O Marce Druse, patrem appello: tu dicere solebas sacram esse rem publicam: quicumque eam violavissent, ab omnibus esse ei poenas persolutas. Patris dictum sapiens temeritas filii comprobavit.
Marcus Drusus—the Elder I mean—I call upon you! You used to say that the Republic was sacrosanct; all who desecrated it had paid the penalty. The principle that the father wisely pronounced, the son has brazenly proven.
C. Papirius Carbo, tr. pl. 90, ORF 87.4 = Cicero, Orator 213–141
The thematic through-line of Chapter 2 was the relationship of magistrates to the res publica, in which res publica is primarily understood as res populi, the object of administration. Meanwhile the narrative through-line touched on the changing relationship of Rome (and especially the populus Romanus) to its empire, a narrative this chapter echoes in the inverse: here, I explore the changing relationships of members of Rome’s political elite to each other. Whereas Chapter 2 featured attempts by those at the centre of Rome’s political life to exert control over the governance of Rome’s expanding peripheries, Chapter 3 deals with attempts to root out perceived internal threats from the centre itself. It examines the conviction that Rome’s res publica is endangered, and not just by a general moral malaise brought on by personal immorality and fiscal corruption in elite circles, but rather that specific policies promoted by one or several politicians present an immediate danger to the res publica. Closely linked to this is the belief that the res publica has already collapsed, in which case only reconstruction (res publica constituta) will suffice.
While violence on the domestic stage is the main theme of this chapter, the narrative is therefore one of implosion and disintegration. For the most part, I focus here on res publica understood as an arena for political interaction, since in the various critical episodes in which ‘the Roman res publica’ was conceived to be at stake due to the actions of Roman citizens, politicians appealed to a conception of res publica that was at least as much concerned with constituent persons, their political activity and the traditional organization of the political arena (lex, cursus honorum, mos maiorum, and various institutions such as the senate and the magistracies) as with ordinary public business. My starting point is the violent death of Tiberius Gracchus in 133, followed by the senatus consultum ultimum passed against his brother Gaius in 121. Both acts were intended by the perpetrators to maintain the res publica salva, although the recurrence of civil discord and Sulla’s first march on Rome in 88 shows that this strategy was not successful in the long run. I then consider Sulla’s attempt to reconstruct the res publica, reflected in his chosen title, dictator legibus scribundis et rei publicae constituendae, and the rhetoric Cicero afterwards developed in Pro Sexto Roscio and the Verrines to reconcile himself to Sulla’s res publica reconstituta. Tracing res publica through these jarring historical episodes shows how the political discourse surrounding res publica mirrored the breakdown of Roman political life during this period.
Whether sincere or assumed, concern for the morals of one’s political peers could be positioned not as a way to eliminate rivals but as a far-sighted awareness of the dangers that personal corruption posed to Rome’s internal political world. One notorious moralizer was Cato Censorius, whose self-promotion as a clean-handed politician went in tandem with his censorial severity2 and denunciation of various named and unnamed contemporaries;3 he feared that the bad habits of individuals were setting in place a downwards spiral for the Roman res publica. Cato is often thought to have been behind ‘a number of tribunician assaults on the foremost personalities of the day’,4 especially P. Scipio Africanus, the hero of the Second Punic War. During the 180s, the tribunes seem to have been particularly concerned about such excessively powerful individuals;5 in the 170s, though, Cato, the senate, and the tribunes apparently acted in conjunction against various homines novi who were plundering the provinces, such as Popillius Laenas, for whom a special quaestio was set up in 172.6 Such activity against top-heavy nobiles and overreaching homines novi had the same aim, whoever was behind it: to curb magisterial abuses.7 Africanus should not be mistaken for ‘the familiar haughty patrician who lashes out against the plebeians and their tribunes’ of the Livian tradition; rather, he was ‘a new phenomenon: a member of a most distinguished patrician family, a brilliant and charismatic general who did not hesitate to turn directly to the people over the senate’s head to achieve his goals and who showed contempt towards sacred traditional values—in short, a popularis in an age when the via popularis had not yet been defined’.8 Not unnaturally, this made him more popular with posterity than with his political peers.9 Cato’s gloomy views on his contemporaries’ political morals may have influenced Polybius10 and the historian L. Calpurnius Piso Frugi, who proposed a lex de repetundis as tribune in 149 and went on to be consul in 133 and censor in 120.11 Forsythe perceives a Catonian theme in the fragments;12 he remarks on the ‘patriotic, moralizing and austere character’ of various fragments and argues that ‘Piso shared Cato’s old fashioned Roman traditionalism in the face of perceived contemporary moral decline’.13 The parallels are close enough that Frugi may have been using Cato as a direct model;14 their shared pessimism is reflected in Sallust’s later conviction that the fall of Carthage and influx of luxuria caused a sharp decline in Roman morals.15
The bad habits of individual administrators might well impact negatively on the everyday administration of the res publica (i.e. the res populi), but this was probably not the main concern for people like Cato, Piso, and Sallust. A single bad magistrate could only administer the res publica badly for a year, or however long his command might be prorogued; too many bad citizens within the civic arena, however, and its long-term future might be in doubt. As Haimson Lushkov puts it, ‘inasmuch as magistracy was an essential and defining feature of the republican state, any evaluation of the magistrates impacted also the nature of the state. If magistrates were rapacious, so too was Rome; if they were law-abiding and loyal to their oaths, so too was Rome. If they arrogated too much power or trod too much on the people’s liberty, so too was the republic in physical and ideological danger’.16 The idea that the (good) moral character of those engaged in political activity is important for the overall health of a given polity is a familiar truism of political rhetoric; what matters here is the distinction between, (a) general narratives of moral decline, with detail only insofar as the behaviour of specific individuals is singled out for moralizing criticism and complaint, and (b) sporadic anticipations of imminent danger, in which the political activity of specific individuals at specific historical moments is singled out as liable to result in immediate and permanent damage to the Roman res publica, and which must therefore be stopped by any means available. The first unarguably historical episode of this sort comes courtesy of P. Cornelius Scipio Nasica, previously observed shutting down a contio through the exertion of consular authority in 138.17
In 133, the plebeian tribune Tiberius Gracchus proposed agrarian legislation to reclaim and redistribute public land (ager publicus) that had been gathered into private hands.18 His legislation was not debated by the senate; instead, Tiberius took it directly to the concilium plebis,19 where it was vetoed by a fellow tribune, M. Octavius. Tiberius responded with a revised, tougher version of his original legislation, which Octavius also vetoed.20 After an attempt to seek reconciliation via the senate failed, Tiberius broke this impasse by having the concilium plebis vote on a bill to depose Octavius from his tribunate.21 Tiberius’s legislation was then passed. Together with his father-in-law Appius Claudius and his brother Gaius, then serving with the army in Spain, Tiberius was elected to the commission responsible for putting his legislation into practice; the senate, however, expressed its displeasure by granting the commission a derisory per diem amount to carry out its duties.22 Coincidentally, King Attalus of Pergamum had died and Eudemus of Pergamum now brought his will, in which the Roman people were made his heir, to Rome. Tiberius moved to accept the bequest by way of the concilium plebis before the senate could express an opinion on the matter and claimed there was no need for the senate to debate on the matter of the Pergamene cities either: he would draw up a relevant bill and put it to the people without the senate’s input. His commission was thereby funded at the expense of the senate’s increased displeasure.23 At this point, Tiberius decided to stand for re-election to the tribunate for the following year. His rural supporters failed to turn out for the election in full force, but he managed to get the first voting session postponed until the following day, when, amid a great deal of turbulence, it seemed he was about to get re-elected.24 Simultaneous stormy scenes took place in the senate, where the consul Scaevola (one of Tiberius’s early backers25) declined to take action against Tiberius despite rumours that Tiberius aimed to make himself king. Nasica, the pontifex maximus and Tiberius’s cousin, led a gang of senators and their attendants to the Capitol; according to Plutarch and Appian, Nasica covered his head with his toga, while Plutarch reports that his followers wrapped their togas around their left arms and Valerius Maximus and Velleius Paterculus report only that Nasica did this.26 In the ensuing chaos, Tiberius and some three hundred supporters were clubbed to death with pieces of broken benches.27
In his 1972 review of the scholarship on Tiberius Gracchus’s tribunate, Badian observes that ‘It is becoming increasingly difficult to give an exhaustive survey of work even in a tiny corner of our field’,28 and the challenge has not become easier since then. Passing over Tiberius’s earlier history,29 the question of whether he aimed ‘to redress social misery’30 or was principally concerned with the crisis in military recruitment,31 the eminence and significance of such supporters as the consul Scaevola and Appius Claudius, princeps senatus,32 and finally the arguments that putting legislation straight to the concilium plebis was a strikingly radical move33 or that Tiberius should have expected to meet with a veto from a fellow tribune,34 the key points remaining are the deposition of his colleague Marcus Octavius, the acquisition of Pergamum, the legality of iterating the tribunate, and Tiberius’s violent end. Two basic positions can be discerned for most of these issues: (a) the ‘context’ view: Tiberius’ tribunate, viewed in its historical context, was the explosive culmination of existing trends; it focused and refined them into the turbulent future that resulted;35 and (b) the ‘departure’ view: Tiberius’ tribunate broke wholly with and was a complete departure from all existing precedent.36
Traditionally, the deposition of Octavius was interpreted as the destruction of the tribunician veto (supposedly a key tool enabling the senate to maintain its pre-eminence), thereby unleashing the forces of demagogy upon an unsuspecting and hitherto satisfactorily (i.e. senatorially) managed res publica.37 Slightly more recently, it has been argued that the deposition of Octavius departed drastically from both established constitutional precedent and legality, and that ‘whatever else Tiberius did, the deposition of M. Octavius was the crucial, the unpardonable, mistake’: after the deposition, his inimici were watching eagle-eyed for him to trip up.38 In contrast, Astin’s contextualization of the deposition by reference to contemporary political behaviour, specifically the dubiously legal career of Scipio Aemilianus, leads him to argue that ‘if the Populus could in effect override electoral regulations, it could certainly take action which was not explicitly in conflict with any law, even though it was contrary to the mos maiorum; and at the same time these events had propagated the notion that the Populus had the right to have whomsoever it wished in office’.39 Badian likewise notes among other things the failure of the other tribunes to veto Octavius’s deposition and suggests that they thought ‘Octavius had been in the wrong to persist in his veto, and certainly that, when it came to his own peril, the People must be allowed to decide’.40 Badian takes Tiberius’s justification of his action against Octavius41 to show Tiberius thought it was impermissible to use the veto in the popular assemblies, because that prevented the people from exercising their power of decision, and suggests that ‘what evidence we have makes it likely that this, with some qualifications, was part of the conventions of concordia during the Classical Republic’.42 However, the view of Octavius’s deposition as a major departure from contemporary custom has been developed by those who hold that the deposition was a violation of Octavius’s tribunician sacrosanctitas that could be used (whether at the time or after the event) to justify Tiberius’s violent death. The case is put most vividly by Linderski, who characterizes the encounter as ‘one tribune claiming the will of the people, the other the protection of the gods, of his sacrosancta potestas. The will of the people prevailed, for a moment, but after that time nothing remained in Rome safe, sacred or secure—as Tiberius was soon to learn.’43
On a ‘departure’ account, then, Tiberius’s tribunate is usually viewed as a grotesque and unprecedented violation of established principle from the deposition of Octavius onwards. Proponents of a more contextual approach, on the other hand, tend to place more weight on the annexation of Pergamum; so Astin and Badian stress the importance of Tiberius’s disruption of senatorial control over public finances and foreign affairs in order to fund legislation that the senate had deliberately snubbed. Although ‘seen in its context, it certainly was not intended as a revolutionary step, a conscious attack on the senate as such’,44 all the same, this startling violation of senatorial privileges was asking for trouble. So for Badian, while deposing Octavius might have been considered ‘a legitimate reaction to an impossible situation’, this was not true of Tiberius’s solution to his financial woes: even if Tiberius could not hope to get his funding legitimately (and he probably could not), he had not even tried; and his pronounced failure to proceed by the usual channels of consensus politics was compounded by his exploitation of inherited Pergamene clientelae ‘to seize this vast treasure left to Rome; to seize it, practically, for himself and then distribute it to the People, in some form, as his personal bounty’—behaviour reminiscent of a would-be tyrant.45 Worse still, Tiberius’s failure to respect the will’s stipulation of freedom for the cities involved Rome in the revolt of Aristonicus.46
After Pergamum’s annexation, therefore, while Astin can compare Tiberius’s attempt to stand a second time for the tribunate with the dubious elections of Nasica Corculum to the censorship and consulship within the ten-year limit, or Scipio Aemilianus’s exemption (twice) from the lex Villia annalis,47 the legality of iterating the tribunate may be only of tangential relevance. In the broader historical context, such politicians as Nasica Corculum and Scipio Aemilianus had proven that the laws were negotiable given sufficient popular support; in the immediate political context, however, Tiberius’s canvass for a second tribunate could be interpreted in the worst possible way by an already hostile senate and his earlier actions could be cast in a much nastier light in hindsight.48 So Badian adds to the destruction of collegiality (Octavius’s deposition) and Tiberius’s tyrannical affectations (the Pergamene bequest, the acquisition of a bodyguard) the intended destruction of annual tenure (iteration of the tribunate), and concludes that ‘Regnum, in this sense, was not a mere term of abuse or a slogan’; rather, it ‘was a reflection of a genuine and deep-seated fear’.49
All this sets the scene for Tiberius’s untimely and violent death, at which point the convenient context/departure dichotomy breaks down, since it is generally agreed that the death set a new and horrible precedent for political conduct in Rome. Five positions on said new and horrible precedent can be identified, however. (1) First, and most straightforwardly, that the death of Tiberius Gracchus and some three hundred supporters at the hands of a senatorial mob led by Scipio Nasica was a chaotic mess,50 to which may be added Astin’s argument that the slaughter was unpremeditated, although after the event neither side had an interest in admitting this; premeditated slaughter was a useful charge for the Gracchans against their opponents, who could only plausibly justify their actions (which had really aimed to break up the assembly and thereby prevent Tiberius from being re-elected) by pretending that they had behaved in an appropriately thoughtful and consensual fashion.51 (2) That in addition to this, the arrangement of Nasica’s toga as reported by Plutarch and Appian (draped over his head, possibly in the sacrificial cinctus Gabinus dress) had vaguely religious connotations, since the privatus Nasica’s claim to authority could only be his position as pontifex maximus.52 (3) That the religious connotations were clear and distinct, although there is no consensus among those who hold this view as to what those connotations were. For Earl, the arrangement of Nasica’s toga indicates that Tiberius was being offered up for sacrifice;53 he explains its ‘obliteration’ from the Latin tradition and replacement with a ‘military interpretation’ on the rather dubious grounds that Nasica’s claim was untenable and could not be allowed to set a precedent.54 For Linderski, Tiberius was not offered up as a sacrifice;55 rather, Nasica covered his head for the archaic consecratio capitis rite: ‘when Nasica displayed the purple border on his veiled head this was a striking arrangement: he was loudly proclaiming that he, the pontifex maximus, was proceeding to consecrate Tiberius and his followers to the wrath of the gods. The old religious and public regulations of the Republic, the leges sacratae, prescribed that the heads of those who attempted to establish tyranny (adfectio regni), and of those who injured the tribunes of the plebs, be forfeited to Jupiter, the guarantor of the constitution. And who was better qualified to pronounce the curse than the pontifex maximus?’56 (4) A corollary to the third view, building primarily on the arguments of Spaeth and Linderski: since Nasica (it is argued) claimed the authority of his religious office to take action against Tiberius on religious grounds, the murder must have been premeditated even before the senatorial meeting took place. So for Flower, ‘these deaths were deliberately caused by Nasica, who went to the senate that day with a plan he intended to put into action, and surely also with some accomplices who were fully aware of the plan. Should Scaevola fail to take the lead against Tiberius—and even that cannot itself have been completely unexpected in senatorial circles—Nasica had every intention of intervening.’57 (5) Lastly, and to some extent reacting against views (2)–(4), Wiseman argues that Nasica’s actions were purely political. Contra Linderski (and following Badian), the constitutional impropriety was Octavius’s veto; if Nasica justified his actions at all by reference to Octavius’s wounded sacrosanctitas, his was probably a minority viewpoint.58 It is unwise to place much, if any, faith in the authenticity of the leges sacratae, which were supposedly enacted very early in the history of the Republic and which belong to a historiographical tradition demonstrably subject to reworking;59 and finally (the ‘fatal’ objection), any ritualistic implications are totally absent from Cicero’s speeches and writings: for Cicero, ‘Gracchus’ crime was political, and Nasica punished him for it not as a pontifex but as a private citizen’, a view Wiseman thinks may reasonably be taken as ‘evidence for an optimate way of thinking that had hardly changed since the time of the event itself’.60 It is implicit in Wiseman’s analysis that the slaughter was premeditated: ‘the rich unilaterally defined legislation against their financial interests as “seeking to reign”, an act that must activate the oath sworn after the expulsion of Tarquin’.61
For ancient authors such as Appian, Tiberius’s death sparked the troubles that threw the Republic into disarray and eventually brought Augustus to sole power: after the (legendary) Coriolanus, ‘the sword was never carried into the assembly, and there was no civil butchery until Tiberius Gracchus, while serving as tribune and bringing forward new laws, was the first to fall a victim to internal commotion’.62 Similarly, for Last the tribunate ‘opens a new epoch in the affairs of Rome’,63 while Stockton likens the ‘chief themes’ of the years dominated by Tiberius and his brother Gaius to ‘the leading motifs in the first movement of a Sibelius symphony, stated there only to be worked out fully in those that follow’.64 The important point here, however, is Nasica’s expressed conviction that an imminent danger to the res publica needed to be averted.65 Just what else Nasica might have said to justify this conviction is murkier. Cicero is uninformative (his claim in the Tusculan Disputations that Scipio does not seem to him to have been angry when he left the ‘languid consul’66 must be based on the role of this exemplum as an illustration of calm action and Stoic sagacity), Velleius Paterculus has nothing to say about Nasica’s dispute with the consul,67 and Valerius Maximus provides a suspiciously neat rhetorical exchange:
Cum Ti. Gracchus in tribunatu profusissimis largitionibus favore populi occupato, rem publicam oppressam teneret, palamque dictitaret interempto senatu omnia per plebem agi debere, in aedem Fidei Publicae convocati patres conscripti a consule Mucio Scaevola quidnam in tali tempestate faciendum esset deliberabant cunctisque censentibus ut consul armis rem publicam tueretur, Scaevola negavit se quicquam vi esse acturum. Tum Scipio Nasica, ‘quoniam’ inquit ‘consul, dum iuris ordinem sequitur, id agit ut cum omnibus legibus Romanum imperium corruat, egomet me privatus voluntati vestrae ducem offero’, ac deinde laevam manum <im>a parte togae circumdedit, sublataque dextra proclamavit: ‘qui rem publicam salvam esse volunt me sequantur’, eaque voce cunctatione bonorum civium discussa, Gracchum cum scelerata factione quas merebatur poenas persolvere coegit.
Ti. Gracchus in his tribunate had captured popular favour by profuse largesses and held the res publica under his thumb. He said often and openly that the senate should be killed and everything handled through the commons. The conscript fathers were called together by the consul Mucius Scaevola in the temple of Fides Publica and were deliberating on what should be done in such a crisis. Everybody thought the consul should protect the res publica by armed force, but Scaevola refused to take any violent action. Then Scipio Nasica said, ‘Since the consul, while following the order of justice, acts so that he topples Roman imperium along with the laws, I offer myself, as a private citizen, as the leader for your will.’ Then he wrapped the hem of his toga around his left hand and raised his right, shouting, ‘Let those who wish the res publica to be unharmed follow me.’ With that call he dissipated the hesitation of good citizens and made Gracchus and his criminal supporters pay the penalty they deserved. (Val. Max. 3.2.17)
This is polarized and unclear; the accusation that the juristic Scaevola was being unduly strict about following strict legal process and thereby allowing a tribune who rem publicam oppressam teneret through his monopoly on popular favour to overthrow the laws as a whole is a comprehensible rhetorical paradox (‘more law, less equity’), but the relevance of imperium Romanum is less obvious. Plutarch provides a less embroidered version of the scene:
ὁ δὲ Νασικᾶς ἠξίου τὸν ὕπατον τῇ πόλει βοηθεῖν καὶ καταλύειν τὸν τύραννον. ἀποκριναμένου δὲ πράως ἐκείνου, βίας μὲν οὐδεμιᾶς ὑπάρξειν οὐδ’ ἀναιρήσειν οὐδένα τῶν πολιτῶν ἄκριτον· εἰ μέντοι ψηφίσαιτό τι τῶν παρανόμων ὁ δῆμος ὑπὸ τοῦ Τιβερίου πεισθεὶς ἢ βιασθείς, τοῦτο κύριον μὴ φυλάξειν, ἀναπηδήσας ὁ Νασικᾶς ‘ἐπεὶ τοίνυν’ ἔφη ‘προδίδωσιν ὁ ἄρχων τὴν πόλιν, οἱ βουλόμενοι τοῖς νόμοις βοηθεῖν ἀκολουθεῖτε.’
Nasica demanded that the consul should come to the rescue of the polis and put down the tyrannos. The consul replied with mildness that he would resort to no violence and put to death no citizen without a trial; if, however, the demos, under persuasion or compulsion from Tiberius, should vote anything that was unlawful, he would not regard this vote as binding. Thereupon Nasica sprang to his feet and said, ‘Since, then, the archon betrays the polis, let those who wish to save the laws follow me.’ (Plut. TG 19.3–5)
In this account, the rhetoric is briefer and neater. Valerius Maximus’s speech is compressed into a straightforward accusation (that the consul betrays the polis, a word that could conceal either res publica or civitas) and the follow-up involves not the safety of the polis (that is, res publica, as in the three Latin sources) but the salvation of οἱ νόμοι, the laws. This switch from a betrayed polis to a need to save the nomoi reads as a direct challenge to Scaevola’s legalistic take on the situation and may indicate Plutarch tidying up the tradition. It also betrays the difficulty Greek authors have in rendering res publica (and there is a good reason to think that the Latin sources are correct here, quite apart from their concurrence: except for the jibe against the consul, Nasica’s line echoes the evocatio, ‘the formula which in earlier times had been used to summon citizens to arms when the enemy was at the gate and it was too late for an ordinary levy’68). Similarly Appian, who is surprised that the people (οἱ πολλοι) did not appoint a dictator at this point, is under the impression that:
κρίναντες δ' ὅσα ἔκριναν ἐς τὸ Καπιτῶλιον ἀνῄεσαν. καὶ πρῶτος αὐτοῖς ὁ μέγιστος ἀρχιερεὺς λεγόμενος ἐξῆρχε τῆς ὁδοῦ, Κορνήλιος Σκιπίων ὁ Νασικᾶς· ἐβόα τε μέγιστον ἕπεσθαί οἱ τοὺς ἐθελοντας σῴζεσθαι τὴν πατρίδα.
After reaching such a decision as they did reach, they marched up to the Capitol, Cornelius Scipio Nasica, the pontifex maximus, leading the way and calling out with a loud voice, ‘Let those who would save our fatherland follow me.’ (App. BC 1.16)
This, at least, provides something closer to the Latin tradition, even if Latin has its own perfectly good cognate for ἡ πατρίς that also is not res publica (i.e. patria).
Secondary scholarship has little to say about these various versions. In general, commentators either select one version of the episode, usually Plutarch,69 or they blur all the versions into a coherent narrative and gloss over the differences between them.70 What is apparent from the Latin tradition, if not the Greek one, is that Nasica roared something like ‘Since the consul betrays the res publica, let those who wish the res publica to be salva follow me!’ before dashing off to put down the original turbulent tribune. Several points may be made here. First, Nasica’s opinion on the consul’s role remained consistent with the line he supposedly took during his own consulship: the consuls were the magistrates with supreme responsibility and competence to administer the res publica; if anything was to be done, it should be the sole consul currently in Rome who did it. Scaevola’s failure to act against activities that Nasica perceived as seriously threatening to the well-being of the res publica was therefore (in Nasica’s eyes) a betrayal of the res publica itself. The exchange shows how the relationship between competent magistrates and the res publica could be used against said magistrates, either to force them into action or to castigate their failure to take action that someone else considered necessary for the res publica. Second, the critical factor was Nasica’s conviction that what was happening on the Capitol (the re-election of Tiberius) presented a real, immediate danger to the res publica, and one that could and should be prevented, in which case the public sphere would remain salva, ‘safe, secure, unharmed’. As far as Nasica was concerned, the solution was to remove the threat, preferably through consular action; that done, the status quo would be restored and everyone could resume politics as normal. Third, the incident highlights how divisive this sort of rhetoric (and action) was: the consul disagreed with Nasica’s reading of the situation and had ius, not to mention consular potestas and the auctoritas that emanated from that, to back him up. Whether a politically shaky situation actually did represent a real and immediate danger to the res publica was debatable; the fallout might not confirm the judgement of the politician who cried wolf too soon. And finally, with the benefit of hindsight Nasica’s choice of rallying cry looks unpleasantly symbolic: a formula originally used to call Roman citizens to defend the res publica (that is, Rome itself) against external enemies became a call to remove internal enemies illegally from the res publica, resulting in the blueprint for an episode of political violence that would play out repeatedly over the next century. In other words, Nasica’s transformation of the traditional call to arms represents the Roman political world beginning to turn on itself, a trend that would end with the collapse of the Republic.
The public debate on these or any other topics during the uneasy period between the tribunates of Tiberius and Gaius Gracchus is poorly attested.71 What we do possess are fragments: a piece of moralizing invective from Scipio Aemilianus, one striking remnant of a funeral laudatio, and various decontextualized relicts from the annalistic historians, in whose histories res publica now begins to surface, generally in fraught contexts.72 This material is difficult to use and will not support detailed arguments, but it may suggest unease about the condition and long-term prospects of the Roman res publica. A hint of this certainly appears in Scipio Aemilianus’s invective, which comes from a speech of 129 against the lex iudiciaria of Tiberius Gracchus in which various aspects of the tempora moresque and the habits of contemporary youth move Scipio Aemilianus to grieve for the res publica.73 Such unease is clearest, however, in the funerary fragment, which comes from a laudatio written by C. Laelius Sapiens and delivered by Q. Fabius Maximus for the by now defunct Aemilianus later that year:
Quiapropter neque tanta diis inmortalibus gratia haberi potest, quanta habenda est, quod is cum illo animo atque ingenio hace civitate potissimum natus est, neque <tam> moleste atque aegre ferri quam ferendum [eum] est, cum eum morbus tum remouit et in eo dem<um> tempore periit, cum et vobis et omnibus, qui hanc rem publicam <salvam> volunt, maxime vivo opus est, Quirites.
Wherefore it is not possible to give sufficient thanks to the immortal gods for this above all, that he, endowed with that mind and with those talents, was born in this particular community; nor is it possible to feel sufficient distress and bitterness that illness carried him off and he has finally perished at that time when both you, citizens of Rome, and all who wish this res publica well had most need of him alive. (ORF 20.5.22/49.1.2 = Schol. Bob. in Mil. p. 118, 11, tr. Astin 1967: 243–4, slightly amended)74
The fragment is seriously corrupt. That said, note (a) the expression of position with respect to the civitas, following the precedent of Q. Caecilius Metellus’s laudatio for his father and the Scipionic elogia; and (b) assuming <salvam> is correct,75 the echo of Nasica’s cry in rem publicam salvam volunt, indicating continued concern over just how salva the res publica remained after a sacrosanct tribune’s untimely death.76 Laelius and Fabius were not issuing a call to arms against an immediate danger, but rather voicing a feeling that continued hard work was required to keep the res publica salva in this difficult period, a programme for which the great Aemilianus would certainly have been very useful if only he hadn’t just fallen off the censors’ roll. Even if Tiberius Gracchus is taken to have been a genuine danger to the res publica and Nasica to have been acting wisely (or at least reasonably) in averting it through the enthusiastic application of natural justice, the episode was not conducive to civic harmony and general goodwill.
A decade after Tiberius’s death, Nasica’s cry of ‘Wolf!’ was regularized by the senatus consultum ultimum (SCU) used against Tiberius’s younger brother Gaius in 121.77 The point of this decree seems to have been to avoid repeating the irregularities of 133, which hung uneasily over Gaius and his opponents alike. This is not the place for a discussion of Gaius Gracchus’s motivation, legislative programme, allies, enemies, or eventual end;78 I do, however, want to discuss how the SCU untangles the implication of Nasica’s res publica salva: the idea that the res publica is about to come to harm and that the consuls and other responsible magistrates should prevent this from happening by whatever means necessary. In the usual formula of the SCU, the senate instructs X (where X is primarily the consuls, but may include other magistrates in the vicinity of Rome, as when it was used against Saturninus and Glaucia in 100, when Saturninus and Glaucia themselves, then tribune and praetor respectively, were pointedly excluded79) to see that the res publica should come to no harm.80 The decree expresses the senate’s opinion that there is an immediate danger to the res publica (but not a state of war, which required a tumultus decree81) and that specific people must do something unspecified about it. It is negative (it focuses on taking no harm rather than keeping something unharmed; the distinction in formula is perhaps between what the senate decrees—‘take no harm’—and what the consuls then proclaim—‘let those who wish’82), vague (so any resulting bitterness is directed at the responsible magistrates, who are obliged to interpret and act on the decree83), and articulates a political consensus that the imminent danger currently anticipated is genuinely a danger to the res publica.84 It increases the pressure on the magistrates to act and gives them a defence after the event against any dissenters who may consider the advertised danger not to have been a danger at all. This was a defence that seems to have worked for the aggressive consul of 121, L. Opimius, who was prosecuted after leaving office in 120 and acquitted.85 That he was prosecuted at all, however, indicates the limits of elite consensus on the issue (and indeed the possibility that any such consensus was limited to the elite).
Some interim conclusions may now be drawn. Whereas ordinary magisterial action and popularis rhetoric seems to have focused on res publica as the object of management (in the latter case specifically the object of management by the populus, whose technical ownership of its res was never challenged), the res publica that P. Nasica, L. Opimius, and the senate of 121 held to be endangered by popularis political activity is a rather larger beast. They were not spurred to action by the concern that Tiberius and his successors were detrimental to everyday public business, although there may have been a justifiable feeling that the tactics of the populares were not conducive to the conduct of public affairs. Rather, the concern seems to be that the populares were adversely impacting on the current structure of the political sphere, with negative implications for its long-term future. This may seem an unduly precise way to talk about an emotionally charged concern; after all, what is often translated as ‘patriotism’ appears in Latin as studium or amor for the res publica.86 But even if the grievance against the Gracchi was more emotional than rational, it was primarily a concern felt by those individuals who moved within that structured res publica, rather than the populus more generally, which perceived itself as electing managers to manage its business on its behalf87 and was probably less interested in maintaining the inherited political structure than it was about the res publica being administered competently, without undue corruption, in its perceived interests and by its chosen favourites. The Rhetorica ad Herennium illustrates paranomasia (adnominatio) with what must be a popularis fragment: ‘Tiberius Gracchus, while administering the res publica, was prevented by an unworthy death from abiding any longer therein. There befell Gaius Gracchus a like fate, which tore suddenly from the bosom of the community (civitas) a man most dedicated (amantissimus) to the res publica.’88 As far as the populares were concerned, it was the Gracchi and their successors (the fragment goes on to mourn the deaths of Saturninus, Livius Drusus, and Sulpicius) who had been managing public business and demonstrating their dedication to the public sphere. After the suppression of Gaius and his supporters, Opimius conducted a lustrum to wash out the spilt blood and went on to build a temple to Concordia, ‘the first temple that could be associated with an armed victory over fellow citizens within the city’.89 Opimius evidently felt that the res publica had been saved from harm, civic harmony had been restored, and his actions as consul had increased his personal dignitas with positive implications for his future actions as a privatus within the res publica. For whoever added the famous graffito, ‘A work of discord made this temple to concord’,90 the situation was the opposite.
The conviction that specific people/actions endanger the res publica and must be stopped to prevent harm coming to it has several possible outcomes, of which the most obvious are: (a) the troublemakers are suppressed and any damage is declared averted; (b) the troublemakers are not suppressed, but the cry of wolf was hyperbolic and the political sphere does not collapse; (c) the troublemakers are not satisfactorily suppressed and those who had cried wolf declare the wolf has arrived, i.e. (i) the res publica has suffered some serious damage that must be repaired, or (ii) the res publica has collapsed altogether and must be entirely refounded. In the cases of Tiberius Gracchus in 133, Gaius Gracchus in 121, and Saturninus and Glaucia in 100, the troublemakers were suppressed and their suppressors declared the damage averted: the would-be tyrants had been removed from the res publica and ordinary political activity could be resumed. In 88, just as the Social War was winding down, a new burst of civil discord centred on a turbulent tribune erupted.91 This particular iteration was P. Sulpicius, who proposed various laws to do with Social War issues; when the opposition proved implacable, he gained the elderly C. Marius’s support by transferring to him the consul L. Cornelius Sulla’s command against Mithridates, something that proved unpopular with Sulla himself, who escaped to his army at Nola and together with his colleague, Q. Pompeius Rufus, marched on Rome.92
The outcome of this march, Sulla’s ‘first settlement’, fits best into the category (c.i), an attempt to repair the damaged res publica, especially since the more striking features reported in our sources may well be a retrojection of the settlement of 82–1.93 Sulla claimed to be acting with perfect propriety in freeing Rome from its current mob of troublemakers, of whom twelve (including Sulpicius and the six-times consul Marius) were declared hostes. Sulla had Sulpicius’s legislation removed on the grounds that it had been passed per vim and oversaw elections for 87 in which the successful candidates were accepted whether or not they were his nominees, although they were compelled to swear to uphold his settlement.94 He then headed eastwards in pursuit of Mithridates and a simpler sort of glory, which suggests he thought the removal of the malefactors and their legislation was enough to repair the damaged res publica. That this was not the case became apparent almost immediately, as civil war erupted between the consuls of 87, Cn. Octavius, who was backed by the senate, and L. Cornelius Cinna, who resumed the late Sulpicius’s activities regarding the new Italian citizens.95 By following the lead of previous consuls, including Marius himself in 100, and attempting to avert the traditional sort of tribune-related harm from the res publica, the consuls of 88 had set in play an unprecedented and highly unstable chain of events.
The first time a Roman army occupied Rome itself, it did so in reaction to a domestic crisis of the sort that had seen various previous tribunes suppressed to senatorial applause. Sulla and Pompeius, however, not only acted without senatorial approval but ignored multiple embassies from the senate and marched a Roman army across the pomerium in what Flower calls ‘a devastating choice that led to the complete collapse of the traditional republican culture of the nobiles’.96 The march reflects ‘the great problem of Roman political life—how to compel the independent magistrates who have the absolute power of imperium to carry out the instructions of the People or the Senate’.97 In a provocative article, Morstein-Marx argues that a genuine contest for political legitimacy can be seen in the actions of first Sulla and then Cinna,98 both of whom he takes to have staked their claims to legitimacy on their possession of the consulship in their similar responses to political chaos and rebuff. Although Appian’s ‘very sketchy’ account of Sulla’s self-justification to his troops implies that Sulla focused on his sense of personal injury, reading backwards from the speech Appian puts into Cinna’s mouth the following year (BC 1.65) enables a more generous interpretation of the issues at stake.99 Where the tribune Sulpicius’s transfer via the populus of the Mithridatic command to the privatus Marius in 88 was ‘a direct offense against the traditional prerogative of the consulship and its war-making role’, and perceived as such by Sulla and his army,100 Cinna protested the abrogation of his consulship in 87 as an insult to the voters who had elected him, these voters having been conveniently assembled in the form of an army.101 Following Meier, Morstein-Marx holds that Sulla’s immediate intention was police action against a turbulent tribune,102 that Sulla’s complaint about the hubris of his opponents towards him was really an invocation of ‘republican civic values, which included the highest respect for the consuls, whom the Roman people had elected’,103 and that there is no reason to suppose that Sulla’s soldiers were not convinced of Sulla’s claims (rather than simply being disaffected and mercenary).104 Furthermore, Morstein-Marx proposes that rather than analysing Sulla’s actions through a prism of legality, we should instead use ‘the sociological, Weberian concept of “legitimacy”’, on the grounds that during a civil war ‘citizens, not lawyers, are the ones who really matter, since citizens determine political legitimacy by their active or passive support for a regime (or the reverse), whatever the lawyers have to say on the matters referred to their jurisdiction’.105 The ‘republican political system’ cannot be identified with ‘the senate’ at any given moment and the senate certainly should not be taken to be ‘the locus of political legitimacy’ (especially when, for example, it has voted a consul out of office).106 On Morstein-Marx’s reading, the reverence of the citizens (especially soldiers) for their consuls, expressed by voting them into office, means that ‘the consulship is a symbol of legitimacy whose potency derives from its nature as the embodiment of a decision of the people’, and during this crisis of legitimacy both Sulla and Cinna succeeded in convincing the armies that their causes (as wronged consuls) were legitimate107—with the implication, presumably, that those causes therefore were.
There are two problems here. The first is Morstein-Marx’s reliance on Appian having transmitted something very close to what Cinna said to his army in 87, if not an actual translation,108 which is justified on the grounds that ‘it is doubtful that Appian on his own could have fabricated a speech that is so neatly consistent with distinctive themes of late-republican contional oratory’.109 This does a disservice to Appian, who was perfectly capable of inventing a Fifth Philippic for Cicero at BC 3.52–3 even though that speech survives; it is true that Appian’s version is not especially Ciceronian, but it is perhaps more appropriate (and certainly more statesmanlike) in its historiographical context than the speech Cicero actually gave. It is unclear why Appian, who potentially had access to much more contional oratory than we do today, could not have done the same for Cinna. If so, the observation that ‘Cinna’ addressing his soldiers as citizens (πολῖται) recalls Caesar in 47 calling his soldiers to heel by calling them Quirites rather than milites (Suet. Jul. 70) is telling; for Morstein-Marx, ‘by addressing the soldiers before him as “citizens” Cinna appeals to them specifically in their capacity as members of the civic community’,110 but this relies on the assumption that Appian’s account can be taken at face value. It might instead be that Appian is playing off that Caesarian anecdote to construct a proto-Caesar who addresses his soldiers as citizens because he has been demobbed: if Cinna is no longer consul, he cannot command his army, unless he can persuade them that he is still a consul and that they are still his soldiers.
Secondly, it seems clear that a crisis of legitimacy had indeed erupted, if not before Sulla marched on Rome then certainly afterwards. That said, however, if ‘the sociological, Weberian concept of “legitimacy”’ is to be exchanged for ordinary legality, it is not clear why Sulla’s claims should be given priority. To reduce the issue to the superior right of consuls to wage war is to fall back on the legality that Morstein-Marx rejects: if the consuls’ special claims rested on their election by the populus, what was there to prevent the populus from deciding to bestow its favours elsewhere? If Sulpicius could persuade the populus in its voting assemblies that someone other than the responsible consul should be selected for the command against Mithridates, surely that legitimized Sulpicius’s proposal? Absent legal protocol, what remains is what resulted: a conflict between the judgement of that section of the populus that voted (legally) for Sulpicius’s bill within the city and the judgement of that section of the populus that marched (illegally) on Rome with Sulla. It is not obvious how to decide which judgement should be taken to confer greater political legitimacy, except perhaps on the basis that those left standing when the dust settled must have cared more about the issue at stake and were therefore entitled to pass the final judgement. (And after all, those who do not survive, as Sulpicius did not, cannot express their consent for or withhold their consent from a regime.) This seems unsatisfactory. Furthermore, while legality and legitimacy are indeed problematic concepts in civil war situations, it seems similarly unsatisfactory to suspend judgement on actions that precipitate civil war. Street violence, controversial legislation, and depriving a consul of his command made for dangerous politics but not necessarily civil war; if the situation had been perceived as such, the senate (which, while not ‘the locus of political legitimacy’, at least had a reasonable claim to express the opinion of the political class as a whole) might have passed the SCU or invited the consuls to march on Rome, rather than trying to discourage them from doing so. If the consuls’ intention was police action, it was not welcomed by those who might be expected to have been most eager to be policed.
The problem here is one endemic to any system where ‘popular consent’ stands as the defining political principle: the voice of the populus may override all others, but how and where can the populus itself (rather than specific subsections of the populus, often already armed and regimented) be heard to speak? Over the years, the Romans had developed a complicated and sometimes redundant system of comitia for the express purpose of providing specific physical spaces and times where those assembled to vote on a proposed measure or elect individuals to office could do so as the populus Romanus. The popularis tribunes could claim to be the instruments of the populus not just because of the office they held but also because the populus voted for their measures. Despite the questions raised by Mouritsen’s 2001 study over just how substantial a percentage of the population could ever have voted in these comitia, at no point in the turbulence of the late Republic did anyone raise low participation as a problem or challenge the conceit that the outcome of a properly conducted vote was the will of ‘the populus’.111 It might be argued that Sulpicius’s legislation was improperly conducted, and very probably Sulla did argue this, but what did not count as the populus Romanus was an army assembled and harangued in the field by an injured consul.
Of particular relevance to this point is an episode narrated by Livy at 7.16, where the consul Cn. Manlius Capitolinus is said to have successfully proposed a law to tax manumissions while with his troops at Sutrium, where he ‘may have made citizens under his command vote there after ordering them to organize by tribes (tributim) for the ballot, as in normal comitia’.112 The actual law seems not to have been challenged, but the plebeian tribunes responded with a bill severely penalizing anyone who summoned an assembly of the people outside Rome, since they were concerned that ‘the soldiers, linked to a commander through their oath of obedience, might approve measures that would be detrimental to the Roman people as a whole’.113 This is a peculiar episode, so much so that some scholars fall back on the ‘too peculiar not to be true’ explanation;114 whether true or not, it belongs to a category of situations ‘in which the city and the army grow increasingly separate, and in which the army itself apes civic procedures independently of the city. These situations, usually falling within the army-as-city topos, intensify the persistent concern with procedural legitimacy’.115 Haimson Lushkov reads the episode as an exploration of ‘the idea that the shift from city to army entailed a decrease in the people’s ability to exercise their voting rights freely’;116 fundamentally, it indicates that allowing generals to pass laws or claim legitimacy for their actions on the basis that their army agreed with them was not an acceptable tactic and became a viable political gambit only through the removal of anyone with a divergent viewpoint (along with their diverging armies). It was clear to contemporaries which way allowing consuls to decide that their armies counted as the populus Romanus for the purpose of furthering their own political aims could go. The temptation to do so when this action could be depicted as in the interests of the res publica, however, proved irresistible to Sulla and Q. Pompeius, and the speed with which their gambit was repeated after Sulla and his army left Italy foreshadowed how hard it would be in future to rein in a magistrate with imperium, an army, and no desire to play nicely with his political peers.
If Sulla’s first march on Rome was justified on the basis of arresting and repairing damaging political activity, his victorious return from the east, dictatorship, and ‘second settlement’ can be classed as the first example of (c.ii) the collapse and refoundation of the res publica. Santangelo traces the shift in Sulla’s self-portrayal from ‘the legitimate representative of Rome and the only true defender of the res publica’ in 88 to emphasizing instead ‘the cause of the Republic’ on his return in 83, by which time Sulla was concerned to be seen as ‘a victorious refounder of Rome’.117 Why did Rome need refounding? Because (and thanks in a large part to Sulla’s own earlier choices) the res publica was far past the anticipation of imminent danger: given the preceding decade and the fallout from Sulla’s return, it was plausible to argue that it had collapsed altogether. This claim is implicit in Sulla’s chosen title, ‘dictator for drawing up the laws and setting in order the res publica’ (dictator legibus scribundis et rei publicae constituendae).118 The majority of former dictators had or may be presumed to have been appointed dictator rei gerundae causa (‘dictator for managing the affair’);119 one was possibly magister equitum rather than dictator;120 fourteen were appointed dictator comitiorum habendorum causa (‘for holding the comitia’);121 another may have been appointed to this title;122 one more was either this or dictator rei gerundae causa.123 Three were appointed dictator clavi figendi causa (‘for driving the nail’, a religious ritual);124 a fourth may also have had this title, or he might have been interrex.125 Oddities include:
L. Quinctius Cincinnatus (439, 2nd), M. Valerius Corvus (342, 1st), Q. Hortensius (287): either seditionis sedandae (‘for restraining the sedition’) or rei gerundae causa
T. Quinctius Cincinnatus Capitolinus (380), P. Manlius Capitolinus (368): seditionis sedandae et rei gerundae causa
C. Julius Iullus (352): Rei gerundae et comitiorum habendorum causa
P. Valerius Publicola (344): Feriarum constituendarum causa (‘for setting up the religious festivals’)
Q. Publilius Philo (339): ? (responsibility for some legal reforms)
A. Cornelius Cossus Arvina (322): Rei gerundae et ludorum faciendorum causa (‘for managing the affair and putting on the games’)
C. Maenius (320, 1st): Quaestionibus exercendis (‘for administering the quaestiones’)
C. Poetelius Libo Visolus (313): Rei gerundae et clavi figendi causa
Q. Ogulnius Gallus (257): Ludorum faciendorum causa
M. Fabius Buteo (216): Legendo senatui (‘for selecting the senate’)
T. Manlius Torquatus (208): Comitiorum habendorum et ludorum faciendorum causa
Historically, dictators had been appointed to domestic tasks (holding comitia or games, religious rituals, selecting senators, sorting out seditions, managing quaestiones) or to deal with external threats (rei gerundae causa, ‘managing the affair’). The domestic tasks were pointedly more specific than the latter; there was no rei publicae constituendae for C. Maenius (320), for example, or for M. Fabius Buteo (216). In contrast, Sulla, when he picked up his unprecedented title, acquired legitimacy for a complete constitutional settlement, not just for setting up the odd quaestio or religious festival or adding men to the senate.126 Although Sulla’s dictatorship was not limited to the standard six months,127 there was an implicit end date built into the title: when the task had been completed; that is, when the res publica had been suitably settled.
Sulla’s resurrection of the dictatorship served to legitimize an irregular, illegal position based solely on overwhelming force, as he made clear after the battle of Porta Collina; as Mackay points out, addressing the senate in the temple of Bellona to the accompaniment of slaughtered captives was a gratuitous move intended to give the message that Sulla was in charge and anyone who opposed him could expect to regret it.128 All the same, it is interesting that the title distinguished between drafting laws and whatever Sulla was expected to be doing to the res publica as a whole.129 Sulla used his unique position to curb the plebeian tribunate (which lost its veto and right to summon the senate and became a dead end on the cursus honorum),130 remove the grain subsidy, confirm the senate’s right to appoint promagistrates,131 pass a lex Cornelia de maiestate (it was now a prosecutable offence not to vacate one’s province within thirty days of a successor’s arrival, to take an army outside one’s province, or invade an allied kingdom without explicit senatorial permission),132 increase the numbers of praetors from six to eight,133 tighten up the cursus honorum with a lex Cornelia annalis,134 increase the senate from the traditional level of three hundred to perhaps as many as six hundred,135 transfer control of the courts from equites to senators, set up seven permanent quaestiones,136 institute various religious reforms,137 and impose sumptuary legislation.138 In short, he followed the logic of his title and completely restructured the civic sphere. This marks a break from former saviours of the res publica, who had held it (not very convincingly) to be kept salva by the suppression of individuals: for Sulla, simply removing his opponents was not enough. Flower makes the case for Sulla’s innovation most starkly. ‘Although he used the traditional names for the branches of government and office, Sulla’s system was fundamentally different from what had come before’;139 he produced ‘a political constitution based on laws and their regular enforcement by a system of courts’ which ‘did not correspond to the Roman experience of a traditional republic, namely a republic that had been based on deliberation in the senate, debate in front of the people, and on elaborate rituals of compromise and consensus building in both settings’—‘lex was to replace mos maiorum’.140 Sulla’s abdication of his dictatorship and retirement into private life demonstrated his belief that the res publica had been duly settled, thereby rendering his extraordinary position redundant. That his settlement constituted innovation rather than restoration, however, ‘can be gauged by the fact that it proved to be essentially unworkable, despite the logic and care that had gone into its complex design’.141
In the opening to the De Republica, Cicero argues in his own persona that ‘the citizen who compels all men through imperium and the penalties imposed by law to do that which philosophers can scarcely persuade a few to do through speaking must be considered superior even to the teachers who enunciate these principles. For what speech of theirs is excellent enough to be preferred to a civitas well provided (bene constituta) with law and custom?’142 This is a claim that invites identification with Sulla, although the historical account given in Book 2 is explicitly Catonian in its subordination of individual contributions to the grander narrative: according to ‘Scipio’, the elder Cato used to say that Rome was great not because of a single great lawgiver but because of the cumulative genius of many great men,143 and the account ‘Scipio’ gives of the historical development of the Roman res publica accordingly comprises a sequence of individuals and innovations.144 Prior to 82–1, the internal organization of the res publica had been attributable to the maiores;145 after Sulla’s settlement, however, the res publica was constituta, settled, and it had been settled by Sulla.146 It was now possible to identify a specific point in time when the res publica had been given its current structure (status) by a specific individual; said point in time (and said individual) provided a reference point for future politicians. Sulla’s res publica constituta was no more stable than the former res publica had been, however, thanks both to key figures like Sulla’s protégé Pompey, blatantly excused from Sulla’s rules,147 and to the disruptive activities of those who wanted to dismantle various of Sulla’s reforms. For the next ten years, political life developed into a dance around how much of Sulla’s res publica constituta to maintain or discard. The civil wars remained a locus for conflict and Sulla himself was a polarizing and deeply controversial figure. This is illustrated by two Ciceronian data points: the Pro Sexto Roscio Amerino of 80,148 which demonstrates a junior orator positioning himself in relation to Sulla’s newly minted res publica constituta, and the Verrines of 70, in which Cicero angles his case around one of the issues of the day, the question of whether to undo Sulla’s transference of the courts to the senate.
The Pro Sexto Roscio was Cicero’s first causa publica and is the first of his speeches mentioned in Plutarch’s Life.149 It was delivered in defence of Sextus Roscius, who had been accused of parricide before Sulla’s new quaestio inter sicarios and during Sulla’s second consulship.150 Cicero casts his defence as a semi-heroic act of defiance on the part of a nervous young orator who could speak out because of his obscurity: none of the various illustrious persons allegedly lurking supportively at the trial dared to take on Roscius’s defence (S. Rosc. 1), since it was impossible to defend Roscius without saying anything de re publica and they were bound to be misinterpreted (S. Rosc. 2). Cicero, however, had not yet entered the public sphere (ad rem publicam) and was therefore free to attribute anything he said now to youth and silliness; he claims to be largely free to speak, even if both pardon and legal inquiry had been removed from the civitas (S. Rosc. 3).151 According to Cicero, Roscius’s biggest problem was that his father’s property had been bought by Sulla’s influential freedman, Chrysogonus, who now wanted to get rid of Roscius himself (S. Rosc. 6). Cicero deploys Roscius as a stand-in for everyone present and Chrysogonus as the villain of the tale, thereby distancing Sulla from any wrongdoing (S. Rosc. 7); he asks the Sulla-proxy Chrysogonus to be happy with everyone’s money and fortune, rather than demanding their lives too, and he directs the usual request to the judges to resist audacious bad men (that is, Chrysogonus and his henchmen) and look out for unlucky innocents (that is, Roscius, and by extension themselves) (S. Rosc. 7, 12). Sulla himself is compared to Jupiter, who can cause great harm but who also grants mortals various good things:
Etenim si Iuppiter Optimus Maximus cuius nutu et arbitrio caelum terra mariaque reguntur saepe ventis vehementioribus aut immoderatis tempestatibus aut nimio calore aut intolerabili frigore hominibus nocuit, urbis delevit, fruges perdidit, quorum nihil pernicii causa divino consilio sed vi ipsa et magnitudine rerum factum putamus, at contra commoda quibus utimur lucemque qua fruimur spiritumque quem ducimus ab eo nobis dari atque impertiri videmus, quid miramur, iudices, L. Sullam, cum solus rem publicam regeret orbemque terrarum gubernaret imperique maiestatem quam armis receperat iam legibus confirmaret, aliqua animadvertere non potuisse?
In fact, if Jupiter, greatest and best, whose nod and will governs heaven, earth, and seas, has often done grievous harm to men by furious winds, violent storms, excessive heat, or unbearable cold, destroyed their cities and ruined their crops, we do not attribute any of these disasters to the divine will and a desire for causing destruction, but to the mere force and the mighty agency of nature. But, on the other hand, the advantages of which we avail ourselves, the light which we enjoy, the air we breathe, these are favours given to us and bestowed upon us by Jupiter. Why then, gentlemen, should we be surprised if Sulla, when he alone ruled the res publica and guided the world and was strengthening by laws the majesty of the command which he had recovered by arms, should unavoidably have allowed anything to pass unnoticed? (Cic. S. Rosc. 131)
As Gildenhard observes, this comparison ‘acquires its proper point and profile if read as a response to the dreadful dilemma that those inevitably face who live in a world in which the rulers do not necessarily guarantee justice. One way of maintaining a semblance of beneficial order and of a world governed by divine craftsmanship and intelligence is to clear those in power from responsibility for evil’.152 Sulla, as dictator, had been a god among men: destructive,153 politically all-powerful, and the conveyor of basic blessings such as the ability to continue living, but too loftily positioned to notice the minor misdeeds of minor men,154 hence the currently unhappy state of the political sphere.155 The civil wars are largely glossed over: it had been a messy period in which, while that person with supreme power (Sulla) was occupied with the overarching political narrative, others sneaked around bayoneting their wounded inimici: ‘these people, as if eternal night had enveloped the res publica, rushed about in the darkness and threw everything into confusion’.156 The impression given is of a regime revolving around a single person, Sulla, ‘who alone ruled (regeret) the res publica’ and who stands forth as its sole representative, while his various eminent supporters blur into ‘the nobilitas’,157 which ‘recovered the res publica by arms and the sword’.158 All this political commentary, however, is attributed to Cicero’s personal outrage at the state of the res publica and his dolor at the injury done to Roscius (S. Rosc. 143); his client, meanwhile, is cast as a naïve countryman who believes Chrysogonus’s claim that everything was Sulla’s work and legally done. The only thing he wants (says Cicero) is to be acquitted of parricide.
Res publica here must mean both everyday public business and the structured political sphere; in forcefully recovering (reciperare) the former, the nobiles of the Pro Roscio Amerino gained control also of the latter, both by occupying the magistracies and Sulla’s new senate and by proscribing anyone left alive to oppose them. The individual nobiles who fought for Sulla in the civil war may lack names or faces (and their opponents are totally absent from the picture159), but Cicero supplies a model for them in the person of Roscius’s illustrious young patron, Messala, described as too young and modest to plead on Roscius’s behalf (S. Rosc. 149). His efforts on Roscius’s behalf become the very pattern of traditional elite virtues:
ipse adsiduitate, consilio, auctoritate, diligentia perfecit ut Sex. Rosci vita erepta de manibus sectorum sententiis iudicum permitteretur. Nimirum, iudices, pro hac nobilitate pars maxima civitatis in armis fuit; haec acta res est ut ei nobiles restituerentur in civitatem qui hoc facerent quod facere Messalam videtis, qui caput innocentis defenderent, qui iniuriae resisterent, qui quantum possent in salute alterius quam in exitio mallent ostendere; quod si omnes qui eodem loco nati sunt facerent, et res publica ex illis et ipsi ex invidia minus laborarent.
He himself, by his constant presence in court, his advice, influence, and unwearied attention, he succeeded in rescuing the life of Sextus Roscius from the hands of the brokers and getting it left to the verdict of his judges. There can be no doubt, gentlemen, that the greater part of the civitas took up arms for such nobles as Messala; their object was that these nobles should be restored to the civitas who were ready to do what you see Messala doing—defend the civil existence of an innocent man, resist injustice, and show the extent of their power rather than ruining their fellow men. If all those who have been born in the same rank were to do this, the res publica would have less to suffer from them, and they themselves would suffer less from the jealousy with which they are regarded. (Cic. S. Rosc. 149)
The young Messala defines what a nobilis should be and the blameless people on whose behalf the pars maxima civitatis allegedly took up arms: if only, says Cicero, all nobiles actually were like this! His moralizing remains guarded (no names named, no details detailed) but the critique has become sharper: the res publica does suffer from them and they themselves do attract invidia. This gains point because by the time the speech was given Sulla had abdicated his dictatorship and therefore was no longer the sole source of power in the res publica. Technically the res publica had been constituta (albeit Sulla’s new and improved version of the res publica) and things were juddering back to normal (albeit, again, Sulla’s new and improved version of ‘normal’). The victors, Sulla’s supporters, the Pro Sexto Roscio’s pars nobilis, were now in charge, if in some uneasy limbo where they could be portrayed as still checking nervously over their shoulders for the Sulla-proxy Chrysogonus (more likely Sulla himself, currently consul). Their failure to take up their traditional duties was therefore damaging to the res publica and to their own reputations. Finally, both Sextus Roscius and the res publica are thrown upon the mercy of the judges: if Chrysogonus would not be content with money but insisted on robbing ‘us’ of ‘our’ lives (again Roscius serves as the audience stand-in), then the only hope was for the judges to acquit him and thereby save the res publica by banishing this all too common cruelty from it (S. Rosc. 150, 154). Cicero casts himself as defending ‘not only the interests of the defendant but the very survival of Roman civilization’ in a ‘thematic configuration’ that recurs time and again throughout his oratory.160 The res publica might currently be in a bad condition,161 but if this progression was left unchecked, things would only get worse (S. Rosc. 153). Wise men in possession of the auctoritas and potestas possessed by the judges should certainly apply the right remedy to the res publica (S. Rosc. 154): that is, acquittal.
The Pro Sexto Roscio was delivered while Sulla was alive and in the early days of his res publica constituta. At the end of 80, Sulla vacated the consulship; in early 78, he died a natural death.162 The first major challenge came from that year’s consul, M. Aemilius Lepidus, who passed laws to distribute grain and recall those still in exile due to the proscriptions; he originally resisted calls to restore tribunician power, but later changed his mind.163 As proconsul the following year, he led a revolt that was sharply repressed.164 Agitation over the tribunate led to its replacement on the cursus honorum in 75 and the eventual restoration of its full powers in Pompey’s consulship in 70;165 in the same year, another of Sulla’s reforms was undone: juries would in future be chosen equally from senators, equites, and tribuni aerarii.166 The law was sponsored by ‘a nobilissimus, L. Aurelius Cotta, a praetor in 70 and brother of the consuls of 75 and 74, and, by all indication, a man similarly committed to the cause of the conservatives and held in similar high regard by the conservative principes of the senate’, whose future political career ‘shows continuing gratia in high places and consistent conservatism’.167 Furthermore, although Pompey was involved in the restoration of the tribunes this year, his paw prints are missing from the judicial legislation. Mitchell argues that since the judiciary law was ‘conceived and sponsored by a loyal adherent of the views and ideals of the traditionalists’ and ‘enacted with no recorded opposition from conservative leaders’, it indicates the (Sullan) elite ‘implementing a widely desired reform, continuing a sustained policy of compromise and conciliation receptive even to major change under threat of its imposition, with more drastic consequences, by public pressure or demagogic dissidents’.168
Mitchell discusses the issue in such detail because the record is clouded by Cicero’s attempts to link the trial of Verres in 70 to judicial reform by ‘presenting it as a vital test of senatorial integrity and a golden opportunity for the jury of senators to vindicate their order and stave off the impending threat to the senate’s monopoly of the courts’.169 How the prosecution and the judiciary issue actually intersected, if at all, is hard to tell. Mitchell argues that the trial was probably a non-event as far as the political narrative of the late seventies is concerned,170 and is followed by Butler, who suggests that ‘this is precisely what leads Cicero to claim credit, ex post facto, for a “reform” that was not really a source of great friction between the orders’.171 The tactic had additional attractions. Prosecutions were generally left to young men, whereas Cicero was now thirty-six and an aedile-elect;172 connecting the prosecution of Verres with the judiciary issue defused potential accusations that Cicero was misusing his dignitas, ‘for it likewise allowed Cicero as prosecutor to submerge the image of potential destroyer of the life of a fellow citizen beneath the more sympathetic persona of defender of the interests of the Roman people’.173 Consequently the focus of the Verrines is not the condition of the res publica, although this is certainly not perfect174 and Cicero justifies his decision to prosecute someone with whom he had no personal inimicitia by reference to the rei publicae causa.175 Rather, the populus Romanus is said to miss nothing in the res publica so much as the vis gravitasque formerly exhibited by their iudicia176 and the only solution is for men of integrity to take up the cause of res publica legesque,177 as Cicero claims to do by prosecuting Verres,178 whose acquittal (if acquitted) will bring disgrace on the senatorial jurors and ruin to the res publica.179 Cicero’s handling of the case is superlative:
Ita reieci iudices ut hoc constet, post hunc statum rei publicae quo nunc utimur simili splendore et dignitate consilium nullum fuisse.
I challenged the judges such that it is agreed there was never such a court of illustrious and acknowledged merit assembled in this state of the res publica which we now enjoy. (Cic. Ver. 2.1.18)
Thanks to Sulla, this claim was not an especially impressive one. Although Cicero’s vagueness gives the impression of referring to some dim and misty past, hic status indicates Sulla’s res publica constituta of 82–1.180 Consequently the splendor and dignitas of Cicero’s carefully selected consilium could compete only with the senatorial jurors of the previous decade.
In 70, Sulla’s restructuring of the public sphere therefore still stood as a fixed reference point and those contemporaries who outlived him were arguing over which elements of his res publica constituta to retain. That Sulla himself, the civis who compelled his fellow citizens to accept his ius and mores through imperium and poena rather than reasoned argument, remained a difficult figure is evident from Cicero’s discomfort on the subject of the civil wars.181 In 83, when Sulla had been fighting in Asia, Verres had become quaestor in Rome and was allotted to the Cinnan proconsul Cn. Papirius Carbo. Instead of either doing his duty as Carbo’s quaestor or standing aside, Verres had first taken up his post and the allotted public funds, and then defected to Sulla, allegedly taking the money with him.182 This did not indicate a desire to defend the nobilitas or any particular zeal for their party (studio partium); rather, according to Cicero, it was self-motivated: Verres robbed consul, army, and province and scarpered to Sulla to avoid the consequences,183 a move that reflected only badly upon him. The money, as Cicero recaps in a different Verrine, ‘disappeared in the fog and darkness that at that time overspread the whole res publica’.184 Cicero’s problem is clear: when the music stopped, Verres ended up on the right (that is, victorious) side of the civil war. He cannot say Verres should have fought against Sulla, but he can insist on constancy in political sentiment and the duties owed to a commanding officer, a matter of principle that must be upheld lest everything turn to chaos.185 Sulla himself allegedly kept Verres at arm’s length; his generous treatment of Verres during the proscriptions was ‘the fee due to a traitor, not the trust due to a friend’.186 This principle should outweigh any goodwill Verres might have gained by deserting the dead Cn. Carbo from those who still hate the latter.187 Cicero’s focus on principle submerges the war and its participants as much as possible:
Erat tum dissensio civium, de qua nihil sum dicturus quid sentire debueris: unum hoc dico, in eius modi tempore ac sorte statuere te debuisse utrum malles sentire atque defendere.
There was then conflict among citizens; I shall say nothing about what you should have felt about it; I say only that at such a time, and the lot having fallen as it did, you ought to have made up your mind which side to take and support. (Cic. Ver. 2.1.34)
Sulla’s cause is still that of the nobilitas, but this is not stressed; other people might say that Carbo was a ‘bad citizen, wicked consul and a seditious person’,188 but Cicero himself has nothing to say about the man or his cause. There are two sides to the civil wars now and Cicero makes no explicit value judgements between them. Nor is he willing to talk about the Sullan proscriptions. The whole period was a mess; everyone will be happier if they have to think about it as little as possible; and Verres must not be allowed to use the communal calamity to support his case.189 Cicero does return to Sulla and the proscriptions in a later Verrine:
Unus adhuc fuit post Romam conditam,—di immortales faxint, ne sit alter!—cui res publica totam se traderet temporibus et malis coacta domesticis, L. Sulla. Hic tantum potuit ut nemo illo invito nec bona nec patriam nec vitam retinere posset; tantum animi habuit ad audaciam ut dicere in contione non dubitaret, bona civium Romanorum cum venderet, se praedam suam vendere. Eius omnis res gestas non solum obtinemus, verum etiam propter maiorum incommodorum et calamitatum metum publica auctoritate defendimus: unum hoc aliquot senatus consultis reprehensum, decretumque est ut, quibus ille de capite dempsisset, ii pecunias in aerarium referrent. Statuit senatus hoc ne illi quidem esse licitum cui concesserat omnia, a populo factarum quaesitarumque rerum summas imminuere.
There has been one man only since the foundation of Rome—immortal gods grant that there may not be another!—into whose hands the res publica, compelled by the times and domestic evils, surrendered itself without reserve, Lucius Sulla. So great was his power that no one, if he willed otherwise, could retain property, fatherland, or life. So unshrinking was his audacity that in a contio he did not hesitate to say that in selling the goods of Roman citizens he was selling the plunder that belonged to him. All acts of his are not only in force today, but we even defend them by public authority for fear of worse troubles and evils: but this one detail of it has been condemned in several decrees of the senate, which has ordered that the amount of the deductions made by Sulla must be paid by the purchasers into the state treasury. It was the senate’s ruling that it was unlawful, even for him to whom nothing had been forbidden, to diminish the total profits thus gained and acquired by the people. (Cic. Ver. 2.3.81)
Jupiter–Sulla manifests once more, now lacking Jupiter’s distracting glamour. The res publica had been compelled by unspecified difficulties to hand itself over to Sulla, who had the power to expropriate property, drive people into exile, and put people to death, and who explicitly treated the property of Roman citizens as private plunder. The degree of initiative attributed to the res publica is telling: rather than assigning responsibility (and blame) to the individuals who marched armies against their political opponents and took control of the political sphere by force, Cicero locates responsibility for Sulla’s takeover of Roman politics within the Roman political sphere itself. By casting the res publica as an entity in its own right that could ‘wholly surrender itself’ (totam se traderet) to Sulla, albeit acting under the compulsion of ‘the times and domestic evils’ (temporibus et malis coacta domesticis), the issue of what those evils were and who was to blame for them could be carefully ignored. It is hard to interpret this autonomous res publica as anything other than a colourful rhetorical fiction, since ‘civic business’ is too limited to fit the context and ‘the structured political sphere’ (functioning as the metonymical form of those individuals who moved within it) had resisted Sulla’s return. The point was not to deceive Cicero’s listeners, who knew what those evils had been and must have had their own opinions on the appropriate assignment of guilt, but rather to avoid kicking that particular political wasps’ nest in a way that would help neither the case at hand nor Cicero’s future career. Cicero had to account for Sulla’s unique settlement, which he claims is retained and defended out of fear that worse things might result from changing anything, except in one relevant respect, that of short-changing the treasury by selling proscribed property cheaply to Sulla’s friends. The relevance to Verres is the accusation that he likewise short-changed the treasury:
Illum viris fortissimis iudicarunt patres conscripti remittere de summa non potuisse: te mulieri deterrimae recte remisisse senatores iudicabunt? Ille, de quo legem populus Romanus iusserat ut ipsius voluntas ei posset esse pro lege, tamen in hoc uno genere veterum religione legum reprehenditur: tu, qui omnibus legibus implicatus tenebare, libidinem tuam tibi pro lege esse voluisti? In illo reprehenditur, quod ex ea pecunia remiserit quam ipse quaesierat: tibi concedetur, qui de capite vectigalium populi Romani remisisti?
The conscript fathers, Verres, held that Sulla was not entitled to make such deductions in favour of Roman gentlemen; and will these senators hold that you were entitled to make them in favour of a worthless woman? Sulla, for whose benefit the Roman people passed a law that gave his own will and pleasure the force of law, is nevertheless condemned, in this single matter, by the solemn sanction of the laws of old; and yet have you, a man liable to punishment for breaking every law in the world, deliberately chosen to give the force of law to your own wanton will and pleasure? Sulla is condemned for allowing deductions from a revenue that he himself gained for us: shall you be acquitted for allowing deductions from the yield of the taxes imposed by the Roman people? (Cic. Ver. 2.3.82)
Sulla’s sinister power is stressed to magnify this sole exception to his omnipotence, and correspondingly the magnitude of Verres’s misbehaviour. If even Sulla was not permitted to get away with this, how could Verres hope to be acquitted? The unsavoury details of said revenue source are delicately omitted, despite that comment about bona civium/praeda sua, much as the civil war is only alluded to: Sulla did not claim the res publica (or reclaim imperium) by force of arms, but rather, euphemistically, it was driven to surrender itself to him.
Now that Sulla was dead and burned, there was no need to flatter him by comparisons to Jupiter or to hide unease with the unprecedented power he achieved and the settlement he bequeathed. Nonetheless, Cicero remained uncomfortable about the wars that had resulted in Sulla’s dictatorial power. His attitude in the Verrines suggests a selective communal memory, or perhaps the attempt to create one: people should forget the messy past, call the civil wars a shared nightmare, throw a veil of shadow over the worst details, defend the current (Sullan) status rei publicae for fear of what might happen if it dissolved, and invoke traditional principles in order to shut down partisan politics. To some extent, this reflects the awkward truth that Verres had been an active participant in the Sullan takeover of the res publica. The prosecution of a former Marian might have resulted in a rather different rhetorical colouring, and Hortensius’s defence of Verres, had he replied to this speech, could well have played on the partisan, anti-Carbo theme that Cicero so carefully rejects. But such a prosecution would require there to be some former Marians in public life, and given that the proscriptions had removed the major ones and the sons of the proscribed were excluded from public life until Caesar removed the bar on their participation in 49,190 for the next few decades the splits were generally Sullani against Sullani. Even Caesar, for all his vaunted Marianism, married Pompeia after Cornelia’s death—a granddaughter of Sulla.191 The res publica constituta was Sullan both in structure (even if bits of its structure were dismantled) and because those structures were inhabited by adherents of Sulla’s victorious party or by those who could accommodate themselves to Sulla’s victory. Reacting to Sulla’s res publica constituta, Cicero therefore supplies the final perspective on res publica for this study: res publica as rhetorical fiction, used here to disguise the disagreeable fact that hic status rei publicae existed not because of the accreted action of amassed maiores but rather thanks to the controversial behaviour of one specific person, Sulla, aided and abetted by the senior figures currently moving within the structured political sphere.