Annos undeviginti natus exercitum privato consilio et privata impensa comparavi, per quem rem publicam a dominatione factionis oppressam in libertatem vindicavi.
Aged nineteen years old, I mustered an army at my personal decision and at my personal expense, and with it I liberated the state, which had been oppressed by a despotic faction.
Augustus, Res Gestae 1.11
The element that eventually ended up in control of the res publica was the wild card: Octavian, the grand-nephew and dubiously adopted son of Julius Caesar. This brings me to my final chapter on Republican res publica, which examines how Cicero infused a particular strand of Republic rhetoric with fresh meaning after Caesar’s assassination. Whereas my previous chapter dealt with division and disintegration during the civil wars of the 40s, here I deal with a theme already apparent in the rhetorical relationship Cicero constructed between himself, Pompey, and the res publica after his exile: private individuals taking action outside the political structures of Rome’s res publica in order to save it. This theme originates with P. Scipio Nasica, whose murder of Tiberius Gracchus was carried out privato consilio, on his own initiative. Following the evolution of Cicero’s interpretation of Nasica’s action leads from Cicero’s consulship to the opening line of Augustus’s Res Gestae and provides a useful retrospective on res publica during the Republic that leaves us with the counter-intuitive perspective of the outsider-as-saviour. I begin with the implications of Augustus’s claim in the Res Gestae to have acted privato consilio on behalf of the res publica when he raised an army from Caesar’s veterans to fight Antony, and how this claim picks up Cicero’s justification of Octavian/Augustus’s actions in the Third Philippic. I then examine the background to Cicero’s rhetoric, which rests on the exemplum of Scipio Nasica as a privatus hero who saved the res publica by killing Tiberius Gracchus. After exploring how Cicero used this exemplum during his consulship and the fallout from it, not to mention a very good reason to be wary of action taken privato consilio (Caesar), I show how Cicero nonetheless resorted to this tradition after Caesar’s death to praise the actions of Octavian and the ‘Liberators’. The opposition Cicero faced on this count both from critics of the civil war (especially Q. Fufius Calenus) and his own allies (especially the principled M. Brutus) suggests that Cicero’s rhetorical innovations were discomfiting and the fact that Augustus later appropriated this particular argument for the Res Gestae indicates why people would be uncomfortable with it. Cicero’s line of reasoning ultimately points towards arbitrary actions based not on law but on individual moral judgements—it points, in other words, towards the principate.
Augustus exploits Republican themes throughout his Res Gestae, a feature of the text that is concentrated in its opening sentence, which foregrounds the young Octavian’s raising of an army, privato consilio et privata impensa, at the age of nineteen. The starting point is therefore the autumn of 44, rather than the aftermath of Caesar’s assassination when Octavian had been eighteen, presumably because the credibility of Octavian’s claim to have liberated the res publica rested on his military intervention against Antony. Velleius Paterculus’s summation, which echoes the Res Gestae,2 is clear enough: although Antony’s domination was universally resented, no one was willing to take action ‘until Gaius Caesar, shortly after his nineteenth birthday, with marvellous daring and supreme success, on his private initiative (privatum consilium) showed a courage on behalf of the res publica which exceeded that of the senate. He summoned his father’s veterans first from Calatia then from Casilinum; other veterans followed their example, and in a short time they united to form a regular army.’3 By raising an army, Octavian made himself politically relevant, but his move was strikingly illegal in two respects: he was too young (the entrance of politicians into public life had been subject to regulation since the formalization of the cursus honorum in 180;4 Octavian, entering public life at the age of nineteen, was too young to have set foot on the lowest rung of the ladder, the quaestorship, for which the minimum age was thirty5) and he was a private citizen with no authorization to do anything of the sort.
Rather than the public authorization that he lacked, Augustus emphasizes his younger self’s privatum consilium. Given the importance of public consultation and concerted action to conventional political activity, this is awkward; after all, the Romans themselves believed there was an etymological link between the title ‘consul’ and the word consilium.6 There was space for privatum consilium in the system: privately a consilium of family members and friends would be convened by the paterfamilias in matters involving capital punishment or the manumission of slaves;7 likewise any prominent Roman was expected to consult his consilium prior to taking important decisions, as Tiberius Gracchus did in 133 on the matter of his planned legislation and as M. Brutus did in 44 after Caesar’s assassination failed to produce the desired results.8 Similarly, magistrates were obliged to consult their consilia, although here the institution was more formal: the urban and peregrine praetors were probably assisted in their official duties by consilia,9 provincial governors consulted their judicial councils,10 a general in the field was obliged to consult his consilium (sometimes consilium castrense),11 and the role of the senate in relation to the magistrates, in particular the consuls,12 earned it the occasional name of publicum consilium.13 A magistrate who sought the consilium of the senate (like a paterfamilias who sought the consilium of friends and family) was not obliged to accept its advice; however, given the senate’s auctoritas,14 it was usually in his interests to gain its approval. On the flipside, people are commonly said to act publico consilio (or nullo consilio), where publicum consilium takes on the technical aspect of the outcome of senatorial consultation, a motion that lacked legal backing (which could only be conferred by a vote of the people) but carried considerable auctoritas, being voted on, written down, publicly posted, and stored in the treasury as the senatus consultum.15 An action taken publico consilio has the full weight of the civic body behind it;16 the lack of publicum consilium delegitimizes actions/actors;17 and civic bodies may disclaim responsibility for the actions of individuals who work nullo publico consilio.18 Augustus’s claim to have acted privato consilio is therefore obtrusive; it lays stress on precisely what his younger self had lacked, the authority of publicum consilium and the public office that would have enabled him to gain such consilium from the senate. As a private citizen (privatus), Octavian acts on his own instigation (consilium); he may seek the advice (consilium) of his personal advisors, but what he does not do and, as a privatus, could not have done, is to follow the usual rules of Republican politics by convening the senate, requesting their advice, and acting in accordance with publicum consilium as provided in the form of a senatus consultum. Instead, RG 1.1 foregrounds the fact that the young Octavian’s actions were outside the usual sphere of public action, which enables Augustus to advertise the measures that the senate was obliged to take (imperium mihi dedit, RG 1.2) to reconcile his actions with the established political framework. He thereby promotes his youthful army-raising as an event of such importance that the rules had to be bent to accommodate his illegal activities.
Augustus’s justification for having taken action very much outside the res publica is that the res publica had been oppressed by the dominatio factionis: its political structures had not been functioning properly and so he had been justified in embarking on an unauthorized civil war in order to remove the political blockage, a justification accepted and approved by the senate when it belatedly voted him imperium. Two sources are generally thought to stand behind Augustus’s formula here: Caesar’s self-defence at BC 1.22, with its stress on liberation,19 and Cicero’s defence of Octavian’s privatum consilium as a laudable liberation of the res publica from Antony in the Third Philippic,20 where Cicero had claimed:
Qua peste privato consilio rem publicam—neque enim fieri potuit aliter—Caesar liberavit: qui nisi in hac re publica natus esset, rem publicam scelere Antoni nullam haberemus.
From this scourge Caesar by his private initiative—there was no other way—delivered the res publica: had he not been born in this res publica, through the criminality of Antonius we would no longer have a res publica. (Cic. Phil. 3.5)21
Whereas Julius Caesar had complained about those oppressing the populus Romanus, Cicero’s focus is on the oppressed res publica. Caesar’s self-justification has already been examined in Chapter 5; as for Cicero, however, I want to flag up another piece of privatum consilium he praised at about the same time in very similar language:
Nec plus Africanus, singularis et vir et imperator, in exscindenda Numantia rei publicae profuit quam eodem tempore P. Nasica privatus, cum Ti. Gracchum interemit.
Nor did Africanus, though a great man and a soldier of extraordinary ability, do more for the res publica by destroying Numantia than was done at the same time by the private citizen Publius Nasica when he killed Tiberius Gracchus. (Cic. Off. 1.76)22
There was a precedent for taking action outside the res publica in order to save the res publica—or, at least, P. Scipio Nasica’s murder of Ti. Sempronius Gracchus (the original ‘sporadic anticipation of imminent danger’ and the first time res publica salva can be seen to spring up as a nervous catchphrase23) could be pressed into action in these contexts. The passage is part of a sequence illustrating the superiority of domestic political activity (res urbanae) to military glory that culminates in a comparison of Cicero’s own consulship with Pompey’s concurrent military campaigns,24 and it is awkward for Cicero’s purposes that the episode was not just a domestic affair, but one that ‘partakes of the nature of war also, since it was effected by violence’.25 Cicero’s justification for nonetheless including Nasica on this side of the scale is that the removal of Tiberius Gracchus from the res publica ‘was, for all that, executed as a political measure (consilium urbanum) without the help of an army’.26
When Cicero came down on Nasica’s side, it was a strategic choice rather than a necessary or inevitable rhetorical move, since the anti-Gracchan position was not the only option available.27 In fact, the pro-Gracchan tradition was a strong one, as the vivid account of Tiberius Gracchus’s death in the Rhetorica ad Herennium shows.28 Tiberius features as a martyred hero, while his killer is ‘filled with wicked and criminal designs’ and appears on the scene ‘in a sweat, with eyes blazing, hair bristling, toga awry…frothing crime from his mouth, breathing forth cruelty from the depth of his lungs’.29 Such rhetoric was available to anyone who wanted to ingratiate himself with the populus, not just confirmed populares; in his early career, Cicero had cited Gaius Gracchus as ‘in my opinion, by far the ablest and most eloquent (ingeniosissimi atque eloquentissimi) of our fellow-countrymen’, even though his point concerned Gaius’s unjustly attacked opponent Piso Frugi.30 It is therefore noteworthy that Cicero turned to Nasica’s exemplum during and after the Catilinarian crisis, not least given that Nasica was hardly feted as a hero in the aftermath: even though the pontifex maximus was supposed to remain in Italy, the death of Tiberius Gracchus made him so unpopular that he left the country and eventually died in Pergamum.31
Since Publius Mucius Scaevola, the consul of 133, had declined to sign up to Nasica’s call for all good men to preserve the res publica from harm, Nasica could claim no public backing for his lynching spree; it was unarguable that Tiberius Sempronius Gracchus was killed by a privatus acting privato consilio, whatever Nasica’s religious office and for all that Nasica and his supporters (then and later) claimed action had been taken on the res publica’s behalf. In contrast, the resort to violence against Gaius Gracchus, Fulvius Flaccus, and their supporters was carried out by L. Opimius, one of the consuls of 121, and sanctioned by the senate through the SCU.32 The distinction between privatum consilium and senatorially sanctioned homicide is clear from the different uses Cicero makes of these exempla from the very start of the Catilinarians, where Nasica is invoked as a negative foil (Cat. 1.3). For Cicero as consul, faced with an arch-nemesis in the form of Catiline and a handicap in the form of a reluctant colleague and a doubting senate, the privatus discourse was secondary at best. Consequently, the more significant historical touchstone of the Catilinarians is Lucius Opimius,33 while the inbuilt contradictions of the First Catilinarian34 allow Cicero to use the heroic privatus Nasica as a foil for the actions of such decisive consuls and so establish a sharp contrast:
An vero vir amplissimus, P. Scipio, pontifex maximus, Ti. Gracchum mediocriter labefactantem statum rei publicae privatus interfecit: Catilinam orbem terrae caede atque incendiis vastare cupientem nos consules perferemus?
Publius Scipio, a man of distinction and the pontifex maximus, was a private citizen when he killed Tiberius Gracchus even though he was not seriously undermining the condition of the res publica. Shall we, the consuls, then tolerate Catiline whose aim is to carry fire and the sword throughout the whole world? (Cic. Cat. 1.3)35
Nasica killed Tiberius Gracchus, a minor nuisance, even though Nasica was only a private citizen and Tiberius a sacrosanct tribune. Cicero and Antonius Hybrida are in possession of consular office and the SCU, so how much more secure should they feel in acting against Catiline, who wants to destroy the world? This striking collection of contrasting pairs has drawn attention since Quintilian, who isolates the comparison of Catiline with Gracchus, the res publica with the orbem terrae, a slightly rocked boat with slaughter, fire, and devastation, and finally a private citizen (Nasica) with the consuls (Cicero and Antonius Hybrida).36 Opening with Nasica indicates Nasica’s commanding position in the tradition of justifiable political murder (and Tiberius Gracchus’s corresponding position in the victim stakes), but the stress is on the possession of office and senatus consultum, which Cicero goes on to claim gives the consuls everything they need to act except the will to do so.37 Nasica the heroic privatus really serves as a backdrop for the heroic consuls who followed him and who disposed of seditious citizens not on their private initiative, but (as Cicero and Antonius will do, if they will only take action) with the full support of the senate’s auctoritas:
Decrevit quondam senatus uti L. Opimius consul videret ne quid res publica detrimenti caperet: nox nulla intercessit: interfectus est propter quasdam seditionum suspiciones C. Gracchus, clarissimo patre, avo, maioribus, occisus est cum liberis M. Fulvius consularis. Simili senatus consulto C. Mario et L. Valerio consulibus est permissa res publica: num unum diem postea L. Saturninum tribunum plebis et C. Servilium praetorem mors ac rei publicae poena remorata est? At vero nos vicesimum iam diem patimur hebescere aciem horum auctoritatis. Habemus enim eius modi senatus consultum, verum inclusum in tabulis, tamquam in vagina reconditum, quo ex senatus consulto confestim te interfectum esse, Catilina, convenit.
Once the senate passed a decree that the consul Lucius Opimius should see that the res publica came to no harm: not a single night intervened: Gaius Gracchus, for all the distinction of his father, grandfather, and ancestors, was killed on vague suspicions of sedition; Marcus Fulvius, an ex-consul, was killed together with his children. A similar decree of the senate entrusted the res publica to the consuls, Gaius Marius and Lucius Valerius: did the tribune of the plebs, Lucius Saturninus, and the praetor, Gaius Servilius, have to wait a single day for the death penalty imposed by the senate? For twenty days now we have been allowing the edge of the senate’s authority to grow blunt. We have a decree of the senate like theirs, but it is locked up with the records like a sword buried in its sheath; yet it is a decree under which you, Catiline, ought to have been executed immediately. (Cic. Cat. 1.4)
When the senate had issued the SCU in the past, the incumbent consuls moved against the offending persons at once, no matter how eminent the victim. The consuls thereby executed the will of the senate. Cicero and his fellow consul have an SCU but have taken no action against Catiline; this inaction undermines the senate’s auctoritas and should be remedied as soon as possible. Political assassination is justified on this account by publicum consilium, the possession of office and the support of senatorial auctoritas, which must be upheld by treating and using the SCU as a weapon against a specific individual, in this case Catiline. This passage offers a convenient schematic for the relationship between private heroics (Nasica’s murder of Tiberius Gracchus) and senatorially sanctioned homicide (L. Opimius, the SCU, and Gaius Gracchus). Nasica is separated off from the list of heroic consuls, since as a privatus he stands in a different relationship to the sticky issue of political assassination, but he is nonetheless the first in the list of exempla relevant to Cicero’s campaign against Catiline, since he is the first person in historical (rather than legendary, hence illa nimis antiqua examples Cicero passes over) Roman memory to have resorted to violence to suppress a turbulent citizen. And it is precisely because he is a privatus that he exemplifies how swiftly and decisively great men had acted in the past, compared to the hesitant consuls of the modern era.38
Cicero’s citation of Scipio Nasica in the Catilinarians invokes the ideology of the privatus who steps forwards to safeguard the endangered res publica, as Béranger argues,39 but it should be noted that this was not the point of the Catilinarians (Cicero was not a privatus and would not have thanked any privatus who stepped up at to steal his thunder), and moreover that Cicero’s rhetorical aims changed over the course of the corpus. His point at Cat. 1.3 was to justify the hypothetical use of senatorially sanctioned violence against Catiline, which never happened, or at least never happened in quite this way, since Catiline was declared a hostis only after it became known he had joined Manlius and then fell in battle. The senatorially sanctioned suppression of citizens that did take place in 63 involved the ‘Catilinarian conspirators’ arrested inside the city after Catiline’s flight, who were cleanly and illegally strangled in the Tullianum rather than bludgeoned to death in the Forum.40 It was these deaths that Cicero eventually had to justify, and his defence rested on a much more straightforward claim than anything involving Nasica or heroic privati: his consular office and the collective responsibility of the senate, expressed in the form of the senatus consultum ultimum. As long as Cicero occupied a public office, the privatus Scipio Nasica’s action against Tiberius Gracchus was not a directly relevant exemplum and therefore appears only as an a fortiori argument for Cicero’s much stronger position during this much more terrifying time. The crisis was still underway when Cicero declared in the Pro Murena that ‘if only the res publica is furnished with its proper means of defence, all these plans, so long contrived, will easily be crushed by the measures taken by the magistrates and the watchful care of private citizens (et magistratuum consiliis et privatorum diligentia)’.41 Here consilium belongs to the magistrates; privati are required only to be diligentes. As long as Cicero was consul, in possession of legitimate imperium and also, thanks to the SCU and the senate’s vote for the execution of the conspirators, publicum consilium, there was no need to resort to the figure of the heroic privatus except in the general context of actions taken against dangerous (that is, popularis) figures. Cicero’s most important historical referents for his consular activities were those of his predecessors in the consulship who had broken the law backed by an SCU: Lucius Opimius and those who followed him.
The strength of the parallel with L. Opimius is clear from Cicero’s speeches of the 50s. Opimius, like Cicero, had eventually gone into exile, even though Opimius’s condemnation in 110 was unrelated to his action against Gaius Gracchus.42 Scipio Nasica had died in Pergamum, despite the religious restrictions on the pontifex maximus that should have confined him to Italy,43 but it is Opimius who features in the Pro Sestio as the sole example of a statesman who came to an unhappy end after earning general gratitude.44 Elsewhere, although Nasica is referenced positively in passing at Pro Plancio 51, where Cicero holds that ‘the state has had no more gallant citizen’, overall he takes second place to Opimius and other such brave consuls. The prosecutor had raised the topic of Opimius,45 perhaps unwisely, since this gave Cicero a chance to dwell at length on the very sad story of a man whose conviction should be considered a disgrace to res publica, imperium, and the populus Romanus rather than iudicium:
quam enim illi iudices, si iudices et non parricidae patriae nominandi sunt, graviorem potuerunt rei publicae infligere securim quam cum illum e civitate eiecerunt qui praetor finitimo, consul domestico bello rem publicam liberarat?
what deadlier blow could those judges, if judges they are to be called, and not rather unnatural children of their fatherland, have inflicted upon the res publica, than to eject from the citizen body the man who as praetor had liberated the res publica from war with a neighbouring people and as consul from civil war? (Cic. Planc. 70)
There is an interesting elision here between Opimius’s consulship and exile: even though Opimius earned his condemnation on an unrelated charge of repetundae, Cicero relates his exile to his services to the res publica during his troubled consulship.46 His focus is on the unfairness of the iudices for condemning a consularis who had saved his country as a consul and praetor, even though Opimius’s earlier actions were technically unrelated to the charge at hand. Opimius’s consulship, it seems, was so glorious that it should have given him a blank cheque for the future—either that or someone so heroic could never have been guilty of any capital charge.47
Cicero, then, relied on the tradition of senatorially sanctioned homicide to justify his consular actions. The self-help tradition associated with Nasica was not only little use to Cicero but seems to have been used against him during this period. A letter from Cicero to his brother Quintus, written at some point between 25 October and 10 December 59, survives in which Cicero anticipates problems with Clodius and expresses his willingness to use force. People have been offering their support and Cicero is confident that he will win:
Sed tamen se res sic habet: si diem nobis dixerit, tota Italia concurret, ut multiplicata gloria discedamus; sin autem vi agere conabitur, spero fore studiis non solum amicorum sed etiam alienorum ut vi resistamus. Omnes et se et suos amicos, clientis, libertos, servos, pecunias denique suas pollicentur.
Anyway, this is how things stand: if Clodius takes me to court, all Italy will rally and I shall come out of it with much additional glory; if he tries force, I trust to oppose him with force, supported not only by my friends but by outsiders as well. Everyone is pledging himself and his friends, dependents, freedmen, slaves, even money. (Cic. Q. fr. 1.2.16)
Whether the prospect of direct (violent) action against Clodius was realistic is not the point; rather, for all Cicero’s claims, nothing came of it. The option of resistance was flagged up and then abandoned. Pompey’s excuse for not acting, at least as reported after the event in Cicero’s invective against L. Calpurnius Piso, is telling: Pompey himself said that he ‘did not wish to match himself against an armed tribune of the people without publicum consilium; but should the consuls act upon a decree of the senate and defend the res publica, then he would take up arms’.48 Cicero depicts Pompey as willing to follow a consul playing Opimius or Marius, but declining to play Nasica. Nasica’s exemplum had been vital to the justification of political murder since Tiberius Gracchus’s death, and he remained a powerful element of the discourse, but his successors did their best to keep within a legalized (if not exactly legal) framework by seeking senatorial approval of their actions. Cicero’s Pompey refuses to step outside that framework and in the end Cicero himself was not willing (or lacked the support) to do so either. Nonetheless the model of Nasica remained as a counterfactual precedent: Cicero might have acted so, but did not. Cicero was left vulnerable to those of his supporters who felt betrayed (or just felt able to use the accusation of treachery against him) by his decision not to stand up to Clodius’s turbulence, as his repeated and elaborate justifications in the following years show.
Cicero’s most explicit justification of his flight into exile appears in the Pro Sestio of 56 and the Pro Plancio of 53. In 57, P. Sestius had been a tribune and one of Cicero’s supporters; he was charged with vis in connection with the events of that year and Cicero volunteered to defend him out of gratitude for Sestius’s efforts on his behalf. The Pro Sestio is based on a lengthy exhumation of recent political history and contemporary woes, since Cicero’s strategy was to argue that everything Sestius did was done on his behalf and therefore on behalf of the res publica.49 As part of this strategy involved the outright slandering of the consuls for that year, whom Cicero accused of having given way to Clodius and thereby permitted Cicero’s exile, the year is depicted as one in which the elected magistrates (unworthy even to be called consuls50) had failed utterly to defend the public interest.51 Cicero’s recap of the events of his consulship lays stress on collective responsibility; in office, his measures had been
quarum non unus auctor sed dux omnium voluntatis fuissem, quaeque non modo ad singularem meam gloriam sed ad communem salutem omnium civium et prope gentium pertinerent; ea condicione gesseram ut meum factum semper omnes praestare tuerique deberent.
not grounded on my sole authority, but I had carried out the general will; they not only concerned my personal glory, but the general welfare of all citizens, I might say of all peoples; in carrying them out I fully expected that all men would make it a duty always to uphold and defend what I had done. (Cic. Sest. 38)52
Cicero channelled the general will, omnium voluntas, in order to safeguard all (good) citizens. Because he did only what everyone wanted, he had expected everyone to support his actions. Unfortunately, the opposition of 58 was utterly barbarous: so what, Cicero asks, could he have done? ‘Was I, a private individual, to contend with arms against a tribune of the plebs?’53 That is, did people seriously think he should have followed the example of the privatus Scipio Nasica against the tribune Tiberius Gracchus? Granted, the right side would have won, but who would take responsibility for the aftermath? ‘In short, who could doubt that the blood of a tribune, especially if shed without public authority (nullo praesertim publico consilio profusus), would find avengers and defenders in the consuls?’54 Not only did a private citizen have no business taking up arms against a tribune of the plebs, but doing so could only have ended badly, lacking consular support. The consuls of 58 were scoundrels who would have rushed to arms to defend the tribune (or, indeed, public order and legal proprieties).55 Even victory would have been pitiful: ‘but they were citizens, but it would have been by that private citizen who even as consul had saved the res publica without arms!’56 By emphasizing that his consular salvation of the res publica had been carried out sine armis, Cicero rises above the standard consul’s claim to military gloria and makes this heroic pacifism a standard from which military action as a privatus (on the Nasican model) would only detract. For good measure, he lays stress on his opponents’ status as fellow citizens, something that had not deterred him from executing the Catilinarian conspirators. The counterpart to this depiction of a bitter victory is a defeat that would have left the res publica to be possessed by slaves.57 This was unthinkable. Cicero had therefore gone into exile for the common good.58
There had been privatum consilium action going on that year, however:
Hic subito cum incredibilis in Capitolium multitudo ex tota urbe cunctaque Italia convenisset, vestem mutandam omnes meque iam omni ratione, privato consilio, quoniam publicis ducibus res publica careret, defendendum putarunt.
And then, straightaway, when an amazing throng had assembled on the Capitol from the whole city and from the whole of Italy, all deemed it their duty to put on mourning, and to defend me also in every possible way, by private initiative, since the res publica had lost its public leaders. (Cic. Sest. 26)
That is, the consuls had refused to put the matter of Cicero’s recall before the senate.59 This supports their characterization as bad men unwilling to sign up to senatorial auctoritas, an emphasis that covers up both their limited options for dealing with a tribune and the inactivity of everyone else, especially Clodius’s nine allegedly pro-Ciceronian colleagues and Gabinius’s patron Pompey.60 The action taken here is uncontroversial, especially compared with political murder or raising private armies, and the point is to stress the unanimous, spontaneous support offered to Cicero by private individuals. This is picked up in the following section:
Quid enim quisquam potest ex omni memoria sumere inlustrius quam pro uno civi et bonos omnis privato consensu et universum senatum publico consilio mutasse vestem?
For what greater distinction can anyone choose out of all the history of the past than that, to save one citizen, all good men personally by common consent, and the whole senate by public resolution, put on mourning? (Cic. Sest. 27)
The unofficial privatum consilium that mourning clothing should be donned mutates into official publicum consilium, once the senate has finally been able to meet.61 While the privatum consensum of (privati) boni omnes is acknowledged, it is capped by the publicum consilium of the whole senate, against which the consuls are said to have reacted.62 A similar account appears in the In Pisonem, where Cicero argues that it would have been unbearably cruel for Piso to have forbidden the senators to wear mourning per interdicta potestatis even if they had done so ‘not by official resolution but out of private duty or compassion (non publico consilio…sed privato officio aut misericordia)’.63 Again, the stress lies on official public action. In the absence of a senatorial resolution, the changing of clothes would have been only a privatum officium; but since that resolution was passed, it was publicum consilium, so Piso’s attempt to thwart the general mourning is not just intolerable cruelty but something that no barbarian tyrant ever did.64 Notably, publicum consilium is contrasted to privatum officium; privatum consilium has dropped out of the rhetoric, since in this speech Cicero elides the details set out in the Pro Sestio. The important point is that the senate issued publicum consilium to the effect that senators should don mourning clothes and that Piso intervened on the basis of his consular authority to prevent this. How this stand-off was reached is not particularly important to the point Cicero wants to make, which is that Piso was a bad and profoundly un-Roman consul.
After his exile, then, Cicero emphasizes his lack of public office and the potentially terrible consequences of winning or losing in order to justify his failure to act on the will to violence expressed in Q. fr. 1.2, as he might have been expected to do had Clodius really been the horror and scourge of the res publica that Cicero describes. In effect, Cicero makes the legal and ethical argument against the privatus heroics of Scipio Nasica. This is explicit in De Domo Sua, where Cicero stresses that his failure to act does not reflect a negative opinion of Nasica’s action:
Sed publicam causam contra vim armatam sine populi praesidio suscipere nolui: non quo mihi P. Scipionis, fortissimi viri, vis in Ti. Graccho privati hominis displiceret, sed Scipionis factum statim P. Mucius consul, qui in gerenda putabatur fuisse segnior, gesta multis senatus consultis non modo defendit, sed etiam ornavit: mihi aut te interfecto cum consulibus aut te vivo et tecum et cum illis armis decertandum fuit.
But without a bodyguard of the people I was reluctant to undertake the people’s cause against armed lawlessness; not that I disapproved of the violence employed against Tiberius Gracchus by Publius Scipio, the bravest of men, when he acted in a private capacity; on that occasion Publius Mucius the consul, who was considered to have been somewhat lacking in energy when the deed was in contemplation, when it had been accomplished immediately defended Scipio’s action by several decrees in the senate, and even complimented him upon it; but in my case I had the prospect of an armed struggle with the consuls had you been slain, or, had you survived, with you and them combined. (Cic. Dom. 91)
A discussion of vis committed in the publica causa raised the spectre of Nasica; careful footwork on Cicero’s part was therefore required to lay the ghost to rest. Cicero was obliged to justify his failure to follow Nasica’s example without denigrating it, since Nasica was too important an exemplum to wipe out of the tradition and could not be made into the villain of the tale. The consuls again become Cicero’s scapegoats. Nasica, in this iteration of the tale, had been energetically supported after the event by Mucius Scaevola, the previously languid consul; Cicero, however, would have had to face up against the consuls in the event that Clodius had been slain, or against Clodius and the consuls together if Clodius had survived.
It is not clear whether Cicero had the option of avoiding Nasica or whether he was forced to engage with the exemplum, either because someone else had raised the parallel or because leaving it unspoken would have left it to be exploited by other people. Either way, Cicero uses the same themes in the Pro Plancio of 53. Once again, he makes heavy weather of his own career and his debts to his client, in court on a charge of ambitus: the prosecution, he says, claims (a) that Plancius’s services were less significant than Cicero is making out and (b) that however important they were, they should not weigh with the jury.65 Cicero has to defend both counts, hence the prominence of his exile; moreover his friend Laterensis, a disappointed candidate and one of the prosecutors, accuses him of having abandoned his supporters by going into exile, rather than standing his ground in Rome.66 Another recap of the events that led to Cicero’s exile therefore features at Pro Plancio 86–90. Cicero argues that Clodius had the (evil) consuls onside; that the (supportive) senate, equestrian order, and all of Italy was cowed; and that standing up for himself would have meant a recourse to arms and civil war, which he would not allow. As glorious as a victory over Clodius would have been, it would only have been the precursor to a worse conflict, as long as the consuls supported Clodius:
Ubi enim mihi praesto fuissent aut tam fortes consules quam L. Opimius, quam C. Marius, quam L. Flaccus, quibus ducibus improbos cives res publica vicit armatis, aut, si minus fortes, at tamen tam iusti quam P. Mucius, qui arma quae privatus P. Scipio ceperat, ea Ti. Graccho interempto iure optimo sumpta esse defendit?
For where could I have found at hand to help me consuls as brave as Lucius Opimius, Gaius Marius, or Lucius Flaccus, under whose armed leadership the res publica quelled traitorous citizens, or, if brave men were lacking, consuls so upright as Publius Mucius, who proved that Publius Scipio, though a private citizen, was amply justified in his resort to arms by his destruction of Tiberius Gracchus? (Cic. Planc. 88)
The line of the Pro Sestio is resumed, but now the various senatorial heroes of the past make an explicit appearance: Cicero could not count on consular backing, as could Nasica, and had no authority of his own, as had Opimius and Cicero himself during his own consulship; therefore, rather than resorting to civil war, he fled.67 It is noticeable that the consul Scaevola’s role in the Gracchan debacle and its aftermath inflates as the decade draws on, rather dubiously in the context of Scaevola’s express refusal to take action, his previous Gracchan sympathies, and Nasica’s accusation (witty or not) that Scaevola was prejudiced against him at his trial.68 Cicero’s attempts to press Scaevola into service against Gabinius and Piso as a shining counterexample of a virtuous consul require a rather awkward historical distortion to cover the fact that Scaevola had not supported Nasica’s initial call to arms. In general, in any case, resorting to arms in the absence of public authority is cast in a poor light whether the battle is won or lost.69 For all Cicero’s protestations, it seems his opponents on the senatorial end of the political spectrum were exploiting the charge of cowardice to which Cicero’s preferred version of his exile made him vulnerable.70
The conversation of the 50s was flexible, but it was also largely hypothetical (if you had done this, why didn’t you do this, I didn’t do this because…). Furthermore, although the privatum consilium tradition was eventually used to justify civil war activities, it originated as something rather different: a justification of political murder that developed as the result of and in order to legitimize an illegal act after the event, rather than as a way to lever privati into positions that they were not technically qualified to hold. Whatever significance was attached to Scipio Nasica’s name, no one was at any time eager to elevate private persons to positions of public authority. Thus in November 51, Caelius Rufus reported to Cicero in Cilicia that although there was general concern about the recent news of a Parthian crossing, no one was willing to see privati appointed by senatorial decree to deal with the problem.71 Such elevations happened anyway, of course, and were usually justified by reference to the enormity of the situation and the relevant privatus’s unique qualities, such qualities usually belonging to Pompey to a positively astounding degree: so, notoriously, the panegyric embedded in Cicero’s Pro Lege Manilia of 66, given to support the extraordinary command proposed for Pompey against Mithridates. Pompey deserved the command, according to Cicero, because he possessed the four qualities necessary for a successful general (and all in the superlative): knowledge of warfare (Leg. Man. 28), ability (Leg. Man. 29–42), prestige (Leg. Man. 43–6), and luck (Leg. Man. 47–9).72 Concrete evidence for the first of these qualities is furnished by Pompey’s early career, rendered elliptically: who knew more or had ever needed to know more about warfare than Pompey, who had gone from the games and lessons of childhood to his father’s army in order to study military matters in a great war (bellum maximum) against the most savage enemies (acerrimi hostes)? Who, as a mere boy, had served as soldier in a summus imperator’s army, and as an adulescens commanded a great army; who had ‘more often with his country’s enemies (cum hoste conflixit) than any other man has quarrelled with his own (cum inimico concertavit), fought more wars than others have read of, discharged more public offices (provinciae) than other men have coveted; who, in his youth (adulescentia), learned the lessons of warfare not from the instructions of others but under his own command (suis imperiis), not by reverses in war but by victories, not through campaigns but through triumphs’.73 Pompey had engaged in all types of warfare and so gained universal competence: ‘The civil war, the wars in Africa, Transalpine Gaul, and Spain, the slave war and the naval war, wars different in type and locality and against foes as different, not only carried on by himself unaided but carried to a conclusion, make it manifest that there is no item within the sphere of military experience which can be beyond the knowledge of Pompeius’.74
This glorious account tarnishes when rephrased as what it was: a series of victories achieved against Roman citizens. Cicero disguises this by portraying the wars waged outside Italy as foreign wars, rather than extensions of the initial civil war sparked by Sulla’s return from the east.75 Pompey’s meteoric career had begun with the raising of a private army for use during the Sullan civil wars of 83; between 82–70 he went on to hold commands against the Marian remnants in Sicily and Africa, was involved in action against the proto-Catiline consul of 78, M. Aemilius Lepidus, and against Q. Sertorius in Spain, helped to mop up the remnants of Spartacus’s revolt, and celebrated two triumphs as an equestrian,76 all before an exemption from the lex annalis enabled his election as consul.77 Pompey was the prime example of a privatus occupying public positions he was not technically eligible to hold. Cicero emphasizes the novelty of his career:
Quid tam novum quam adulescentulum privatum exercitum difficili rei publicae tempore conficere? Confecit. Huic praeesse? Praefuit. Rem optime ductu suo gerere? Gessit.
What is so novel as that a young privatus should raise an army at a time of crisis for the res publica? He raised it. Or that he should command it? He commanded it. Or that he should achieve a great success under his own leadership? He achieved it. (Cic. Leg. Man. 61)
Young, a private citizen, and in command of an army: Pompey was the very image of Octavian in 44–43. In 66, however, Pompey’s early exploits were flagged up by Cicero as an aberration during crisis conditions, even if the nature of that crisis and its resolution are left carefully unstated. Earlier in the speech, while arguing that Pompey would have deserved command even if he were a privatus, Cicero stresses that in fact, thanks to the command against the pirates conferred by the lex Gabinia of 67, at that very moment Pompey was not.78 Even for a man as remarkable as Pompey, such promotion was a tricky issue and Cicero makes no appeal to any existing tradition to justify Pompey’s remarkable early career; rather, the point is explicitly that Pompey is his own precedent for novel commands. Moreover, Cicero is starry-eyed but not delusional; he portrays Pompey not as Athena, leaping into the world as a fully fledged imperator, but as a student of war from an unusually early age who studied under a summus imperator and learned scientia rei militaris through commanding his own men. It is conceded, at the very least, that Pompey’s first bellum was civile, even if the civil nature of the wars that followed in Africa, Transalpine Gaul, and Spain is carefully glossed over. This reflects the significant detail that Pompey began his career as a Sullan lieutenant. His army-raising might have been done as a privatus, but he fought first on Sulla’s behalf and then at the behest of the Sullan senate. He commanded his father’s veterans as a private citizen, but not on his private initiative, and there is no trace in Cicero that the privatum consilium discourse stemming from Nasica’s heroics in 133 was ever needed to justify Pompey’s early career.
There was an excellent reason why action outside the res publica, whether demonstrably pro re publica or not, was rare and highly controversial, and that reason was eloquently demonstrated by Caesar when he crossed the Rubicon. It is worth reading Cicero’s later rhetoric in the context of a letter he wrote to Atticus in January 49:
Quaeso, quid est hoc? Aut quid est agitur? Mihi enim tenebrae sunt. ‘Cingulum’ inquit ‘nos tenemus, Anconem amisimus; Labienus discessit a Caesare.’ Utrum de imperatore populi Romani an de Hannibale loquimur? O hominem amentem et miserum, qui ne umbram quidem umquam τοῦ καλοῦ viderit! Atque haec ait omnia facere se dignitatis causa. Ubi est autem dignitas nisi ubi honestas? Honestum igitur habere exercitum nullo publico consilio, occupare urbis civium quo facilior sit aditus ad patriam, χρεῶν ἀποκοπάς, φυγάδων καθόδους, sescenta alia scelera moliri, ‘τὴν θεῶν μεγίστην ὥστ' ἔχειν Τυραννίδα’?
Pray, what’s all this? What is going on? I am in the dark. ‘We hold Cingulum, we’ve lost Ancona, Labienus has deserted Caesar. Is it a Roman commander or Hannibal we are talking of? Deluded wretch, with never in his life a glimpse of even the shadow of Good! And he says he is doing all this for his honour’s sake! Where is honour without moral good? And is it good to have an army without public authority, to seize Roman towns by way of opening the road to the mother city, to plan debt cancellation, recall of exiles, and a hundred other villainies ‘all for the greatest of gods, Tyranny’? (Cic. Att. 7.11.1)
Caesar, acting nullo publico consilio (or, in other words, privato consilio) had neither constitutional legitimacy nor honestas on his side; he provided a timely illustration of how, with positive law swept away, a free-for-all could result. Praise of privatum consilium in public affairs was therefore a dangerous rhetorical game to play, however much modifying factors such as honestas or virtus might be stressed. In the confused situation after Caesar’s death, however, Cicero spent a great deal of time playing catch-up; while his rhetoric impresses us as a record of events in which he played a major part and contributed significantly to how things unfolded, in reality he spent most of his time trying to justify the decisions of others.79 It was the nature of the game that those decisions were increasingly taken without recourse to standard methods of confirmation and legitimation, in other words as privatum consilium. The second half of this chapter therefore examines Cicero’s attempt to fold not at all hypothetical and politically divisive privatum consilium into what had once been a res publica premised on consensus and concerted action.
Cicero’s rhetorical strategy in 44–43 both drew on and reinforced his efforts to reconstruct a res publica in which the auctoritas of the senate could curb the arbitrary action of magistrates generally. His insistence in the Philippics that the senate should reward the arbitrary action of specific magistrates and individuals by voting them honours and commands, and thereby confirming that their actions had been taken pro re publica, might seem counterproductive (and certainly had counterproductive implications) but it does foreground the senate as the source of political legitimacy. This is apparent from Augustus’s probable Ciceronian inspiration for RG 1.1, the Third Philippic, a speech given in the senate on 20 December 44 and which Manuwald, following Stroh, proposes as the first of Cicero’s intended Philippic corpus.80 Antony and Dolabella were still in office when the speech was given, but Antony had departed Rome on 28 November after learning that the legio Martia and legio Quarta had defected to Octavian. Cicero was impelled to deliver the Third Philippic by a dispatch from Decimus Brutus in which Decimus (appointed governor of Cisalpine Gaul by Julius Caesar and in occupation there since April) declared his intention of illegally defending ‘his’ province against Antony, who had reassigned it to himself during the distribution of the provinces at the beginning of June. Cicero was sufficiently heartened to discard his original plan of disavowing public activity until Antony’s vacation of office in January. He therefore attended a meeting of the senate chaired by the new tribunes and hijacked the original discussion (which concerned security for inaugurating the new consuls) to propose the confirmation of Decimus Brutus’s policy in Gaul, the maintenance in office of the present provincial governors, and honours for Octavian, his veterans, and the legions who had mutinied against Antony.81 It was in this context that Cicero declared that Octavian’s private initiative had saved the res publica from Antony, praising young Octavian’s illegal actions (the raising of the private army ‘to liberate the res publica’ from Antony) and arguing that Octavian should be invested with publica auctoritas to back up his privatum consilium.82
The similarity between Phil. 3.5 and RG 1.1 is indeed striking; Galinsky notes the parallels of private initiative and deliverance from Antonian oppression, the similarity of the clause endings, and the emphasis on the res publica.83 That said, however, Cicero’s emphasis that there was no other way to save the res publica is important: certainly Octavian is praised for his actions privato consilio, but this is flagged up by Cicero as an unavoidable measure taken in desperate times, rather than the sort of behaviour that would necessarily be commendable in everyday politics. At 3.3, Cicero had echoed the quo usque tandem abutere opening of his first consular speech against Catiline:
Quo enim usque tantum bellum, tam crudele, tam nefarium privatis consiliis propulsabitur? Cur non quam primum publica accedit auctoritas?
How long then is such a great war, such a cruel, such a wicked one, to be beaten back by private initiatives? Why is not public authority added as soon as possible? (Cic. Phil. 3.3)84
The private initiatives are plural because this refers not only to Octavian but also to Decimus Brutus, whose activities in Gallia Citerior are central to the speech. Significantly, privatum consilium is paired with publica auctoritas: certainly those currently acting privatis consiliis are acting correctly but Cicero stresses the vital importance of confirming and backing up these private actions with public authority as soon as possible.85 That the heroes of Cicero’s speech are obliged to act privato consilio denotes their lack of publicum consilium, which damns the senate’s inaction, rather than Decimus’s or Octavian’s unscrupulous and illegal behaviour, and must be remedied as swiftly as possible. The rhetoric recalls the sheathed SCU of the first speech against Catiline that brings shame on the inactive consuls (Cat. 1.2–4). By rhetorically revisiting his own consulship, Cicero seeks to couch a rather different debate in the same terms, although rather than claiming the authority of an pre-existing SCU as legitimacy for dubiously legal consular actions, he calls here upon the senate to support the waging of (civil) war by private persons on a Roman consul.86 It is not now the consuls that are failing the res publica (in fact there is a large, consul-shaped hole in the political equation), but rather the senate, which withholds its consilium and auctoritas from the res publica (or, more precisely, from the private initiatives of Decimus and Octavian) in this crisis.
At 3.12 the point is reiterated and elaborated. By barring Antony from Gaul (and that on his private initiative!), Decimus Brutus judges that Antony is not consul—correctly. The senate must therefore approve Decimus’s actions: ‘it is for us to see that we approve Decimus Brutus’s private initiative with our public authority (ut D. Bruti privatum consilium auctoritate publica comprobemus)’.87 The important elaboration is the claim that Decimus’s judgement (that Antony is not consul) outweighs the legal reality (that Antony still is consul, actually). ‘Cicero asserted that not the official status, but the deeds of the consul determined his assessment; by this logical construction he justified Antonius’ opponents and proved unconstitutional actions to be constitutional ones.’88 Since Decimus is correct (and apparently infallible), it follows that the senate must provide its stamp of approval to his judgement, a stamp that will thenceforth serve to confirm the correctness of Decimus’s judgement. The argument culminates at 3.14, where Cicero considers the consequences of a hypothetical and plainly ridiculous scenario in which Antony is legally the consul, in which case ‘the legions that deserted the consul deserve to be beaten to death, Caesar is a criminal, and Brutus a villain for having raised armies against a consul by private initiative (privato consilio)’.89 Hitherto the legal status of actions taken privato consilio has been elided; here Cicero contemplates the flagrant illegality of taking action against those in office in the absence of any form of public office or authority. If Antony is the consul, those acting against him privatis consiliis do so in defiance of law and contra consulem. But this is intended to be purely hypothetical within the context of the speech; and since Antony obviously cannot be considered a consul, given that honours are sought (by Cicero) for the soldiers who deserted him and their commanders who oppose him, the private initiatives of Decimus Brutus and Octavian remain a force for good in troubled times.
What appears as an argument in the Third Philippic (that voting senatorial auctoritas and honours to the soldiers and their commanders will legalize their technically illegal actions) becomes a basic premise in the Fifth and Tenth Philippics, by which time Cicero can claim that said auctoritas and honours had indeed been voted; he therefore stresses that the actions of Octavian and Brutus taken privato consilio have received the stamp of publica auctoritas as proof for his argument that the war against Antony is not a civil war between partes but one against a public enemy (hostis).90 The Fifth Philippic is situated at an important junction for Cicero; it was given on 1 January 43, when Antony and Dolabella vacated the consulship and were succeeded by A. Hirtius and C. Vibius Pansa.91 This relieved Cicero of one of his most pressing political difficulties; with Antony out of office, Cicero was no longer championing a private war against a Roman consul, although war had not yet been officially declared and Antony now held proconsular status. Indeed, a letter written as late as mid-April 43 reports Cicero and Sestius being obliged to point out just how embarrassing it would be for all those who had taken up arms against Antony if it were admitted that Antony was a proconsul.92 However, the first consularis called upon to speak was Pansa’s father-in-law, Q. Fufius Calenus, who proposed sending envoys to Antony, then besieging Decimus Brutus at Mutina. Cicero opposed this, arguing instead for the declaration of a tumultus93 and pushing for a war against Antony. Part of his strategy was to claim that earlier senatorial commendations for military actions meant a war was already in progress. At 5.3 he reminds the senate of the commendations given to ‘those commanders who had taken up arms against him [Antony] on their private initiative (qui contra illum bellum privato consilio suscepissent)’ and the veterans who had ‘preferred the freedom of the Roman People to his benefaction (illius beneficio libertatem populi Romani anteposuerunt)’. Why had the mutinying legions been commended, unless Antony was a hostis rather than a consul?94 This is spelled out in greater detail further in the speech:
Constituistis ut haec ad vos Kalendis Ianuariis referrentur quae referri videtis, de honoribus et praemiis bene de re publica meritorum et merentium. Quorum principem iudicastis eum qui fuit, C. Caesarem, qui M. Antoni impetus nefarios ab urbe in Galliam avertit, deinde milites veteranos qui primi Caesarem secuti sunt, tum illas caelestis divinasque legiones, Martiam et quartam comproba<s>tis quibus, cum consulem suum non modo reliquissent, sed bello etiam persequerentur, honores et praemia spopondistis; eodemque die D. Bruti, praestantissimi civis, edicto adlato atque proposito factum eius conlaudastis, quodque ille bellum privato consilio susceperat, id vos auctoritate publica comprobastis.
You determined that on the Kalends of January a discussion be initiated in the House (as you see, it is done) concerning honours and rewards for those who have deserved and are deserving well of the res publica. First among those you judged to be (and first he was) Gaius Caesar, who turned Marcus Antonius’s wicked onset away from the city to Gaul; next you gave your approval to the veteran soldiers who were the first to follow Caesar and after them to those wonderful and god-inspired legions, the Martian and the Fourth, to whom you pledged honours and rewards after they had not only abandoned their consul but were actually making war on him. And on the same day the edict of Decimus Brutus, a great citizen, arrived and was published; you praised what he had done and you endorsed by public authority his venturing upon war on his private initiative. (Cic. Phil. 5.28)
Whereas 5.3 merely points out that the senate had praised the actions privato consilio of Brutus, Octavian, and their soldiers against Antony and on behalf of the libertas of the Roman people, 5.28 separates off Decimus Brutus for special mention, so that Cicero can make the strongest case possible out of this conferral of auctoritas publica on a war waged privato consilio: it becomes ‘a full authorization of the private initiatives against Antonius’ and ‘implies that the Senate has committed itself to a certain policy and is required to follow that consistently’.95 It is noteworthy that Cicero here admits the legions were making war on their consul, given his previous efforts to argue that Antony was not a consul at all; this makes more damning the judgement of the legions against Antony. The theme is resumed in the Tenth Philippic, where the subject shifts to the other Brutus, then squatting with his and several other people’s armies in Macedon (originally allotted to Antony’s brother Gaius), Illyricum, and Greece.96 The speech deals with the issue of whether Marcus Brutus should be given formal command in these provinces. Pansa, the consul in residence at Rome, had summoned the senate and again called on Calenus to speak first; Calenus then spoke against bestowing imperium on Marcus Brutus. Cicero disagreed with the Tenth Philippic, in which the example of commendations for Decimus and Octavian serves as a significant precedent: the senators were now obliged to do the same for Marcus Brutus as they had already done at Cicero’s instigation for Decimus and Octavian, ‘whose private undertaking and action for the res publica was by your authority approved and commended’.97 Since the action privato consilio of Decimus Brutus and Octavian had been commended by the senate, it followed that the senate should commend the privatum consilium of Marcus Brutus likewise.
Throughout Cicero’s public speeches during this confused period, then, praise of actions taken privato consilio is consistently paired with a stress on the need to confirm such actions with publica auctoritas. Victory is optimistically declared in the Fourteenth Philippic: Octavian’s activities had justified the hopefulness with which the senate had bestowed imperium upon him.98 Cicero’s claim in its barest form was that actions taken privato consilio were justified on a level superior to strict legality, as long as they benefited the res publica. Because they were actions that benefited the res publica, they should be confirmed by publica auctoritas, i.e. by senatorial decree. Such decrees would thereafter show that the actions (and actors) had been beneficial to the res publica. This establishes a convenient self-reinforcing circle that enables Cicero to further his hawkish policy by brandishing such decrees as proof of his claims as soon as the senate has been persuaded to grant them. The repeated stress on the evils of the times results in rhetorical nuances quite unlike Augustus’s self-aggrandizing proclamation of his youthful privatum consilium at RG 1.1, which is not surprising, given the implications of Cicero’s rhetorical moves. Cicero’s delegitimation of a sitting consul and championing of action privato consilio ‘is not just a slight adaptation for immediate purposes, but attacks the basis of political life’, since ‘positive law is not replaced by hallowed and perpetual divine law, but by an arbitrarily defined law of nature according to the beliefs of individuals’.99 Cicero thereby turned the justification of political murder into a justification of civil war.
The political debate during 44–43 was heated. Cicero’s voice is as usual the loudest to have survived, but something of the broader conversation may be recovered from his speeches. Opposition from fellow senators pushed Cicero’s rhetorical exploitation of Scipio Nasica and the privatum consilium discourse in two opposing directions. This appears in the Eighth Philippic, where Cicero resorts to Nasica to argue the hawkish line against his dovelike fellow consularis Q. Fufius Calenus, and in the Eleventh Philippic, where Cicero is forced to disagree with a motion his own pro-privatum consilium stance might seem to justify. In the Eighth Philippic, Cicero cites Scipio Nasica explicitly in order to disagree with the more temperate proposals of a fellow senator. On 2 February 43, two of the three ambassadors sent to Antony returned (the third, Servius Sulpicius Rufus, having died on the way) and reported that Antony was disinclined to accept the senate’s conditions and had proposed some conditions of his own. During the following debate, Calenus seems to have proposed a second embassy and a push for peace, whereas Cicero wanted an official declaration of bellum against a hostis (Antony) and a moratorium on any further talk of embassies. The position eventually taken by the senate was that of Antony’s uncle, L. Julius Caesar, supported by the consul Pansa, who suggested the substitution of tumultus for Cicero’s bellum. Shortly afterwards a report from Hirtius arrived; this was read out in a meeting of the senate called by Pansa on 3 February, when Cicero delivered the Eighth Philippic in which he criticized the tumultus decision and claimed that Hirtius’s despatch amounted to a state of war.100
A substantial amount of the speech is directed at Calenus. Calenus, according to Cicero at 8.13, proclaims his peaceful intent and desire to preserve all citizens, but this desire is problematic because it lacks discrimination; the sentiment is honourable only if Calenus means good citizens (that is to say those useful and for the res publica). Wanting to preserve citizens whose actions make them hostes dissolves the difference between Calenus and such men: by arguing for peace on the wicked Antony’s behalf, Calenus too acts as a hostis. Calenus’s wise old father, Cicero continues, always used to give pride of place to Scipio Nasica, ‘holding that his courage (virtus), judgement (consilium), and greatness of spirit (magnitudo animi) had brought freedom to the res publica’.101 Judging by his current position, Calenus would not have approved of the great man as a citizen; Nasica, after all, had not wanted every citizen to be salvus.102 Ditto Opimius and those who took action against Gaius Gracchus; ditto Marius, Valerius, and those who took action against Saturninus and Glaucia; and ditto Cicero as consul taking action against Catiline, none of whom wished to preserve all citizens.103 In short,
Hoc interest, Calene, inter meam sententiam et tuam: ego nolo quemquam civem committere ut morte multandus sit; tu, etiam si commiserit, conservandum putas.
The difference between my view and yours, Calenus, is this: I wish that no citizen should act so that he must be punished with death; you think a citizen should be preserved even if he did so act. (Cic. Phil. 8.15)
Cicero positions himself as a realist and successor to a long line of realists: a citizen who acts as a hostis should be treated as one, as such citizens had been treated since the supreme exemplum of Scipio Nasica against Tiberius Gracchus, whom everyone (except Calenus) agrees saved the res publica. Furthermore, to protect and enable bad citizens is to be a bad citizen oneself. The only thing one can do with such bad citizens is to remove them from the body politic, as one removes noxious elements from the body.104 This is a smokescreen: enabling X (whether the senate or an individual magistrate or politician) to distinguish between good and bad citizens, and to say that bad citizens have forfeited their civic rights—‘badness’ being defined not by recourse to law courts and legal judgements, but through the application of lurid rhetoric—makes a mockery of citizenship, which was a matter of law rather than morals. All Roman citizens, whatever their morals, were theoretically subject to the same laws and in possession of the same basic rights; just as the Catilinarian ‘conspirators’ had not become hostes simply on Cicero’s say-so (and just as Catiline himself had not become a hostis until the senate, having confirmed that he had joined Manlius’s army, formally declared him so),105 Antony and his followers remained cives until formal processes were enacted against them. Cicero’s accusation, however, is that Calenus, by arguing for peace, enables bad citizens and therefore is one himself, which is tantamount to declaring that everyone who takes issue with Cicero’s hawkishness is a hostis. This is more than creative rhetoric; it reflects Cicero’s consistent refusal ‘to recognize the positions of his adversaries as genuine political positions’.106 Taken seriously, it implies a wish to curtail free senatorial debate (what debate can there be over the treatment of hostes?) and may also be considered a threat: if bad citizens can be considered hostes and eradicated without repercussion, what can anyone labelled a ‘bad citizen’ by Cicero expect?
Shutting down opposing viewpoints was one obvious way to exploit Nasica’s exemplum in a senatorial context, but not the only one; the discourse carried other implications and the risk of losing control of the debate was high. In the Eleventh Philippic, Cicero was obliged to challenge a motion for which his own arguments helped prepare the way. In 51, everyone had been nervous about Parthians but no one had wanted to see privati appointed by senatorial decree; the general consensus then had been against the appointment of a new Nasica to deal with an external enemy.107 By late February 43, however, things had changed: news had arrived of Dolabella’s seizure of Smyrna and execution of Gaius Trebonius, for which the senate (this time on Calenus’s motion) voted Dolabella a hostis. This required the prosecution of a war and the issue then became who should command it. Lucius Julius Caesar proposed an extraordinary command for Publius Servilius Isauricus, who had preceded Trebonius as governor of Asia (46–44), while someone else (probably Calenus) moved that the sitting consuls should draw lots for Asia and Syria, relieve Decimus Brutus at Mutina, and then head out east against Dolabella.108 Cicero disagreed with both proposals in the Eleventh Philippic and found himself obliged to argue against command being handed to a privatus, P. Servilius. In this speech, the prospect of military commands for private citizens therefore becomes a problem. At Phil. 11.17–18, Cicero lists particularly dangerous wars in which privati were almost, but not quite, granted extraordinary imperium. Such commands had been given before, in particular to Pompey; but those (says Cicero, temporarily forgetting the Pro Lege Manilia) were proposed by turbulent tribunes, apart from the one against Sertorius, which Pompey was assigned because the consuls refused it.109 Lucius Caesar’s proposal that the command against Dolabella should be assigned to the privatus P. Servilius might seem the logical extension of Cicero’s argument (once the rules are broken, why not break them again?) and certainly put Cicero in an awkward position, since he had proposed young Octavian’s extraordinary command.110 His method of escape is laudatory:
Ille enim mihi praesidium extraordinarium dederat: cum dico mihi, senatui dico populoque Romano. A quo praesidium res publica, ne cogitatum quidem, tantum haberet ut sine eo salva esse non posset, huic extraordinarium imperium non darem? Aut exercitus adimendus aut imperium dandum fuit. Quae est enim ratio aut qui potest fieri ut sine imperio teneatur exercitus? Non igitur, quod ereptum non est, id existimandum est datum. Eripuissetis C. Caesari, patres conscripti, imperium, nisi dedissetis. Milites veterani qui illius auctoritatem, imperium, nomen secuti pro re publica arma ceperant volebant sibi ab illo imperari; legio Martia et legio quarta ita se contulerant ad auctoritatem senatus et rei publicae dignitatem ut deposcerent imperatorem et ducem C. Caesarem. Imperium C. Caesari belli necessitas, fascis senatus dedit. Otioso vero et nihil agenti privato, obsecro te, L. Caesar—cum peritissimo homine mihi res est—quando imperium senatus dedit?
Yes, for he had given me extraordinary protection; and when I say ‘me’, I mean the Senate and the Roman people. When the res publica had received from a man such protection as had been not even imagined, such that without it there could be no safety, was I not to give him an extraordinary command? I had either to take away his army, or to give him the command; for what method is there, or can be, of holding an army together without a command? What is not wrested away should not therefore be regarded as given: you would have wrested from Gaius Caesar his command, Conscript Fathers, if you had not given it. The veteran soldiers who, attaching themselves to his authority, his command, and his name, had taken up arms on behalf of the res publica, wished to be commanded by him; the Martian legion and the Fourth upheld the authority of the res publica only to demand as their general and leader Gaius Caesar. His command the necessities of war gave Gaius Caesar, the Senate its fasces. But to a private person, unoccupied and doing nothing—I beg you to tell me, Lucius Caesar, for I have to deal with a man well-versed in precedents—when has the Senate ever given command? (Cic. Phil. 11.20)
Cicero was obliged to impose limits on the discourse of privatum consilium in order to prevent it from validating unwelcome motions. He had to dispose of the awkward precedent set by his own promotion of Decimus Brutus and Octavian, who becomes a very special case indeed. Because of his extraordinary services to the res publica, the senate bestowed the symbol of imperium on Octavian (that is, the fasces), but its reality had already been granted by necessitas belli, the necessity of war: all the senate did was to confirm this.111 For Cicero, this is a completely different case from arbitrarily bestowing imperium on a privatus who is at leisure and doing nothing. It bypasses the complicated matter of precisely what imperium entails (not just command, but legitimate command) and the constitutional mechanisms in place for assigning it to legitimately appointed commanders. Traditionally, military imperium seems to have required the ratification of a special lex curiata,112 which was passed by the comitia centuriata, by the late Republic an archaic remnant represented by thirty lictors;113 it seems to have been connected with auspicia publica, the right to consult the gods on behalf of the res publica, although the details are debated.114 Richardson argues that these leges curiatae were what conferred imperium, rather than mere election to the magistracy,115 although Appius Claudius in 54 claimed not to require a lex curiata to hold imperium in his Cilician province,116 so if Richardson is correct this point was rather losing force by the late Republic.117 Appius’s claim may have been tendentious, however, since the response to Cicero’s survey of opinions on the matter was that without a lex curiata Appius had no right to the province and the incumbent promagistrate need not give way.118 Cicero’s argument in the Philippics stands in striking contrast to his contribution to the former debate. By separating military command from its constitutional embroidery (fasces, senatorial decree, lex curiata), it becomes possible to possess imperium even in the absence of what was traditionally required for a military command to be legitimate. Cicero now takes the strong line of Appius and sweeps any nuances under the carpet. Indeed, he goes further: if the senate had not confirmed Octavian in his illegal command, according to Cicero, it would have removed from him imperium that he already possessed, despite his lack of office, despite his lack of publica auctoritas, despite his technical ineligibility for either of these. There is no middle ground between possessed imperium and its removal by senatorial non-confirmation in which Cicero’s young hero might stand revealed as an opportunistic warlord with an army of Caesar’s veterans illegally at his disposal.
Having disposed of the argument that the consuls should draw lots (11.21–5), the point about private action is picked up again at 11.26–7, where Cicero argues that the war should be given to a man already engaged, with full resources and a legitimate command, imperium legitimum, which is presumably to be distinguished from the mere imperium possessed by Octavian prior to his confirmatory senatorial decree. (One consequence of redefining imperium as synonymous with merely ordering soldiers around is that a new qualification is required to distinguish our warlords from their warlords, i.e. to specify a command’s legitimacy, a quality originally explicit in imperium alone.119) He proposes M. Brutus and/or C. Cassius Longinus as fulfilling these criteria. This is interesting because not only were Brutus and Cassius not meant to be occupying Macedon, Greece, and Asia (it seems likely that Brutus was assigned Crete and Cassius Cyrene120), but in general their actions in the east were taken privato consilio, a phrase that does not appear in this section of the speech, even though Cicero notes approvingly that Brutus will take action without waiting for senatorial authorization if he believes that pursuing Dolabella will serve the res publica.121 Cicero provides evidence for this assertion by pointing out that ‘both Brutus and Cassius have been already their own senate in many things’,122 which is a commendation rather than a criticism. Given the careful limitations Cicero now wishes to place on the privatum consilium discourse in order to argue against a command for the privatus Servilius Isauricus, he seems to be treading rather carefully around admitting that Brutus and Cassius have been doing just that in building up their forces in the east and dealing with Antony’s brother Gaius. Certainly their actions lack the stamp of positive law:
Necesse est enim in tanta conversione et perturbatione omnium rerum temporibus potius parere quam moribus. Nec enim nunc primum aut Brutus aut Cassius salutem libertatemque patriae legem sanctissimam et morem optimum iudicavit.
In such great and complete upheaval and confusion one must be guided by the circumstances, not by standard procedures. This will not be the first time that either Brutus or Cassius has judged the safety and freedom of the fatherland as the most sacred law and the best possible procedure. (Cic. Phil. 11.27)
Brutus went to someone else’s province, rather than Crete; once in residence in Macedon, he raised new legions, seduced Dolabella’s cavalry, and judged Dolabella a hostis by his personal decision, sua sententia, even before Trebonius had reached his sticky end—for otherwise, ‘what right had he to draw cavalry away from a consul?’123 The case is put even more starkly for Cassius, who had set out from Italy intending to keep Dolabella out of Syria:
Qua lege, quo iure? Eo quod Iuppiter ipse sanxit, ut omnia quae rei publicae salutaria essent legitima et iusta haberentur. Est enim lex nihil aliud nisi recta et a numine deorum tracta ratio, imperans honesta, prohibens contraria. Huic igitur legi paruit Cassius, cum est in Syriam profectus, alienum provinciam, si homines legibus scriptis uterentur, eis vero oppressis suam lege naturae.
Under what law, by what right? By the right which Jupiter himself established, that all things beneficial to the res publica be held lawful and proper. Law is nothing but a code of right conduct and derived from the will of the gods, ordaining what is good, forbidding the contrary. This law, then, Cassius obeyed when he went to Syria; another man’s province, if people were following written laws, but such laws having been overthrown, his by the law of nature. (Cic. Phil. 11.28)
Cassius’s actions against Dolabella on behalf of the res publica, Cicero concludes, should be strengthened by the senate’s auctoritas.124 It would be inconvenient to admit now that his heroes acted privato consilio (although they did); he appeals instead to the lex naturae that stands higher in the grand scheme of things than plain old lex.125 His point is practical: at this point a Nasica without a loyal mob is no use at all.126
When Cicero cheers on the spontaneous action of his various heroes, this means only that they are acting without the senate’s approval, since behind the scenes he was encouraging them to break the law at every step of the way. Consider Fam. 11.7.2, a letter written by Cicero to Decimus Brutus in mid-December 44 and virtually contemporaneous with Phil. 3:
Caput autem est hoc, quod te diligentissime percipere et meminisse volumus, ut ne in libertate et salute populi Romani conservanda auctoritatem senatus exspectes nondum liberi, ne et tuum factum condemnes (nullo enim publico consilio rem publicam liberavisti, quo etiam est res illa maior et clarior) et adulescentem, vel puerum potius, Caesarem iudices temere fecisse qui tantam causam publicam privato consilio susceperit, denique homines rusticos sed fortissimos viros civisque optimos dementis fuisse iudices, primum milites veteranos, commilitones tuos, deinde legionem Martiam, legionem quartam, quae suum consulem hostem iudicaverunt seque ad salutem rei publicae defendendam contulerunt.
The main point, which we want you thoroughly to grasp and remember in the future, is that in safeguarding the liberty and welfare of the Roman people you must not wait to be authorized by a senate which is not yet free. If you did, you would be condemning your own act, for you did not liberate the res publica by any public authority—a fact which makes the exploit all the greater and more glorious. You would also be implying that the young man, or rather boy, Caesar had acted inconsiderately in taking upon himself so weighty a public cause at his private initiative. Further, you would be implying that the soldiers, country folk but brave men and loyal citizens, had taken leave of their senses—that is to say firstly, the veterans, your own comrades in arms, and secondly the Martian and Fourth legions, which branded their consul as a public enemy and rallied to the defence of the res publica. (Cic. Fam. 11.7.2)
While arguing in the senate that the privatum consilium of Decimus Brutus and Octavian should be formally approved, Cicero advises in a semi-private letter that Brutus need not wait for his privatum consilium to be authorized by the senate. In fact, that is the last thing he should do, since the senate is not yet liber and to wait would be to highlight the weakness of his own case: the illegality of the assassination of Caesar, the equally privatum consilium of the young Caesar Octavianus, and the soldiers whose desertion, according to Cicero’s tendentious logic, branded Antony as a hostis. Decimus should do anything necessary to preserve the res publica regardless of legality; approval can be gained once the senate and res publica are again free to bestow it appropriately. After all, as Cicero goes on to say, ‘the will of the senate should be accepted in lieu of authority when its authority is trammelled by fear’.127
Cicero’s advice offers a template for any politician who wishes to ignore anything the senate says: it was not the true will of the senate, which was not free to express its own opinions. Further, he undermines his own model of what the res publica should be by effectively removing the senate as a source of auctoritas or public legitimacy independent of the incumbent magistrates.128 Instead, he puts himself forward as the mouthpiece, if not ventriloquist, of the voluntas senatus. Decimus should listen not to what the senate decrees but rather to what Cicero believes the senate would decree, if only it dared. Such behaviour is high-handed enough to illuminate why people might talk of Cicero as a potential tyrant.129 Moreover, the fact that Decimus was acting privato consilio is flagged up in the letter as something that makes his preservation of the res publica more illustrious, rather than a necessary evil in troubled times. Decimus Brutus, remarkably, is commended for acting without the backing of a senatorial decree (publicum consilium), presumably because in doing so he bucked the general and deplorable trend towards dilatoriness. Shackleton Bailey remarks on the parallels between this passage and RG 1.1 without suggesting any significance;130 the precedent might be considered to have relevance for Octavian, however, given the importance placed on the ‘restoration’ of the res publica and the senatorial settlements after Antony’s eventual defeat. Nor was Decimus the only person to receive such encouragement. At Fam. 12.7.2 Cicero reports to Cassius that he had been telling the senate and contiones that Cassius would not delay after receiving authorization; he hopes Cassius will go right ahead. Similarly at Fam. 10.16.2 Plancus is exhorted to be his own senate. Cicero was doing his bit to make sure that all this action privato consilio went ahead: at ad Brut. 1.15.6, he claims that the young Caesar’s actions (thanks to which everyone is still alive, if they care to admit it) were taken not privato consilio but rather ex fonte consiliorum meorum. Cicero himself is (or claims to be) the ultimate source of this private war.
The constitutional danger of such an approach is highlighted by Marcus Brutus in a letter written c.7 May 43 from Dyrrhachium. Brutus takes issue with Cicero declaring Antony and friends hostes:
statuo nihil nisi hoc, senatus aut populi Romani iudicium esse de iis civibus qui pugnantes non interierint. ‘At hoc ipsum’ inquies ‘inique facis qui hostilis animi in rem publicam homines civis appelles.’ Immo iustissime; quod enim nondum senatus censuit nec populus Romanus iussit, id adroganter non praeiudico neque revoco ad arbitrium meum.
my only conclusion is that the senate or the people of Rome must pass judgement on those citizens who have not died fighting. You will say that my calling men hostile to the res publica ‘citizens’ is an impropriety in itself. On the contrary, it is quite proper. What the senate has not yet decreed, nor the Roman people ordered, I do not take it upon myself to prejudge, I do not make myself the arbiter. (Cic. ad Brut. 1.4.2)
Brutus pinpoints and implicitly critiques Cicero’s underlying philosophy. By transplanting the term hostis from the legal realm into the moral one through the claim that bad citizens are hostes and no citizens at all, Cicero removes the judgement from the traditional sources of authority and legality (the senate and people) and takes it upon himself to decide who may and who may not be called a citizen. Brutus’s criticism holds up a similar mirror to the privatum consilium argument, through which actions are justified not by legality (strict or otherwise) but instead by appeal to the virtus of the agent as judged against the needs of the res publica.131 It is the virtus of Decimus Brutus, Caesar Octavianus, Marcus Brutus, Gaius Cassius, and their armies that justifies their illegal privatum consilium on behalf of the res publica; and it is Cicero who takes it upon himself, as an infallible arbiter of morals and the morality of actions, to proclaim their all-important virtus. Although Cicero proposed to (re)construct a res publica founded on senatorial auctoritas, he had few qualms about subverting his own ideals when the senate as it actually existed proved slow or unwilling to see things his way. It is reasonable to excuse this, and perhaps not very hard: ‘extenuating circumstances are easy to find; the situation was extreme and required extreme measures; success or failure would, in the end, determine right and wrong’.132 The eventual appropriation of Cicero’s rhetoric by Augustus at RG 1.1, however, indicates how such subversion and innovation in extreme situations might be used to justify very different political philosophies once the dust had settled.