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Published online by Cambridge University Press: 08 May 2015
In early 58, the tribune Clodius proposed a lex de capite civis Romani reaffirming the essence of an earlier lex Sempronia, that no Roman citizen should be put to death without a trial. Since Cicero, as consul in 63, had overseen the summary execution of five men, he was, without doubt, the target of Clodius’ rogation. On the day before the bill de capite civis Romani was voted upon, however, and at the insistence of friend and foe alike, Cicero departed from the city, but his ‘timely’ exit did not put an end to this episode. Very soon after his departure, chattels were removed from his estates under the aegis of the consuls, and his wife was subjected to financial harassment.
I should like to thank the anonymous reviewers who offered me so much good advice in correcting logical and technical problems in earlier drafts of this paper. They must not, however, be held responsible for any shortcomings that may be perceived in the content of this material.
1 The title of this law is based on that of Gaius Gracchus, de capite civium Romanorum (Cic. Rab. Perd. 12; cf. Cat 4.10). See e.g. Grasmück, E.L., Exilium: Untersuchungen zur Verbannung in der Antike (Paderborn 1978)113Google Scholar; Benner, H., Die Politik des P. Clodius Pulcher (Stuttgart 1987) 55Google Scholar; Thommen, L., Das Volkstribunat der späten römischen Republik (Stuttgart 1989) 121Google Scholar; Nicholson, J., Cicero’s Return from Exile (New York 1992)20Google Scholar; Fezzi, L., ‘La legislazione tribunizia di Publio Clodio Pulcro (58 A.C.) e la ricerca del consenso a Roma’, Studi Classici e Orientali Al (2001) 289Google Scholar n. 200. Clodius’ law in essence re-affirmed the long-standing right of provocatio, on which see Liou-Gille, B., ‘La consécration du Champ de Mars et la consécration du domaine de Cicerón. L’ histoire et la religion au service de la politique’, MH 55 (1998) 54-5;Google ScholarTatum, W.J., The Patrician Tribune: Publius Clodius Pulcher (Chapel Hill 1999) 153-4;Google ScholarStroh, W., ‘De Domo Sua:. Legal Problem and Structure’, in Cicero the Advocate, d. Powell, J. and Paterson, J. (Oxford 2004) 316-7.Google Scholar
2 Advice to flee: Cie. Att. 3.13.2, 3.15.2; from the hostile consul Piso (Cie. Red. Sen. 17; Pis 78); further references below in n. 94. On exile, see Grasmück (n. 1) 114; Kelly, G.P., A History of Exile in the Roman Republic (Cambridge 2006)111-2.CrossRefGoogle Scholar
3 Cic. Dom. 56; Sest 53; Pis. 21. The precise date of his departure is uncertain, perhaps mid-March; e.g. Geizer, M., Realencyclopädie der dass/sehen Altertumswissenschaft (Stuttgart 1893-1980) 7A, 917Google Scholar; Bailey, D.R. Shackleton, Cicero’s Letters to Atticus, vol. 2 (Cambridge 1965)227-32Google Scholar; Grimai, P., Études de chronologie cicéronienne (années 58 et 57 av. J.-C.) (Paris 1967)148Google Scholar; Ph, Moreau, ‘La Lex Clodia sur le bannissement de Cicéron’, Athenaeum 65 (1987) 469-72,Google Scholar who lists possible dates for the passing of the lex de exilio. 24, 26, 27 and 29 April, with preference for 24 April; Marinone, N., Cronologia Ciceroniana (Roma 1997)104Google Scholar; Fezzi (n. 1) 289-90; Stroh (n. 1) 317; Kaster, R.A., Cicero, Speech on behalf of Publius Sestius (Oxford 2006) 394, 395-6Google Scholar. See also Tatum (n. 1) 156.
4 Cicero notes that the attacks on his houses by the consuls took place as soon as he had been struck down (Dom. 62, cf. 45; Sest. 54), which, from the context, must be just after the passing of the law de capite, see also Red. Sen. 17-8, cf. 9; Red. Pop. 13; Dom. 62-3, 113; Pis. 21-2, 26, 52; Ascon. Pis. 26; Dio Cassius 38.17.6. By early April 58, Cicero reports that he has already lost his possessions (Att. 3.5). It has been suggested that Cicero’s property was looted by rioters (Mitchell, T.N., Cicero, the Senior Statesman [New Haven 1991]138CrossRefGoogle Scholar; Tatum [n. 1] 156; Stroh [n. 1] 318). Cicero himself is careful to link these episodes to the consuls.
5 On the ransacking, see e.g. Cic. Red. Sen. 18; Att. 4.2.5; Dom. 62; Sest. 53-4. His Palatine house was set on fire (Cic. Pis. 15, 26, 52; cf. Dom. 62). On Terentia (Cic. Fam. 14.4.4 [April 58]; cf. Alt. 3.5; cf. Fam. 14.4.4; Sest. 54; Plane. 73); and on the involvement of a praetor (Cic. Q.f. 1.4.4; Red. Sen. 22). See Marinone (n. 3) 104; Kelly (n. 2) 112.
6 Cicero refers to this repeatedly: e.g. in Red. Sen. 8; Dom. 9,21,26,33,43,44,45, 51, 62,77, 83, 86, 87, 88, 95, 110; Sest. 40, 53, 73-4; see Moreau (n. 3) 474; Robinson, A., ‘Cicero’s References to his Banishment’, CW 87(1994) 479Google Scholar; Tatum (n. 1) 157. On the other hand, Cicero does report that some people viewed him as a murderer at this time (Red. Sen. 33; cf. Sail. Cat 22.3; see Liou-Gille [n. 1] 54).
7 See also Dom. 51, 83, 87-8, 93, 127; Sest. 29, 53, 73, 84; cf. Red. Sen. 8, with discussion by Nicholson (n. 1) 30; Stroh (n. 1) 352. If the lex de capite set up a quaestio, Clodius may have put his brother Appius in charge of this. Therefore, when Quintas Cicero was faced with prosecution in front of Appius, this may have been a charge under Clodius’ new law. For details of the evidence, see Alexander, M.C., Trials in the Late Roman Republic 149 BC 50 BC (Toronto 1990) no. 263.Google Scholar
8 Many assume that Cicero suffered loss of property in anticipation of the later lex de exilia. e.g. Greenidge, A.H.J., The Legal Procedure of Cicero’s Time (London 1901, repr. New York 1971)359-61;Google Scholar Gelzer (n. 3) 917; Lintott, A.W., ‘P. Clodius Pulcher – Felix Catilina?’ G&R 14 (1967) 164-5Google Scholar; Shackleton Bailey (n. 3) 227; Gruen, E.S., The Last Generation of the Roman Republic (Berkeley 1974) 246, 293Google Scholar; Grasmöck (n. 1) 114; Ch. Habicht, , Cicero the Politician (Baltimore 1990)47Google Scholar; McKendrick, P., The Speeches of Cicero (London 1995) 127-8Google Scholar; Moreau (n. 3) 466, 473; Fezzi (n. 1) 302; Stroh (n. 1) 316-8, 335, 350-1; cf. Kelly (n. 2) 112. Cicero is very clear that the force of the second law did not take effect until the end of April (Att. 3.4): he reports that he has to leave his current host Sicca before the lex de exilio becomes law, to avoid Sicca’s being punished under its terms; also that he himself has to get to Brundisium before the law’s enactment to allow his departure into exile. If the law had already taken effect, he would not have been free to move across Italy. By early April, Cicero had already lost his property (e.g. Cie. Att. 3.5).
9 E.g. Cic. Red. Pop. 13; Dom. 17, 58; Sest. 42, 45; Plane. 86 ff. Some of the later speeches resound with the theme of civil unrest (Lintott, A.W., Violence in Republican Rome [Oxford 1968] 195-6Google Scholar; cf. Fezzi [n. 1] 292-3; Alexander, M.C., The Caie for the Prosecution in the Ciceronian Era [Ann Arbor 2002] 217Google Scholar; Stroh [n. 1] 336, 351; Kelly [n. 2] 111). Dio Cassius also speaks of the threat of violence to Cicero (38.15.2, 5), and he reports that Cicero left Rome to avoid this (38.17.4-5). Although Cicero suggested heightened civil unrest (e.g. Red. Sen. 34; Red. Pop. 14; Pis. 28; Plane. 95), these claims appear exaggerated (J-M, Claassen, ‘Cicero’s Banishment: Tempora et Mores’, A Class 35 [1992]34-6Google Scholar; Harries, J., Cicero and the Jurists [London 2006]194-5, 196Google Scholar; Benner [n. 1] 87; cf. Stroh [n. 1] 351, who notes that Cicero gives doubtfully small numbers attending contiones and comida, suggesting that he overstated the civic disturbances in his absence).
10 Stroh (n. 1) 351. The equestrian Lamia was relegated from the city by the consul Gabinius, almost certainly for trying to block the bill de capite (Cic. Red. Sen. 12, 32Google Scholar; Sest. 28-30, 35, 52; Fam. 11.16.2, 12.29.1; Pis. 64; Dio Cass. 38.16; on relegation, see Kelly [n. 2] 65-6, 111; on the fate of Lamia, see Nicolet, C., L’ordre équestre [Paris 1974]Google Scholar s.v. L. Aelius Lamia). Many others, senators and members of the upper classes of Rome and Italy, also tried to obstruct the passage of the law (e.g. Cie. Sest. 25-8, 32, 41). Cicero was not averse to the use of violence (Q.f. 1.2.16; Red. Sen. 19; Dom. 19, 91), and Clodius used it effectively when moves were made to bring Cicero back from exile (Tatum [n. 1] 146; Stroh [n. 1] 351, 353).
11 Tatum (n. 1) 145-6 notes that popular violence escalated when the plebs felt aggrieved, as it might when it discovered that Cicero had left town to avoid Clodius’ lex de capite.
12 Lintott (n. 8) 164 claims that Clodius was trying to trick Cicero into leaving Rome because he knew that he could not gain a conviction against him in a court. This presupposes that Clodius was driven solely by enmity and was not interested in pursuing the principle inherent in his law (as Velleius 2.45.1). Against this, see Tatum (n. 1) 151-2.
13 Clodius did not institute proceedings against Cicero perhaps because Cicero left Rome, leaving the way open to a different line of attack. In addition, Clodius may have been unsure whether any standing court, peopled by Cicero’s peers, would convict, or he took a pledge to Pompey not to indict Cicero (Cie. Att. 2.22.2; Seager, R., ‘Clodius, Pompeius and the Exile of Cicero’, Latomus 24 [1965] 524, 530)Google Scholar. Dio Cassius (38.14.1-2) claims that Cicero had struck a deal with Clodius to gain exemption from prosecution, but Tatum, , ‘Cicero’s Opposition to the Lex Clodia de Collegiis’, CQ 40 (1990) 190-2CrossRefGoogle Scholar argues for a deal only over the lex de collegiis.
14 Clodius wanted to drive home the point that Cicero, even if supported by the authority of the senate, had had no right to undertake illegal actions during his consulship. See e.g. Benner (n. 1) 55; McKendrick (n. 8) 127; Tatum (n. 1) 153-4; Fezzi (n. 1) 291-2; Kelly (n. 2) 110, 226. The lex de capite formed part of Clodius’ programme to assert the dominance of the people against the senate (cf. Gruen, [n. 8] 244-5Google Scholar; Rundell, W.M.F., ‘Cicero and Clodius: The Question of Credibility’, Historia 28 [1979] 310-15, 317-8Google Scholar; Perelli, L., I Populares dai Gracchi alla line della Repubblica [Torino 1981] 193, 195).Google Scholar
15 Bailey, Shackleton, Cicero (London 1971) 62-3Google Scholar; Mitchell (n. 4) 137-8; Fuhrmann, M.Cicero andthe Roman Republic, tr. Yuill, W.E. (Oxford 1992)91; cf. Fezzi (n. 1)292.Google Scholar
16 Rundell (n. 14) 317-8; Ciaassen (n. 9) 31-2. It is noteworthy that Cicero was unconcerned about his safety as he loitered near the city for a few days (Cie. Q.f. 1.4.4).
17 See also Livy Per. 103. Seneca links Cicero’s exile to his actions against the Catilinarians (e.g. Ben. 5.17; cf. Cie. Dom. 50; Stroh [n. 1] 317). Kelly (n. 2) 42-3, 226-8 argues that because Cicero has conflated Clodius’ lex de capite and the lex de exilio, this may have confused Velleius Paterculus, and those who base their arguments on his text.
18 Adherents include, e.g. Greenidge (n. 8) 359-61; Nisbet, R.G., M. Tulli Ciceronis: De Domo Sua (Oxford 1939)205;Google ScholarBroughton, T.R.S., Magistrates of the Roman Republic (Cleveland 1952) vol. 2, 196Google Scholar; Shackleton Bailey (n. 3) 227; Gruen (n. 8) 245, 293; Grasmück (n. 1) 113-4; Moreau (n. 3) 466, 473; Habicht, (n. 8) 47; McKendrick (n. 8) 128; Ciaassen (n. 9) 23, 26; Fezzi (n. 1) 290-1; Stroh (n. 1) 316-7.
19 Kelly (n. 2) 226-8. Nisbet (n. 18) xviii reports a similar problem: ‘Was it immaterial for Roman law whether departure for exile had taken place between accusation and condemnation, or before there had been time even to bring an accusation?’
20 On his use of discessus, see Claassen (n. 9) 38; note the cynicism of Nicholson (n. 1) 30-1. Cicero does admit that he was forced from the city (e.g. Dom. 55-6, 66), but he still claims that this departure was an act of benevolence (beneficjum), to save the state (e.g. Dom. 95-9; Sest. 36; Raster [n. 3] 201-3). On Cicero’s discessus, see below, nn. 100 and 103.
21 Gelzer (n. 3) 917; id. Cicero, , ein biographischer Versuch (Wiesbaden 1969) 139-40;Google Scholar Fezzi (n. 1) 292; Stroh (n. 1) 316-8, 335, 350-1; Relly (n. 2) 110-2, 226-8; Nicholson (n. 1) 30-1; cf. Nisbet (n. 18) 205; Lintott (n. 8) 164-5. Dio Cassius (38.17.4, cf. 38.16.1) claims that Cicero’s departure made him appear guilty under the lex de capite but that his reason for leaving was his fear of violence.
22 That absence from Rome need not stop a prosecution, note Cicero’s worries about his brother Quintus being tried in absentia (Att. 3.9.1; Q.f. 1.3.4; cf. Att. 3.8.2); see Jones, A.H.M., The Criminal Courts of the Roman Repubhc and Principate (Oxford 1972) 70Google Scholar; Nicholson (n. 1) 30-1, 77-8; cf. Relly (n. 2) 111-2, 228; Fuhrmann (n. 15) 91. Plutarch (Cie. 30.6, 31.2) and Appian (BC 2.15) go further. They claim that Cicero iras actually indicted by Clodius under the lex de capite and went into exile to avoid a trial that would have found him guilty.
23 Cicero had the right to a trial, since Clodius’ law itself re-affirmed this (Tatum [n. 1] 157; Kelly [n. 2] 228). Cicero’s leaving the city could not have been construed as admission of guilt under the terms of the later law (lex de exilió), since Clodius put this rogation to the people only some weeks after Cicero’s departure. See Nicholson (n. 1) 29-31; Stroh (n. 1) 353-60.
24 Also Dom. 64; cf. Red. Sen. 34; see RE (n. 3) 917; Gelzer (n. 21) 139; Nicholson (n. 1) 39.
25 Cicero himself admits that the law was unlikely to have attracted opposition per se (Att. 3.15.5).
26 On Pompey’s refusal to help Cicero, see Raster (n. 3) 396 n. 6. See also below, nn. 29 and 76.
27 These men, elsewhere called publicorum societates (Dom. 74; cf. 142) and societates vectigalium (Sest. 32; Raster [n. 3] 189-90), Cicero later publicly praised for their actions in early 58. In 57, he tried to pit the publicani against Clodius (Har. Resp. 1, 2, 60).
28 The consul could have engineered to delay the promulgation of legislation, as we observe in the case of the consul Marcellinus in 56 (Raster [n. 3] 176, 391) but, in Cicero’s case, this was too late. Cicero suggests that Pompey could have taken up arms against Clodius (Sest. 40-1), but this was an unlikely prospect.
29 Most suggest that Cicero’s friends and associates turned against him because Cicero had alienated them through his sharp tongue, as exemplified by Plut, . Cic.24-8Google Scholar. On betrayal, Pompey’s, see e.g. Seager, Pompey the Great (Oxford 2002)102.Google Scholar
30 As Raster (n. 3) 396 n. 8 points out, Cicero should have been free to return to Rome. Raster posits that Clodius promulgated the lex de exilio so quickly that Cicero could not return. Yet he should have returned to fight against the new law, at least for a few days, since this would affect his very existence.
31 On the sandio attached to a law, see Crawford, M., Roman Statutes I(London 1996)20–4Google Scholar; Mousourakis, G., Historical and institutional Context of Roman law (Aldershot 2003)183-4.Google ScholarSanctiones might contain duties of obedience to the law and penalties for disobedience and/or actions for the benefit of the people; an attempt to prevent the law’s repeal; a provision that certain categories of people be required to swear obedience to the new law. Clauses, however, varied a great deal. In the imperial period, for example, a sanctio forbad the selling of hot water during mourning for Drusilla in AD 38 (Dio Cass. 59.11.6); on this, see Reaveney, A. and Madden, J.A., ‘The Crimen Maiestatis under Caligula: The Evidence of Dio Cassius’, CQ 48 (1998) 316-20.Google Scholar
32 Tibiletti, G., ‘Le leggi de iudiciis reputandarum fino alia guerra sociale’, Athenaeum 31 (1953) 59Google Scholar, has argued that, as time passed, more and more groups within society would have been added to the list of those required to swear allegiance to a law, particularly one that was hotly debated.
33 Crawford (n. 31) no. 7. Consider, for example, this part of line 16, which is certainly attested: … eis io diebus (quinqué) proxsumeis quibus quisque eorum mag(istratam) inperiumue inierit iouranto… ‘in those five days after each of them shall have entered his magistracy or assumed power, let them swear.’ On oaths, see also Ryan, F.X., “The Quaestorship of Favonius and the Tribunate of Metelius Scipio’, Athenaeum 82 (1994) 514-6.Google Scholar
34 Among others, Raster (n. 3) 393 and Lintott, ‘Trinundinum’, CQ 15(1965) 285Google Scholar, point out that trinundinum indicates a period including three market days, which were held generally, but not always, every eight days.
35 (qujei ex h(ace) I(ege) non iourauerit is magistratum inperiumue nei petito neiue gerito neiue habeto neiue in senatu (posthac sententiam deicito nejiue quis sinito neiue eum censor in senatam legito. ‘Whoever shall not have sworn according to this law, let him neither seek, exercise, nor hold a magistracy or power nor afterwards give his opinion in the senate and let no one allow this, and let the censor not enrol him in the senate.’
36 Crawford (n. 31) 21, 206-7.
37 Line 20. Because of the implicit power attributed to members of this group, these are assumed to be incumbent magistrates (Crawford [n. 31] 217). The oath attached to this law appears different from the regular oath of office taken by magistrates who were obliged to give oaths of office within a set period of assuming a post (e.g. Livy 31.50.7; cf. Cie. Clu. 91, 96; Fin. 2.55; similarly for office-bearers in municipalities, Gonzáles, J., “The Lex Imitane. A New Copy of the Flavian Municipal Law’, JRS 76 [1986] 155-6)Google Scholar. See also Ryan (n. 33) 515.
38 If the content of the law dealt with some aspect of criminal jurisdiction, only the relevant magistrates were possibly required to swear allegiance to the law (Crawford [n. 31] no. 8, and further, 210).
39 The text appears too fragmentary to be certain (Crawford [n. 31] 217).
40 Crawford (n. 31) no. 12, and, on dating problems, see 234-7.
41 On the possible reasons for the exclusion of tribunes from the oath, see Crawford (n. 31) 267-8 on line 11. The exemption given to tribunes in the lex deprovinchs praetoriis and perhaps also in the Tarentum Fragment may show that it was not usual to have tribunes take such an oath (Cie. Att. 3.23.4; cf. App. BC 2.13 Jones, H.S., ‘Roman Law Concerning Piracy’, JRS 16 [1926]172-3).Google Scholar
42 It is not clear whether the injunction covers both the exercise of the law and its sanction or just the law itself. The official overseeing the action of the recovery of a fine is not named (no. 12, line 24), but he was perhaps not the praetor who is specified as such elsewhere in the inscription (no. 12, line 29).
43 It would appear that half of the fine was to go to the aerarium but the other half to the person instrumental in getting the malefactor fined. On this see practice, Crawford (n. 31) no. 12, lines 42-6, and 270; see also Crawford, M., Roman Statutes II (London 1996), no. 54, chap. 5 (766-7).Google Scholar
44 App. BC 1.29-32; cf. Plut, . Mar. 29.8Google Scholar; for other sources, see Niccolini, G., I fasti dei tribune delle plebe (Milano 1934) 199Google Scholar and Greenidge, A.H.J. and Clay, A.M.Sources for Roman History, rev. Gray, E.W. (Oxford 1960) 105-7Google Scholar; cf. Broughton (n. 18) vol. 1, 575-6. The terms found in the lex Latina tabulae Bantinae are so similar to those attributed to Saturninus’ agrarian legislation that some believe the ¡ex Latina to be in fact epigraphic testimony for Saturninus’ law; see Crawford (n. 31) inscriptions nos. 7, 8 12, and further 197-9. In no. 7, line 12, the sum of 200,000 HS is recorded, which might be what Appian intended with his notice of 20 talents, although the latter sum is over double the amount noted on the inscription.
45 On the restoration, see Burckhardt, L.A., Politischen Strategien der Optimaten in der späten römischen Repubiik (Stuttgart 1988)231Google Scholar; Greenidge and Clay (n. 44) 110, 111-2, 114; see also Badian, E., “The Death of Saturninus: Studies in Chronology and Prosopography’, Chiron 14 (1984) 130-9Google Scholar; Evans, R.J., Marius, Gaius, a Political Biography (Pretoria 1994)117Google Scholar ff. Saturninus may also have prosecuted Metelius in absentia, before the law on his exile was enacted (Cie. Dom. 87). See Greenidge (n. 8) 361-2; Hardy, E.G., ‘Some Notable ludida Populi on Capital Charges’, JRS 3 (1913) 44-5Google Scholar; Gruen, , “The Exile of Metelius Numidicus’, Latomus 24 (1965) 576-80.Google Scholar
46 From Cicero’s indignation at Iunius’ arrest on a charge he claims was unprecedented (Clu. 91), it is likely that overt tribunician action for this misdemeanour was seldom taken.
47 Cie. Clu. 89-91, 92, 96; Broughton (n. 18) 102-3; cf. Alexander (n. 7) no. 153, also 149. Although Iunius may well have been prosecuted for other offences, Cicero portrays him as suffering largely for not having taken a mandatory oath. Thommen (n. 1) 163-4 sees the case reflecting factional interests over the rights of the tribunes and in the increasing power of the equestrian order.
48 If Iunius had been only an eques, he could still have been demoted from the equestrian ordo by the action taken against him (Greenidge [n. 8] 265-6.)
49 Witness the use of physical force by the tribune Saturninus described by Livy (Per. 69). Cato was also threatened with such (Cie. SesL 63).
50 Such an oath was perhaps included originally in Gaius Gracchus’ legislation de capite, which Clodius seems to have followed quite closely (Greenidge [n. 8] 359). It is possible that the sanction of Gracchus’ law was a tralatician clause used by Clodius.
51 Graen (n. 8) 245-6; Rawson, E., Cicero, a Portrait (London 1975)114Google Scholar; Kelly (n. 2) 226. Cicero tried to obscure his legal position with respect to the lex de capite (e.g. Dom. 57-8; Nisbet [n. 18] 124-5); see Stroh (n. 1) 351; Kelly (n. 2) 225. On the other hand, it is possible that Cicero has referred to the lex de capite in terms that we do not recognise. In Sest. 56, for example, Cicero mentions a law, which if stripped of its exaggerated dressing, might be the law in question (mitto earn legem quae omnia iura… omnes leges… una rogatione delevit …); cf. Raster (n. 3)245.
52 Cicero claims repeatedly that the senate had been uprooted from the state by Clodius’ law (e.g. Sest. 42,44, 46, cf. 50; see also Pis. 23). On this, note Stroh (n. 1) 350, Nicholson (n. 1) 24-9.
53 Cicero was bound rather to thank them (Nicholson [n. 1] 45-7).
54 Cicero was taunted for his departure (Cic. Dom. 95; Vat. 6-7; Pis. 31-3; Planc. 86-90; cf. Sest. 133; Nicholson [n. 1] 23-4; Raster [n. 3] 202-3).
55 ‘… even though Marcus Cato had already given up hope that anything could be achieved through his influence, nevertheless he fought against those consuls with his criticism and indignation, and after my departure, he troubled Piso with his words, bewailing my fate and that of the state.’
56 He deals much more quickly with the other, allegedly iniquitous laws Clodius put to the people in that same year (Sest. 55-59).
57 Badian, , ‘M. Porcius Cato and the Annexation and Early Administration of Cyprus’, JRS 55 (1965) 117Google Scholar; see also Fehrle, R., Cato Uticensis (Darmstadt 1983) 136-46Google Scholar; Stokes, S.V., ‘M. Porcius Cato Uticensis’, AH 16 (1986) 28–30Google Scholar. The lex de capite (forcing Cicero out of Rome) was passed before the law on Cato’s command (Tatum [n. 1] 154-6; Kaster [n. 3] 395-7), and Cato was not in fact forced from Rome (Rundell [n. 14] 315-6).
58 Rundell (n. 14) 315-6. Cicero here raises but dismisses the possibility that Cato could have refused the command to Cyprus (Sest 61, cf. 62, 63), since he wants to stress that Cato, even before this time, had taken oaths in accordance with other laws that he considered unjustly put to the people. In this way, Cicero argues that Cato’s acquiescence to the command in Cyprus was totally in keeping with his earlier behaviour.
59 ‘As if indeed that man had not already previously sworn to uphold other laws too, which he thought unjustly put to the assembly!’ Cicero uses similar language to describe the confrontation between Q. Metelius Numidicus and the tribune Saturninus when an oath was at issue (Sest 37, 101; cf. 61). While Numidicus refused to comply with Saturninus’ law, however, Cato swore allegiance to Clodius’ laws. The Bobiensian Scholiast (on Pro Sestio 61) claims, however, that Cicero in this instance is referring to Caesar’s laws of 59, but there is nothing in the immediate context of Sest. 61 to indicate that Cicero is alluding to the events of any year other than 58 (cf. Kaster [n. 3] 256-7); but see J. Bellemore, ‘Cato’s Opposition to Caesar in 59 B.C.’, in Roman Crossings: Theory and Practice in the Roman Republic, ed. Kathryn Welch and Tom Hillard (Exeter 2005)231-9,Google Scholar on no widespread senatorial oath in 59.
60 Cicero stresses that Clodius’ rogations of 58 were passed iniuste, ‘unlawfully’, or non iure, ‘not lawfully’, suggestive of the context of Cicero’s exile, as we can see from elsewhere, where Cicero terms the bill on his exile a Privilegium and therefore iniustius (Leg. 3.44-5). The Clodian bill naming Cato as governor of Cyprus and others aimed at getting Cicero exiled were viewed as passed imuste, since they caused the exile (albeit temporary) of specific individuals. See also Sest. 144, where Cicero uses the term rogatio iniustissima to designate the tribunician intention to have Lentulus’ command abrogated. Cicero designates the Clodian bills of 58 rogations: the command against Ptolemy of Cyprus (Dom. 21; Sest. 58, 61, 62); his exile (Att. 3.1.1, 3.2.1, 3.4.1, 3.12.1; Dom. 42, 50, 51, 81, 106, 107, cf. 44; Sest. 25, 33, 73; Prov. Cons. 45); and the consular provinces of 58 (Sest. 25, 53, 55).
Rogatio and its cognates are used by Cicero almost exclusively for tribunician laws, in contrast to those put forward by consuls (e.g. Cie. Att. 3.20.3, 3.23.2, 3.23.3; Dom. 87; Sest. 75; Vat 24), best seen in the breach, as in 72, when consuls put a rogation (Balb. 33); in 52, when martial law was effectively in force (Mil. 15, 19, 47); and during the disturbances accompanying the Bona Dea affair in 61 (e.g. Cie. Att. 1.13.3). Cicero is very careful to distinguish, for example, laws passed by Caesar as consul (leges luh’ae) and those passed in his consular year, ceteras ilio consule rogatas ( Vat. 45). On tribunes and rogations, see Sandberg, K., Magistrates and Assemblies (Rome 2001) esp. 46Google Scholar ff., but note that such connections are not assured (K. Sandberg, ‘Tribunician and Non-Tribunician Legislation’, in The Roman Middle Republic: Politics, Religion, and Historiography, ed. Bruun, C. [Rome 2000] 128-9)Google Scholar.
61 Plut, . Cato Min. 32Google Scholar.2-6; App. BC 2.11-2; Dio Cass. 38.3.1-3, 7.1-6; cf. Schol. Bob. on Pro Sestio 61. Dio Cassius (38.7.1) claims that the taking of an oath was not anew practice in 59, suggesting that these were commonplace and resistance was rare, but this seems contradicted by the numismatic evidence (Crawford, , Roman Republican Coinage, vol. 2 [Cambridge 1974] 605).Google Scholar
62 Bellemore (n. 59) 229-61.
63 Trans. Perrin, B., Plutarch’s Lives, vol. 8 (Harvard 1919).Google Scholar
64 Taylor, L.R, ‘On the Chronology of Caesar’s First Consulship’, AJP 72 (1951) 254-68Google Scholar; Seager (n. 29) 88.
65 Clodius, although tribune from 10 December 59, did not begin his attacks on Cicero until 58 (Marinone [n. 3] 104, with references; also Tatum [n. 1] 153). On Plutarch’s chronological confusion, see Kaster (n. 3) 257.
66 Although Plutarch has Cicero personally offering advice to Cato, this is a literary device, since the details came from Cicero’s Pro Sestio, delivered only some years after the events described.
67 Servilius was perhaps keen to refer to the parallel because Numidicus was one of his own ancestors and also a forebear of one consul of 57, Metelius Nepos, who had been an erstwhile enemy of Cicero. On the roles of Metelius Nepos and Servilius Vatia, see Nicholson (n. 1) 60-3; Raster (n. 3) 367-8.
68 Cie. Red. Sen. 25, 37, 38; Red. Pop. 9-11; Dom. 82, 87, 123; Sest. 36-7, 101, 130; Pis. 19-20; Plane. 69, 89; Fam. 1.9.16. In a letter to his brother of September 54, Cicero makes an implicit connection between his exile and that of Numidicus, linking Piso, consul of 58, who presided over his own exile, with Marius, consul when Numidicus was forced into exile (Q.f. 3.1.11); see also Raster (n. 3) 203. Plutarch (Cato Min. 32.6) uses the fate of Metelius Numidicus as a warning of what might have happened to Cato had he not taken an oath to Caesar’s agrarian law in 59, but the exile that Plutarch portrays as a threat to Cato in 59 actually happened to Cicero in 58.
69 Cicero elsewhere states that Numidicus’ exile was legal, whereas his was not (e.g. Dom. 87).
70 See Claassen (n. 9) 45 n. 71.
71 Although Cicero had been forced to succumb in 58 to the combined pressure of the tribune and consuls (Sest. 36), Cato was proof of Cicero’s claim that he had not been alone in resisting and that there had been widespread resistance to the law (Sest. 60-1 ).
72 He also allegedly feared for his brother Quintus Cicero before abandoning Rome (Dom. 96). Plutarch speaks generally of Cicero’s fears of staying in Rome after the promulgation of the lex de capite (Cie. 31.2-5); cf. Dio Cass. 38.16.1,17.4.
73 The terminology used by Cicero reflects that of a magistrate taking action for the people under a statute (cf. Dom. 45). See Crawford (n. 31) 21-2,269.
74 Cie. Red. Pop. 1; Dom. 58, 96. In Red. Sen. 16, Cicero specifically links his fortunae with the bargain over the provinces (fortunas provinciarum foederv), thus suggesting that his loss of property was linked to acceptance by the consuls of Clodius’ law de capite civis Romani’(Dio Cass. 38.17.6). He also records that his son-in-law Piso defended his fortunae (Red. Sen. 38; cf. Fam. 14.4; see also Plut. Cie. 31.2).
75 Cie. Leg. 2.42; Dom. 92, 144; cf. Plut, . Cie. 31.6Google Scholar; see also Cie. Att. 7.3.3; Fam. 12.25.1; Dio Cass. 38.17.5.
76 On Cicero’s dalliance near Rome, see Plut. Cie. 31.2-3; Dio Cass. 38.15.3-6, 16.3-4; cf. Cie. Dom. 29-30, 66); Grimal (n. 3) 63-5. Cicero and others may have approached Pompey at his Alban Villa during this period (Plut. Cie. 31.2-3; Pomp. 46.5), but Pompey seems to have insisted that the matter be referred to the consuls (Cie. Pis. 77; cf. Att. 3.15.4). In Sest. 41, Cicero suggests that Pompey did appeal to the consuls, but this seems doubtful (Kaster [n. 3] 215).
77 Cicero’s flight (e.g. Sest. 45, 47, 73; Pis. 20); on the seizure of his property (Cie. Red. Sen. 17; Sest. 53-4; Pis. 21-2, 26); see also above n. 4. For a detailed examination of Cicero’s movements, see Smith, C.L., ‘Cicero’s Journey into Exile’, HSPh 7 (1896) 75–84.Google Scholar
78 The lex deprovinciispraetoriis reports how those aiding those who have avoided the terms of the law may themselves be subject to punishment (cf. Crawford [n. 31] no. 12).
79 Plutarch mentions the passage of the law de capite (Cie. 30.6), then Cicero’s departure from Rome (31.6), and he claims that Cicero received notice, while still in Italy, that he should not cross to Sicily (Cie. 32.1-2; cf. Dio Cass. 38.17.5-7; Kelly [n. 2] 114). Although Plutarch says that it was Clodius who issued the edict preventing Cicero’s travel to Sicily (Cie. 32.2), he seems to attribute all actions against Cicero to Clodius (Stroh [n. 1] 318). It might well have been the consuls who implemented this ban.
80 In a first letter about Sicca, Cicero suggests that he is staying legally (pro meo iure) for a set term at Sicca’s farm (Att. 3.2), but, in the second, he records that he is hurrying away to prevent Sicca from suffering penalties after Clodius’ new law comes into effect (Att. 3.4; cf. Plut. Cie. 32.2; see also Cie. Dom. 51, 85). In Piane. 97 (cf. Sest. 63), Cicero dramatises the penalties Flaccus could have suffered, but clearly did not.
81 Moreau (n. 3) 472 argues that Clodius passed his second law on 24 April (cf. Kaster [n. 3] 396-7) and thus that Flaccus was liable under this law, since Cicero did not leave Flaccus’ house until 29 April.
82 The Bobiensian Scholiast, in the preface to Cicero’s Pro Plancio, erroneously states that Cicero left Rome only after the passage of Clodius’ second law (lege aqua et igni interdictas ab urbe cessisset). For other evidence, see above n. 17.
83 Cicero may have lost his citizenship at this point. Prior to the passing of the lex de exilio (Dom 85: … multo ante quam est lata lex de me), the senate passed decrees in Cicero’s favour, specifically calling him a meritorious citizen (Dom. 85: … civem optime de re publica meritum…).
84 On this law, see Stroh (n. 1) 317-8.
85 Cicero argues that the law should have used ut interdictam sit instead of ut interdicatur, and ut esset interdictam instead of interdiceretur. On these forms, Nisbet (n. 18) 204-5 argues that Cicero is trying to use sleight of hand. They make sense, however, if based on the presupposition of Cicero’s guilt under an earlier law (Nicholson [n. 1] 30). Cicero intimates elsewhere that his ‘crime’ was related to a falsum senatas consultum (Dom. 50; cf. Sest. 53); see Gabba, E., ‘Cicerone e la falsificazione dei senatoconsulti’, Studi Classici e Orientali 10 (1961)92-3Google Scholar; Moreau (n. 3) 473-4, 472-92; Stroh (n. 1) 350; cf. Greenidge (n. 8) 361-4; Bauman, R.A., ‘Legesludiciorum Publicoruni‘, ANRW 2.13 (Berlin 1980)123.Google Scholar
86 Cicero comments on the role of the censor (Dom. 130). He compares C. Cassius Longinus, censor in 154, unfavourably to Clodius under three rubrics: as men (homines), according to the time (tempus) and to the situation (res). He claims that Clodius had removed the censor’s function of the listing of senators.
87 It would seem that Clodius’ law de censoría nota was not yet in evidence (Broughton [n. 18] 196; Bleicken, J., Das Volkstribunat der klassischen Republik[München 1968] 57).Google Scholar
88 E.g. Dom. 51, 62, 72, 77, 83; Sest 40, 53; Pis. 23, cf. 16. See Nicholson (n. 1) 30; Stroh (n. 1) 352.
89 Cicero publicly tries to deny his pre-existing guilt by attacking Clodius’ advisors (Dom. 48-9) and the wording of the bill (Dom. 50 ff.), but in private he admitted that his reaction to the lex de capite had put him technically in the wrong (Att. 3.15.5). On his fault, see Claassen (n. 9) 45 n. 51; Claassen, , ‘Exile, Death and Immortality: Voices from the Grave’, Latomus 55 (1996)575.Google Scholar
90 Cicero seems to have been taken completely by surprise by Clodius’ re-introduction of Gracchus’ law, and perhaps too by its oath (cf. Yarnold, E.J., “The Latin Law of Bantia’, AIP 78 [1957] 164)Google Scholar. The oath to a law was celebrated on coins in the period 102-100, and an oath of compliance was unusual outside that period (Crawford [n. 61] 605). Cicero had expected that Clodius would launch a public action as tribune, diem dicere, and so to bring him before the people (iudiciumpopuli) (Cie. Q.f. 1.2.16; Att. 2.7.2, cf. 2.22.1, 3; see Jones [n. 22] 4-29, esp. 6). Such a trial could have been stopped by a tribune’s veto. Escape from court action (iudicium publicum) had also been offered to Cicero, to be absens rei publicae causa, as one of Caesar’s legates, but Cicero had rejected this (Cie. Fam. 14.3.1; cf. Att. 2.18.3; Plut. Cie. 30.3-5; Dio Cass. 38.15.2; cf. Jones [n. 22] 5,13, 63).
91 Cicero (Att. 3.15.5, 7) claims that if he had acted differently after Clodius’ lex de capite had been passed, it could not have touched him. He laments that he should have given his positive assent to the law, laudare, a term that suggests a pronouncement in public, perhaps a reference to his oath (e.g. Cie. Sest 25-6; cf. Leg. Man. 69; Leg. 2.8; Phil. 5.7; cf. Sest. 74; Prov. Cons. 1 [with sententia instead of lex]).
92 Cicero may be referring to his refusal of the oath to Clodius’ law, when he reports that he always used his words wisely, and that he had sworn under oath that he had saved the state (Dom. 93-4), but cf. Nisbet (n. 18) 150.
93 Cicero makes oblique references to the choice confronting the boni at this time, forced either to comply with the law or to put up an armed struggle in his defence, and he claims that his departure obviated this problem (Red. Pop. 13; Dom. 63,95; Nisbet [n. 18] 129).
94 Many of these men had urged him to leave Rome, but Cicero later considered that these men had betrayed him: Hortensius and Arrius (Q.f. 1.3.7-8 ff., 1.4.1; Red. Pop. 21 ; Dom. 30); his amici timidi (Red. Sen. 23, 33; Red. Pop. 13; also Plut. Cie. 31.4). Note Cicero’s comments on the lack of overt support for him (Sest. 38, cf. 42, 46). These men seem to have counter-claimed that Cicero left them in the lurch by departing from Rome at this time (Cie. Plane. 86).
95 The consuls of 58 are reported by Cicero to have given vocal support to Clodius’ law (Sest.33:… voce ac sententia; 35:… et voce et sententia). See also Sest 55. Cicero stresses that senators and other leading citizens in Rome were greatly upset by some aspect of Clodius’ legislation (e.g. Sest 25 ff.; Stroh [n. 1] 350-1), which he asserts was concern for his welfare (e.g. Sest. 32, 36, 38, 50, 53), but Clodius’ law may have raised hackles because it forced all senators to give an oath to a ‘popular’ law (on such features, see Cie. Att. 3.15.5).
96 The decision to remain out of Rome was risky. After his formal exile (in late April), Cicero feared that his enemies, Autronius, for example, might assault him (e.g. Cie. Att. 3.2, 3.7.1; Plane. 100).
97 If a recusant absconded, the magistrate with jurisdiction in this instance (perhaps the consul) according to the terms of the sanctio might institute a missio, an order to arrest this man and to give notice that action might be taken to recover debts (Greenidge [n. 8] 282-6; Mousourakis [n. 31] 207). This seems to have been the situation in which Cicero found himself. He later describes this as latrociniumby Piso (Pis. 25; see also Red. Sen. 9,10).
98 In the case of those who violated the sanctio of a law, penalties might be exacted by a magistrate who, in the case of a fine, might confiscate property and oversee its public disposal (Greenidge [n. 8] 12-4, 281-2; Mousourakis [n. 31] 217). Cicero is vague about the actions of the consuls of 58, but it would seem that, after he left Rome, some event prompted them to strip his houses (Sest. 54; cf. Red. Sen. 17).
99 Cicero is believed to have left Rome in early to mid-March 58, but the /ex de exilio was not promulgated until the beginning of the next month and did not become law until the end of April (Grimal [n. 3] 149; Moreau [n. 3] 472; Kaster [n. 3] 396-7). There was clearly something preventing his return to Rome at this time (cf. Shackleton Bailey [n. 3] 228).
100 His discessus plagued him for many years (Raster [n. 3] 202-3). In 56, Vatinius made a sustained, two-fold attack on this (Cie. Vat. 6-7); also in 56 (Prov. Cons. 45). In 54, Laterensis tried to unsettle Cicero in court through an attack on his discessus (Cie. Plane. 86).
101 Cicero argues publicly that a peccatum could only follow condemnation, which he did not suffer (Dom. 72, 77), and he glosses his peccatum as his saving of the state in 63 (Dom. 95: erat res post natos homines pulchenimà). It seems hardly credible that Clodius could have referred to Cicero’s actions in 63, including the summary execution of five men, as a peccatum (Stroh [n. 1] 335), and, therefore, some less important charge is at the heart of this attack, to Dom. 95-6, Cicero adds to the impression of a lesser charge as he gives the ‘real’ reasons for his departure, which he puts in terms of a compulsory oath: dicendum igiturest id quod non dicerem nisi coactas… dico igitur et quam possum maxima voce dico.
102 Cie. Att. 3.9.1, 3.14.1, 3.15.4 (deliquisse); Q.f. 1.4.1. Cicero denies any peccatum when writing to Terentia (Fam. 14.4.6), perhaps because he is trying to put the best face on his actions (cf. Nisbet [n. 18] 129).
103 That discessus was shorthand for the case against Cicero, we see in a reference to the disaster that befell Metelius Numidicus, which was also linked to his discessus (Cie. Red. Sen. 25).
104 Hardy (n. 45) 25-59.
