Leges Sacratae

According to Festus:

1. “Sacratae leges sunt, quibus sanctum est, qui[c]quid adversus eas fecerit sacer alicui deorum sicut familia pecuniaque’, (‘De verborum signifcatione’, 422 Lindsay)”
   

2. “Sacred laws are so-called because anyone who violates them shall become sacer (given/ forfeited/ devoted/ sacrificed) to one of the gods, along with his family and his property”, (my translation).
   

As Gregory Pellam (referenced below, 2012, at p. 130) observed:

1. “In Festus’ formulation, any law is sacrata if it declares that [anyone who violates it] becomes sacer to a particular god.”
   

This section deals with a particular category of sacred laws: the leges sacrata militaris (sacred laws pertaining to the military sphere) used by the enemy during hostilities with Rome.  Our surviving sources record the use of a lex sacrata of this sort on four occasions:

1. ✴431 BC: according to Livy, the dictator Aulus Postumius Tubertus defeated an army that the Volsci and Aequi had:
   

2. “... raised in accordance with a lex sacrata, which was the most powerful means they possessed of compelling men to serve”, (‘History of Rome’, 4: 26: 3-6).
   

3. ✴310/9 BC: according to Livy, an unnamed Roman commander defeated:
   

4. “... the Etruscans, [who] had assembled an army in accordance with a lex sacrata, in which each man chose his comrade”, (‘History of Rome’, 9: 39:5). 
   

5. ✴293 BC: Pliny the Elder recorded that the consul Spurius Carvilius Maximus:
   

6. “... erected the statue of Jupiter that is [still] seen in the Capitol after he had conquered the Samnites, who sacrata lege pugnantibus (fought under a lex sacrata): [this statue was] ... made from their breast-plates, greaves, and helmets, and was of such large dimensions that it is visible from the statue of Jupiter Latiaris [on the Alban Mount, some some 20 km from Rome]”, (‘Natural History’, 34: 18).
   

7. (Stephen Oakley (referenced below, 2007, at p. 391) observed that, although Pliny did not give the date at which Carvilius captured this Samnite armour, his account:
   

8. “... can hardly refer to any other year but [293 BC] ...”.)
   

9. ✴191 BC: according to Livy, the proconsul Quintus Minucius Thermus defeated a Ligurian army that had been:
   

10. “ ... assembled an army in accordance with a lex sacrata”, (‘History of Rome’, 36: 38: 1). 
    

The first and last of these laws are discussed in my page Lege Sacratae (431 and 191 BC). 

Samnite Army of 293 BC

Possible locations of sites mentioned in Livy’s account of the Battle of Aquilonia (293 BC)

Black asterisk = excavated Samnite sanctuary at modern Pietrabbondante

Red dots (Interamna Lirenas  and Cales) = Latin colonies on Via Latina

Adapted from the Digital Atlas of the Roman Empire

A surviving fragment of Cassius Dio described the raising of a Samnite army that (for reasons that will become clear) can be safely dated to 293 BC:

1. “The Samnites, ... feeling it disgraceful to be continually defeated, resorted to extreme daring and recklessness, with the intention of either conquering or being utterly destroyed: 
   

2. ✴they assembled all their [remaining] men of military age, threatening with death any of their number who should remain at home; and
   

3. ✴they bound themselves with frightful oaths, each man swearing:
   

4. •not to flee from the contest himself; and
   

5. •to slay any one else who tried to do so”, (‘Roman History’, 36: 29).
   

The events that led up to this situation are described in my page on the Third Samnite War (298 - 290 BC).  Importantly, in 295 BC, the Romans had scored a victory over the Samnites and their allies at Sentinum (north of Samnium, on the border of Gallic and Umbrian territory) that became famous around the Mediterranean world.  Thus, Diodorus Siculus noted that:

1. “According to Duris [a Greek historian who was still alive at this time], the Romans killed 100,000 men in the war with the Etruscans, Gauls, Samnites and the other allies in the consulship of [Quintus Fabius Maximus Rullianus]”, (‘Library of History’, fragment, 6: 1).
   

I describe this battle in my page on the Battle of Sentinum (295 BC) .  What is important here is that, as Stephen Oakley (referenced below, 2007, at p. 348) pointed out, although this victory had  turned the course of the war in the Romans’ favour:

1. “The tough fighting against the Samnites in [294 BC] shows that, [even after their stunning victory at Sentinum]:
   

2. ✴the Romans [still] did not find it easy to penetrate into the heart of Samnium; and
   

3. ✴the Samnites were still capable of putting major forces into the field [in order to protect their borders and to mount attacks on nearby Roman territory]. 
   

4. Only after the victories of 293 BC would Roman forces [be able to] move more freely over Samnite territory.”
   

Livy began his account of the events of 293 BC by noting that:

1. “The whole of the [Samnite] army was summoned to Aquilonia, and some 40,000 men, the full strength of Samnium, were mustered there”, (‘History of Rome’, 10: 38: 5).
   

The location of Aquilonia is disputed, but it was probably at the location near Bovianum that I have marked Aquilonia ?? on map above.  In response to this development, the new consuls, Lucius Papirius Cursor and  Spurius Carvilius Maximus led armies to Atina, in the border of Roman and Samnite territory,  They then marched into Samniium, raiding as they went, before:

1. ✴Papirius camped outside Aquilonia, where he confronted the main body of Samnites; and
   

2. ✴Carvilius besieged [the now-unknown Samnite town of] Cominium, where potential Samnite reinforcements were billeted.
   

Both consuls participated in the planning of the forthcoming battle:

1. “The [Roman camps were] separated by an interval of 20 [Roman miles, or some 30 km] but Carvilius was guided in all his measures by the advice of his distant colleague; his thoughts were dwelling more on Aquilonia, where the state of affairs was so critical, than on Cominium, which he was actually besieging”, (‘History of Rome’, 10: 39: 7).
   

The Byzantine chronicler Zonaras, who wrote in the 12th century and whose ‘Epitome’ usually depended on Cassius Dio, gave a slightly different account of the Roman and Samnite troop movements at this time:

1. “The Samnites, enraged at what had occurred [at Sentinum], resorted to recklessness, with the intention of either conquering or being utterly destroyed, threatening with death the man who should remain at home.  So these invaded Campania; but the consuls ravaged Samnium, which was now destitute of soldiers, and captured a few cities.  Therefore the Samnites, abandoning Campania, made haste to reach their own land and joined battle with one of the consuls”, (‘Epitome of History’, 8: 1: 8-9 - search for ‘Campania’ in this link).
   

These accounts are not necessarily mutually exclusive: it is possible that the Samnites raised their huge army for an invasion of Campania (Zonaras), and that news of the consuls’ arrival at Atina caused themto fall back on Aquilonia (Livy).   

In any event, the key point is that, as Adriano La Regina (referenced below, 2014, at pp. 194) pointed out:

1. “The fact that the Samnites were now in desperate conditions is shown by the general levy under a special law that imposed the death penalty on i renitenti (draft dodgers) and deserters” (my translation).
   

Like the Aequi and Volsci of 431 BC, the Samnites of 293 BC resorted to forced conscription under a lex sacrata because they faced an existential threat from Rome. 

Lex Sacrata of 293 BC

As noted above, Pliny the Elder recorded that the consul Carvilius:

1. “... erected the statue of Jupiter that is [still] seen in the Capitol after he had conquered the Samnites, who sacrata lege pugnantibus (fought under a lex sacrata): [this statue was] ... made from their breast-plates, greaves, and helmets, and was of such large dimensions that it is visible from the statue of Jupiter Latiaris [on the Alban Mount, some some 20 km from Rome]”, (‘Natural History’, 34: 18).
   

Carvilius served as consul on two occasions: in 293 and in 272 BC.  On each occasion:

1. ✴Papirius was his consular colleague; and
   

2. ✴each of them was awarded a triumph over the Samnites at the end of the consular year. 
   

Pliny did not state whether Carvilius captured the Samnite armour that was recycled for his statue in his first or his second consulate, but Stephen Oakley (referenced below, 2007, at p. 391) observed that (for reasons that will become clear) it:

1. “... can hardly refer to any other year but [293 BC] ...”.
   

Scope of the Lex Sacrata of 293 BC

Pliny the Elder

All we learn from Pliny the Elder is  that the armour that was recycled for Carvilius’ statue of Jupiter came from Samnites who ‘fought under a lex sacrata’, which tells us nothing about the provisions of that law.

Cassius Dio

The fragment of Cassius Dio mentioned above recorded that, in 293 BC:

1. “The Samnites, ... with the intention of either conquering or being utterly destroyed: 
   

2. ✴assembled all their [remaining] men of military age, threatening with death any of their number who should remain at home; and
   

3. ✴bound themselves with frightful oaths, each man swearing:
   

4. •not to flee from the contest himself; and
   

5. •to slay any one else who tried to do so”, (‘Roman History’, 36: 29).
   

This indicates that the the Samnite soldiers of 293 BC had been:

1. ✴conscripted in accordance with a lex sacrata of the type described by Festus (above) ; and then
   

2. ✴bound by an oath under which they were committed (inter alia) to fight to the death.
   

Gregory Pellam (referenced below, 2015, at p. 327) observed that there is nothing in the surviving sources for the leges sacratae of 431 or 191 BC to suggest that either of them:

1. “... was a military oath sworn by the soldiers [of the respective armies. ... Rather, these leges sacratae] seem to have been [laws issued by the respective military authorities] that would compel men to [present themselves for military] service.”
   

Some scholars therefore believe that oaths were an integral part of leges sacratae.  For example:

1. ✴Stephen Oakley (referenced below, 2007, at p. 395) argued that the terrible oath described, for example, by Cassius Dio:
   

2. “... perhaps reflected the kind of oath taken by those [men who had been] recruited lege sacrata [(by means of a lex sacrata)].”
   

3. ✴Aleksandr Koptev (referenced below, at p. 1) was more explicit: he defined leges sacratae militaris such these as:
   

4. “... a kind of treaty concluded between warriors and a deity before a military campaign, [in which the warriors] most likely took upon themselves the obligation to defeat an enemy and, after the battle, to report to the gods of their success and to demonstrate the booty.”
   

However, the surviving fragment gives an extremely compressed account of what was, as we shall see, was a very complex process.

Livy

Livy gave a more detailed account of the raising of this army.  He did not say that it was raised in accordance with a lex sacrata: what he did say was that:

1. “[The Samnites] ...
   

2. ✴called upon the resources of the gods, the soldiers being like initiates ritu quodam sacramenti vetusto (in some kind of ancient oath ritual),
   

3. ✴a levy having been held throughout all Samnium nova lege (in accordance with a new law) ...”, (‘History of Rome’, 10: 38: 2-3; see Graham Pellam, referenced below, 2015, p. 328 for the details of this translation).
   

As we shall see, Livy’s subsequent account revealed that the levy was the first step in the procedure.  Thereafter:

1. ✴only the élite among the conscripts participated in Livy’s ancient ritual;
   

2. ✴during this ritual, they bound themselves by what Cassius Dio described as ‘frightful oaths’; and
   

3. ✴some of them were then selected for the so-called Linen Legion by the procedure of vir virum legere (each man choosing another). 
   

I discuss the ancient ritual, the associated oath, and procedure of vir virum legere in the sections that follow this one.  What is important for the moment is the fact that Livy’s nova lex:

1. ✴related specifically the conduct of the levy that had preceded the ancient ritual; and
   

2. ✴prescribed that:
   

3. “... if any man of military age:
   

4. •had not assembled [in accordance with] the edict of the imperatores (military commanders); or
   

5. •had departed without permission;
   

6. his life would be Iovi sacraretur (forfeited to Jupiter)”, (‘History of Rome’, 10: 38: 3-4).
   

Some scholars have therefore argued that Livy’s nova lex was, in fact, a lex sacrata, as defined by Festus (above), and that it should be considered separately from Livy’s ancient ritual (in which only the élite among the conscripts participated).  For example:

1. ✴ Salvatore Tondo (referenced below, at p. 85) argued that:
   

2. “[The phrases] lex sacrata, ritus sacramenti and vir virum legere represent three separate concepts” (my translation).
   

3. (I have not been able to consult this work directly, but Stephen Oakley (referenced below, 2007, at p. 394) reproduced the relevant sentence at note 1.)
   

4. ✴William Doberstein (referenced below, at pp. 83-4) glossed the Livian passage relating to Livy’s nova lex as follows:
   

5. “Lacking in manpower and resources, the Samnites resolved to make a final stand against Roman aggression.  In order to achieve this, [they] issued a lex sacrata, which officially conscripted all men of military age.  Those who failed to assemble or who departed without their generals’ leave were to forfeit their lives as a sacrifice to Jupiter.”
   

Gregory Pellam (referenced below, 2015, pp. 131-2) reached what seems to me to be the most reasonable conclusion on the basis of the surviving sources:

1. “... leges sacratae were not oaths.  [However, in the light of Livy’s account of the raising of the Samnite army of 293 BC], one can begin to discern the interesting relationship that seems to have existed between leges sacratae and oaths ...  Since leges sacratae were obviously intended to invite divine intervention in order to guarantee obedience to their terms, it is easy to imagine that oaths would [also] have been incorporated [into the process of raising an army in the adverse circumstances that] would make a lex sacrata desirable.”
   

Ancient Ritual Sacrifice and the Samnite Oath  

As noted above, Livy began his account of the Samnite levy of 293 BC by noting that, after  the Samnites had raised an army under a nova lex (effectively a lex sacrata), they:

1. “... called in the aid of the gods by initiating the [forcibly conscripted] soldiers ritu quodam sacramenti vetusto (through an oath administered in an ancient ritual)”, (‘History of Rome’, 10: 38: 2-3).
   

This sentence seems to look forward to the later passages described below..

Sacred, Linen-Covered Enclosure

Livy began his explanation of the ancient ritual and its attendant oaths by describing a sacred enclosure:

1. “A space of about [200 x 200 Oscan] feet, almost in the centre of their camp [at Aquilonia], was boarded off and covered with linen cloth”, (‘History of Rome’, 10: 38: 5-6).  
   

The following narrative described the ritual that was enacted here, which had two parts:

1. ✴a sacrifice to the gods; followed by
   

2. ✴the administration of two oaths to a cohort that the imperator selected from among  the assembled conscripts .
   

Sacrifice

Livy described the first part of the ritual as follows:

1. “A sacrifice was conducted in [the linen-covered]  enclosure, following the words from an old linen book.  The aged priest, Ovius Paccius, who officiated, announced that he was taking this rite from an old Samnite ritual that their ancestors had used when they had formed their clandestine plan to take Capua from the Etruscans”, (‘History of Rome’, 10: 38: 6-7). 
   

Samnite Capture of Capua and Cumae (423 - 420 BC)

According to Livy: 

1. “An incident is recorded under [423 BC] that, although it took place in a foreign country, is still important enough to be mentioned [in a history of Rome]: namely, the capture of Volturnus, an Etruscan city, now called Capua, by the Samnites.  It ... is likely that it was so called from its situation a campestri agro (on a flat plain)”, (‘History of Rome’, 4: 37: 1-2). 
   

We can take from this that the Romans only rarely recorded “foreign” affairs such as the Samnite capture of Capua at this early stage of the Republic. 

Although Livy’s subsequent account was compressed, it is clear that this Samnite incursion took place in two phases:

1. ✴Livy recorded that, prior to the capture of the city that they called Volturnus:
   

2. “... the Etruscans, who had been weakened by a long war, had granted [the Samnites] joint occupancy of the city and its territory”, (‘History of Rome’, 4: 37: 2).  
   

3. Fortunately, Diodorus Siculus supplied the date of the original Samnite settlement on the Campanian plain and the name by which they came to be known:
   

4. “In [437 BC], the nation of the Campani was formed, deriving its name from the fertility of the plain about them”, (‘Library of History’, 12: 31: 1).
   

5. Thus, although Livy referred to the settlers as ‘Samnites’, he should probably have referred to them as  ‘Campani’.  As Edward Salmon (referenced below, 1958, at p.10) explained:
   

6. “These speakers of "Osean" were, in fact, Sabellians (in other words Samnites), and they made their way into Campania from Samnium, the mountainous heart of southern Italy.  According to Strabo and others, the Samnites periodically proclaimed a Sacred Spring[(ver sacrum)]: that is, all the animals, including the human animals, born in a certain year were dedicated to Mars; the human beings (unlike the other animals) were not literally immolated to the god, but stayed with the tribe until they were adult, whereupon they set out in search of fresh lands under the guidance of a totem animal, such as a steer or a woodpecker, and settled down in the region that it appeared to indicate.  The Samnites may or may not have had recourse to this method to expand into Campania; but they certainly began appearing there in the fifth century BC, and they ultimately succeeded in putting an end to the Etruscan and Greek supremacy in the region.”
   

7. ✴Thus, it seems that, after some 14 years of (presumably peaceful) co-existence, the Campani made their move in 423 BC:
   

8. “... during a festival, after the [Etruscans] had been overcome by wine and sleep:  the new settlers attacked them in the night and massacred them”, (‘History of Rome’, 4: 37: 1-3).
   

9. In a subsequent passage, Livy recorded that : 
   

10. “In [420 BC, nearby], Cumae, which was, at that time, held by the Greeks, was captured a Campanis (by the Campani)”, (‘History of Rome’, 4: 44 12).
    

Administration of the Oaths

Livy ‘s narrative now moved to the administration of two oaths:

1. “When the sacrifice [above] was completed, the imperator [presumably the commander-in chief] sent a messenger to summon all those [among the newly-conscripted men] who were distinguished by their noble birth or military achievements.  They were admitted into the [sacred] enclosure one by one.  As each was admitted, he was led up to the altar, more like a victim[who was about to be sacrificed] than a man who was about to take part in the service ...”, (‘History of Rome’, 10: 38: 7-12).
   

There is no indication of how many distinguished men were summoned into the enclosure.  All we are told is that each of them:

1. “...was bound on oath not to divulge what he saw and heard in that place.  Then, each swore [another] oath, diro quodam carmine (with a certain terrible form of words) in which he called down a curse upon his head, his household and his family, should he:
   

2. ✴not go into battle where the imperatores (military commanders) should lead him;
   

3. ✴... fled from battle; or
   

4. ✴ not immediately kill anyone whom he saw fleeing”, (‘History of Rome’, 10: 38: 7-12).
   

Livy then made it clear in graphic terms that this second oath, which is often known as the ‘Samnite Oath’, was sworn on pain of death:

1. “At first, there were some who refused to take this [terrible] oath; they were massacred beside the altar and their dead bodies, lying amongst the scattered remains of the [animal victims of earlier sacrifices], were a plain hint to the rest not to refuse”, (‘History of Rome’, 10: 38: 7-12).
   

Ancient Ritual Sacrifice and the Samnite Oath: Discussion  

Livy is unlikely to have invented the notion that some parts of the ritual that attended the Samnite muster at Aquilonia in 293 BC were based on that which had attended the Samnite capture of Capua in the early 5th century BC.  Indeed, his comment that:

1. “An incident [i.e. the Samnite capture of Capua] is recorded under [the consular year 423 BC] that, although it took place in a foreign country, is still important enough to be mentioned [in a history of Rome]”
   

strongly suggests that that he was drawing on what must have been rare archival material relating to this early period.  Timothy Cornell (referenced below, 1974, at p. 205) analysed the likely candidates and concluded that:

1. “... there is nothing unlikely in the suggestion that Cato's 'Origines' [for example] contained an account of the Samnite occupation of Capua ... , including details of the [conspiracy there] that are reflected in Livy's narrative of the [muster at] Aquilonia.”
   

Stephen Oakley (referenced below, 2007, at p. 397) discussed a number of oddities contained in Livy’s account of this ritual sacrifice and the subsequent administration of the Samnite Oath:

1. ✴they took place in a linen tent;
   

2. ✴great secrecy surrounded them; and
   

3. ✴the Samnite Oath was sworn (at least initially) by only the most distinguished of the men who had been conscripted under the lex sacrata.
   

He noted that a number of hypotheses that have been put forward in order to account for these oddities, and suggested that the most satisfactory of these argued that Livy or his source(s) had enlivened a relatively sober account of a Samnite levy conducted by means of a lex sacrata with:

1. “...  details derived from the clandestine oaths sworn (or imagined by later historians to have been sworn) at the time of the Samnite capture of Capua, an operation for which secrecy [would have been] appropriate and in which comparatively small numbers [would] have been involved.”
   

This raises the question of why these surviving ‘Campanian’ details had been deemed to be of relevance to the raising of a Samnite army in 293 BC.  I think that the answer to this might lie in the record preserved by Zonaras (discussed above), which stated that the Samnites had originally mustered this army for an invasion of Campania.  It follows that, in the original sources for Zonaras’ information, the initial muster of  under the lex sacrata of 293 BC would probably have taken place place on the eve of a planned invasion, near the Samnite/Campanian border.  If so, then these sources might well have also included the notion that the rituals that had been used so successfully in 423 BC were tried again in 293 BC.  (This, of course, can only be a matter of speculation). 

As we shall see below, the influence of these ‘Campanian’ details might also have embellished Livy’s account of the formation of a cohort within the conscripted army that was called the Linen Legion: it is certainly true that this hypothesis explains some of the patent problems with Livy’s narrative of these events.

Vir Virum Legere and the Linen Legion

As discussed above, after Ovius Paccius had performed the ancient sacrificial ritual in the camp at Aquilonia, the imperator summoned the most distinguished of the 40,000 conscripts mustered there, and they were introduced, one by one, into the linen-covered enclosure in which these sacrifices had taken place.  Unfortunately, Livy did not indicate how many men were summoned into the enclosure (although he implied that, after some initial resistance, most of those summoned chose to swear the oath rather than to face execution).  Then:

1. “After the foremost men among the Samnites had been bound by this dread formula, the imperator [nominated] ten of them and instructed ut vir virum legerent (that they should each choose another, and so on) until they had made up the number of 16,ooo.  These [chosen men] were called legio linteata (the Linen Legion) from the material with which the place where they had been sworn was covered.  They were provided with resplendent armour and plumed helmets to distinguish them from the others”, (‘History of Rome’, 10: 38: 12-13). 
   

(I have inserted [nominated] here following Stephen Oakley, referenced below, 2007, at p. 405). 

Vir Virum Legere 

At its most general, this phrase designates a selection process in which a leader:

1. ✴chooses a number of people who, in his/her opinion, are patently well-qualified for a particular task; and
   

2. ✴asks each of them to choose a number of other similarly-worthy people, and so on.
   

The process continues until the required number is reached, at which point the leader has at his disposal a well-qualified and cohesive team that literally ‘hand picked’ for the task in question. 

There is nothing inherently ritualistic about such a process, which is really a formalisation of the process by which “old boys' networks” have functioned over the centuries.  For example, Michael Brown (referenced below, at p.255) described how Samuel Madden approached the problem of the dwindling membership of the Royal Dublin Society in ca. 1750: Madden suggested that the existing members should:

1. “... name a worthy friend who should enter the society, like the Roman senators, vir virum legens, ...”
   

Madden was referring back to the Rome of ca. 27 BC, when, according to Suetonius, the Emperor Augustus restored the Senate to:

1. “... its former size and distinction by means of two enrolments:
   

2. ✴one according to the choice of the members themselves, quo vir virum legit; and
   

3. ✴a second made by Agrippa and [Augustus] himself”, (‘Life of Augustus’, 35:1).
   

Since Augustus’ objective was to reduce the size of the Senate by removing those senators of whom he disapproved, I think that this process must have take place in the reverse order:

1. ✴Augustus and Agrippa chose a small number of men who met their criteria; and then
   

2. ✴instructed each of them to chose another man, and so on, until the required number of senators had been reached. 
   

It seems that a similar process was also used in Roman military circles: according to Tacitus, when the Emperor Galba defended his decision to adopt Lucius Calpurnius Piso Licinianus as his heir and successor in 69 AD:

1. “His proclamation, addressed to a massive parade of the troops, was marked by the brevity befitting a supreme commander.  He said that, in adopting Piso, he was acting in accordance with the precedent of Emperor Augustus and the military practice whereby vir virum legeret (each man chose another)”, (‘Histories’, 1: 18: 1).
   

Vir Virum Legere and the Samnite Oath

However, both Livy and Festus described the Samnite Linen Legion as one that was made up of men who had consecrated themselves:

1. ✴Livy’ recorded that the 16,ooo men who had been selected by the procedure of vir virum legere: 
   

2. “... were called the ‘Linen Legion’ from the material that covered the place where they [presumably all of them] had been sworn”, (‘History of Rome’, 10: 38: 12); and
   

3. ✴Festus used similar information for his definition of ‘Linen Legion’:
   

4. “One legion of the Samnites is called linteata because the Samnites [presumably all those chosen for the legion], after entering, one by one, a sacred area that was enclosed by linen veils, swore not to retreat from the Roman soldiers”, ‘De verborum signifcatione’, 102 Lindsay).
   

Putting aside, for the moment, the question of whether or not the legion was actually named for the fabric that covered the sacred enclosure, what is clear is that both Livy and Festus (albeit from shared original sources) believed that all 16,000 of the men who were selected by the procedure of vir virum legere had previously sworn the Samnite Oath.

If we now incorporate this information, it seems that the selection process involved two stages:

1. ✴In Stage I, the imperator summoned a group of men whom he considered to be the most distinguished of the 40,000 newly-conscripted men at his disposal.  They were introduced, one after the other, into the sacred enclosure, where they swore the Samnite oath. 
   

2. ✴In Stage II, the imperator:
   

3. •chose 10 men from this consecrated pool; and
   

4. •instructed these ten each to chose another man from the pool;
   

5. and this process continued until 16,000 consecrated men had been chosen for the Linen Legion.
   

We do not know how many distinguished men were summoned to swear the Samnite Oath and what proportion of them chose execution instead (although Livy implied that only a very small proportion did so).  What we can say is that, if Livy’s account is correct in detail, then the number of distinguished men who swore the oath was significantly in excess 16,000:

1. ✴had it been less than 16,000, then more men would have been needed for the legion; and
   

2. ✴had it been only slightly in excess of 16,000, then the procedure of vir virum legere would have been redundant. 
   

Many scholars have observed that this process cannot be as described here, for at least two reasons:

1. ✴the administration of the Samnite Oath to say 20,000 men, one at a time, would have been a logistical nightmare (20,000 minutes = ca. 14 days, and administering this terrible oath must have taken much more that a minute); and
   

2. ✴the oath of secrecy that preceded it would have been redundant if almost half of the army had been sworn in this way in an enclosure at the centre of the camp that was covered only in linen. 
   

Thus, Edward Salmon (referenced below, 1967, at pp. 183-4), for example, reasonably dismissed Livy’s account as  “preposterous” and dismissed it and suggested that the  Roman annalists had fashioned it from:

1. “... a fanciful mixture of Roman procedures as described by Polybius [in ‘Histories’, 6: 21 and 24]”.
   

However, in his review of Salmon’s book, Martin Frederiksen exonerated the Roman annalists from this particular charge: he argued that:

1. ✴one of the reasons for accepting the outlines of Livy's account of the Samnite wars:
   

2. “... lies in the Greek information and knowledge of southern Italy [that is evident in at least some of his sources]”; and
   

3. ✴the trope of a Samnite cohort selected vir vium legere, for example, is unlikely to have been the invention of Roman annalists (as Salmon supposed):
   

4. “..  so far from being reminiscent of Polybius on the Roman legion, [it] is quite different, and a genuinely primitive feature.  Can we really rule out an origin in Greek ethnographical description ?”
   

Frederiksen pointed out that Polybius had described what was, in effect selection vir virum legere

in relation to Hannibal’s selection of a cohort of men to perform a vital manoeuvre during his engagement with a Roman army on the river Ticinus in 218 BC.  At the heart of this selection procedure were:

1. “... 100 cavalrymen and the same number of infantrymen ...., [whom Hannibal] had selected] as the most powerful of the whole army.  He ordered to come to his tent after supper and, having addressed and inspired them ... , he instructed each of them select 10 of the bravest men of his own company, ... he [then] despatched the whole party, [now] numbering 1,000 cavalry and as many infantry”, {‘Histories’, 3: 71).
   

Polybius had presumably drawn this information from non-Roman sources, and the process of selection of military cohorts by the procedure of vir virum legere might indeed be “genuinely primitive feature”.   However, Salmon’s fundamental point remains: it would have been completely impractical for this procedure to have been used at Aquilonia in 293 BC in tandem with the ritual oath-taking as Livy described it.

A possible solution to this conundrum might be that:

1. ✴In Stage I, the imperator summoned only a small number of the most distinguished men among conscripts to the sacred enclosure, and that the process of introducing them into it, one by one, ceased when 10 of them had emerged, having taken the Samnite Oath.  
   

2. ✴In Stage II, the imperator instructed each of these ten ‘consecrated’ men to choose another, and so on until a total of 16,000 men had been selected for the Linen Legion. 
   

On this model, Stage I might well have been inspired (in reality or in the imagination of Livy or of his source(s)) by the precedent of the conspiracy of 423 BC, in which a small body of the leading Campani might well have met in secrecy in a linen tent and sworn under oath that they would capture Capua or die in the attempt.  They might also have chosen their accomplices vir virum legere.  However, they would not have needed anything like 16,000 men to take Capua from the drunken Etruscans.  Thus, this possible modification takes us no further in relation to the selection of the Linen Legion: as Edward Salmon (referenced below, 1967, at p. 183) pointed out, if, having sworn themselves:

1. “... the ten Samnite nobles ... [then] administered the oath individually to ten others [and so on] ...”
   

this would still have been an extremely time-consuming process. 

However, I can envisage a scenario in which there would have been no need for a second and time-consuming process of consecration: perhaps the honour of having been specially chosen (directly or indirectly) by someone who had consecrated himself brought with it a responsibility towards him.  In other words, it is possible that, because the ten men at the heart of the process at Aquilonia had each sworn the Samnite Oath, the  men whom they chose were also bound by it, and any further oath-taking would have been redundant.  If so, then:

1. ✴the process that Livy described could have created a division of 16,000 men that was characterised by its cohesion and its determination to follow the imperator to the death if need be; and
   

2. ✴the chosen men might well have been:
   

3. “.... provided with resplendent armour and plumed helmets to distinguish them from the others”, (‘History of Rome’, 10: 38: 12).
   

As discussed above, Stephen Oakley (referenced below, 2007, at p. 397) argued that Livy or his source(s) might well have enlivened a relatively sober account of a Samnite levy conducted by means of a lex sacrata with:

1. “...  details derived from the clandestine oaths sworn (or imagined by later historians to have been sworn) at the time of the Samnite capture of Capua, an operation for which secrecy [would have been] appropriate and in which comparatively small numbers [would] have been involved.”
   

I am suggesting that Livy’s source(s) for the relatively sober account probably described:

1. ✴the levy of an enemy army conducted by means of a lex sacrata; and
   

2. ✴the subsequent use of the procedure of vir virum legere for the selection of an effective fighting force  rom this pool of conscripts. 
   

A source of this kind seems to be reflected in Livy’s record of the engagement of a Roman army (discussed further below), which took place in 310/9 BC:

1. “... at the lacus Vadimonis, where the Etruscans, using a lex sacrata, had raised an army cum vir virum legisset.  This army [therefore] fought with more men and with greater courage than ever before”, (‘History of Rome’, 9: 39: 5).
   

This suggests to me that Livy had at least one source that described an enemy army that had been selected vir virum legere from a pool of men who had been forcibly conscripted under a lex sacrata.  As will become clear, Livy’s use of this putative fragment here is suspect, not least because he did not identify the Roman commander who defeated this army, despite the claim that, in so-doing, he broke the power of the Etruscans for the first time.  I am suggesting that:

1. ✴Livy used this source again in his account of the Samnite levy of 293 BC; and
   

2. ✴added material that had been inspired by one or more records of the events of 423 BC, in which the leader of the Campanian plot to capture Capua had:
   

3. •chosen ten of his most distinguished compatriots;
   

4. •swore them to secrecy, perhaps following a ritual sacrifice that took place in a linen tent, and
   

5. •then instructed  each of these ten men to select others who could be trusted to act as accomplices.
   

6. It would be unsurprising if, by Livy’s time, the sources that described this conspiracy had grown more terrible in the telling.
   

Origin of the Designation ‘Linen Legion’

As noted above, both Livy and Festus recorded that the Linen legion was named for the linen that had covered the sacred enclosure.  A number of scholars have rejected this explanation: for example, Timothy Cornell (reference below, 1974, at p. 201), for example, argued that it is:

1. “... not only absurd but superfluous, since the real reason for the name was perfectly obvious and well known to the annalists, as Livy shows in 9: 40: 9.”
   

The Livian passage to which Cornell referred described a victory that had been secured against a Samnite army by another Lucius Papirius Cursor (the father of the consul of 293 BC), as dictator in 310/9 BC.  In this earlier battle:

1. ✴the Samnite army was made up of two divisions that were distinguished by their uniforms:
   

2. “...the shields of one were inlaid with gold, of the other, with silver.  ...  The tunics of ...[this second [‘silver’] division were of dazzling white linen”, (‘History of Rome’, 9: 40: 2-3); and
   

3. ✴the men of this ‘silver’ division:
   

4. “... had consecrated themselves, as was their custom, and, for that reason, were resplendent in white [i.e. linen] coats and equally white [i.e. silver] armour”, (‘History of Rome’, 9: 40: 9).
   

This certainly seems to reflect the division of the Samnite  army of 293 BC into two divisions:

1. ✴the Linen Legion, who had consecrated themselves:
   

2. “.... provided with resplendent armour and plumed helmets to distinguish them from the others”, (‘History of Rome’, 10: 38: 12); and
   

3. ✴the ‘others’, who:
   

4. “... were not inferior to the Linen Legion in their personal appearance, their soldierly qualities, or the excellence of their equipment”, (‘History of Rome’, 10: 38: 13).
   

Stephen Oakley (referenced below, 2007, at p. 397) agreed with Cornell: Livy’s description of the clothing of the consecrated ‘silver’ division of 310/9 BC:

1. “... suggests a more natural derivation: the [Linen Legion] was named for the linen tunics that its members wore.”
   

Scholars generally accept that this is indeed the most likely origin of the legion’s name.  However, this raises the question of why Livy did not refer to the ‘silver’ division of 310/9 BC as the Linen Legion and why he gave no indication of either:

1. ✴the procedure by which the  conscripts of 310/9 BC had been selected for either the ‘silver’ division; or
   

2. ✴the circumstances in which those so- selected had ‘consecrated themselves’.
   

Similarities between other aspects of the two accounts arouse suspicions of a doublet, in which details from accounts of a single engagement found their way into both accounts.  For example:

1. ✴In his account of the battle of 310/9 BC, Livy imagined how the Roman commanders had represented the Samnite’ apparent fetish for opulent armour to their men:
   

2. “The Roman soldiers already knew that [their opponents] had been provided with this splendid armour.  [However], they had been told a ducibus (by their officers) that:
   

3. •soldiers ought to inspire dread, not by being decked out in gold and silver, but by trusting to their courage and their swords; and
   

4. •the Samnite armour [constituted booty for the Romans] rather than a defence for the wearer, resplendent enough before a battle but soon stained and fouled by wounds and bloodshed. 
   

5. They [therefore] knew that courage was the [appropriate] ornament of a soldier, and that all that [Samnite] finery would belong to the victor ...”, (‘History of Rome’, 9: 40: 5-7). 
   

6. ✴This is very similar to the way in which Livy imagined that the younger Papirius had reassured his men in 293 BC:
   

7. “Papirius ...addressed his troops, and said... much regarding the present equipment of the enemy, more vain and showy than effective: [the Samnites’] plumes would not inflict wounds; their painted and gilded shields would be penetrated by the Roman javelins;  and an army resplendent in dazzling white would be stained with gore when the [Roman] sword came into play.”, (‘History of Rome’, 10: 39: 10-13).  
   

8. The rest of this imagined address makes it almost certain that Livy was aware of the similarities in his sources for these two battles: he had the younger Papirius remind  his men that:
   

9. “A Samnite army all in gold and silver had once been annihilated by his father, and that those trappings had brought more glory as spoils to the victors than they had brought as armour to the wearers.  [Indeed], it might be a special privilege granted to [the gens Papiria] that the greatest efforts that the Samnites had ever made should be frustrated and defeated under their generalship, and that the spoils that they brought back [to Rome] should be sufficiently splendid to serve as decorations for the public places in the city”, (‘History of Rome’, 10: 39: 10-13).
   

Thus the likelihood is that all the details relating to the the Samnite armies of 310/9 and 293 BC had come from accounts that had originally related to a single engagement.   As we shall see below, many scholars accept that, and many of these would agree with Filippo Coarelli (referenced below, at pp. 11-2) when he argued that: 

1. “We must assume  that [Livy’s] information on the earlier episode was very scarce, and that this induced Livy to take information relating to the later one in order to complete the gaps”  (my translation).  
   

I return to this putative doublet below, in the context of Livy’s accounts of the triumphs of the older and the younger Papirius.  What is relevant now is that, if all of this information relating to the Linen Legion came from a single original source, then that source recorded that:

1. ✴all of the men of the legion had consecrated themselves (either by swearing the Samnite Oath or by having been chosen, directly or indirectly, by someone who had sworn it);
   

2. ✴they were named for the linen covering of the sacred inclosure in which the Samnite Oath had been sworn; and
   

3. ✴they were distinguished by their linen tunics and their silver-plated shields.
   

In other words, we cannot rule out the possibility that both the name of the legion and the fabric of their tunic reflected the fact that the first ten men that the imperator had selected for the legion had consecrated themselves in a sacred enclosure that had been covered in linen.

Etruscan Army of 310/9 BC

Livy had used the same trope again in relation to an engagement of a Roman army in 310/9 BC (discussed further below), which took place:

1. “... at the lacus Vadimonis, where the Etruscans, using a lex sacrata, had raised an army cum vir virum legisset.  This army [therefore] fought with more men and with greater courage than ever before”, (‘History of Rome’, 9: 39: 5).
   

Stephen Oakley (referenced below, 2007, at p. 394) compared this passage to that in Livy’s description of the selection of the Samnites Linen Legion in 293 BC:

1. “After the foremost men among the Samnites [who had been raised under a lex sacrata] had been bound by [the Samnite Oath], the imperator nominated ten of them [for inclusion in the Linen Legion] and instructed ut vir virum legerent (that they should each choose another, and so on) until they had made up the number of 16,ooo”, (‘History of Rome’, 10: 38: 12). 
   

Oakley argued that:

1. “The similarity between [these two passages] ... leaves no doubt that the selection and binding of one man by another was an ancient and fundamental part of recruiting [by means of a lex sacrata].”
   

However, I would argue that this putative link between:

1. ✴recruitment under a lex sacrata; and
   

2. ✴the selection of men by the procedure of vir virum legere;
   

is not apparent in other relevant precedents:

1. ✴As Gregory Pellam (referenced below, 2015, at p. 327) pointed out, the leges sacratae of 431 or 191 BC (see above):
   

2. “... seem to have been [laws issued by the respective military authorities] that would compel men to [present themselves for military] service.”
   

3. In each case:
   

4. •all of the conscripts seem to have fought in the battle that followed the raising of the army; and
   

5. •there was no indication that some of them were picked for a separate cohort (by vir virum legere or by any other means).
   

6. ✴Conversely, Polybius (above) described how Hannibal had picked 1,000 men for a particular task in 218 BC: he picked 100 cavalrymen and 100 infantrymen whom he considered to be the most powerful in his army, and then instructed each of them to select 10 of the bravest men in his own company, thereby achieving a picked force of 1,000 cavalry and 1,000 infantry: 
   

7. •this amounts to selection of a cohortby the procedure of vir virum legere; but
   

8. •there is nothing to suggest that the army in which these men served had been recruited under a lex sacrata.
   

Thus, it seems to me that, pace Stephen Oakley, Salvatore Tondo (see above) was more probably correct when he argued that:

1. “[The phrases] lex sacrata, ritus sacramenti and vir virum legere represent three separate concepts” (my translation).
   

It is certainly true that, in his account of the recruiting of the Etruscan army of 310/9 BC, Livy implied that all the men who assembled at the lacus Vadimonis had been both:

1. ✴forcibly conscripted under a lex sacrata; and
   

2. ✴selected cum vir virum legisset.
   

This is, in fact, the only record in our surviving sources of the selection of an entire army cum vir virum legisset:

1. ✴Hannibal had used the process in 218 BC to pick 2,000 of the most powerful men in his army for a special assignment; and
   

2. ✴the Samnite imperator had used it in 293 BC to pick 16,000 of his 40,000 forcibly conscripted men for the Linen Legion.
   

In the case of the Etruscan army at the lacus Vadimonis, it is hard to see how the lex sacrata and the use of selection vir virum legere would have been combined.  It is possible that its commander had:

1. ✴originally raised  a much larger army under a lex sacrata; and then
   

2. ✴used  the procedure of vir vir legere to select the men who would assemble at the lacus Vadimonis.
   

However, the men assembled at the lacus Vadimonis constituted the largest Etruscan army than any that the Romans had ever faced before.  Even if we accept this as an authentic account of a Roman engagement with the Etruscans, we must surely exclude this interpretation of the way it was recruited on logistical grounds.  A more likely interpretation might emerge when we look at the details of the battle that followed:

1. “So savage was the feeling on both sides that, without discharging a single missile, they began the fight at once with swords.  ... There was not the slightest sign of yielding anywhere; as the men in the first line fell, those in the second took their places, to defend the standards.  At length the last reserves had to be brought up, and matters reached such an extremity of toil and danger that the Roman cavalry dismounted ... [and] made their way ... to the front ranks of the infantry. ... [This tactic was effective, and the Romans] at last broke through the enemy's ranks ... [and the Etruscans] soon took to  flight.  That day, for the first time, broke the power of the Etruscans  ... The main strength of their army was left [dead] on the field, and their camp was taken and plundered”, (‘History of Rome’, 9: 39: 6-11, my bold italics).
   

It is possible that all of the men who assembled at the lacus Vadimonis had been recruited under a lex sacrata, and that the Etruscan commander had picked a cohort of them by the procedure of vir virum legere, perhaps to lead the charge or, more probably, to be held in reserve for deployment in the event that the Romans gained the upper hand.  However, even if this or some other explanation is accepted, it is hard to imagine that Livy would have ignored a record in any of his sources that these picked men had sworn to fight to the death.

In fact, as we shall see, there are a number of reasons for doubting the authenticity of this battle (at the lacus Vadimonis (not least the fact that Livy did not identify the victorious Roman commander).  I suggest below the most likely cause of the problems identified above is that the details of men raised under a lex sacrata and men selected vir virum legere had both been ‘lifted’ (by Livy or by one or more of his sources) from accounts that actually related to the Battle of Aquilonia in 293 BC.

Samnite Armour (293 and 310/9 BC)  

Splendid Samnite Armour

Exhortation to the Troops by Unnamed Roman Officers

Livy then imagined how the unnamed Roman commanders had represented this Samnite behaviour to their men:

1. “The Roman soldiers knew that [their opponents] had been provided with this splendid armour.  [However], they had been taught a ducibus (by their officers) that:
   

2. ✴soldiers ought to inspire dread, not by being decked out in gold and silver, but by trusting to their courage and their swords; and
   

3. ✴the Samnite armour [constituted booty for the Romans] rather than a defence for the wearer, resplendent enough before a battle but soon stained and fouled by wounds and bloodshed. 
   

4. They [therefore] knew that courage was ornament of the soldier: all that [Samnite] finery would belong to the victor, however poor he might be”, (‘History of Rome’, 9: 40: 5-7). 
   

This oddly impersonal account is similar to that used by Livy in his description of the battle against the Etruscans at the lacus Vadimonis (above).

Start of the Battle

Only at this point did Livy identify the Roman officers in command:

1. ✴the dictator Papirius;
   

2. ✴his master of horse, Caius Junius Bubulcus Brutus; and
   

3. ✴two military tribunes or legates, both of whom were of consular rank:
   

4. •Marcus Valerius Corvus (see Stephen Oakley, (referenced below, 2005, at p. 520) for his identity); and
   

5. •Publius Decius Mus.
   

With the teaching of the so-far unnamed officer ringing in the ears of his men:

1. “Papirius led [them] into battle  He took up his own post on the [Roman] right, and committed the left to [Junius].  As soon as the two lines clashed, a contest [also] began between the [Papirius and Junius] (which was quite as keen as the struggle against the enemy) as to whose division should be the first to win the victor”, (History of Rome’, 9: 40: 8-9).
   

Men of the Samnite ‘Silver and Linen’ Division had Consecrated Themselves

Livy then provided an important detail of the Samnite ‘silver’ division, which confronted Junius:

1. “Junius happened to be the first to dislodge the enemy.  [He brought] his left wing against the enemy's right, [which was made up of the soldiers] who sacratos more Samnitium (had devoted or consecrated themselves to a particular deity, after the Samnite custom) and, for that reason, were conspicuous in their white tunics and glittering armour”, (History of Rome’, 9: 40: 9).
   

For this reason, as Junius led the charge against them, he declared: 

1. “... that he would sacrifice them to Orcus [a god of the underworld] ...”, (History of Rome’, 9: 40: 10).
   

Stephen Oakley (referenced below, 2007, at p. 397) observed that, in this passage:

1. “Junius, in a grim jest, pronounces that he will do the sacrificing [of the consecrated men], but on behalf of Rome” (my italics).
   

Roman Victory

Livy now described the course of the battle: Junius assault on the consecrated men on the Samnite right wing:

1. “... shook their ranks and made them give way.  On seeing this, Papirius exclaimed: ‘Shall the victory begin on the left wing?  Is the right wing, the dictator's own division, going to follow where another had led the way in battle, and not win for itself the greatest share of the victory?’  This roused the men; the cavalry behaved with quite as much gallantry as the infantry, and the legates [see above] displayed no less energy than the generals.  Valerius on the right wing and Decius on the left, both men of consular rank, rode up to the cavalry who were covering the flanks and urged them to snatch some of the glory for themselves.  They charged the enemy on both flanks, and the double attack increased the consternation of the enemy.  To complete their discomfiture, the Roman legions again raised their battle-shout and charged home.  Now the Samnites took to flight, and soon the plain was filled with shining armour and heaps of bodies.  At first the terrified Samnites found shelter in their camp, but they were not able to hold that; it was captured, plundered, and burnt before nightfall.”, (History of Rome’, 9: 40: 10-14).
   

Papirius’ Victory

Livy began by recording that the Samnites:

1. “... had made their battle lines glitter with new and splendid armour.  There were two corps:
   

2. ✴the shields of one were inlaid with gold, ... and their tunics were of many colours; while
   

3. ✴the shields of other were inlaid with silver, ... and their tunics were made of dazzling white linen ...
   

4. The latter corp fought on the [Samnite] right wing, while the other corp took up position on the left”, (‘History of Rome’, 9: 40: 2-5).
   

He observed that, by contrast:

1. “The Roman ... generals had taught [their men] that a soldier should be rough to look on, not adorned with gold and silver but rather putting his trust in iron and in courage”, (‘History of Rome’, 9: 40: 5).
   

With observations of this kind ringing in the ears of his men:

1. “Papirius led [them] into battle.  He took up his own post on the [Roman] right, and committed the left to his master of the horse, [Caius Junius Bubulcus Brutus].  From the first moment, there was a mighty struggle with the enemy, and a struggle no less sharp between Papirius and Junius to decide which wing [of the Roman army] would inaugurate the victory”, (‘History of Rome’, 9: 40: 2-9).
   

Livy then provided an important detail of the Samnite corps that confronted Junius:

1. “It so happened that Junius was the first to make an impression on the Samnites ... He ...  faced the [Samnite] right, where [the men] had consecrated themselves, as was their custom, and for that reason were resplendent in white clothing and equally white armour”, (‘History of Rome’, 9: 40: 9).
   

These were the men whom Livy had already described as wearing dazzling white linen tunics and carrying shields inlaid with silver.  Stephen Oakley (referenced below, 2007, at p. 397) pointed out that this was probably the origin of the title ‘Linen Legion’ (the designation that Livy gave to a Samnite legion that fought a Roman army led by Papirius’ (the homonymous son in 293 BC  - see the discussion section below): in the act of ‘consecrating themselves’, the men in white linen tunics had almost certainly sworn:

1. ✴to sacrifice themselves rather than surrender; and
   

2. ✴to kill any of their colleagues who attempted to flee from the battle. 
   

For this reason, as Junius led the charge against them, he declared: 

1. “... that he offered [them] in sacrifice to Orcus [a god of the underworld] ...”, (‘History of Rome’, 9: 40: 10).
   

Oakley observed that, in this passage:

1. “Junius, in a grim jest, pronounces that he will do the sacrificing [of the consecrated men], but on behalf of Rome” (my italics).
   

When Junius’ charge broke the enemy right, the internal tensions that Livy had already flagged became manifest: when Papirius saw Junius’ charge:

1. “... he cried:
   

2. ‘Shall ... the dictator's division follow the attack of others [rather than] carry off the honours of the victory ?’ 
   

3. This fired the [rest of the Roman] soldiers with new energy; nor did ... the lieutenants [display] less enthusiasm than the generals: Marcus Valerius on the right and Publius Decius on the left, both men of consular rank, ... charged obliquely against the enemy's flanks.  [The Samnites took flight and] the fields were soon heaped with both dead soldiers and glittering [enemy] armour”, (‘History of Rome’, 9: 40: 10-14).