Captaciones

In the late Republic the senate developed a tradition, when faced with what i regarded as a violent threat to the security of the res publics srcinating among the citizens themselves, whereby it urged the consuls or other magistrates in office to take any measure necessary to counter this threat. The res publica was entrusted to these magistrates; they were urged to defend it and to ensure that it came to no

harm.'These vague and reassuring phrases were understood by the senators who

endorsed them to he an encouragement to the magistrates to use force against fellow-citizens without concerning themselves with the strict legality of what they did.

Normally the person of a citizen, who was not a manifest or condemned criminal, was protected from physical harm or manhandling on a magistrate's orders by the right of provocatio and the capacity of the tribunes to offer physical protection. The effect of this decree was to deter the tribunes from intervention: indeed o occasions they were enlisted as supporters of its execution.' Provocatio itself, at least in the middle and late Republic, was protected by law: that is, there was the sanction of a subsequent prosecution against those who rode roughshod over it. Probably the critical step in the establishment of this decree as an institution was the acquittal of the consul of 121 Bc, L. Opimius, on the charge of killing citizen without proper trial, and thus in defiance of the provocatio laws. This ha happened during and after the suppression of C. Gracchus, M. Fulvius Flaccus, an their supporters, when for the first time a decree of this kind had been formally put to the vote by the presiding magistrate.' However, Opimius' acquittal was controversial, and the interpretation of the decree itself continued to be the subject of dispute during the late Republic up to the time when it was fatefully used against the tribunes defending the proconsul of Gaul, Julius Caesar, on 7 January 49 Bc-i spite of the fact that they were offering no violence, as Caesar himself was at pains

to point out later.4 it was then that he described it as `that last decree'. (On the

basis of this phrase, and this phrase alone, it is generally termed in moder scholarship the senatusconsultum ultimum, although a more precise title, reflecting the actual terms of the decree, would be the senatus consultum de re publica defendenda.')

Caesar did not denounce the decree itself as a breach of the constitution either i 49 or in 63 BC, if we can trust the speech assigned him in Sallust's Catiline. H questioned its appropriateness in the circumstances of 49; in 63 he urged the consul, Cicero, not to transgress the laws too blatantly by executing the leadin Catilinarians in the city without formal trial.6 It is illustrative of the position of the

senate in the Republican constitution that there seem to have been no limits on the decrees that it could pass-not through any absolute sovereignty, nor because, as a body, it could not be held legally responsible for its actions, but because in form a

decree was no more than a recommendation, which could only be put into force by the magistrates.' This particular decree was, moreover, exceedingly vague in its language. It was not clear, for example, whether it was simply recommending a limited use of force to restore the rule of law or the extermination of those who were thought to have disturbed the peace. A large part of the bitterness to which the decree gave rise derived from the interpretation placed by the magistrates on it, especially when it was held to justify extraordinary forms of trial after order had been restored!

Apart from the important part it played in the political history of the late Republic, the decree is of more general constitutional interest for more than one reason. First, it is an example of an institution created by mos over a period (cf. Chap. I with nn. tiff.), that not only owed nothing to lex (statute) but had the precise object of rendering temporarily void certain leges. Secondly, it raises the perennial question, how far can one save law and order by using illegal violence, how far can ius be based on vis without ceasing to be ius-a subject which I have discusse

elsewhere.'Thirdly, it has elicited unusual theories about the nature of the senate.

For Mommsen the function of the senate in passing this decree was curiousl marginal. In his view the temporary neglect of legal process in a crisis was necessary and, because necessary, unproblematic. The very threat to the community both justified and required not only the magistrates but the whole citizen-body to go

to its defence, following the principle of Selbsthilfe, self-help. The senate's jo was to signal the crisis and to suggest practical steps to be taken. Now it is arguable that, whether or not one accepts the principle of self-help as universally valid, there is a fair amount of evidence that it was so accepted by and large by

Romans under the Republic."'However, the Romans also clearly thought that this

decree centred on a relationship between the senate and certain magistrates, not the community as a whole, and that the approval of the senate was far more important than some generally understood principle.

More representative are the views of G. Plaumann and H. M. Last, which ar

focused on the leading magistrates."They resemble Mommsen to some extent i

believing that in a sense the decree was superfluous. Decree or no decree, in crisis it was the magistrate's duty to save the res publics in any way that he could. For Last the decree did not in any way alter the legal powers the magistrate possessed: it was merely an offer of senatorial support, which implied that

decree as an institution was important in that it rendered the supra-legal measures taken less arbitrary: nevertheless, the decree arguably ran counter to the principles of the Roman constitution.

One palliative of the illegality was suggested by Last, that the senate at the time of the decree designated certain men hostes-enemies and therefore not deserving the rights of citizens-and this view has been followed with varying nuances by Bleicken and J. Ungern-Sternberg." There are, however, problems. It is not that we have no evidence of such declarations: we have, but in no case are they closely connected with the 'last' decree. The first known targets were Marius, Sulpicius, and their followers in 88; the last was M. Antonius, first in 43 and later, it appears, in 32-0" In all cases except perhaps one (in 83) these were people who had been i arms or might be thought to present a military threat. In 63 Catiline and Manliu were formally declared hostel-hut after Catiline's departure to Etruria and thus three weeks or more after the 'last' decree; the Catilinarians in the city were never formally so declared. However, Cicero in the first Catilinarian speech-wit Catiline present in the senate--claimed that he had discovered him to he an enemy,

and later argued that the arrested conspirators were hostes."This should alert us to

the dangers of taking Ciceronian rhetoric too literally or legalistically.

On the occasions when the decree was passed, there usually could have bee little doubt who were the targets. In 121, C. Gracchus and M. Fulvius Flaccus wer described as tyrants in the senate, according to Plutarch (as Ti. Gracchus had bee in 133, when the consul Scaevola had refused to be moved by informal representations by senators). In too Servilius Glaucia and Saturninus wer pointedly passed over by the consuls when they were urged to enlist support from

those they thought appropriate."Yet this is not to say that the targets weredeclared

to be bereft of citizen-rights. The puzzling language of a clause of C. Gracchus' le Sempronia, passed as a reaction against the tribunal of Popillius Laenas, whic condemned former supporters of Ti. Gracchus to death, does indeed imply that Laenas' tribunal was thought by its opponents to have deprived citizens of their rights without proper trial, but not that the senate had in some way formally enacted

this."The hostis-argument was part of the rhetoric of the situation when the 'last'

decree was passed, part of the defence of supralegal measures: it did not itsel legalize anything.

If the significance of the `last' decree from the constitutional point of view is, according to the standard explanation, simply that the magistrates were urged to save the res publica by ignoring strict legality, this does not entail any particular conception of the senate's place in the constitution. However, one scholar, U. vo Lubtow, has held that the senate had a latent imperium which it handed over to the

consuls in an emergency."This view runs contrary to our ancient evidence, whic understands imperium as something conferred by the people on magistrates, and finds no support among other scholars who would conceive the senate as something more than an advisory body.

More recently, T. N. Mitchell has argued that in a crisis the senate put into effect a latent supremacy of another kind, that of being a supreme deliberative body whic the magistrates were bound to obey and the rest of the citizens were bound to support.1B Mitchell's argument is chiefly based on two Ciceronian texts. In the d Oratore (2. 134) Cicero describes the issue in the Opimius case as 'whether a ma should be punished for killing a citizen in accordance with a decree of the senate for the preservation of his fatherland, although this was not permitted by the laws'. On the usual view of the 'last' decree, Opimius is justified here in Cicero's eye both because he had senatorial backing and because the preservation of the

fatherland was an overriding consideration; for Mitchell it is the decree whic Cicero wants to emphasize. However, this interpretation does not seem to be borne out by the word-order. Moreover, one would expect the preservation of the fatherland to be a major consideration for one who incorporated the sentence, 'ollis (sc. the consuls) salus populi suprema lex esto' ('let the safety of the people be their highest law' ) in his theoretical law-code19- a sentence which also stresses consular responsibility and initiative. Mitchell then takes the phrase from Cicero's speech in 63 for Rabirius, 'summum in consulibus imperium, summum in senat consilium putare', not to mean simply that the consuls were the chief executives and the senate the supreme deliberative body, but rather to indicate a superiority of the

consilium over the imperium.20Once again, this is not the most natural

interpretation of the text, nor, as we have seen, is it an interpretation of the constitution which would have been accepted without dispute. Yet the greatest argument against Mitchell's view is the text of the `last' decree itself: how can a decree, which entrusts the res publica to the consuls and other magistrates and urges them to protect it, he a declaration by the senate that it has taken charge in a crisis?

Cicero himself in general believed in the subordination of the magistrates to senatorial authority both in his theoretical works and in practical politics;' the fourth Catilinarian speech shows what store he set on getting senatorial backing for his execution of the Catilinarians. This means that he is likely to overemphasize the role of the senate in any discussion of the `last' decree, as we can see in his dismissal of the notion that Marius could have given a guarantee of protection to Glaucia and Saturninus in ioo without a decree of the senate.i2 Yet even his language there does not justify the interpretation of Mitchell. For the Caesa portrayed by Sallust the stress is elsewhere: describing the precedent the executio

of the Catilinarians would set, he says, `once a consul has drawn his sword b virtue of a decree of the senate following this example, who will fix a limit for him or who will control him?'23

VII

VII