On the ground then of public necessity Cicero would have been justified in putting the Catilinarians to death by his own authority or by the advice of any assessors whom he might select to act with him. But in view of the fact that no case absolutely parallel had occurred since[1] the Law of Caius Gracchus on which his adversaries mainly relied, he thought it better first to take the advice of the great public council which the constitution had provided for him. This was, strictly speaking, an innovation. The Senate had sometimes condemned rebels by name as public enemies, thereby directly advising the consul to put them to death; but such rebels had always been persons at large and in arms (as Fulvius), or supposed to be in arms (as Caius Gracchus), not prisoners under present detention. The difference however is one of circumstances, not of principle. In either case the decree of the Senate could make no difference in the legal responsibility of the consul. The legal justification of his act was, not that the Senate had ordered it, but that it was necessary for the preservation of the State. He would have been worthy of blame, if in order to carry out this consultation he had dangerously delayed his action. But when the advice of the Senate could be asked without practical inconvenience, it was clearly wise in the consul to obtain it. It was important for the sake of the moral impression to be produced, that the
- ↑ The precedent of the execution of the Bacchanalian conspirators. In 186 B.C. (see Livy, xxxix., 14, et seq.), as being previous to the Sempronian Law, probably went for nothing. At any rate Cicero never refers to it.
