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Execution of he conspirators, December, B.C. 63. Its legal grounds and consequences.

The decree of the senate, videant consules, etc., had come to be considered as reviving the full imperium of the consul, and investing him with the power of life and death over all citizens. Cicero acted on this (questionable) constitutional doctrine. He endeavoured, indeed, to shelter himself under the authority of a senatorial vote. But the senate never had the power to try or condemn a citizen. It could only record its advice to the consul. The whole legal responsibility for the condemnation and death of the conspirators, arrested in consequence of these letters, rested on the consul. To our moral judgment as to Cicero's conduct it is of primary importance to determine whether or not these men were guilty: to his legal and constitutional position it matters not at all. Nor was that point ever raised against him. The whole question turns on whether the doctrine was true that the senatus consultum ultimum gave the consul the right of inflicting death upon citizens without trial, i.e., without appeal to the people, on the analogy of the dictator seditionis sedandae causa, thus practically defeating that most ancient and cherished safeguard of Roman liberty, the ius provocationis. The precedents were few, and scarcely such as would appeal to popular approval. The murder of Tiberius Gracchus had been ex post facto approved by the senate in B.C. 133—2. In the case of Gaius Gracchus, in B.C. 121, the senate had voted uti consul Opimius rempublicam defenderet, and in virtue of that the consul had authorized the killing of Gaius and his friends: thus for the first time exercising imperium sine provocatione. Opimius had been impeached after his year of office, but acquitted, which the senate might claim as a confirmation of the right, in spite of the lex of Gaius Gracchus, which confirmed the right of provocatio in all cases. In B.C. 100 the tribune Saturninus and the praetor Glaucia were arrested in consequence of a similar decree, which this time joined the other magistrates to the consuls as authorized to protect the Republic: their death, however, was an act of violence on the part of a mob. Its legality had been impugned by Caesar's condemnation of Rabirius, as duovir capitalis, but to a certain extent confirmed by the failure to secure his conviction on the trial of his appeal to the people. In B.C. 88 and 83 this decree of the senate was again passed, in the first case in favour of Sulla against the tribune Sulpicius, who was in consequence put to death; and in the second case in favour of the consuls (partisans of Marius) against the followers of Sulla. Again in B.C. 77 the decree was passed in consequence of the insurrection of the proconsul Lepidus, who, however, escaped to Sardinia and died there.

In every case but one this decree had been passed against the popular party. The only legal sanction given to the exercise of the imperium sine provocatione was the acquittal of the consul Opimius in B.C. 120. But the jury which tried that case probably consisted entirely of senators, who would not stultify their own proceedings by condemning him. To rely upon such precedents required either great boldness (never a characteristic of Cicero), or the most profound conviction of the essential righteousness of the measure, and the clearest assurance that the safety of the state—the supreme law—justified the breach of every constitutional principle. Cicero was not left long in doubt as to whether there would be any to question his proceeding. On the last day of the year, when about to address the people, as was customary, on laying down his consulship, the tribune Q. Caecilius Metellus Nepos forbade him to speak, on the express ground that he "had put citizens to death uncondemned "—quod cives indemnatos necavisset. Cicero consoled himself with taking the required oath as to having observed the laws, with an additional declaration that he had "saved the state." Nevertheless, he must have felt deeply annoyed and alarmed at the action of Metellus, for he had been a legatus of Pompey, and was supposed to represent his views, and it was upon the approbation and support of Pompey, now on the eve of his return from the East, that Cicero particularly reckoned.

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