University Cardinal Stefan Wyszyński in Warsaw
Faculty of Law and Administration
Cascellius and the
Aedilician Edict on Throwing Fruit into the Arena
ABSTRACT: Lo scopo dell’editto Ne quis in arenam nisi
pomum misisse velit fu quello di
prevenire il disturbo dell’ordine pubblico da parte degli spettatori
insoddisfatti dei giochi gladiatori. L’editto vietò di lanciare
nell’arena tutto oltre la frutta. Le sanzioni contro coloro che non
avessero rispettato le norme edittali furono conformi con i limiti della
coercizione degli edili, i quali potevano imporre una multa, prendere un pegno
oppure ritenere o imprigionare il cittadino. L’impulso per questo editto
fu una richiesta da parte di Vatinio, il quale era stato preso a sassate
durante i giochi gladiatori da lui organizzati. La ragione di una così
violenta reazione degli spettatori fu probabilmente il fatto che Vatinio era
candidato per la pretura e i giochi furono interpretati come una forma di
corruzione elettorale. Tenendo conto che fu Clodio l’edile in questo
momento, sembra assai attrattiva, anche se impossibile da verificare, la tesi
che proprio da lui Vatinio avesse cercato aiuto. Mentre Cascellio, il maestro
di lingua tagliente, utilizzò l’opportunità di un responsum
concernente l’uso del termine pomum per uno scherzo pungente:
“se lancerai una pigna contro Vatinio, essa sarà frutta!”.
The
intellectual accomplishment of Roman lawyers seems so overwhelming that they
make the characters themselves seem monumental and rather unreal. The sources
do not provide us with many anecdotes connected with their lives.
One of the
lawyers who had a reputation for exceptional wit was Aulus Cascellius, who
lived in the 1st century B.C.[1]. Pomponius
praised him in his Enchiridion for his eloquence[2]. Cascellius had
a habit of using witty quips when advising his clients[3]. Macrobius
recorded that when a merchant asked him how to split a ship between his partner
and himself, Cascellius replied that if they split the ship they would both end
up with nothing[4]. Quintilian
cited the same anecdote to illustrate a rhetorical device known as dissimulatio,
meaning the use of a word with two meanings[5]. Here dividere,
the verb the client used, meant “to divide up the partnership’s
assets” to the client; but Cascellius read it in its literal sense,
“to split up the ship physically”.
This article
concerns another of Cascellius’ witty remarks cited by Macrobius[6].
Macrob., Sat.
2.6.1: Cascellius iurisconsultus urbanitatis mirae libertatisque habebatur;
praecipue tamen is iocus eius innotuit: Lapidatus a populo Vatinius, cum
gladiatorium munus ederet, obtinuerat, ut aediles edicerent, ne quis in arenam
nisi pomum misisse vellet. forte his diebus Cascellius consultus a quodam, an
nux pinea pomum esset, respondit: ‘Si in Vatinium missurus es, pomum
est’.
According to
the author of Saturnalia Cascellius had a reputation for a remarkably
outspoken wit. One of his quips became quite famous. Vatinius had been stoned
by the populace at a gladiatorial show which he was giving, and so he prevailed
on the aediles to issue an edict forbidding the throwing of anything but fruit
in the arena. It so happened that Cascellius at that time was asked by a client
to advise whether a nux pinea was a fruit or not, and his reply was:
«If you throw one at Vatinius, it is».
This amusing
story prompts several questions. The first thing we should do is to examine the
legal issues connected with the aediles’ edict, along with its political
circumstances.
Like all Roman
magistrates, the aediles enjoyed the right to issue edicts[7]. The
best-known edicts are, of course, those associated with the jurisdictive
activities of the praetors, the curule aediles, and the governors of provinces.
We know far less about edicts concerning public law[8].
The edicts a
magistrate issued at the beginning of his term in office and known as edicta
perpetua remained in force for the whole of his term; but there were also
provisional edicts called edicta repentina, which were issued whenever a
need arose. Every year the aediles published an edictum perpetuum[9] concerning
the operations of marketplaces, which were subject to their authority; but
occasionally they took action in response to a new situation by issuing an edictum
repentinum.
Macrobius
quoted the text of the edict verbatim, making an indirect statement dependent
on the verb edicerent. Put into direct speech, the injunction would then
read Ne quis in arenam nisi pomum misisse velit. The use of the
prohibitive subjunctive stresses the absolute nature of the ban. David Daube
was of the opinion that the use of this grammatical structure meant that the
edict carried a serious threat of an undefined penalty on those who infringed
it[10]. We have to
agree that this edict imposed an outright prohibition, and perhaps in a
subsequent passage, which Macrobius did not cite, information was given on the
kind of sanctions instituted for infringements of its provisions.
Apart from
jurisdiction, the aediles’ powers included care of order in the city (cura
urbis)[11] including
care of the roads (cura viarum)[12], the
provision of water (cura aquarum)[13], the
provision of grain (cura annonae)[14], and policing
duties[15]. Another of
their tasks was to organise the games and oversee them (cura ludorum)[16].
Even though in
this case it was not the aediles who organised the games, they were still
responsible for seeing that the show proceeded in a peaceful and orderly
manner, and hence on Vatinius’ request they issued an edict to prevent
any potentially dangerous behaviour on the part of spectators. Throwing stones
into the arena was certainly dangerous; hence they permitted only the throwing
of fruit. Putting the injunction into practice must have involved the
aediles’ coërcitio (coercive powers), which included imposing
fines[17] and taking pledge[18]. The aediles
were also authorised to administer flogging within a limited scope[19]. The most
likely penalty for failure to keep to the standards laid down by the aediles
was a fine. However, we should consider the diverse potential developments. If
the stone-throwing was mischief done by one man, bringing him to order and
imposing a fine would not have been a problem at all. But if a large number of
persons were violating the law, the aediles may possibly have needed to resort
to more serious measures, perhaps – as Lintott thought[20] – by
asking senior magistrates for assistance.
But maybe the
aediles had sufficient means to take the required action on their own? We know
that they had auxiliary staff called the viatores or messengers[21], and thereby
had the right to detain and imprison citizens (ius prendendi)[22], as
we learn from Gellius[23], whose
information comes from Varro. The aediles appear to have had the power even to
arrest a citizen, availing themselves of the services of the viatores
and public slaves[24].
To arrive at
the right interpretation of the sense of the edict we need to establish the
political circumstances in which it was issued and also – as far as
possible – its date. Macrobius’ account tells us that Vatinius
organised a gladiators’ show and that the people pelted him with stones.
Gladiatorial
games arranged by Vatinius were ridiculed by Cicero in his speech Pro Sestio,
which was delivered in 56 BC. It is not certain whether this text concerns the
same event, but that is quite likely.
Cicero wrote
that Vatinius held the gladiators’ games during an election campaign[25],
thereby breaking the regulations imposed by the lex Tullia de ambitu,
which had been passed on a motion tabled by Cicero himself[26]. This law was
no doubt carried in response to Catiline’s election campaign. Cicero
promulgated it following a senatus consultum calling on the two consuls
to adopt such a measure. It was not tabled by Cicero’s fellow consul, M.
Antonius Hybrida, who presumably preferred to remain neutral with respect to
Catiline[27].
One of the
provisions of the lex Tullia prohibited prospective candidates from
holding games within two years before their campaign[28].
Cic., In Vat.
37: atque illud etiam audire (de) te cupio, qua re, cum ego legem de ambitu
tulerim ex senatus consulto, tulerim sine vi, tulerim salvis auspiciis, tulerim
salva lege Aelia et Fufia, tu eam esse legem non putes, praesertim cum ego
legibus tuis, quoquo modo latae sunt, paream; cum mea lex dilucide vetet
biennio quo quis petat petiturusve sit gladiatores dare nisi ex testamento
praestituta die, quae tanta in te sit amentia ut in ipsa petitione gladiatores
audeas dare? num quem putes illius tui certissimi gladiatoris similem tribunum
plebis posse reperiri qui se interponat quo minus reus mea lege fias?
In his cross-examination of Vatinius, who
was a witness in the trial of Sestius, Cicero asked him why he did not consider
the lex Tullia a law, if it had been
adopted on the grounds of the Senate’s resolution and without the use of
violence, following the auspices and in compliance with the leges Aelia et Fufia[29], especially as Cicero himself
observed the laws which Vatinius had carried. He stressed that despite the law
prohibiting candidates standing or about to stand for election from organising
gladiator shows within two years of their campaign, Vatinius had held such
games during his very campaign; and he asked him sarcastically whether he
thought that a tribune of the plebs would save him from prosecution for
political corruption. This last question was an allusion to the proceedings of
58 BC against Vatinius[30],
who had been charged on the grounds of the lex
Licinia Iunia[31],
and was only acquitted thanks to the intervention of Clodius, who was tribune
at the time[32].
Cic., Pro
Sest. 135: sed habet defensiones duas: primum 'do’, inquit,
'bestiarios: lex scripta de gladiatoribus’. Festive! accipite aliquid
etiam acutius. dicet se non gladiatores, sed unum gladiatorem dare et totam
aedilitatem in munus hoc transtulisse. praeclara aedilitas! unus leo, ducenti
bestiarii.
For his
defence Vatinius relied on a literal interpretation of the lex Tullia,
claiming that he had not held a show of gladiators but ludi bestiarii –
games involving wild animals. Only one gladiator, not “gladiators” had
appeared in these games, as alleged by Vatinius, who said he had held these
games in recompense for the aedileship he never had – a reference to the
election of 56 BC which he had lost[33]. The
organisation of games was one of the aediles’ duties, and what Vatinius
was trying to say was that all he wanted to do was to put on a show for the
money he would have spent for that purpose had he been elected aedile.
Cicero’s final taunt, “A true aedileship truly. One lion, two
hundred men who fight with beasts”, has been explained in a
scholiast’s commentary based on information drawn from the writings of
Tiro[34]. The
gladiator whose services were hired was called Leo (“Lion”), and
the aim of Cicero’s irony was to suggest to his recipients that
Vatinius’ games were merely a smokescreen to cover up the menace of seditio,
a coup d’état.
Cicero’s
client Sestius stood accused of unlawful violence. However, in situations of
impending domestic strife magistrates were authorised to apply the means
necessary to avert a threat. There were two factors working within the state
– the law and violence. If the latter was the dominant force, magistrates
had to do all they could to restore the rule of law. Cicero was arguing that
the situation Sestius was facing had the characteristics of a state of
necessity[35].
Cicero’s
speeches indicate two of the potential reasons why Vatinius was pelted with
stones. First, the poor quality of the show[36], for which he
had hired slaves from a quarry rather than the services of professional
gladiators, and secondly the fact that it had been held during his electoral
campaign[37]. Cicero also
mentioned that voters often drifted away from candidates who engaged in ambitus.
Cic.,
Har. resp. 56: Repulsi sunt ii quos ad omnia progredientis, quos munera
contra leges gladiatoria parantis, quos apertissime largientis non solum alieni
sed etiam sui, vicini, tribules, urbani, rustici reppulerunt.
Neither
townspeople nor countryfolk voted for those who organised games in violation of
the laws and openly practised corruption; they were not voted for even by
members of their own families, their neighbours, or members of their tribus.
Cicero stressed that Vatinius had been rejected in an election to the
aedileship[38].
The office for
which Vatinius was standing when he organised the gladiator show Cicero was
censuring him for was the praetorship[39]. He won it
only thanks to the support of Pompey and Crassus, beating Cato[40].
The
citizens’ attitude to Vatinius seems to have been rather unfavourable, or
even hostile[41]. Thus it
would come as no surprise if his games backfired and resulted in his outright
rejection by the spectators. So perhaps Cicero and Macrobius were referring to
the same show[42].
Cicero’s
expression in ipsa petitione provides relevant information as regards
the edict’s presumable date, limiting the time interval to the electoral
campaign for the praetor’s office for 55 BC. The election itself was held
very late, in February 55 BC[43], but the
campaign must have been going on for a long time before. The term petitio
does not refer merely to the time when the list of candidates was announced,
viz. after their professio, but to the entire duration of the campaign,
which lasted about a year prior to the election[44].
The trial of
Sestius took place in March 56 BC[45], and thus it
marks the terminus ante quem. Since Vatinius lost an election to the
aedileship, the date of that election must delimit the terminus post quem,
since only then was he eligible to stand for the praetorship.
In 57 BC
Vatinius had returned to Rome from Gaul, where he had been Caesar’s
legate, and ran for the aedileship of 56 BC. It was probably the office of
curule aedile, not the plebeian aedile, that he was after, as indicated by his
purchase of a toga praetexta for the occasion[46]. This
election was postponed several times due to the bad omens reported by Milo, who
declared that he would keep watching the sky for signs[47]. The election
was ultimately held on 20th January 56 BC.
Since the trial
of Sestius was held in March, Vatinius’ games most probably took place in
February. The short time he would have had to prepare them would account for
their low quality. Thus it would appear that the edict referred to by Macrobius
was issued by the aediles of 56 BC, the same tandem against whom Vatinius had
recently lost an election. It is not clear whether they were the curule or the
plebeian aediles[48].
The fact that
Clodius was curule aedile at the time is a most interesting point[49]. As I have
already explained, Vatinius was one of the adherents of Caesar, serving as
plebeian tribune during the latter’s consulate and later as his legate in
Gaul. He was also a witness for the prosecution in the trial against Sestius,
which was being backed by Clodius[50]. Politically
Vatinius and Clodius shared common ground and goals.
If my dating
for Vatinius’ games is correct, then it is highly probable that he had
Clodius to thank for the issue of the edict. While Clodius could not have
issued it on his own, for every time the sources including Macrobius tell us
that the aediles issued an edict they always use the plural aediles[51], he
could have persuaded the other aedile holding the magistracy with him of the
need for such an edict. Macrobius’ information that Vatinius obtained (obtinuerat)
the edict from the aediles is all the more understandable if we assume that
there was a bond of mutual amicitia (friendship, or in fact a mutual
dependence) joining magistrate and citizen.
To arrive at
the correct interpretation of the sentence Ne quis in arenam nisi pomum
misisse velit (“No-one shall throw anything into the arena but
fruit”) in the edict we shall need to establish the exact meaning of pomum
(“fruit”).
D.
50.16.205 (Paul. 4 epit. Alf. dig.): Qui fundum vendidit, “pomum”
recepit: nuces et ficos et uvas dumtaxat duracinas et purpureas et quae eius
generis essent, quas non vini causa haberemus, quas Graeci
τρωξίμους appellarent, recepta
videri.
In his summary of Alfenus’ Digests[52],
Paulus wrote of someone who was selling an estate and kept the
“fruit” (pomum) for
himself, explaining that apparently he kept the nuts, figs, and grapes which
were firm and purple, and other of the kind which cannot be used for
wine-making. Hence it would appear that the term pomum meant fruit intended to be eaten[53],
as confirmed by the corresponding Greek term, trwvximo", “edible”. Significantly,
Alfenus was a contemporary of Cascellius, hence we may apply this definition to
the situation in question.
Cascellius’ retort suggests that
the semantic scope of the word pomum was
quite a serious legal problem[54].
By sheer coincidence (forte) the
question concerning the word was put to him at the time when the edict was
issued[55].
We do not know why the client asked him whether a nux pinea could be regarded as a pomum, and in connection with which legal institution. It might
have concerned usufruct or a contract of sale and purchase, or an inheritance.
But what should we make of the term nux
pinea?
Plin. Mai. 15.35: Reliqui arborum fructus
vix specie figurave, non modo saporibus sucisque totiens permixtis atque
insitis, enumerari queunt. Grandissimus pineis nucibus altissimeque suspensus.
intus exiles nucleos lacunatis includit toris, vestitos alia ferruginis tunica,
mira naturae cura molliter semina conlocandi.
Pliny the Elder’s text makes it
clear that nux pinea meant the pine
cone, which contains numerous nuclei
– small nuts[56].
So the legal issue was whether pine cones, containing nuts used for culinary
purposes, may be regarded as edible fruit[57].
The part of Cascellius’ reply
extant in Macrobius carries a reference to the edict: if a pine cone is thrown
at Vatinius, it is to be recognised as a pomum.
But we do not know Cascellius’ ultimate solution to the problem.
Nonetheless, we can certainly confront Cascellius’ opinion with the ratio of the aediles’ edict.
The magistrates prohibited the throwing
of anything into the arena except for pomum,
after Vatinius had been pelted with stones. The aim of their regulation was to
stop violence and prevent the disruption of public order. What the aediles seem
to have meant by pomum were soft
fruits, which could not have hurt anyone. A pine cone does not meet this
condition: it is closer to a stone than to a peach…
Cascellius’ joke shows his profound
resentment of Vatinius. Although his political career came to an end at the
quaestorship[58],
Cascellius was known for his steadfast opinions and resolution. Under the
triumvirs he refused to compile formulae for their decisions[59];
and he ventured on bold assertions on the period when Caesar was in power,
explaining that there were two circumstances which allowed him to do so freely
– old age and childlessness[60].
Not surprisingly, then, he was forthright in his enunciations, in his jocular
political comments, at a time when it did not yet require such a high level of
civil courage.
The purpose of
the edict Ne quis in arenam nisi pomum misisse velit issued by the
aediles was to prevent breaches of the peace by disgruntled spectators at
gladiators’ games. It prohibited the throwing of anything except fruit
into the arena. The penalties for the infringement of these provisions were
determined by the aediles’ powers of coercion, and ranged from fines,
taking a pledge, to arrest and imprisonment. The edict was issued at the request
of Vatinius, who had been pelted with stones during the games he had organised.
The reason why the spectators behaved in such a violent manner was probably the
fact that at the time Vatinius was a candidate for the praetorship, and holding
games in such circumstances was a form of electoral corruption. Since Clodius
was one of the aediles at the time, we may put forward an extremely appealing,
though unverifiable conjecture that Vatinius turned to him for help. Meanwhile
Cascellius, a master of witty remarks, took the opportunity of answering a
client’s question on the semantic range of the term pomum to annoy
an unpopular politician by saying, «If you cast a pine cone at Vatinius,
then it is a fruit!».