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Churchill, J. Bradford
2012.
The Encyclopedia of Ancient History.
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Sponsio quae in verba facta est? Two lost speeches and the formula of the Roman legal wager
Published online by Cambridge University Press: 11 February 2009
Extract
Our limited evidence for the formula of the Roman sponsio is enough to clear up lingering controversy about two otherwise obscure speeches preserved only in testimonia and fragments. The elder Cato wrote a speech whose title is variously cited by our sources: ‘si se Caelius tribunus plebis appellasset’; ‘in M. Caelium si se appellasset’; ‘contra M. Caelium’ (Fest. p. 266L); ‘in Marcum Cae[ci]lium’. On the reasonable postulate that these are variations on a single original, the fullest expression is relatively easy to reconstruct: ‘si se M. Caelius tribunus plebis appellasset’.Doubts about the sense of these words have led to more radical proposals which have little to recommend them, especially in view of the new analysis I intend to offer. The conclusion among those who have attempted to explain the obvious reading has been that the title of the speech is a condition contrary to fact referring to a hypothetical situation to which the speech responded: some have suggested that Cato wrote the speech against the possibility that Caelius might make an accusation against him; Antonio Cima suggested that Caelius had made a speech against Cato without naming him and that Cato had responded, ‘if Caelius had meant to refer to me… ’.
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References
1 Gel. N.A. 1.18.9; the reading ‘tribunum’ was corrected in the lesser manuscripts to ‘tribunus’, which is confirmed by other evidence in the same context (N. A. 1.18.10: ‘Idem Cato… eidem M. Caelio tribuno plebis vilitatem opprobrans…’). All dates are B.C.E.
2 Fest. p. 466L; cf. p. 170L (in Caelium sise appella […]).
3 Paul. Fest. p. 52L; Prise, in GL. 2.228.
4 Meyer, H.(ed.), Oratorum Romanorum Fragmenta (Turin, 1849), 131;Google ScholarJordan, H. (ed.), M. Catonis praeter librum de re rustica quae exstant (Stuttgart, 1860), lxix–lxx;Google ScholarCima, A., L'eloquenza latino prima di Cicerone, saggio storico-critico (Rome, 1903), 82–3;Google ScholarTill, R., ‘Zu Plutarches Biographie des alteren Cato’, Hermes 81 (1953), 442;Google ScholarMalcovati, H. (ed.), Oratorum Romanorum Fragmenta Liberae Rei Publicae (Turin, 1953), 46–7;Google ScholarCugusi, M. T. Sblendorio (ed.), M. Porci Catonis Orationum Reliquiae (Turin, 1982), 85.Google Scholar
5 Janzer, B., Historische Untersuchungen zu den Redenfragmenten des M. Porcius Cato: Beitrdge zur Lebensgeschichte und Politik Catos(Wiirzburg, 1937), 45–6Google Scholar (‘si quis Caelium tribunum plebis appellasset’); Fraccaro, P., ‘Catoniana’, SSAC 3 (1910), 257–73Google Scholar, in:Opuscula I (Pavia, 1956), 237–47 (‘oratio in M. Caelium trib. pi., cum auxilio fore pollicitus est, si se quis appellasset’); so also Scullard, H. H., Roman Politics 220–150 B.C (Oxford, 1973), 62–3.Google Scholar Each argued that Cato prepared the speech against the possibility that someone would appeal to Caelius against one of his censorial acts. Other scholars have rightly rejected both conjectures as unlikely, though certainly they were ingenious.
6 Till (n. 4), 443; Sblendorio Cugusi (n. 4), 259; cf. Janzer (n. 5), 46.
7 Cima (n. 4), 84.
8 Schol. Bob. p. 108 Stangl. I owe my discovery of it to Cugusi, P., ‘Catone oratore e Cicerone oratore’, Maia 38 (1986), 210.Google Scholar
9 Crawford, J. (ed.), M. Tullius Cicero. The Lost and Unpublished Orations (Göttingen, 1984), 265.CrossRefGoogle Scholar
10 Schoell, F. (ed.), M. Tullii Ciceronis scripta quae manserunt omnia VIII (Leipzig, 1918), 493.Google Scholar
11 Puccioni, G., ‘Prolegomeni ad una nuova edizione dei frammenti delle orazione perdute di Cicerone’, Ciceroniana 1–2 (1960), 111;Google ScholarLuterbacher, F., ‘Ciceros Reden’, Sokrates 10 n.s. (1922), 89–91.Google Scholar
12 Crawford (n. 9), 265; her comment that ‘the Bobbio scholiast noted but rightly declined to comment on’ the speech obscures the scholiast's point. He did not refuse to comment because he thought the speech was spurious, as Crawford implies by the word ‘rightly’, but because for his purposes it was redundant.
13 Crook, J., ‘Sponsioneprovocare: its place in Roman litigation’, JRS 66 (1976), 132–8,Google Scholar building on and modifying the relevant commentary of Arangio-Ruiz, V. and Carratelli, G. Pugliese (edd.), ‘Tabulae Herculanenses, V’, PP 10 (1955), 460–66.Google Scholar
14 Gaius, Inst. 4.94: ‘non tamen haec summa sponsionis exigitur: non enim poenalis est, sed praeiudicialis, et propter hoc solum fit, ut per earn de re iudicetur’.
15 On the various forms of judicial sponsio, see Schulz, Fritz, Classical Roman Law (Oxford, 1951), 61,Google Scholar 368–9,446–7,449–53.1 am concerned mainly with the formula, and not so much with legal niceties, but I hope that my endeavours may spark some new interest in this issue among those better versed in Roman law than I am.
16 Crook (n. 13), 135–6.
17 Crook (n. 13), 136–8 pointed out that prosecution for iniuria, the other remedy for serious slander, was relatively difficult and complicated, and thus often impractical, whereas sponsio was a relatively safe alternative if a man believed in his reputation and the merits of his case.
18 Cic. Pis. 55; the point of dispute was over the question by which gate Piso had entered the city upon his return from his province of Macedonia; Cicero, in order to emphasize that Piso had had no triumph, had claimed erroneously that he had entered by the gate closest to his home (loc. cit.): ‘cum ego eum Caelimontana introisse dixissem, sponsione me ni Esquilina introisset homo promptus lacessivit; quasi vero id aut ego scire debuerim aut vestrum quisquam audierit aut ad rem pertineat qua tu porta introieris, modo ne triumphali, quae porta Macedonicis semper consulibus ante te patuit; tu inventus es qui consulari imperio praeditus ex Macedonia non triumphares’. I cannot agree with Crook's (n. 13), 134, characterization of Cicero's defence: ‘he sails off brilliantly on the tack of ridicule to cover his discomfiture’. He had been caught drawing a false inference (not a ‘lie’ as Crook [ibid] characterized it) about which gate Piso had used, but his point—that it was not a triumphal gate—obviously still held; cf. Nisbet, R. G. M., M. Tulli Ciceronis In L. Calpurnium Pisonem Oratio (Oxford, 1961), 117.Google Scholar
19 Plu. Cat.Ma. 17;Flam. 19; Livy 39.43.5. For further literary examples, see Crook (n. 13), 133–4 and below.
20 On the strict question of form Crook (n. 13) was mostly mute. If anyone takes his remark (p. 133) mentioning ‘a reference to the possibility of a sponsio “uter ex his vir melior esset”’ as an indication that he thought the formula might have been so fluid, I would simply point out that Crook took those words from Gellius (N.A. 14.2.21), who later gave the hypothetical sponsio a formulation (purportedly in Cato's words) which matches the bulk of the others (N.A. 14.2.26): ‘ni vir melior esset Gellius quam Turius’. Obviously this condition involved the question ‘uter ex his vir melior esset’, and Gellius’ casual phrasing indicates nothing more than that.
21 Gel. N.A. 14.2.26 = Cato, Orat. 206, defending a L. Turius against a Cn. Gellius. Of course, Cato asserted that ‘no one would be so insane as to judge Gellius a better man than Turius!’
22 We might have expected Cicero to use the judicial formula in his judicial speech, but it appears that he did not: as we are about to see, the other evidence suggests the generic formula gave the condition under which the challenger would lose, and the judicial formula the condition under which the opponent would lose. Here, the hypothetical persons would lose if violence had not been done to them, so the formula fits with the other examples of the generic, not the judicial, type.
23 Cic. Off 3.77. Fimbria refused to rule because he didn't want to defame the man, but also didn't want to reduce ‘goodness’ to a momentary judgment.
24 Watson, Alan, The Law of Succession in the Later Roman Republic (Oxford, 1971), 3–5;Google Scholar he chided Rein, Wilhelm, Das Privatrecht und Civilprozeβ der Römer von der aältesten Zeit bis auf Justinianus (Leipzig, 1858), 847,Google Scholar n. 4, for ‘misquoting’ the sponsio by printing ni instead of si in his citation; the possibility occurs to me (I have not been able to consult the work directly) that Rein noticed all the generic sponsiones and thought, probably erroneously, that there was a common formula for all sponsiones, such that this one needed correction.
25 As noted above (n. 20), I do not take Gellius’ phrase uter ex his vir melior esset as even a paraphrase of the formulaic gloss ni vir melior esset Gellius quam Turius.
26 Pace Sullivan, J. R. (trans.), Petronius. ‘The Satyricon' and Seneca. ‘The Apocolocyntosis’ (New York, 1986), 84;Google Scholar Crook (n. 13), 135. A better attested word for a simple ‘bet’ is pignus (in phrases like pignore certare, pignus dare, etc.). At any rate, if Crook was right to say that this was a simple bet, it cannot be quoted against my analysis.
27 Cf. Sblendorio Cugusi (n. 4), 259.
28 Cf. Janzer (n. 5), 46; Till (n. 4), 442–3; Scullard (n. 5), 262.
29 Cf. B. Afr. 86.2: ‘ipse Vergilium appellavit invitavitque ad deditionem’; Sal. Cat. 17.1: ‘igitur circiter Kalendas Iunias L. Caesare et C. Figulo consulibus [Catilina] primo singulos appellare; hortari alios, alios temptare; opes suas, inparatam rem publicam, magna praemia coniurationis docere’.
30 Scullard (n. 5), 137 thought it virtually certain that Cato was behind the tribunician prosecution of his former commander, M.’ Acilius Glabrio, in 189 when both were running for the censorship and Cato's testimony (among others') helped to force Glabrio to withdraw from the race. There is no indication that Cato was behind it, but Scullard's suspicion (it would seem) even put A. E. Astin, Cato the Censor (Oxford, 1978), 64, on his heels. There is at least ancient support, albeit in one of the most confused and controversial episodes confronting us, for an involvement by Cato in the instigation of the ‘trials of the Scipios’. But Livy's wording (38.54.2) marks Cato's involvement as part of what he regarded as inference, not established fact: ‘[Catone] auctore existimantur Petillii et vivo Africano rem ingressi et mortuo rogationem promulgasse’. Probably there was not secure knowledge about it even at the time, and rumour and speculation already abounded.
31 Paul. Fest. p. 52L glossed citeria (for which this citation was the example) as ‘effigies quaedam arguta et loquax ridiculi gratia, quae in pompa vehi solita sit’.
32 Schol. Bob. p. 108 Stangl.
33 These themes recur, as the scholiast noted, in several of Cicero's speeches following his recall: e.g. Cic. Dom. 56–61, 72–8.
34 Cf. Crawford (n. 10) 106–10, 121–3, 136–7,163–7.
35 If he had taken the challenge, he might have won the argument over the relevance of the sponsio, but he would at the same time have lost the factual contest and been forced to pay the penalty, which might have been substantial.
36 John Lewis Heller expressed the same reservation in the margin of his copy of Janzer (n. 5), 46, who proposed that the speech had been composed against a hypothetical circumstance; cf. Scullard (n. 5), 263.
37 Till (n. 4), 443.
38 Malcovati (n. 4), 46–7; Astin (n. 30), 86; Kienast, D., Cato der Zensor. seine Persönlichkeit und seine Zeit (Heidelberg, 1954), 79.Google Scholar
39 The MS reads em, which is confirmed by Paul. Fest. p. 67L as the archaic form for classical eum. Numerous scholars have emended profuit to profui, unnecessarily; as it stands, the sentence means that Cato's action in supporting the law to which he alludes was of benefit to the state.
40 Livy 10.9.4; Cic. Rep. 2.54, Rab. Per. 8, Verr. 2.5.163; Sal. Cat. 51.21–2, 40; Lintott, A. W., ‘Provocatio from the Struggle of the Orders to the Principate’, ANRWX 1.2 (1972), 249–53;Google Scholar Astin (n. 30), 21–3.
41 Astin (n. 30), 22; Kienast (n. 37), 90–1. A. H. MacDonald, ‘Rome and the Italian Confederation (200–186 B.C.)’,JRS 34 (1944), 19, who emends profuit to profui, unnecessarily (it was Cato's on-again, off-again battle with Caelius that benefited the state on so many fronts), attributes the lex Porcia to Cato; so Scullard (n. 5), 112, n. 4, and others cited there and by Astin (loc. cit.).
42 Livy 39.44.7–8; Plu. Cat.Ma. 19.1–2, Flam. 19.6–7; cf. Astin (n. 30), 85–6.
43 Cugusi (n. 8), 210: ‘Entrambi, ancora, pronunciarono un'orazione di “autodifesa anticipata”…’.
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