“Perduellio is not a court offense, Labienus. It must be tried in the Centuriate Assembly,” said Caesar.
“You’d never get it there either, even with Celer as urban praetor.”
“I disagree. There is a way to get it before the Centuries. We begin with a trial process far older than the Republic, yet no less Roman law than any law of the Republic. It’s all in the ancient documents, my friend. Even Cicero will not be able to contest the legality of what we do. He’ll be able to counter it by sending it to the Centuries, is all.”
“Enlighten me, Caesar, I’m no student of ancient law,” said Celer, beginning to smile.
“You are renowned as an urban praetor who has scrupulously adhered to his edicts,” said Caesar, choosing to keep his audience on tenterhooks a little longer. “One of your edicts says that you will agree to try any man if his accusator acts within the law. At dawn on the morrow Titus Labienus will appear at your tribunal and demand that Gaius Rabirius be tried perduellionis for the murders of Saturninus and Quintus Labienus in the form outlined during the reign of King Tullus Hostilius. You will inspect his case, and—how perspicacious of you!—you will just happen to have a copy of my dissertation on ancient procedures for high treason under your elbow. This will confirm that Labienus’s application to charge Rabirius perduellionis for these two murders is within the letter of the law.”
His audience sat fascinated; Caesar drained what was left of his water and vinegar, now tepid, and continued.
“The procedure for the only trial which has come down to us during the reign of Tullus Hostilius—that of Horatius for the murder of his sister—calls for a hearing before two judges only. Now there are only four men in today’s Rome who qualify as judges because they come from families installed among the Fathers at the time the trial took place. I am one and you are another, Lucius. The third is Catilina, officially a public enemy. And the fourth is Fabius Sanga, at present well on his way to the lands of the Allobroges in the company of his clients. You, Celer, will therefore appoint me and Lucius as the judges, and direct that the trial take place immediately on the Campus Martius.”
“Are you sure about your facts?’’ asked Celer, brow wrinkling. ‘ The Valerii are attested at that time, and certainly the Servilii and Quinctilii came from Alba Longa after its destruction, just as the Julii did.”
Lucius Caesar chose to answer. “The trial of Horatius took place well before Alba Longa was sacked, Celer, which disqualifies the Servilii and the Quinctilii. The Julii emigrated to Rome when Numa Pompilius was still on the throne. They were banished from Alba by Cluilius, who usurped the Alban kingship from them. As for the Valerii”—Lucius Caesar shrugged—”they were Rome’s military priests, which disqualifies them too.”
“I stand corrected,” chuckled Celer, vastly diverted, “but can only plead that I am, after all, a mere Caecilius!”
“Sometimes,” said Caesar, acknowledging this hit, “it pays to choose your ancestors, Quintus. Caesar’s luck that no one from Cicero to Cato will be able to dispute your choice of judges.”
“It will provoke a furor,” said Labienus with satisfaction.
“That it will, Titus.”
“And Rabirius will follow Horatius’s example by appealing.”
“Of course. But first we’ll put on a wonderful show with all the ancient trappings on full display—the cross fashioned out of an unlucky tree—the forked stake for the flogging—three lictors bearing the rods and axes to represent the original three Roman tribes—the veil for Rabirius’s head and the ritual bindings for his wrists—superb theater! Spinther will die of envy.”
“But,” said Labienus, reverting to gloom, “they’ll keep on finding excuses to delay Rabirius’s appeal in the Centuries until public resentment dies down. Rabirius’s case won’t be heard while anyone remembers the fate of Lentulus Sura and the others.”
“They can’t do that,” said Caesar. “The ancient law prevails, so an appeal has to be held immediately, just as Horatius’s appeal was held immediately.”
“I take it that we damn Rabirius,” said Lucius Caesar, “but I’m out of my depth, cousin. What’s the point?”
“First of all, our trial is very different from a modern trial as set up by Glaucia. In modern eyes it will seem a farce. The judges decide what evidence they want to hear, and they also decide when they’ve heard enough. Which we will after Labienus has presented his case to us. We will decline to allow the accused to present any evidence in his own defense. It is vital that justice be seen not to be done! For what justice did those five men executed yesterday receive?”
“And secondly?” asked Lucius Caesar.
“Secondly, the appeal goes on straightaway, which means the Centuries will still be boiling. And Cicero is going to panic. If the Centuries damn Rabirius, his own neck is at risk. Cicero isn’t stupid, you know, just a trifle obtuse when his conceit and his certainty that he’s right get the better of his judgement. The moment he hears what we’re doing, he’ll understand exactly why we’re doing it.”
“In which case,” said Celer, “if he has any sense he’ll go straight to the Popular Assembly and procure a law invalidating the ancient procedure.”
“Yes, I believe that’s how he’ll approach it.” Caesar looked at Labienus. “I noted that Ampius and Rullus voted with us in Concord yesterday. Do you think they’d co-operate with us? I need a veto in the Popular Assembly, but you’ll be busy on the Campus Martius with Rabirius. Would Ampius or Rullus be prepared to exercise his veto on our behalf?”
“Ampius certainly, because he’s tied to me and we’re both tied to Pompeius Magnus. But I think Rullus would co-operate too. He’d do anything he fancied might make Cicero and Cato suffer. He blames them for the death of his land bill.”
“Rullus then, with Ampius in support. Cicero will ask the Popular Assembly for a lex rogata plus quam perfecta so that he can legally punish us for instituting the ancient procedure. I add that he’ll have to invoke his precious Senatus Consultum Ultimum to hurry it into law at once—thereby focusing public attention on the ultimate decree just when he’ll be wishing it burned and forgotten. Whereupon Rullus and Ampius will interpose their vetoes. After which I want Rullus to take Cicero to one side and propose a compromise. Our senior consul is such a timid soul that he’ll grasp at any proposal likely to avoid violence in the Forum—provided it allows him to get half of what he’s after.”
“You ought to hear Magnus on the subject of Cicero during the Italian War,” said Labienus contemptuously. “Our heroic senior consul fainted at the sight of a sword.”
“What’s Rullus’s deal to be?” asked Lucius Caesar, frowning at Labienus, whom he deemed a necessary evil.
“First, that the law Cicero procures not render us liable for prosecution later. Secondly, that Rabirius’s appeal to the Centuries take place the following day so that Labienus can continue as prosecutor while still a tribune of the plebs. Thirdly, that the appeal be conducted according to the rules of Glaucia. Fourthly, that the death sentence be replaced by exile and a fine.” Caesar sighed luxuriously. “And fifthly, that I am appointed the appeal judge in the Centuries, with Celer as my personal custos.”
Celer burst out laughing. “Jupiter, Caesar, that’s clever!”
“Why bother to change the sentence?” asked Labienus, still disposed to be gloomy. “The Centuries haven’t convicted a man on a charge of perduellio since Romulus was a boy.”
“You’re unduly pessimistic, Titus.” Caesar folded his hands loosely together on the desk top. “What we have to do is fan the feelings already simmering inside most of those who watched the Senate deny a Roman’s inalienable right to trial. This is one issue wherein the First and Second Classes will not consent to follow the example of the Senate, even among the ranks of the Eighteen. The Senatus Consultum Ultimum gives the Senate too much power, and there’s not a knight or a moderately affluent man out there who doesn’t understand that. It’s been war between the Orders sin
ce the Brothers Gracchi. Rabirius isn’t at all liked, he’s an old villain. Therefore his fate won’t matter nearly as much to the Centuriate voters as their own threatened right to trial. I think there’s a very good chance indeed that the Centuries will choose to damn Gaius Rabirius.”
“And send him into exile,” said Celer a little unhappily. “I know he’s an old villain, Caesar, but he is old. Exile would kill him.”
“Not if the verdict is never delivered,” said Caesar.
“How can it not be delivered?”
“That rests entirely with you, Celer,” Caesar said, smiling wickedly. “As urban praetor, you’re in charge of protocol for meetings on the Campus Martius. Including keeping an eye on the red flag you have to hoist atop the Janiculum when the Centuries are outside the walls. Just in case invaders are sighted.”
Celer began to laugh again. “Caesar, no!”
“My dear fellow, we’re under a Senatus Consultum Ultimum because Catilina is in Etruria with an army! The wretched decree wouldn’t exist if Catilina didn’t have an army, and five men would be alive today. Under more normal conditions no one even bothers to look at the Janiculum, least of all the urban praetor—he’s quite busy down at ground level, not up on a tribunal. But with Catilina and an army expected to descend on Rome any day, the moment that red flag comes down panic will ensue. The Centuries will abandon the vote and flee home to arm against the invaders, just as in the days of the Etrusci and the Volsci. I suggest,” Caesar went on demurely, “that you have someone on the Janiculum ready to lower the red flag, and arrange some sort of signal system—a fire, perhaps, if the sun isn’t far enough west, or a flashing mirror if it is.”
“All very well,” said Lucius Caesar, “but what will such a tortuous sequence of events accomplish if Rabirius is not to be convicted and the Senatus Consultum Ultimum continues to be in effect until Catilina and his army are defeated? What lesson do you really think to teach Cicero? Cato is a lost cause, he’s too thick to learn from anything.”
“About Cato you’re right, Lucius. But Cicero is different. As I’ve already said, he’s a timid soul. At present he’s carried away by the floodwaters of success. He wanted a crisis during his term as consul, and he got one. It hasn’t yet occurred to him that there’s any possibility of personal disaster involved. But if we drive it home to him that the Centuries would have convicted Rabirius, he will understand the message, believe me.”
“But what exactly is the message, Gaius?”
“That no man who acts under the shelter of a Senatus Consultum Ultimum is safe from retribution at some time in the future. That no senior consul can hoodwink a body of men as important as the Senate of Rome into sanctioning the execution of Roman citizens without a trial, let alone an appeal. Cicero will get the message, Lucius. Every man in the Centuries who votes to damn Rabirius will be telling Cicero that he and the Senate are not the arbiters of a Roman’s fate. They will also be telling him that in executing Lentulus Sura and the others without trial, he has lost their confidence as well as their admiration. And that last, to Cicero, will be worse by far than any other aspect of the whole business,” said Caesar.
“He’ll hate you for this!” cried Celer.
Up went both fair brows; Caesar looked haughty. “What can that be to me?” he asked.
*
The praetor Lucius Roscius Otho had been a tribune of the plebs in the service of Catulus and the boni, and had earned the dislike of nearly all Roman men by returning the fourteen rows of theater seats just behind the senatorial seats to the knights of the Eighteen. But his affection had been given to Cicero on the day when a theater full of people had whistled and booed him viciously for reserving those delectable seats at law, and Cicero had talked the angry crowd of lesser beings around.
Praetor responsible for foreign litigation, Otho was in the lower Forum when he saw that savage-looking fellow Titus Labienus stride up to Metellus Celer’s tribunal and start talking very insistently. Curiosity piqued, Otho strolled over in time to hear the last part of Labienus’s demand that Gaius Rabirius be tried for high treason according to the law during the reign of King Tullus Hostilius. When Celer produced Caesar’s fat dissertation on ancient laws and started checking the validity of Labienus’s contentions, Otho decided it was time he repaid a part of his debt to Cicero by informing him what was going on.
As it happened Cicero had slept late, for on the night after the execution of the conspirators he had not been able to sleep at all; then yesterday’s day had been stuffed full of people calling round to compliment him, a kind of excitement more conducive to sleep by far.
Thus he had not emerged from his sleeping cubicle when Otho came banging on his front door, though he came quickly enough into the atrium when he heard the racket—such a small house!
“Otho, my dear fellow, I’m so sorry!” Cicero cried, beaming at the praetor while he ran his hands through his tousled hair to smooth it. “Blame the events of the past few days—last night I finally had a really good rest.” His bubbling sense of well-being began to fade a little when he took in Otho’s perturbed expression. “Is Catilina on his way? Has there been a battle? Have our armies been defeated?”
“No, no, nothing to do with Catilina,” said Otho, shaking his head. “It’s Titus Labienus.”
“What about Titus Labienus?’’
“He’s down in the Forum at Metellus Celer’s tribunal asking that he be allowed to prosecute old Gaius Rabirius perduellionis for the murders of Saturninus and Quintus Labienus.”
“He’s what!”
Otho repeated his statement.
Cicero’s mouth went dry; he could feel the blood drain from his face, feel his heart begin to trip and stammer while his chest emptied of air. One hand went out, grasped Otho by the arm. “I don’t believe it!”
“You had better, because it’s happening, and Metellus Celer was looking as if he was going to approve the case. I wish I could say I understood what exactly was going on, but I didn’t. Labienus kept quoting King Tullus Hostilius, something about an ancient trial process, and Metellus Celer got busy poring over a huge scroll he said was something to do with ancient laws. I don’t quite know why my left thumb started to prick, but it did. That’s terrible trouble coming! I thought I’d better run and tell you at once.”
But he ended talking to vacant space; Cicero had vanished shouting for his valet. Within no time he was back, clad in all the majesty of his purple-bordered toga.
“Did you see my lictors outside?”
“They’re there, playing dice.”
“Then we’re off.”
Normally Cicero liked to amble behind his twelve white-clad lictors; it enabled everybody to see him properly and admire. But this morning his escort was exhorted to move at the double, not merely once, but every time it slackened its pace. The distance to the lower Forum was not great, but to Cicero it seemed as far as Rome to Capua. He itched to abandon majesty and run, though he preserved enough sense not to do so. Well he remembered that it was he who had introduced the name Gaius Rabirius into his speech opening the debate in Concord; he also remembered that he had done so in order to illustrate any individual’s immunity from the consequences of any actions performed while a Senatus Consultum Ultimum was in force. Now here was Titus Labienus—Caesar’s tame tribune of the plebs, not Pompey’s!—applying to prosecute Gaius Rabirius for the murders of Quintus Labienus and Saturninus! But not on a charge of murder. On an antique charge of perduellio, the same perduellio Caesar had described during his speech in Concord.
By the time Cicero’s entourage streamed hastily across the space between Castor’s temple and the urban praetor’s tribunal, a small crowd had gathered about the tribunal to listen avidly. Not that anything important was being discussed as Cicero arrived; Labienus and Metellus Celer were speaking of some woman or other.
“What is it? What’s going on?” demanded Cicero breathlessly.
Celer raised his brows in surprise. “The norma
l business of this tribunal, senior consul.”
“Which is?”
“To adjudicate in civil disputes and decide whether criminal charges merit trial,” said Celer, emphasizing the word “trial.”
Cicero flushed. “Don’t play games with me!” he said nastily. “I want to know what’s going on!”
“My dear Cicero,” drawled Celer, “I can assure you that you are the last person in the world I’d choose to play games with.”
“WHAT IS GOING ON?”
“The good tribune of the plebs Titus Labienus here has brought a charge of perduellio against Gaius Rabirius for the murders of his uncle Quintus Labienus and Lucius Appuleius Saturninus thirty-seven years ago. He wishes to prosecute under the procedure in force during the reign of King Tullus Hostilius, and after perusing the relevant documents, I have decided according to my own edicts published at the beginning of my term as urban praetor that Gaius Rabirius may be so tried,” said Celer without drawing a breath. “At the moment we are waiting for Gaius Rabirius to appear before me. As soon as he comes I will charge him and appoint the judges for his trial, which I will set in motion immediately.”
“This is ridiculous! You can’t!”
“Nothing in the relevant documents or my own edicts says I can’t, Marcus Cicero.”
“This is aimed at me!”
Celer’s face registered stagy astonishment. “What, Cicero, were you on the Curia Hostilia roof pelting tiles thirty-seven years ago?”
“Will you stop being deliberately obtuse, Celer? You’re acting as Caesar’s puppet, and I had thought better of you than that you could be bought by the likes of Caesar!”
“Senior consul, if we had a law on our tablets which forbade baseless allegations under pain of a large fine, you’d be paying up right now!” said Celer fiercely. “I am urban praetor of the Senate and People of Rome, and I will do my job! Which is exactly what I was trying to do until you barged in telling me how to do my job!” He turned to one of his four remaining lictors, listening to this exchange with grins on their faces because they esteemed Celer and enjoyed working for him.
Masters of Rome Boxset: First Man in Rome, the Grass Crown, Fortune's Favourites, Caesar's Women, Caesar Page 413
