Cicero's exile & Roman law

Bitmap

Civis Illustris
Hello everyone!

Does anyone of you have an insight in Roman law at Cicero's time?
I wonder about the circumstances of Cicero's exile from 696-697. Clodius brought forth a rogatio/bill which said qui civem Romanum indemnatum interemisset, ei aqua et igni interdictum sit this was clearly aimed at Cicero who had the Catilinarians executed without a trial during his time as a consul. From what I gather, Cicero fled shortly before the law was passed (he had already left Rome for a month by then and was in Southern Italy) and received the aquae et ignis interdictio later when he was already gone. --- Do I get this right? Or had the law already been passed when Cicero was still in Italy? I don't know if the following passage from Cicero refers to the Clodian law or a law concerning Cicero in particular:

miseriae nostrae potius velim quam inconstantiae tribuas quod a Vibone quo te arcessebamus subito discessimus. adlata est enim nobis rogatio de pernicie mea; in qua quod correctum esse audieramus erat eius modi ut mihi ultra quingenta milia liceret esse, illuc pervenire non liceret. statim iter Brundisium versus contuli ante diem rogationis, ne et Sicca apud quem eram periret et quod Melitae esse non licebat. nunc tu propera ut nos consequare, si modo recipiemur. adhuc invitamur benigne, sed quod superest timemus. me, mi Pomponi, valde paenitet vivere; qua in re apud me tu plurimum valuisti. sed haec coram. fac modo ut venias.
(Cic. Att. 3,4)

(from what I gather, it was changed from 500 to 400 miles a few days later)

There was some debate by Cicero and his friends (and later by scholars) whether his decision to flee was right or whether he should have stayed and resisted.

My actual question(s) regard(s) the legal procedure:

- If he had stayed, would he have been tried? And if so, why didn't he wait for the trial first before going into exile?
- Could it be argued that the senatus consultum ultimum that Cicero had could have been seen as a damnatio and that the conspirators were therefore in fact not indemnati?
- Did the Roman principle of law nulla poena sine lege already apply in Cicero's time? If so, convicting Cicero for killing the Catalinarians would have been unlawful anyway, right?!
 

rothbard

Civis Illustris
Staff member
I was curious about this as well. It seems that very little information is available about the laws passed by Clodius in order to force Cicero into exile. A summary of what is available about the legal process involved can be found in Appendix I ("The Leges Clodiae Concernting Cicero's Exile") of Gordon P. Kelly's "A History of Exile in the Roman Republic".
 

Bitmap

Civis Illustris
I have read up a bit ... though not conclusively, yet, but a few things seem clearer to me now. Ciceronian biographers (along with the authors of at least the German wikipedia page — I haven't checked the English one) seem to confound a lot of things.

Clodius brought forth a rogatio/bill which said qui civem Romanum indemnatum interemisset, ei aqua et igni interdictum sit
The actual wording that was the basis for this comes from Velleius Paterculus:

Per idem tempus P. Clodius, homo nobilis, disertus, audax, quique neque dicendi neque faciendi ullum nisi quem vellet nosset modum, malorum propositorum executor acerrimus, infamis etiam sororis stupro et actus incesti reus ob initum inter religiosissima populi Romani sacra adulterium, cum graves inimicitias cum M. Cicerone exerceret (quid enim inter tam dissimiles amicum esse poterat?) et a patribus ad plebem transisset, legem in tribunatu tulit, qui civem Romanum indemnatum interemisset, ei aqua et igni interdiceretur: cuius verbis etsi non nominabatur Cicero, tamen solus petebatur.
(Vell. 2,45,1)

However, Velleius probably confused this law with the later lex Clodia de exilio Ciceronis, in which the actual aquae et ignis interdictio took place. The wording interdictum sit is from Cicero's speech de domo sua in reference to the de exilio Ciceronis law.
It is more likely that the punishment proposed by Clodius' lex de capite civis was capital punishment.

- If he had stayed, would he have been tried? And if so, why didn't he wait for the trial first before going into exile?
Yes, he could have stayed and waited a) for Clodius' law to be passed and b) for his trial.
Cicero fled rather precipitously.

- Could it be argued that the senatus consultum ultimum that Cicero had could have been seen as a damnatio and that the conspirators were therefore in fact not indemnati?
No. If the conspirators are to be considered Roman citizens, then they were indemnati indeed because they were denied their right of a provocatio ad populum (appeal) and a iudicium populi (a trial in the comitia centuriata, i.e. before the people).
There is precedence for a Roman consul executing people without trial under a senatus consultum ultimum in Lucius Opimius 121 BC, but if you want to argue in favour of Cicero on the basis of that precedence, you would have to argue that the conspirators he had executed were in fact not Roman citizens (or had forfeited their citizenship), but perduelles, i.e. enemies of the state, and that what Cicero did was not an execution as the result of a judicial trial, but an act of war that killed enemies of Rome in order to save the state.

- Did the Roman principle of law nulla poena sine lege already apply in Cicero's time? If so, convicting Cicero for killing the Catalinarians would have been unlawful anyway, right?!
I suppose this principle existed, but the lex Clodia was not really a new law – it was more of a reenactment of the lex Valeria and the leges Porciae that already forbade magistrates the execution of Roman citizens without provocatio ad populum. Those were the laws Cicero had actually broken (or was accused of having broken).
 

Bitmap

Civis Illustris
I had a look at 2 different Cicero biographies so far – Gelzer: Cicero. Ein biographischer Versuch (1969), which is more or less the basis for all German Cicero biographies. It deserves praise for relying heavily on primary sources and basing almost every single sentence on primary sources. (by primary sources, I mean Latin sources ... it is of course debatable if a source like Velleius Paterculus is still primary literature, but of course in many cases it is the closest source we have. The other biography I have looked at is Fuhrmann from 1990. But I have the impression that he simply copied all his stuff from Gelzer. I haven't got my hands on an English biography, yet. I wonder if they are written in a similar way.
I have also read a German biography written by some female author a decade ago, but I don't remember her name. I don't think her account differed too much from the others I read, though (I couldn't find the book anymore, either ... even though I should possess it in theory).

There seem to be a few problems regarding Cicero's exile that all of them seemed to confuse:
- Generally speaking, unlike in some other countries, like Greek poleis, exile was not really a punishment in the Roman republic. It actually was a civil right for all Roman citizens: When you were tried in front of a Roman court or in front of the Roman people, you always had the chance to quit the trial and go into exile. In a trial before judges (iudicium publicum) you could wait until the final verdict; in a trial before the people (iudicium populi, which usually decided capital charges) you could quit until the last vote of a tribus was cast. (Kelly 2006, p.18) As a results, the Romans didn't actually execute too many people from financially or politically powerful spheres. The de facto outcome of a capital conviction was that the accused went to exile.
- When somebody went to exile, a tribune would usually pass a law regarding his aquae et ignis interdictio that would formally ban him and ensure he would not return to Rome. The plebs had to agree to pass this interdiction. It looks like the text was usually formulated in the passive (ei aqua et igni interdiceretur) because the actual power to carry out that law was with the magistrates. (Kelly 2006, p.36) So banishment (in the sense of an aquae et ignis interdictio) was something that was imposed upon somebody who had already left and who had either not appeared in court or who had left his trial.

- With that in mind, it seems strange that Gelzer readily believed the statement of Velleius that exile was the actual punishment threatened to people who had executed Roman citizens under the lex Clodia. Kelly makes an (in my opinion) convincing case against the assumption that such a punishment had already been in place at the time of Cicero's exilation. It looks like this interdictio was not introduced as an actual punishment until the time of Caesar's dictatorship (Kelly 2006, p.35-39). So Velleius might have confounded the lex Clodia with the de facto punishment that came in the wake of Cicero's flight. Clodius originally probably didn't propose to send Cicero to exile, but to execute him. Even though he knew that (if successful) this would essentially send Cicero to exile rather than execute him. What might have added to this confusion might have been the fact that at Paterculi time aquae et ignis interdictionis was an actual punishment?! (That's my personal assumption) In any case, Gelzer readily believed Velleius' account, but I think you have to be careful there.

- Gelzer says that Cicero was guilty in executing the Catalinarians because he broke the lex Sempronia. To my astonishment, this is one of the few statements he makes without citing an actual source. It looks like he wrongly assumed that the lex Sempronia prevented magistrates from executing Roman citizens without trial based on a senatus consultum ultimum (or appeal, i.e. provocatio ad populum). However, from what I gather (Hardy: Some Problems in Roman History, 1924, p. 22-24 & p.35) the lex Sempronia simply prevented the Senate from carrying out a iudicium ... something the senate actually countered with a senatus consultum ultimum. (videantur consules ne quid res publica detrementi capiat). The consultation concerning the conspirators in front of the Senate was not a iudicium, so Cicero didn't actually break THAT law. There even is precedence in Opimius (121 BC, 2 years after the lex Sempronia had been passed) who executed Romans not AGAINST an SCU, but BECAUSE the SCU countered the lex Sempronia.

- The laws that are actually in question are the lex Valeria and the leges Porciae, which prevent a magistrate from executing a Roman citizen without appeal (provocatio ad populum) ... such an appeal would have to be brought before the comitia centuriata ... Opimius successfully argued that such a law did not apply to him because he did not execute Roman citizens. He killed enemies of the state (perduelles) in an act of war to defend Rome. Cicero would have had to argue along the same lines if he had waited for a trial. There seem to be quite a few discussions as to whether such an argument would have been valid or not. My personal impression is that it would have been a mere matter of rhetoric.

- Gelzer and Fuhrmann also claim that Cicero's aquae et ignis interdictio banned him to stay away 500 Roman miles away from Italy. They also claim that he did not go to Athens (where he originally wanted to go) because it was not far enough away. However, the place he eventually went to to (Thessalonoki) was actually closer to Italy than Athens. Neither of the places was 500 Roman miles away from Italy.
The law must either have been changed to 400 miles or people must not have cared so long as Cicero was * far enough * away.
 
Top