The last time the SCU had been invoked it was to sanction a mass slaughter of an advocate of reform, the tribune Saturninus, and his followers. The oligarchs were aware that the very name of the murdered tribune could inflame the masses. Saturninus and his followers were awaiting trial when a group of aristocrats climbed onto the roof of the building in which they were held, stripped off the tiles, and stoned all of them to death. So, Caesar and friend of his, Labienus, who was nephew to one of those slain with Saturninus, came up with the plan to charge an elderly, depraved senator, Rabirius, who had been involved in the affair, with murder. In doing so, they were bringing up in a court of law the issues of the inviolability of tribunes and of the right of appeal to the people in capital cases.
Realizing that it was problematical to argue for the rights of appeal via the people’s tribunes, Caesar devised a plan: to draw attention to the antiquity of the constitutional guarantees involved, and to prevent the optimates from monopolizing “tradition” to their own uses, Caesar and Labienus revived the ancient procedure instituted six centuries earlier by King Tullus in the trial of Horatius who had murdered his sister.
According to the ancient legend, When the victorious Horatius returned carrying the spoils of victory, his sister cried out in grief because she realized her brother had killed the man to whom she had been engaged. Then Horatius killed his sister, proclaiming, “So perish any Roman woman who mourns the enemy.” For the murder, he was condemned to death but, with the permission of King Tullus Hostilius, Horatius appealed to the assembly of the people. Persuaded by his father’s arguments that he was a hero who should not die childless, the people acquitted Horatius. So there was a second line of descent of the right of appeal to the people in capital cases and it was this principle that Caesar intended to dramatize.
A praetor substituted for the authority of the king and appointed as the two judges of the case Caesar’s clansman, Lucius Caesar and Caesar himself. They followed the ancient procedure to the letter, setting up a cross on the Campus Martius and preparing for the scourging of Rabirius before crucifying him. Caesar pronounced the ancient formula: “Gaius Rabirius, I adjudge you a traitor; go, lictor, bind his hands, veil his head, hang him to the tree of shame.”
According to the legend, as the lictor approached Horatius with the rope to bind him, he shouted “Provoco!” (“I appeal!”) He was then tried before the assembly of the people and was acquitted.
So, as Caesar’s lictor approached Rabirius, he naturally cried “Provoco!” This meant that there would be a new trial before the assembled people. Do you see the brilliance of the maneuver? Caesar is putting the government in the position of having to argue in court FOR the constitutional rights of Rabirius who, with his gang of senatorial thugs, denied those rights to Saturninus and his followers. Not only that, but by utilizing the Saturninus’ case, the forum was filled with elderly former followers along with members of the recently dissolved collegia and all the disgruntled citizens who were assembling in hopes of having a chance to vent their fury at the nobles.
For the trial, the senatorial clique assigned their best orators, the peacockish Hortensius, and Cicero. The rules were that there would be a half-hour limit on the speeches. Cicero knew that he couldn’t weave a spell of obfuscation in half an hour and, since he could not come up with a single virtue in the defendant to use in his defense, he used the “subversion” ploy again. He declared that the trial was nothing less than “an attempt to abolish from the constitution that chief support of our imperial dignity handed down to us by our forefathers [the SCU] to make the authority of the Senate, the power of the consuls, the concerted action of good citizens impotent henceforward to combat the curse and bane of our country, which in the process of overturning these institutions, has prompted this attack upon my client.” He then encouraged all good citizens to “block all approaches to revolution.”
To defend Rabirius against execution, Cicero had to support the right of provocation which had been renewed in a bill passed after the extrajudicial murder of Tiberius Gracchus, another tribune. Cicero said “Gaius Gracchus carried a law forbidding sentence to be passed on the life of a Roman citizen without your consent.” Cicero became so rattled at having to defend the very law that he sought to overturn that he lost his cool and snapped: “Would that my case gave me the chance to proclaim that my client’s was the hand that struck down that public enemy, Saturninus!” It was very bad timing to shift from praising the law of civilized justice to praising an extrajudicial murder. Members of the audience booed.
But Cicero was not one to be nonplussed in such a situation and he regained his balance quickly employing another tactic of demagoguery: pretending that those who were silent were approving of his words. He declaimed:
The outcry I hear does not perturb me… it consoles me, for it shows that there are some uninstructed citizens but not many.
He then made it clear that his words were for the “instructed” or the “good people”, and began to attack Labienus for displaying a portrait of the murdered Saturninus in the court. He reminded the audience that, after his murder, Saturninus had been branded a “worthless citizen unfit to remain in the citizen body” and anyone who, “by keeping the portrait of a man whose sedition made him a public enemy, either did honor to his death or by exciting the pity of the uninstructed caused them to regret him or showed an inclination on his own part to imitate such villainy.” The implication was obvious: Labienus was guilty by association.
Then Cicero got down to the point: he, too, would be in favor of another massacre of just this kind if presented with the situation with, however, some significant twists. He neglected to mention that Saturninus had been granted the right of a fair trial, but it was the small clique in the senate that had incited their followers to climb on the roof and stone those who were trusting in the protection of the consul, Marius. In short, Cicero was re-writing history, another tactic of the demagogue.
At this moment, when Cicero was declaring himself ready to extra-judicially murder citizens, the attention of all was attracted to the lowering of the flag on top of the Janiculum hill which, according to tradition, was the signal of the approach of an enemy and all public business must cease in order to prepare to defend. This signal was the climax of the drama engineered by Caesar and his friends: the praetor Metellus Celer, Pompey’s brother-in-law who hated Cicero, had caused the adjournment of the trial by this ancient method. Caesar and Labienus had gotten what they wanted: they had induced Cicero to reveal himself, to acknowledge the law of provocation and his own intention to violate it. Cicero had also revealed that he was willing to put to death not just those who were accused of armed rebellion, but also those who advocated reforms and to pronounce as guilty those who merely possessed images of a popular hero. The message was clear: Cicero was the enemy.
To keep Cicero busy and off balance, Caesar and his friends filed more lawsuits that induced the egomaniacal consul to make more statements and claims that would damn him in the eyes of Pompey whose favor he had always been anxious to curry. Caesar, for his part, was sure to prosecute Pompey’s foes. Meanwhile, the tribunes were busy promoting reform legislation of various kinds, all of which they expected to be refused or vetoed, but the point was to make the chasm between the optimate clique and the majority of the Roman peoples sharp and clear.