The populares immediately threw down a challenge to the new regime. In January 63 a Tribune tabled the first land-reform bill for years. It was generally thought that, once again, Crassus and Caesar were behind the move. This presented Cicero with a ticklish problem. He was indebted to the optimates, who were as hostile to the redistribution of state land as their fathers and grandfathers had been, and indeed shared their conservative instincts. But if he could, Cicero wanted to be a Consul for all, believing that Rome would not have a future without what he called the concordia ordinum, the “concord of the classes.”
On the face of it, the bill’s contents were sensible and moderate. Colonies were to be established by selling public land in Italy and the provinces and by buying additional privately owned land on a voluntary basis. Nevertheless, Cicero opposed the legislation both in the Senate and at the General Assembly, thus opening his Consulship on a negative note.
The proposed law was probably less contentious than the means of implementing it—a powerful commission with ten members and a life of five years. This was too much for a political culture that disapproved of power being handed for a substantial period of time to any individual or group. Cicero derisively nicknamed the commissioners the “ten kings.” It is not entirely clear what ensued, but in all likelihood the bill never came to the vote at the General Assembly.
Crassus and Caesar were probably not too put out by this setback. They had made some gains. The debate had cast doubt on the sincerity of Cicero’s promise to be a Consul for all. It had also inserted a wedge between him and Pompey, who would soon have an army to resettle.
Meanwhile, Cicero maintained his oratorical predominance in the courts. He successfully defended a former Consul on a charge of extortion, a case in which Caesar gave evidence for the prosecution.
Caesar and his friends now staged a remarkable coup, a real-life agitprop drama with an unfriendly lesson for the Senate. Titus Labienus, a member of Caesar’s circle and later one of his most able military commanders, unexpectedly indicted an elderly and inconspicuous Senator, Caius Rabirius, on a charge of high treason for a murder committed thirty-six years previously, when Saturninus had surrendered to Marius, then Consul, and been locked up with his followers in the Senate House. According to Labienus, Rabirius was one of the young men who had climbed on the roof and killed Saturninus with a rain of tiles.
This was no ordinary prosecution. The old man was to be tried under an archaic and brutal procedure called perduellio. The punishment, if he was found guilty, was scourging and crucifixion. A court was appointed according to the antiquated rules and Caesar and his cousin cleverly managed to get themselves chosen as its two judges. An execution post was erected in the Field of Mars in anticipation of a conviction.
What was the point of this bizarre rigmarole? Apparently the identity of Saturninus’s killer had long been known: a slave who had won his freedom as a reward. What Labienus and, behind him, Caesar wanted to do was deliver a political warning. In times of crisis the Senate had the authority to call a state of emergency, through a special decree known as the Final Act (senatusconsultum ultimum). Its terms were broadly drawn: “The Consuls should see to it that the state comes to no harm.” This, some said, allowed the Consuls to override a Roman citizen’s basic rights not to be executed without trial. According to this view, Saturninus’s death had been legal because the Senate had passed the Final Act—despite the fact that he had been no ordinary citizen but a Tribune whose person was meant to be inviolable. Populares never accepted this interpretation of the law and argued that nothing could cancel a fundamental civic liberty. Legally they appear to have been correct; the power under the Final Act to condemn citizens to death without due process had only become accepted through time and custom.
The reason for the timing of the attack on Rabirius is obscure. In general terms, it was in the interest of the populares continually to find ways of seizing the initiative from the optimates. This was especially the case now that the Senate, in Cicero’s capable hands, looked as if it would recover lost ground. Rabirius’s trial may then have simply been an episode in the ongoing campaign against the forces of conservatism. But there is another possibility. Caesar knew that Catilina had not yet run his full political course. If rejection at the polls drove him to act illegally, as appeared not unlikely, he might need protection from an extreme interpretation of the Final Act. In this case, the affair shows Caesar at his most prescient and most loyal.
Unsurprisingly, the judges found Rabirius guilty and passed a sentence of death. AS expected, he appealed to the People against the verdict. Hortensius spoke on Rabirius’s behalf, arguing that he did not in fact commit the crime. He was followed by Cicero, who spent little time on the facts of the case. This was a political show trial and he went straight to the constitutional point. “What I assert with all the emphasis at my command, what I proclaim, what I publish to the world is identical with the stated opinions of the prosecutor [Caesar or Labienus]. No king remains, no tribe, no nation who can cause you any alarm. No external or foreign threat can infiltrate our Republic. If you wish Rome to live forever and our empire to be without end, if you wish that our glory never fade, we must be on our guard against our own passions, against men of violence, against the enemy within, against domestic plots. But against these evils your forefathers left you a great protection [in the Final Act]. Cherish this pronouncement.”
A vote on the appeal never took place and sources disagree about which way it looked as if it would go. After fruitlessly remonstrating with the judges, a Praetor, Quintus Caecilius Metellus Celer, used one of Rome’s many obstructive constitutional devices to halt the proceedings. He ran up to the fort on top of the Janiculan Hill on the other side of the Tiber and pulled down the military flag flying there. In the city’s early history this flag was raised during assembly meetings; if lowered, it warned of an enemy attack and led automatically to the immediate suspension of public business. The rule was still in force and so the assembly dispersed.
How serious had Caesar been? It is hard to say. It may be that the trial was a neat and painless way of twisting the Senate’s tail. If that were so, Caesar had presumably prompted Metellus Celer to abort the project before the old man was crucified. On the other hand, it is possible that Caesar really did want a guilty verdict and, one must suppose, an execution. Either way, he had made his point and he did not attempt to reconvene the court.
In 63 Caesar stood for the senior religious post of Chief Pontiff, chairman of the college of pontifices, the most important political function of which was to decide the annual calendar of lucky and unlucky days for the conduct of public business. It was usually the preserve of ex-Consuls and elder statesmen and Caesar contracted enormous debts to bribe the necessary voters. Success brought him little power but great prestige and an official residence in the Forum. If Caesar had lost, his credit would have collapsed and he would have been bankrupt. He told his mother, as she kissed him good-bye on the morning of the poll, that if he did not return as Chief Pontiff, he would not return at all.
Meanwhile Catilina was pursuing his schemes and the well-informed Cicero went on keeping an eye on him. Support for Catilina was more broadly based than at the time of his putative first conspiracy. Many Senators who had spent or gambled away their wealth saw nothing to be lost and much to be gained by joining him. A general cancellation of debts, the central plank of his policies, would solve all their problems. Unsurprisingly, this was a program unlikely to appeal to the propertied classes and indeed to the middling sort of people—shopkeepers and small traders. The revolutionary leader was under growing pressure from his supporters in Rome, and from the discontented Sullan veterans in the countryside to seize power by fair means or foul.