id="Footnote_11_11"/>[11] See on 1. §19.

NOTE A.

The above sketch follows in the main the traditional account of the Catilinarian conspiracy, which has been generally accepted by later historians. It is fair to add that some writers have adopted a different view, which may be thus briefly stated. They believe that historians have been mistaken in regarding Catilina as the leader of a mere band of desperadoes; that his so-called 'conspiracy' was really an act of revolt against the authority of the Senate on the part of the whole democratic party, of which he was the recognized leader (a similar movement, in fact, to those which had been organized by Gaius Gracchus in 123 b.c., by Saturninus in 100 b.c., by M. Lepidus in 78 b.c., and others); that he was driven to use force by the opposition of the Optimates to his schemes, and that Cicero, as the spokesman of the latter, purposely misrepresented him as the leader of an anarchist conspiracy, whose sole object was confiscation and plunder.

The received account is derived almost entirely from two sources; the speeches and writings of Cicero; and the 'History of the Catilinarian Conspiracy' by Sallust, written probably about 44 b.c. The former is undoubtedly a prejudiced witness, and statements resting on his authority alone must be received with caution. Sallust, however, was a partisan of Caesar, and a member of the democratic party. He had consequently no motive to represent the character of Catilina as worse than it really was, especially as his patron Caesar was commonly supposed to have been implicated in the first conspiracy (66 b.c.)[14], if not the second also. He certainly hints that the worst charges against Catilina, which he repeats, rested on very doubtful authority; but as to the main features of the conspiracy, he confirms Cicero on every point; and this is a strong argument in favour of the received account. The question is too large to be fully discussed within the limits of this book; those who wish to see the contrary view maintained with great spirit and ability should read the very interesting article in 'Catiline, Clodius and Tiberius,' by Professor E. S. Beesly[15].

NOTE B.

On the Legality of the Execution.

On account of his action in this matter, Cicero was afterwards attacked by Clodius, who, as tribune in 58 b.c., carried a law enacting that 'any one who had put Roman citizens to death without trial should be forbidden fire and water.' As Clodius was supported by Caesar and Pompeius, Cicero did not make any resistance, but retired temporarily into exile.

Had his action been really illegal or not? The Valerian, Porcian, and Sempronian laws certainly enacted that no citizen should be put to death except by vote of the people, after a formal trial before them. Cicero justifies his apparent violation of these laws on two grounds—

(1) That the conspirators, having become hostes by their own act, and having been recognised as such by resolution of the Senate, had ipso facto forfeited the rights of citizens (1. §28; 4. §10).

As regards this, we may remark that, though the conduct of the conspirators might justify the adoption of active measures against them, it could not legally be held to deprive them, when arrested, of the benefit of trial. For the question, whether they had acted as hostes or not, would be exactly the point which the law-court would have to decide. The argument is, in fact, from the legal point of view, a petitio principii.

(2) That the 'ultimum decretum' of the Senate (see Introduction, page 11) invested the Consul with dictatorial powers, including the right of summary execution. (1. §4 habemus senatus consultum, etc.)

In support of this he recalls the fact that C. Gracchus (121) and Saturninus (100) had been killed by the Consuls Opimius and Marius respectively, acting under a similar decree. It is certain that a party in the Senate claimed the right of thus arming the Consul with exceptional powers in cases of emergency, and Sallust (Cat. 29) distinctly says that they possessed it. On the other hand, the right had never been admitted by the popular leaders, who had, as a protest, brought Opimius to trial for the murder of C. Gracchus, though they had not secured a conviction. They had, moreover, during this year (63) accused of murder one C. Rabirius, who had been concerned in the death of Saturninus thirty-seven years before. The trial was avowedly instituted for the purpose of contesting the right of the Senate to invest the Consul with dictatorial powers. Cicero, who defended Rabirius, claimed that the 'ultimum decretum' acquitted his client of all liability. But it seems probable that he would have been condemned, had not his supporters found means to prevent the trial from coming to a decision.

It is on this point that the question of legality or illegality really turns, and as the Romans were not themselves agreed upon it, we