The Saturninus Affair, pars III
by: M. Horatius Piscinus

Finally we can get to the trial of Gaius Rabirius, or actually the different trials of Rabirius in the year 63 BCE. Initially a hearing was held to present several unrelated charges. Rabirius was then to be tried under an ancient law in a court meant to hear cases of perduellio. Perduellio was a charge of treason with certain religious implications. In 100 Saturninus himself had passed a law redefining treason as maiestas, broadening its scope and giving it a more civil meaning. Saturninus had also set up a new permanent court to hear such cases. However, Rabirius was not brought before the court which dealt with murder, nor the permanent court for maiestas. It is argued that Rabirius was brought up on charges of perduellio because his accusers wanted a more high-profile court in which to test the Senate's authority in issuing a senatusconsultum ultimum. That is probably not the case. One reason was probably the rules of procedure under which this court operated, which we'll get to below. The other reason was that his accusers wanted to file capital charges against him. Capital charges, from the term caput (head), involved removing a citizen's status as a citizen, cutting him off from his birthright by removing him from the line of descent from the 'head' of a Roman gens. Without citizenship Rabirius would no longer be protected by the Lex Sempronia against citizens being executed without trial, which was the real issue of objection the populares had about SCU's.

The initial charge against Rabirius was that he was sexually promiscuous. Mention was also made of charges made against him ten years earlier by C Licinius Macer that Rabirius had profaned holy places and graves. In 73 Macer had also prosecuted T Labienus on charges of sexual promiscuity. Allegedly Labienus was one of the notorious lady Clodia's lovers. Clodia is believed to have been the Lesbia that Catullus dedicated so many of his love poems to. Catullus' bemoaning her departure from him to some other lowborn men is thought to include a reference to Labienus. Labienus had managed to clear himself by having referred to Macer's charges against Rabirius as proven false, claiming that the charges against him were equally false. Both Rabirius and Labienus were acquitted of Macer's charges, and this led to Macer himself being convicted of extortion and committing suicide in 66. It was ironic then that charges of sexual promiscuity were brought against Rabirius. But it could be that Rabirius was another of Clodia's many lovers, and this may have been brought up to have her husband acquiesce to the trial, as he, Q Caecilius Metellus Celer, was the praetor in 63, later to became Consul in 60. (Clodia's sister, also called Clodia, was married to Licinius Lucullus [Consul 74], the brother of M. Terentius Varro Lucullus [Consul 73]). Rabirius' defense counsel in his later trial was M Tullius Cicero who made allusions to the whole series of affairs behind the case.

The reason that the sexual charges were the initiating ones was to support making this a case against Rabirius' caput and that once in trial anything could have been brought in as evidence. That of course meant that Macer's charges against Rabirius could be brought up, even though he had been acquitted. Macer's charges stemmed from events in 100. Cicero's characterization of those events we'll get to below, but it's clear from what he says that in those events Rabirius took arms from the Temple of Sancus, distributing them to his followers so as to attack Saturninus. He also cut off the water supply to the Capitoline, which meant that he had also cut off the water to the Temple of Jupiter Optimus Maximus. In the aftermath of Saturninus' murder his house was burned. Cicero proudly mentions incidents where images of Saturninus found in people's lararia, or even mentioning any praise of Saturninus, were grounds to exile prominent citizens. We can also speculate that the purge of Saturninus extended even to the graves of his ancestors, and that Saturninus' own grave was desecrated. How did Rabirius get that head of Saturninus he was so proud to display? Other charges were levelled on him as well, such as that he was behind the embezzlement and burning of public records. The case referred to was actually that of Rabirius' brother-in-law, G. Curtius, who was a leader among the Equites, and against G. Rabirius Postumus, G. Rabirius' son who was adopted by Curtius and was himself a financial speculator. It was these three men who had most to lose from Pompey's arrangements in the East. Attacking Rabirius would have removed the political protection afforded the others and eliminated the leader of opposition to Pompey in the Senate. There may have been a connection here, too, to Servilius Rullus' proposed agrarian law, withdrawn earlier in the year. Its design was to buy up land for redistribution to veterans, most of the land he proposed to redistribute was in Campania where Rabirius held large estates. Rabirius was certain to oppose the agrarian law, as voiced by Cicero in his four speeches On agrarian law: against Rullus. Behind Rullus' plan there may have been Crassus hoping to bring economic ruin on an old rival. If Cicero was spokesman for Rabirius, Caesar was acting on behalf of Crassus in this whole affair. Other charges dealt with Rabirius' seizure of another man's slaves and his scourging Roman citizens while denying them their right of provocatio, provided under the laws passed by Cato the Elder and T. Gracchus.

Procedures for a trial of this nature required that two judges be drawn by lot. There is considerable speculation that the drawing was rigged. One who was selected was the praetor-elect G. Julius Caesar. The other judge was his cousin L. Julius Caesar. The arrangement was odd in that two patrician Senators were acting as judges over another Senator, something that the leges of Saturninus and Glaucia had sought to prevent. But it served to show the shallowness of the policy promoted by Cicero of a Concord of the Orders. The old constitution had been achieved by a series of compromises that had over time won the plebeians full civil rights. One result was the evolution of the nobiles who were both patrician and plebeian, attaining their status through a family history of service to the state and its people. By the late Republic the status of patricians was rather meaningless; fewer than forty patrician gentes remained and there was difficulty finding candidates for the religious offices that were still held exclusively by patricians. Among the nobiles could also be considered those Italians of noble families that had later attained citizenship and had a long tradition of serving in the armies and bureaucracy of Rome. The nobiles then, no matter which order they came from, or what their ethnicity, had a tradition of being the guardians of the people and were thus referred to as populares.

The optimates, on the other hand, were those who had benefited from Sulla's rule. These included old aristocratic gentes like the Caecilii, and many equites. Their power was solely based on the wealth they had gotten through exploiting Sulla's proscriptions, rather than through honor and tradition. The Concord of the Orders then really referred to cooperation of the wealthiest in exploiting everyone else. Their assertions of defending a traditional role of the Senate safeguarding the state was baseless in that the Senate they formed was not the traditional Senate, but one formed by Sulla, and the powers it assumed for itself exceeded those provided for in the constitution and disregarded the traditional laws which provided checks on abuse of power. The dispute between the populares and the optimates was not a class struggle, as modern historians have interpreted it, but a division among the ruling class over who had the better claim to Rome's legal tradition and an interpretation of what that tradition was.

The attempt to try Rabirius on charges of perduellio came to an abrupt end when Consul Cicero vetoed the court. The proceedings had only gotten through the preliminaries leading up to the trial. The trial was then renewed in one of the assemblies. The right of provocatio had become obsolete by this time. But the two events together, Cicero's veto and the removal of the case to a comitia, may have amounted to a renewal of the provocatio, something the populares wished to restore. The problem is that provocatio was made to the comitia centuriata, but from Cicero's speech on Rabirius' behalf the indication is that the trial took place in the concilium plebis tributum. The stakes were now higher. With the initial charges Rabirius faced a fine, with the possibility that more serious charges might develop as the trial continued. Now that the trial had been moved to the comitia Rabirius was facing crucifixion. Labienus was not only the prosecuting magistrate in this second trial. He was also the presiding official. Thus by first charging Rabirius in one of the old nonpermanent courts they had prevented him from being tried by fellow equites from among the optimates and had maneuvered the trial to be moved into a comitia where the populares were sure to dominate the jury.

The charges were first enumerated against Rabirius by the sons of Quintus Labienus, who was killed in the aftermath of Saturninus' death. Titus Labienus presented a case directed against the Senate's use of the SCU against Saturninus, linking Rabirius only by inference. He also made a case against Cicero himself for having vetoed the previous proceedings and trying to abolish the ancient court for perduellio. For the defense Q. Hortensius Hortalus dealt with the charge of Rabirius having murdered Saturninus. In this second trial Cicero then appeared to speak on behalf of Rabirius, claiming that he was speaking not only as counsel for the defense, but also as Consul of the Republic. Cicero dismissed the specific charges against Rabirius with little argument. The charge of murdering Saturninus he dismissed as absurd, referring to Hortensius' argument that the murderer had been Scaeva, a slave of Q. Croton who was given his freedom as a reward. Instead Cicero's oration became a political statement. It contained attacks on Labienus personally, and on his uncle Q. Labienus. It enumerated rights of citizens, the Lex Fabia against kidnapping, the Lex Porcia de tergo (by censor Cato in 193) against scourging without appeal, and the Lex Sempronia de provocatio (by G. Gracchus). Thus for the defense of Rabirius Cicero had to admit to the rights that the populares were trying to establish. But Cicero went further. "Nothing would please me more...than to proclaim that the hand which struck down Lucius Saturninus...was the hand of my client!" The crowd began to shout Cicero down. In the version of the speech we have, written down well after the trial and supplemented in several places to improve upon his argument, Cicero makes light of the disruption. He goes on to present his version of events on the day in question, praising Marius for that occasion and for his victories, even commenting on how Caesar had a few years earlier erected monuments honoring those victories. Cicero gives a list of prominent individuals who supposedly assisted Marius in arresting Saturninus, including Labienus' father. He denied that Marius had given Saturninus safe passage to the Senate. Instead he paints a picture of Saturninus opening the prisons, besieging the Capitoline and massacring citizens. It is doubtful that the gathered assembly would have been so ignorant of the events, or so partial to Cicero's version that they would have accepted any of these arguments. The crowd turned vocally hostile to Cicero, that much is clear, and probably continued to shout him down after he proclaimed pride for the death of Saturninus.

What happened next was one of the strangest parts of the whole episode. The praetor urbanus Q Caecilius Metellus Celer had objected to the proceedings. Seeing the crowd turn against Cicero, he climbed to the top of the arx and pulled down the vexillum russi coloris. This was an ancient signal that the city was being attacked by the Etruscans. Tradition held that when the red flag was lowered that the assemblies of the people were to disband, the people to arm in defense of the city. It would be comparable in Cicero's day to today's Supreme Court calling a halt to its proceedings because someone in Boston Harbor was waiving a lantern to warn of a British invasion. The ploy worked however. The comitia ended its session for that day. Labienus never renewed the proceedings, although he would certainly have been within his right to do so. Argument has since occurred as to what the outcome might have been had the trial continued. Suetonius claimed that Caesar did not have Labienus continue because Rabirius would have been acquitted. But all other sources and authorities offer the opposite view. In such a political forum the facts of the case meant little. Little evidence was really presented by either side, the testimony of witnesses and the judgement that would have been handed down were totally partisan. Cicero's speech was highly partisan in its presentation. It might have gone over well among the optimates of the Senate, but it was sure to raise the wrath of some in the comitia. But when it came down to a vote it would have been decided more on what was common knowledge or what was commonly believed, rather than anything presented at the trial itself. What could have saved Rabirius was that the penalty he would have had to endure if found guilty, crucifixion, was viewed as too cruel a fate. Cicero also played on that theme in his speech. But then, how did public crucifixion compare to what the Senate had done to Saturninus?

Caesar and Labienus had proven a point. With the trial of Rabirius they had forced the Senate to recognize the right of provocatio, and all of the leges that had been enacted to protect that right, even by their political opponents like the Gracchi. They had then gotten the optimates to admit that the murders of the Gracchi and Saturninus by order of the Senate violated their rights as citizens. The question was not whether the Senate could issue a senatusconsultum ultimum, but whether an SCU could be used to execute citizens without trial. The populares thought they had made their point. But it was only a few months later when the Catiline conspiracy erupted, Cicero had the Senate issue an SCU and used it to justify executing Catilina's followers without trial. The words of Cicero, spoken at the trial of Rabirius, were later thrown back on him. By the end of the year Q Caecilius Metellus Nepos, Celer's brother, was calling for Cicero to be denied an opportunity to give the traditional consular valediction.

Proceed to Epilogue
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