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Senatus Consultum Ultimum Biuletyn Polskiej Misji Historycznej Bulletin der Polnischen Historischen Mission Nr 7/2012 ISSN - Hanna Appel (Uniwersytet Mikołaja Kopernika, Instytut Historii i Archiwistyki) Pompeius Magnus: his Third Consulate and the senatus consultum ultimum A senatus consultum ultimum (SCU) was a decree passed by the Senate which authorized the magistrates referred to in such an act to take measures in order to overcome an emergency situation faced by the state1. Th e SCU included a formulary expression that 1 See Ch. Meier, Der Ernstfall im altem Rom, in: Der Ernstfall, ed. R. Alt- mann, (Schrift en der Carl-Friedrich-von Siemens-Stift ung 2, 1979), p. 51: “Der Ausdruck senatus consultum ultimum ist nicht technisch, Caesar benutzt ihn gelegentlich, um die Sache zu beschreiben. Heute ist er der übliche”. C. Iulius Caesar, Bellum Civile, I 5,3: “illud extremum atque ultimum senatus consultum”. Cf. T. Livius, Ab Urbe Condita, II 4,9: “forma senatus consulti ultimae neces- sitatis”. Cf. G. Plaumann, Das sogenannte senatus consultum ultimum, die Quasidiktatur der späteren römischen Republik, “Klio”, 13 (1913), p. 321ff ., who suggests: “Senatus Consultum de republica defendenda”; S. Mendner, Videant Consules, “Philologus”, 110 (1966), p. 258 argues: “Angesichts der Tatsache, dass die antiken Schrift steller das SCU immer mit der Formel zitieren, irritiert eine Bewertung wie “richtiger” (e.g. J. Bleicken); J.E. Gaughan, Murder was not a Crime. Homicide and power in the Roman republic, (2010), p. 124 empha- sizes that: “Th e SCU was not a declaration of a state of emergency; therefore, 342 Hanna Appel had no fi xed form and was related to the specifi c nature of the decree itself. Most typically, the decree was worded: consules (etc.) dent operam (or videant or curent), ne quid res publica detrimenti capiat (-eret)2. Th e SCU is one of the most controversial issues of the late Ro- man Republic in the period of its decline3. Th is research focuses on such aspects as whether it could be legally applied4 and in what cases, that is, in other words, “welche Voraussetzungen zum Erlass eine SCU gegeben sein mussten: Zu welchem Zeitpunkt und un- ter welchen Umständen durft e der Senat zu diesem Mittel greifen”5. In addition the ideological and political background of the SCU’s development is analyzed. Of course, there are many other questions and issues raised by this topic. Furthermore each specifi c instance when an SCU was applied triggers diff erent questions. Th ese ques- tions are addressed in diverse ways by present-day research, and it did not require a particular formula to be valid. […] each time the decree was voted on by the senate, the wording was diff erent, another indication of the ambivalence that surrounded its promulgation”. 2 Mendner, Videant, p. 263ff . 3 See for instance J. v. Ungern-Sternberg, Untersuchungen zum spätrepub- likanischen Notstandsrecht. Senatusconsultum ultimum und hostis-Erklärung, (1970); E.T. Sage, Senatus Consultum ultimum, “Th e Classical Weekley”, 13 (1920), p. 185–189; L.A. Burckhardt, Politische Strategien de Optimaten in der späten römischen Republik, (1988), p. 86ff .; T.N. Mitchell, Cicero and the Sena- tus Consultus Ultimum, “Historia”, 20 (1971), p. 47–61. B. Rödl, Das senatus consultum ultimum und der Tod der Gracchen, (1969). 4 However, it has recently been argued rightly by M. Lowrie, Sovereignty before the Law: Agamben and the Roman Republic, “Law and Humanities”, 1 (2007), pp. 31–56 (26), here p. 43 that: “since the SCU was authorized by the Senate, which at this time did not have a law-making role, but only advisory capacity residing in its auctoritas, the legality of the SCU is not so much ques- tionable as irrelevant”. 5 Burckhardt, Politische, p. 106ff . Pompeius Magnus: his Third Consulate… 343 the matter is even more diffi cult in view of the fact that the ancient Romans’ response to this decree was equally equivocal. Th is is clearly shown by the surviving sources which present the facts of each specifi c case in which an SCU was passed. Furthermore, the fact that the decree was formulated in a very imprecise manner allowed many possible interpretations. Clearly, even its application might have led to cases of misuse. It might even be argued that the formulary ambiguity of the SCU was very convenient. Given that emergencies had to be addressed, it was hard to foresee which measures would be the most eff ective to overcome a specifi c threat. In addition, it was unclear how the individuals against whom an SCU was intended, would react to it; therefore, no fi xed action plan could be specifi ed in advance. Hence the magistrates referred to in the decree had to take what they believed to be the best decisions on each such occasion. Whereas the good of the state (salus rei publicae) was the imperative, the interpretation of an SCU was vested in the hands of the consuls (or other addressees of the de- cree as the case might be). What researchers dealing with this extraordinary Senate decree mostly focus on are cases which might be described as spectacular. Indeed, these include the events related to the death of Gaius Gracchus in 121 BC6, the deaths of Saturninus and Glaucia in 100 BC and the death sentence passed on the Catilinarian conspirators in 63 BC. On each of these occasions, the Senate announced that the Republic faced an extraordinary danger and appropriate measures were called for in order to prevent damage. Such a gen- 6 Th e case of the death of Tiberius Gracchus in 133 BC is disputed as the ancient sources oft en refer to Tiberius’ death as an instance of application of an SCU in 133 BC, whereas it was not until the events related to the death of the younger of the Gracchi brothers that the fi rst confi rmed case of an applica- tion of a senatus consultum ultimum was described. 344 Hanna Appel eral declaration allowed very diverse interpretations, and the magistrates responsible for the good of the state would usually take very resolute measures which would eventually lead to the physical elimination of political opponents (and quite oft en, their supporters as well7). Th us Tiberius Gracchus8 was killed by P. Scipio Nasica or those from his milieu, and Gaius Gracchus’ death, even if self-infl icted9, was merely a way to avoid being killed by Opimius’ men. Sat- urninus, in turn, was stoned by a mob10, and fi ve of Catiline’s supporters imprisoned by Cicero were executed aft er the famous debate in the Senate on 5 December 63 BC11 . Th e SCU of 52 BC was passed – what is obviously – under diff erent circumstances. Th e political situation was particularly diffi cult at the time. Th e period between 54–53 BC saw anarchy spread across the Republic, reaching its climax in 52 BC. Caesar was then in Gaul while Pompey had been observing daily events in Rome for quite a long time (and even co-directing them, in a way12). Except for the tribunes and two plebeian aediles, there were no prominent magistrates in the capital at that point in time13. Th e offi ce of praetor was sought by Clodius who claimed 7 Given that each of these cases was of a diff erent nature, this general statement is clearly a far-reaching simplifi cation. 8 Whether or not Tiberius was killed by Nasica himself is unknown. Th is is elaborated by E. Badian, Th e pig and the priest, in: Ad fontes: Festschrift für Gerhard Dobesch, hg. v. H. Heft ner, K. Tomaschitz, (2004), p. 270. 9 He actually ordered his slave Philocrates (or Euporus) to kill him in order to avoid being apprehended by Opimius’ men. See Plutarchus, Gaius Gracchus, 17. 10 See e.g. Appianus Alexandrinus, De bellis civilibus, I 33, 146. 11 See e.g. C. Sallustius Crispus, Bellum Catilinae, 55; Plutarchus, Cicero, 22. 12 See e.g. Plutarchus, Pompeius, 54; Appianus, De bellis civilibus, II 20, 73. 13 However, we read in L.C. Dio Cocceianus, Historia Romana, XL 48,1 Pompeius Magnus: his Third Consulate… 345 to have been endorsed by Caesar14, whereas the Optimates sup- ported Milo who ran for the consulate. Th e gravity of the situation was heightened even more as Clodius unexpectedly encountered Milo on the Appian Way. We know that Milo killed Clodius dur- ing the brawl that followed15. Th e victim’s supporters used this event as an opportunity for impulsive and dangerous political demonstrations. Clodius’ body was fi rst carried to the forum, and then to the curia. Th e funeral pyre was lit and the building caught fi re in result. Th e plebeian tribunes kept on inciting the crowd against Milo. Under these circumstances, the Senate passed an SCU, considering that the situation was indeed hard to bring under control. Hence, passing an extraordinary decree in order to save the state does not seem strange at all16. Th ere are two sources of information on this topic: Asconius and Cassius Dio17. Asconius says: “decreverat enim senatus, ut cum interrege et that “men were eager to win the offi ces and employed bribery and assassination to secure them” . 14 M.T. Cicero, Pro Milone oratio, 88: “Caesaris potentiam suam esse dicebat”. 15 See Dio, Historia Romana, XL 48–50. Appianus, De bellis civilibus, II 21–25. A detailed description of the events related to Milo’s death is provided in Asconius’ commentary to Cicero’s Pro Milone. A.W. Lintott, Cicero and Milo, “Journal of Roman Studies”, 64 (1974), p. 69: “Asconius’ view of the aff air, which was based on a study of the evidence and pleas on both sides in the Acta Di- urna, should be accepted”.
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