we are told, introduced (or at least first heard of ) with Marcellus in 211,
“dropped” soon after, and “suddenly reappears” in 185. And Mommsen
was so confident of the legal framework he had reconstructed for the tri-
umph that he was happy enough to include in it a “rule” that the
Romans never strictly enforced.59 Of course, regulations are not always
obeyed, and they may not be systematically applied, but nonetheless
there is something decidedly circular about many of these arguments.
The whole process is uncomfortably similar to reconstructing the rules
of the road from a series of disconnected video-clips of traffic flow and a
handful of parking tickets.
There are, however, even more imponderable issues raised by the an-
cient accounts of triumphal decision-making on which our modern re-
constructions of the rules and criteria depend. Livy was writing in the
reign of the emperor Augustus, almost two centuries after the major se-
ries of triumphal debates he describes. We cannot know whether the dif-
ferent arguments he puts into the mouth of his third- and second-cen-
tury senators reflect accurately or not the points raised at the time. It
would not be impossible for him to have had at least indirect evidence of
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the tenor and content of such senatorial discussions. But it is much
more likely that some element, at least, in his representation of these
senatorial sessions derived from his own attempts (or those of his imme-
diate sources) to make sense of the decisions reached.60
Like us, Livy may well have been confronted with apparently con-
flicting and changing practice in the award of triumphs, which he at-
tempted to explain by the arguments from rule, precedent, or political
rivalry put into the mouths of his senatorial participants. Why did they
decide not to vote a triumph to X? Because he had not brought his army
home, because he held an irregular command or fought with an army
technically under the control of another . . . and so on. It cannot be ir-
relevant to this process (and has potentially serious implications for the
modern emphasis on imperium as the crucial qualification for a tri-
umph) that the period in which Livy was writing was exactly the period
when the first emperor was restricting the institution of triumph to in-
clude only himself and his family, and may well have been using his own
overriding imperium as one of the central justifications for that restric-
tion (as we will see in Chapter 9).
Similar problems underlie the attempts of ancient scholars them-
selves to systematize the triumphal rules. The key text here comes from
Valerius Maximus’ Facta et Dicta Memorabilia (Memorable Deeds and
Sayings), a compendium of themed moral and political anecdotes drawn
from republican history composed in the reign of the emperor Tiberius.
One chapter is concerned specifically with the criteria for celebrating a
triumph, including the famous requirement that a minimum of 5,000
of the enemy needed to have been killed in a single battle. This has often
been taken as an authoritative guide to “triumphal law.”61 The probabil-
ity is, however, that Valerius Maximus was operating in much the same
way as modern scholars, in extrapolating rules from the various argu-
ments and contradictory practices in republican triumphal history—
that he was, in other words, a Mommsen avant la lettre. The more
we scratch the surface of his rules and regulations, the more fragile they
seem.
Valerius’ chapter starts with two “laws” (leges). The first is the 5,000-
Th e
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dead rule. The second, “passed by Lucius Mar[c?]ius and Marcus Cato
when they were tribunes,” penalized generals who lied about enemy ca-
sualties or Roman losses and demanded that “as soon as they enter the
city they take an oath before the city quaestors that their dispatches to
the senate had been truthful in both these respects.” In fact, neither rule
is ever explicitly referred to in any account of triumphal debates by any
surviving classical author whatsoever. We have no idea at what date the
first law, such a favorite of modern discussions, is supposed to have been
passed, but its existence is hinted at only once in any other writer. The
Christian historian Orosius, discussing in the early fifth century ce the
contested triumph of Appius Claudius Pulcher in 143 bce, claims that he
first lost 5,000 of his own men, then killed 5,000 of the enemy. This
claim has all the appearance of those favorite (and imaginary) Roman le-
gal conundrums (what do you do about the man who has killed 5,000 of
the enemy but has lost exactly the same number of his own men?) and is
more likely dependent on Valerius Maximus rather than independent
confirmation of his “facts.”62
The second law certainly reflects the general concern about false re-
porting evident in the discussions at the time of Cicero’s thanksgiving.
But it is entirely unattested anywhere else, never appealed to, and raises
a host of tricky questions. Where was this swearing supposed to take
place, inside or outside the pomerium? And if it was a law passed by
Cato, is it not strange that neither he nor Cicero made even passing allu-
sion to it in their exchanges over Cicero’s triumph?63
The rest of Valerius Maximus’ chapter is mostly taken up with cases
of disputed triumphs and hardly inspires confidence in a clear and
agreed upon framework of triumphal law—or, at least, not as he re-
constructed it. The first case focuses on the dispute between praetor
Quintus Valerius Falto and consul Caius Lutatius Catulus after a naval
victory in 242 bce. Falto had destroyed a Carthaginian fleet off Sicily
while Catulus had been resting up, lame, in his litter; and for his suc-
cess Falto claimed a triumph. Valerius describes a complex (and dis-
tinctly implausible) process of legal adjudication, ending up with the
decision that Catulus, not Falto, should triumph because he was in over-
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all command. In fact, the list in the Forum attributes a triumph to both
generals.64
In another case, Valerius Maximus explains the failure of two com-
manders to secure triumphs for quashing revolts against Rome by refer-
ence to a regulation that such honors were awarded only “for adding
to the Empire, not for recovering what had been lost.” This is “definitely
mistaken,” as one historian has recently put in, reflecting on the scores
of triumphs which, by no stretch of the imagination, celebrated an
increase of Roman territory.65 In yet another example, stressing how
“well-guarded” triumphal law was, he examines the refusal of triumphs
to Publius Cornelius Scipio Africanus in 206 and Marcus Claudius
Marcellus in 211. Strikingly, in explaining the senate’s decision to grant
Marcellus no more than an ovation, he appeals to a quite different regu-
lation from Livy: while Livy cited the argument that Marcellus had
failed to bring his army back home, Valerius put it down to the fact that
“he had been sent to conduct operations holding no magistracy.”66
These contradictions and “mistakes” do not, of course, show that ar-
guments from precedent and “rule” would have played no part in sena-
torial discussions on the award of triumphs, or that these were not