Philologus 157 2013 1 87–93

Harold Mattingly

THE LEX REPETUNDARUM OF THE TABULA BEMBINA

Ever since Mommsen’s magisterial republication in 1863 this extortion law has
been seen as a law of C. Gracchus1. In more than a century after Mommsen’s edition
the one dissenting voice was that of Jerome Carcopino. He reverted to Carl Klenze’s
view that it was the Lex Servilia of C. Servilius Glaucia, but he won no support 2.
Fourty years after Carcopino I reviewed his view with fresh arguments. But I had no
more success than he had 3.
In 1996 Michael Crawford, Andrew Lintott and I published a complete new
edition of the law. Although I agree with most of the commentary I maintained my
view of the law’s date and identity, while they stuck firmly to the accepted attribution
to C. Gracchus 4. In the last twenty-five years I have become more convinced than
ever of my ‘heresy’. I would launch a new attack, based essentially on my original
findings in late 1960s.

1. The lex iudicaria of C. Gracchus

Mommsen realized that all our varied ancient sources ascribed only a lex iudicaria
to C. Gracchus. But he insisted that Gaius must have gone on to reorganisze com-
pletely the whole extortion process. He did this through the Lex Acilia (the Bembine
law), which was proposed – like the Carthage colony – through a fellow tribune5.
But was the Lex Acilia an extortion measure rather than the lex iudicaria of Gaius?
In Verr. I 17, 51 Cicero appealed to the president at Verres’s trial: ‘fac tibi paternae
legis Aciliae veniat in mentem, qua lege populus Romanus de pecuniis repetundis
optimis iudiciis severissimisque iudicibus usus est’. I would interpret this in the light
of what Cicero says of the Lex Plautia of 89 BC (Ascon. in Cornelianum p. 79C):

1 CIL 1, 198. The bronze tablet – with the extortion and the agrarian law on its two sides – was given to
Cardinal Pietro Bembo by the Duke of Urbino c. 1500.
2 Carcopino (1929) 222–37. Most reviewers dodged Carcopino’s challenge. But it was firmly rejected by

Gelzer (1929) 646–80.

3 Mattingly (1969) 125–43 and (1970) 154–68.

4 Crawford (1996) I, 1, 39–112. For rejection of my view see p. 51 f. and the more considered statement of

the accepted case in Lintott (1992) 166–9.

5 CIL 1, 198, 56.

DOI 10.1524/phil.2013.0007
88 Harold Mattingly, The Lex Repetundarum of the Tabula Bembina

‘memoria teneo cum primum senatores cum equitibus Romanis lege Plotia iudicarent,
hominem dis et nobilitati perinvisum Cn. Pompeium causam lege Varia de maiestate
dixisse’. Q. Varius and Cn. Pomponius as tribunes dominated the political scene in
90 BC. But then came the Lex Plautia and Varius was condemned under his law. That
was a notable success for his enemies. Cn. Pomponius was also prosecuted: but he
somehow escaped only to fall victim to Sulla seven years later 6. Cicero could have
said that thanks to the lex Plotia the Roman people enjoyed excellent court processes
and most severe jurors de maiestate.

2. Ampliatio and comperendinatio

Cicero (Verr. II 9. 26) said – a little hesitantly – that Glaucia introduced comperen-
dinatio – the formal division of an action into two parts: ‘verum, ut opinor, Glaucia
primus tulit ut comperendinaretur reus: antea vel iudicari primo poterat vel amplius
pronuntiari’. The Lex Repetundarum deals with ampliatio in lines 47–50. I present a
fairly basic text, taking ‘amplius’ bis from Mommsen (1863) and suggesting my own
[---quei iterum negarint iud]icare and in uno iud[icio deixerint].
47 [sei pars plus una iudicium quei aderunt, se non posse iudic]are deixerit praetor
(quei) ex h. l. quaeret, ita pronon[tiatio ‘amplius’ --- eorum iudicu]m, queiquomque
aderunt, iudicare i[ubeto ---lacuna]
48 [ ---eis iudicibus, quei iterum negarint iu]dicare is HS n. decem milia, quotiens-
quomque ‘amplius’ bis in uno iud[icio deixerint, multam deicito---tu]m quam ob rem
et quantum pecu[niae multam deixerit---lacuna]
49 [---vac. De] reis quo modo iudiceto vac. ubei duae partes iudicum, quei ader[unt,
sibi liquere deixeint---tum pr. quei ex h. l. quaeret, facito utei eis iudice]s, quei iudicare
negarint, semovant]ur---lacuna]
50 [---ea]m rem agito 7.

After the first allowed ampliatio a heavy fine is imposed on any still obstinate
jurors and the reason for it is publicised. Mommsen in 1863 saw that this came close
to comperendinatio 8. He could really have gone further. Carcopino, adopting his
‘amplius’ bis, argued strongly that these lines amounted to virtual comperendinatio 9.

6 Badlian (1968) 465–75 rightly corrected Cn. Pompeium to Cn. Pomponium. For Varius and Pomponius

see Cic. Brut. 89. 304–5; 90. 308 and 311.

7 Sherwin-White (1972) 87 denied that ‘amplius’ dicere could be used of a jury. But Charisius (GLK 1, 195)

made it eqivalent to ampliare or negotium deferre.

8 CIL 1, 1. 198, 67: ‘ceterum multam hanc legis Aciliae, ubi plus semel iudices ampliarint, viam aperuisse

apparet ad comperendinationem legis Serviliae, qua post ampliationem legitimam denuo ampliare iudices
prohibentur.’
9 Carcopino (1929) 220–7.
 Philologus 157 (2013) 1 89

Mommsen, however, later changed his mind, persuaded by Rudorff, and proposed
‘amplius bis’ = ‘more than twice’ instead 10. Some scholars have even gone so far as to
insist that several more ampliationes might follow after the first. Their number would
be limited only by how far jurors would be prepared to indulge in cussedness or how
far the reus would compensate them financially 11. That surely is going too far.
Finally we must be clear about amplius bis. Though amplius is found in Lex
Repetundarum 2 and 23 in the sense of ‘more than’, the presence almost certainly of
amplius in line 47 makes ‘amplius’ bis in 48 hard to gainsay. The jurors would be
reluctant either to acquit or condemn at the first session, for fear of being thought
either corrupt or cruel 12. The division of the action into two parts would now become
the norm.

3. Iudices dediticii and the Lex Repetundarum

In pro Plancio 17. 41 Cicero exclaims ‘an vero nuper clarissimi cives nomen editicii
iudicis non tulerunt, cum ex CXXV iudicibus principibus equestris ordinis V et LXX
reus reiceret, L referret, omniaque potius permiscuerunt quam ei legi condicionique
parerent’. The very thought of that kind of juror had driven those distinguished
citizens to the brink of civil war in 88 BC 13.
Now editicii iudices are found in Lex Repetundarum 21–5. The prosecutor issues
a list of 100 jurors, from which the reus will choose 50. These then form the trial jury.
Is this system fundamentally different from that in pro Plancio? Both leave the trial
jury at 50. Geib, I think, was justified in arguing that Cicero misremembered the first
figure some thirty years after Glaucia’s law was repealed by Sulla14. For Cicero iudices
editicii were inseperable from the idea of acerbitas and was not Glaucia’s law describes
as acerbissima 15.

4. Lex Repetundarum 76–8 (= 83–5), and Lex Tarentina 2–12.

In 1969 I claimed that these two texts were almost equal in total length and in
constituent parts, whenever this could be checked. Did they in effect represent the

10 Mommsen (1904) 57.

11 See Balsdon (1938) 109; Sherwin-White (1972) 87.
12 For cruelty see ad Herenn. 4, 36: ‘nam quid fuit, iudices, quare in sententiis ferendis dubitaveritis

aut istum hominem nefarium ampliaveritis … hic vos eriti estis, si primo coetu condemnassetis’ ne crudeles
existimaremini?
13 On the meaning of omniaque potius permiscuerunt see my case in Mattingly (1970) 157 f. and (1975)

260 f. and compare Cic. De off. 2, 75: ‘tantum Italicum bellum propter iudicorum metum excitatum’.
14 Geib (1843) 314.

15 On acerbitas see pro Plancio 15. 36–7, 16. 41, 17. 42. For the acerbissima lex Servilia (pro Balbo 23. 54) as

Glaucia’s law see Lewick (1967) 256 f.

90 Harold Mattingly, The Lex Repetundarum of the Tabula Bembina

same text 16? This is possible only if my observation of a likely join between the
bottom of the B fragment and the very top of D should prove correct. Now Michael
Crawford had the fragment relocated and photographed in Naples in 1992. The join
was proved. There were thus c. 340 letters in a line on the Lex Repetundarum side as
against Mommsen’s c. 400 17. Crawford and Lintott summarily dismissed my idea in
Roman Statutes I. I. 52. There were, they claimed, two fatal objections. But only the
second has any real force. I Lex Repetundarum 76 f. (= 83 f.) we have [---ipse ceivis
Romanus fileique, quei eiei gnati erunt, quom] ceivis Romanus ex hace lege fiet,
nepotesque [d]um eiei filio [gnateis ceiveis Romanei iustei sunto---]. In Lex Tarentina
8 we have [---ipsei libe]risque eius nepotibusque eo filio gnatis. Now Crawford and
Lintott missed one crucial point. The Lex Repetundarum phrase comes in the chapter
about non-Roman prosecutors becoming citizens. Lex Tarentina 8 is dealing with
Roman prosecutors. The formula could be different in that case. In the SC de Asclepiade
of 78 BC immunity is offered to certain non citizens, their children and grand-
children 18. In Octavian’s letter about Seleukos of Rhodos he, his parents, his children
and his wife are given citvitas and immunitas 19. In Octavian’s edict on veterans’ privi-
lges the veterans themselves, their children and their wives are given immunitas and
are recoginzed as citizens optimo iure optimaeque legis 20. Finally in military diplo-
mata from Augustus on veterans are granted civitas for themselves, their children and
their wives21. These parallels fit the pattern already seen in Lex Tarentina.
The textual identity between Lex Repetundarum and Lex Tarentina extends
beyond the clauses on prosecutors’ rewards to a completely new chapter, apparently
on publcising the new law. If I was right in suggesting [---se]natei c[onsulto--] in Lex
Repetundarum 90 – and my critics seem to admit it – then Lex Tarentina 15 f. picks it
up with [---‘uteique--q]uei id consuluerit quive ad id scribundum aderit’ 22.
The usual objection to my claim that the two texts are identical is that they are
tralatician 23. Now we know that Sulla took over almost verbatim a chapter of
Glaucia’s extortion law and that from him it passed to Caesar 24. Similarly Sulla incor-
porated part of C. Gracchus’ law de quis iudicio circumveniatur in his statue de vene-
ficiis: here there must have been a degree of adaption to the new context 25. But I have
not been able to find a single example of more than one chapter being so taken over.
There are several examples of tralatician chapters in Roman municipal legislation, but

16 Mattingly (1960) 140–2 and (1979) 486.

17 See Crawford (1996) II Pl. 1, 1 with Figure III, 1.
18 CIL I2 588 (Greek text 12 f.); FIRA I, no. 35, I. 255 f.
19 FIRA I, no. 55, p. 310 ff.; II. 18–20.
20 FIRA I, no. 56, p. 316 f., 3 and 8–12.
21 CIL 16. 158, 5–6 (Domitian).
22 See Crawford (1996) I, I. 112.
23 See Griffin (1973) 121; Sherwin-White (1972) 86.
24 Cic. pro Rab. Post. 4. 9 (totidem verbis).
25 Cic. pro Cluentio 54. 148: Ewing (1960) 94–6.
 Philologus 157 (2013) 1 91

never of more than one chapter a time 26. So the two texts under examination are
identical and the Lex Repetundarum is Glaucia’s law. I have now a clinching ar-
guement for this thesis.

5. Lucilius 573–4 Marx and Q. Scaevola’s trial in 119 BC

In 1987 I agreed with Marx that the Lucilian couplet (573–4 Marx)

Calpurni saeva lege in Pisonis reprendi

Eduxique animam in primori<s fauc>ibus naris

came from the satire (in book 29) on Q. Granius’ banquet for C. Licinius Crassus as
plebeian tribune in 107 BC 27.
Marx attributed his fragments 82–90, which concerned the trial of Q. Mucius
Scaevola Augur, to Lucilius’ second book. There were clear traces of a criminal trial in
that book but Marx was surely wrong in arguing that Lucilius could not have dealt
with such a trial in more than one book 28. The elder Pliny used Marx 84f. as evidence
that these Romans were familiar with the elaborate mosaic pavements before the
Cimbirc War of 105-100 BC29. The couplet should be given to Lucilius twentiethed
book in 107 BC. Long after my 1987 article, I was amazed to find that Crawford and
Lintott accepted my thesis, without citing my article, as an accepted fact! They wrote
in Roman Statutes 1. 1 on lines 73–5 that ‘The words fuit fueritve find a sufficient
explanation in the possibility that there were cases pending while this statute was
being passed. But it is manifest on any showing that there is no reason to suppose that
the passage of this statute excluded actions under th Lex Calpurnia or the Lex Iunia.
Note that a saeva lex of a Calpurnius Piso appears in Lucilius’ account of the trial of
Q. Scaevola in 119 BC’30. I find this interpretation of the evidence astonishing.
The adjective saeva applied to Piso’s law and the speaker’s indignant contempt for
it imply that the law was the extortion law governing Scaevola’s trial. Marx thought
that the speaker was Licinius Crassus and one might fairly compare the contemperate
language which he employed in supporting Caepio’s lex iudicaria in 106 BC: ‘eripite
nos ex miseriis, eripite ex faucibus eorum, quorum crudelitas nisi nostro sanguine non
potest expleri’ 31. Marx 573 f. seems to me fatal to the attribution of the Lex Repetun-
darum to C. Gracchus. Attribution to Gaucia leads to a radical reappraisal of Glau-
cia’s stature as a reformer. The just praise that Sherwin-White gave to Gaius as the

26 See Lex Col. Gen. (Crawford 1996, I, 25. 104), Lex Manilia Roscia (Crawford 1996, II, 54 K[aput] III),

Lex. Mun. Tarentini (Crawford 1996, I, 15. 32) and Lex Col. Genitivae 75 and 77.
27 Marx, Lucilius II (1905) 211–4 and Prolegomena, p. XLIX; Mattingly (1987) 76–81.

28 Mattingly (1987) 76–81.

29 Marx, Lucilius I, XXVII and II. 39 ff.: Pliny NH 26. 85

30 Crawford (1996) I, 1. 110. See also Lintott (1992) 154.

31 Cic. de Orat. I 225.

92 Harold Mattingly, The Lex Repetundarum of the Tabula Bembina

accepted author of the Lex Repetundarum 32 should now be transferred to Glaucia

who must be absolved from Cicero’s hostile low assessment 33.

Appendix

The likeliest guess for the proposer of the Lex Iunia was always M. Iunius D. F. Sila-
nus (cos. 109 BC). Mommsen chose him, though his proposed dating of c. 132 BC
was manifestly too early. The normal gap between tribunate and consulship in the late
second century BC was from 8 to 12 years. See the evidence on C. Carbo, C. Coelius
Caldus, C. Marius, L. Crassus, M. Drusus, Q. Scaevola Augur, M. Minucius Rufus,
L. Bestia, C. Memmius and Cn. Ahenobarbus in Broughton, Magistrates I, 517–556.
Silanus’ tribunate will fit perfectly in 118 or 117 BC.

Bibliography
E. Badlian, Quaestiones variae, Historia 18 (1969) 447–491.
J. P. V. D. Balsdon, PBSR 14 (1938) 109.
T. R. S. Broughton, The magistrates of the Roman Republic I, New York 1951.
J. Carcopino, Autour des Greques. Études critiques, Paris 1928.
M. Crawford (ed.), Roman Statutes I–II, London 1996.
U. Ewins, Ne Quis Iudicio Circumveniatur, JRS 50 (1960) 94–107.
G. Geib, Römischer Criminalprocess, Berlin 1843.
M. Gelzer, Rev. zu Autour des Gracques. Etudes critiques by Jérôme Carcopino, Gnomon 12. 5 (1929)
648–660.
M. Griffin, The Leges Iudicariae of the Pre-Sullan-Era, CQ n.s. 23. 1 (1973) 212.
B. M. Levick, Acerbissima Lex Civilia, CR n.s. 17 (1967) 256–258.
W. Lintott, Iudicial reforms and land reform in Roman Republic, Cambridge 1992.
H. B. Mattingly, The Two Republican Laws of the Tabula Bembina, JRS 59 (1969) 129–143.
H. B. Mattingly, The Extortion Law of the Tabula Bembina, JRS 50 (1970) 154–168.
H. B. Mattingly, The Character of the Lex Arcilia Glabrionis, Hermes 107 (1979) 478–488.
H. B. Mattingly, Philologus 151 (1987) 76–81.
C. Lucilii Carminum reliquiae rec. enarrauit Fridericus Marx, Leipzig 1905.
Th. Mommsen, CIL I, 1863.
Th. Mommsen, Gesammelte Schriften 1, 1, Berlin 1904.
A. N. Sherwin-White, The Date of the Lex Repetundarum and its Consequences, JRS 62 (1972) 83–99.
A. N. Sherwin-White, The Lex Repetundarum and the Political Ideas of Gaius Gracchus, JRS 72 (1982)
18–31.

40 Grantchester RD
GB - Cambridge CB3 9

32See Sherwin-White (1982) 18–31.

33Cic. pro Rab. Post. 14 and Brutus 224: ‚longe post natos homines improbissimus C. Servilius Claucia,
sed peracutus et callidus cum primisque ridiculus’. See also pro Rab. Post. 114 (homo impurus) and de Orat. III
164 (stercus curiae).
 Philologus 157 (2013) 1 93

Abstract

Ever since Mommsen’s magisterial 1863 edition, the extortion law of the Tabula Bembina has been seen as a
law of Gaius Gracchus. Since Mommsen’s intervention, only Carcopino and myself have seriously challenged
the consensus. However, the sources imply that Gaius proposed a lex iudiciaria, not an extortion law, and,
further, the role of the iudices editicii and the probability that chapters from the Lex Repetundarum on the
reward for successful prosecutors were repeated in the Lex Tarentina of 104/3 BC together suggest
that Klenze was right after all in identifying the law as the law of C. Servilius Glaucia. Lucilius’ apparent
connection of the fierce Lex Calpurnia with Q. Scaevola’s trial in 119 or 118 BC seems to be the clinching
evidence.

Keywords: ampliatio, comperendinatio, iudices editicii, Lex Calpurnia, tralatician chapters