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DATING THE LEX AQUILIA

Among his notable contributions to the study of the lex Aquilia ProfessorBeinart has included a study on its origins' which takes up the statements ofByzantine jurists - in particular Theophilus and the scholiast 'Anonymous' onthe Basilica - connecting the lex with a secession of the plebs. This secessionis in turn taken to be the so-called Third Secession which was followed by thelex Hortensia of 287 BC which made plebiscites binding on both patriciansand plebeians. His conclusion that these statements were quite plausible andhelp to explain some features of the statute, including the retrospectivevaluation of the res prescribed in the first chapter, has not found generalacceptance and so the debate on the dating of the lex remains open. The mostrecent contributor, Professor Honord, 2 rejects the connection with a plebeiansecession, preferring a connection with the inflation resulting from the SecondPunic War and there is indeed a possible Aquilius, tribune of the plebs, in oraround 211 nc,3 but it is not our intention to enter into all the argumentswhich have been deployed to establish a date. We are concerned rather withone aspect of the debate, namely, the reliability of the Byzantine statements.If, after all, the Byzantine jurists were better informed than we are then theirstatements ard preferable to arguments which are in large part conjectural,however plausible that conjecture may be.

On the question of the reliability of these statements essentially two viewshave been taken. 4 The one accepts that the Byzantines had access to othersources than we now possess, for example, a fuller text of Ulpian, 18 adedictum, from which is taken the extract in D 9.2.1.1 which tells us that thelex Aquilia was a plebiscite, not to mention the writings of other classicaljurists and of historians such as Dionysius of Halicarnassus. They may indeedhave had other sources of which we now know nothing. In these cir-cumstances we are entitled to believe what they say in the absence of anyconclusive evidence contradicting them and a date in the third century BC,when the Third Secession took place, is plausible enough for the lex. Theother view is sceptical. The Byzantines simply made up a story to fit the factswhich they did know, namely, that the lex Aquilia was a plebiscite and thatplebiscites became binding on the whole people after a secession of the plebs.Honor6,5 for example, makes fun of Theophilus in particular, who, heobserves, also imaginatively reconstructs, or follows an imaginative recon-struction of, the history of the office of aedile using a secession of the plebsagain as a deus ex machina. 'In short', he says, 'the Dean of the Constan-tinople faculty has put various scraps of information together and blendedthem into what appeared to him a plausible story but one which is farremoved from reality. Likewise his account of the lex Aquilia. The sourcesdescribe the statute as a plebiscite. Theophilus invents a secession in order toprovide a context for it - or perhaps he merely copied some earlier writer whohad done the same thing.'

It is, of course, well known that deans of faculties are accustomed toputting together scraps of information and blending them into what they hope

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will be a plausible story and so the suggestion that Theophilus did so is not initself improbable. ClOser examination of his statement in the Paraphrasis4.3.15 may be thought to confirm the suspicion. The passage referring to thedate of the lex Aquilia, which is primarily concerned with the absence fromthe third chapter of the word plurimi which appears in the first chapter inrelation to the valuation of the res in question, reads as follows:

... 6 ydtp IOlatq XuoStoq 811poq icT,& ToO icatp6v Tjq 8laotdaooEQ)tToi XU8aioU 8lPOU Kai r' auyVKXfpTou, TOO Aquiliu [ papzoq & okroq]r6v atp6Vta v6lgov Te0tvTog flpita9il TO 'plurimi' 5i crTt v TG rP6p T(P2F~4i~VC0 KCqxlXaiqP

In translation this says: 'For the Roman plebs, when Aquilius [he was atribune] was putting forward the present law at the time of the dissensionbetween the plebs and the patricians, was satisfied that the expression'plurimi' was placed in the first chapter.'

Now here, in contradistinction to the passage (Par 1.2.8) in which he dealswith the institution of the aedileship, Theophilus mentions the origin of thelex quite incidentally and it can be argued that he threw in some gratuitousinformation which, because it is gratuitous, may well be correct. He was notcalled upon to exercise his powers of imagination and embroider the factswhen the main point was that the omission of plurimi in the third chapter wasto be explained as a conscious decision that putting it in the first chapter wasenough (which is what the Institutes themselves say). But it seems significantthat Theophilus refers to the time of the diastasis, which would seem toimply either that he was referring not to a single secession but to a period ofdissension - which would be no great help in dating the lex - or that hethought that there was only one secession of the plebs. If the latter interpreta-tion is correct then the case for thinking that Theophilus was better informedthan we are falls to the ground. Modem scholars may dispute the authenticityof one or more of the recorded secessions but there is no doubt that thehistorians of early Rome - including those who wrote in Greek - record morethan one. Furthermore, there is one obvious possible source of Theophilus'sinformation on secessions, which can be read as indicating that there wasonly one secession, and that is Pomponius as we have him in D 1.2.2.8, 20and 24. Pomponius's chronology is none too clear, but what he says can beread as meaning that there was one secession, after the XII Tables, whentribunes of the plebs were created, and which was followed by the measureequating leges and plebiscita - meaning apparently those passed during thesecession.

Honor6 does not deal with the scholiast to the Basilica 60.3.1, who appearsto have flourished in the late sixth and early seventh century6 and might alsohave had access to sources now no longer available to us. The text of thescholion, which expands on the comment that the lex is really a plebiscite,runs as follows:

... TOUTtor, T6 6(T6 TOO 7XfjOoUq YV0O&V TOO X a'i O XPPia-ictrov ydp oat r6 b6 Tor) Xu~aiou v6iou yvoaov Kcti Kupco0v, 6)q ivatr.6. TtA. 6 'AKouiXtog 5fhapXoq fly oU Xuu8aiou v61sou. 6e syp Icr'aoiaac

316

Tr6 xf[eo<" Itp6q roiq oTyKXX1ltcor; Kai MT"r &it' abrO6v, sXov Toir)rovdpXov'a, Kcai T6 icap' ackdbv vo.o~roSTPEvov oToq U Kh IXO 60eV itCelFiO-Ktr6v &FU Pt ,dXXov 6 'AcouiXtoq i v6pog"...

In translation this says: 'That is, what is resolved by the plebs. For aplebiscite is what is resolved and confirmed by the plebs as in Inst. 1 tit. 1.Aquilius was a tribune of the plebs. For when the plebs rebelled against thepatricians and seceded from them they had this man as a leader (? magistrate)and what was laid down by them as law was so called. And so the Aquilia is aplebiscite rather than a lex.'

At first sight this statement might be thought to be more indicative ofspecial knowledge than the remark of Theophilus because it gives furtherdetail, crediting Aquilius possibly with leadership of the rebellion and cer-tainly with a position of authority among the plebs at the time of the revolt.But again there must be doubts, because the scholiast too appears to bereferring to a single occasion when he refers to the secession and one wouldexpect that if he were really knowledgeable he would have said somethinglike 'at one of the secessions; namely, the one led by Aquilius' (or 'in whichAquilius took part').7 There is in fact a suspicious resemblance to D 1.2.2.8• . . evenit ut plebs in discordiam cum patribus perveniret et secederetsibique iura constitueret, quae iura plebi scita vocantur . . . if one discountsthe reference to Aquilius. Furthermore, there seems almost a suggestion thatthe writer of the scholion believes that plebiscites were passed only at a timeof secession when the tribunes operated as leaders and if this suggestion becorrect it destroys the credibility of the scholiast as an authority on theRoman Republic and its history.

Given these suspicious circumstances it is intriguing to discover that theassertion that the lex Aquilia was passed at a time of secession appears alsoin the Summa Codicis of the medieval jurist Azo. The passage in questionruns as follows:8

Dicitur autem Aquilia ab Aquilio auctore. Aquilius enim cum tribunusplebis esset Et plebs in discordiam cum patribus pervenisset et in adven-tinum montem transtulisset se legem plebe rogata tradidit quae etiam apatribusfacta concordia vice cuiuslibet legis est habita utff e.l.i. [D. 92.1]et de orig. iur. l.u § deinde cum esset [D. 122.8 ]

Azo, therefore, gives an even more detailed account of the origin of the lex,attributing it to Aquilius on the occasion of a secession to the Aventine, andthe question arises whether he is speaking from knowledge derived fromsources not accessible to us or whether he is displaying his powers ofinvention to expound on the simple statement in D 9.2.1.1 that the lex was infact a plebiscite. The range of possible sources is narrower than in the case ofthe Byzantine jurists as we must exclude Ulpian or another classical juristand probably also any source in Greek. This leaves as the obvious pos-sibilities Livy and Sallust. But it is unlikely that Azo could have relied onLivy. For one thing this assumes that he knew the 'lost decade' of Livy(books 11-20) and there is no clear evidence that this did exist in the Middle

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Ages. 9 For another, Livy Periocha 11 states that the Third Secession, whichis the one most likely to be referred to if we assume that Azo was using a lostpart of Livy, was not to the Aventine but to the Ianiculum.10

Similarly, Azo might have got from Sallust directly or through Augustine"the information that there was a secession to the Aventine - although if hehad used Augustine one might have expected that he would also have knownof the secession to the Ianiculum and seen the relevance to plebiscites ofAugustine's mention there of the dictator Hortensius - but even if oneassumes that the whole of Sallust's Histories were available to Azo, which ishighly doubtful,12 it is improbable that he could have got detailed informationon the secessions from that source because Sallust referred to the discordbetween plebeians and patricians in the introduction to his work, as appearsfrom the fragments preserved, and, if one may judge from these fragments heis unlikely to have given information in such detail as to include a reference tothe lex Aquilia.

If some more obscure source than Livy or Sallust be suggested there is thedifficulty that it is unlikely that Azo would have consulted any obscure sourcefor his information. We are told by Odofredus that Azo was not strong in theartes 3 - non fuit extremus in artibus licet in scientia nostra fuerit summuS14

and although from the context of the passages of Odofredus in whichdisparaging remarks on Azo's knowledge of the artes appear it is clear thatOdofredus had in mind particularly Azo's knowledge of logic or dialectic - inhis commentary on the Code he says specifically that Azo non fuit bonuslo(g)icus and he contrasts unfavourably Azo's knowledge of dialectic withthat of Johannes Bassianus - it appears that in Azo's time there was a fallingoff in the reading of classical literature, including history,1 5 which makes itimprobable that Azo would have been widely read even in the well-knownclassics.

One may add to the above fact that Azo appears to be the only Glossatorwho gives any detail on the origin of the lex Aquilia. So far at least as printedsources go the only other account of the origins of the lex appears to be inOdofredus. In his commentary on the rubric of title of the Code devoted tothe lex Aquilia1 6 he says:

. . . dicitur acquilia ab acquilio authore nam cum acquilius esset tribunuset multa damna darentur civitate Romana convocatis plebeis dixit eis.placet nobis fieri legem ut omnes puniantur qui dant damnum? clamave-runt omnes una voce. placer nobis: unde dicitur lex acquilia ab Acquilioauthore utff eodem lJ. [D. 9.2.11 et inst. eodem § illud [Inst. 43.14-15]

But although this lively account of the passing of the lex may have brightenedthe day somewhat for Odofredus's students it does not suggest that he hadaccess to sources now lost to us - unless indeed his imagination be couitedas such. The Gloss, gl A plebe ad D 9.2. 1, simply explains that the plebswere asked if they approved of the proposed statute.

On the other hand internal evidence very strongly suggests that Azo was

simply putting together what he knew of plebiscites and secessions. Hisreferences are to D 9.2.1 and D 1.2.2.8, the former giving the statement thatthe lex was a plebiscite and the latter referring to the equation of plebiscitesto leges by the lex Hortensia after discord and a secession - described interms which are clearly echoed by Azo:

Deinde cur esset in civitate lex duodecim tabularum et ius civile essent etlegis actiones evenit ut plebs in discordiam cum patribus perveniret etsecederet et sibi iura constitueret quae iura plebiscita vocantur. mox cumrevocata est plebs quia multae discordiae nascebantur de his plebiscitis prolegibus placuit ea observari lege hortensia lata . . . 17

If, then, we examine the Gloss on D 1.2, remembering that Accursius reliedheavily on Azo in the composition of the Gloss,18 we find the following:gl Secederet ad D 1.2.2.8 runs:

in montem aventinum qui est romae ut infra § initium [h.t. 2.241 et ibidicitur occasio discordiae

D 1.2.2.20 with its relevant glosses runs as follows:

Hisdem temporibus cum plebs a patribus secessisset anno fere septimodecimo post reges exactos tribunos sibi in monte sacro creavit qui essentplebei magistratus dicti tribuni. . .gl Hisem exactos: hic signatur contrarium, supra eodem § exactis [h.t. 2.3]in fine § ubi dic prope xx annos et hoc dicit xvii sed dic quod bis fueruntexpulsi ibi de prima expulsione ante legem xii tabularum hic de alia postlegem praedictam vel dic parum distare inter utrumque numerum maximecum hic ponit fere et ibi propegl. In monte: aventino

D 1.2.2.24 need not be quoted in full, but it relates the story of AppiusClaudius and Verginia and the consequent secession of the plebs to theAventine. It is, however, worth quoting gl Deinde post aliquot annos ad D1.2.2.25 (Deinde cum post aliquot annos xii tabulae latae sint et plebscontenderet cum patribus et vellet ex suo quoque corpore consules creare

.) which runs:

isti aliquot anni fuerunt plures centum et xvii ut probatur supra eodem §omnium tamen [h.t. 2.6 i.f.] et § hisdem temporibus cum plebs [h.t. 2.20].

From all this it emerges:(1) that the Gloss does not appear to have recourse to external sources to

remove the difficulties or uncertainties in the chronology of Pomponius'saccount of the early development of Roman law and the Roman constitution.The gl Hisdem exactos relies first on conjecture and then on a harmonizinginterpretation based on the inexactitude of the language of the texts. The glDeinde post aliquot annos relies on the internal evidence of the texts

(2) that the prevailing view seems to have been that there was onesecession of the plebs, about 17 years after the expulsion of the kings,

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brought about by the actions of the decemvir Appius Claudius after thepassing of the XII Tables and this secession was to the Aventine

(3) the writer of the Gloss is apparently not aware that there was a monsSacer as well as a mons Aventinus and does not follow up the hint that therewas another secession to the mons Sacer. As Livy 2.32 and 3.52 make it clearthat there were two hills - whatever confusion or differences there may be onwhether there was a secession to one or the other or both19 - this would seemto be additional confirmation that the Gloss, and probably the authors onwhom Accursius relied, did not look outside the legal sources for theirhistory. Or perhaps someone did look outside the legal sources, but did notlook far enough. In the fragment of Sallust's Histories quoted by Augustine 20

Sallust says that the plebs, 'armata montem Sacrum atque A ventinum insedittumque tribunos plebis et alia iura sibi paravit' which in the Loeb edition ofAugustine is translated 2' as 'withdrew under arms to the Sacred Hill and tothe Aventine and at last gained tribunes of the people and other rights forthemselves'. But the fourth century grammarian Diomedes 22 says:

Prolepsis est pronuntiatio rerum ordine secutarum id est cum ante numerusverbo redditur quam personae definiantur ut est continuo reges, ingentimole Latinus . . . castris [extracts from Aeneid 12, 161-9] et aliter deprolepsi disputatur cum id quod posterius accidit ante tempus ascribitur ut

Laviniaque venitlitora [Aeneid 1, 2-3]

Lavinium enim nondum erat cum ad Italiam venit Aeneas et apud Sallus-tium 'montem sacrum atque Aventinum insedit' qui mons ab hoc quia iliumplebs insederat postea sacer dictus est,

thus equating the two hills (as indeed Sallust may have intended). Diomedeswas known to and apparently used by Papias in the eleventh century23 and isindeed cited by Papias24 in his definition of prolepsis as praesumptio: ubi eaquae sequi deberent ante ponuntur: ut vult Diomedes. . . . But as Papiasgives as Diomedes's example - which he criticizes, but perhaps does notunderstand - the passage from Aeneid 12 (of which he quotes only 11.161-4but in full) and as he makes no mention of Sallust's phrase, it seems ratherdoubtful whether one can look even indirectly to Diomedes for the source ofthe gl In monte. However this may be, examination of the Gloss tends toconfirm the probability that Azo in his Summa was simply drawing on whatwas said or believed to be said by the Digest on plebiscites in general and thelex Aquilia in particular.

All this, of course, does not prove that Theophilus or Anonymous did whatAzo seems to have done but the parallel with the wording of the scholion ofAnonymous is strikingly close and the fact that the suggested reconstructionnot only could have been done but apparently actually was done by someoneelse must now be weighed in the balance. 25

W M GORDONUniversity of Glasgow

NOTES AND REFERENCES1 Once More on the Origin of the lex Aquilia Butterworth's SALR (1956) 70.2 'Linguistic and Social Context of the lex Aquilia' (1972) 7 IJ (NS) 138.3 The P Aquilius who prosecuted the negligent triumvir nocturnus P Villius - Val

Max, 8. 1 damn. 6 - and who may be the same as the legate P. Aquilius mentioned inLivy 27.3.9 - see T R S Broughton The Magistrates of the Roman Republic I (NewYork 1951) 273 and 276 and Pauly-Wissowa RE 2, 326 (s v Aquilius nos 12) and 13)) and8 A 2, 2161 (sv Villius no 3)).

4 See references in Beinart op cit 71 and Honord op cit 145.5Op cit 145-6.6 Jolowicz - Nicholas Historical Introduction to the Study of Roman Law 3 ed

(Cambridge 1972) 501.7 Is it coincidence that the Sp Icilius mentioned by Livy 2.58.2 appears in Diodorus

Siculus 11.68.8 as 5it6pioq 'AKiktog?8 Summa Codicis, III de lege Aquilia (Pavia 1506) as reprinted in Corpus Glos-

satorum Juris Civilis II (Turin 1966) 88.Abbreviations have been extended and spelling has been modernized in this and

other extracts from medieval sources.9 See Livy ed T A Dorey (Greek and Latin Studies - Classical Literature and its

Influence - London and Toronto 1971) esp 105ff.10 Augustine de civ dei 3.17 . . . post longas et graves Romae seditiones, quibus ad

ultimum plebs in laniculum hostili diremptione secesserat, . . . dictator creareturHortensius, . . . (Loeb Classical Library edition vol I p 342).

"1 Op cit 2.18 and 3.17 - the main source of Sallust Histfr 1.11.12 See Reynolds and Wilson Scribes and Scholars 2 ed (Oxford 1974) 76 and 89.13 Savigny Gesch rdm Rechts (reprint Darmstadt 1956) IV 293 and note (n), V 6 and

note (h) referring to Odofredus's commentaries on C 1.3.15; D 1.21.1; 2.6.60 and22.1.32.

14 Lectura super Digesto veteri, I, de offi. eius cui man. est iu., 1.1 [=D 1.21.1](Lyons 1550) n 1 - as reprinted in Opera luridica Rariora 11. 1 (Bologna 1967) 35r.

15 Rashdall, The Universities of Europe in the Middle Ages I 2 ed by Powicke andEmden (Oxford 1936) 71.

16 Lectura super Codice III, de lege acquilia, rubr. (Lyons 1552) - as reprinted inOpera luridica Rariora V. I (Bologna 1968) 178r; cf also his commentary on D 9.2.1Lectura super Dig. vet., cit, tit. ad legem Aquiliam 1.1 - p 272r. Azo's own LecturaCodicis simply says that tAe lex is so-called from its author - Comm. in lib. III Codicis,de lege Aquilia, tit. xxxv, ad 1. 1 n. 5 (Paris 1577) - as reprinted in Corpus GlossatorumJuris Civilis III (Turin 1966) 234.

17 The text and glosses are quoted from the edition (Venice 1488) reproduced inCorpus Glossatorum Juris Civilis VII (Turin 1969).

11 Cf G Astuti Atti Conv. int. studi Accursiani II (Milan 1968) 287 at 332; P Stein ibid697ff esp 716ff.

'9 See Ogilvie Commentary on Livy Books 1-5 (Oxford 1965) 489.20 2.18 and 3.17.11 Vol I 205 and 335.22 ars gramm. II, de schematibus, de prolepsi (ed. Keil, Gramm. lat I (Leipzig 1857),

443-4).23 Manitius Gesch. lat. Liter. des Mittelalters II (Munich 1923) 720.24 Papias Vocabulista (Venice 1496) s.h.v. - (rept Turin 1966) 270.25 I am grateful to colleagues in the departments of Greek and Humanity, in

particular, Professors D M MacDowell and P G Walsh and Dr M R Green for theirassistance with various points.