The Senatus Consultum Ultimum (SCU) – “The Final Decree of the Senate” – in the Roman Republic may guide us on how a state deals with a crisis and the implications for the future of such a state exerting its power in the context of an emergency.
Today in May of 2020, we in Australia and indeed much of the rest of the world live under conditions of restricted freedoms which would have been scarcely imaginable a year or even a few months ago. We all understand and accept why this has happened, because of the pandemic COVID19, extraordinary measures are necessary to flatten the curve, save our healthcare systems and avert disaster. However, it is critical that we reflect on the legal mechanisms used by governments around the world to enforce “self-isolation”. These measures are necessary and have been working to save lives. Equally, it is important as a democratic nation to reflect on what the implementation of these measures means regarding the powers of our governments.
The “Final Decree of the Senate” as it has come to be known in modern scholarship, was a declaration of a state of emergency, declared by the Senate. It empowered the senior magistrates to take actions beyond the normal bounds of the law to deal with threats to the Republic. The declaration of a Human Biosecurity Emergency on the 18th of March 2020 similarly empowered Australian Health Minister Greg Hunt to “set requirements to regulate or restrict the movement of persons, goods or conveyances” among other “expansive” powers. Unlike the Roman example of the SCU, however, these powers are not unlimited, and the legal punishments used to enforce them are clearly defined.
This modern use of powers by the Australian state stands in stark contrast to the events of 63 BC associated with the conspiracy of Catiline and, one of the most controversial examples of the SCU’s invocation. A conspiracy led by the senator Catiline to violently take over the government and abolish debt came to light, at least according to the orator Cicero, - a consul for that year. His information for this conspiracy, however, was initially based on hearsay and dismissed by the Senate. The emergence of written documents outlining the plot in broad strokes was enough to convince the Senate to take action, Plutarch, Life of Cicero, 14. Although Catiline fled the city with some of his supporters, he was declared a public enemy by the senate and the SCU was invoked, empowering Cicero to deal with the crisis, Sallust, Conspiracy of Catiline, 29. Catiline’s supporters in Rome were soon imprisoned, but this presented Cicero and the senate a legal problem.
Under normal circumstances, the execution of Roman citizens without a trial would be illegal, yet Cicero argued that the conspirators were too dangerous to be allowed to live any longer and called, albeit timidly, for their immediate execution. He was opposed by Julius Caesar and yet the support of Cato the Younger swayed the senate to the side of Cicero, Appian, The Civil Wars, 2.1.6. Catiline’s supporters were quietly executed one by one, before the public was made aware of the decision. The precedent set by Lucius Opimius in 121 BC held that the consul could unilaterally use the SCU to execute citizens, since Opimius had been tried and aquitted by the Senate. Despite this Cicero still presented the matter to senatorial debate in order to place the decision in their hands, Cicero, Against Catiline, Fourth Speech. Thus, shifting responsibility from himself as consul to all the senators and creating a greater legitimacy for his actions.
Those actions would have been illegal under normal circumstances, but were instead legitimised at a time of emergency by the SCU. Just as today, government ministers have been empowered to impose extraordinary restrictions on personal freedoms. While it is certainly important that we follow self-isolation and social distancing mandates, it is also important to consider the mechanisms and powers which our government has at its disposal to enforce them. Indeed, five years after the events of the conspiracy, Cicero was driven into exile for his handling of the crisis. His home was destroyed and the site consecrated to Liberty. The Romans, at least in this case, were not kind to a politican using a crisis to extend the powers of the state.
For social responses to crisis see: Saade, D. “Such was the History of the Plague.” MQ Ancient History Blog.
Cicero, ‘Against Catiline’.
Appian, ‘The Civil Wars’ Book II.
Sallust, ‘Conspiracy of Catiline’.
Plutarch, ‘Life of Cicero’.
Badian, E., ‘Sergius Catilina, Lucius’ Oxford Classical Dictionary (2016).
Balsdon, J., & Griffin, M., ‘Tullius Cicero, Marcus, life, the famous orator Cicero.’ Oxford Classical Dictionary (2015).
Mitchell, Th. N., ‘Cicero and the Senatus “consultum ultimum”’ Historia: Zeitschrift fur Alte Geschicthe 20. (1971), pp.47-61.