Cato's Speech Against L. Flamininus - Liv. 39.42-3Cato's Speech against L. Flamininus - Liv....

Cato's Speech against L. Flamininus: Liv. 39.42-3Author(s): Edwin M. CarawanSource: The Classical Journal, Vol. 85, No. 4 (Apr. - May, 1990), pp. 316-329Published by: The Classical Association of the Middle West and SouthStable URL: http://www.jstor.org/stable/3297678 .

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CATO'S SPEECH AGAINST L. FLAMININUS: LIV. 39.42-3

Cato's censorship, in the year 184, was notorious for harsh measures against such nobiles as L. Scipio, brother of Africanus, and for the impeachment of seven senators, prominent among them L. Quinctius, the consul of 192 and brother of T. Flamininus, conqueror of Macedon. Livy tells us surprisingly little of Cato's nobilis censura, but in the case against L. Flamininus he seems to have done independent research, bringing to light a text of Cato's speech evidently unknown to the earlier annalists. Alongside the speech ascribed to Cato, Livy cites another version of the charges, reported in Valerius Antias and echoed in Cicero's Cato Maior de Senectute 42; and yet another version is preserved in Plutarch's T. Flamininus 18, and Cato Maior 17. Since the 1860s, with Nissen's Kritische Untersuchungen and Jordan's edition of Cato's frag- ments, Livy's version, which seems the more damning indictment, has been given "the best claim to credibility"; the tradition in Antias and in De Senec- tute is discounted for its apparent revisionism; and the legalities of Plutarch's account have been deemed implausible.' Nissen and Jordan were convinced by Livy's claim that he had before him Cato's speech, and they concluded that it was an authentic text of the actual arguments. In recent work their judgment has been generally accepted, without reconsidering the substance of the charge, whether Livy's version is the more plausible account in light of other evidence, and without resolving the problem of publication, how the speech came into Livy's hands, if it was unknown to his predecessors.

Among other censorial speeches extant, Livy remarks, far the most serious charges (longe gravissima) were lodged against L. Quinctius (39.42.6-12). Cato claimed that Lucius, as consul, carried off to his province his favorite, Philip, a Carthaginian prostitute, despite the boy's protest at missing the gladi- atorial games; then, one evening at dinner, when a Gallic chief pleaded for refuge, Lucius offered to put him to death for the boy's amusement. Philip nodded, and the consul, to oblige him, suddenly took his sword and struck his victim a blow to the head; as the wounded man struggled to escape, begging for his life and calling upon the Jides of the Roman people, Lucius ran him through. Livy gives the only clear and direct testimony to this version. It is sometimes suggested that a fragment of Cato in Isidorus De Dif. Verb. 5 (fr.71 Malcovati) belongs to this version but, as we shall see, it is better suited to

1H. Nissen, Kritische Untersuchungen uber die Quellen der vierten und fiinften Dekade des Livius (Berlin 1863) 226, "Dass unter diesen drei Darstellungen die Rede Catos den gr6ssten Anspruch auf Glaubwiirdigkeit hat, braucht kaum bemerkt zu werden." On Cato's frr. cf. H. Jordan, M. Catonis praeter Librum de Re Rustica Quae Exstant (Leipzig 1860) lxxviii-lxxix; Malcovati ORF4 (1976), Cato frr. 69-71; and M. T. Sblendorio Cugusi, M. Porci Catonis Ora- tionum Reliquiae (= Hist. Pol. Phil. 12, Turin 1982) 224-29. Sblendorio Cugusi, in general, follows the view of F Della Corte, Catone Censore2 (Florence 1969), that Livy, disputing the popular tradition, "ristabill la veritA" (274). [Hereafter cited by author.]

316



CATO'S SPEECH AGAINST FLAMININUS 317

another context.2 There is a further reference to Cato's speech, which Livy cites in his conclusion to this episode, after his note on the divergent tradition in Valerius Antias: Cato challenged Lucius to dispute the charge by judicial wager (sponsione defenderet sese, 43.5). It is sometimes supposed that this epilogue derives directly from the text that Livy cites, but it is more likely that Livy added this note not from Cato's text but from a second source.3

Livy finds fault with Valerius Antias, "as one who had not read Cato's speech and put credence in a tale of unknown authority" (39.43.1-4). His anonymous "fable" differed from Livy's version on at least two points: it was a woman at Placentia whom Lucius was so eager to impress; and the victim was not a refugee but a condemned man (mss. ex damnatis). Lucius boasts how many men he has condemned to death, and his paramour exclaims she has never seen a man beheaded and would be delighted at the spectacle. Though Livy's paraphrase is ambiguous (. . . attrahi iussum securi per- cussisse), it is likely that, in the Valerian version, Lucius had the man beheaded by the lictors rather than by his own hand; so Plutarch suggests in his comment that Livy's version is at odds with his other sources on this point.4 In regard to the events in question, in the Gallic campaign of 192, a divergence, linked to the conflicting charges, is evident in the annalistic tradition in Liv. 35.21-2, and 35.40.3 f. The earlier version of those events (21.7 f.) has bearing upon the case against Q. Minucius Thermus, Flamininus' predecessor, whom Cato accused of similar atrocities. This earlier version is at odds with

2Isid. De Diff. Verb. 5 (= Cato. fr. 71 Malc.): "Aliud est," inquit Cato, "Philippe, amor, longe aliud est cupido. Accessit ilico alter, ubi alter recessit; alter bonus, alter malus." The attribution depends entirely upon the name Philippus and the theme of love and desire, but it is generally accepted. P. Fraccaro, "Ricerche Storiche e Letterarie sulla Censura del 184/3" in Studi Storici per l'Antichith Classica 4 (1911) 40 f. (= Opuscula [1956] 444; hereafter Fraccaro), cites Nonius p. 421.13, and Afranius v. 23 R3, "Alius est amor, alius cupido." He suggests an allusion to Cato's epigram in Plaut. Bacch. fr. 19, "Cupidon te confecit anne Amor?" (Cupidon tecum saevit, Lindsay).

3D. Kienast, Cato der Censor (Heidelberg 1954) 22 f., supposed from stylistics that this note derives from Cato (cf. fr. 66); but, on the annalistic source of this addendum, see Fraccaro, 9 f., 21 (= Opusc. 422 f., 430); cf. A. Klotz, in RhM 84 (1935) 51.

4The Valerian version is also indicated in Val. Max. 2.9.3: ... L. Flamininum ... e numero senatorum sustulit, quia in provincia quendam damnatum securi percusserat, tempore supplicii ad arbitrium et spectaculum mulierculae, cuius amore tenebatur, electo. Cf. Seneca Contr. 9.2.25, Flamininus proconsul [sic] inter cenam meretrice rogatus, quae aiebat se numquam vidisse hominem decollari, unum ex damnatis occidit. That Valerius reported the murder was carried out by the lictors is assumed by F. Miinzer, Hermes 40 (1905) 73 f., from reference to the securis; such, too, is the view of Fraccaro, tuttavia ? probabile che questa modificazione fosse anche nell' Anziate (427). That this was the version given by Valerius and implied in the late Valerian tradition is indicated by Plutarch's comment that Livy's version, at odds with otf irt- crot, had Lucius do the deed with his own hand (6 9 A lpto ... .( ... 6 As')Kto dtrKtr8tvEV itiqt Xstpi • tpwova)v• apt6g6Lvoq. "ToOo

phv oiv iK6q s iq 8SivaOrtv s tpfoat, Flam. 18.4); and by the version of Nepos in De Viris Illustr. 47.4 (see infra n. 11).



318 EDWIN M. CARAWAN

the Valerian tradition on the Gallic campaign (40.3 f.), and it provides the proper context for Cato's charges such as Livy followed.5

The other authors extant from Livy's era, Cicero, Valerius Maximus, and the elder Seneca, report that the victim was a condemned man. The tradition in Cicero, De Senectute 42--which Cicero puts in the mouth of Cato himself-- agrees essentially with the Valerian version.6 Valerius Maximus and Seneca also followed the Valerian tradition that a condemned man was killed for a woman's favors.7 None of these authors reveals precisely who struck the fatal blow, but the later tradition in the anonymous De Viris Illustribus clearly agrees with Plutarch on this point; and the agreement of these two versions confirms that the popular tradition, linked to Valerius Antias, held that the consul ordered the lictors to carry out execution.

The version in Plut. Cato Maior 17 appears to involve elements from both the Valerian tradition and Livy's version of Cato's text, and there are further discrepancies not likely to be Plutarch's invention. From such discrepancies and the apparent conflation, it is evident that Plutarch's account derives from another adaptation of Cato's charges, independent of Livy's version. As in Livy's version, the boy complained that he was eager to see a fight to the death; but, as in the Valerian version, the victim was a condemned man; and Lucius himself did not do the killing but ordered the lictors to carry out execution. The boy whom Lucius loved is one whom he had kept as a companion "from childhood," and the more sympathetic view of pederasty could be Plutarch's inference. But a further discrepancy points to an earlier adaptation of Cato's speech: the boy claims that he left Rome and missed the games because he so loved Lucius (and, presumably, he urges Lucius to prove his love). This remark in Plutarch, not Livy's version, gives the proper context for the fr. in Isidorus, Aliud est, Philippe, amor, longe aliud est cupido. In Livy's version, Lucius took the boy with him, spe ingentium donorum; and it was not the boy who urged him to stage an execution for the evening's entertainment, but Lucius who seized upon the opportunity, taking his paramour by surprise

5The discrepancies between Livy's version and Valerius are linked to the doublet in Livy's account of the events in question, in the Gallic campaign of 192. In 35.40.2-4 the same exploits against the Ligurians are ascribed to L. Quinctius that were earlier credited to his predecessor Minucius Thermus (35. 21.7-22.4); so Nissen KU 173-74. The earlier passage, in which L. Quinctius campaigned against the Boii (22.3 f.), thus provides the proper context for Livy's account of Cato's charges. It is likely that the earlier version derives from Claudius Quadrigarius and the later from Valerius (cf. Klotz, RhM 84 [1935] 52). Sblendorio Cugusi (224 f.) suggests that the victim was among the 1500 Boii who surrendered to Lucius' colleague (35.22.4, ad mille quingenti ad consules transfugerunt; cf. 35. 40.3, Boii quieverunt, atque etiam senatus eorum cum liberis . . . mille et quingenti, consuli dediderunt se). On Cato's speech In Q. Minucium Thermum, frr. 59-63, alleging illegal execution of ten men, see esp. H. H. Scullard, Roman Politics 220-150 BC (Oxford 19732) 258.

6Cic. Sen. 12.42: Impedit enim consilium voluptas, rationi inimica est . . .Invitus feci ut fortissimi viri T. Flaminini fratrem L. Flamininum e senatu eiecerem septem annis post quam consul fuisset, sed notandum putavi libidinem. Ille enim, cum esset consul in Gallia, exoratus in convivio a scorto est ut securiferiret aliquem eorum qui in vinculis essent damnati rei capitalis. Hic Tito fratre suo censore, qui proximus ante me fuerat, elapsus est. F Miinzer, "Atticus als Geschichtschreiber," Hermes 40 (1905) 74-75, concluded that Atticus is Cicero's direct source.

7Cf. Contr. 9.2.6-8, attributed to Albucius Silo, Extrahitur quidam e carcere in convivium praetoris [sic], virgae promuntur. . .. Ne sobri quidem carnificis manu. . .. See infra n. 17.




(vixdum serio adnuisset). Thus the apostrophe quoted in Isidorus belongs to a version of Cato's charges where Lucius' lover expressed a desire to see one of the condemned men beheaded (as in the Valerian tradition); whereas, in the text of Cato that Livy followed, the tale that Lucius, on his own inspiration, did the murder with his own sword, is part of a more melodramatic scenario, in which Lucius put to death an innocent man who had that very hour invoked Roman jides.

Plutarch suggests that the "murder of an innocent man by the consul's own hand," in Livy's excerpt of Cato's speech, was intentional exaggeration, for emotional effect (si;g •sivotv,

Flam. 18.5). Plutarch does not question the accuracy of Livy's version (though it is unlikely that Plutarch himself had compared Cato's text); rather he suggests that Cato's text was not an accurate account of the actual charges. Such a critical comment is not likely to be Plutarch's own editorial judgment, but more probably he drew that conclusion from one among his sources.8 It is certain that Plutarch had before him an account of Cato's censorship in greater detail than Livy gives, though the biographer may have misunderstood the proceedings. He tells us that Cato made his dramatic indictment in the assembly where Lucius and Titus Flamininus challenged the impeachment; and Plutarch describes a campaign of retaliation against Cato led by T. Flamininus, of which Livy tells us nothing.9

It was convincingly argued eighty years ago by Baumgart that Plutarch's principal source for Cato's censorship was the longer biography of Cato by Nepos (cf. Cat. 2.4).10 Excerpts of Nepos' work are found in the anonymous De Viris Illustribus, where the notice on this episode, 47.4, agrees with Plutarch's version on two points, that the victim was a condemned man, and that Lucius ordered the man beheaded by the lictors (. . . quendam e carcere in convivio iugulari iussisset). The agreement of Plutarch and De Vir. Illustr. makes it all but certain that this is the account given by Nepos.11 From the

8Cf. Plut. Flam. 18. 4, 6 6U Ailpto; Av ,6y0 Kdrcovo; actro0 yEypdq(0at proiv, (b; FaX- dtrlv ar)T6okov 06vTa CErdt naioyv ...

.8.9,dIvo S1;

• 6 otunra6otov 6 A8sK1to; dmrK-

etvv y6iC i X1itpi r ApcogL&vc xapt?6gLE vo; ro0To tggv oB0v giKb edIe elE uiVoav gtpfoat rfq KaTrlyopiag. The more detailed source for Plut. Cat. 17 and Flam. 18 f. is most likely Nepos (see infra at n. 11), who probably offered some comment on the rival versions and prompted Plutarch's note on the deinosis. That Plutarch was not the first to comment on Cato's technique in this passage is evident from the popular topic of declamation in Sen. Contr. 9.2 (see infra at n. 17). The figure deinosis is described in Quintilian 6.2.24: "The force of eloquence not only compels the judge to self-evident conclusions but arouses emotions not inherent in the case or greater than the evidence itself would evoke. Haec est illa, quae 68ivcoat; vocatur, rebus indignis, asperis, invidiosis addens vim oratio."

9For the annalistic tradition in Plutarch's account of Cato's censorship, cf. A. Klotz in RhM 84 (1935) 51 (assuming Claudius Quadrigarius as a "control" in Liv. 39.43.4 f.). Cf. Fraccaro Opusc. 423-29; see also nn. 11 f. infra.

'0M. O. Baumgart, Untersuchungen zu den Reden des M. Porcius Cato Censorius (Breslau 1905), esp. 26-29; cf. W. Soltau, in Neue Jahrbiicher f'r Philologie u. Pdidagogik 153 (1896) 123 ff.; Nissen KU 292-97.

"On the basis of correspondence to the shorter life extant, Della Corte showed that the account in anon. De Viris Illustribus (cf. 47.4, ad cuiusdam scorti spectaculum, eductum quendam e carcere in convivio iugulari iussit) derives from Nepos' definitive biography (esp. 243, 279). See also J. Geiger, Cornelius Nepos and Ancient Political Biography ( = Hist. Einzelschr. 47 [1985]) 83 f., on the relative chronology of Nepos' tribute to Cato; and, on the importance of Nepos as Plutarch's guide to the Roman Lives, 107 f. and 117-20.




agreement of these two versions with Livy's paraphrase of Valerius Antias we can conclude that Nepos followed the Valerian version on these two points. A further detail likely to derive from Nepos in both accounts is the note that Cato capped his accusations with a challenge to dispute the charges by sponsio. It would be surprising for Livy to postpone the note on the sponsio, as he does, after the paraphrase of Valerius, and after further comments on the enormity of the crime from yet another a source (perhaps Nepos), if he had found the challenge in Cato's text. The order of such entries is, of course, inconclusive, but it should cast doubt upon the usual assumption that the note on sponsio derives from Cato's text. The legalities, as we shall see, make it all the more likely that Livy found a note of the challenge to sponsio, not in Cato's text, but in a second source describing a confrontation between Cato and the Quinctii in the assembly, such as Plutarch reports.12 Nepos is the probable source for Plutarch's note of the challenge to sponsio (6ptao6g), as he is for the substance of this episode. Livy, as well, may have taken this note from Nepos, whom he followed as a "control" to Antias, and in whom he presumably found some knowledge of Cato's text.

If Nepos is responsible for these three points in Plut. Flam.18--that the victim was a condemned man, that Lucius had the lictors carry out execution, and that Cato challenged Lucius to dispute the charges--it is also likely that Nepos identified the young Philip as the paramour for whom Lucius commit- ted his crime.13 Plutarch is not likely to have altered this one detail, contra- dicting the prevailing tradition, without comment. The use of the indefinite scortum in the version of Nepos in De Vir. Illustr., as opposed to meretrix or muliercula in the Valerian tradition (supra n. 4), suggests that Nepos departed from Valerius Antias on this point, though he may have noted the familiar

12So reasons Fraccaro, "Riappare sempre la stessa fonte che Livio adopera per controllare 1'Anziate (Nepos), e lo dimostra il fatto che in Livio e in Plutarco ricorre lo stesso frammento

preso dalla fine dell' orazione, in cui Catone proponeva a Flaminino una sponsio .. ." (Opusc. 430); he goes on to connect the challenge to sponsio with the account of opposition to Cato's recitatio in contione (Opusc. 431-32= Studi Storici 4. 23-25). See also the discussion infra at nn.18 f.

13The view that Plutarch's account derives from an earlier adaptation, in which details from Cicero, Livy, and another annalist, were already integrated, goes back to Nissen KU 225, 296. Kienast (supra n.3: pp.10-25) assumed that Plutarch relied upon Greek intermediaries (including an anti-Catonian pamphlet), rather than follow Nepos directly, presumably because of his "little Latin"; in Dem. 2.2, Plut. pretends little opportunity to develop his Latinity at Rome, but later in the same chapter he reveals his subsequent devotion to Latin style. For this Greek intermediary (possibly "Megacles"?), we have little or no confirmation; but a similar biographical source was put forward by R. E. Smith in CQ 34 (1941) 106-12: cf. Della Corte 243, who clings to the notion that much of Plutarch's Cato Maior derives from Polybius, by way of the apothegmata Catonis (238-45). These hypotheses seem to me unwarranted; we have no reason to doubt Baumgart's assumption that Plutarch would not have failed to consult directly the most notable biography among the works of his predecessors--and there should certainly be no doubt that his Latin was equal to the task. Such hypothetical Mittelquellen are eloquently dismissed by Geiger (supra n.ll) 34 f. Nepos is cited in Plut. Luc. 43; Ti. Gracch. 21; Marc. 30, and Comp. Pelop. Marc. 1. For Plutarch's working methods, see C. B. R. Pelling's study of the later Roman Lives in JHS 99 (1979) 74-96 and JHS 100 (1980) 127-40.




variant in Valerius (as elsewhere he notes divergent traditions on notorious episodes). The fragment in Isidorus, Aliud est, Philippe, amor ... (fr. 71), as we have seen, derives from a Latin version of the scenario as it appears in Plutarch, not from Livy's version, nor can it derive directly from the text of Cato's speech that Livy followed-unless we are to assume that Livy freely altered the salient points of a source he took pride in reporting more faithfully than his predecessors. Nepos is, therefore, the most likely source for the fragment in Isidorus and for the scenario in Plutarch, and it is reasonable to assume that Nepos knew of the text that Livy reports.

Such is the evidence regarding the substance of the charge in the sources of the extant versions. The link between Nepos and Plutarch is not altogether conclusive, but it is at least sufficient to call into question the prevailing view of annalistic revisionism. The points at odds with Livy, in the Valerian tradition and Plutarch's version, are often discounted as patriotic alterations, to make the incident less of a national disgrace,14 but they do not alter the substance of the charge to exonerate Flamininus; Valerius told just as damning a tale of lust and cruelty, simile et libidine et crudelitate. In terms of the censor's probrum, it makes little difference whether the victim was a condemned man or a deserter from the enemy, a hostis who put his fate at the consul's discretion. As we turn to consider the legalities it will be clear that Livy's version gives no more plausible grounds of impeachment, nor are the procedural details in Plutarch to be discounted.

In Livy's text of Cato every detail seems contrived to make the episode more scandalous, and the very details that have persuaded others of the authenticity of the charges should, in fact, rouse our suspicions. The victim was sympa- thetically portrayed, at some length to judge from Livy's paraphrase, as an innocent man who pleaded for his family's safety; the culprit was cast as a depraved pederast, submissive to the every whim of his kept companion. The companion is pointedly identified as a Carthaginian, of a race whom Cato despised for perfidy; and he is named, it would seem, for the very king from whom the Flaminini had won their greatest glory.'" Despite the extraordinary detail of scenario in Livy's text of Cato there is no indication that any testimony or other evidence was cited.

14Cf. inter al. Miinzer, Hermes 40 (1905) 74, in regard to the tradition in Cicero (assuming Cato's speech was known to Cicero), "Auch hier is die Tendenz der Milderung und Abschwaichung unbequemer Tatsachen das Motiv, weshalb Cicero von der guten und altern Uberlieferung ab- weicht"; cf. Fraccaro, on Plutarch's version, "ha voluto come 1' Anziate mitigare la gravith dell' atto di Flaminino" (Opusc. 426-27).

15The tradition in Val. Max. 2.9.3. suggests that Cato found Lucius' conduct all the more damnable because of the celebrated victory of the Flaminini over Philip of Macedon: . . . Cato, duplex severitatis exemplum, eo magis illum notandum statuit, quod amplissimi honoris maie- statem tam taetro facinore inquinaverat, nec pensi duxerat isdem imaginibus ascribi meretricis oculos humano sanguine delectatos et regis Philippi supplices manus. The boy's name would seem irrelevant, unless Cato meant to conjure strong associations: the mention of a Carthaginian bearing the name of Philip could not fail to evoke either the treacherous alliance of Carthage and Macedon (so important an issue in the annalistic Fides-propaganda), or, if we assume as in Plutarch that the boy was a slave belonging to Lucius, the philhellenism of the Quinctii and their continued inv6lvement in Macedonian affairs.




Nor does Livy's version of the charges give more urgent grounds for impeachment.16 On the contrary, Flamininus' offense in the Valerian version, in which the lictors were made party to the atrocity, was undoubtedly viewed by many as a greater abuse of consular imperium. The most serious charge, after all, was illegal execution, the unlawful exercise of the most revered magisterial power. Cato had brought similar charges against Minucius Thermus (supra n.5), and he obviously realized the efficacy of such charges, that any act demeaning the emblems of high office, the fasces in the hands of the lictors, would be a serious concern to the Senate and that any abuse of the consul's power of execution would be of equal concern to the citizen-army. The Vale- rian version, therefore, would seem the more cogent response to the protest of the Quinctii.

The travesty of lawful procedure for execution was the most salient point of later treatment of this episode in declamation. Seneca Contr. 9.2 is devoted, in fact, entirely to the proposition that Flamininus' act constituted a breach of maiestas. An actio laesae maiestatis against Flamininus is, of course, an anachronism, and the controversia is of doubtful value for historical details (the speakers refer to Flamininus as proconsul or praetor and freely invent other details), but Seneca's report clearly indicates that the nature of Flamininus' offense had become a common theme for declamation. There is no clear reference to the tradition that Flamininus struck the fatal blow (nor any mention of the boy Philip); repeatedly the declaimers cited by Seneca seize upon the fasces, wielded by drunken lictors, as the most vivid emblem of the breach of maiestas.17

Thus the claim that Livy's version is the more plausible because it is the more damning carries little conviction. In Livy's version, the speaker's pur- pose is not to substantiate the charges, but to ridicule his opponent in a case where, apparently, the substance of the charge is no longer at issue. The sensational details in Livy's version, as Plutarch supposed, may have been invented for rhetorical effect, much as the declaimers whom Seneca cites freely invented details of a case that could never have come to court.

16For the grounds of impeachment, cf. Miinzer (supra n.6) "Die Catonische gab die geeignete Grundlage fur verschiedene schwere Beschuldigungen des Flamininus: Paederastie und Perfidie, dazu vielleicht Erpressung in der Provinz (vgl. in Galliam provinciam spe ingentium donorum perductum) und Entweihung einer geheiligten Sti'tte (vgl. introductum in tabernaculum)." R. A. Bauman, Crimen Maiestatis (1967) 11, 31 f., regards this case as an example of early remedies against such abuse of office, as "evidence of a practice later recognized by statute." With reference to other defacto procedures of the era, Bauman suggests "his [Flamininus'] exclusion may have been preceded by condemnation in the comitia tributa on charges of maiestas." On this point of procedure, Baumen may have been misled by the treatment in Plut. Flam. 19, or Seneca Contr. 9.2; but from the consensus of the various traditions, there should be little doubt that the most serious charge against Flamininus was not pederasty or perfidy, or violation of moral standards regarding the mensa, or religious tabu regarding the tabernaculum, but illegal execution. Such, too, was Cato's charge against Minucius Thermus (fr. 59-63); see supra at n. 5.

'7Cf. Seneca Contr. 9.2.6-9, attributed to Albucius Silo, "Non veto quominus securi per- cutiatur: illud rogo, legi potius quam scorto cadat"; attributed to Capito (9), "vestri fasces, vestrae secures in quantum . . . dedecus recciderunt!" Capito then went on to contrast the scene with proper procedure; cf. n.7 supra. On sanctity of fasces and proper procedure in magisterial execution, see Mommsen, Strafrecht 915-18.




Aside from the substance of the charge, the annalistic tradition in Plut. Flam. 19 has also been suspect as giving an implausible account of procedure. According to Plutarch, the Flaminini "appealed to the people," and it was in response to that protest that Cato stated the charges. Because there was no regular procedure for appeal, it is often assumed that Cato's speech was delivered before the Senate and that Plutarch's scenario is a dramatic fabrication. Lucius was charged with demeaning his office, violating the moral and hu- mane obligations of which the censors were proper guardians; his offense was not, as yet, indictable before a court. In such impeachments, the censors' judgments were not subject to appeal: there was no provocatio; and the sponsio in which Cato called upon Lucius to dispute the charges would not have overturned the censor's verdict. But that is not to say that the justice of Cato's verdict could not be challenged in an assembly of the people, a contio such as Plutarch's scenario suggests. Though the censors' nota could not be canceled, questions of guilt or innocence were certainly not closed; the effect of the censor's judgment could be reversed in the next election.18 Titus Flamininus led a movement to challenge the auctoritas of Cato, disputing the lectio senatus along with the other acts of the censors. Precedent for a challenge to the lectio was to be found in the annals for the year 311 (Liv. 9.30); and the tradition in Flam. 19 clearly indicates that the Senate, in fact, canceled Cato's leases and contracts (to which Livy alludes, 39.44.8). Thus, in assemblies following the lectio and census, we have no reason to doubt that Cato's judgments were called into question.

Assuming, then, that Plutarch's account suggests a plausible setting for Cato's speech, not in the Senate (as Livy's version led some to suppose) but in contione before the people, we are faced with three possible scenarios. (1) The reading of the revised Senate roster, the recitatio, could have provoked an outburst against Cato's severity, as Fraccaro pointed out.19 Cato was under no legal obligation to notify Flamininus of the charges before the Senate, nor to give grounds for his expulsion. The first that the Quinctii learned of their disgrace-that Lucius was impeached, and Titus was denied the title of princeps-probably came at the recitatio before the people. There was no formal

18Th. Mommsen, Romische Staatsrecht (18873) 2.386 f., esp. 387 n.1. On the procedures of the censorship, cf. W. A. Becker, ROmische Altertilmer (1846) 2.2.224-26; H. H. Scullard, Roman Politics 153-59; J. Suolahti, The Roman Censors: a Study in Social Structure (Helsinki 1963) 47-70. On sponsio see, most recently, J. Crook, in JRS 66 (1976) 132-38, esp. 133, on this case. As Mommsen noted in regard to Plutarch's account, there are a number of cases in which by vote of the people the censor's verdict was (so to speak) "overturned": cf. Pro Cluentio 121. For the electoral "reversal" of impeachments, consider the career of Manlius (or Manilius) cos. 178 or pr. 182; see A. E. Astin, Cato the Censor (Oxford 1978) 80 n.7 [hereafter, Astin]. The frr. De Lustri Sui Felicitate attest to the challenge to Cato's censorship, as do frr. 111-20, from a speech against M. Caelius trib. plebis. On the latter case cf. Scullard, 262 f.; and see infra at n. 30.

19Against the usual assumption that Cato's speech would have been delivered in the Senate (as, most recently, Sblendorio Cugusi, 224 f.), Fraccaro argued (429-32) such a speech would have been given at the recitatio, and he is followed by Scullard (158); Crook (n.18 supra) assumes the second scenario. See also P. Willems, Le Sinat de la Rdpublique Romaine (Louvain 1885) 298 f., on the case against L. Flamininus; and cf. 234-39, on the lex Clodia of 58, which permitted a defense during the lectio. A further study of the lex Clodia and related censorial procedures is forthcoming by Jeffrey Tatum, who kindly permitted me to see a draft of his work in progress.




procedure for those censured to make a defense during the lectio, but, despite rules of order, it is conceivable that Flamininus spoke out in protest at the recitatio. Such a scenario is not, however, entirely in keeping with Plutarch's account: both in Flam. 19 and Cat. 17, Plutarch clearly suggests that the confrontation came sometime after the lectio became known. It is possible then either (2) that after the recitatio, Cato convened a contio to answer the public outcry; or (3) that a contio was convened at the instigation of T. Flamininus himself. This last alternative is perhaps the most likely. Such an assembly could have been called by the tribunes, whom, Plutarch tells us, Flamininus enlisted to bring charges against Cato (Cat. 19). Plutarch in both versions clearly implies that the Flaminini initiated the proceedings before an assembly of the people, nposhO6vtsE i zt6v 8ftLov (Flam. 19); fti z6v 6filov IcaK•tpuy• (Cat. 17). In the assembly T. Flamininus demanded that Cato give an explanation of the charges, and Cato, "without hesitation"

(oiS&v o&v 6tnoc•Etd•d'evoq),

came forward with his colleague. From this sequence, we can reasonably conclude that, in Plutarch's source, Cato gave his account of the charges at that contio, which had been called at Flamininus' instigation.20

Neither at the recitatio nor at later contiones is Cato likely to have had a prepared text of his arguments in hand; he probably anticipated objections from many quarters, and drew upon his notes or his best recollection of the evidence to respond extempore. To silence the protest of the Quinctii without lengthy debate, he would challenge Lucius to dispute the charges by sponsio. With this tactic, he had no need of a prepared speech. How, then, did these charges come to be written out as a verbatim text, how did this speech come into Livy's hands, and how accurately did the extant speech record the actual arguments?

Thus we come to the problem of publication and the question of authenticity. There is no indication that Cato issued his speeches as pamphlets to influence current opinion; and the evidence that Cato himself, long after the events in question, edited or "published" a collection of speeches is less than conclusive.21 Cicero, De Senectute 38, suggests that Cato himself, late in life, was involved in the composition of speeches on the famous cases of his career: causarum illustrium, quascunque defendi, nunc cum maxime conficio orationes. Astin has argued against such "post eventum revision," and there is merit to his argument against a published collection by Cato himself; but he assumes, nonetheless, that a large body of Cato's speeches were widely known long before Livy's day, and on that point his argument is not entirely convinc-

200n various attempts at retaliation by tribunes, see Willems (supra n.19) 263. We know of two instances, one not long before and another not long after Cato's censorship, when the censors were summoned by tribunes to face charges before the people: Liv. 29.37 (census of 204); and Liv. 43.16, with Gellius NA 3.4 (census of 169). In the former instance we are told that the tribune's summons was "quashed" by the Senate (17, ne postea obnoxia populari aurae censurae esset); in the latter, as Livy tells at some length, the censors were narrowly acquitted, on charges of perduellio.

21See Baumgart (supra n.10) esp. pp. 13-25; cf. G. A. Kennedy, The Art of Rhetoric in the Roman World (Princeton 1972) 57 f. [herefter ARRW]; Astin 133-37, followed by Sblendorio Cugusi 27-30.




ing.22 As Baumgart pointed out, before Cicero's Brutus (in the year 46) there is no specific reference to a single speech of Cato, other than those in the Origines, where the author clearly had before him a text of the speech rather than anecdotes or general impressions. Even in the De Oratore (nine years earlier) we seem to have general impressions of Cato's work, without any clear reference to text of speeches other than those in the Origines. In the Brutus (65 f.), however, Cicero claims that he had discovered and studied 150 speeches, and his words suggest that there was as yet no standard corpus: "Who among our modern orators has actually read Cato! Who has any [first- hand] knowledge of him at all? . . . There are more than 150 speeches, full of noteworthy argumentation, which I have found and read thus far (adhuc)."23 So, perhaps not long before 46, the work of editing a standard collection had begun.

Baumgart supposed that sometime in the decade after 46 such an edition was published, probably under the auspices of Atticus himself; and this corpus was available to Nepos as he composed the definitive biography of Cato, at Atticus' request (Cat. 2.4). Out of this research the speech became known to Livy. It has even been suggested that Livy had before him not a text of the speech but a paraphrase by Nepos, though Trinkle argues convincingly to the contrary, that Livy, indeed, made use of Cato's speeches.24 From the version of Nepos in the anonymous De Viris Illustribus, as we have seen, it is highly unlikely that Livy could have adapted his version from Nepos. The definitive biography, however, is the most likely source for Plutarch and the fragment in Isidorus; it is thus reasonable to assume that Nepos had access to Cato's text, though he discounted certain details of the scenario that Livy later accepted.

Baumgart's view suggests two possible explanations for the account in De Senectute 42, where Cicero seems ignorant of Cato's text. In the year 44, the version that Livy was to adopt may have been yet unknown to Cicero: he simply accepted a story that was widely known through oral tradition and secondary sources, as Fraccaro supposed; another version lay as yet un- discovered in the family archives. Just such an archival text may have come to light a few years after the death of Cato Uticensis and soon after the death of Cicero. On the other hand, it is reasonable to assume that Cicero knew of the text, as did Nepos. Cicero uses the indefinite scortum of Lucius' lover, as does the version of Nepos in De Vir. Illustr.; and the same term is found in Livy's version, as opposed to the meretrix or muliercula in the Valerian tradition. Other details Cicero may have been reluctant to accept, not simply because he

22Astin admits (133) that "Cicero indicated in the Brutus . . . that at that time the speeches were rarely read," but he insists that "his words can well be taken to mean that this had not always been so, and indeed since copies of the speeches were certainly in circulation there must have been an interest at an earlier date." Aside from Brutus 65 f., he can cite only Ad Herrenium 4.7 as evidence that copies of speeches were available.

23Cic. Brut. 65 f: Catonem vero quis nostrorum oratorum, qui quidem nunc sunt, legit? aut quis novit omnino? . . . Refertae sunt orationes amplius centum quinquaginta, quas quidem adhuc invenerim et legerim, et verbis et rebus illustribus.

240n Cato's influence, see H. Trinkle, "Cato in der vierten und fiinften Dekade des Livius," Abh. Akad. Wiss. u. Lit. Mainz 4 (1971) 111-37; on this speech, see esp. 115, against the notion that Livy took his version from the annalistic tradition (Claudius Quadrigarius).




was anxious to conceal so disgraceful an episode, but because context or conflicting references led him to suppose that the text was not an accurate record of the actual arguments. The murder of an innocent man by the consul himself may have roused his suspicions, just as Plutarch or his source discounted this detail as an exaggeration si; &;ivwotv. It is also possible that Cicero found something to confirm the popular tradition, or to contradict the version that Livy followed, among 150 speeches that he claims to have read.25 Astin is inclined to agree that these were not published editions by Cato himself but archival texts. Archival copies can usually be expected to give a more accurate record of the actual arguments than do pamphlets for publication or anecdotal tradition; but, in this case, there is reason to doubt the veracity of the "esoteric" work.26

Cato himself tells us that he drew upon his earlier speeches as a source of common topics; inevitably he made revisions, and in some cases the revision was extensive. In composing De Sumptu Suo (173 Malc.), he tells how he had his scribe transpose passages from his speech in sponsio against a certain M. Cornelius, and he assumes that such a procedure is familiar to his audience. Fronto gives the excerpt as an especially elegant example of praeteritio, as Cato mentions many proofs of his integrity, which he had the scribe delete to avoid resentment.27 Astin cites this passage in support of his argument against "post eventum revision" that the "versions which survived were very close to the actual speeches that were delivered." There are differing interpretations of the methods implied in this passage, but it must be agreed that Cato somehow adapts his arguments from an earlier case for inclusion in a later speech. If, in this case, where the charges may well have been frivolous, Cato admits (however ironically) to such revisions, we can reasonably assume that he also

25Fraccaro, Opusc. 428-29 ( = Studi Storici per l'Antichitti Classica 4. 19-20), concludes with Hendrickson AJP 26 (1906) 197 that the "hundred and fifty" speeches was the standard number of known speeches, and Cicero somewhat exaggerated his familiarity with the corpus. "E infatti impossibile, che fra le 150 orazioni di Catone . . . non fosse compresa quella longe gravissima contro L. Quinzio, nota anche a Nepote, o che Cicerone, avendola letta, non avesse ricordato il fatto. ... Vuol dire che non l'ha letta e che scrivendo il Cato ha accolto la versione corrente, che gli annali ... avevano largamente diffusa." On the other hand, the very mention of this episode in De Senectute may mean that Cicero was eager to dispel the fascination of the literati with "the newly discovered version"; Nepos, at any rate, seems to have known of the version Livy followed, but did not accept the sensational details.

260n the accuracy of the versions extant in Livy's day, see Astin 136. 27Fronto, p. 92, 21 = fr. 173 Malcovati: iussi caudicem proferri, ubi mea oratio scripta erat de

ea re, quod sponsionemfeceram cum M. Cornelio. tabulae prolatae: maiorum benefacta perlecta; deinde quae ego pro r.p. fecissem leguntur. ubi id utrumque perlectum est, deinde scriptum erat in oratione: "numquam ego pecuniam neque meam neque sociorum per ambitionem dilargitus sum." The maiorum benefacta and his own services to the state are probably common topics which he could have transposed from any number of exemplars. At this point Cato presumably protests to the scribe, "noli scribere," (mss. cribere), but various emendations have been pro- posed. Scullard, in fact, assumed that the passage describes the reading of an earlier speech in evidence by the "clerk of court" (221; on the speech In M. Cornelium, cf. 268). If we read with Mommsen perhibere, it is also possible that the scribe proceeds to make alterations on the original. By the usual interpretation, the scribe is instructed to erase sections of the new draft (which, presumably, he has copied as the earlier text is read): "istud quoque dele ... istuc quoque dele . .. perge istuc quoque uti cum maxime delere . .. enimvero usque istuc ad lignum dele." Cf. Astin 134-37; Kennedy, ARRW 42-44.




adapted his earlier arguments to greater advantage, when a serious quarrel was revived in later proceedings. In regard to some cases, for which no prepared speech had been written, Cato relied upon his notes and his recollection, when the same issues arose in a later case; and in such cases we should expect greater license in the adaptation.

It is unlikely that Cato spoke from a prepared text when he answered the challenge of the Quinctii: the text that Livy followed was composed, almost certainly, after the event. As it is not likely that Cato published the speech separately as a partisan pamphlet, the comment on Cato's adaptation of his speeches, in Cic. Sen. 38, may yet yield a solution to the problem of publication: the speechwriting that Cato practiced, as he completed the last book of the Origines, appears to be linked to other research for the historical work.28 In the process of adapting speeches for inclusion in the Origines, he put in order the corpus of his notes and draft speeches for other cases which he was not able to discuss in the brief scope of the historical work. It is not unlikely that Cato also edited those drafts, to produce a full record of his public life, if not for "publication," at least for the edification of his son and descendants (and perhaps for limited circulation among familiares). It is probably this body of text that survived to Livy's day in the family archives of the Porcii Catones.

Such editing may account for the discrepancies between Livy's version and the near unanimous tradition. If Cato had no text of a prepared speech against L. Quinctius, as he assembled material for the Origines, he may then have adapted his notes and common topics from later speeches to compose such an oration, whether he intended it as part of a defense of his censorship in the Origines or as an archival record for his son and descendants. Even if we assume that Cato had a prepared speech to answer the protest of the Quinctii, the fragment De Sumptu Suo clearly implies that Cato may have adapted his earlier arguments for inclusion in a later composition, and it would not be surprising if such a redaction were later excerpted from its proper context and given the title In L. Quinctium. We have seen that Livy's reference to the sponsio may derive not from the text of Cato's speech that Livy cites, but from the same source that Plutarch later followed, Nepos; the note on sponsio belongs to a scenario such as Plutarch reports, where the Quinctii challenged Cato in contione. Livy's version, by contrast, is more likely to derive from an adaptation of those charges for a later legal battle, in consequence of Cato's censorship, in which the charges against L. Flamininus were heard again.

Livy concedes that the Senate invalidated Cato's leases and contracts, but he does not tell us, as Plutarch does, that T. Flamininus led the opposition, and

28Cic. Sen. 38: Septimus mihi liber Originum est in manibus; omnia antiquitatis monumenta colligo; causarum illustrium, quascunque defendi, nunc cum maxime conficio orationes; ius augurium pontificium civile tracto; multo etiam Graecis litteris utor. ... All of the latter studies, the research on monumenta, the adaptation of speeches, treatment of various topics of law, and extensive reference to Greek sources, could easily be related to the first, the completion of the Origines-if we assume that Cicero, in fact, had some basis for attributing all of these endeavors to Cato's later years. Astin (135) supposes, "this is just the kind of imaginative detail which Cicero could have supplied for the purposes of his argument, indeed it is precisely one of the activities in which he is likely to have envisaged himself engaging in old age."




not only succeeded in discrediting much of Cato's reactionary programme, but also urged the tribunes to charge Cato with "high crimes" and demand a fine of two talents. Again, the legalities of Plutarch's account are problematic, and there is Pliny's testimony, often cited, that Cato never lost a case.29 But there is certainly substance to the report of later trials involving Cato and T. Flamininus: the puzzling speech against M. Caelius trib. plebis. (frr. 111-20 Malc.) probably responded to a tribunician challenge to various acta of Cato's censorship.30 Livy notes that the quarrels provoked by Cato's nobilis censura kept him tied up in legal proceedings the rest of his life, though Livy absolves Titus Flamininus from the blame that Plutarch's source laid upon him. Titus was implicated in his brother's disgrace (Flam. 19, auvact?o0oeat), if only because he had failed to take notice of the charges in his own term as censor (189). Such recriminations (indicated in Cic. Sen. 42; Val. Max. 2.9.3) were probably Cato's justification for passing over Flamininus to name his own colleague, Valerius Flaccus, as princeps senatus. The insult provoked Titus to challenge Cato before the people. Plutarch, probably taking his cue from Nepos, condemns T. Flamininus for his vendetta against "a lawful magistrate and renowned patriot" for the sake of an unworthy kinsman. Livy seems to answer such criticism of Titus in his preface to the impeachment (Liv. 39. 42.7): so serious were the charges Cato made against Lucius that T. Flamininus himself could not have acquitted him, had Cato made the accusations in Titus' censorship. Such comments bear witness to prolonged hostili- ties; in the course of later disputes, Cato was not likely to neglect his greatest triumph over the Quinctii.

Livy accepted without question the text of Cato's speech that came to light when the historian himself was a young man. Out of admiration for Cato, and distrust of Valerius Antias, Livy discounted the annalistic record of senatorial faction in the Age of Liberation: he saw the Liberator, T. Flamininus, in the image of those stoic heroes of the early Republic, to whom duty was more dear than kin; and he made of Cato a righteous inquisitor. In this one small problem, Livy's judgment has long gone unquestioned from a presumption of Cato's veracity, despite indications, in Plutarch and in Livy, that Cato shame-

29pliny's claim, NH 7.100 (itaque sit proprium Catonis quater et quadragiens causam dixisse nec quemquam saepius postulatum et semper absolutum), though often repeated (e.g. Astin 106 n.7), is possibly a mistaken inference from such statements as we find in Nep. Cat. 2.4 (usque ad extremam aetatem . . . rei publicae causa suscipere inimicitias non destitit, a multis tentatus non modo nullum detrimentum existimationisfecit, sed quoad vixit, virtutum laude crevit), and Liv. 39.40, etiam causam dicendo fatigavit inimicos. But cf. Liv. 39.44.9, Nobilis censura fuit simultatiumque plena, quae M. Porcium . . . per omnem vitam exercuerunt; if in fact Cato was never convicted, he was, nonetheless, never able to silence his accusers. Before Pliny's comment, we have no clear statement that Cato was never once defeated, and the faint praise of Nepos is

noteworthy; he does not say "never lost," but "never suffered a loss of prestige." This does not preclude the possibility that Cato was on some occasion fined.

30So Fraccaro, Studi Storici per l'Antichita Classica 4 (1911) 59 f. and 120 (= Opusc. 457 f. and 496 f.); followed by Scullard 262 f. On Livy's handling of the annalistic tradition hostile to T. Flamininus, see my study, "Graecia Liberata and the Role of Flamininus in Livy's Fourth Decade," TAPA 118 (1988) 209-52.




lessly glorified his own achievements and viciously slandered his opponents.31 Cato himself tells us that he adapted and altered his earlier arguments in subsequent disputes; and, if he later edited his censorial speeches as Cicero suggests, he had all the more opportunity to sharpen his invective. The evidence on the legalities of this case and the transmission of Cato's speeches strongly suggests that the text In L. Quinctium that Livy followed is just such a product of revision, rather than a prepared text of the original charges. Thus Livy's version is unworthy of "the best claim to credibility," that Nissen attributed to it; instead, it should be subject to the same scepticism warranted by any partisan claim of an historian or statesman apparently contradicted by his own words.32

EDWIN M. CARAWAN Southwest Missouri State University

31E.g. Liv. 34.15.9, Cato ipse, haud sane detrectator laudum suarum; Plut. Cat. 14.2, T6ov t8ioiv tyKcoj)gio)v dptS;i .... gLyactauXia v ... o6K .(pseys; 19.5, nXsiatra nadvrv axor6v yieKOLiaCKcev. His charges against his former commander, M' Acilius Glabrio, were called

intestabile periurium, Liv. 37. 57.15. And in naming his colleague Valerius Flaccus princeps senatus, his self-aggrandizement at Flamininus' expense is patent. Nonetheless, there is often a presumption of Cato's veracity, e.g., in Astin's study, 106 f., with nn. 7-12.

32For their very constructive comments I am much indebted to Christoph Konrad, Jerzy Lin- derski, and Jeffrey Tatum.



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