Chapter 1

Our first case is hardly a matter of criminal law in the strict sense. It is legally interesting because it provided, or was made to provide, a model for some future developments, but it is doubtful if there was any pre-existing legal justification for the actions taken. On the other hand, the episode does undoubtedly reveal Roman attitudes – as much, perhaps, those of the end of the Republic as of the early second century BC – to crime and punishment. We are given by Livy an extraordinarily detailed story, told in highly coloured language, designed to produce reactions of shock, horror, and prurience, and at the same time to show the Senate as the guardian of the Roman people.

The sources

In 186 BC there occurred one of the most bizarre events in the domestic history of Rome. The cult of Dionysus or Bacchus was found to be a public danger, and was vigorously suppressed, not only in Rome but also throughout Italy. Interestingly, the name Liber does not appear in Livy’s account, but Liber, a traditional Roman god, had long been identified with Dionysus, and his rites, together with those of his sister Libera, had been celebrated, particularly with theatrical performances – ludi scaenici – probably since the fifth century BC. The Liberalia, largely a plebeian cult, came immediately after the Ides of March, the day when Republican magistrates entered office, and the festival carried a symbolic reference to the freedom that followed the end of the Monarchy, the regifugium, celebrated at the end of February. ‘If the Bacchic cult was to be distinguished from the traditional worship of Liber, some creative reinterpretation was going to be necessary.’1 Our knowledge of the affair comes from a contemporary inscription recording the substance of the Senate’s resolutions, found in southern Italy, at Tiriolo near Bruttium,2 and from the extraordinarily lengthy account of Livy.3 While we cannot be sure that these two testimonies are completely independent, Livy does not directly quote the senatusconsulta, and so it seems quite likely that he had only heard of them in his sources, not actually seen them. We shall turn first to Livy’s account.

The cult of Bacchus

Rumours of some sort were clearly already afoot at the time of the elections for 186, for the new consuls, Spurius Postumius Albinus and Quintus Marcius Philippus, were not assigned to the troublesome and as yet unpacified region of Liguria, as in the previous year, but were both appointed to the investigation of secret conspiracies.4 Livy then gives a background of sorts.5

It began with the arrival in Etruria of an obscure Greek, a petty priest and fortune-teller, not the master of any of those many arts which that most educated people has brought us for the cultivation of our minds and bodies; nor was he someone who, while he might mislead men’s minds, would do so by openly teaching his creed and setting out publicly its benefits and doctrines, but rather the celebrant of secret nocturnal rites.

No date is given, but the familiarity with the cult of Bacchus that Plautus assumes in his audiences,6 and the archaeological evidence of the Dionysiac rites, including many vases,7 suggest that this refers to a time around the middle of the third century, and certainly some decades before our story.

Livy then moves to what seems to have been the popular perception of these rites.8

There were initiations, at first communicated to only a few, but which then began to be made widely available to both men and women. In order to entice the minds of as many as possible, religion was laced with the pleasures of wine and feasting. When once wine had fired their minds, and darkness and the intermingling of men with women, and of the young with their elders, had extinguished all feelings of shame, then all kinds of depravity began to make their first appearance, since everyone had ready to hand the pleasure suited to gratifying the most susceptible side of his or her nature.

Certainly this is roughly what the world at large believed of the Bacchantes and their cult of frenzy. But the Graeco-Roman world tolerated such cults,9 even as they tut-tutted.

However, Livy then leads us into stranger territory, bearing little relation to the cult itself.

Promiscuous sex involving freeborn men and women was not the only kind of mischief. Perjured witnesses, forged seals, wills and instruments all came from the same workshop; and from it also came poisonings and domestic murders, so that sometimes it was not even possible to find the bodies for burial. The believers dared to commit many crimes by cunning, and not a few by violence. Such violence was regularly concealed by shrieks of worship and the din of drums and cymbals, so no sounds of protest could be heard from those screaming at the rapes and the murders.10

Ululation and loud music were a normal part of Dionysiac worship; it seems that Livy is seeking to blacken everything.

The story

The whore with the heart of gold

‘The infection of this evil made its way, like some contagious disease, from Etruria into Rome.’ In fact, as we have remarked, the cult was already widespread in Italy, and many scholars hold that it came from Campania.11 ‘At first the size of the City, with its greater capacity and ability to absorb such evils, concealed them; but eventually evidence reached the consul Postumius in much the following way.’12 And now we get the story of the innocent young man and the (older) whore with the heart of gold. Publius Aebutius, whose father had received his horse at public expense,13 had been orphaned while he was still under puberty. Subsequently, on the death of his tutors, he had been brought up under the guardianship14 of his mother, Duronia, and of his stepfather, Titus Sempronius Rutilius. His mother was besotted with her husband, and the stepfather had so mismanaged the ‘guardianship’ that he could not produce his accounts for it, and thus desired that his pupil either be done away with or be bound to him by some kind of unbreakable tie. The Bacchanalian rites offered one way of corrupting him. Aebutius’ mother summoned the young man and told him that, when he was ill, she had made a vow on his behalf that she would initiate him into the Bacchic cult as soon as he had regained his health, and this oath must now be discharged. He must abstain from sexual relations for ten days, and on the tenth day he would be ritually purified, and be led by her into the shrine.15

Now, Livy goes on, there was a well-known prostitute, Faecenia Hispala, a freedwoman. She had become accustomed to the trade while she was still a slave (though she was too good for it), and she continued to support herself in the same way even after her manumission. Because they were neighbours she developed an intimate friendship with Aebutius, but without doing the slightest harm to the young man’s property or reputation; for she loved and desired him of her own accord. Indeed, because his family were very mean in providing for him, he was supported by the generosity of the courtesan. The influence of their intimacy was such that, after her patron’s death, when she was under no man’s authority, she petitioned the tribunes and praetor for a tutor, and then made a will naming Aebutius as her sole heir. Because they had these assurances of their love, neither of them kept any secrets from the other, and consequently the young man told her light-heartedly not to be surprised if he absented himself for a few nights; he was to be initiated in the Bacchic rites for religious reasons, in discharge of a vow made for his recovery from illness.16

Thus far the romantic background. But when Hispala heard this, she was appalled. ‘Heaven help us!’ she said. It would be better for them both to die rather than for him to do such a thing; and she called down curses and vengeance on the heads of those who had urged him to do it. The young man, astonished both by her language and by the intensity of her distress, told her not to curse, since it was his mother who had ordered him to do it, with the agreement of his stepfather. ‘Then your stepfather’, she said, ‘– for it may perhaps not be right to accuse your mother – is working to ruin your honour, your reputation, your hopes, and your life itself.’ He was still more amazed by this and asked her what was the matter. She begged the gods and goddesses for peace and pardon if, impelled by her love for him, she told him things that should remain unspoken. Then she said that when she was a slave she had accompanied her mistress to the Bacchic shrine, but had never visited it since becoming free. She knew that it was the source of every kind of debauchery; and it was well known that for the past two years no-one had been initiated there who was over the age of twenty. As each person was introduced, he or she was handed over to the priests like a sacrificial victim; they were led away to a place which was filled with wailings, blasts of musical instruments, and the throbbing of cymbals and drums in order that the screams of anyone being forcibly raped (cum per vim stuprum inferatur) could not be heard. She therefore besought him to frustrate the plan in any way he could, and not to plunge himself into a situation where he would be compelled first to suffer and then to inflict all kinds of obscene acts. And she did not let the young man go until he had promised that he would refrain from the mysteries.17 One must have doubts about how up to date her information really was, as her attendance (and that only as her mistress’ maid) was explicitly some time before.

After Aebutius had returned home, his mother began to talk of what was going to happen so far as the rites were concerned. He said that he was not going to do any of those things, and that he did not intend to be initiated. While he was speaking, his stepfather came in and his mother immediately exclaimed that Aebutius was unable to sleep apart from Hispala even for ten nights; that he was so steeped in the allurements and poisons of that sheviper as to have lost all reverence for his parent, his stepfather and the gods. His mother poured abuse on him from one side, his stepfather from the other, and they drove him with his four slaves out of the house.18

The authorities are informed

The family row then took a more public dimension. The young man went to seek refuge with his aunt Aebutia, and explained why he had been thrown out by his mother. On her advice, he reported the matter next day to the consul Postumius,19 with no witnesses present. The consul sent him away with orders to return in two days’ time, and then asked his mother-in-law, Sulpicia, a very respectable woman, whether she knew an old lady from the Aventine named Aebutia. When she replied that she knew her to be a virtuous woman of old-fashioned morals, the consul said that he must have a meeting with her; Sulpicia was therefore to send a messenger to Aebutia requesting her to call. Aebutia came promptly; after a short while, the consul, acting as if he had come in by chance, raised the subject of her brother’s son Aebutius. Tears came to the woman’s eyes, and she began to lament what had happened to the young man, who was at present staying with her; he had been robbed of his fortune by those who should least of all have done so, and been thrown out by his mother because, being a virtuous youth, he had refused to be initiated into what – if the gods would excuse her for saying so – were rumoured to be disgusting rites.20

The consul, thinking that Aebutius sounded a reliable source of information, sent Aebutia away, and next asked his mother-in-law to summon to her house the freedwoman Hispala, who also came from the Aventine and was well known in the neighbourhood; she too was someone whom he wished to interrogate. Hispala was alarmed at being summoned to the home of so noble and important a lady without knowing the reason; but then, when she saw the lictors in the anteroom, the consul’s companions and the consul himself, she nearly fainted. She was conducted into the interior of the house where the consul, inviting his mother-in-law to be present, told her that she had no cause for alarm provided that she could bring herself to speak the truth. She should trust either Sulpicia, a woman of high standing, or himself; but she was to give him an account of what was customarily done by the Bacchanalians during their nocturnal rites in the grove of Stimula (or Semele, mother of Bacchus). When Hispala heard this, she was seized with such fear and trembling that for a long time she could not even open her mouth. Finally she pulled herself together and said that she had been initiated as a slave-girl, along with her mistress, when she was still very young; but from the time she was manumitted a number of years ago she had known nothing of what went on there. The consul praised her for not denying that she had herself been initiated, but ordered her to give similarly truthful answers to his other questions. When she denied knowing anything more, he said that if her guilt was proved by the evidence of someone else she would not receive the same pardon or consideration as if she confessed of her own accord; and he added, misleadingly, that the man who had heard the story from her had already given him a full account of it.21 Hispala, having no doubt that this must refer to Aebutius (which was true), fell at Sulpicia’s feet and began to beg her not to let a freedwoman’s conversation with her lover be turned into something so serious, involving a capital crime.22 The things which she had said to him had been to frighten him, not because she really knew anything. At this, Postumius flew into a rage, or appeared to – he had already showed himself a skilled interrogator. Did she still think that she was joking with her lover, rather than talking to the consul in the home of a most important lady? Sulpicia helped the frightened woman to her feet, spoke encouraging words to her and soothed the anger of her son-in-law. When at last Hispala had pulled herself together, after fiercely condemning the treachery of Aebutius who had thus repaid her after all she had done for him, she said that her fear of the gods, whose secret initiations she would be revealing, was great, but she was even more afraid of the human beings who might tear her apart as an informer. She therefore begged both Sulpicia and the consul to send her somewhere away from Italy, where she could spend the rest of her life in safety. The consul told her to keep her spirits up; he personally would ensure that she could safely live in Rome. At this, Hispala revealed how the rites had begun.23 Again, one must ask what credence should be given to her account; what did she know, and what did she perhaps believe. As North has remarked,24 ‘had the Roman authorities no better method of finding out how many people attended the meetings of a group they knew to be meeting regularly on the Aventine than to ask a freedwoman of dubious character?’ Some of what follows will certainly have been public knowledge.

Hispala’s story

At first, Hispala recounted, the place of worship had been reserved for women and it was not the custom for any man to be admitted to it. There were three fixed days a year on which initiations in the Bacchic rites took place, in the daytime, and it was customary for the priesthood to be held by a succession of married women. However, Paculla Annia from Campania, when she held the priesthood, had changed everything, supposedly at the behest of the gods. She had been the first to initiate men – her sons Minius and Herennius Cerrinius – and she had converted the daytime ritual into one at night.25 She also increased the initiation-days from three a year to five a month.26 From the time that the rites were held in common, men mingling with women, and with the freedom of the darkness as well, there was no kind of crime or wrongdoing that they did not commit. The men raped men more than women; any who were less willing to suffer this abuse and less active in wickedness were sacrificed as victims – it is very curious, this obsession with rape.27 The highest principle of their religion was to regard nothing as forbidden. The men, as if their minds were possessed, would convulse their bodies and utter prophecies; the married women, dressed as Bacchants with their hair dishevelled, would rush down to the Tiber carrying blazing torches which they would plunge into the river, then carry them away with their flames still burning, because they contained live sulphur mixed with lime. Some men, who refused to take part in the conspiracy, or to be associated with the crimes or to suffer rape, were said to be ‘carried off by the gods’; they were bound to a machine and whisked out of sight into hidden caves. (This could well be a ritual death and rebirth.28)So far the description of Bacchic worship seems dramatized but not unrelated to the facts as generally understood.29 But she went on to say that the number involved was very large, almost amounting to an alternative state, and included some men and women from noble families.30 If Hispala had not been attending the rites, this must have been mere rumour, and the notion of an alternative state is ridiculous. Within the last two years they had adopted a rule that no one above the age of twenty should be initiated, since they were trying to catch those whose age made them susceptible to error and to corruption.31 But, as Gruen has pointed out,32 this age-limit tends to the consolidation of the numbers of initiates rather than their expansion. He also points out that Hispala had only attended the mysteries with her owner; it was a cult for the respectable rather than the outcasts of society, and the young men initiated were clearly citizens, at least for the most part. What would such persons have to gain by overthrowing the res publica?

When she had finished her evidence, Hispala prostrated herself again at the consul’s feet and begged him, as she had before, to send her abroad. Postumius, however, asked his mother-in-law to clear some part of her house, so that Hispala could move in. Sulpicia made available the attic flat; the stairs leading to the street were blocked off, and the only access was from within the house itself. All Hispala’s belongings were immediately brought here and her household slaves sent for, while Aebutius was ordered to move to the house of one of the consul’s clients.33

The source of the romance

All this is given as the background to the consul’s discovery that there was something dangerous going on, and the scene then moves to the Senate. But this is perhaps the point to ask if the romantic story is pure fiction. It is certainly a story typical of the New Comedy, a plot which Plautus could have used: the innocent young man, the scheming stepparent and the weak or wicked real parent, the prostitute with the heart of gold. Where would Livy have taken this from? For it is virtually inconceivable that he would have invented it. One possibility: the worship of Liber seems early to have taken the form of a stage festival,34 and indeed there survives a line of the famous playwright Naevius on it: ‘We speak with a free tongue at the games of Freedom.’35 Wiseman holds that the story came to Livy ultimately from the annalist A. Postumius Albinus, consul in 151 and relative of the consul Sp. Postumius Albinus the protagonist. Further, he thinks that the annalist Postumius may have recorded as fact the details of a play written, perhaps for the games of 185, to assuage plebeian feeling after the Senate’s high-handed conduct in suppressing what was a largely plebeian cult,36 but Livy would not have known that his ultimate source lay in drama. Such plays did exist; Naevius and others had written up real events into stage performances.37 If one accepts this hypothesis, it even becomes possible that the sinister details given by Hispala are a mockery of the alleged crimes; the playwright, whoever he was, may have been ironic, distancing his story and characters from reality.

The details given of the Bacchic rites are designed to cause the maximum shock and horror, and to evoke a lubricious reaction; they are what a hostile audience might want to believe. After all, Livy, a historian loyally supportive of the Senate, was concerned to justify the suppression of the cult. But most of the cultic practices, as has been pointed out recently by such as Gruen and North,38 were almost certainly ritual, the formalized re-enactment of an original dark story (to some extent comparable to the Christian eucharist). The romance’s invention, even if Aebutius and Hispala were real people,39 may be explained away with a reasonable degree of plausibility. The difficulty with the story given by Livy concerns, not the sexual elements, whether true or exaggerated for prurience’s sake, but the forgeries and the related crimes. However, Walsh has demonstrated that Livy’s account from the meeting of the Senate onwards is historical; Livy drew on the late annalists Valerius Antias and Claudius Quadrigarius who had had access to the acta senatus.40 The early annalists, writing in Greek, wove a dramatic version of the affair, and they included Postumius Albinus. The middle annalists, writing in Latin, may have sharpened the picture of moral decline – and Livy saw moral decline as general from the early second century – by including conventional crimes such as murder and forgery.41

The Senate

So, the consul Postumius (whether or not he had the informers safely under his wing) then reported the affair to the Senate, both the information he had received and the results of his own investigations. Livy tells us that the senators as individuals were much alarmed, both on the public account by fear of social unrest, and also because they feared the involvement of their own families. (This readiness to believe such a thing also suggests that the cult was well-known.) Anyway, the Senate passed a vote of thanks to Postumius, and decreed that the consuls should undertake an extraordinary commission to inquire into the Bacchanalians and their nocturnal rites. They were to see that no harm came to Aebutius and Hispala, and to encourage with rewards other informers. Priests of the cult, male and female, were to be hunted out, not only in Rome but throughout all the towns and districts (per omnia fora et conciliabula), and put in the consuls’ charge. Moreover, edicts were to be issued in Rome and throughout Italy prohibiting initiates from assembling or celebrating their rites. And, above all, investigation was to be made into those who had come together or conspired to commit sexual or other crimes.42 This was truly a quaestio extraordinaria, an extraordinary and unprecedented act by the Senate, assuming jurisdiction not only in Rome and its territory but also throughout Italy. (There had indeed been a quaestio extraordinaria in the previous year, the trial of L. Cornelius Scipio Asiaticus,43 presided over by a praetor appointed to this office by the Senate but this, nevertheless, rested on a lex passed by the people,44 and it did not extend beyond Roman territory.)

The consuls then ordered the curule aediles to hunt out all the priests of the cult and hold them under house arrest, ready for interrogation; the plebeian aediles were to prevent any secret celebrations. The tresviri capitales were commanded to place guards throughout the City to make sure there were no night meetings, and to prevent fires;45 the quinqueviri uls cis Tiberim,46 their assistants, were to guard buildings – temples, perhaps – in their respective districts.47 This can only have inflamed the situation; what real threat can have been envisaged? Having given these orders, the consuls then summoned the populace to a contio, an informal assembly, and the consul (Postumius it must be, although his name is not given) addressed them. In this highly emotive speech he accepted that the Bacchic cult was well known to exist in the City48

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