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The Leges Clodiae and Obnuntiatio

Published online by Cambridge University Press:  11 February 2009

T. N. Mitchell
T. N. Mitchell
Affiliation:
Trinity College, Dublin
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Extract

One of four laws passed by Clodius early in 58 b.c. in some way modified the regulations governing obnuntiatio, the right possessed by magistrates and augurs to obstruct proceedings of the popular assemblies through announcement of unfavourable omens. The precise nature of the change is obscured by the fact that our main source, Cicero, describes it, as he does all of Clodius' legislation, in hyperbolic and polemical terms, alleging that it wholly abolished the right of obnuntiatio, a claim contradicted by other evidence in his writings, which provide many examples of its continuing use. The later ancient sources repeat the substance of Cicero's main allegations and, accordingly, do little to help disentangle the facts from the hyperbole. Inadequate information about the earlier regulations relating to obnuntiatio, which were contained in two laws of the mid-second century, the Leges Aelia et Fufia, further hampers the search for the precise terms of Clodius' amendment.

None of this, however, has discouraged speculation. The problem has exerted a peculiar fascination and has generated a succession of careful studies. Five main hypotheses have emerged: that the right of obnuntiatio was taken from curule magistrates; that it was taken from curule magistrates, but only in relation to legislative comitia; that it was taken from both curule magistrates and tribunes, but only in relation to legislative comitia; that it was abolished entirely, but soon restored by senatorial annulment of the reform; that it was left intact, but the assemblies were empowered to disallow it on any given occasion.

Type
Research Article
Information
The Classical Quarterly , Volume 36 , Issue 1 , May 1986 , pp. 172 - 176
Copyright
Copyright © The Classical Association 1986

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References

1 Cf. Post. Red. in Sen. 11, Sest. 33, 56, Har. Resp. 58, Vat. 18, Prov. Cons. 46, Pis. 9–10.

2 Cf. Asconius 9 (Clark), Dio 38.13.6. Asconius describes the substance of Clodius' bill as follows: ne quis per eos dies quibus cum populo agi liceret de caelo servaret. His language echoes that of Cicero and, with regard to this particular matter, he seems to have accepted Cicero's version. Dio's account is essentially the same as that of Asconius.

3 The evidence for the Leges Aelia et Fufia and obnuntiatio has been analysed by Mommsen, Th., Römisches Staatsrecht (Leipzig, 1887) i.3111ff.Google Scholar; Valeton, M. J., ‘De iure obnuntiandi comitiis et conciliis’, Mn. N.S. 19 (1891), 74–113, 229–70Google Scholar; S. Weinstock, RE, s.v. obnuntiatio; Sumner, G. V., ‘Lex Aelia, Lex Fufia’, AJP 84 (1963), 337–58Google Scholar;Astin, A. E., ‘Leges Aelia et Fufia’, Latomus 23 (1964), 421–45Google Scholar; Weinrib, E., ‘Obnuntiatio: two problems’, ZSS 87 (1970), 395–425Google Scholar.

4 Cf. Greenidge, A. H. J., ‘The repeal of the Lex Aelia Fufia’, CR 7 (1893), 158–61Google Scholar; McDonald, W., ‘Clodius and the Lex Aelia Fufia’, JRS 19 (1929), 164–79Google Scholar; Sumner, op. cit.; Balsdon, J. P. V. D., ‘Three Ciceronian problems. I. Clodius’ “repeal” of the Lex Aelia Fufia’, JRS 47 (1957), 15–16Google Scholar; Weinstock, S., ‘Clodius and the Lex Aelia Fufia’, JRS 27 (1937), 215–22Google Scholar.

5 Cf. Sest. 78–9, 129, Phil. 2.81.

6 Prov. Cons. 46. Cf. Vat. 18.

7 One would expect the power to have been invoked to overcome some notorious uses of obnuntiatio recorded for 57. Cf. below, notes 12 and 13.

8 Dio 37.6, Suetonius, , Jul. 20Google Scholar, Plutarch, , Caes. 14.6Google Scholar, Cat. Min. 32, Pomp. 48, Cic. Vat. 5, 16, 21, Sest. 113, Dom. 40, Har. Resp. 48. For the precise meaning of the formula se de caelo servasse cf. Nisbet, R. G., M. Tulli Ciceronis De Domo Sua Oratio (Oxford, 1939), 202–3Google Scholar.

9 The legal subtleties of the situation that emerged in 59 are difficult to disentangle because of the lack of information about the Leges Aelia et Fufia and the strange absence from our sources of any account of earlier uses of obnuntiatio. Cicero makes vague statements to the effect that the Leges Aelia et Fufia had often checked tribunician madness, surviving without violations through almost a hundred years, even in the midst of the turmoil generated by the Gracchi, Saturninus, Sulpicius, Cinna and Sulla (Pis. 10, Vat. 18, 23), but no specific instance of the use of obnuntiatio in relation to auspicia impetrativa can be documented before 59. It seems likely, therefore, that it had been sparingly used and never on the scale attempted by Bibulus. It is also likely that no previous magistrate had persisted in holding an assembly in the face of an announcement by a colleague se de caelo servasse, and that Caesar's course was similarly new.

10 Dom. 39–40, Har. Resp. 48, Prov. Cons. 45–6. It is worth noting that it was Clodius who was responsible for securing the public ruling from the Augurs. When he was briefly at odds with Caesar in 58, he launched a public campaign to show Caesar's laws were invalid because of Bibulus' action. Clodius was seeking to put pressure on his ally, and the method he chose provides further evidence that Caesar was considered vulnerable on this issue and that there was an arguable case that Bibulus' mode of obnuntiatio was legitimate. If an actual announcement of the omens in person had ever been explicitly prescribed in law as a requirement for the exercise of obnuntiatio, it had obviously become so overlain by a convention that the formula se de caelo servasse was sufficient as to have lost its effect. Linderski, J., ‘Constitutional aspects of the consular elections in 59 b.c.’, Historia 15 (1965), 425–6Google Scholar maintains otherwise, but he ignores the contemporary response to Bibulus' action and appeals to procedures followed in 57, which, as will be argued later, should not be taken to apply in 59.

11 For intercessio and the procedures governing its use cf. Th. Mommsen, op. cit. i.266–92; Greenidge, A. H. J., Roman Public Life (London, 1911), 176–80Google Scholar. On the whole, intercessio had proved a manageable obstacle for populares, rarely successful in preventing legislation that had strong popular backing.

12 Sest. 79.

13 Att. 4.3.4–5.

14 Sest. 78. The text of this passage had been called into question by McDonald, op. cit. 174, but without justification, as is shown by Weinstock, op. cit. 219.

15 Asconius 8 (Clark), Dio 38.13.2, Schol. Bob. 132 (St.), Har. Resp. 58, Pis. 9–10, Sest. 55, Prov. Cons. 46.