BMCR 1996.03.15

1996.3.15, Drummond, Law, Politics and Power

, Law, politics and power : Sallust and the execution of the Catilinarian conspirators. Historia. Einzelschriften ; Heft 93. Stuttgart: F. Steiner, 1995. 136 pages ; 24 cm.. ISBN 9783515067416 DM 64.

Drummond carefully defines and limits his subject in his title. He explores that subject by a closely argued analysis of Sallust’s construction of the senatorial debate on execution of the Catilinarian conspirators. There is a formidable scholarly apparatus—some 700 footnotes comprising perhaps 3500-4000 references to primary sources and secondary literature. While the documentation of ancient evidence is always apposite, the author is, in my view, overly conscientious in tracking the arguments and opinions of modern scholars.

In Chapter 1, Drummond explains both the general setting of the Catilinarian conspiracy and its exposure as well as the immediate context of Cicero’s referral of the matter to the senate and the ensuing debate over the punishment of the conspirators then in custody. He notes in particular the significance that Sallust gives to “an earlier senatorial judgement that the action of the conspirators had been contra rem publicam (50,3)” (p. 22). Drummond argues that this decree, which had the effect—in Sallust’s view—of rendering the conspirators hostes and thus (apparently) of stripping them of such citizen-rights as provocatio, is of doubtful authenticity. However, it does amount—again, for Sallust’s narrative of events—to a de facto guilty verdict that left open only the question of penalty. No one, as the ancient historian presents the debate, questions that the guilt of the conspirators has been legally established.

Chapter 2 examines in detail the speech of Caesar (Sall. Cat. 51) opposing the recommendation of the consul-designate, D. Junius Silanus, to execute. Caesar proposes permanent imprisonment and confiscation of property; he pointedly does not adduce legislation guaranteeing provocatio or exploit the claims of libertas and populi iura : “so willing is Caesar to accept the prisoners’ guilt as proven and so reluctant to castigate the illegality of execution without trial that it may be erroneous to see even an allusion to that question here” (p. 30). What we should see in Caesar’s speech is the interest of the historian in portraying Caesar as “the champion of established practice [and] … the tradition of the maiores, … the voice of unimpassioned reason,” eschewing the rhetorical tactics of “those shallow populares who use populi iura for their own pursuit of power (38,3) or rouse the plebs by attacks on the senate (38,1)” (pp. 49-50).

In Chapter 3, on the speech of Cato (Sall. Cat. 52), Drummond again exposes the ways in which Sallust’s historical agenda shapes his presentation. One item in that agenda is the evocation of Thucydides’ Mytilenean debate (Thuc. 3.36-49): “it is Cleon’s role that Cato plays and Sallust does not shirk from attributing to him ideas and arguments that directly recall the demagogue, in part perhaps to characterize the rhetorical methods that Cato regards as necessary if the senate is to be shaken from its self-indulgent lethargy” (p. 53). Cato, like Caesar, assumes that the conspirators are convicti and so addresses himself exclusively to the issue of appropriate penalty. He argues from precedent for the execution of manifesti, individuals “caught in the act,” and confessi, individuals having formally admitted their guilt. Drummond gives close attention to the thorny legal issues involved in this line of reasoning. The upshot is that Cato’s speech is shown to be thoroughly Sallustian in both expression and content, “apart from the bare motion for execution” (p. 75). Thus, the terms in which Cato justifies execution of the prisoners “is Sallust’s own invention, allowing Cato to meet Caesar’s objections by a mixture of counter-argument and concession” (p. 77). Cato, on this presentation, emerges not as more cogent in argumentation, but as shrewdly capitalizing on the senate’s amenability to appeals based on emotion and self-interest.

Chapter 4 offers a meticulous discussion of the presumptive (and often adduced) bearing of the senatus consultum ultimum ( scu) on the question of the execution. Of course, in view of Cicero’s later troubles, clearly anticipated as he negotiated the difficult waters of December 63, the scu has loomed large in the eyes of many modern historians. But the ascription of crucial relevance to the scu is, Drummond contends, mistaken. In citing it (at Cat. 29.3), Sallust is alluding to its consequences entirely in the context of its issuance some weeks before the debate of 5 December 63. Even if this were not the case, the terms of the scu do not authorize specific actions by the consul. The feasibility of ordering executions (or any other measure) was directly contingent upon the political conditions obtaining at the moment: “there could be no question of any comprehensive or definitive ruling on the powers exercised by magistrates” (p. 90). Thus, the acquittal of Opimius in 120, often cited as precedent for a consul’s abridgment of citizens’ rights of provocatio under cover of the scu, was not so definitive as is often assumed. Although Sallust himself ascribed more explicit authorization of extraordinary measures to the scu than it in fact carried, significantly, he does not introduce the scu as a legitimating document in the debate of 5 December 63. Nor, Drummond shows, does the historian highlight the declaration of hostis status as justifying nullification of citizenship rights and execution of the Catilinarians. In referring the question of penalty to the senate, Cicero clearly felt the need for categorical endorsement of an action that might well lay him open to charges of cruelty, tyranny, and criminal infringement of citizens’ rights.

For Drummond, the question entailed in the execution of the Catilinarian conspirators is “whether overriding the right to trial before a properly constituted court on a capital charge could reasonably be regarded as necessary to the eventual defeat of the conspiracy and if so, what safeguards were required to obviate the dangers of abuse and of the persecution and punishment of the innocent” (106). Moderns who view the conspiracy with preconceptions about the overarching importance of individual liberties see the executions as illegal and unjustifiable; those who value above all “the preservation of the current regime of property and power” see the executions as warranted and appropriate. “If the majority scholarly verdict has gone in Cicero’s favour, that reflects largely (and merely) the politically conservative (and pro-Ciceronian) tendencies of classical scholarship” (p. 107). Perhaps.

Readers of Drummond’s circumspect, provocatively minimalist evaluation of the evidence of Sallust will learn to rethink their own assumptions about the Catilinarian conspiracy and, more generally, about the potency of the law in the face of complex and shifting political exigencies.