The lex Ovinia, or more properly, the plebiscitum Ovinium, is a plebiscite that transferred the power to determine membership in the Roman Senate from the consuls or chief magistrates to the censors. Its date is uncertain, but it was probably passed in or just before 318 bce, when evidence of its effect is first seen. The lex Ovinia therefore postdates the lex Valeria Horatia (see lex Valeria de provocatione) of 449 bce, which had stipulated that plebeian legislative enactments applied equally to patricians as to plebeians (see plebs). Nevertheless, the patriciate apparently disapproved of the legislative authority invoked in the case of the lex Ovinia, objecting to the use of a plebiscite to address such an issue, although it seems not to have opposed the provisions of the law. A later lex Hortensia of 287/6 bce, another plebiscite which decreed forcefully that such acts by the concilium plebis should bind the entire populace, seems to have settled this issue.
Historians’ source for the lex Ovinia is Festus 290 L. Festus’s epitome of Verrius Flaccus’s De Verborum Significatu is an invaluable source, not least because very few fragments of Flaccus’s monumental work remain, but its scope and structure often do not allow for an integral understanding of the legal and political events referenced. Festus states that before the lex Ovinia, the Senate consisted of those individuals whom each year’s consuls, dictator, or military tribunes (see tribuni militum) with consular power chose to advise them. In the previous system that Festus briefly describes, the chief magistrates selected their closest associates from among the patricians and next from among the plebeians, and in so doing continued the practice developed in the regal period. With the introduction of the lex Ovinia, the censors were required to enroll in the Senate all the best men from the whole order, and therefore, those who were not included or were removed from their positions were considered dishonored. Festus emphasizes that with the passage of the lex Ovinia, the basis for removal and subsequent exclusion became, at least nominally, moral rather than partisan.
If Festus’s description of the composition of the Senate prior to this law is to be believed, the consequences of the lex Ovinia are enormous, as the law marked a change not only in the magistrates who determined membership in the Senate, but also in the fundamental relationship between magistrates and those charged with advising them and reviewing their actions. In order to appreciate this possible change, a description of the “traditional view” of the Republican Senate prior to the lex Ovinia, as it has been called, is necessary.
This traditional view, at least in its central aspects, is the consensus understanding of modern scholars. Scholars who endorse this view debate many of its details, and the sources on which they rely are not perfectly in accord; there are also disagreements about whether or how to reconcile the different groups mentioned in the sources with terms that gain currency later, such as patres maiorum gentium and patres minorum gentium. Nevertheless, according to this view, the Senate of the early Republic consisted of patricians who were heads of their households (patres familias) and, perhaps, met a minimum age requirement, as well as plebeians who were enrolled to bring the number of senators to three hundred. It is likely, on this view, that the former group comprised the patres and the latter the conscripti of the familiar formulation, with each patrician house having a hereditary right to provide a senator, while the elevated plebeians could not pass on the distinction to their heirs. Crucially, individuals of both categories were members for life, and vacancies were therefore to be filled only in the case of a senator’s death or exile. In such situations, the consuls, dictator, or military tribunes with consular power would fill the empty rank(s), selecting first from among the qualified patricians and then from among the plebeians. On this understanding, the chief magistrate would choose particular individuals only if the number of qualified patricians was greater than the number of vacant seats, or if the number of qualified plebeians was greater than the number of vacant seats remaining after the qualified patricians had been enrolled.1
The divergences between the traditional view and the implications of Festus’s description of the Senate that predated the lex Ovinia are profound, and unsurprisingly there has never been a convincing reconciliation of the two.2 Of the several discrepancies, a principal difference is the security of tenure of any seat in the Senate: whereas the traditional view holds that senators retained their positions for life, Festus suggests that, in theory, the entire Senate could change on a yearly basis. In reality, such drastic upheaval would be extremely unlikely, considering, among much else, that prospective magistrates required the support of existing members of the Senate for their election, and that the broader structure of political allegiance was antithetical to such dramatic swings. Nevertheless, the chief magistrate might exercise discretion over a significant minority of the Senate, and, if the magistrate chose from among his closest friends as Festus relates, being a patrician paterfamilias would not guarantee membership in the Senate.
Festus tells us that upon the passage of the law, the censors were required to select the best men ex omni ordine, which translates as “from every order,” or more likely, “from the whole order.”3 Although Festus does not explicitly say that the lex Ovinia enshrined standing within the sequence of political offices as the rubric for selection, scholars have assumed that the law’s passage resulted in a heightened importance for the cursus honorum in the determination of who qualified as the best men, as the attainment of political office was certainly indicative in the Roman mind of the excellence sought. Scholars have thereby argued for an increasingly systematic means of determining enrollment in the Senate following the passage of the lex Ovinia, as well as the law’s instituting or reaffirming life tenure for unoffending senators. The basis for inclusion in the Senate seems to have shifted from either of the two preceding determinants—that is, being a patrician paterfamilias or being enrolled as a plebeian—to the holding of a certain magistracy. Although scholars disagree on whether it was sufficient to be elected curule aedile or even quaestor, attaining the former likely guaranteed membership in the Senate for the remainder of one’s life after the year in office, so long as one did not run afoul of the censors. Scholars have not differentiated between patricians and plebeians in terms of this system of qualification, and posit that after the lex Ovinia a seat in the Senate held by a patrician could not be passed down to his heir.
Constructing a satisfactory picture of an early Republican institution will always be difficult and stimulating, but the case of the lex Ovinia is particularly thought-provoking because the one source that describes this fascinating law profoundly disturbs modern historians’ understanding of the situation that produced the law, and that the law may have dramatically changed.
Cornell, Timothy J. “The Lex Ovinia and the Emancipation of the Senate.” In The Roman Middle Republic: Politics, Religion, and Historiography c. 400–133 B.C. Edited by C. Bruun, 69–89. Rome: Institutum Romanum Finlandiae, 2000.Find this resource:
Realencyclopädie der Classischen Altertumswissenschaft, s.v. “Senatus.”Find this resource:
Lintott, Andrew. The Constitution of the Roman Republic. Oxford: Oxford University Press, 1999.Find this resource:
(1.) See T. J. Cornell, “The Lex Ovinia and the Emancipation of the Senate,” in The Roman Middle Republic: Politics, Religion, and Historiography c. 400–133 B.C., ed. C. Bruun (Rome: Institutum Romanum Finlandiae, 2000), 69–73. See Andrew Lintott, The Constitution of the Roman Republic (Oxford: Oxford University Press, 1999), 67–68, for a discussion of some of the implications of the system described.
(2.) See Cornell, “The Lex Ovinia and the Emancipation of the Senate,” 73–75, for a description of some of the attempts to find coherence.
(3.) Cornell, “The Lex Ovinia and the Emancipation of the Senate,” 79–83.