The Consuls of 249 had sailed against the auspices and lost their fleets, to the detriment of the res publica. Another Consul, in 242 or 241 bc, stepped back from the brink, and brought the First Punic War to a victorious end. So far, these incidents could be seen as outliers. Yet twenty years had not passed when an objection to the rule of auspices on grounds of principle is first explicitly attested. In 223 bc, a Consul of the Roman People publicly denied the validity of a formal response by the College of Augurs, and endeavored to undermine the public belief in the practice of auspices, with reasoning and a degree of confidence that suggest he did not stand alone in such views. Given the fundamental nature of that challenge, the involvement (it will be argued) of a Dictator and his Magister Equitum in the Senate’s response to it, and its unusually full documentation—in contrast to those previous instances—in the sources, the episode rewards closer examination. Incidentally, a plausible (it is hoped) explanation and understanding of what transpired in 223 will also illuminate a puzzling piece of epigraphical evidence, ostensibly relating to an event six years later. We begin with that.
Q. Fabius Q. f. Q. n. Maxim(us) Verrucoss(us) II dict(ator) interregni caus(sa). Thus the entry in the Fasti consulares Capitolini, under the year FC 536 = AUC 537, or consular 217/6 BC. It looks innocuous, and has drawn scant attention; yet beneath it lurks a mystery.
Fabius, beyond the shadow of a doubt, exercised the functions of a dictator rei gerundae causa in that memorable year, as abundantly documented throughout the sources. The designation interregni causa is attested nowhere else: most, therefore, dismiss it simply as an error, in keeping with a host of other flaws exhibited by the Fasti, and ask no further.1 A few, however, have given it the scrutiny it deserves.
Nearly half a century ago, G. V. Sumner launched a frontal assault on Livy’s report (22.33.9–35.4) of the consular elections for 216. As the year 217 was drawing to a close, the Senate—thus Livy—by letter contacted the Consuls, Cn. Servilius Geminus and (suffect for the unfortunate C. Flaminius) M. Atilius Regulus, and requested that one of them return to Rome so as to hold elections. Both declined, citing the gravity of the military situation; they recommended that elections be conducted by an Interrex (sine detrimento rei publicae abscedi non posse ab hoste; itaque per interregem comitia habenda esse potius quam consul alter a bello avocaretur, 22.33.10). Instead, the Senate found it more appropriate to have a Consul name a Dictator to hold elections (patribus rectius visum est dictatorem a consule dici comitiorum habendorum causa, 22.33.11). One of the Consuls complied with the new instructions and named L. Veturius Philo (cos. 220) Dictator, who in turn chose M. Pomponius Matho (cos. 231) as Magister Equitum. Fourteen days later, the Dictator and his deputy abdicated without completing their task, having been found vitio creati; with that, ad interregnum res rediit (22.33.11–12). The patres produced as Interrex first C. Claudius Centho (cos. 240), then P. Scipio Asina (cos. 221). After a brief but intense electoral campaign, the second Interrex presided over the election of the homo novus C. Terentius Varro, whose supporters had directed a stream of virulent attacks against the whole procedure, accusing the Senate, the Nobles, the Consuls, and the Augurs of deliberately causing the interregnum in an attempt to derail their candidate’s chances of winning. The other consulship remained unfilled until the next comitial day when, now under Varro’s chair, the People elected as his colleague L. Aemilius Paullus (cos. I 219)—drafted by the nobilitas at the last moment, when it became clear that the original patrician candidates were ill-suited to stand up to the ebullient New Man.
Rejecting the interregnum reported for the opening of the year 216/5, Sumner decided that the Dictator Veturius did in fact hold the elections, and abdicated not vitio creatus but simply after finishing his task; but rather than eliminating Livy’s two Interreges from the record altogether, Sumner proposed that they held office earlier in 217: not, however, at the beginning of that year (to elect Consuls), but in the summer—in those traumatic days following the Battle of Lake Trasumene. Panic in Rome demanded the appointment of a Dictator; but with one Consul dead and the other in Gaul, cut off from communications with Rome, there was no way to do so immediately, at least not in accordance with established practice: consul aberat, a quo uno (sc. dictator) dici posse videbatur (Livy 22.8.5, cf. 22.31.9). For which reason, in an unheard-of procedure the Dictator was elected by the People, along with his Magister Equitum. Hence the question, obvious and unavoidable: what magistrate presided over this electoral Assembly?
Sumner’s answer was, an Interrex. He knew, of course, that the “technical conditions for an interregnum were not fully present,”2 but appealing to an “unprecedented emergency” and a need for speedy action, he brushed aside the obvious objection that there could be no interregnum as long as any Consul or Praetor (at the very least) was still in office—a rule so deeply anchored in the foundation of the res publica that it was considered ironclad, unbreakable as late as 43 bc. In the summer of that year, both Consuls lay dead, and their replacement was urgently desired. Yet it proved impracticable, perhaps impossible, to bring about the abdication of all remaining “patrician” magistrates—Praetors, Curule Aediles, Quaestors; and thus, no interregnum: dum enim unus erit patricius magistratus, auspicia ad patres redire non possunt.3 Sumner alleged that an interregnum regularly could occur with all magistrates but the Consuls still in office.4 There is no reason to doubt Cicero’s clear and unequivocal statement (it seems he very much would have preferred an interregnum), seeing that even lowly Quaestors possessed the auspicia publica (albeit minora).5 At any rate, there can be no question as regards the Praetors: elected iisdem auspiciis as the Consuls,6 their auspices were alive even if the Consuls were not. An interregnum while there still were Praetors was as impossible as one consule vivo. At a minimum, this presents five obstacles—four Praetors and the surviving Consul—to Sumner’s hypothesis; obstacles that cannot be overcome by pleading that “at the present time Rome lacked Consuls.”7
For yet another reason, the notion of an Interrex naming the Dictator in the middle of 217 can be ruled out. As we saw earlier,8 in 49 bc Caesar sought to be made Dictator so as to hold consular elections, but both the Consuls were in Greece, and uncooperative. The augural college refused to sanction either of two procedures that might circumvent the obstacle: to allow a Praetor to elect Consuls or name a Dictator. Neither of which, in the considered opinion of at least one Augur (Cic. Att. 9.15.2), would be lawful—although if Sulla was able to have himself named Dictator by an Interrex, why should Caesar not be able to manage it? Caesar solved the problem by having legislation enacted that authorized the Praetor M. Aemilius Lepidus to perform the dictio on this particular occasion: ibi (sc. Massiliae) legem de dictatore latam seseque dictatorem dictum a M. Lepido praetore cognoscit (Caes. BCiv 2.21.5). Late in 82, special legislation had enabled the Interrex to name Sulla Dictator, but that Interrex had come into existence in the normal course of an interregnum, the Consuls and all other magistrates having died, expired, or abdicated. If Fabius’ dictatorship in 217 had offered precedent for an Interrex consule vivo, surely Caesar would have availed himself of it: with Sumner, he could claim that “at the present time Rome lacked Consuls.” Yet he did not; and Cicero’s comment makes it clear that the Augurs knew of no instance, before Sulla, for an Interrex naming a Dictator in any form whatsoever.
Seven years after Sumner, Marianne Hartfield insisted—rightly—that interregni caussa can only refer to some kind of future intention and not to the procedural oddities of Fabius’ appointment. As there was no actual interregnum in 217, she proposed that the Dictator’s principal task—as identified by his designation—was not to conduct the war (that was added subsequently “with senatorial approval”) but to act instead of an Interrex for the purpose of electing a Consul suffect. Although noting at first that a Dictator rei gerundae could “easily have solved” that problem, she then proceeded to argue that a Dictator so named, or one comitiorum habendorum causa, could only preside over the election of all magistrates for the coming year—unlike an Interrex, who could only see to the election “of a consul or consuls.” Hence if just one Consul needed replacement, it must be handled by an Interrex or the surviving Consul. The latter being “unable to leave the field,” the only options left consisted of an Interrex or a Dictator designated to act as such: “Logic in the crisis swayed the senate toward use of the dictatorship.”9
The sole evidence of Hartfield’s contention that a Dictator rei gerundae or comitiorum habendorum causa could not hold elections for a Consul suffect is the fact that none is reported to have done so prior to 217. Unfortunately, the only recorded year that shows both a Dictator and a suffect Consul is 458 V, and here the suffect—the hapless L. Minucius—was in office before the Dictator was named.10 Even as an argumentum e silentio this will not do. Indeed, there are no rational grounds to think that a Dictator could not hold elections for a Consul suffect unless specially so commissioned. As for the surviving Consul being unable to leave the field, Servilius was back in Rome long before Fabius returned from his initial encounters with Hannibal, and the election of a suffect Consul was clearly of low priority: it did not happen until much later in the year, during the debate over the Metilian proposal to give the Magister Equitum power equal to that of the Dictator.11 Against the notion that an Interrex could have been named consule vivo, the same arguments apply as against Sumner.
Five years later, Giovanni Nicosia in his seminal study of the so-called “limited Dictators” briefly addressed the issue. Noting that interregni causa as a formal designation of the Dictator’s task would make no sense (“qualifica che veramente non avrebbe senso”) and that the conditions for an interregnum did not exist in 217, he reasoned, in a vein similar to Sumner’s (“at the present time Rome lacked Consuls”), that the puzzling notation was meant to convey to readers that although there occurred no actual interregnum, the situation prompting the appointment of a Dictator was in fact analogous to such a state of affairs—a vacancy of all the supreme magistrates.12 How readers of the Fasti in the time of Augustus, two centuries after the events in question, could be expected to extract such subtle and complex information (not available, it seems, through any literary account in circulation then) from the terse interregni caussa, no explanation.
More recently, Massimo Gusso, unaware of Sumner’s treatise (and Gruen’s rebuttal), revived the notion of an Interrex consule vivo, in a manner nothing short of fantastic. Gusso conjured up two distinct manifestations of the Interrex: the first and normal one (“una prima [sc. figura], fisiologica”), to hold elections when all regular magistrates have expired, and a second (“inconfessata,” not surprisingly) “che potenzialmente porta seco tendenze patologiche,” with the task of calling into existence “una magistratura straordinaria” in cases of particular emergency. The extraordinary magistrate brought about by this “second” kind of Interrex, although appearing—under the title of Dictator—familiar on the outside, was endowed with characteristics substantially different and anomalous, “quasi monarchiche,” better even, “magico-carismatiche”; always named by an Interrex, even though one Consul might be alive (or both, if far enough from Rome), this special Dictator was in reality chosen by the Senate, with a semblance of popular election. Such was the appointment of M. Furius Camillus after the Gallic disaster in 390 V and, perhaps, of M. Iunius Pera after Cannae in 216; and, naturally, of Fabius Maximus after Lake Trasumene—extraordinary Dictators named by an extraordinary Interrex. For Fabius, Gusso divined a special treat: first produced as Interrex by the patres, he named himself Dictator. Hence interregni causa, “in occasione del suo interregno.”13
In a parallel universe, this reconstruction might have some validity; although greater comfort would be furnished even there by a solution that stays within the generally accepted parameters of Roman institutions. It need not detain us further.14 Yet Gusso’s disquisition, like Sumner’s, Hartfield’s, and Nicosia’s before him, has the merit of standing largely alone in asking a fundamental question: what, actually, does interregni causa mean, and how did the phrase attach itself to Fabius’ (second) dictatorship in the Fasti? No other Dictator is on record interregni causa: it will not do with Mommsen simply to dismiss “the inconvenient document as erroneous,” a mere mistake on the part of the stonecutter, or the redactor, about the nature of this dictatorship.15 For, surely, they did not invent out of whole cloth a dictatorial designation that had no parallel anywhere else. Its very singularity calls for explanation.
Observing the analogy of comitiorum causa, short for comitiorum habendorum causa, Sumner took the mysterious phrase to mean “something like ‘for the purpose of dealing with an interregnum’.”16 This is undoubtedly correct, as far as it goes; indeed the Fasti, while generally scrupulous in adding the gerundive, under the year 257 bc show a Dictator [L]atinar(um) fer(iarum) caussa. Sumner then concluded that an interregnum must have existed, with an Interrex in office, “at the time when the Dictator was appointed.” Now, assuming—still with Sumner—that the Interrex named the Dictator, it follows inescapably that the interregnum would come to an end the moment the Dictator was appointed: how, then, was the Dictator to deal with a situation that no longer existed? Surely Q. Ogulnius was not named Dictator in 257 at the time when the Latin Festival was in full swing; he was appointed to celebrate it, both Consuls being dispatched to Sicily without that customary delay.17 The Dictator clavi figendi causa was not appointed because a nail was sticking from the wall of the Capitoline Temple, but to hammer a new one into it, and the Dictator comitiorum causa was not named to deal with elections in progress, but to see to it that elections were held. Indeed, to translate interregni causa “for the purpose of dealing with an interregnum” is to dodge the issue: common Latinity as well as the universal usage in the realm of public institutions points to one meaning only (glimpsed by Gusso, and instantly dismissed18), straightforward if hardly of an everyday occurrence. This Dictator was named to bring about an interregnum: in other words, interregni ineundi causa.
The modalities of going about such a task will be discussed later. First, the obvious question: could this, in fact, have been Fabius’ task in 217 bc? The answer, just as obvious, is “No.” An interregnum would have required the abdication of all surviving “patrician” magistrates, followed by his own (and that of his Magister Equitum): in the middle of the year, at the height of the campaigning season, with Hannibal in Central Italy, between Rome and her only operational army (Servilius’) at the moment? Certainly, if a paramount augural concern could be discovered: but nothing of the kind is mentioned in our sources, nor can it rationally be conjectured. True, Flaminius had exhibited, suo more, crass and deliberate neglect of auspices; yet he was dead, and nothing indicates that his behavior had vitiated his colleague’s auspices, or those of all the other magistrates.19 On the contrary, when later in the year an interregnum was suggested, the Senate opted for an electoral dictatorship instead: the College of Augurs, evidently, saw no need for an auspiciorum de integro renovatio.
The Fasti, therefore, are in error. Yet what is the nature of their mistake? As noted earlier, a mere slip in designation will not answer; interregni caussa, known of no other dictatorship, stands too alone for that. That the redactor made it up from nothing, only to place it in an impossible context, is out of the question; the puzzling designation serves no fictionalizing purpose, offers no antiquarian explanation of some archaic feature no longer understood—not, at any rate, with reference to the year 217. It follows that the designation is in itself authentic, in other words, it did occur, but not in 217 bc: we must look for a different occasion, not attested—at least not directly—in the extant record. A possible solution thus emerges. Fabius, it is well known, had been Dictator once before. The extant portions of the Fasti, though, do not record that first occasion, for which reason it is commonly assigned to the gap spanning the years 221 through 219. There being no serious emergency in any of these years, his first dictatorship is commonly thought to have been comitiorum habendorum causa, “to hold elections.”20 Yet that is a mere guess, and a designation that has actual support in the surviving evidence may claim preference. When the Fasti were compiled, the redactor or the cutter switched, by accident or by design, the task of the first appointment to the year of the second.21 It was the first of Fabius’ dictatorships, not the second, that he took up interregni causa.
Lest an error of such magnitude be deemed improbable, a look at the Fasti from that perspective may prove instructive. Inscriptional evidence commands high trust in its reliability, more so than “literary” sources. All the same, the Fasti are not infallible; far from it. The influence and interests of the New Romulus can be detected all over the document. They are a compilation, redacted and edited to tell the Roman past from a particular point of view: and like any attempt to produce a coherent synthesis of data from the past, they are subject to—aside from deliberate manipulation—error, confusion, and the inevitable need to choose between, or attempt to resolve, conflicting pieces in the evidence. The resulting list of magistrates is arrived at by a process no different in nature than that employed by Livy, Diodoros, or Dionysios, and a priori no more credible.22 Only the naïve will confuse the character of the evidence furnished by the Fasti with that of a stone preserving the actual text of, say, a senatus consultum or comitial law, and treat them as more reliable than a literary account of that same past merely because they are carved in stone instead of written on papyrus, or—worse—because they represent the “official,” hence definitive, view. Indeed, omissions, inconsistencies, and oddities abound—some innocent, some not.
Omitted, for example, are the deaths in office of C. Atilius Regulus (cos. 225), L. Aemilius Paullus (cos. II 216), M. Claudius Marcellus (cos. V 208), and—at least in the stone’s original cutting—T. Quinctius Crispinus (cos. 208). True, in each instance the expired magistrate was not replaced by a suffect, and the Fasti remain silent in a number of such cases.23 Yet by no means always. Ap. Claudius Russus (cos. 268) is listed dead in office, with no suffect; likewise Q. Cassius Longinus (cos. 164), L. Valerius Flaccus (cos. 152), and Cn. Octavius (cos. 87). We know their suffects, though not from the Fasti. In 272, conversely, the Censor L. Papirius Praetextatus is annotated in mag(istratu) m(ortuus) e(st), but the next pair of Censors did not take office until three years later; moreover, Papirius’ colleague, that redoubtable exemplum of frugal rectitude and three triumphs, M’. Curius Dentatus, is not shown to have abdicated after his fellow Censor’s death—a mandatory practice since the early fourth century.24 Are we to assume that Curius violated mos and tried to stay in office? An unlikely case to remain so entirely unattested. In 214, the Censor M. Atilius Regulus abdicated upon his colleague’s death, and both events are duly noted; yet again, no new Censors were elected until 210. Thus twice at least, for 272 and 214, the stone records a Censor’s death although no suffect was to fill his place.
The document’s report on 208 bc warrants closer attention. For the first time in history, both Consuls died in office in a time of war; Livy gave due emphasis to the calamity.25 Yet the Fasti have no comment. Contrast the year 176, when the same thing happened next (InscrItal 13.1: 48–49):
[Cn. Cor]nelius C[n.] f. L. n. Scipio Hispallus in mag(istratu) mortuus est. in eius l(ocum) f(actus) e(st) C. Valerius M. f. P. n. Laevinus
Q. Petillius C. f. Q. n. Spurinus in mag(istratu) postea quam sibi conleg(am) subrog(avit) occis(us) e(st)
Every step here is recorded. It might be said that, in 208, the Consuls’ death could go unmentioned since no suffect was elected. No suffect, either, in 82 bc, though here again the stone reported the demise of both the Consuls.26 Its silence on that fact in 208 betrays sloppiness rather than editorial policy, especially in view of the event’s epochal nature. Indeed, a strange subscription to Crispinus’ name, inserted between the man’s filiation and cognomen, but in smaller letters and below the line, lends weight to the conclusion that death in office was omitted here by inattention, not design. The entry reads: T. Quinctius L. f. L. n. exvol Crispin[us]. Surely that signifies ex vol(nere);27 noting that the letters were evidently added after the year’s main entry had been cut, Degrassi suggested that the mason meant thus to indicate the death of both the Consuls: “cum uterque consul alter in proelio occisus sit, alter ex vulnere in eodem proelio accepto mortuus.”28 That lacks conviction. Marcellus died in battle, warranting the usual in mag(istratu) (or in proelio) occis(us) e(st); and if ex vol(nere) was indeed intended to apply to him as well, it should (and could: the stone has room enough) have been inserted between his name and his colleague’s, viz. M. Claudius M. f. M. n. Marcellus V ex vol(nere) T. Quinctius L. f. L. n. Crispinus. The note undoubtedly pertains to Crispinus alone. Ex vol(nere), though, seems harsh, even as the cutter was pressed for space; one would expect a verb, however much abbreviated, in keeping with the document’s consistent practice. The note m(ortuus) e(st) was either omitted, or added in the right margin below the missing final letters of Crispin[us], where the stone breaks off.29
Crispinus’ death thus did find mention, after a fashion, belatedly and obliquely, when someone realized the stonecutter had missed that item. No such luck for Claudius Marcellus. A parallel is close to hand, exhibiting the same erratic efforts to correct the record. In 164 bc, a similar, though straightforward, addition marks the death in office of Q. Cassius Longinus: in m(agistratu) m(ortuus) e(st) was squeezed into the margin to the right of the name, “alia manu postea.”30 Yet, in the following year, the death of M’. Iuventius Thalna (cos. 163) remained unnoticed. Death is reported randomly in the Fasti—or, at the least, according to criteria that remain unfathomable.
The year 217 fares poorly in particular. The abdication vitio facti of the Dictator-to-Hold-Elections, Veturius Philo, and his deputy goes unmentioned. Sumner invoked this to support his argument that the abdication occurred in the normal course of business, the elections having been completed, rather than out of augural concerns; he allowed, though, that “the argument from silence here is admittedly not conclusive in itself.”31 Indeed not. The Fasti fail to mention quite a few other abdications: the Consuls of 392 (to renew the auspices), of 223 (vitio creati), of 154 (to move the beginning of the consular year up to January 1). The abdications of Consular Tribunes (444, 402, 397; the first and the last group vitio facti) all seem to have gone unreported.32
More astonishing by far, the silence of the stone regarding the two biggest issues of that year. Fabius is said to have been made Dictator in a highly irregular manner, as Livy was well aware (22.8.5–6, 31.8–11), by popular election: the stone has no comment on the unprecedented event. (Whatever the details of that mysterious procedure, it cannot explain interregni causa, or vice versa.) Soon Fabius’ Magister Equitum, M. Minucius Rufus, disagreed with his superior about the conduct of the war, and, siding with the Master of the Horse, by plebiscite the People made his imperium equal to that of the Dictator. The story is well known to all the literary sources;33 its constitutional implications, singular and remarkable, make it just the sort of notice the Fasti could not overlook. Yet not a word.34 Can this be attributed to sheer ignorance? For all their imperfections, the Fasti constitute a marvel of antiquarian research, and ignorance is not a failing commonly imputed to their redactor. Something clearly is amiss in their treatment of Fabius’ dictatorship in 217. First, interregni caussa, a designation that in itself appears authentic, but cannot possibly apply here; next, silence as to his irregular manner of appointment (if irregular it was); and finally, complete oblivion with regard to Minucius’ special status. If ignorance is not the answer, confusion or displacement as to time and circumstance ought to be considered seriously.
Finally, the years 223 and 222. In the first, as already mentioned, the literary sources tell us that both Consuls abdicated; the Fasti make no note. In the second, the Consul M. Claudius Marcellus, in the great war against the Gauls, slew the Celtic chieftain in single combat, took his armor, and dedicated it as spolia opima to Iuppiter Feretrius on the Capitol—only the third such dedication since Romulus.35 It seems barely credible that this feat (by a Marcellus, no less, of a family so dear to the man who commissioned the Fasti) should have gone unremarked in the marble; but unremarked it was. The entry for 222 forms the last line on that slab, at the bottom of the left-hand column of the third tablet; one can rule out the possibility that this information was contained at the top of the right-hand column: each column clearly began with a new year.36 Marcellus’ honor was duly noted in the Acta Triumphorum; but it appears that, in the Fasti consulares, the cutters were pressed for space.37
In the normal way of things, a Dictator should have no connection with an interregnum; it commences automatically, inevitably, whenever no “patrician” magistrates are in office. No circumstance that would require a Dictator to bring about an interregnum is conceivable, but one: if somebody were to block, obstruct, or otherwise prevent a necessary interregnum from taking place.
The three-year window, 221 through 219 bc, in which the first dictatorship of Fabius Maximus for want of anything better is usually placed, holds no evidence of such a situation. Yet only two years earlier, we have a full and fairly detailed report of a Consul resisting abdication to permit the inception of an interregnum—and it is the only such case known for certain in half a millennium of republican history.38 As noted earlier, Fabius’ designation interregni causa is the only one on record. Perhaps we can make the two things fit.
In 223 bc, both Consuls—Gaius Flaminius and P. Furius Philus—were sent north to fight against the Insubrian Gauls in the Po Valley. As their campaign got under way, a series of portents caused concern at home; the College of Augurs found the Consuls to be vitio creati.39 The Senate resolved that they should refrain from any military action and forthwith return to Rome, and then abdicate so as to initiate an interregnum to renew the auspices; a letter was dispatched to Gaul with the appropriate instructions.40 Arriving just as the Roman armies prepared for battle, the courier handed the letter to the Consuls; but they did not read it until after the battle—which the Romans won.41
So far, the Consuls had done nothing wrong. True, Flaminius’ enemies back in Rome—of whom there were many, not least Fabius Maximus himself42—might grumble that he had acted irresponsibly in delaying his perusal of the letter, and going into battle without valid auspices; but as far as augural law was concerned, the rule was clear: the formal report, and only the formal report, created the augural reality. As long as the Consuls were not formally notified that the Augurs had found them vitio creati, they were fully within their rights in assuming that their auspices were valid; as long as they did not read the letter, they were not formally notified; and it was their decision, and theirs alone, when to read the letter.43 It is worth noting that our sources, all uniformly hostile to Flaminius, are remarkably free of allegations that, on the day of the battle, he or his colleague had ignored any prohibitive auspices from Iuppiter.44 We can be certain, therefore, that when Flaminius asked Iuppiter for auspices at dawn, they were affirmative. The same goes for his colleague, Furius Philus. We can be just as certain that Iuppiter, for reasons of his own, did not attempt to warn the Consuls off from giving battle by sending any negative signs, unasked: thunder “on the right,” for instance, would have made the matter plain enough. But no such sign occurred; and the Consuls, as regards augural law, were in the clear.
What caused an uproar was what Flaminius did next. He flatly refused to follow the Senate’s instructions, accusing his enemies of falsifying the religio (that is, the electoral vitium) discovered by the Augurs, and arguing that their very victory gave proof that his and Furius’ auspices were in order, that they had been elected properly—not vitio. He announced that he would remain in Gaul until the campaign was finished, and in so doing teach the people back home not to let themselves be fooled by relying on birds and similar stuff and nonsense. Furius, an Augur himself,45 at first would not cooperate with his colleague’s defiant attitude, and prepared to lead his own army back to Rome; but soon he realized that this might jeopardize the safety of Flaminius’ forces left behind in Gaul, and stayed while the latter completed his mop-up operations—without, however, engaging actively in them:
Zonar. 8.20: Μετὰ δὲ τὴν μάχην ἀναγνωσθείσης τῆς ἐπιστολῆς ὁ μὲν Φούριος ἑτοίμως ἐπείθετο, ὁ δέ γε Φλαμίνιος ἐπαιρόμενος τῇ νίκῃ τήν τε αἵρεσιν αὐτῶν ἀπεδείκνυ δι’ αὐτῆς ὀρθῶς ἔχουσαν, καὶ διὰ τὸν πρὸς αὐτὸν φθόνον ἐνέκειτο καὶ τοῦ θείου τοὺς δυνατοὺς καταψεύδεσθαι. οὔτ’ οὖν ἀπαναστῆναι πρὶν τὸ πᾶν καταστήσασθαι ἤθελε, καὶ διδάξειν καὶ τοὺς οἴκοι ἔφη μήτ’ ὄρνισι μήτ’ ἄλλῳ δή τινι τοιούτῳ προσέχοντας ἀπατᾶσθαι. καὶ ὁ μὲν κατὰ χώραν μένειν ἤθελε καὶ τὸν συνάρχοντα κατέχειν ἐπειρᾶτο, Φούριος δ’ οὐκ ἐπείθετο. τῶν δὲ μετὰ τοῦ Φλαμινίου μελλόντων καταλειφθήσεσθαι φοβηθέντων μὴ μονωθέντες πάθωσί τι παρὰ τῶν ἐναντίων, καὶ δεηθέντων ἡμέρας τινὰς προσμεῖναι, ἐπείσθη, οὐ μέντοι καὶ ἔργου ἥψατο.
Zonaras’ account is lucid and ungarbled, consistent with what we know of Roman auspical rules and practices related to such situations (note how Furius, although remaining in Gaul, is said to have avoided military action after reading the letter); he evidently followed Dio very closely here. Plutarch in the Marcellus skips the Consuls’ disagreement following the battle, but in the Fabius notes strenuous opposition by Furius.46 Both authors agree, in principle if not in detail, on the subsequent events.
When the Consuls returned to Rome, they received a less-than-enthusiastic welcome. According to Plutarch, the people would not come to meet Flaminius outside the City gates, and came close to refusing him a triumph; after the triumph, they made him a private citizen, by forcing him and his colleague to abdicate their consulship. During the following interregnum, M. Claudius Marcellus was elected Consul; after entering office, he supervised the election of his colleague:
Marc. 4.6: ὡς οὖν ἐπανῆλθε μετὰ πολλῶν λαφύρων, οὐκ ἀπήντησεν ὁ δῆμος, ἀλλ’ ὅτι καλοῦμενος οὐκ εὐθὺς ὑπήκουσεν οὐδ’ ἐπείσθη τοῖς γράμμασιν, ἀλλ’ ἐνύβρισε καὶ κατεφρόνησε, μικροῦ μὲν ἐδέησεν ἀποψηφίσασθαι τὸν θρίαμβον αὐτοῦ, θριαμβεύσαντα δ’ ἰδιώτην ἐποίησεν, ἀναγκάσας ἐξομόσασθαι τὴν ὑπατείαν μετὰ τοῦ συνάρχοντος.
Marc. 6.1:…ὡς δ’ οὖν ἐξωμόσαντο τὴν ἀρχὴν οἱ περὶ τὸν Φλαμίνιον, διὰ τῶν καλουμένων μεσοβασιλέων ὕπατος ἀποδείκνυται Μάρκελλος, καὶ παραλαβὼν τὴν ἀρχὴν ἀποδείκνυσιν αὑτῷ συνάρχοντα Γναῖον Κορνήλιον.
In Zonaras (8.20), the Consuls found themselves attacked in the Senate for not obeying promptly (Furius thus suffering “collateral damage” from the wrath mostly directed at Flaminius). The common people, which is to say, the plebs, however, still favored Flaminius, and—over the Senate’s objections—voted a triumph to him and his colleague, after which both laid down their office:
ὀψὲ δ’ οἴκαδε ἐπανελθόντες ὑπὸ μὲν τῆς γερουσίας αἰτίαν τῆς ἀπειθείας ἔσχον (διὰ γὰρ τὴν πρὸς τὸν Φλαμίνιον ὀργὴν ἠτίμασαν καὶ τὸν Φούριον), τὸ δὲ πλῆθος ἀντιφιλονεικῆσαν ὑπὲρ τοῦ Φλαμινίου ἐψηφίσαντο τὰ νικητόρια. καὶ ἀνάγοντες αὐτὰ ἐξέστησαν τῆς ἀρχῆς.
Other sources add nothing of substance, although Livy leaves no question that, at a minimum, an attempt was made to force Flaminius from office and to deny him a triumph: memori veterum certaminum cum patribus, quae…consul prius de consulatu, qui abrogabatur, dein de triumpho habuerat (21.63.2).
Widely shared is the belief (first expressed by Flaminius himself) that party politics, raw and simple, prompted the Augurs’ response consules vitio factos videri: an attempt to deny Flaminius the opportunity of gaining gloria for himself. Bleicken may serve as a vocal example, laying out a Rasputin-like portrait of Fabius Maximus, “der als erster den Wert der Ausnutzung der Auguralwissenschaft zu politischen Zwecken erkannte”—a sinister éminence grise who directed his eight colleagues in the Augural College like dolls having no will of their own.47 Manipulation, even exploitation, of the augural discipline for political purposes undoubtedly occurred (we will encounter one example later on); but it cannot simply be assumed whenever it is convenient: a modicum of evidence or rational reasoning behind the assumption should not be too much to expect. In Flaminius’ case, as will be seen, the claim has not a shred of evidentiary support, nor can the arguments advanced by its proponents withstand scrutiny.
When speaking of “the Augurs,” it helps, again, for clarity of mind and argument, to consider who they were at the time in question.48 (All too often, a vacuum of identity plagues scholarly encounters with the College, its members being treated as anonymous entities acting in automaton-like unison.) In addition to Furius Philus, Fabius’ fellow Augurs in 223 included such easily led men as Sp. Carvilius Ruga cos. II 228, M. Aemilius Lepidus cos. 232, M. Pomponius Matho cos. 231, and M. Claudius Marcellus cos. I 222 (and soon-to-be winner of the spolia opima).49
But if in fact they followed, meekly and thunderstruck, Fabius’ lead, one would expect the electoral vitium to have been discovered before the Consuls left for Gaul; indeed, Bleicken confidently asserted that this was the case.50 Citing Plutarch, Wild even claims that the evil omens were observed both at the Consuls’ election and at their departure, and consequently envisages a long interval between those observations and the Senate’s letter.51 A look at the Greek will clarify the matter. Φλαμινίου δὲ καὶ Φουρίου τῶν ὑπάτων…ἐκστρατευσάντων… ὤφθη μὲν κτλ., wrote Plutarch (Marc. 4.2). The aorist—ἐκστρατευσάντων—leaves little room for Wild’s and Bleicken’s interpretation; the complete aspect in this context surely implies an action prior to that of the main verb. None of the omens listed (Plutarch’s river of blood in Picenum, and three moons over Ariminum, to which Zonaras adds fire in the sky in Etruria, and a vulture settling in the Forum) could have been observed in Rome at the actual moment of election (in the Campus Martius) or departure (the ceremonies of profectio taking place on the Capitol and when crossing the pomerium). That rules out the existence, or at least its immediate recognition, of a vinculum temporis—the augural rule that an oblative sign pertains to a specific action only if it is observed while that action is in progress, not before or after.52 Lacking the nexus between time and action, the portents reported were not understood to be auspicia oblativa but “mere” prodigia, of concern at first to the pontifices alone, not the Augurs.
It is certainly possible that the vitium tainting the consular elections was discovered independently of these prodigies. But given the close connection between the omens and the Augurs’ ruling implied by all the sources, it will more likely have been in the course of the subsequent pontifical investigation that evidence of an actual auspicium oblativum, indicating a vitium in auspicando on the part of the presiding magistrate at the past consular elections, but not recognized or understood at the time, now came to light, and was submitted to the Augurs for a ruling.53
It passes belief that in 223 the Senate would have allowed the Consuls to depart for war after the augural college had given notice that they were vitio creati, or that Furius the Augur would be complicit in such an act of defiance under those circumstances. Clearly, they were already in Gaul when the portents occurred, and the Augurs did not discover the vitium until then.
Why would Flaminius’ enemies delay their augural move against him until he was in Gaul? It certainly could not aid their purpose; on the contrary. If the objective was to keep him from gaining gloria, it became imperative to keep him from fighting a decisive battle: in other words, he must be recalled before that battle could happen. That, however, would require the most exquisite timing. The prodigia setting everything in motion were observed in Ariminum, Picenum, Etruria, and Rome: they had to be staged with enough time for their report to reach the City, for someone to remember an incident at the consular election that could be a sign of vitium, for the Senate to submit the matter to the Augurs, deliberate on their response, and draft a letter to the Consuls, and for the courier to reach the Consuls’ headquarters near the Po before the battle could be fought. To achieve all that, the man (or men) pulling the strings must have control not only of the Augural College but also of the Senate’s calendar and agenda, and must be able to divine with total accuracy every delay the courier was to encounter on his way to Gaul—every washed-out bridge, impassable road, exhausted horse. And all of that would be in vain, unless he (or they) could also divine the precise day on which the Consuls were to give battle; for if the courier arrived too late (and the Romans won), nothing could deprive Flaminius of his victory and the glory that came with it. Perhaps Attus Navius could have done it; but Fabius Maximus?
These obstacles disappear if we accept that the prodigies of 223, whatever their rational explanation, were genuinely observed (in the sense that they were not staged), and caused genuine religious concern; and that the Augurs arrived at their finding vitio consules factos videri (however gratifying it may have been to Flaminius’ enemies) within the normal parameters of their disciplina. Indeed, they may have chosen to exploit a political opportunity now that it offered: but that opportunity was unforeseen, just as no one could foresee whether the Senate’s letter would reach the Consuls before a major battle was fought. Even so, we would have to be certain that Flaminius’ enemies controlled the College, and we are not. (As a matter simply of logic and methodology, one should not have to point out that the mere fact of Fabius’ augurate and known opposition to Flaminius, other than by way of circular reasoning, proves nothing.) The response affected both Consuls equally: yet one of them was a colleague of the eight Augurs deciding the case. Were five or more of them prepared to sacrifice Furius merely in order to get at Flaminius?
As one who had locked horns with Flaminius before, Fabius Maximus may at least be suspected of willingness to go so far; of course, we have no evidence that he did. As regards his colleagues, it has been suggested that Pomponius, if not an outright supporter of Flaminius, kept Fabius at a political distance.54 Carvilius in his second consulship had refused to support his colleague, Fabius Maximus, in the latter’s attacks on Flaminius, and was to clash with him again in 216; Lepidus is thought to have favored Flaminius’ plebiscite de agro Gallico dividendo.55 Of the rest, nothing is known:56 a thin reed against which to lean so tall an assumption.
Even if one were to assume that such abusive manipulations of the augural discipline took place on this occasion (for which assumption, as we have seen, there is neither evidence nor reason), we should not overlook the fact that they could do but slight damage to Flaminius’ career. His consulship would be cut short, certainly: but there was no humiliation, no loss of dignitas, for a magistrate who abdicated vitio creatus—the fault, after all, was not his but his predecessor’s; and it did not prejudice his chance of future election.57 On the other hand, having been found vitio creatus could potentially offer him unchallengeable protection against politically motivated attacks. If the Senate’s letter arrived in time, and the Consuls both obeyed it (as one would expect), they would lose their bid for gloria: yet no one could accuse them of military failure, incompetence, or cowardice. If the letter came too late, and catastrophe had already struck, Flaminius would be untouchable: he could not be blamed, augurally speaking, for a defeat caused by divine wrath, if he had not known that he lacked valid auspices.58 And if the letter came too late to prevent a Roman victory, nothing could detract from that. Yet if the Consuls’ election, on the accumulated evidence of augural science, was truly flawed, every effort must be made to warn them. If it cost Flaminius his chance at gloria, so much the better; but it might with equal probability ward off disaster. (Unless, again, Fabius correctly divined the outcome of a battle still to be fought.)
The Consuls returned to Rome early in 222, with perhaps two or three months left in their term (they had taken office on 1 May 22359). That they faced an angry reception in the Senate, as Zonaras says, cannot surprise, nor that the brunt of its wrath was directed at Flaminius, the instigator of their disobedience. One might question Plutarch’s claim that the δῆμος would not meet them, but for all of Flaminius’ popularity, the news of his flagrant refusal to come home immediately, despite being vitio creatus, had enjoyed ample time and opportunity to trouble the minds of a population that—unlike some of its leaders—seriously worried about the possibility of divine retribution. We need not assume that no one greeted the Consuls at the gate; we may be certain that there were no official delegations representing Senate and plebs.
All the same, now that the Consuls had returned, one could reasonably expect them to abdicate at once, and thus permit the renewal of the auspices, by way of an interregnum, to commence. They did not. Instead, there arose a dispute over whether they should triumph. The Senate rejected that demand, but in a plebiscite, brought about by a friendly (and unknown) Tribune, the Consuls prevailed.60 Beck recently attempted to deny this, arguing for a senatus consultum authorizing the triumphs, on the grounds that Zonaras alone, but not Plutarch or Livy, contains information in that direction.61 That will not do. While ἐδέησεν (in μικροῦ μὲν ἐδέησεν ἀποψηφίσασθαι τὸν θρίαμβον αὐτοῦ, Marc. 4.6) is impersonal, the logical subject is clearly ὁ δῆμος, continued with θριαμβεύσαντα δ’ ἰδιώτην ἐποίησεν, ἀναγκάσας ἐξομόσασθαι τὴν ὑπατείαν μετὰ τοῦ συνάρχοντος. It is true that the biographer, implausibly, makes the people the source of pressure to abdicate; but Plutarch wished to emphasize the hostile reception of Flaminius’ behavior as a means to lead into his discussion of Roman religious sensibilities in the next chapter. He had no interest here in distinguishing (nor need to do so) between reactions in the Senate and the wider public. What cannot be maintained (with Beck) is that Plutarch says nothing about the plebs being involved in deciding the triumphs; on the contrary, the implication is clear and unambiguous, and thus supports Zonaras’ explicit statement. As Zonaras distinguishes precisely between the Senate’s and the plebs’ reaction, this specific information cannot be dismissed as the compiler’s own contribution: it evidently stood thus in Dio. Livy’s certamina cum patribus, quae tribunus plebis et quae postea consul prius de consulatu qui abrogabatur, dein de triumpho habuerat (21.63.2) does not as such imply a plebiscite granting the triumphs, naturally; but, in recalling all of Flaminius’ previous clashes with the patres to set up and illuminate his decision, in 217, to forgo the customary rituals of assuming office, the historian implies something just as useful: none of those previous clashes had ended with Flaminius’ opponents backing down. That left only the People or the plebs to authorize a triumph. Hence three different sources—one explicitly, two by implication—attest a plebiscite. Nothing supports the notion that the Senate gave in and awarded the Consuls a triumph.
In fact, Flaminius still could count on ample popular support, more so now that he was back in town, able to make his case directly, and aided by a significant element within the voting public: his (and no doubt Furius’) troops had received a generous allocation of the war’s loot (thus Zonaras, confirmed by Plut. Marc. 4.6), and would see no reason to oppose a triumph. As for religio, it did not attach to the battle and the victory—precisely because the Consuls had not read the letter, hence had not known of their flawed election and auspices, until afterwards. Flaminius would not forget to emphasize that Iuppiter, throughout the campaign, had not sent a single oblative sign (at least none that went unheeded) to him or to his colleague: all the warnings had appeared in Italy. Besides, it would be unsound to assume that many ordinary citizens were much concerned about the technicalities of augural law, or, for that matter, knew anything about it. The Consuls had won a great and decisive victory: that they could understand; and victory usually deserved a triumph.
Nor would it be wise to think that senatorial opposition to the triumph proceeded with monolithic unanimity. What goes for ordinary citizens would go for many a senator as well: we should not expect an excessive deal of familiarity with, or interest in, the arcana of the Augurs, except among a handful of experts—chiefly the priests themselves.62 There appears to be no record of the Senate’s ever rejecting, or overruling, the formal responsum of one of the priestly colleges; no doubt most members were happy to defer to those who knew.63 Now, as regards the question of whether the Consuls were vitio creati, the Senate had already endorsed the Augurs’ ruling; we have no grounds to think that the vote on this was narrowly split. The triumph was another matter. Some might maintain that consules vitiosi should not be allowed to celebrate one, but others would find it hard to argue with military victory, the touchstone of a Roman Noble’s sense of achievement. Indeed, it is unlikely that opposition to the triumph could find much support in augural law: in this regard, the outcome of the battle was decisive.64 Although the Consuls were vitio facti, Iuppiter had granted them victory. Since their condition, by itself, posed no obstacle to that (no matter how much it might throw the issue in suspense), it ought not to pose one for a triumph. Nor should we readily assume that all of Flaminius’ enemies were prepared to make Furius suffer for his colleague’s sins; yet it is clear that the dispute over the triumph affected both Consuls equally. Most telling, perhaps, the fact not that a Tribune could be found to pass the enabling legislation, but that none of the other nine saw fit to veto it: a Senate acting in full concert, so one should think, would have been able to find a Tribune to champion its cause.65 We know that the assembly’s vote was close; so, it appears, was the Senate’s.66
Although one could hardly wish for a clearer and more precise statement than what we read in Plutarch and Zonaras, the abdication of 223/2 has met with scholarly resistance—because the Fasti fail to mention it.67 Beck takes the Consuls’ triumphs as evidence against their abdication, but would allow for the “scheduling” of an interregnum to hold the elections for 222, even though the technical requirements for it were not entirely present; he holds that no further sanctions are likely to have been imposed.68 That simply betrays muddled thinking. If the Consuls stayed in office until the end of the year without holding elections, all the technical requirements for an interregnum (no “patrician” magistrates in office) would be given on New Year’s Day. If an interregnum was “scheduled,” it must have been brought about deliberately, by getting the Consuls and all other “patrician” magistrates to abdicate before the end of the year; in which case, the technical conditions were, again, fully present, and the abdication cannot be doubted (besides constituting a further sanction).
Even the augural finding that the Consuls were vitio creati has been questioned: “In such cases,” argued Vaahtera, “a Roman consul, even Flaminius, would have abdicated.”69 In an otherwise sure-footed and perceptive study, such circular reasoning surprises. Never mind how we can know what “even Flaminius” would have done; it is absurd to argue that since he did not abdicate (Vaahtera, too, prefers the silence of the Fasti to the explicit testimony of two sources), no one can ever have demanded that he do so. Once it is understood, as shown earlier, that the Fasti treat abdication in a quite erratic fashion—generally only if it resulted in suffecti (which obviously was not the case in 223), and even then not with consistency—their silence as to 223 loses all contrary force:70 Flaminius’ and Furius’ abdication cannot be challenged on that basis.
Flaminius triumphed on March 10, Furius on the 12th.71 Their abdication and the following interregnum moved the beginning of the consular year from May 1 to March 15. That, too, has been called into question; as it has bearing on the issue at hand—if the change can be shown to have occurred in a different year, the abdication becomes indeed problematic—the matter deserves brief examination.
May 1 can be established as the day of entering office from the Acta Triumphorum between 276/5 and 225/4, during which all Consuls triumphing in magistratu do so between January 18 and April 13; hence the new year cannot have started before May 1.72 The arguments of Brind’Amour against May 1 and in favor of a permanent beginning of the consular year on March 15, from at least the fourth century down to 153 bc, are untenable, being based on the erroneous belief that C. Marius, L. Antonius, and L. Marcius Censorinus were not Consuls on the day of their triumph on January 1 of 104, 41, and 39, respectively, and that the Acta Triumphorum incorrectly term Cn. Scipio Asina (cos. II 254) pro consule on the day of his triumph on March 23.73 (The document clearly identifies the year as an. D., that is, a.u.c. [Varronian] 501, or consular 253/2 BC.)
The change from May 1 could, in theory, have occurred between 233/2, when M’. Pomponius Matho (cos. 233) triumphed on the Ides of March, and 225/4, C. Papirius Maso (cos. 231) and L. Aemilius Papus (cos. 225) each triumphing on March 5; but no interregna are known (or likely) in the decade before 223/2. The change cannot have resulted from the puzzling situation in 220/19, for which two pairs of Consuls are on record, the first of them evidently vitio creati. If they never entered office (still the most probable solution), the start of the year remained unaffected; if they entered office on 1 May 220 and abdicated in the spring of 219, the new year could have started on the Ides of March, but their successors would have been counted as the Consuls of that year, not as suffects for 220. (If they were considered suffects, by definition there could be no change of year.) There was no interregnum (it is safe to say) in 221, 219, or 218; it stands to reason to connect the one in 223/2 with the shift from May 1 to March 15.74 Brennan treats the shift in 223/2 as if it were an attested fact rather than inferred, and concludes: “This would explain both the literary tradition of ‘deprivation of office’ and the fact that nothing of this sort appears in the consular Fasti.”75 The implication appears to be that Flaminius and Furius were forced to abdicate because of a decision—presumably unrelated to their being found vitio creati—to change the beginning of the consular year; but why should that change have been deemed necessary? The change to January 1 in 153 (prompted by events in Spain) likewise went unrecorded in the FC, without being accompanied by a literary tradition alleging “deprivation of office.”76
More recently, Beck argued against 223/2 on the grounds that any change in the beginning of the consular year was a “tiefgreifender Einschnitt” that affected the calendar of festivals, and that “inneraristokratische Statuskämpfe” are unlikely to have caused such a grave measure.77 As regards the calendar, it did not care on what day Consuls took office: religious festivals (insofar as regulated by the calendar) had to be celebrated on their set day, impervious to the comings and goings of magistrates, and in any case none of them fell on the Kalends or the Ides. As for just how wrenching an event a change would have been, the rapid oscillation in the date of entering office—mostly prompted by interregna—during the fifth and fourth centuries78 rather tells against Beck’s claim. What of intra-aristocratic status struggles? Until it can be shown (and no one has, so far) that the vitium affecting the Consuls’ election was deliberately manufactured, rivalries within the ruling class are not at issue here; Beck himself is rightly skeptical of claims to that effect.79 If the Consuls were found vitio creati, they could not themselves produce successors untainted by the same vitium,80 and the thought that a majority of senators would happily watch the rest of the year go by as consules vitiosi continued to manage the res publica without Iuppiter’s approval merely betrays a cavalier indifference to the fundamental role of religion in Roman political life—a role that Polybios (not a believer) recognized and emphasized (6.56.6–12).
Beck proceeds to suggest that the change to March 15 took effect in 217: Livy twice notes that date (21.63.1; 22.1.4), hence intended it as an important and evidently new piece of information for his readers.81 The change, presumably, was prompted by Hannibal’s invasion of Italy and a desire to enable the Consuls to take the field earlier in the year—the same reason, essentially, as lay behind the change to January 1 in 153 bc. But that latter change Livy did report and explain, evidently at some length, as is clear from Periocha 47 (consules anno quingentesimo nonagesimo octavo ab urbe condita magistratum <Kal. Ian.> inire coeperunt; mutandi comitia causa fuit, quod Hispani rebellabant). Nothing of that sort in Book 21 or 22. Beck argues that since Periocha 20 contains no mention of a change, Livy presumably did not report in that book any change that occurred by 219 bc; in consequence, if he omitted such a report in the second decade, his silence in Books 21 and 22 need not mean that no such change occurred in the years 218 or 217. This line of reasoning is hard to follow. While the Periochae tell us what could be found in Livy’s books, they cannot tell us what he did not write about: anything the excerptor deemed insignificant would be omitted. And it took Hannibal for the Romans to realize that May 1 was a little late in the year to launch a campaign, yet Livy could not bring himself to point that out?
Livy’s first mention of March 15 in 217 refers to Flaminius’ edict, as Consul designate, ordering the army to assemble at Ariminum on that day (edictum et litteras…misit ut is exercitus idibus Martiis Arimini adesset in castris): Livy could not possibly have omitted naming the day in question, even if it had been the day of entering office for centuries. Hence no conclusions can be drawn as to whether it marked a change or not. For the second instance, Livy’s per idem tempus (as Hannibal’s setting out from his winter quarters) Cn. Servilius consul Romae idibus Martiis magistratum iniit simply contrasts Flaminius taking office at Ariminum that same day (21.63.13)—a decision laboriously told and criticized at great length (21.63.2–12), without the slightest hint that it went hand in hand with a change in the customary date. Worse, Livy notes Consuls taking office on the Ides of March on thirteen other occasions, ranging from 215 to 168: surely none of those instances constituted new and important information for his readers. In short, the interregnum of 223 remains the only plausible event to cause the shift from May 1 to March 15.82
The new Consuls—of 222—cannot have entered office (hence, been elected) later than March 31; otherwise, the new year would have started on April 1, or even the 13th.83 Since they cannot have been elected until the first day of the second Interrex, the interregnum commenced no later than March 26, and no earlier than March 12 (if Furius stepped down immediately after completing his triumph); Flaminius and Furius, therefore, abdicated between March 12 and 26.84 Plutarch implies that Flaminius, at least, did not go willingly.
It is difficult to see, indeed, how he could have gone willingly.85 When, back in Gaul, Flaminius first chose to disobey the Senate’s instructions, he did so not from wanton impudence (whatever his inimici might say in Rome), but with rational and coherent argument. The augural response vitio consules factos videri was false, contrived to derail his opportunity for gloria: his victory was proof that no vitium attached to his (and Furius’) election. That line of reasoning may well have convinced the plebs;86 it probably made little impression on the College of Augurs. An augural vitium at the election tainted all subsequent acts of the magistrate so chosen, rendering them augurally—not legally (the distinction is crucial)—flawed.87 Elected under vitiated auspices, he possessed no valid auspices himself: in consequence, his means of communicating with Iuppiter—his impetrative auspices—were defective, and what he, unaware of his condition, took to be an affirmative response that gave permission to proceed with the intended act was, in reality, devoid of meaning.88 Flaminius could insist for all he wanted that on the day of the battle his auspices had been affirmative; the Augurs would counter that, being vitio creatus, he had no auspices at all, and when the Chickens fed lustily that morning, it simply meant that they were hungry. What had saved him and Furius and their armies was the fact that neither was aware of that impediment, and that Iuppiter, for reasons known to him alone, had not warned them off with oblative signs. Had Flaminius engaged in battle after reading the letter from Rome, or had he received—and ignored—a prohibitive sign that Iuppiter sent on his own, he would have committed, knowingly and willfully, a flagrant violation of the auspices, and disaster would have been inevitable. Yet precisely because he and Furius had not opened the letter until after the battle, and because Iuppiter had chosen not to alert them as to their lack of valid auspices by other means, the Consuls had not acted in a culpable manner; and it is far from certain that, under these circumstances, Iuppiter would feel compelled to cause defeat, in order to get their attention. He was perfectly capable of doing so, of course; but in this instance he chose not to. Far from establishing that the Consuls’ auspices were valid after all, their victory merely showed Iuppiter’s forbearance: although he had not sanctioned the battle on that day, he knew the Consuls acted in accordance with the letter of the law.89 No doubt the Augurs stood by their ruling, as did the Senate—and on this issue, unlike the matter of the triumph, Flaminius could not expect significant support. Consuls vitio facti must step down.
No doubt, either, that Flaminius understood all this: his and his colleague’s astute move to avoid a vitium of their own—and, hence, personal culpability—by not reading the letter before the battle is proof enough. The claim that his victory showed the Augurs wrong about the Consuls’ being vitio creati was logically incompatible with the rule requiring formal notification. Had he read the letter right away and then, in full and knowing violation of the auspices, engaged in battle, he would have had a valid point; indeed, the Augurs would need to resort to some creative interpretation to explain why the battle was not lost. One is tempted to wonder if, in fact, that is what happened; the story of the letter not opened until afterwards would then have been created by way of justifying a victory that was augurally incomprehensible. The problem here is Furius. If he already was an Augur in 223, it borders on the unthinkable that he would go along with such a flagrant violation; if he was not, it is unthinkable that the College later on should have co-opted him. (Unless that was his reward—and price—for cooperating in the matter of Flaminius’ abdication.)
But, as things stood, Flaminius could not expect his argument from victory to find acceptance with many versed in augural law, or to persuade the Senate now to overturn the Augurs’ ruling and rescind its initial vote. His intended audience, surely, lay elsewhere.
For Flaminius had not merely disagreed, publicly, with the collegium augurum, and defied the Senate. With a splendid victory to back him up in the eyes of those who understood (and cared) little about the fine points of augural law, but whose votes in the assembly would ultimately decide his fate, he chose to challenge the role of auspices in government as such: he would “teach the people back home not to let themselves be fooled by relying on birds and similar stuff and nonsense.” Zonaras’ statement (8.20) deserves full credit.90 To dismiss it simply as “hostile tradition” will not do; if we can believe that Roman politicians were ready and willing to manipulate the auspices for political purposes (which those who would dismiss the sources’ portrait of Flaminius have no trouble believing), we must also believe that some at least—in particular those who felt themselves the victims of such manipulation—were ready and willing to question the practice of auspices in principle: for cynical manipulation presupposes the same personal disbelief in the reality of auspices as does outright denial. We may note that Flaminius did not, it seems, object to the routine observance of auspical ritual; no such failure on his part is alleged in 223, and in 217, although he omitted the essential auspication for entering office in Rome, he probably was willing to go through the ceremonies of “taking auspices” once he had assumed command of his army, and as long as the results did not interfere with his military judgment.91 What he objected to was the doctrine that such ritual should be accorded greater force than a decision of the People in assembly, or of a Consul in the field.
We do not know if Flaminius continued to issue such statements after his return to Rome. It hardly matters; they would have been reported by those who had heard them in Gaul, and he was not the kind of man who would deny them. Besides, he had refused to follow the Senate’s instructions to come home at once and abdicate: those comments contained his justification; he could gain nothing from disavowing them now. Having prevailed against his enemies in the Senate in the plebiscite about his triumph, why would he suddenly throw away the golden opportunity to prevail against the Augurs, too? The triumph did not—could not—settle that dispute: with or without a triumph, if Flaminius stepped down as Consul now, he would be admitting, in so doing, that the Augurs had been right, and that he was vitio creatus. That conclusion he could not escape, whatever rationale for his abdication he might try to offer. Instead of teaching the folks back home not to be tricked by augural birds and similar superstition, he would be acknowledging—tacitly perhaps, but still acknowledging—the validity of precisely the practice he had openly dismissed as fraudulent, and defied. The public loss of face, the damage to his dignitas, would be severe; the gloating of his enemies, intolerable. (Had he obeyed immediately, of course, he would not have to worry about that: no shame came to those who complied with the Senate’s orders, especially when religio was involved.) At least twice before—probably thrice—in recent memory had Consuls attempted to break the cage of auspices constraining them on the field of battle (well—at sea); but two had suffered catastrophic failure, and consequently had not found themselves in a position from which to challenge augural law, while the third stepped back from the brink.92 Flaminius had returned in victory, and popular to boot; his savvy and determination in the warfare of politics stand not in doubt: he would not waste this opportunity to press his case. If he could stay in office through the last day of his term, without the sky come crashing down, he would have taught his fellow citizens a valuable lesson, and the business of auspices would never be the same again.
That last consideration, naturally, would concern those in the Senate most who insisted on the necessity of auspices (whether from personal belief or political expediency). To watch Flaminius triumph might be disagreeable, but it posed little danger to the State; to let an entire year go by with Consuls that were vitio creati, without auspices, was intolerable. And things might yet get worse. Come May the 1st, an interregnum would occur at last, and the auspices could be renewed from scratch: but only if Flaminius agreed not to hold elections for next year’s Consuls.93 We do not know what were his plans in that respect; but we can easily envisage the sense of horror that would fill many a mind when pondering the possibilities. Should Flaminius insist on seeing to the election of his successors, the new Consuls taking office on May 1 would, of course, be deemed vitio creati like himself, since a Consul that lacked auspices could not validly create another.94 With luck, the Consuls of the new year could be compelled to abdicate immediately, so as to make room for an interregnum; but what if Flaminius, with his popular appeal, were to secure election of someone who shared his views on auspices? Another year like this, and the damage might be irreversible.
Quite possibly, Flaminius would have been content with staying in office through the end of his term. Yet he could hardly be content with less; having made the auspices an issue, his dignitas was now at stake. More even was at stake from the viewpoint of many in the traditional ruling class. With Flaminius resisting abdication, the Senate now faced the problem of how to bring about an interregnum so as to allow the renovation de integro of the auspices.
An interregnum occurs when no “patrician” magistrate—Dictator, Consul, Praetor, Master of the Horse, Censor, Curule Aedile, Quaestor—is in office. It happens naturally when all these magistrates have completed their term, and no new Consuls have been elected; and it can be brought about deliberately, through premature abdication of all “patrician” magistrates before the election of new Consuls. (Tribunes and Aediles of the Plebs remain unaffected by this process.)
There is ample evidence, in the received tradition, for the deliberate exercise of an interregnum. We can count fifteen instances, recorded or inferred, ranging from 480 V to 152 bc, of Consuls (or Consular Tribunes) prematurely laying down their office.95 Ten of these abdications are attested, one seems probable (#10 in 321 V); the remaining four, uncertain (#2 in 451 V), unclear (#12 in 220 bc), or unlikely (#5 in 399 V, #7 in 393 V). In eight instances, the resulting interregnum is on record; in three more, probable (#4 in 402 V, #14 in 154 bc, and #15 in 152). The Fasti are extant for all but three of the attested abdications (#3 in 444 V, #9 in 341 V, and #10 in 321 V), yet mention only one (#13 in 162 bc). How many of them are authentic, no way to tell, except the final five (##11–15 in 223, 220, 162, 154, and 152 bc); but at least three of the remainder (#1 in 480 V, #6 in 397 V, and #8 in 392 V) make no particular point, constitutional, political, or otherwise, and may be considered unsuspect. Conversely, the abdication and interregnum of 444 V (#3) are undoubtedly fictitious. All the same, we must allow for the possibility—however remote—that no precedent of Consuls abdicating to initiate an interregnum was already known in 223 bc.
In the earliest example (480 V), the abdication proceeds from the Consul’s own initiative; in all the others, it is prompted by a senatus consultum. Unpleasant though the decision might be, other than in the case of Flaminius in 223 (#11), there are no reports of resistance to the Senate’s wishes—except once (#4 in 402 V). The solution found on that occasion may help illuminate the naming of a Dictator interregni causa.
Shaken by a defeat in the war against Veii in 402 V, the Senate voted to hold elections for new Military Tribunes immediately and have them enter office on October 1, rather than await the regular time for elections.96 Four of the six Tribunes were willing to comply and abdicate, but L. Verginius and M’. Sergius—the ones bearing the principal responsibility for the setback at Veii—obstinately refused to step down before December 13, the end of their term.97 Soon the Tribunes of the Plebs threatened them with jail, at which moment another of the Military Tribunes, C. Servilius Ahala, came forward both to uphold the auctoritas of the Senate and forestall such a worrisome display of plebeian power. He announced that, unless his two recalcitrant colleagues bowed to the Senate’s vote, he would name a Dictator who would compel them to lay down their magistracy.98 The Senate heartily approved, happy in the realization that thus had been discovered a “greater” force, a force great enough to keep even the chief magistrates in check, without having recourse to the detested power of the plebeian Tribunes.99 Sergius and Verginius caved in, elections were held, the Military Tribunes abdicated (all of them), and their successors entered office on October 1.
Thus goes the story. It is part of the Great Veian War lore, in particular the tribulations of Sergius and Verginius, told with a heavy dose of second- and first-century political anachronism. We need not—indeed, should not—believe all of its detail; it stretches credulity that, at this early date, mere reasons of military expediency should have forced the premature abdication of all magistrates and, consequently, a change in the start of the official year. As Ogilvie notes, Livy “offers two explanations for the supersession of the military tribunes, culpa and infelicitas.” Now, misbehavior, culpa, would be rooted in the persons of the commanders responsible for the defeat, and only those: in other words, culpa might lead to Sergius and Verginius being removed from office, but there is no parallel for such personal failure prompting the abdication of an entire college. Ill luck, however, was another matter: the gods might—indeed, very likely did—have a hand in this, and who could say for certain that the taint was limited to the two Tribunes directly involved in the defeat? That all six were forced to abdicate ought to make it evident that infelicitas was indeed the reason—or, more precisely, the manifestation of a fundamental flaw: surely, the Tribunes had been vitio creati. If so, a renovatio auspiciorum would be necessary; from which it follows that the Military Tribunes cannot have presided over the election of their successors: instead, they abdicated, and an interregnum ensued. When sixty years later, in 341, the Senate out of military considerations instructed the Consuls to abdicate early, religio incessit ab eis quorum imminutum imperium esset comitia haberi: hence, an interregnum (Livy 8.3.4).100
If such an “augural” version of the story did in fact exist (whether known to Livy, one cannot say), it evidently was not reflected in the source that Livy followed here. That source was not concerned with the tale’s augural implications: it either failed to understand them, if indeed it imagined tribuni vitiosi creating their own successors, or deliberately crafted a version that omitted all reference to auspices and related matters, and presented the conflict in purely “political” terms. Of course, the source could have done so ex nihilo, without an “augural” version to begin with; in which case we should not hesitate to deem the Tribunes’ abdication in 402 fictional. (Not that the “augural” version, were it extant, would prove otherwise.)
The abdication’s historicity, however, is of little consequence to this investigation: if the story was invented, its purpose renders it just as illuminating. Without reference—deliberately so, it appears—to augural law, Livy’s source here aimed at making a specific constitutional point that matters to us: a Dictator had the power to force a Consular Tribune—hence, by implication, a Consul—from office.
Mommsen did not think so. The very notion was incompatible with his vision of Roman popular sovereignty: as the People alone could bestow a magistracy, so the People alone could take it away—and even that remained a mere concession to constitutional theory, until the last century of the Republic. A magistrate with imperium—“das unbedingte Befehlsrecht,” in Mommsen’s inimitable definition—possessed sweeping powers over lower magistrates, including the right of forbidding them to carry out any of their duties and functions.101 Yet while maior potestas enabled the Consul to rescind or prohibit a lower magistrate’s acts, it did not, sensu strictu, allow him to directly order the lower magistrate to perform a specific action. All magistrates derived their powers from the People, and were responsible to them alone, not to magistrates of higher rank; Praetors, Aediles, even Quaestors (to some extent) carried out the functions of their office independently and as they saw fit, not under instructions from above. The higher magistrate did not (and could not) assume responsibility for the action of a lower one, even when performed at his behest: it was the lower magistrate who remained accountable for carrying it out, as part of his powers and duties of office. Conversely, the lower magistrate could not be held responsible for omitting an action forbidden him by maior potestas, any more than anyone could be held responsible for failing to carry out an action vetoed by his colleague: accountability in such cases rested with the magistrate issuing the prohibition. We need not imagine that in everyday affairs at home Praetors and Aediles would stand on ceremony and refuse to comply when told by the Consul to do this or that; nor should we imagine that the Consul would have much occasion to tell them so. Yet even abroad, militiae, the Praetor usually commanded his own army in his own right and—quite unlike, for instance, a legatus—was not subject to direct orders. In case of disagreement about what to do in a particular situation, the Consul’s maior potestas naturally prevailed, and the Praetor must defer to the Consul’s maius imperium when engaged in joint military operations;102 but any attempt to make the lower magistrate do something against his will had to be couched in terms of forbidding him to do the thing he wanted to.103
Thus the Consul could forbid the Praetor (and lower magistrates) to act; he could not order him to abdicate. Did the same apply to the Dictator?
Aside from the question of popular sovereignty, Mommsen’s answer was also consistent with his view of the Dictator as a collega maior of the Consuls: just as the Consul could not order the Praetor—his collega minor—to abdicate, so the Dictator could not force a Consul from office. That view, however, now seems mistaken. If indeed the Dictator’s imperium was considered valentius in the sense that no other magistrate could exist, as magistrate, in his presence, it could presumably be argued that the Dictator had the power to order a Consul to formally abdicate his office: the Consul would not be in a position to refuse the order, suspended and without constitutional standing while face to face with the former.104
That an argument in favor of the Dictator’s ability to remove a Consul from office was put forward at some point follows with some certainty from the story Livy tells of the Consular Tribunes under the year 402 (presupposing the Dictator’s ability to force abdication), and an even more famous one. In 458 V, Cincinnatus the Dictator, having rescued the army of the Consul L. Minucius at the Algidus and preparing to return to Rome (and his plow), orders the hapless Consul to resign, and remain with the army as a mere Legate: “Et tu, L. Minuci, donec consularem animum incipias habere, legatus his legionibus praeeris.” ita se Minucius abdicat consulatu iussusque ad exercitum manet.105
It is difficult to see how those two tales should have come into existence if no one ever raised the question, and answered it accordingly. Dismissal by invoking “antiquarian speculation”—that convenient tool enabling us to set aside what evidence we have, and substitute our own imagination—would be hazardous: when Roman annalists during the second and first centuries crafted the history of the City, the dictatorship had already receded from the living constitution, and they had little incentive to create a precedent in the distant past for dealing with a situation that had never occurred and, even theoretically, could no longer seriously be expected to occur. We ought to assume, therefore, that the tales reflect an actual concern, prompted by an actual situation, and that they were formed at a time when that situation could still be expected to recur—at a time when a Consul might still feel strong enough to resist a senatus consultum ordering him to abdicate, and when appointing a Dictator could still be perceived as a feasible way of dealing with incompetent or recalcitrant officials, or outright sedition. Not probably in 458 and 402; but also not after the first half of the second century. The Consuls of 162 abdicated without further ado, and no resistance is known in connection with the abdications in 154 and 152, or with that of a Praetor (who had every reason to hang on to the immunity and protection his magistracy extended to him) in 63 bc; in 133, 121, and 100, the Senate apparently gave no serious thought to having a Dictator confront the political upheavals of those years. Livy’s narrative being extant from 218 to 167, the situation should best be sought in the seventy-four-year gap between 292 and 218, and surely more towards the end than the beginning of that period: for the early annalists, such a crisis within comparatively recent memory would make the creation of a distant precedent seem more worth their while than an event that had held its place in constitutional tradition already for several generations. Certainly L. Minucius’ demotion to legatus cannot have occurred until two or three centuries after his consulship, when legati had become standard fixtures in Roman armies. We need not assume that this “actual situation” in the (late) third century did precisely parallel either of the tales in Livy: a Dictator need not in the end have been appointed (in the “precedent” of 402, the mere threat was enough to secure the desired effect), or he may have compelled the Consul’s abdication by means other than a direct order.
In connection with Flaminius’ second consulship, in 217, Livy (21.63.2) cryptically recalls his struggle with the Senate prius de consulatu qui abrogabatur, dein de triumpho. He had told the story, evidently, in Book 20, and unfortunately saw no need to repeat it here: all we can tell from it is that an attempt was made to force Flaminius from his consulship—which is clear enough, already, from Plutarch and Zonaras. What form it took, that is the question. Conceivably, a Tribune could have tried, and failed, to pass legislation that would remove the Consul—or both of them?—from office.106 Now Livy’s prius…dein places the fight over the consulship before that over the triumph; yet the imperfect abrogabatur carries no implication that the first was settled before the second broke out. The imperfect is best taken as conative, covering the entire attempt to remove Flaminius from office, from the initial finding that he was vitio creatus and the corresponding demand that he resign—which indeed falls well before the struggle over the triumph—to the dispute’s eventual resolution. The conative use, though, need not imply failure:107 Livy uses the same phrase on the lex Oppia, quae abrogabatur in 195 (34.1.7). Nor need abrogare, in Livy, imply a legislative procedure. In recalling the forced abdication of the Consular Tribunes of 402, he has two of them comment, quippe et collegis abrogatum imperium—but, of course, there was no vote of the comitia, no abrogatio imperii in the technical sense.
Short of comitial abrogatio, no power on earth could legally force a Roman Consul from office before his term; except, probably, a Dictator. We have discussed the constitutional situation in this respect above, in particular the episodes Livy told under the years 458 (3.29.2–3) and 402 (5.9.1–8), which strongly suggest that at some point—not necessarily in the fifth century—the question did come up, and was answered in the affirmative by at least one school of thought. The crisis unfolding in 223 bc would have offered an obvious opportunity to entertain such considerations: a Dictator, under this view, could force Flaminius to abdicate. Not everyone would necessarily have agreed, or thought such a course of action advisable.
But, without question, the Dictator could suspend the Consuls, one or both, from office, for the remainder of the year; and thus prevent the travesty of having new Consuls elected by a predecessor who was vitio creatus and lacked auspices. Hence a Dictator, appointed now, would ensure at least that an interregnum could commence on the Kalends of May, so that the auspices could be renewed, untainted. A Dictator named for this purpose would be termed, naturally, interregni (sc. ineundi) causa, “for reason of an interregnum (to be entered).”
It is here, in the spring of 222, that we should seek the first dictatorship of Fabius Maximus. It is the only credibly recorded instance in five hundred years of republican history of a situation that could have called for the appointment of a Dictator to bring about an interregnum. Somehow in between preparing the draft of the Fasti (on stacks and stacks of waxen tablets) and executing them in marble, the designation interregni caussa slipped from the year of Fabius’ first dictatorship to that of his second—and to make confusion worse, the first dictatorship was omitted altogether under its proper year, even though the second remained duly identified as such.108
The procedure would require the cooperation of Flaminius’ colleague, since only a Consul could name the Dictator.109 (We need not canvass the possibility that the Senate tried to persuade Flaminius to do it.) Although Furius had stayed with Flaminius in Gaul after the letter was read, he made it clear that he was doing so under duress, entreated by his colleague’s own troops, and he pointedly abstained from all military activity. Still, he had not, it seems, escaped opprobrium altogether (Zonar. 8.20), and surely had not opposed the plebiscite authorizing his triumph. But through all of this he had been careful not to endorse Flaminius’ aggressive disdain of the auspices; indeed, he would have been well advised to close ranks with the other members of the collegium on the question of abdicatio. With the triumph behind him, he was free now to assume the role of champion of augural law and senatorial auctoritas. Of course, he could not abdicate until Flaminius did so as well: the res publica would be ill served by handing the wild man sole control of it.
We may conclude, then, that soon after his triumph on March 12, 222, Furius named Fabius dictator interregni causa. By March 26 at the latest, both Consuls had laid down their office, and the interregnum took its course.110 Did the Dictator command Flaminius outright to abdicate, or forbid him henceforth to act as Consul?
An unstated yet fundamental principle of the Roman constitution held that nothing should be taken to its theoretical limit. This was true of political opportunity, personal enmities, and—in particular—the official powers of a magistrate. The res publica was based on restraint, both mutual and self-imposed, on the part of those who managed it; consensus (concordia), however slow and arduous to forge, was preferred at all times over blunt coercion. Mommsen had seen this, and Badian has forcefully reminded us of it:111 we forget it at our peril.
Barring the remote possibility that the incident reported under 402 is indeed authentic, Rome had never faced a situation such as this. “As long as an act of a certain kind had not been attempted, mos maiorum gave no guidance on what to do about it, except by inferences that could be disputed.”112 That certainly was true of the argument that a Dictator had the power to remove a Consul from office; not everyone might agree. (No one knew yet, probably, that Cincinnatus had done so with L. Minucius long, long ago.)113 Nor can we be entirely certain that the fifth- and fourth-century precedents of Consuls abdicating vitio creati were already known: without them, the demand now being made on Flaminius and Furius would multiply in magnitude. Yet even if the principle were universally admitted, its practical application would constitute just the sort of pushing official powers to their logical limit (“die letzte Consequenz,” as Mommsen put it) that was discouraged and, if at all possible, avoided. Flaminius had enemies in plenty, and he was a New Man, subject to all the disdain the Nobles could muster; yet he had achieved a consulship, and his son would be a nobilis: like it or not, he had arrived. The public humiliation of being peremptorily dismissed, by the Dictator, from a magistracy the Roman People had bestowed on him was something few of them could watch with equanimity. Nor was it free of grave political risk: what if Flaminius, invoking the lack of precedent and clear constitutional guidance, were to challenge the Dictator’s power, and refuse the order to step down? The Dictator then must resort to physical force—not against a private citizen such as the uppity Sp. Maelius, but against a Consul of the Roman People: what precedent was there for that? And if Flaminius, backed against the wall with no way out, chose to resist with force? The plebiscite about the triumph, however close the vote, demonstrated that he still enjoyed solid popular support, and to attack his dignitas might cause a public backlash:114 if force came into play, there was no telling where it would end—and how.
Perhaps Fabius found a different way. A well-known story tells how a sorex, a shrew-mouse, squeaked just as a Dictator named his Magister Equitum, and thus caused both to abdicate.115 Now the appointment of a Master of the Horse, like that of the Dictator himself, had to be made auspicato, in accordance with proper augural procedure; but as argued earlier, it is doubtful that this entailed a separate auspication: the Dictator’s initial request for auspices comprised the permission to name a Magister Equitum, and affirmation of the latter’s auspices before he named him.116 Hence the rodent’s intervention must have occurred not when the Dictator asked Iuppiter to confirm the validity of his auspices, but precisely at the moment he announced his choice of Magister Equitum; a vitium at the initial auspices would have prevented him from naming one in the first place.117 Differently put, the sorex constitutes an oblative auspicium, not an impetrative one.
The oblative sign rendered null and void the impetrative auspices previously obtained for the action at hand, and thus could be seen as conveying Iuppiter’s disapproval of the choice. Yet absent a separate auspication for permission to name a Magister Equitum, the impetrative auspices annulled of necessity were those of the Dictator himself: hence both must abdicate.118 One has difficulty imagining, though, that Iuppiter, having granted the Dictator auspices in the first place, would then allow him to make a bad choice for Master of the Horse; if that happened, it must be because of a flaw in the Dictator’s own appointment. The augural explanation of the sign (assuming the College was called upon to interpret it119), no doubt, was that he was vitio factus, and his deputy as well.
The incident is reported without date or context. What makes it interesting—not to say, intriguing—is the name of the Magister Equitum: Gaius Flaminius.
Even more intriguing, though problematic, the name of the Dictator. According to Valerius Maximus (1.1.5), it was Fabius Maximus; but Plutarch (Marc. 5.6) has Μινίκιος, which is to say, Minucius. Which should be believe?
The biographer’s notice is part of a long digression on the paramount importance of proper religious observance (μαντειῶν δὲ καὶ πατρίων ὑπεροψία) in Roman public life (Marc. 4.7). It commences immediately after the Consuls’ abdication (4.6), and continues all through chapter 5; Plutarch does not return to the actual story until 6.1 (interregnum and Marcellus’ election). All of the intervening material serves to illustrate the point made in 4.7. First (5.1–4) comes the famous case of Tiberius Gracchus in 163 and 162, told at length (and with considerable confusion on the augural issue involved): as it concerned the abdication of both Consuls vitio creati, and without any complaint on their part, it held obvious relevance to the situation in 223/2.120 (That observation alone should suffice to dispel the notion that Plutarch misunderstood what happened in 223, and erred in thinking that the Consuls abdicated.) Next (5.5) come two flamines—Cornelius Cethegus, having improperly handled the victim’s entrails, and Quintus Sulpicius, whose apex fell off his head during a sacrifice—that were forced to abdicate because of the ritual errors committed in the exercise of their duties. Plutarch notes that these incidents, unlike that of Gracchus, occurred at the same time as the trouble with Flaminius in 223/2 (ἀλλὰ ταῦτα μὲν ὕστερον ἐπράχθη· περὶ δὲ τοὺς αὐτοὺς ἐκείνους χρόνους καὶ δύο ἱερεῖς ἐπιφανέστατοι τὰς ἱερωσύνας ἀφῃρέθησαν…). Then (5.6), the sorex: Μινικίου δὲ δικτάτορος ἵππαρχον ἀποδείξαντος Γάϊον Φλαμίνιον, ἐπεὶ τρισμὸς ἠκούσθη μυὸς ὃν σόρικα καλοῦσιν, ἀποψηφισάμενοι τούτους, αὖθις ἑτέρους κατέστησαν. The biographer concludes (5.7) with the remark that such Roman precision even in the smallest matters did not lead to superstition (δεισιδαιμονία), since it reflected the unaltered, and unalterable, ancestral custom.
This runs exactly parallel to what we find in Valerius Maximus: first, the case of Ti. Gracchus (1.1.3); then three flamines—P. Cloelius Siculus, M. Cornelius Cethegus, and C. Claudius—forced to resign their priesthoods propter exta parum curiose admota deorum immortalium aris (1.1.4); finally, Q. Sulpicio inter sacrificandum e capite apex prolapsus idem sacerdotium abstulit (1.1.5). Then, in the same paragraph, occentusque soricis auditus Fabio Maximo dictaturam, C. Flaminio magisterium equitum deponendi causam praebuit (“the squeak of a shrew-mouse that was heard provided the reason for Fabius Maximus to resign his dictatorship, and for C. Flaminius to resign his mastership of the horse”). If it were not for Plutarch’s extra detail, especially in the Gracchus segment, one would not hesitate to conclude that he lifted the chapter directly from the Roman compiler of memorabilia, whose work he knew—in fact, he cites it later in this same Life (Marc. 30.5).121 Clearly, though, the biographer culled all his examples from the same source, as did Valerius Maximus; and all six incidents reported by Valerius were already grouped together in that common source: Plutarch did not, just by coincidence, pick from a larger pool the very same examples, in the same order, as did Valerius.122
To what he took from the common source, Plutarch added detail regarding the vitium of Gracchus that he found elsewhere. Nothing here will come as a surprise to those familiar with Plutarch’s method of work. His account is crafted from multiple sources, and highly selective in the use of the material he had available. Which brings us back to the question, oft debated: What was the name of the Dictator appointing Flaminius as Magister Equitum—Fabius (Valerius Maximus) or Minucius (Plutarch)?
One thing is certain from their use of the common source: Plutarch and Valerius refer to one and the same incident, and Flaminius did not fall victim to the same vitium twice in a row. As for which name, Minucius (M. Minucius Rufus, cos. 221; mag. eq. 217) has had its defenders, chiefly on the grounds that Μαξίμου is unlikely to be corrupted into Μινικίου; that for Fabius to name an old enemy such as Flaminius as his deputy was inconceivable; and that Minucius is on record as having set up an altar to Hercules while Dictator: Hercolei sacrom M. Minuci. C. f. dictator vovit (CIL 12.2.607 = ILS 11).123 Against the latter point (and, by implication, in favor of Fabius), Badian supplied the decisive argument long ago.124 The vitium occurred at the precise moment (δικτάτορος ἵππαρχον ἀποδείξαντος, Plut. Marc. 5.6) when the Dictator in question had just named his Magister Equitum, on the day he himself had entered office; the abdication cannot have been much delayed, and it strains the imagination to detect what sort of vow to Hercules (!) a dictator comitiorum habendorum causa (as the supporters of “Minucius” would have it) could have made, and seen fulfilled—for if his prayer were not granted, he would not have erected the altar—in so short a time. No special pleading that the vitium must have been manufactured by Fabius Maximus and his fellow Augurs (that tired red herring, naturally, cannot be missing from the “evidence” adduced), and that therefore “it would have been some little time” before the abdication could have been effected—enough to allow Minucius to make his vow—can help the case.125 Nor will it do to argue that Minucius made his vow when campaigning against the Istri as Consul in 221, and only fulfilled it as Dictator in 220 or 219; dictator vovit is unambiguous.126 The wording might, however, suggest that he offered his vow while Dictator, but did not fulfill it until after he stepped down: vovit stands out among republican dedicatory inscriptions, which usually combine the commander’s title with cepit or dedit.127 That he should have made a vow to Hercules, of all gods, as Dictator comitiorum habendorum causa to commence his tenure calls for a better explanation than the mere assertion that it could have happened, let alone speculation—entirely without support in the evidence of the sources—about political and augural machinations that could accommodate a dictatorship for Minucius between 221 and 219.128
The altar surely belongs to 217 bc, when Minucius, his imperium having been made equal to that of the Dictator, “proceeded to interpret” his elevation “as having equated the titles together with the powers.”129 A vow to Hercules at that point would make eminently good sense.130 Corruption of Μαξίμου to Μινικίου is improbable, it is true; but as Càssola points out, the transformation of “M. Minucius” to “Fabius Maximus” (the latter name is spelled out in full in Valerius Maximus) is no less improbable.131 There is no reason, though, to think that anything is wrong with Plutarch’s text. Relying heavily on memory, the biographer frequently puts down the wrong name when noting incidental detail such as here.132 He makes no mention, in the Fabius, of the Cunctator’s first dictatorship, nor of anything that fell into the fifteen years between his first consulate in 233 (2.1) and his finest hour in 217 (2.2); but he gives ample attention to Minucius (4.1; 5–13)—whose praenomen, it appears, he misremembered at the first occasion.133 Those who would prefer a name in Plutarch over one in a Latin author walk treacherous ground. The Dictator’s name was, in the common source as in Valerius, Fabius Maximus.
That leaves the politically odd combination of Fabius and Flaminius. Why would Fabius Maximus choose a man he had opposed before to be now his deputy? The hypothesis developed here provides an answer: if we are right about the occasion of Fabius’ first dictatorship, Flaminius was the obvious choice—indeed, the only one. It cleared the way for overcoming Flaminius’ resistance and letting the interregnum take its course.134
Whatever stand contemporaries might take on the suggestion that a Dictator could force a Consul to resign, there could be no doubt as regards the Magister Equitum. Not only did the Dictator have the power to order him to abdicate, he was—by mos, at least—required to give that order before he himself stepped down.135 The all-important difference lay in that no shame, no humiliation, attached to such an abdication: it was the normal manner in which those two offices terminated. If Fabius named Flaminius his Magister Equitum, then commanded him to abdicate while preparing to do the same himself, Flaminius’ dignitas would remain untarnished. The same was true of the Consul who resigned his office in order to become Magister Equitum. Nor would Flaminius be acknowledging that he was vitio creatus: he would step down not because it was demanded thus of him, not because he was forced to, but because he answered the call of the res publica. It was an offer he could not refuse.
Resign as Consul, though, he must, before assuming office as Magister Equitum: the deal would of necessity require that. Although the matter has been doubted, we have it on good authority that combining both those offices was contrary to custom, unlike a man being Consul and Dictator all at once, and not a single unequivocal case of cumulation prior to 46 bc is attested in the record.136
Thus in 223 bc, in making Flaminius his deputy, Fabius Maximus solved the problem of how to force him to resign his consulship; and once Flaminius was his deputy, Fabius could order him outright to resign that post, and thereby clear the way for an interregnum. Yet in so doing, Fabius also took care to let Flaminius save face. There was no loss of dignitas in abdicating one’s consulship so as to become Magister Equitum (at least one precedent, from 331, could be adduced, and possibly more); nor was there any humiliation in resigning as Magister Equitum, if so ordered by the Dictator immediately before he himself stepped down. It mattered not one whit that the true reason for these proceedings was clear for everyone to see; in a society so closely regulated by proper form and ritual, it was the formal, stated reason that counted, not whatever was the practical intent behind it. Had Fabius attempted to use his dictatorial powers to force the Consul from office directly, without the detour of making him his Magister Equitum, it may be doubted that Flaminius would have dared to resist; but it would have caused a major blow to the dignitas of a man who was now a fellow member of the ruling class, and the Nobles still knew better than to push things to the limit. The moment Fabius was named Dictator, Flaminius was bound to know that he had lost this power struggle with the Senate and the Augurs; but his political prestige, his dignitas, remained unharmed, and he conceded nothing with regard to the very issue that had led to this constitutional crisis: he could continue to deny that he was vitio creatus, and maintain that his auspices, as Consul, had been intact no matter what the Augurs said. Or so he thought.
The sorex squeaked, and gave the Augurs the last word. Their verdict was the same on Flaminius the Magister Equitum as it had been on Flaminius the Consul: vitio creatus, appointed under an augural flaw, and thus required to step down immediately. But this time he could not possibly resist: the Dictator would order him to abdicate, and that was that. Not that Flaminius would have expected to remain Magister Equitum for longer than a day or so; the whole purpose of his appointment was, after all, to make him give up his consulship without loss of face, and thus allow his colleague and all the other magistrates to abdicate. Once this had been achieved, there was no point for the Dictator and his deputy to hang on; on the contrary, both would abdicate as speedily as possible, to let the interregnum take its course. But had Flaminius foreseen the shrew-mouse?
To those familiar with augural law, the sorex comes as no surprise; in fact, it was inevitable. The Dictator naming his Magister Equitum had first to be named, with auspices from Iuppiter, by one of the Consuls: and both the Consuls had earlier been found vitio creati. Which meant that they lacked valid auspices: which meant in turn that any Dictator named by Furius the Consul was vitio creatus, just like the Consul naming him; and so, of course, was the Magister Equitum named by the Dictator. Hence both of them must abdicate immediately, to put things right again between the Roman State and Iuppiter. And so they did. With that, the Augurs had established once and for all the point Flaminius had denied so vigorously: that his and his colleague’s election to the consulship was augurally flawed, and that their auspices were null and void. Iuppiter, of course, was in on it: note how he waited with the oblative sign until the Magister Equitum was announced. It would not do to force Fabius from office before he had a chance to name Flaminius. Those with a soft heart for small rodents may rest confident that this particular sorex was cared for lovingly in his augural employ all the remaining days of his life.
The Challenge to the Auspices: Studies on Magisterial Power in the Middle Roman Republic. C. F. Konrad, Oxford University Press. © C. F. Konrad 2022. DOI: 10.1093/oso/9780192855527.003.0006