Hey folks! Fireside this week, as we’ve (finally) brought the Hearts of Iron IV (I, II IIIa, IIIb, IVa, IVb) series to a close. We may have rather more firesides and even some gap weeks in the next month or two, both due to the end of the semester but also due to some personal schedule disruptions. Still, I plan to try to keep to schedule as much as I can, and we should be back on our regular schedule in January.
For this week’s musing, I want to expand on something I wrote on social media, tackling the notion that part of the collapse of the Roman Republic was ‘cycles of judicial retaliation’ or ‘weaponization of the courts.’ In particular, this gets offered in the context of the January Crisis of 49 and Julius Caesar’s decision to march on Rome, thus reopening the Roman civil wars. The way this gets presented is as something of a mitigating factor in Caesar’s decision to launch an illegal, violent military coup in order to seize sole power by arguing that the Roman court system had become so weaponized and retaliatory that Caesar was, in effect, forced to do that by the threats of prosecution from his political opponents.
I reject the premise: there’s little to no actual evidence that the Roman legal system was any more ‘weaponized’ or locked in ‘cycles of judicial retaliation’ in 49 than it had been in in the second century or earlier in the Middle Republic. To the degree that it seems so in the evidence, I think what is happening is actually a bias of visibility. For the period from 80 to 43, we have the writings of Cicero – his court and political speeches, a decent chunk of his private letters and a bunch of his philosophical writings – and Cicero was very focused on the courts because that was how he made his political career. And a lot of Cicero is preserved because Late Antique and Medieval people thought (correctly) that Cicero was probably the best prose stylist in Latin and so his writings were valuable both for their content but also as Latin teaching materials and prose-and-rhetorical-style materials. So they tend to survive.
The result is that for the period of Cicero’s career – especially for the height of it from 63 to 43 – we have a lot more visibility into elite Roman legal happenings, because Cicero is in them or writes about them. Keep in mind, that while we know the Romans have written law from 451 onward and jury trials in some form seemingly from the dawn of the Republic, 100% of our extent complete Roman legal speeches come from the period between 80 and 43 and are all written by one author (M. Tullius Cicero). We know from Cicero that there were other great Latin orators, but their speeches don’t survive except in fragments.
And that skew is further complicated by the fact that historical authors – Plutarch, Polybius, Diodorus, etc. – often don’t take much interest in the legal side of Roman politics. They may comment on the existence of a case briefly as it is relevant to a person they’re describing, but the comment tends to be brief (merely to note its existence); there is no systemic effort in these authors to catalog even major cases. Instead, we’re almost entirely reliant on Livy, but even Livy is not cataloging all major cases. Instead, Livy is just informing us when there is a major political scandal or disruption with big political implications. Put another way, there have been many high profile trials – even high profile trials of political officials – in the last 40 years in the United States, but I suspect the only set that would ever rate a mention by Livy would have been the January 6th prosecutions (he’d have commented on the Monica Lewinsky scandal too, for sure).
But that would miss quite a number of members of Congress or other current or former high officials being charged and either convicted or acquitted.
That said, Livy gives us enough to go on to get a sense of the way things normally went where the courts and politics met, or at least enough to get a sense of what Livy thought was normal.
So in 171 Livy reports a burst of prosecutions of former magistrates over official corruption: two former praetors, P. Furius Philus (praet. 174) and C. Matienus (Praet. 173) were accused off corruption while they were governors in Spain and evidently convinced they would not escape conviction, fled into exile (Livy 43.2.9); another praetor, C. Lucretius, was convicted and hammered with a massive fine for official misconduct in the East (Livy 43.8). We don’t have Livy for the 150s (just the summary of him, the Periochae), but evidently there was another burst of this in 154, with “several” praetors charged with official corruption and convicted (Livy Per. 47.16), alongside one former consul, L. Cornelius Lentulus Lupus (Val. Max. 6.9.10).
In the case of Lucretius, we’re told the key accusers (apart from the folks in the provinces) were two of the tribunes of the plebs, M. Iuventius Thalna and Gnaeus Aufidius and broadly that seems typical: these sorts of prosecutions were pushed for and led by members of opposing political factions, looking to burnish their own credentials for good government and score points. Indeed, the Roman system, which lacked public prosecutors, relied on this, since the state could not bring charges on its own behalf.
As noted, Livy is just telling us about cases that made a big enough stir to disrupt Roman politics generally, to be one of the half dozen to a dozen or so ‘big stories’ that he is going to discuss for any given year but we should understand there to be a lot of the cases functioning as background noise. Part of what distorts our vision of the Late Republic is Cicero makes these lesser cases visible. Think about what famous cases of Cicero would have made Livy’s radar – we don’t have Livy for the first century, but we do have the Periochae. Of course Milo’s conviction for the murder of Clodius is reported (Liv. Per. 107), but what about something like the Pro Caelio? There’s no mention in the Periochae, though Caelius was a political figure: he had successfully prosecuted the former consul C. Antonius Hybrida for corruption in 59 (also no mention in the Periochae), before being defended by Cicero on a charge of political violence in 56, and would go on to be elected aedile in 50 and (siding with Julius Caesar), appointed praetor in 48.
In short, the regular prosecution of Roman magistrates after they had left office over personal crimes or official acts by their political rivals was a regular feature of the Republic and by all indications a necessary one: it was what kept Roman magistrates accountable to the laws.
How far back does that practice go? Obviously at least to the second century – the glory days of the Middle Republic – but evidently further. For instance, Livy reports, way back in 451, that the decemviri – a board of ten magistrates who had grossly abused their power – were all charged when they left office, with one committing suicide, eight fleeing into exile and one remaining to be convicted (Livy 3.58). What’s really striking in this episode is that in the initial negotiations leading to the decemviri laying down their power, Livy has Valerius and Horatius (representing the Senate) accept the plebian demands (recovery of the tribune’s power, amnesty for their side, the end of the decemviri‘s term) except harsh extrajudicial punishment for the decemviri because, “even if at some time you make yourselves dreaded, when you have recovered your magistracies and laws, you will have judicial power over our lives and our fortunes, then you will decide according to the merits of each case. For now, to have regained your liberty is enough” (Livy 3.53.10).
The implication of that last quote is that Livy supposes that even as early as 451, even without any special punishment, it would be normal and expected that the decemviri would be forced to stand trial before a jury and so the plebs could be easily assured that simply restoring the normal system of the Republic would be enough.
Now, we should caveat this: events in 451 are far enough back for all of our sources – including Livy – as to be verging on legendary and the speeches Livy reports are almost certainly Livy’s own construction. What is relevant here instead is that Livy assumes that this Roman practice of prosecuting former office holders, as a regular, assumed, normal part of the Roman system, goes back essentially to the foundation of the Republic, to the point that it can be taken for granted in 451 BC. Evidently the Republic worked that way in the second century and for all Livy knows it has always worked that way.
Read against that background, I don’t really see any evidence of ‘escalating cycles of judicial retaliation’ in the Late Republic.
Honestly, I think part of the problem here is the way that Roman history understandably is going to get a bit garbed in a survey-course context – and most people are working from half-remembered survey course contexts. The collapse of the Republic in the first century does involve escalating cycles of violence: the deaths of the Gracchi (133, 122), the political violence fomented by L. Appuleius Saturninus and C. Servilius Glaucia in 100, which led to their deaths, the outbreak of the Social War, leading to P. Sulpicius Rufus and C. Marius doing some political violence in 88, met by Sulla doing more violence, met by C. Marius and L. Cornelius Cinna with more violence in the years following, met by Sulla again with a running river of butchery after 83 and so on.
I think it is relatively easy for that cycle of escalating violence to get blurred into a fuzzy sort of ‘partisan polarization’ or ‘judicial retaliation’ when the whole thing has to be described over at most a week’s worth of high school classes or a day or two of college lectures. But of course the real history is quite specific.
What had changed for Julius Caesar in 49 is not anything to do with the courts specifically: Roman magistrates who did misconduct in office had feared the courts for centuries. What had changed was that Caesar was in a position to defy the Senate and the courts, because he had been left in command of his army for eight years and so they were fiercely loyal to him. That, in turn, had delayed any legal reckoning for Caesar’s illegal acts as consul, because – by being in a military command the whole time – he had remained legally immune (and probably doing new crimes, as most of his wars in Gaul were not legally authorized).
By contrast, when the Republic had been functioning well, prior to the Social War and Sulla’s frankly incompetent botch-job of ‘reforms’ (which I think take the lion’s share of the blame for Caesar’s decision in 49, by the by), Roman commanders rarely spent more than a year or two in command, meaning both that legal accountability came quickly, but also that no one Roman commander had the opportunity to lock-in the loyalty of a large army. That meant that while the Roman aristocracy – the nobiles (‘the notable ones’) – were powerful collectively, no one member could individually stand against his fellows and the state and so all of them had to rightly fear the verdict of a jury of their fellow citizens.
The mistake, such as it was, was not in threatening to prosecute Caesar in 49. The mistake was not prosecuting him – either to acquittal or conviction, as either would settle the issue – back in 58 or 57 before he could threaten the entire political system.
On to Recommendations!
First off, an interesting post by historian Josh Nudell over at his blog Noodlings springing in turn from another interesting post by historian Jim Clifford on Bluesky looking essentially at the core scholarly canon of the discipline of history, the authors cited mostly frequently across around 10,000 PhDs. One of the things that was striking was that most of the authors in question were older – functionally all pre-2000. I think Nudell is right to suppose this has a lot to do with how historical work has narrowed. For the most part, the grand, sweeping studies have mostly been done – indeed, for ancient history many of these works (Beloch, Mommsen, Delbruck, etc) were done not in the 1900s but in the 1800s. That leaves modern historians the – important! – task of constructing much narrower, more focused studies, which often revise the conclusions of those earlier works in narrower but significant ways. Meanwhile, the greater quantity of historical publishing also means that it is harder for any one work – even relatively large-scale ones – to command the entire field’s attention.
For this week’s book recommendation, I want to recommend a classic study in keeping with our legal theme this week, E. Champlin’s Final Judgements: Duty and Emotion in Roman Wills 200 B.C. – A.D. 250 (1991). The Romans were a testamentary culture, which is to say they liked writing wills – often quite complex ones – and our elite literary sources direct an almost obsessive attention to inheritance. Alongside the aristocracy who, for understandable reasons of wealth and status, generally wrote formal legal wills, it is clear that soldiers very frequently wrote wills as well; they also appear at lower levels of society, albeit less frequently. In short, this was an important part of Roman culture which is thus valuable to understand on its own but also shines really striking light on other Roman values and assumptions.
While the subtitle might lead you to think this is a very focused study of the emotional content of Roman wills (which certainly figures in the book), Champlin really presents a much more complete look at the Roman testamentary tradition. The book is remarkably well laid out, working its way systematically from the sources of evidence to what we know of the testators (will-makers; things like their gender, social status, etc.), to what we know of the act of recording a will to the various kinds of recipients and the reasons for their bequests. The result is a quite thorough walk-through appropriate for both scholarly and non-scholarly readers; it helps that Champlin also writes well, clearly and directly.
Wills may seem a strange historical subject for a reader not interested specifically in Roman law, but they’re actually a fascinating window into Roman values and social thinking. A will, after all, forces the testator to think about their various connections and legacies, to put them in priority order, and provides an opportunity to deliver real final judgment – last words of praise or criticism. And while one will might just represent the idiosyncrasies of one person, there are enough wills preserved or attested in literature to get a wide sample and see real patterns emerge, which Champlin draws out well. You even can see contrasts between the legal world – for instance, under the law, if a person dies intestate (without a will), sons and daughters inherit equally – and the social world (sons generally have larger inheritances than daughters in established wills). As a result, the book is a great window into some key elements of Roman culture.
