Cicero - Anthony Everitt [63]
In the evening dense crowds gathered outside the Temple of Concord and, when the Senate adjourned, Cicero came outside to make a short speech to the crowd: he made the most of the horror stories about firing the city, freeing the slaves and inviting a Gallic invasion. Large numbers of people then escorted him to a friend’s house where he spent the night. He was unable to go home, for Terentia was presiding, as the Consul’s wife, over a secret ceremony in honor of the Good Goddess in the presence of the Vestal Virgins, from which men were forbidden. Those attending the ceremony were well aware of what was happening outside; when a flame suddenly shot up from a dying fire on the altar, it was immediately interpreted as a portent and a message was sent out to Cicero advising him to take action against the conspirators.
What should be done with the prisoners? In principle, as Roman citizens, they should receive a trial, but that would entail a dangerous delay while Catilina was in the field. The mood in the city was volatile, and the likelihood of bribery would make the outcome of any court proceedings uncertain, however strong the prosecution’s case. The alternative was to execute the men without delay. This was both legally and politically problematic. The trial of Rabirius was still fresh in everybody’s mind. Caesar had used the case to limit the force of the Final Act. AS Cicero was well aware, Caesar could well organize a backlash if citizens were killed without a proper hearing. While a Consul had power over life and death when in office, he could be called to account in the courts after the end of his term. It could, of course, be argued that the conspirators had abrogated their citizenship by taking up arms against the state. This would self-evidently be the case with Catilina, who was at the head of a hostile army. But as for Lentulus and the others, the position was less clear-cut. They had not been caught in the act of rebellion, although the cache of weapons was damning evidence of their intentions.
Cicero decided to cover his back by asking the Senate, which met again two days later, for its opinion. He indicated that he would implement whatever they decided, although he implied that he favored execution. He called on the Consul-designate, Junius Silanus, to speak first. Silanus argued for the “extreme penalty,” which everybody took to mean death. The other Consul-designate, Murena, agreed, as did the bench of ex-Consuls. It looked as if there would be no argument. But then the Praetors-Elect were invited to speak and Caesar stood up to address the meeting.
He spoke with great severity. No form of punishment could be too harsh for the crime, he said. But the death penalty would be a mistake. The accused were men of distinction. Death without trial would create a disastrous precedent and, although he had “no fear of Marcus Tullius,” another Consul might use his power despotically. The text of his speech has not come down to us, but Cicero’s response has. In the published version Cicero is recorded as saying, “Imprisonment, [Caesar] says, was unmistakably devised as the special penalty for atrocious crimes. He moves, therefore, that the defendants should be imprisoned, and distributed among the municipalities for their incarceration.” If Caesar had indeed argued for long-term, perhaps life imprisonment, his suggestion would have been hard to take seriously in a country that did not have residential jails. How would the conspirators be looked after? Surely there would be a high risk of escape. (The previous day, after all, had seen an attempt to free the prisoners.)
According to later sources, Caesar in fact proposed that Cicero “ought to distribute the accused around the towns of Italy, as he thought best, until Catilina had been suppressed and they could be brought back for trial.” No doubt, he had in mind house arrest at the homes of local worthies. This was a more rational and practical proposition and one far more difficult to oppose. It is probably what was actually said,