In M. Ciceronem Deliberativum
by: M. Horatius Piscinus
PARS I | PARS II | PARS III | PARS IV | PARS V | PARS VI | PARS VII

Exordium

Come! Bring on the actor to our stage, with his toga wrapped tightly round as though an impenetrable cloak of false virtue, posed as he will with his arms clasped upon his chest, his head thrown back, his chin thrust forward in his hypocrisy and his contempt of Roman law. If you did not already know, Quirites, then it would be a long tale indeed to tell, of the falsehood of Marcus Tullius Cicero, serving as consul, acting without authority, without justification, invoking powers the Senate never possessed under Roman law, extending its application beyond what authority it granted, abusing his powers as consul for his own personal political ambitions, done in a manner that is contrary to every Roman law guaranteeing the rights of Roman citizens, the very rights that he has himself so often championed for the benefit of his political masters and sought to withhold from his political opponents, and indeed the very rights he has sought to revoke from all Roman citizens.

Narratio

The facts in this matter are well known. M. Tullius appeared before the Senate on 21 Oct 690 AUC; presenting allegations against his political rival Sergius Catilina. A measure was passed whereby M Tullius was empowered as consul to defend our nation and our capital of Rome against the supposed threats posed by Sergius Catilina to our state. Did M Tullius then raise an army to defend us, or post guards at our city gates, or take any measures to defend our nation? No, instead he raised a personal army, to surround his personal residence and turn the Palatine into an armed camp, as though protecting his own person was more important than safeguarding our temples, our curia, and that his safekeeping alone was all that was required to save our nation. Did he arrest the supposed conspirator who so greatly posed a threat to Rome? Indeed not, for Catilina was free to roam the streets of our city, free to enter the curia itself, for twenty days after Marcus Tullius first made his allegations. And was Catilina allowed to appear before the people to deny these allegations? Even when Catilina, alone and unarmed, appeared before the fortified encampment that Marcus Tullius had made of his house, presented himself to Marcus Tullius' army for surrender that he might stand trial and give answer, Marcus Tullius refused to arrest Sergius Catilina, for what other evidence could be presented against Catilina than a letter from some scorned mistress of another supposed conspirator. Then with no avenues made available to Catilina to defend himself, he left the city on 7 November, Marcus Tullius denouncing his action as a sign of guilt. Nearly a month passed before Marcus Tullius again presented some spurious letters, denouncing six other Roman citizens of high rank, among them our praetor P. Cornelius Lentulus, senator C. Cornelius Cethegus, L. Statilius, P. Gabinius Capito, and L. Cassius Longinus. These men were seized, held captive and no longer presented any danger to Rome. Were they then afforded their rights to stand trial? No. Our praetor Julius Caesar ruled that they should be held until they could be brought to trial. Consul-elect Junius Silanus called for them to be executed but after trial, and later admitted he never had intention of executing them. But Marcus Tullius called for their execution without trial, and Porcius Cato demanded they be executed. Six Roman citizens were executed without trial, without being given the opportunity to defend themselves in open court, contrary to all of our Roman laws. When later Porcius Cato was tried and convicted of these murders, sent into exile, did Marcus Tullius then await his own arraignment? No, he fled the city, admitting to his complacency and guilt, more so than when he had forced Catilina to flee.

Propositio

I shall leave it to my colleagues to go further into the details of this case and the events that had surrounded it. Here now let us consider what is at stake. What principles of Roman law do we seek to defend by prosecuting Marcus Tullius Cicero? Marcus Tullius claims that he acted under a senatusconsultum ultimatum "to take measures to protect the state from harm." It is highly questionable that the Senate ever had authority to issue such an order to our consules. It is even more questionable that such a senatusconsultum could be interpreted to supercede Roman law when its aim was "to protect the state from harm." And certainly it must be denied that such advice from the Senate could be construed to deny Roman citizens held in custody of their rights, to deny them a fair trial, to execute them without first affording them the right of provocatio. To what rights of Roman citizens do I point ? What Roman laws did Marcus Tullius supercede in these arbitrary actions? At the very founding of our Republic every Roman citizen held the right of provocatio, reaffirmed by the Leges Valeriae of 144, 304, and 453 AUC. Based on this basic right of all Roman citizens the Lex Porcia de tergo civium of 557 AUC held that no citizen could be so much as scourged without first being convicted in a court of law and allowed to appeal under his right of provocatio. The Leges Semproniae of 630 AUC took this a step further, prohibiting any Roman citizen from being tried on capital charges without consent of the Comitia. The Lex Clodia of 695 AUC further ensured this right by charging that anyone who executed a Roman citizen without trial should be outlawed and exiled. As consul, Marcus Tullius was charged on his oath to uphold Roman law. Under the advice of the Senate, under a senatusconsultum de re publica defendenda, Marcus Tullius was charged "to defend the state and see that it took no harm." What is the state other than its Roman citizens and Roman law by which it is governed? What is the Senate other than what the great statesman Licinius Crassus maintained, that the Senate is a servant of the nation? What then is a consul who refuses to heed the advice of the Senate, overthrows the laws of the state, and abuses the rights of Roman citizens?

Argumenta

Confirmatio: What proofs need I bring forward to support my contentions, when the laws of Rome are well known to everyone attending these proceedings? These legal principles of Roman law are self-evident. What possible defense can be offered on behalf of Marcus Tullius Cicero for having violated his duties as consul, for having violated his oath to defend and enforce Roman law, for having violated the rights of fellow Roman citizens? Ignorance?

Let us return to the year 683 AUC when Marcus Tullius Cicero was called upon to act as prosecutor in the trial of C. Verres. In his own oration against C. Verres, Cicero pointed out the facts of the case:

LXII [162]. "Then he (Verres) orders the man to be most violently scourged on all sides. In the middle of the forum of Messana, a Roman, a citizen, O judges, was beaten with rods; while in the mean time no groan was heard, no other expression was heard from that wretched man, amid all his pain, and between the sound of the blows, except these words, "I am a citizen of Rome." He fancied that by this one statement of his citizenship he could ward off all blows, and remove all torture from his person. He not only did not succeed in averting by his entreaties the violence of the rods, but as he kept on repeating his entreaties and the assertion of his citizenship, a cross--a cross I say--was got ready for that miserable man, who had never witnessed such a stretch of power."

How then, in that year, did Tullius Cicero react when a Roman citizen was scourged and crucified, without trial, without right of provocatio:

LXIII [163]. "O the sweet name of liberty! O the admirable privileges of our citizenship! O Porcian law! O Sempronian laws! O power of the tribunes, bitterly regretted by, and at last restored to the Roman people! Have all our rights fallen so far, that in a province of the Roman people,--in a town of our confederate allies,-- a Roman citizen should be bound in the forum, and beaten with rods by a man who only had the fasces and the axes through the kindness of the Roman people? What shall I say? When fire, and red-hot plates and other instruments of torture were employed? If the bitter entreaties and the miserable cries of that man had no power to restrain you, were you not moved even by the weeping and loud groans of the Roman citizens who were present at that time? Did you dare to drag anyone to the cross who said that he was a Roman citizen?"

Can a man forget seven years later when he himself "only had the fasces and the axes through the kindness of the Roman people" that he had once cried out, "O nomen dulce libertatis! O ius eximium nostrae civitatis! O lex Porcia, legesque Semproniae! O tribunicia potestas!" He so bemoaned on that occasion that the rights of Roman citizens were being denied in a provincia, how more troublesome then should it have been to see these same rights denied in Rome itself? Only a few months before he himself executed Roman citizens without trial, Cicero stood in defense of Gaius Rabirius, tried in that same year of 690 AUC for the murders of the followers of tribunus plebis Saturninus and praetor G. Servilius. In that case Cicero stated, "The person of every Roman citizen must remain inviolate. The rights that stand for the liberty of the individual must never, under any circumstances, be tampered with." And to what rights did he call out once more, but the "liberties of Roman citizens" granted under the Lex Porcia and the Leges Semproniae. Marcus Tullius Cicero was not ignorant of Roman law or of the rights granted by it to Roman citizens. He had built a career in our courts defending those rights and prosecuting those who abused those rights of Roman citizens.

Confutatio: What arguments then does Marcius Tullius offer to justify his actions? He will once again refer to the ambiguous wording of a senatusconsultum as though it gave him authority to act without limitations. But did he not argue in defense of Rabirius that Gaius Marius acting under a similar senatusconsultum could not have granted safe passage to Saturninus without first gaining a separate senatusconsultum to authorize it? Did he not admit in that defense that limitations were still held upon a consul acting under a senatusconsultum ultimatum? Cicero will cite examples from Roman history where other consules acted under the authority of a senatusconsultum to suspend the rights of Roman citizens and execute them without trial. Once again, as he did in defense of Rabirius, he will attempt to distort the facts and exaggerate the circumstances, in order to justify his own deplorable actions.

In the past Cicero cited the example of Gaius Servilius Ahala murdering Spurius Maelius in 317 AUC. There was no senatusconsultum issued in that incident. Ahala murdered Maelius for offering corn to the people of Rome three years earlier at a fair price, undercutting the prices being offered by Ahala and his cohorts. It was nothing less than a murder for personal profit. Ahala later offering as an excuse that by becoming tribunus plebis in 317, Maelius had intended to impose a tyranny on Rome, a tyranny of well-fed plebeians who would stand up for the rights procured for them by their ancestors and guarded by tribuni such as Maelius. The absolution of Ahala for his actions, his story told exempli gratia by the optimates is merely a falsification ex parte of Roman history.

Cicero will also cite the exempli gratia of Tiberius Sempronius Graccus in 621 AUC. Again, the fact of the matter is that no senatusconsultum had previously been passed against Ti. Gracchus, and certain senatores acted in their own self-interest against the people of Rome. Gracchus had proposed that lands of the ager publici held in excess of the statutory limit of 500 iugera should be redistributed in accordance with traditional property rights to the citizens of Rome. Senator Nasica and his henchmen, who illegally held parcels of the ager publici in excess of the law, then violated the Lex Icilia of 261 AUC when he attacked the assembly of the people, killing the tribuni plebis M. Octavius and Ti. Gracchus along with 300 citizens who were there assembled. The Senate then impaneled a commission to investigate the incident, never issuing any senatusconsultum related to the incident, and indeed the land commission established by Ti. Gracchus continued to redistribute parcels of the ager publici even afterward.

Ten years later Gaius Sempronius Gracchus was himself tribunus plebis, offering many reforms in matters of land distribution and the founding of colonies, corn distribution at fixed prices, improvement of public works, improved conditions in the army, and a series of legal reforms protecting the rights of citizens, known as the Leges Semproniae. The year following his tribunia an attempt was made to repeal the laws he had enacted. He then mounted a peaceful protest, finally withdrawing to the Aventine after the tradition of the plebeian secessio, and was there murdered along with 3,000 Roman citizens by a senatorial party. Afterward a senatusconsultum de re publica defendenda was passed as a post facto justification.

In the years that followed there continued to be made efforts at land reform, distribution of ager publici to veterans of foreign wars, and the foundation of colonies, which were continually opposed by the optimates of the Senate. In 650 AUC tribunus plebis Lucius Appuleius Saturninus secured a distribution of land in North Africa to the veterans of the Jugurthan War. In 653 AUC he attempted to do the same for the veterans of the Germanic Wars. Disputes turned violent as candidates of the populares were barred from running for office, and in retaliation the optimates' candidate for consul, Memmius, was assassinated. Further violence was threatened as the optimates gathered around the Curia, and the populares gathered in the sanctuary of the tribune's house on the Capitoline. At that point a senatusconsultum de re publica defendenda was issued to consul C. Marius "to defend the state and see that it took no harm." Marius placed his forces between the two parties and negotiated safe passage for Saturninus and praetor C. Servilius to enter the Curia and negotiate a settlement. Instead as the tribunus plebis and the praetor entered, the doors to the Senate were locked and they were murdered. Immediately afterward members of the optimates stormed Saturninus' house where his followers had gathered, not only violating the sanctuary traditionally afforded there, but also violating the sanctuary of the templum Jovi Optimi Maximi. Forty-seven years later C. Rabirius was tried for the excesses which followed and the part he played, plundering the favum of Sancus Fidus of weapons, violating the templum Jovi OM, violating the lex sacra in assaulting the plebeian sanctuary, and desecrating the tombs of Saturninus, seizing his head and displaying this pickled trophy on his supper table in the years that followed. Cicero was called in for the defense and tried to excuse Rabirius' excesses, claiming they were made under the authority that had been granted to Marius to maintain order.

We should not overlook the personal interest of Marcus Tullius in his defense of Rabirius. Shortly before, another agrarian bill had been sponsored by tribunus plebis P. Servilius Rullus, with consul M. Tullius Cicero issuing four orations against it, threatening to invoke a senatusconsultum ultimatum to suppress the effort. Sevilius Rullus then withdrew his agrarian bill, and tribunus plebis Titus Labienus brought charges against Rabirius as a test case over this issue of whether the rights of Roman citizens could be so callously disregarded under a senatusconsultum as had so often been said to justify acts of suppression in the past. The facts of the historical record show that there was never any legal precedent for a senatusconsultum to supercede any Roman law, and that the argument made contrary to historical fact was no more than a fraudulent construction of the law. Marcus Tullius devised this false construct, repeatedly threatened to apply it by having the Senate issue a senatusconsultum ultimatum to justify whatever arbitrary acts he might wish to implement, finally attaining passage of such an act against his political rival Catilina, then later extending its authority to include political supporters of Catilina in the Senate, and then abused his authority still further by executing those members of the Senate without trial, all under the guise of false pretense.

Peroratio: How then are we to judge these heinous acts of M. Tullius Cicero: the execution of Roman citizens without trial, made in contravention to the very Roman law he had so long used to defend his own partisans, and employing a fallacious construction of the law to deny the same rights to his political opponents? We need go no further than to view Marcus Tullius Cicero's own words.

Throughout his orations against Catilina, Cicero posed that the threat to Rome was really made against his own life. And by his actions, fortifying his house and surrounding himself with a personal army, we can see that Cicero was paralyzed by an almost paranoid obsessive fear. Later he posed his actions to Q. Metellus Celer in a letter (Jan/Feb 691) as being a "glorious triumph" and himself as "the consul, savior of my country." In a letter to Pompei (June 691) he said, "be assured that what I did for the public welfare meets the approval of the whole world!" Did it really? When in the same letters he complained that Celer had "deceived" him in not giving him support, that from Pompei he was led "to expect in your letter some recognition of what I had done in my consulship." His complaints came after Q. Metellus Nepos, brother of Celer, had refused to allow Cicero to address a valediction to the people of Rome, saying "that he who had put others to death unheard should himself be denied a hearing." When Cicero appeared to give testimony at the trial of Clodius Pulcher in the following year, he was shouted down by the crowd as an unreliable witness.

But did Cicero have any doubt about the contemptible behavior of his consulship? If he could not deceive his former supporters and the people of Rome, could he still deceive himself over what his actions constituted? To the historian Lucceius he wrote (June 697), "I long to have my consulship recorded by you as soon as possible. I ask you again and again to embellish that episode more than your opinion might warrant and in the process to put aside the rules of historical composition and grant a little more to your love for me than the truth might allow." What truth did he seek to conceal, and what truth then should we be led to believe in our deliberations of these matters?

In De Officiis Cicero wrote, "(3) According to Panaetius, in forming a resolution we have three things to consider: Is the subject of deliberation honorable or dishonorable? The second question turns entirely on expediency. The third is concerned with the conflict between the honorable and that which appears to be expedient." Cicero goes on to tell us there are five considerations, for he would divide the honorable into what is more honorable, and what is less, and what is more expedient and less so expedient. "(5) Honor," he said, "springs from one of four sources. It consists in sagacity and the perception of truth, or in the maintenance of human society, respect for the rights of others, and the faithful observance of contracts, or in the greatness and strength of a lofty and invisible spirit, or finally in that order and measure in word and deed which constitute temperance and self-command." Truth? In Cicero's perception of these events did he offer truth? Faithful observance of his oath of office, or a display of respect for the rights of others? By his own criteria can we judge Cicero's actions to have been honorable? There was no justice in his action, no truth did he tell about his actions, and therefore there is no honor in Marcus Tullius Cicero.

"(7) . . . The principle which knits together human society and cements our common interest . . . has two parts: Justice . . . and the cognate virtue of beneficence . . .The first duty that justice enjoins is to do no violence except in self defense . . ." Can the execution of unarmed men, held in custody, then be considered justice? Can it be beneficence? Certainly it cannot be taken as self-defense when violence is enacted on men who are already under your control. Certainly it cannot be taken as justice when the executions were conducted without trial. Certainly then there was no respect given by Cicero to the rights of these Roman citizens, and no respect was given for Roman law.

Cicero continues, "To attack a man unjustly under the influence of anger or some other passion is to lay hands upon a comrade; not to defend the opressed and shield them from injustice, is as great a crime as to desert our parents, our friends, and our country." What then does such a man deserve, when in a position of authority meant to serve justice, acting out of unreasonable fear, he unjustly attacks a man, denying him his rights and executes him? And what then if he does this not to one man alone but to six? Cicero has condemned himself, six times over, to be departed from his family, his friends, his country, in exile for the injustices he has committed.

Yet perhaps we should consider the other portion in our deliberations, that which is expedient. "(10) It may at times be just not to return what is entrusted to our care, not to keep a promise, or to violate the laws of veracity and honor. In such a case we should go back to the principles which I laid down at the outset as the foundation of justice: do evil to no man, work for the common good." Although expediency might require us at times to do what is required at the moment and act in a manner that is dishonorable, still we must, according to Cicero, act with justice, for the common good, and "do evil to no man."

As to the justification Cicero used for his criminal acts, that they were carried out under a false interpretation of the authority granted him by a senatusconsultum ultimatum, Cicero said, "A common form of injustice is chicanery, that is, an over-subtle, in fact a fraudulent construction of the law." We have seen that Cicero's is a fraudulent construction of the law, and therefore nothing but an act of chicanery.

So, good people, once more I present to you this actor, condemned by his own words, shown to be untruthful, dishonorable, unjust, manipulating a chicanery to deny six Roman citizens their legal rights so that he might execute the greatest violence upon them. How are we to judge such a man? Cicero himself said "(13) the most criminal injustice is that of the hypocrite who hides an act of treachery under a cloak of virtue."

"O the sweet name of liberty! O the admirable privileges of our citizenship! O Porcian law! O Sempronian laws! O power of the tribunes, bitterly regretted by, and at last restored to the Roman people! Have all our rights fallen so far . . .?" Quirites, if you do not condemn Cicero, you condemn Roman law and all the rights it has afforded to you. This man, Marcus Tullius Cicero, who so trampled upon the very principles of law he invoked, and for which he swore an oath to uphold, this man deserves nothing less than to be cast out, exiled from the nation he so unjustly served.
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