Cicero - Anthony Everitt [57]
This was no ordinary prosecution. The old man was to be tried under an archaic and brutal procedure called perduellio. The punishment, if he was found guilty, was scourging and crucifixion. A court was appointed according to the antiquated rules and Caesar and his cousin cleverly managed to get themselves chosen as its two judges. An execution post was erected in the Field of Mars in anticipation of a conviction.
What was the point of this bizarre rigmarole? Apparently the identity of Saturninus’s killer had long been known: a slave who had won his freedom as a reward. What Labienus and, behind him, Caesar wanted to do was deliver a political warning. In times of crisis the Senate had the authority to call a state of emergency, through a special decree known as the Final Act (senatusconsultum ultimum). Its terms were broadly drawn: “The Consuls should see to it that the state comes to no harm.” This, some said, allowed the Consuls to override a Roman citizen’s basic rights not to be executed without trial. According to this view, Saturninus’s death had been legal because the Senate had passed the Final Act—despite the fact that he had been no ordinary citizen but a Tribune whose person was meant to be inviolable. Populares never accepted this interpretation of the law and argued that nothing could cancel a fundamental civic liberty. Legally they appear to have been correct; the power under the Final Act to condemn citizens to death without due process had only become accepted through time and custom.
The reason for the timing of the attack on Rabirius is obscure. In general terms, it was in the interest of the populares continually to find ways of seizing the initiative from the optimates. This was especially the case now that the Senate, in Cicero’s capable hands, looked as if it would recover lost ground. Rabirius’s trial may then have simply been an episode in the ongoing campaign against the forces of conservatism. But there is another possibility. Caesar knew that Catilina had not yet run his full political course. If rejection at the polls drove him to act illegally, as appeared not unlikely, he might need protection from an extreme interpretation of the Final Act. In this case, the affair shows Caesar at his most prescient and most loyal.
Unsurprisingly, the judges found Rabirius guilty and passed a sentence of death. AS expected, he appealed to the People against the verdict. Hortensius spoke on Rabirius’s behalf, arguing that he did not in fact commit the crime. He was followed by Cicero, who spent little time on the facts of the case. This was a political show trial and he went straight to the constitutional point. “What I assert with all the emphasis at my command, what I proclaim, what I publish to the world is identical with the stated opinions of the prosecutor [Caesar or Labienus]. No king remains, no tribe, no nation who can cause you any alarm. No external or foreign threat can infiltrate our Republic. If you wish Rome to live forever and our empire to be without end, if you wish that our glory never fade, we must be on our guard against our own passions, against men of violence, against the enemy within, against domestic plots. But against these evils your forefathers left you a great protection [in the Final Act]. Cherish this pronouncement.”
A vote on the appeal never took place and sources disagree about which way it looked as if it would go. After fruitlessly remonstrating with the judges, a Praetor, Quintus Caecilius Metellus