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Cicero as EvidenceA Historian's Companion$

Andrew Lintott

Print publication date: 2008

Print ISBN-13: 9780199216444

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780199216444.001.0001

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Property and Violence: The Pro Tullio and Pro Caecina

Property and Violence: The Pro Tullio and Pro Caecina

Chapter:
(p.68) VI Property and Violence: The Pro Tullio and Pro Caecina
Source:
Cicero as Evidence
Author(s):

Andrew Lintott (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199216444.003.0006

Abstract and Keywords

This chapter examines two cases wherein Cicero appears to have had a reasonable case on a strict interpretation of the law. However, in the case of pro Roscio Comoedo he needed to reinforce it by presenting his client in a better light than perhaps his character justified. The two lawsuits arose from property disputes involving violence. In each case, Cicero's client claimed to have suffered violence: in pro Tullio to his slaves; in pro Caecina to his own person and those of his friends and supporters. The aims of the suits, however, were different: in the first it was a matter of obtaining damages for the loss; in the second the winning of a judicial wager which in due course should have led to the taking possession of a disputed piece of real estate.

Keywords:   law, lawsuits, litigation, property disputes, violence

‘Who will put up with those immense volumes about an exception and a formula, delivered for Marcus Tullius or Aulus Caecina, which we read?’

(Tacitus, Dialogus 20. 1.)

THE suits about partnerships have shown Cicero using considerable legal ingenuity in causes that were far from sound. In order to reconstruct plausibly the events that gave rise to the suit we have to supply material that he is likely to have suppressed or so played down that it has become almost invisible. Occasionally, but not often, his statements must be completely discounted. Usually he proceeds not by assertions that it would be easy to refute directly, but by diverting the attention of the jury to arguments that show his client in a more favourable light, whether or not they are strictly relevant to the issue being tried. In the cases we are about to consider, Cicero seems to have had a reasonable case on a strict interpretation of the law, but as in pro Roscio Comoedo he needed to reinforce it by presenting his client in a better light than perhaps his character justified.

The two lawsuits arose from property disputes involving violence. In each case Cicero's client claimed to have suffered violence, in pro Tullio (Tull. 21–5) to his slaves, in pro Caecina (21–2) to his own person and those of his friends and supporters. The aims of the suits, however, were different: in the first it was a matter of obtaining damages for the loss (Tull. 7); in the second the winning of a judicial wager which in due course should have led to taking possession of a disputed piece of real estate (Caec. 23). Both cases were controversial. In the pro Tullio it is clear that there already had been one complete hearing with arguments and witnesses (Tull. 1, 6); in pro Caecina (6) we are told specifically in the exordium that the judges (recuperatores) had already been unable to deliver a verdict twice: that is, they had declared non liquet (‘the issue is not clear’) and the action had been renewed as in the pro Quinctio. Here Cicero is at pains to argue that there should be no reason for doubt and that the matter should be decided quickly.

(p.69) PRO TULLIO

The pro Tullio is fragmentary. There are small lacunae in the exordium, considerable gaps in the narratio and argumenta; the conclusion is missing except for one or two brief citations. Nevertheless, the issue and the main lines of Cicero's argument are clear. Cicero's client, M. Tullius, owned an ancestral farm in the centuriated territory of Thurii, that is, the formally measured and distributed land of the Roman colony. He had recently acquired a new neighbour, P. Fabius, who had bought the neighbouring property in conjunction with a partner, Cn. Acerronius. According to Cicero, Fabius had made a bad bargain, since he had paid half as much again as his predecessor had paid for the farm, although at the time of Fabius' purchase the estate was a wilderness with its villas burnt out—most probably the result of the Social War (Tull. 13–16). Cicero's explanation is that he was eager to sink in the farm some ill‐gotten gains that he had embezzled from a consular governor of Macedonia and Asia (Tull. 15), presumably L. Valerius Flaccus (cos. 86), who would have held both these provinces for the conduct of the Mithridatic War.1 Fabius at first tried to resell his property and this led to a dispute about the exact boundaries of the estates, Fabius laying claim to the centuria Populiana, which Tullius maintained to be his. Violence followed with Fabius' armed gangs wandering everywhere (Tull. 17–19).2 At a certain point Fabius, noticing that Tullius' slave Philinus was occupying a building in the centuria in question, took his partner and confronted Tullius at his villa. In consequence, Cicero alleges, Tullius promised to make a formal expulsion of Fabius from the disputed area and become the defendant in a lawsuit at Rome (Tull. 19–20). However, the following night, before this could take place, an armed gang of Fabius' slaves attacked the building in the centuria Populiana and killed a number of Tullius' slaves who were occupying it, though not Philinus, who managed to escape and bring the news to his master (Tull. 21–2).

Tullius sued, not about the disputed property, which seems to have remained in his hands, but about the loss he had sustained through the assault on his slaves, using a new legal remedy invented by M. (Terentius Varro) Lucullus (cos. 73), when he was praetor peregrinus in 76 (Tull. 7–8). (p.70) This used a jury of recuperatores, before whom procedure was more rapid, thanks to fixed time‐limits and restrictions on the number of witnesses.3 The jury were required to condemn Fabius to pay four times the cash value of whatever loss (damnum) he was proved to have caused Tullius by the violence of organized or armed men (vi hominibus armatis coactisve) through the dolus malus of his slaves (familia) (Tull. 7, 41).4

Cicero says in the fragments of the exordium that in the previous action(s) he had worked hard to prove that Fabius' slaves had perpetrated the slaughter of those of Tullius, but in the event the defence‐counsel, L. Quinctius, admitted the fact (Tull. 1–2, cf. 24–5). Quinctius was arguing instead that, since there had been no dolus malus by Fabius' familia, the facts did not match the formula (Tull. 25–36) and, furthermore, that Tullius' slaves had not been killed unjustly (iniuria) (38–56). For him the issues established in the hearings were about the meaning of the formula created by Lucullus' edict (a constitutio legitima) and whether the action of Fabius' slaves was just or unjust (a constitutio iuridicialis).5

Cicero's initial move in countering the first of Quinctius' contentions comes at the end of the exordium, when he describes the origin of, and intention behind, the action devised by M. Lucullus. It arose, he argues, to deal with the danger caused to private and public interest by the gangs of slaves in remote estates and pastures. For this reason Lucullus focussed the action on the familia and eliminated the concept of loss caused unjustly (damnum iniuria) characteristic of the fundamental law in this field, the lex Aquilia of the third century BC (Tull. 8–12). The importance of the word familia in the formula is shown by Quinctius' argument (35); the absence of the word iniuria must also be accepted, since otherwise Cicero would have been blatantly and futilely misrepresenting the formula. Whether Lucullus had consciously sought to eliminate the use of arms by slave‐gangs in self‐defence, as Cicero states (8), cannot be absolutely certain, but this seems to have been the effect of his new action.6

After the narratio Cicero's argument begins with the meaning of dolus malus. The conventional meaning of dolo malo seems to have been ‘with premeditation, with unlawful purpose’.7 Quinctius had clearly argued that there had been no premeditation—to judge from Cicero's response, in which (p.71) he claims that an action presupposes an intention (Tull. 32)8—and further that Fabius' slaves acted in defence of property or even in self‐defence (47–8; 54–5). Cicero alleges that the presence of the words dolo malo in Lucullus' formula merely extends it to cover persons planning an enterprise that they do not themselves carry out: when gangs of armed men are concerned there can be no question of lack of intent (25–8).9 Moreover, he develops a convincing argument from the current formula of the interdict unde vi, which dealt with restitution to property after violent expulsion—circumstances similar to those at issue in this case—to support his view that dolo malo may be used to embrace planners as well as perpetrators. What he does not allow for in the speech is that both he and Quinctius may be right and that the phrase may have alternative meanings and functions.

Quinctius also apparently argued that one could not apply the phrase dolus malus to slaves. His ground would have been that in law a gang of slaves could have no purpose of its own, only that of its master. He would then have been able to point to the pacific intentions of their master manifested in his willingness to go to court. What we possess of Cicero's reply to this point is that, if this defence is valid, all cases under Lucullus' formula will fail (Tull. 35–6). In fact, we are told that Quinctius had sought to block the action from the beginning by appealing to the tribunes against the formula, when it was decreed by the praetor Metellus (Tull. 38), though the grounds given by Cicero for this relate to the other aspect of Quinctius' case, the issue of whether the violence was unjust.

Quinctius' third argument seems to have been that the violence, even though it brought about deaths, was not wrong. He cited the clauses from the Twelve Tables that allowed the killing of a thief who came by night and the thief who came by day who defended himself with a weapon, also the law granting immunity to the killer of someone who had struck a tribune of the plebs (Tull. 38 ff., esp. 47–8). His argument would have been that the violence of Fabius' slaves was either a legitimate reprisal to an invasion of property, or a response to violent provocation (54–5). Cicero alleged in the narratio that Tullius' slaves had not resisted Fabius' familia when they entered the building (p.72) (Tull. 21). It seems likely that they were completely outnumbered, as Cicero says, and surprised. Hence the casualties were on their side alone (Cicero is likely to be right about this as he would have needed to have taken notice in this speech of any counter‐claim about losses by his opponent). However, it would have been hard to prove that they themselves had offered no violence, especially as the majority of them were dead and could not give evidence.

Cicero prepared the ground for his answer to this by his interpretation of the introduction of the new Lucullan action (Tull. 7–12). At the end of the exordium he pointed out that the word iniuria, found in the lex Aquilia, was deliberately omitted in Lucullus' edict in order, he said, to discourage armed violence. In the argumenta he took his stand on that omission, claiming that by appeal to the tribunes Quinctius had tried to alter the formula to be used in the case so that he could use that defence, but had failed (Tull. 38–9). Here he drew a clear distinction between this action and that under the lex Aquilia—the latter before a single judge for a double penalty and concerning loss suffered iniuria.

He also contrasted the present action with the interdicts about violent expulsion (unde vi) which contained exception clauses requiring the plaintiff to have had possession that had not been obtained by violence, stealth, or on sufferance (Tull. 41–6). It is indeed possible that, if Cicero's client either had performed the formal expulsion that had been planned and had been sued by Fabius under the interdict unde vi, or had himself sued under this interdict after the violent expulsion of his familia, he would have lost the case because of faulty title. In fact, exploitation of the Lucullan formula gave him a good chance of compensation. Moreover, success in this suit would have provided useful ammunition for his advocate in any future lawsuit about the disputed property.

The foundation of Cicero's strategy in this speech was the fact that in the light of the apparent purpose of the formula of Lucullus he had a strong case. It was uncontested that Tullius' men had been killed. He had to counter Quinctius' arguments that the formula was inappropriate since the killings were unintentional and that the wording of the formula was itself improper. Fortunately perhaps, the rights of possession to the disputed centuria were irrelevant and he could neatly leave them aside, while putting his client in a good light by his claim that Tullius had agreed with Fabius to go to law (Tull. 20). Tullius' character of course may have been vulnerable to attacks. From the fragments of the exordium it seems that Cicero had avoided slinging mud at the character of Fabius in his first speech, allegedly because it seemed inappropriate in a suit about money (the pro Quinctio suggests the opposite), but perhaps because he did not want a reply in kind. In fact Quinctius had attacked Tullius' character in his reply, and in our speech Cicero asks the jury's (p.73) forgiveness for introducing aspersions against Fabius in return, restrained though these will be (Tull. 3–5).

In the speech rhetorical strategy and legal strategy seem neatly amalgamated. The argumentation is technical, as it must be, but forceful; rhetorical skill is to be seen, however, as much in the presentation of the dispute in the narrative and in the description of the nature of the Lucullan action, which prepare the ground. Cicero appears sure‐footed and confident, as in pro Roscio Comoedo. He is in fact more experienced and he knows that confidence makes an important contribution to his effect on the jury. For the historian the wider background to the case, that is, the violence bedevilling post‐Sullan Italy, is more visible than the backgrounds to the pro Quinctio and pro Roscio Comoedo. There Cicero is at pains to suppress the politics that were contemporaneous with the disputes; here the need to restore order in Italy is part of his argument. What is, however, common to all three speeches is the nature of the dramatis personae—wealthy landowners of equestrian and sub‐equestrian rank riding the waves of political turmoil without ceasing their efforts to conserve or increase their wealth.10

PRO CAECINA: THE FORM OF LITIGATION

We possess the text of the pro Caecina effectively complete, unlike that of the preceding speech, and we can see in their full glory the technical arguments which were later found rebarbative by the persona of M. Aper in Tacitus' Dialogus. Cicero's client Aulus Caecina of Volaterrae was suing Sextus Aebutius in consequence of a sponsio (solemn wager) made by Aebutius, when challenged by Caecina after failing to comply with a decree of the praetor Dolabella. This decree had taken the form of the interdictum de vi armata and ordered Aebutius to restore Caecina to the fundus Fulcinianus in the ager Tarquiniensis, from which Caecina had been allegedly expelled (Caec. 23).

If Aebutius had complied with the decree originally, there would have been no further action. As it was, Caecina was challenging Aebutius with having disobeyed the interdict, by requiring him to make a wager of a considerable sum (p.74) that he had not, a form of sponsione provocare.11 According to the procedure later described by Gaius,12 Aebutius would have balanced the action by requiring Caecina to wager a similar sum that Aebutius was in the wrong. If Caecina had succeeded in the action, he would have prepared the ground for the recovery of the farm by an action defined by a third formula, one that entitled him to damages, if the defendant was condemned, unless the latter made the restitution required in the opinion of a judge—a formula arbitraria.13 If this were successful, the judge would condemn Aebutius to pay Caecina the value of the farm, should he not have restored it to him.14 It was later the rule that—perhaps at the time when the sponsiones were made—the temporary possession of the disputed property was assigned in the interim to the party who bid highest in an auction. The sum represented the assumed profits from the estate that he would pay to his adversary if he lost.15 This may not have been the practice in Cicero's day. In any event the impression given by the speech is that the farm was in Aebutius' hands at the time of the trial.

The Backgound to the Lawsuit

Caesennia, the woman whose estate caused the controversy, was the widow of M. Fulcinius, a man of decent, but not aristocratic, ancestry from Tarquinii who had become a respectable, rather than an outstandingly important, banker at Rome (Caec. 10 ff.); Caesennia was in fact superior to him in birth. Fulcinius had sold her a farm in Tarquinian territory, at a time when he was short of cash, in order to use her dowry to support his bank without injuring her interests. Later with the money obtained from winding up his banking operations he bought farms adjacent to it. Fulcinius died leaving his only son, also a M. Fulcinius, his heir, but with Caesennia having usufruct—life interest—in all his property jointly with his son.

(p.75) The son died too. Under the younger Fulcinius' will his heir was P. Caesennius, his wife received a great amount of money, and his mother the greater part of his property. This will would have violated the lex Voconia of 169 BC, inasmuch as a single legatee received more than the heir.16 Frier has plausibly argued that the loophole permitting its acceptance by the praetor was that the testator was incensus, not yet formally registered as a Roman citizen.17 In order to distribute the shares owed to the women there was an auction at Rome of the estate. On Aebutius' advice Caesennia lent him money to purchase out of it the property next to her existing farm. She then entered into possession of this, the subject of the present dispute, and rented it out. A little later she married Caecina, but soon died herself, leaving him heir to 23/24 of her property, with Aebutius getting 1/36 and a freedman of her first husband Fulcinius getting 1/72.

Aebutius apparently contested Caecina's inheritance on the ground that he was not a Roman citizen with full rights on account of the penalty imposed by Sulla on the people of Volaterrae (as on those of Arretium) (18, cf. 95–100). When this failed, Caecina was granted bonorum possessio by the urban praetor and requested an arbiter to preside over the division of the inheritance. Aebutius in response claimed the fundus Fulcinianus he had purchased as his own and outside the division.18 Aebutius seems now to have been treating the farm as his, whether he was in actual occupation of it or not.19 After Caecina had taken advice from friends, by agreement of both parties it was resolved to meet on a particular date at the farm so that Caecina could be removed from it ‘in the traditional fashion’ (moribus deduceretur), that is, that he should be formally expelled before witnesses and the basis thus laid for an appeal to the praetor through the interdicts about possession (20, 22, cf. Tull. 20).

On the day in question, after assembling with his friends at the Castellum Axia (a few miles west of modern Viterbo), Caecina was not even allowed to set foot on the fundus Fulcinianus from the neighbouring estate by a gang of armed slaves under Aebutius' orders. Caecina and his friends fled, and in consequence subsequently obtained from the praetor Dolabella an interdict de vi armata, ordering his restitution. When Aebutius in response claimed that Caecina had in fact been restored, resort was made to sponsiones in order to generate a lawsuit (23).

(p.76) The Issue

Cicero presents Aebutius as someone who had tried to exploit an inexperienced widow by running her affairs for her (13–15). There may been some truth in this. He was probably disappointed that he had done no better out of her will: hence his attempt to upset it by the allegation that Caecina was disqualified from inheriting. However, this did not mean that he had no right to possess the farm.

The Fulcinian farm had been auctioned to raise cash for the younger Fulcinius' estate. Aebutius had bought it and legally he could only buy it in his own person.20 He may not have paid back Caesennia's loan (17)—in which case he was a debtor to her estate and could be proceeded against on that ground. Nevertheless, he was still the owner of the farm, since there is no evidence that he had legally transferred it to Caesennia (as the elder Fulcinius had transferred a farm to his wife in respect of her dowry).21 It is true that Caesennia had been in possession of it throughout her lifetime, but, as Aebutius correctly pointed out (19), this was because she had part‐usufruct for life of this property, as of all her late husband's property, by virtue of his will, irrespective of any change of ownership. (11).

Hence, if Caecina had brought either an actio in rem claiming the ownership of the property or an action ex sponsione for possession arising from the regular interdict for restitution (unde vi), it is doubtful whether he would have succeeded. Even had he been in possession of the farm physically, this possession would have been legally defective in face of an entry by the owner, since, in the absence of any legal agreement for the enjoyment of the farm, it would have come under one of the headings (vi, clam, precario), that disqualified possession from praetorian protection. An exemplary argument in the treatise Ad Herennium22 shows an advocate pleading that his opponent's inability to contest ownership of a property shows that his right to possess was invalid and amounted to expulsion (deicere) by force.23 It is not, therefore, surprising that Aebutius had originally acceded to the request for a deductio moribus. It may be asked why Caecina was trying to get the farm, rather than the repayment of the loan, if in fact this was due. It seems that it was attractive to combine the Fulcinian farm with the farm of Caesennia's (p.77) already in Caecina's possession (cf. 15). Moreover, the farm had probably increased in value since its purchase.

Aebutius' use of armed slaves to expel Caecina, if we follow Cicero's argument, changed the situation, because it enabled Caecina to have recourse to the interdict de vi armata. The question, much debated by scholars, is whether this was really so. In Cicero's day the standard interdict for restitution (unde vi) ran ‘[I order you] to restore him to that place from which you or your agent or your slaves have expelled him or his agent or his slaves by violence in this year, when he was in possession, in so far as he was possessing neither through violence nor by stealth nor on sufferance.’24 According to this the interdict only applied to someone in possession.25 Thus immediately after Caesennia's death, if we are right to assume that Aebutius had taken over the property, it was open for him to use it to protect his position against Caecina but not for Caecina to use it against Aebutius. What precisely the planned deductio involved is not clear. It would have helped Aebutius if Caecina had formally expelled him, as he then had obvious access to the interdict unde vi, as the possessor at the time. However, according to Cicero, Caecina was planning to be expelled.26 This implied that he wanted to become (apparently) the possessor himself, a position which might have diminished Aebutius' legal advantage. If this was the case, it is not surprising that Aebutius resisted his move onto the farm.

If we follow Cicero's account,27 the decree of the interdict de vi armata would have run: ‘From where you or your slaves or your procurator by the violence of men organized in a gang or under arms (have expelled him)…: it did not contain the clause ‘while he was in possession’.28 It cannot either, though Cicero does not mention this, have contained the clause quod nec vi nec clam nec precario…(‘in so far as he possessed neither through violence nor by stealth nor on sufferance’), which was consequent on the possession clause. Hence, according to Cicero's main argument, the absence of the clause about possession in the interdict de vi armata, when contrasted with its presence in unde vi, showed that it was unnecessary for Caecina to prove (p.78) possession.29 Some scholars have accepted the main argument as at least a plausible legal interpretation; others, in particular Nicosia and Stroh, have seen it as a mere rhetorical device, ingeniously adopted by Cicero. Nicosia in particular has proposed that the words deicere and deiectio implied in themselves expulsion from possession;30 cum ille possideret was in the interdict unde vi, simply to introduce the clause quod nec vi nec clam31

Frier, however, has more plausibly maintained that, irrespective of whether possession, or at least physical control, was assumed by the drafters of the interdict, there was a genuine argument from its text for Cicero.32 The drafting of the chapter in the lex agraria of 111 BC (l. 18), which provides an earlier formulation of the matter in the interdict unde vi of Cicero's time, runs ‘si quis…]…ex possessione vi eiectus est, quod eius quei eiectus est possederit, quod neque vi neque clam neque precario possederit ab eo, quei eum ea possessione vi eiecerit’.33 Possessio is stressed four times and thus clearly is not implicit in the verb for expulsion, while the parallel quod clauses apparently contain two equally important definitions, the second narrower than the first. It is hard to see in the later change of eicere into deicere a means of eliminating the need for further qualification about possession.34 The omission of the qualifying clauses found in the interdict unde vi from that de vi armata, therefore, gave Cicero a loophole—and in fact perhaps one that was intended by the praetor who drafted the relevant edict. For it is possible that it was intended to discourage any use of armed force in property disputes, even when the man expelled had no claim to possession beyond his physical presence. That certainly is what is implied by the exception later cited by Cicero jokingly in a letter to his lawyer friend Trebatius, ‘in so far as you did not arrive first with armed men’.35

(p.79) The Advocates' Strategies

The recuperatores evidently found it difficult to reach a decision, since there had been already two adjournments (ampliationes) and the balance of the advocates' arguments had probably changed over the three actions.

Piso had sought to wrongfoot Cicero, as Quinctius had done in the pro Tullio, by admitting the violence and claiming justification (24 ff.). He actually called distinguished witnesses, presumably local landowners, who admitted that they came with armed men. Two even admitted hearing Caecina's request for a deductio moribus (27).36 He used P. Caesennius and the banker Sex. Clodius Phormio to testify to the purchase of the farm (27, cf. 17), thus claiming that Aebutius owned the property. Aebutius' possession was implicit in the story of the defence of his property and his recognition by his neighbours. When it appeared that Aebutius might yet be liable under the interdict because he used the violence of an armed gang, although not himself confronted with violence, Piso sought support in the letter of the interdict, arguing that Caecina could not have been deiectus from a property where he had never set foot in the first place and which he could not be said to possess (48 ff.).

Cicero knew that his client's claim to ownership was hard to substantiate in law. Hence his best hope was to shift his ground towards general equity, by suggesting that Caesennia had wanted Caecina to have the farm, that it had been hers de facto and therefore was now his (16, 19, 94–5). It is unlikely that he had made much headway with the judges on these lines. He further argued that by his mere use of violence Aebutius had disqualified himself from being a victor in law (32–47). As to the niceties of the wording of the interdict de vi armata, he sought to refute Piso by arguing that one could in fact be deiectus from a place that one had not reached (48–89), and in return devised a helpful argument of his own from the language of the interdict, based on the omission of any reference there to possession (90–5). This led back to his primary argument that it was wrong for Aebutius to get away with using a gang for violence. Aebutius had the better legal claim to the property; Caecina was technically in the right by a strict interpretation of the interdict and perhaps had a moral claim to the property. Judging by Cicero's pride in the speech and his later good relations with Caecina, his arguments eventually seem to have prevailed.

As Frier has persuasively argued, this speech is excellent evidence for the rise of jurisprudence in the late Roman Republic. True, the law is not yet a (p.80) profession with schools and a hierarchy of practitioners, as it was to become in the Principate. Knowledge of the law, however, has become an expertise, which only relatively few people could master. These are not organized in some official structure but operate, as it were, from corner‐shops. If you know the sort of help you need, you can find it.37 At the time of the pro Caecina Cicero is one of these recognized practitioners and is not ashamed of it, for all his well‐known later burlesque of lawyers in pro Murena.

A NOTE ON THE DATE OF PRO CAECINA

See Frier, 1985, 45, and 1983.

The praetor who decreed the interdict and the consequent action was P. Dolabella, later proconsul of Asia (Val. Max. 8. 1. amb. 2; Gell. 12. 7 (who wrongly calls him Cn.); IGRR iv. 422). Counsel for the respondent was C. Piso (cos. 67), at the time of the speech unlikely to be a consular and certainly not in office as praetor or consul. We can in addition rule out 66–5, when C. Piso was governor of Gaul. Hence a date before 67 is almost inevitable. This allows Cicero in Orator 102 to be dealing with speeches in chronological order, first pro Caecina, second pro Lege Manilia (de Imperio Cn. Pompei), third pro Rabirio Perduellionis Reo.

However, Dolabella cannot have become governor of Asia until the province was removed from L. Lucullus. Broughton, who has a high dating for Lucullus' arrival in the East to fight the third Mithridatic War (spring rather than autumn 74) and hence the chronology of the war, still dates the senate's action over this province to 69 (MRR ii. 109, 133, cf. iii. 121–2). It can hardly be in 70, when in any case it is probable that M. Mummius was urban praetor (Verr. 3. 123). Hence the earliest the senate could have opened the door for Dolabella to go out to Asia would have been after a praetorship in 69, so that he went out at the beginning of 68.

Stroh, 1975, 100 followed Nicosia, 1965, 147 ff., who argued for an earlier date, on the ground that Caec. 36, where Cicero enumerates praetorian duties, contains no direct reference to Piso's having held the office. However, this weak argument from silence cannot stand against the impossibility of Dolabella's going from his praetorship to govern Asia while Lucullus was its proconsul. Nicosia was forcing the evidence because he wanted to date pro Caecina to the same year as pro Tullio (71 BC) or earlier, as part of an argument that the interdict de vi armata did not change its formulation in this period.

Notes:

(1) Without this passage it would have been equally plausible to explain the devastation by Spartacus' uprising.

(2) This violence is probably Cicero's construction of part of Spartacus' uprising. The centuria Populiana would have been one of the squares in the allotment grid, 200 iugera in size, which probably took its name from a former owner, Populius/Popilius.

(3) Lintott, 1990 b, with earlier bibliography; Schmidlin, 1963.

(4) On the Lucullus edict see VRR, 2nd edn., 128–9; Serrao, 1954, 74 ff.

(5) Ad Her. 1. 19, 24; Cic. Inv. 1. 17–18.

(6) Contrast the exception clause introduced by the end of the Republic into the later interdict de vi armata, found in Cic. Fam. 7. 13. 2 but not in the interdict at the time of the pro Caecina (23, 62), which permitted armed violence in response to previous armed violence.

(7) See the examples indexed in RS ii. 823.

(8) ‘Nisi putamus eum <in iudi>cium venire qui consilium fecerit, illum qui fecerit non venire, cum consilium sine facto intellegi possi, factum sine consilio non possit.’

(9) Mette, 1965, 19–20 quotes Ulpian (Ad edict. 37) in Dig. 47. 2. 50. 2–3: ‘recte Pedius ait, sicut nemo furtum facit sine dolo malo, ita nec consilium nec opem ferre sine dolo malo posse: consilium autem dare videtur, qui persuadet et impellit atque instruit consilio ad furtum faciendum, opem fert, qui ministerium atque adiutorium ad subripiendas res praebet.’ This provides some support for Cicero' argument about the use of the phrase dolo malo, since dolus in relation to assistance implies only intention, not premeditation. See also Stroh, 1975, 163–4, 167–9.

(10) Pro Tullio must have been delivered after the praetorship of M. Lucullus in 76 BC and in the praetorship of the Metellus mentioned in §39, either Q. Metellus (cos. 69 and therefore praetor 72 at the latest), or L. Metellus (cos. 68, pr. 71). Cicero' s treatment of M. Lucullus in the speech suggests that his praetorship was comparatively distant; 75 and 74 BC are therefore unlikely. Moreover, in 74 Quinctius was tribune and unlikely to have the time for advocacy in private cases. In 73 M. Lucullus was consul and this would have surely been mentioned. We are left with 72 and 71, of which the latter is more likely, since the lawsuit can be placed in the aftermath of Spartacus' revolt. Cf. Stroh, 1975, 160.

(11) On sponsione provocare see Crook, 1976.

(12) Gai. 4. 161–70, esp. 165; de Zulueta, 1953, 295 ff.

(13) Gai. 4.163–5.

(14) Aebutius could have resorted to this legal mechanism directly in place of the action by wager but on one view, according to Gaius 4. 163, this amounted to a confession of liability.

(15) Gai. 4. 166–7. On the pro Caecina the most important discussions are now those of Nicosia, 1965, and Frier, 1985. Note also Labruna, 1970, 160 ff., who, however, overemphasizes the distinction drawn later by Ulpian (Dig. 43. 17. 1. 2–3) between actions under the interdicts about possession and disputes about ownership. Because, as here, ownership could be used as an argument against the claim of valid possession by another (on the ground that this possession was vi vel clam vel precario), actions under the interdicts could serve to settle a dispute about ownership. See Ad Her. 4. 40 and in general on the parallel use of legis actiones in rem and the interdicts the metaphor in de Or. 1. 41: ‘…qui aut interdicto tecum contenderent aut te ex iure manum consertum vocarent, quod in alienas possessiones tam temere inruisses.’ The legis actio sacramento image is developed ibid. 42.

(16) 2Verr. 1. 110, cf. 104 ff.

(17) Frier, 1985, 15 n. 38.

(18) ‘In foro’ (19) perhaps means during the arbitration or the proceedings in iure before it.

(19) Frier, 1985, 18 has taken Caecina's visit to the farm while on a circuit of the properties, mentioned in Caec. 94, to fall in this period. If so, it is strange that Cicero does not mention this in the narratio at the appropriate point, as this would have been useful argument for his client. The tour could equally well have occurred when Caesennia was alive: Caecina would have been acting as his wife's bailiff.

(20) Cf. Caec.16 fundus addicitur Aebutio.

(21) Cf. Nicosia, 1965, 55 with n. 131.

(22) Ad Her. 4. 40.

(23) Frier has pointed out (1985, 180) that, while later law disqualified those with a usufruct or tenancy as possessors from the point of view of the praetor, this was not true in 69 BC (Caec. 19). So Caesennia was a possessor. Caecina, however, had no status, unless he was in fact the owner. Contra Bethmann‐Hollweg, 1864–6, ii. 840, who seems to have thought that Caecina had acquired possessio with his inheritance.

(24) ‘Unde tu aut familia aut procurator tuus illum aut familiam aut procuratorem illius in hoc anno vi deiecisti, cum ille possideret, quod nec vi nec clam nec precario possideret, <eo illum restituas>’ (Tull. 44).

(25) Possession was identical neither with ownership, nor with mere physical control, since it could be exercised from a distance, as by Caesennia: it was perhaps equivalent to having the capacity to control a piece of property or an object.

(26) Caec. 20: de fundo Caecina moribus deduceretur.

(27) ‘Unde tu aut familia aut procurator tuus <vi> hominibus coactis armatisve <illum deiecisti>…’ (see Caec. 23, 89–91, cf. Fam.15. 16. 3). See also Tull. 7 for the parallel phraseology of Lucullus' formula.

(28) ‘Cum ille possideret’, transposed in the speech as ‘cum ego possiderem’ (Caec. 91).

(29) At one point Cicero rather desperately tries to argue that Caecina had inherited possession from Caesennia, but only briefly (Caec. 94).

(30) Nicosia, 1965, 12 ff.

(31) Note that even on Nicosia's view vitiated possession would have been protected against armed violence because of the absence of quod nec vi nec clam…, but this might have been understandable, if praetors had been eager to discourage the use of armed violence to settle disputes.

(32) Frier, 1985, pp. xii, 53–4.

(33) ‘[If any of those whose] land is mentioned above, is ejected by violence from possession, in so far as he, who was ejected, was in possession of it, and he was in possession of it neither through violence nor by stealth nor on sufferance from the man who ejected him by violence from that possession’: JRLR 180, 220–1; RS i. no. 2, p. 164. Frier, 1985, 178–9 rightly refers to this text, of which Nicosia failed to take proper account. Bethmann‐Hollweg, 1864–6, ii. 839 believed that Cicero's account of possessio was correct.

(34) In Ad Her. 4. 40 deiecisti is used of a possessor having expelled an owner.

(35) ‘Quod tu prior vi hominibus armatis non veneris’ (Fam.7. 13. 2).

(36) See Frier, 1985, 25–6 who notes that their names are Italic (for the most part indeed Roman), not Etruscan, but they do appear in records of local magistrates and in Latin funerary inscriptions from the region.

(37) Cf. Balb. 45 on the property‐experts (praediatores), Furius and (A.) Cascellius (cf. RDGE no. 23, l. 13; Dig.1. 2. 2. 45), and M. Tugio, the expert on water.