalty in 63.(41) Nor were patriotism or a sense of noblesse oblige the only motives impelling magistrates to set aside the results of the lot. Although the province of Cisalpine Gaul had fallen to L. Licinius Lucullus in 74, ambition drove him to extraordinary lengths to get the Senate to set this assignment aside and grant him Cilicia and command of the Mithradatic War instead.(42) Indeed, the sortes imposed no obligation upon a magistrate to command a province at all. In 176 three of the year's praetors asked for and obtained the Senate's permission to excuse themselves from taking up the provinces the lot had assigned them, and similar renunciations occurred in the late Republic as well.(43)
The readiness of magistrates and senators alike to omit provincial sortition at the consuls' discretion and their willingness to alter its results when these proved not to their liking make it very difficult to understand how they could have viewed casting lots in such cases as a means of divining the will of heaven. Consultation of the gods was a central tenet of the pax deorum, the vital reciprocal relationship between Rome and the city's heavenly protectors that underlay the prosperity and success of the res publica. No major act of public business - whether a meeting of the assembly, a session of the Senate, a battle, or anything else - could proceed without divine sanction expressed through favorable impetrative auspices, nor could it reach a valid conclusion in the face of adverse oblative signs.(44) Magistrates often devised ingenious ways to avoid the announcement of unfavorable omens, but seeking the gods' approval through auspication was mandatory, just as acting in accordance with their dictates became imperative once an officeholder had heard the auspices announced. To act otherwise invited disaster, as the Romans learned more than once to their cost.(45) The need to obey prodigia was even more urgent, for through these the deities proclaimed that the pax deorum itself had become imperiled. Without immediate action to restore it, Rome faced the prospect of imminent catastrophe.(46) Thus if consuls and senators had viewed the lots as a form of communication from the gods in any way analogous to auspication or prodigia, they could never have failed to cast them to determine which provincia the deities wished each magistrate to obtain, still less ignored the results when they found them displeasing.(47)
Consideration of the augurs' role in sortition provides no reason to doubt the lots' status outside the boundaries of the pax deorum. A number of coin reverses associate the sitella, the urn used to cast the lots, with the lituus, the preeminent symbol of the augurate, and augural intervention in an inquest following the death of Q. Petilius, consul in 176, confirms the link this iconography implies.(48) Petilius fell in battle, and subsequently at Rome the collegium augurum, at the behest of the patres, issued a formal decree stating that Petilius had committed a vitium in casting lots with his colleague to determine from which direction each of them would advance in a combined assault upon an enemy position.(49) Clearly, then, the augurs exercised some sort of authority over sortition, but whence arose their role? Most plausibly, the collegium's authority stemmed from a requirement that sortilege take place within a templum.(50) Petilius and his colleague had cast their lots in that part of their camp set aside for ritual purposes and designated as a templum, and in the augures' analysis Petilius' vitium centered upon his failure somehow to locate himself correctly in relation to this area.(51) The provision that sortition occur within templa appears to have been a general one, and because these were inaugurated spaces, competence to decide the ritual validity of public acts carried out within their precincts rested with the augurs.(52) Yet religious rules affecting time, space, and manner governed virtually every aspect of the conduct of public business at Rome; such were the imperatives of the pax deorum. Casting the lots within a templum (and possibly auspicato) merely placed them on the same footing vis-a-vis the gods as public meetings, sessions of the Senate, and voting assemblies.(53) Sortition under these conditions did not make the gods responsible for the outcome; it simply implicated them in the decision and sought thus to impel their support for the result. As Livy has L. Aemilius Paullus remark in a speech to the people after being allotted command of the war against Perseus, Deos quoque huic favisse sorti spero eosdemque in rebus gerendis adfuturos esse.(54) None of this indicates that the Romans viewed sortilege as anything other than an impartial method for men to make choices watched over, in a distant way, by the gods.
The use of the lots to divide magistrates' responsibilities therefore offers no reason to presume that sortilege to select a centuria praerogativa somehow revealed the will of heaven, as some have claimed. Taylor and others have argued that the enormous influence which the first century to cast its vote exerted upon the rest of the comitia centuriata arose out of a belief among the citizens that this vote represented, as Cicero remarks on several occasions, an omen comitiorum indicating the candidates whom the gods wanted to become consuls.(55) The rest of the centuries naturally therefore followed the praerogativa's lead and cast their votes for the men whom the deities had designated through it. Deriving the ominous character of the praerogativa's vote from the religious character of the sortition that selected it might seem, therefore, an easy and obvious step: the gods would cause the lot of a century to be drawn whose members' preferences among the candidates corresponded to their own.(56) Yet without independent confirmation of sortition's religious status, any argument that the ominous significance of the centuria praerogativa's vote somehow resulted from the lots' revelation of the gods' will verges on circularity. Moreover, the whole notion of a widespread belief at Rome that the gods revealed their preference for the Republic's chief magistrates through the centuria praerogativa merits reconsideration, for a closer examination of the evidence turns up little to indicate that in the late third century, when one would expect such a belief to have been strongest, the vote of the centuria praerogativa conveyed any signal from on high.
Certainly, Q. Fabius Maximus saw nothing sacrosanct in the choice that the first century made in 215. When the centuries assembled under his presidency to elect consuls for the following year and the centuria praerogativa returned the names of two candidates of whom Fabius did not approve, he halted the voting and proceeded to browbeat its members into reconsidering their choices. Not surprisingly, they switched their votes to two men more to the consul's liking, one of whom happened to be Fabius himself.(57) To be sure, Fabius' concern to get the centuria praerogativa to change its vote shows plainly that the rest of the centuries would otherwise have followed its lead, but the incident scarcely demonstrates that its vote revealed the will of heaven - if anything, the reverse. The early years of the Hannibalic War had ushered in a profound religious crisis at Rome, and it surpasses belief that Fabius or anyone else in such circumstances would have dared to challenge the deities' choice of military leaders if that was what they believed the vote of the centuria praerogativa represented.(58) Indeed, the perception that Fabius had tampered with the will of heaven to win another consulate might have seriously undermined the confidence of his soldiers and his authority in the field. Significantly, although the candidates whom the praerogativa had initially endorsed protested vehemently at being done out of their consulships, Livy preserves no hint of a charge that Fabius had violated the wishes of the gods in rejecting the original vote.(59)
Perhaps Fabius' refusal to accept the vote of the centuria praerogativa can still be reconciled with its formal status as an omen by understanding his refusal as an exercise in magisterial prerogative in dealing with communications from the gods. Magistrates could protect themselves from the impediments of unwanted oblative signs by announcing in advance that they would not see them.(60) But this explanation seems unlikely here since the omen in question would clearly have been not oblative but impetrative: Fabius had called for the centuria praerogativa to vote, and the result had been reported to him. In dealing with impetrative signs, on the other hand, magistrates frequently avoided unfavorable omens by arranging to have only favorable results reported to them - by starving the chickens in order to make them eat greedily, for example.(61) But they could not reject the report of signs they found uncongenial, as P. Claudius Pulcher attempted to do in 249 - with disastrous results.(62) Hence if the centuria praerogativa's vote constituted a true omen, its announcement ought to have bound Fabius to accept it. But rather than appeal to the finer points of religious law in order to explain how Fabius could reject the will of heaven in this case, it is much simpler to see his willingness to twist the arms of the voters in the centuria praerogativa as a result of his seeing nothing divine or ominous in their choice at all, only an erroneous judgment of the merits of the two men they initially selected.
Faulty human judgment, not a defiance of heaven's will, was also central to a dispute at the comitia four years later, when one of the praerogative century's choices for a consulship in 210, T. Manlius Torquatus, adamantly refused to accept the office, citing age and physical infirmity. Again, no hint emerges in the proceedings as Livy reports them that anyone accused Torquatus of rejecting a divine mandate in urging the centuria praerogativa to reconsider its vote; the only issues were his insistence that its members' estimation of his ability to serve was mistaken and their reluctance to alter their choice. Their disinclination arose, however, not out of a fear of trifling with the will of heaven but because they desired new faces in the consulate. Once advised how to secure that end, the members of the first century happily changed their minds.(63) Controversy again marred the consular elections in the following year. Tribunes of the plebs complained when the first century cast its vote for the magistrate conducting the consular elections for 209, the dictator Q. Fulvius Flaccus. He responded, not that the tribunes ought to respect the gods' choice as expressed in the omen of the praerogativa's vote, but that a law passed several years before allowed the reelection of whomever from among the ex-consuls the voters preferred. The quarrel went to the Senate, where the patres concurred with Fulvius on pragmatic, not religious, grounds.(64)
The absence of any religious dimension in these episodes is all the more significant because the creation of the centuria praerogativa itself dates only from the latter half of the third century, well within the adult lives of many of those attending these assemblies, including Fabius, Torquatus, and Fulvius themselves. These three men, moreover, were all pontifices when these events took place, and Fabius was an augur to boot.(65) If, therefore, the intent of allotting one century from the first class to vote in advance of the rest was to apprise voters of heaven's will, such a belief ought to have been strongest among the men who had seen the change made, and members of the city's religious hierarchy should have been especially eager to foster it. Yet whatever heavenly endorsement the comitia centuriata's vote conveyed was all but nugatory in these cases. If it existed at all, it was of so little significance that Fabius and Manlius could simply sweep it aside when it got in their way, something both sides could afford to ignore in the wrangle over the consulships of 209 without concern over how the citizens would take such blatant disregard for divine revelation. Instead, the omen comitiorum that Cicero claims the vote of the centuria praerogativa represented belongs far more to the realm of popular superstition than to the vocabulary of signs the gods sent under the terms of the pax deorum.(66) At most, the century's portentous character may have developed gradually in the minds of some voters owing to a general belief in the ominous quality of any beginning as well as because (for reasons that had little to do with the gods' candidates) whoever garnered the vote of the first century usually went on to win a majority of the rest.(67) And if these voters connected this omen with the sortition that selected the praerogativa, such private belief in the religious significance of the lots could, as we have seen elsewhere, coexist comfortably with official treatment of them as simply an impartial way of making certain decisions.
Scattered testimony, however, does occasionally portray the lots as an expression of the divine will. In recounting a quarrel between the censors of 209 over whom to choose as princeps senatus, Livy has one of them, P. Sempronius Tuditanus, boldly assert cui di sortem legendi dedissent ei ius liberum eosdem dedisse deos (27.11.9-11). Cicero, too, in the Third Philippic describes with obvious sarcasm the assignment of provinces for the promagistrates of 43 as provinciarum religiosa sortitio, divina vero opportunitas ut, quae cuique apta esset, ea cuique obveniret, and later asks qui sunt igitur reliqui quos sors divina delectet? - all by way of accusing Antony of rigging the sortition.(68) Yet Cicero's irony falls flat without an underlying presumption that the results of lots cast religiose ought to be in some sense divine. In the First Verrine, too, he notes, apropos of the process by which the jury was impaneled, that postquam reiectio iudicium facta est, quod et in sortitione istius [i.e., Verris] spem fortuna populi Romani et in reiiciendis iudicibus mea diligentia istorum impudentiam vicerat, renuntiata est tota condicio.(69)
Yet partisan zeal and political expediency, not pontifical doctrine or augural law, best account for such statements. Cicero had ample reason in these cases to claim far greater divine involvement in the outcome of the lots than Roman religious law was prepared to acknowledge. By implying in his speech against Verres that the deified Fortune of the Roman People had intervened in the sortition that selected the jurors, Cicero engaged the gods in the struggle against Verres and elevated what was at stake in the trial to something important enough to be a matter of concern to them.(70) He also cast himself in the role of the gods' ally and at the same time flattered the jurors by endowing their service with a divine sanction. In the Third Philippic, too, Cicero's heightening of the lots' religious significance served equally polemical ends. On the one hand, it magnified Antony's transgression in fixing their outcome by characterizing the act as not simply cheating but tampering with the will of the gods. On the other, several magistrates, disappointed in their hopes of a province, had already asserted that Antony's sortition was null, and Cicero, by overstating the religious significance of the act that had produced these results, increased the urgency of their claims.(71) Correct procedure was essential to avoiding a vitium in sortition, yet this casting of the lots had been anything but religiose. Hence Cicero implies that Antony's manipulation was not simply invalid on procedural grounds but risked bringing down the wrath of heaven. At other times, however, when he had less to gain, Cicero's claims for the lot were much more modest(.72) Sempronius, too, had good cause to attach religious significance to the lots' verdict in his case. He intended to bestow the position of princeps senatus upon Q. Fabius Maximus, although mos maiorum at the time ordained that this honor should go to the eldest patrician ex-censor among the consulars, T. Manlius Torquatus. Sempronius' colleague, M. Cornelius Cethegus, demanded that Sempronius follow custom and argued strenuously for the appointment of Torquatus. Against the claims of tradition Sempronius could bring to bear no more effective authority in support of change than an assertion of divine sanction to justify his decision. Thus he, or the annalist who put these words in his mouth, proclaimed that the gods through the lot had given him the right to select whomever he wished as princeps senatus in order to legitimize his break with precedent.
A deliberate attempt, therefore, to blur the dual nature of the lots in Republican Rome - religious in a private context but in public matters simply a mechanical procedure for making a choice - most satisfactorily accounts for the occasional passage that, like those noted above, seems to suggest the gods took a hand in sortition connected with the res publica. This is not to deny that some at Rome might have failed to distinguish rigorously between public and private sortition in practice. Possibly the use of the lot at oracular shrines in central Italy, coupled with a requirement that sortilege connected with the res publica be conducted in a templum, led some ordinary citizens and perhaps even a few of the senators as well to imagine that the gods took a hand in the allotment of provinces or the choice of a centuria praerogativa. Stoic beliefs may have induced some in the upper classes to hold similar views.(73) But such fancies never affected the lots' formal status under the Republic: sortition never formed part of the city's public cult. In matters most directly affecting the gods, the lots played only a negligible and peripheral role. In more earthly affairs, the Romans' treatment of the lots' decisions displays none of the traits that might suggest that sortition constituted an element within the pax deorum. Although magistrates could display considerable ingenuity in getting the gods to produce favorable signs or in avoiding the announcement of unfavorable ones, the requirement to seek them was inflexible and, once announced, their dictates had to be obeyed. To act otherwise was to violate the pax and court disaster. Yet consuls were free to dispense with the casting of lots when they chose and to alter the results as they saw fit. The Senate went along willingly with such arrangements, and at times both it and the populus actively cooperated in them. While augural law governed certain aspects of public sortition, its authority no more demonstrates the fundamentally religious nature of the act than the augurs' role in assemblies or sessions of the Senate. And finally, the judgment of the century allotted to cast its vote first imposed no obligation upon magistrates or candidates or even voters to concur, as ought to have been the case if religious law held that this century expressed the gods' own selection among the contenders. If all this is so, there is little reason to believe that when magistrates cast lots in any other public matter, they or their peers in the Senate looked upon the results as an expression of divine will.
As one might have expected, therefore, the Romans ran their res publica without allowing the gods a central role in their decision making. This is not to say that the Romans were impious or irreligious - quite the reverse - but simply that they recognized firm, clear lines dividing res divinae from humanae. As in any alliance, the pax deorum was based on recognized rights and responsibilities on both sides. The Romans did what the gods required of them, offering scrupulously exact worship, seeking divine sanction for their undertakings, and conciliating their heavenly protectors whenever the latter indicated something had displeased them. But the Romans expected the gods, too, to respect the limits the pax laid down and not intrude into public business that fell outside these parameters. Although they sought the gods' approval through impetrative auspices to hold an assembly to elect magistrates, sought it again when the winning candidates entered office, and were willing to accept the gods' cancellation of the proceedings at any time through oblative signs, the Romans chose their leaders themselves, without seeking to know the preferences of the powers above. Likewise when each consul or praetor marched off to his provincia, he sought the permission of the gods, but deciding where he was to go rested in the first instance with the patres and secondly with the magistrates themselves.
Recourse to the lots arose not out of a desire to involve the gods in the substance of such decision's, but simply because the Republic's highly partisan political system occasionally needed a way to make impartial choices. Both a concern for fairness and narrow self-interest at times led aristocrats to seek some means of settling questions affecting the competition among themselves other than politics; yet paradoxically the very intensity of their rivalry made the arbitrary caprice of the lot the only alternative they could agree on. The problem of deciding which century should vote first at the comitia centuriata well illustrates the attractiveness of finding a solution in sortition. Given the influence the centuria praerogativa would exert on the votes of the centuries that followed, highly ambitious aristocrats as well as voters concerned to make their voices heard could reach consensus on no method for choosing one other than a completely random assignment of the privilege. Creating a permanent centuria praerogativa or establishing a regular pattern of rotating the privilege would confer an enormous advantage at the outset of any contest upon those candidates with strong followings in that first century while handicapping all others - either permanently or at least on the many occasions when their centuries did not vote first. The same arrangements would disenfranchise much of the electorate and, while greatly enhancing the importance of support from those aristocrats influential with the voters in the centuria praerogativa, would significantly devalue the backing of aristocrats whose auctoritas was strongest among those who voted elsewhere. The other alternative - having the magistrate conducting the assembly himself simply designate a century to vote first - would have struck almost everyone as even more objectionable insofar as it granted one man an inordinate influence upon the result.(74)
Agreement could form around casting lots to pick the centuria praerogativa not because the practice would confer no advantage on one candidate or another in an election, but because whatever advantage it conferred was random and so impartially bestowed. Given the desirability of a prerogative century, one of them had to vote first, and although no candidate would view drawing lots to determine which one would do so as the method most advantageous to himself (that method would of course be to pick the century in which his support was the strongest), each nevertheless could accept this solution because the procedure - as distinct from its results - would not materially alter his prospects of victory. And because sortition made it impossible to predict where the voting would commence, it diminished the value of no potential prerogative century's votes: candidates would need to canvass them all, and that meant cultivating as well the support of the many aristocrats whose influence weighed heavily with the voters in the various centuries and whose endorsements, therefore, would be crucial to carrying them. Similar considerations explain the appeal of sortition to determine the order of voting in the comitia tributa or the concilium plebis when the tribes voted for legislation and had their votes announced sequentially, or, when the same assemblies voted simultaneously at elections, to establish the order in which the votes were announced.(75)
Likewise, the competitiveness of the men whom the tribal and especially the centuriate assemblies elected to magistracies made casting lots the only practical way of enabling them to divide their duties, particularly the provinciae. Eagerness for prized assignments rendered agreement on a mutually acceptable partition among colleagues a rare occurrence.(76) The alternative, therefore, was to leave such questions to the patres or the voters, but here, too, ambition made this solution difficult to achieve. Each magistrate knew from the totals of the votes in the centuries or tribes at the comitia how extensive his support had been among the electorate. Before the institution of the secret ballot in 139, he could even know who had voted for and against him.(77) He could as well count the number of friends and foes among his peers in the Senate. Hence newly elected magistrates would have had little difficulty in reckoning up the chances of winning a political contest in the curia or the comitia against their colleagues to obtain a choice province or a desirable duty. While whoever judged himself likely to emerge the winner from such a competition would certainly be willing to bring the matter to a vote, those who thought they would lose undoubtedly would not. For them, the even Chance offered by the lot held far more appeal, and their veto (or that of a sympathetic tribune) could usually prevent the matter from coming before the Senate or the people. Thus sortition became the only acceptable compromise, for once again, although one or more magistrates would benefit from its results, the procedure itself was neutral. Indeed, so vital was it for no magistrate to feel himself at a disadvantage in these proceedings that even the Republic's interests took a back seat in such cases. Rather than allow provincial assignments to be made in the political arena, where at least some possibility existed that in the process of awarding provinces the experience and abilities of each year's magistrates would be taken into account in determining their assignments, the ambitions of officeholders necessitated random and hence sometimes irrational allotments.
Self-interest and a need to ensure fairness impelled recourse to the lot elsewhere as well. Parties to cases tried before the standing courts, for instance, demanded impartial jurors, while the larger political community had to perceive the men who heard such cases as more or less unbiased if their verdicts were to have any legitimacy at all. The complaints of P. Clodius Pulcher's supporters in 61 that the Senate's initial bill to try him for sacrilege allowed the praetor conducting the trial to hand-pick the jury reflect these concerns clearly.(78) In this case, as in most others during the late Republic, sortition followed by challenges to specific jurors by each side furnished a neutral jury simply and efficiently. A demand for fairness, along with a desire to restrict the arbitrary power of one man and the potential for favoritism that was its corollary, presumably also motivated the lex Papia's substitution of the lot for the pontifex maximus' heretofore unrestricted choice in the captio of new Vestal virgins. Similar motives probably led to the use of sortition to appoint senatorial emissaries in the late Republic as well.(79) Where family pride or honor were at stake, the lot offered a quick, unobjectionable alternative to leaving the selection in the hands of one man when the cumbersome business of a vote was clearly out of place.(80) The fortuitous quality of the lot further made accepting disappointing results easier in such cases as well as many others. Those not chosen had less room for bitterness, resentment, or jealousy if only the luck of the draw determined who won and lost.(81)
Thus the sortes in Republican Rome made a critical contribution to maintaining aristocratic control of the state by allowing a high degree of political competition to coexist alongside a significant degree of cohesion among the elite. Senatorial rule was possible, ultimately, because senatorial consensus left little room for the populus to exercise its nominal sovereignty in any real sense.(82) The aristocracy's ability to define and enforce limits to its members' political combats was the vital prerequisite to their ability to find such consensus again and again in the context of a highly contentious political milieu. The lots served in a variety of ways to end or avoid competition and bring the aristocracy together. The key question is how they accomplished this feat. The preceding discussion has shown that the sortes' effectiveness arose not out of any religious significance attaching to their results but because out of motives usually self-interested but occasionally altruistic a group of highly partisan individuals could nevertheless agree to reach decisions on some matters in a way that avoided politics altogether. Their competitiveness in this case generated its own restraints.(83)
1 On sortition to select a centuria praerogativa see below, notes 55-56 and related discussion. Provincial sortition for consuls and praetors is well attested throughout the Republic and requires no demonstration. Sortition for the command of specific legions: Livy 21.63.1, 22.27.10, 42.32.5; for conducting elections for successors, Livy 35.6.2, 35.20.2, 39.32.5; for censors, Livy 24.10.2. On the political uses of the lot at Rome see in general Staveley, Greek and Roman Voting 230-31.
2 Quaestors: Livy 30.33.2; Plut. CG 1.4; Cic. Mur. 18, Div. Caec. 46, Q. fr. 1 (1.1).11. Att. 121 (6.6).4, Phil. 2.50, Fam. 116 (2.19).1. Scribes: Cic. Cat. 4.15; Schol. Bob. 87 St.; cf. Schol. Gron. 290 St.; Pliny Ep. 4.12.2. Censors and the choice of a princeps senatus: Livy 27.11.9-11. Lustrum: Livy 38.36.10 (although note MS B omits sorte). Ambassadors: Cic. Att. 19 (1.19).3, in 60 B.C. (and cf. the practice during the empire, Dio 59.23.2; Tac. Hist. 4.6.8); Staveley (Greek and Roman Voting 230-31) asserts that the practice probably originated in the third or fourth century but offers no evidence. Normally in the middle Republic, the consul or praetor conducting the session of the Senate that passed the motion dispatching the embassy chose its members; for examples see von Premerstein, "Legatus" 1134.
3 On the role of the lot in these assemblies see Taylor, Roman Voting Assemblies 70-74, and Staveley, Greek and Roman Voting 155-56. On the role of the lot in dividing tribes among the centuries of the second and lower classes in the centuriate assembly see Taylor 87-90, and Staveley 127. Note, too, that freedmen voted in one of four urban tribes assigned them by lot (Livy 45.15.5: cf. Cic. De Orat. 1.38).
4 CIL II 1964, the lex Malacitana, 57. Discussion in Taylor, Roman Voting Assemblies 80-81; Staveley, Greek and Roman Voting 179-81.
5 Attested for aedilician elections: Cic. Planc. 53: but there is no reason why the principle should not have extended to others.
6 Sortition determined the minor pars populi, the seventeen tribes whose Votes elected a new pontifex maximus and, after 104, every other new member of the great priestly collegia (Cic. Agr. 2.18, and, on the lex Domitia, Asc. 79-80 C). The provisions of the lex Domitia were repealed by Sulla and reenacted in 63 by Labienus (Dio 37.37.1-2). On the procedure see Linderski, "The Aedileship of Favonius" 191-92: cf. Taylor, "The Election of the Pontifex Maximus," and below, note 26. At some point a lex Papia required that new priestesses of Vesta be chosen by lot (Gell. NA 1.12.11, and cf. Suet. Aug. 31.3; Sen. Con. 1.2.3; Dio 55.22.5) although the date is highly uncertain. Niccolini (Fasti 382-83) places the Jaw after 253 B.C., while Rotondi (Leges Publicae 376-77) attributes it to a tribune of 65:
7 Military tribunes used the lot to determine the order in which they would summon the tribes to select new recruits (Polyb. 6.20.2; Val. Max. 6.3.4; App. Iber. 49, where the lot also selects the recruits themselves) and to decide which soldiers would be put to death when they decimated units guilty of cowardice in battle (Polyb. 6.20.2) or of sedition (App. BC 3.43).
8 Selection of a jury for one of the standing quaestiones in the late Republic usually involved first sortition, then challenge: e.g., the trial of Verres in 70 B.C. (Cic. Verr. 16; cf. Schol. Gron. 335 St.), of Clodius in 61 (sources below, note 18), of Milo in 52 (Asc. 38-39 C; cf. Gruen, Last Generation 238 n. 116); note also the attempt to try Clodius in 57 (Cic. Q. fr. 5 (1.5).2) and the law recorded in CIL [I.sup.2] 596. However, sortition played no role in jury selection under the lex Acilia (see below, note 18); procedure under the Calpurnian and Junian extortion laws is unclear. When jurors reported their verdicts orally, sortition determined the order in which they made their declarations (Cic. Clu. 75).
9 E.g., CIL [I.sup.2] 585 3, 15, 16; Cic. Fam. 401 (11.20).3; cf. Hyg. Agrim. p. 73 Thulin.
10 Taylor, Roman Voting Assemblies 73. See now, however, R. Stewart, "Publicity and the Lot: The Politics of Sortition," in The Shapes of City Life, which came to my attention too late to be taken into account here. I thank Stewart for allowing me to read a copy of her study in advance of publication.
11 Taylor, Roman Voting Assemblies 73-74 and esp. 111, "The centuria praerogativa, chosen by lot and therefore thought to show the will of Heaven," and 91. "It . . . influenced later votes because of the Roman's feeling that the lot indicated the will of heaven." Provincial assignments: Frier, "Augural Symbolism" 117; Eckstein, "T. Quinctius Flamininus" 125; Bingham, "Consular Provinciae" 200. Cf. also Headlam, Election by Lot 12; Meier. "Praerogativa Centuria" 595-97.
12 "Losung" 1465-66, esp. "Was hier fur Griechenland ausgefuhrt ist, gilt im wisenlichen auch fur Rom. Auch hier ist die L[osung] des politischen Lebens von der religiosen L. durchaus zu trennen."
13 On the need for limits on aristocratic competition see Rosenstein, Imperatores Victi 1-6.
14 Cf. Gruen, "Exercise of Power" 253-54.
15 On the question whether the lot was regularly "fixed" see the appendix to this essay.
16 On the duration of factions see now Brunt, Fall of the Roman Republic 443-502.
17 On the fact that a candidate who had not won a majority of the tribes might nevertheless win an election if the tribes' votes were announced in a favorable sequence see Taylor, Roman Voting Assemblies 80-82; Staveley, Greek and Roman Voting 179-81.
18 Lengthy and awkward procedures, e.g., the complex and time-consuming procedures for selecting jurors without the lot established by lex repetundarum preserved on the so-called Tabula Bembina: CIL [I.sup.2] 583 = Bruns [FIRA.sup.7] 10 = Warmington, Remains of Old Latin 59 lines 21-26. On the authorship and date of this law see Sherwin-White, "The Date of the Lex Repetundarum" and "The Lex Repetundarum and C. Gracchus"; and, contra, Mattingly, "The Extortion Law of the Tabula Bembina"; cf. idem, "The Extortion Law of Servilius Glaucia" - although these questions do not affect the point here. The most complex and elaborate procedures for allotting jurors, by comparison, are those of Pompey's lex de vi of 52, requiring a little more than one day to carry out (Asc. 39 C); cf. Gruen, Last Generation 238 n. 116. Gridlock: e.g., Clodius' enemies' attempt to allow the praetor in charge of a proposed tribunal to try Clodius on charges of sacrilege in 61 to hand-pick a jury rather than rely on the lot. The resulting outcry among Clodius' friends stymied the optimates' bill to set up the tribunal until Hortensius' concession on this point cleared the way for a compromise: Cic. Att. 14 (1.14).1-5, 16 (1.16).1-2, with Schackleton Bailey's notes ad locc.
19 Senators and those closely related to them are here considered to comprise the Republic's aristocracy (Harris, War and Imperialism 10 n. 8). For a recent attempt to gauge the size of this "senatorial class" see Hopkins and Burton in Hopkins. Death and Renewal 31-119.
20 Ehrenberg, "Losung" 1455. On oracular sortition in Italy see now Champeaux, "Sors oraculi" and "'Sorts' et divination."
21 The clearest statements are at Cas. 345-46, [Olympio] Quid si sors aliter quam voles evenerit? [Lysidamus] Benedice. dis sum fretus, deos sperabimus; 389-90, [Lys.] Taceo. deos quaeso. . . . Mihi ut sortito eveniat; and 417-18, [Lys.] Cure nos di iuvere, Olympio, gaudio. [Ol.] Pietate factum est mea atque maiorum meum. Note also 347-49, 382-83.410. On Casina as an adaptation from a Greek original by Diphilus see Prolog. 3132. Casina is dated by a reference to the Senate's suppression of Bacchic worship in 186 (979-80) and Plautus' death in 184 (Cic. Brut. 60; cf. MacCary and Willcock. Plautus: Casina 207 n. 11.
22 Div. 2.85-87; cf. 2.38, 1.34. On Cicero's attitude towards divination in this work see Beard. "Cicero and Roman Divination." Note also Varro L. 7.48 on the sortes primae, believed to have been taken from Apollo's cauldron.
23 Div. 2.87; Val. Max. Epit. 1.3.2.
24 Lots as prodigia: Livy 21.62.5, 21.62.8 (cf. 62.1); 22.1.11 (cf. 1.8).
25 Martha, Les sacerdoces atheniens 29-35; Headlam, Election by Lot 5-6.
26 Gell. NA 1.12.11 (cf. Suet. Aug. 31.3); Sen. Con. 1.2.3; Dip 55.22.5 (dated above, note 6). Sortition also played a role in the selection of pontifices maximi and, after passage of the lex Domitia in 104, any member of one of the four collegia, but only because per religionem it was not permitted for the people to bestow a priesthood. Therefore the lot created a minor pars populi by selecting seventeen of the thirty-five tribes whose votes would then elect the successful candidate. Yet even so, cooption by the college concerned followed, and it was this that in fact made the man elected a priest: see above, note 6.
27 Attested only in connection with the dedication of the Capitoline Temple in 509 (Livy 2.8.6-8), where the consuls cast lots. Livy also reports (4.29.7) that one of the consuls of 431 dedicated the Temple of Apollo without casting lots, since his colleague was absent. However, opposition arose in the former case and complaints in the latter, which, if genuine, suggest that sortition in such cases represented simply a means of dividing responsibility for a piece of public business, not a way of letting the gods make the pick. See further Ehrenberg. "Losung" 1466.
28 Livy 39.45.4-5. Livy does not specify how the procedure was modified, but perhaps only the sortes for the urban and peregrine praetorships were in the urn when Flaccus' turn came to cast lots. Cf. also the quarrel between the two consuls of 131, one of whom was pontifex maximus, the other flamen Martalis, over which of them should command the war against Aristonicus in Asia Minor; a vote of the assembly, not sortition, settled the matter (Cic. Phil. 11.18).
29 Livy 37.51.1-6; cf. 37.50.8. On the arrangements in 205 to allow this same pontifex maximus to avoid holding a province outside the Italian peninsula during his consulate, see below, note 32. Provincial sortition probably did not occur in 242 when the pontifex maximus L. Caecilius Metellus forbade the consul A. Postumius Albinus to abandon his religious responsibilities as flamen Martalis to take up command of the war in Sicily, since Albinus' colleague had received the same assignment (Livy 37.51.1-2, Per. 19; Val. Max. 1.1.2: Tac. Ann. 3.71).
30 Marcus and Quintus Cicero: Q. fr. 1 (1.1).43, quoniam mihi casus urbanam in magistratibus administrationem rei publicae, tibi provincialem dedit. Quintus got his province by lot: cf. 1 (1.1).27; Att. 15 (1.15).1, 13 (1.13).5, 17 (1.17).1. Caldus: Fam. 116 (2.19).1, Cum optatissimum nuntium acceptissem te mihi quaestorem obtigisse, eo iucundiorem mihi eam sortem sperabam fore quo diutius in provincia mecum fuisses. Magni enim videbatur interesse ad eam necessitudinem quam nobis fors tribuisset consuetudinero quoque accedere. Cf. Livy 8.16.5 for another equation of the lot with casus.
31 E.g., 42.31.1, senatus consultum inde factum est ut consules inter se provincias . . . compararent sortirirentve. Cf. 28.45.9, 30.1.2, 30.40.12, 32.8.2, 33.43.3, 37.1.7, 38.35.9, 43.12.2, 45.17.5.
32 Africanus: Livy 28.38.12, nominatae consulibus provinciae sunt, Sicilia Scipioni extra sortem, concedente collega, quia sacrorum cura pontificem maximum in Italia retinebat, Bruttii Crasso, indicates that the patres had, as usual, merely designated the provinces the consuls were to govern, while the latter, in view of Crassus' religious obligations, elected to forgo the lot and agreed that Crassus would hold the command that did not require him to leave Italy (cf. 38.45.8: Dio fr. 57.52). For nominatae . . . provinciae sunt as referring only to the designation of the provinces, not the magistrates who would hold them, see Livy 21.17.1, 44.17.9-10, and cf. Mommsen, Staatsrecht I 56 and n. 2. On the consuls' prerogative to divide the provinciae as they saw fit see Mommsen I 55-57. Lentulus and Paetus: in 201, Lentulus, hoping to snatch an easy victory and credit for the peace from Scipio after the latter's defeat of the Carthaginians at Zama, demanded that the Senate give him Africa as his province. His colleague Paetus was willing to acquiesce, but the patres decreed that the consuls either cast lots or arrange between themselves a division of Gaul and the fleet. Livy fails to report how Lentulus and Paetus ultimately divided the provinces, but it is a fair surmise that Paetus simply conceded the fleet to Lentulus, since he had been willing to allow him to go to Africa from the outset and Lentulus later turns up in command at sea, struggling to make his way to Carthage before the war's end (Livy 30.40.7-8, 40.12, 43.1).
33 Cotta and Octavius: Sall. Hist. 2.98D Maur. Claudius and his colleague, L. Domitius Ahenobarbus: Cic. Fam. 20 (1.9).25; cf. Att. 91 (4.17).2, 92 (4.18).4, Q. fr. 22 (2.2).3; and see Shackleton Bailey, Ad Familiares I 316-17 for discussion of the events, the constitutional problems they raised, and earlier scholarship.
34 Interestingly, there are no cases of comparatio among the praetors on record; this may be due to the fact that the creation of a second praetorship in 242 and of others subsequently probably came about through legislation that specifically prescribed sortition for the division of provinces between praetors.
35 Livy 37.1.7-10; cf. 38.58.8. Cicero Phil. 11.17 (cf. Val. Max. 5.4.5), however, preserves a different version of these events. According to Cicero, the province of Asia fell to Lucius Scipio by lot, but the patres doubted Lucius' abilities and were on the verge of transferring the command against Antiochus to his colleague Laelius when Africanus intervened to prevent this step by offering to serve as his brother's legate. Most scholars have preferred Cicero's account on the grounds that Laelius, a novus homo and previously closely connected with Africanus, would not have been politically strong enough or sufficiently disloyal to have sought to deprive Lucius of the war: so Munzer, "Laelius" 403; Fraccaro, Processi degli Scipioni 357; Scullard, Roman Politics 128-29 (cf. his Scipio Africanus 202-3); Briscoe, "Flamininus and Senatorial Politics" 51 (cf. his Commentary on Livy 291, and "Livy and Senatorial Politics" 1097). A minority of scholars, however, has elected to follow Livy, arguing that other new men were enjoying conspicuous political success around this time, notably M. Porcius Cato, cos. 195, and M'. Acilius Glabrio, cos. 191. The former, at least, had grown from the protege of an ancient noble house to an independent political power in his own right, and Laelius may have done so too (note Livy 37.1.7, Multum Laelius in senatu poterat). Having reached the consulate, he may no longer have felt he had any reason to defer to the interests of the Scipios; it was time to put his own first. In Cicero's version, on the other hand, the patres wanted to take the command away from Lucius because parumque in eo putaretur esse animi, parum roboris, but this was certainly not the case: see Balsdon, "L. Cornelius Scipio." On the veracity of Livy's account see also Dorey, "Scipio Africanus as a Party Leader" 196-97; Bingham, "Consular Provinciae" 202-3.
36 Val. Max. 6.4.2. Since the division of provinces was the consuls' prerogative (Mommsen, Staatsrecht I 55-57), the initiative to have the Senate decide must have come from this year's pair.
37 Marius: Cic. Prov. 19; Sall. Iug. 114.3. Opinion divides on whether Scipio Aemilianus' assignment to the Numantine War came by decree of the Senate or by plebiscite: Hackl (Senat und Magistratur 102, accepting Val. Max. 8.15.4) holds it was by decree; Astin (Scipio Aemilianus 183, rejecting Valerius) argues for a plebiscite. Note also that in 214, during the crisis of the Hannibalic War, the Senate ordered the urban praetorship to go to Q. Fulvius Flaccus extra ordinem (Livy 24.9.5). Apparently the other praetorian provinces were assigned by decree as well in that year (Livy 24.10.5).
38 App. Lib. 112 (cf. Val. Max. 8.15.4); Livy Per. 51. Other legislation includes bills for Crassus in 131 (Cic. Phil. 11.18), for Marius in 107 (Sall. Iug. 73.7; Degrassi, Inscr. Ital. XIII.3 17 and 83), probably for Glabrio through a lex Gabinia in 67 (Cic. Leg. Man. 26; Sall. Hist. 5.13 Maur.; Plut. Luc. 33.5; cf. Dio 36.14.4), for Caesar in 59 (sources in Broughton, Magistrates II 190), for Piso and Gabinius via a lex Clodia in 58 (Broughton II 193-94), and for Pompey and Crassus by a lex Trebonia in 55 (Broughton II 217). Note also Scipio Africanus' threat in 205 to go to the people to obtain the addition of Africa to his province if the_Senate refused to grant this (Livy 28.45.1-2).
39 Livy 26.29.1, 26.5-9; Val. Max. 4.1.7; cf. Zon. 9.6.
40 Cic. Phil. 11.17; see discussion above, note 35.
41 Cic. Piso 5; Sall. Cat. 26.4; Dio 37.33.4; cf. Plut. Cic. 12.4.
42 Plut. Luc. 5-6 (cf. App. Mith. 72), clearly to be preferred to Velleius (2.33.1), who claims that Lucullus was allotted Asia. Note too that Lucullus' example apparently incited his colleague to gain a similar decree from the Senate nullifying the results of the lot (Plut. Luc. 6.5).
43 Praetors of 176; Livy 41.15.5-10. One claimed that a change of commanders would hamper the war effort in his province; two others alleged religious duties in Rome as their pretext, obligations which for one of the latter had strangely vanished when he became consul five years later and sought to cast lots with his colleague for command of the Third Macedonian War (Livy 42.32.1-5). Late Republic: Cn. Cornelius Scipio, praetor in 109 (Val. Max. 6.3.3b), Q. Mucius Scaevola (Asc. 15 C; cf. Balsdon, "Q. Mucius Scaevola" and, on the date and Scaevola's rank, Broughton, Magistrates II 11, III 145; Marshall, Commentary on Asconius ad loc.; Kallet-Marx, "Asconius 14-15" 306-7; for a different date and rank, however, Badian, "Scaevola and Asia" 108-9), Q. Hortensius as consul in 69 (Dio 36.1a; cf. Schol. Bob. 96 St.), L. Lucceius as praetor in 67 (Dio 36.41.1, but see Broughton, Magistrates III 127-28, and cf. 121 for discussion of this man's identity). Note also Cicero's refusal to take up his provincial command following his consulate, although this came to him as a result of his agreement to trade the province initially allotted to him for his colleague's (Cic. Att. 21 (2.1).3, Piso 5; Plut. Cic. 12.4). Note too that when the lot awarded a senator a place on an embassy, he was under no obligation to accept it (Cic. Att. 19 (1.19).3).
44 On the distinction between impetrative and oblative signs see Linderski, "Augural Law" 2195-96; on the role of the auspices in transacting public business see Linderski, passim, and, more briefly, John North in The Cambridge Ancient History [VII.2.sup.2] 585.
45 Rosenstein, Imperatores Victi 77-82.
46 On prodigia see Wissowa, Religion und Kultus der Romer 390-92.
47 Of course, it is still possible to explain the events discussed above by claiming that divine communications via the sortes were not like prodigia or the auspices, but rather that divining the gods' wishes through the lots as well as obedience to the results were somehow optional. However, this idea seems rather improbable: in no other area of public cult were rituals optional, and indeed the notion that anything in Rome's dealings with the gods could be at the discretion of the celebrants runs counter to the high degree of formalism and scrupulous precision in fulfilling the city's obligations that the gods demanded under the terms of the pax deorum.
48 Coins: Crawford, Roman Republican Coinage, nos. 359, 374.2, 460.3. Taylor first proposed the identification of the urn paired with the lituus on these coins as a sitella ("Symbols of the Augurate"; cf. Roman Voting Assemblies 74). Subsequent discussions of the first of these coins, minted by Sulla in 84-83, consistently follow Taylor on this point: Frier, "Augural Symbolisms," not disputed by Badian, "Sulla's Augurate"; cf. Frier, "Sulla's Priesthoods," and Badian, "A Reply"; Crawford, Roman Republican Coinage I 373-74, 390; Linderski, "Augural Law" 2194. On the lituus see esp. Cic. Div. 1.30, lituus isle vester, quod clarissimum est insigne auguria (cf. Ser. Aen. 7.187; Gell. NA 5.8.10).
49 Livy 41.18.7-8, Tum sortiti [Petilius and his colleague C. Valerius Laevinus], quia non ab eadem utrumque parte adgredi hostem placebat, regiones quas peterent. Valerium auspicato sortitum constabat, quod in templo fuisset; in Petilio id vitio factum postea augures responderunt, quod extra templum sortem in sitellam [dagger] in templum latam foris oporteret. The errors in Taylor's analysis of this episode (Roman Voting Assemblies 73 with n. 31) are corrected by Linderski ("Augural Law," 2194 n. 174) but do not in themselves vitiate her point concerning augural involvement in the casting of lots. On the augural complexities of this episode see above all Linderski's incisive discussion, "Augural Law," 2173-75, Ehrenberg ("Losung" 1465) wrongly dismisses the episode as the augurs' grasping at straws to invent an explanation for Petilius' death.
50 Note in addition that this sortition also entailed auspication, since the augurs announced that Petilius' colleague Laevinus had cast his lot auspicato, while Petilius' pullarius reported to the Senate that vitium in auspicio fuisse, nec id consulem ignorasse (Livy 41.18.4). Possibly, therefore, the augurs' authority may have arisen from a general requirement for auspication to precede sortition (so Mommsen, Staatsrecht I 96). Linderski ("Augural Law" 2175) is skeptical of generalizing from this one instance and suggests that the report of the pullarius referred to the normal auspices taken prior to battle. Yet that would not account for the augurs' finding that Laevinus' sortition had been auspicato. If sortition is thought of as analogous to a voting assembly of the people or a meeting of the Senate, both of which took place in templa and required favorable auspices, then the requirement for auspication before sortition becomes more plausible. See further below.
51 See Linderski, "Augural Law" 2174, and the text quoted above, note 49. Textual corruption makes the precise nature of Petilius' mistake irrecoverable, but this point is clear. Petilius' death, as Linderski argues ("Augural Law" 2175), arose not from the vitium in sortition, but from the fact that he knowingly ignored the vitium in auspicio (cf. above, note 50). See further Rosenstein, Imperatores Victi 89 n. 120 and, generally, 77-81.
52 So, acutely, Linderski, "Augural Law," 2193-94 n. 173. The augur Ap. Claudius Pulcher's role in dealing with a case of electoral fraud discovered at an assembly to elect aediles sometime in the 50s, as Varro presents it (R. 3.5.18), is best explained on the basis of augural authority over templa, since the area where those at the comitia tributa cast their votes was designated a templum (see further below), rather than because the lot itself possessed any religious significance. For other views, however, see Taylor, Roman Voting Assemblies 80; Linderski, "Augural Law." For a general requirement that all public sortition take place in a templum, note that when Cicero delivered the Fourth Catilinarian, the scribae happened to have assembled ad aerarios at the Temple of Saturn to cast lots for their assignments that year (Cat. 4.15); cf. Schol. Gron. 290 St.; Schol. Bob. 87 St., an appropriate location because of the financial duties of the scribes, but also suitable as a locus inauguratus. Note also the sortition carried out by the censors of 168 in atrio Libertatis (Livy 45.15.5).
53 The Senate had to meet in a templum; the saepta where the centuriate and tribal assemblies met to cast their votes also constituted a locus inauguratus, as did the rostra where speakers addressed the public (Taylor, Roman Voting Assemblies 47-49).
54 Livy 44.22.3; cf. also 10.24.16, where the speaker asks the gods merely to insure that the sortition between himself and his colleague is fair.
55 Taylor, Roman Voting Assemblies, quoted above, note 11; cf. her Party Politics 56 and earlier scholars listed in Meier, "Praerogativa Centuria" 595-96. Add Scullard, Roman Politics 20; Staveley, Greek and Roman Voting 155. On the omen comitiorum see Cic. Div 1.103, 2.83, and esp. Mur. 38, tanta illis comitiis religio est ut adhuc semper omen valuerit praerogativum; cf. also Planc. 49.
56 Unfortunately Taylor made her claims in passing and without a full explanation of how she understood the connection between the lot and the centuria praerogativa to function, thus rendering an assessment of her contention's validity difficult. The description offered here seems plausible and fair to her position. For the gods' causing the lot of a century to be drawn whose members' sentiments agreed with their own, cf. Cic. Div. 2.38.
57 Livy 24.7.10-9.3.
58 On the religious crisis during the early years of the Hannibalic War see Dumezil, Archaic Roman Religion 457-78.
59 Livy 24.9.1-3, 24.9.7-11.
60 Cic. Div. 2.77; Pliny Nat. 28.17.
61 Cic. Div. 2.73.
62 Cic. Div. 1.29, 2.20. 2.71; N.D. 2.7; Livy fr. 12 (= Serv. Aen. 6.198). Other sources in Broughton, Magistrates I 214.
63 Livy 26.22.3-13; cf. Zon. 9.5.
64 Livy 27.6.1-11.
65 Taylor ("The Centuriate Assembly" 351; cf. Roman Voting Assemblies 91) dates the reforms that led to the creation of the centuria praerogativa to ca. 241; Staveley (Greek and Roman Voting 155), to the latter part of the third century. See also the discussion in Meier, "Praerogativa Centuria" 571-91. Fulvius was consul for the first time in 237, Torquatus in 325, and Fabius in 233. On their religious offices see Broughton, Magistrates I 282-83.
66 Note that Cicero, speaking as "Marcus" at Div. 2.83, treats the omen the centuria praerogativa supposedly represented as mere superstitio. As Brunt rightly points out (Fall of the Roman Republic 524-25), unanimous elections were rare at Rome, which must mean that some centuries at any comitia usually disregarded the putative omen the praerogativa's vote represented.
67 The influence of the praerogativa may have been due at first and probably to a significant extent thereafter to a habit of deference to authority among the citizenry and a resulting bandwagon effect at the comitia (cf. Taylor, Party Politics 56). On the auctoritas of the centuria praerogativa see Cic. Planc. 49.
68 Phil. 3.24, 3.26; note also duarum credo provinciarum sortis minus divinus fuisse, 3.26, and his reference to divina quaedam sors that put Q. Petilius and M. Cato on the jury that would have tried Milo in 53 (Milo 44). Possibly, of course, Cicero does not use divina in these passages to mean "divine" in a strict sense but only as a strong approbative - "excellent" or "wondrous." In that case, however, they offer no evidence at all that the lot was perceived as indicative of the gods' will.
69 Verr. 16. On Fortuna Populi Romani see Scullard, Festivals and Ceremonies 123.
70 Cf. Cicero's remarks on claiming the lot as an expression of divine will in order to arouse indignatio against a defendant at Inv. 1.101, quoted above (discussion leading to note 22).
71 Phil. 3.25-26.
72 Thus in seeking to dissuade the plebs from approving Rullius' agrarian law. Cicero criticized the provision in this bill that seventeen of the thirty-five tribes selected by nothing more than "the random favor of the lot" should choose the commissioners to carry out the law: Hoc tribuno plebis potissimum venit in mentem populum Romanum universum privare suffragiis paucas tribus non certe condicione iuris sed sortis beneficio fortuito ad usurpandam libertatem vocare (Agr. 2.17). Clearly, an assertion here that the lot represented the wishes of the gods would have only served to legitimate the very procedure that Cicero wished to call into doubt. Likewise, when at the trial of Plancius for ambitus Cicero responded to the prosecutions' criticism of the fact that the defendant's father had cast the first ballot when Caesar submitted his bill to revise the Asian tax contract to the tribal assembly in 59, he could similarly treat the results of sortition as mere chance, asking rhetorically si quia primus scivit utrum id sortis esse vis an eius qui illam legem ferebat? Si sortis nullum crimen est in casu; si consulis, statuis etiam hunc a summo viro principem esse ordinis iudicatum (Planc. 35, following Clark's Oxford text; Olechowska, however, in the Teubner edition reads splendor etiam Planci hunc for statuis etiam hunc). For discussion of this passage and the practice it reflects see Staveley, "Role of the First Voter."
73 On Stoic belief in the truth of omens and prophecy owing to the divine governance of the universe see Sandbach, The Stoics 79-82: Pohlenz, Die Stoa I 106-8. Cf. Cic. Div. 1.118-20 and, with specific reference to the lots, 2.38.
74 Of course, the centuria praerogativa could have been abolished, as C. Gracchus apparently proposed (Sall. Rep. 2.8.1); or the eighteen equestrian centuries could have voted first, as they did prior to the creation of the centuria praerogativa. But there were apparently good reasons for establishing and maintaining the latter practice; for discussion, see Taylor, Roman Voting Assemblies 91-92; Staveley, Greek and Roman Voting 155.
75 On procedure at tribal assemblies see Taylor, Roman Voting Assemblies 76, 78-80; cf. 109. For the influence of the first few tribes on how the remainder voted on legislation see Taylor, 76; Staveley, Greek and Roman Voting 179.
76 On the rarity of comparatio see above, discussion with note 34.