Power in history’s earliest states was typically central and singular. In the first cities and empires of the Mediterranean world, public decisions were commonly made by a sole ruler and executed by administrators, soldiers, and scribes.Footnote 1 Democratic Athens was a noteworthy exception, but its control of territory extra muros was brief and its capacities of judgment earned grave skepticism.Footnote 2
Rome was different. From 509 bce to Cicero’s lifetime, its expanding empire was governed by a plural cast of magistrates, chosen by assemblies and serving a single year in each post. Elections were hotly contested and made winners and losers on each step of the ladder of power. And for all the richness of Roman public law, no constitution established these offices or defined their limits. An agglomeration of written statutes (leges), judicial precedent (ius), and ancestral custom (mos maiorum) were the main constraints on the ambitions of Rome’s politicians.Footnote 3 If one magistrate’s interpretation of law or custom conflicted with another’s, no higher court save that of public opinion could resolve the dispute.
At its most successful, this distribution of power produced a dynamic equilibrium capable of great resilience – as in the Republic’s recovery from staggering defeat at Cannae (216 bce) to triumph over Carthage.Footnote 4 But by Cicero’s lifetime, this model – apparently as successful as it was unprecedented – had reached a breaking point. Rome had won a vast empire, but politics at home were in disarray. A chasm had opened between rich and poor, and the popular institutions designed as counterweights – the tribunes, courts, and contiones – could no longer budge an intransigent senate.Footnote 5 Frustration and ambition led to increasingly radical strategies; rivalries once contained by auctoritas and suffragium now spilled onto the battlefield. The dam of civil peace broke in 132 bce with the murder of reformer T. Gracchus, setting in motion a wave of violence that only broke with Octavian’s victories a century later. Strife and emergency were the constants of Cicero’s career.
The next three chapters examine how he used the notion of will to rationalize Roman politics as they came undone. Will is firstly for Cicero the animating force of this venerable equilibrium. The wills of Rome’s magistrates should be a public asset, vectors to inscribe reason on the world. These forces are naturally counterbalanced by respect for colleagues and for the maiores. This is the system Polybius had described in other terms at its pre-Gracchan zenith and that inspired later notions of “checks and balances.”Footnote 6 In his early career, Cicero describes and defends this equilibrium in which senators, magistrates, and assemblies all participate. Reciprocity is central in the constitution Cicero later frames: “For the man who governs well must have obeyed in the past, and he who obeys dutifully will be seen fit later to govern.”Footnote 7
This ideal equipoise of will, already damaged at the time of Cicero’s birth, was increasingly tipped toward bloodshed. The mature Cicero watches Pompey and Caesar overwhelm all collegiality and constraint; worse still, Cicero finds himself arguing to suspend those same constraints, such as in the Catilinarian conspiracy and with Pompey’s extraordinary commands. To this crisis of norms, as Straumann shows in a masterful recent study, Cicero applies constitutional thinking.Footnote 8 In the face of enactments he considers unjust, Cicero appeals to ius as a body of norms with superior force. Legislation by his popularis opponents can thus be annulled for procedural reasons – disrespect of auspices or votes carried by violence – but also for substantive or material ones. Clodius’ bill to strip Cicero of his house cannot properly be lex because it defies a central norm of Roman ius: Legislation targeting one citizen (privilegium) is forbidden.Footnote 9
When will cannot be tempered by the diffusion of power into many hands, some new constraint must be found. This constraint, argues Cicero, is natural law (ius naturae), discovered by Greek Stoics but given life in Rome’s legal and political heritage. De republica and De legibus, written after the crises of his consulship and exile, show Cicero at the summit of political creativity. Here, we find his strongest normative statements about how will should balance the Republic. Cicero throughout his life had presented will as subject to rational limits – and, further, as the force necessary to make reason effective. In these works, however, the constraints on will are no longer primarily horizontal and organic: They are inherent, substantive, and governed by higher-order principles of natural law as interpreted by a rational elite. As Straumann and others have capably shown, though these principles failed to save Cicero’s republic, they unwittingly laid the foundation for much of modern constitutionalism and thus for much of the political fortunes and misfortunes of today.Footnote 10
The present chapter will show how Cicero employs the idea of will to map his political environment, the intentions of its leading players, and the lawful boundaries of their power. In letters and speeches, we find both artful political commentary and heartfelt appeals to place will under reason’s control. In Chapter 4, we will see how a particularly Roman coinage – voluntas mutua or “mutual goodwill” – serves Cicero and his colleagues in stabilizing a fast-growing empire. Here, the crisis of Caesarism impels him to engage with theories of reciprocity and friendship. Chapter 5 will bring Cicero’s political beliefs most fully into view. We will explore how voluntas creates the relationship between sovereign citizen and governing elite, producing an idea unknown to Plato and Aristotle: the will of the people.
In its contemporary form, powermapping is the discipline that traces and interprets the dynamics of a social system.Footnote 11 Its purpose is to derive from the raw data of personalities, laws, and events a blueprint of influence to help an advocate advance their goals. Powermapping encompasses a range of techniques and frameworks; it has no definitive textbook. It is manifest, rather, in certain practices and habits of mind that, from the evidence of their texts, may have been as useful to ancient analysts as to their modern counterparts. Among these are: realism, an attention to informal influence as well as formal status; interdependence, an interest in the second- and third-order effects of a given event; and dynamism, a recognition that as roles shift and relationships evolve the transaction of power can undergo radical change. Each of these principles is evident in Cicero’s attention to the equilibrium – and, more often, the discord – of Rome’s willful politicians.
For Cicero, powermapping was literally a means of survival. Lacking an army, street gang, or family compound, he depended on intellectual gifts to stay out of harm’s way. Uncovering the designs of a Pompey or Catiline required sophisticated intelligence-gathering and a new toolkit of expressions. Mapping networks of influence first helps Cicero clear a path to high office. He begins gauging the preferences of senatorial colleagues more than a year before his campaign for consul, signaling to Atticus, “when I have made out the wills of the nobles, I shall write to you” (cum perspexero voluntates nobilium, scribam ad te).Footnote 12 Descriptively, the notion of will helps Cicero trace finer gradations of support and opposition, notably in the phrases sua or summa voluntate. In a more normative tone, it helps him reframe party conflict and distinguish his opponents from the “good citizens” who included senate and people alike.
But powermapping was not only an instrument of self-protection. To map is to order a disorderly world. From his first speech against Verres to his final Philippic, Cicero is propelled by the duty – dimmed but never extinguished – to restore mos maiorum and return the republic to her better self.Footnote 13 Here, Cicero’s normative claims for reason and will come to the fore. At home and abroad, voluntas should transact within a plural order of auctoritas, with rational will prevailing over violence. His acknowledgment in De republica that politics “may defeat reason” does not refute but rather emphasizes the standard that reason must set.Footnote 14 With help from Stoic and Platonic ideas, Cicero takes the voluntas of common usage and builds a case for the priority of self-mastery over brute force. Where vis overwhelms voluntas in Roman politics, as Laelius predicts in De republica, “those who up to the present have obeyed us by will are held faithful by fear alone [qui adhuc voluntate nobis oboediunt, terrore teneantur].”Footnote 15 On the other hand, will bereft of reason is temeritas, a selfish ambition that “runs beyond the mark.” In letters and speeches, Cicero constantly strives to raise the practice of politics to a rational plane where the rough edges of ambition are refined by wise law and prudent action. But whereas for Cicero the politics of voluntas stand diametrically opposed to those of vis, Caesar enforces his own will at the point of a sword.
3.1 Intentions, Alliances, and Schemes
Cicero’s map of Roman power begins with the wills of its leading men. In the early days of his public career, this task centers upon an uncommonly changeable politician: Gnaeus Pompeius Magnus. Writing to his ally Lentulus Spinther in 56 bce, Cicero relates that while Pompey has nominally supported his friend’s appointment to restore the exiled king of Egypt, support of an alternative measure among Pompey’s friends “intensifies suspicion as to Pompey’s will [auget suspicionem Pompei voluntatis].”Footnote 16 This discrepancy between words and intentions has immediate consequences for Lentulus: To oppose the alternative bill is to risk angering Pompey, while allowing it would undermine his own standing. The interdependent stances of these actors carry serious consequences and thus must be carefully recorded.Footnote 17
In his cartography of power, Cicero enlists the help of young Caelius Rufus. In their correspondence, they explore the hidden wills of Rome’s major players. If Cicero meets Pompey, writes Caelius,
be sure to write and tell me what you thought of him, how he talked to you, and what will he showed [quam orationem habuerit tecum quamque ostenderit voluntatem]. He is apt to say one thing and think another, but is usually not clever enough to keep his real aims out of view.Footnote 18
As elsewhere with the spirit of a law and the goodwill of an audience, in this exchange will is a durable inner force that can alter over time. Unlike with sententia, a stated opinion on a single issue, reading voluntas is an ongoing concern in which surface positions can mask true intent. Principles of political realism must apply: In the most favorable cases, a politician’s voluntas can be “plainly noted” (plane perspecta), such as in the timing Pompey seeks for Caesar’s withdrawal from Gaul.Footnote 19 But most often, as Cicero writes Brutus, “people’s wills [are] concealed and their dispositions complex [occultas hominum voluntates multiplicisque naturas].”Footnote 20 Indeed, Cicero recognizes the utility of obscuring his own voluntas at delicate moments. When Dolabella emerges as a potential son-in-law during his prosecution of one of Cicero’s allies, Caelius advises him to “show nothing whatsoever of your will [nihil de tua voluntate ostendas].”Footnote 21 Political will can also be weaker than it appears: Caelius recounts the soft opposition of the Catonians to public honors for Cicero following his victories in Cilicia “because they merely showed the measure of their will without fighting for their position, whereas they could have been a nuisance [tantum voluntatem ostenderunt, pro sententia cum impedire possent non pugnarunt].”Footnote 22
Caelius’ gifts were rare, though, and Cicero could betray frustration with those who lacked his protégé’s subtlety. As Caesar marches from Gaul in 49 bce, Cicero remonstrates with Atticus for making special efforts to go welcome him, adding that Pompey had blundered, too, by extolling Caesar’s “most brilliant achievements” (rebus gestis amplissimis) in public. The smarter move was, of course, to pacify Caesar without elevating him: “[A]ll this blurs the signs that might distinguish sincerity from pretense [quibus voluntas a simulatione distingui posset].”Footnote 23 In Cicero’s politics, prudence demanded not sincerity but a scrupulous insincerity that served both his reputation and his survival.
The flexibility required of a budding politician made voluntas an ideal term to denote all manner of schemes. In his speeches, the notion of will adds fire to his invective. He vilifies Catiline and his friends for their “unscrupulous will and purpose” (voluntas et causa impudentissima),Footnote 24 or when, though depriving his popularis enemies of their swords, he cannot remove their “criminal and evil wills” (voluntates … consceleratas ac nefarias).Footnote 25 Conversely, he could use it to signify a righteous state of mind, as when praising the censor Gaius Cassius for erecting a statue of Concord: “His will was a lofty one, and worthy of all praise [Praeclara voluntas atque omni laude digna].”Footnote 26 Similarly, by presenting the will as measurable he can track it as it shifts, as when he expresses regret to Atticus that Lucceius’ voluntas is “more obstinate” (obstinatior) than before, requiring a new strategy to reconcile the two.Footnote 27
Though these expressions were useful when analyzing an individual, the functional unit of Roman politics was the network. Here, too, voluntas helps Cicero trace hidden lines of influence. In the courtroom, he uses voluntas to link two individuals in a criminal conspiracy, tying Verres to a previous judgment against an ally for illegal taxation.Footnote 28 Conversely, Cicero uses will to decouple an aggrieved Sicilian from the corrupt governor who claimed to have seized his estate voluntate.Footnote 29 A new level of complexity arises with the formation of the First Triumvirate. To justify his volte-face toward the three men, Cicero recalls Pompey’s stern reminder that support for his return from exile was given voluntate Caesaris.Footnote 30 That Caesar’s will lay behind Pompey’s support adds leverage to the demand that Cicero reverse his opposition to Caesar in the senate, leverage to which Cicero ultimately yields.Footnote 31 Similarly, Caelius writes regarding Curio’s candidacy for tribune that his newfound goodwill toward the boni is not as it appears: “[I]ts origin and cause is that Caesar … has shown his indifference to Curio in no uncertain manner [huius autem voluntatis initium et causa est quod eum non mediocriter Caesar … valde contempsit].”Footnote 32 The second-order reasoning of a powermapper is well in evidence here: If Caesar’s rebuff was the true cause of Curio’s defection to the optimates, despite Caesar giving funds “to get the friendship of any guttersnipe,”Footnote 33 Cicero could conclude both that Curio was not to be trusted and that Caesar must have special cause for his ill will.
3.2 Sua and Summa Voluntate
In a dynamic and realistic powermap, purely “yes or no” positions are rare. More often, a multitude of shadings lies between opposition and support. With the phrase sua voluntate Cicero develops a semantic middle ground, previously unattested in Latin, between political neutrality and active adherence. When Athens’ municipal council, seeking to protect the ruins of Epicurus’ house, comes into conflict with the Roman senator owning the property, Cicero entreats his colleague to let it be known that the Areopagus had acted “according to your will” (tua voluntate).Footnote 34 If the senator could not explicitly reverse his stance without loss of face, tua voluntate will signify his implicit endorsement of the city’s plans, defusing the conflict.Footnote 35 Similarly, when the senate debates restoring Cicero’s house after his recall from exile, the tribune Serranus, dissuaded from interposing a veto, attempts to delay the proceedings. Seeing that the tide of opinion was in his favor, Cicero opts against confrontation: “[W]ith much ado, and with my willingness, the point was conceded him [vix tamen ei de mea voluntate concessum est].”Footnote 36 By taking the middle path designated by mea voluntate, Cicero again defuses a politically tense moment without harm to his own position: A decree in his favor passes the next day.
The sense of mea voluntate as implicit endorsement had a range of uses for Cicero. The phrase could save him time or annoyance, as when he importunes Atticus to handle a conversation with Clodius he would rather avoid.Footnote 37 Near the end of his career he uses the phrase counterfactually to ease political suspicions: In the fourteenth Philippic, Cicero accuses the Antonians of attempting to entrap him by offering fasces “as if done by my will” (quasi mea voluntate factum), a putative coup d’état they wanted as a pretext for murder.Footnote 38 A surviving letter from Antony shows that Cicero was not the only statesman to exploit the phrase. A month after Caesar’s murder, Antony expresses his wish to recall from exile a henchman of Clodius convicted for burning down the senate house seven years before. Antony claims to be recalling him with Caesar’s permission, but that he will only do so tua voluntate; that is, with Cicero’s consent.Footnote 39 Antony’s ploy is transparent: Though Cicero is a well-known enemy of Clodius, Antony wants to equate the absence of Cicero’s active opposition as a tacit endorsement of the man’s recall. (Whether he overestimated his own power to muzzle Cicero is another matter.)
The particular sense of sua voluntate comes into clearer relief in contrast with the related sua sponte, “of one’s own accord.” While voluntas is for Cicero a specifically human faculty, all creatures can act sua sponte; the phrase also implies, as voluntate does not, that its subject initiated the given action.Footnote 40 For example, Cicero writes to Atticus regarding a letter he has apparently sent at Atticus’ behest, “recommending me to do something I had already done of my own accord [mea sponte] the day before.”Footnote 41 To perform an act sua sponte was to do so deliberately and thus take ownership of the consequences – in this case, credit from one’s friends. By contrast, sua voluntate allowed Cicero and his colleagues another shade of remove from acts they did not want too explicitly to endorse.
Similarly, the phrase summa voluntate allowed Cicero to keep himself at a comfortable distance from a given political act. In his defense of Murena, Cicero accuses the prosecutor, Servius, of having spoiled his campaign for consul by wasting time and capital on antibribery legislation. Though some of his bills had passed,Footnote 42 there were others “which a crowded Senate rejected with my strong approval [quae mea summa voluntate senatus frequens repudiavit].”Footnote 43 Cicero frames a battle of wills between himself and Servius; but whereas Servius has actively exerted himself, summa voluntate denotes Cicero’s support – perhaps even his engineering – of the bills’ rejection without deigning to oppose them openly. Voluntas thus maps Cicero in clear opposition to Servius while creating enough semantic distance to frame the conflict as one concerning principles, not personalities, and that in any event costs Cicero no effort to win.Footnote 44
In some cases, voluntas could express strong favorability toward an event that Cicero had neither initiated nor actively supported. In his first political speech, he exhorts the senate to approve the granting of Pompey’s special commission against Mithridates. He gently defuses his senior colleague Catulus, who opposes the motion on the grounds of its novelty (novum), by praising him and noting that such powers had recently been granted summa Q. Catuli voluntate.Footnote 45 The word summa serves the rhetorical purpose of emphasizing, without accusing his elder colleague of hypocrisy, that his past and present positions do not match. Moreover, Cicero submits that Catulus had actively participated in granting these powers, that these prior innovations “were brought about on the initiative of Quintus Catulus and the other honorable men of the same rank [sunt in eundem hominem a Q. Catuli atque a ceterorum eiusdem dignitatis amplissimorum hominum auctoritate].”Footnote 46 The notion of his colleague’s “honorable” if inconsistent will lets Cicero keep a pointed riposte within respectful bounds.
The phrase summa voluntate could also create protective distance from political liability. In the early stages of his campaign for consul, Cicero is contemplating defending Catiline against charges of extortion, and he reports to Atticus, “we have the jury we want, with full willingness of the prosecution [iudices habemus quod volumus, summa accusatoris voluntate].”Footnote 47 At least for the moment, Cicero was contemplating the defense of Catiline via collusion with Clodius – skirting the law with his soon-to-be bitterest foes! The phrase summa voluntate serves Cicero by adding semantic distance from this collusion, implying that Cicero and Clodius were working together while not explicitly assigning responsibility. Cicero creates a similar distance in writing to Quintus that the elections for 53 bce have been continually postponed due to contrary omens “by the great willingness of all good men [magna voluntate bonorum omnium].”Footnote 48 Cicero knows that political opposition, not divine disfavor, is behind these “omens”; his phrase preserves a pious fiction by distancing the boni from their own tactics.Footnote 49
Cicero seeks the same kind of protective distance in his famous “palinode” for Caesar, De provinciis consularibus. The speech to his fellow senators aims at a delicate and awkward goal. Though having vocally opposed Caesar’s land redistribution bill, and with his personal distaste well known, Cicero must now both support Caesar’s tenure in Gaul and suggest their relationship is sounder than it looks:
If you also thought it important to the good cause that Caesar’s will should not run counter to my well-being [voluntatem Caesaris a salute mea non abhorrere]; and if I have his son-in-law [Pompey], who is at once my witness for Caesar’s goodwill to me [mihi testis de voluntate Caesaris], and guarantor of my own to him … should I not eradicate from existence those most unhappy matters, at least wholly banish them from my heart?
The awkwardness of the moment impels Cicero to try not one but three rhetorical tricks: (1) the association of Caesar with his “son-in-law” Pompey, still a senate favorite; (2) the association of the senate with Caesar’s support; and (3) a qualified reference to his own rapprochement. The “reconciliation” of Caesar and Cicero is not between the two men personally, but rather between Caesar’s voluntas and Cicero’s salus. These semantic niceties help Cicero navigate a most uncomfortable turn of events.
3.3 Voluntas as Affiliation
A well-attested sense of the Greek prohairesis was an individual’s choice of life path.Footnote 50 Though this sense of voluntas was probably not original to Cicero,Footnote 51 he makes inventive use of it in his account of Rome’s civil strife. For decades, rival coalitions of populares and optimates had vied with one another with increasing violence.Footnote 52 Unwilling and unfit to join a battle of arms, Cicero attempts a maneuver in the combat of ideas. In his speech for Sestius (56 bce), he explains:
There have always been two classes of men [duo genera] in this State who have sought to engage in public affairs and to distinguish themselves in them. Of these two classes, one willed to be, by repute and in reality, “the people’s men,” the other, “best citizens” [alteri se populares, alteri optimates et haberi et esse voluerunt].
He continues:
“Who then are these best citizens of yours?” In number, if you ask me, they are infinite; for otherwise we could not exist … All are “best citizens” who are neither criminal nor vicious in disposition, nor frantic, nor harassed by troubles in their households [Omnes optimates sunt, qui neque nocentes sunt nec natura improbi nec furiosi nec malis domesticis impediti].
In a move much imitated by modern politicians, Cicero thus reframes party labels to his and his allies’ advantage. Against the idea that Rome’s two political genera represent a recent emergency, Cicero claims that it was always the case that Roman leaders willed to be optimate or popularis. Voluerunt thus carries a double kind of permanence: lifelong commitment to one of two political tribes, themselves a permanent feature of the Roman landscape.Footnote 53 Interestingly, Cicero first gives equal treatment to the two camps, saying that these partisans sought to habere and esse their affiliation. He then shifts course, expanding the definition of optimate from the moneyed elite to all Romans rich and poor who seek “calm with dignity” (cum dignitate otium, 98).Footnote 54 Cicero’s new framework excludes only those who are “by their natures unsound” (natura improbi) – an unsubtle reference to his popularis opponents. In other words, the “party spirit” first presented as a venerable choice of sides is refashioned such that only criminals could fail to be considered “best citizens.”Footnote 55
In the seventh Philippic, Cicero attempts a similar argument to reframe the political affiliations of his enemies – here, the allies of Mark Antony who remain in Rome:
Hence we see that all along they disliked the best condition of the community, and that they were not willingly the “people’s men” [non voluntate fuisse popularis]. How else does it happen that the same folk who were “people’s men” in evil causes prefer to be criminal rather than “popular” in the most popular cause that ever was, being also for the good of the Republic?Footnote 56
We see the great distance that “willingness” has traveled from its Plautine origins as a lack of compulsion.Footnote 57 Cicero is certainly not claiming that these allies of Antony were forced to be popularis; rather, their current criminal behavior proves the insincerity of their previous voluntas (here, “adherence”) for the popularis cause. In a deft rhetorical turn, Cicero argues that whereas these men were false populares, he is now – due to the present emergency – a truer popularis than they are!Footnote 58 Here, the bivalence of will – its ability to serve good or evil – collides with Cicero’s normative ends. Instead of condemning his opponents’ “evil wills,” he wants instead to argue that they do not really have a “will” at all: Their voluntas is faulty, derived from a shaky grasp of public affairs.Footnote 59 Will as party affiliation can also be weighed and measured, as when Cicero laments that the gifted popularis C. Gracchus was not “turned toward a better mind and will [ad meliorem mentem voluntatemque esse conversa].”Footnote 60
As conflict deepens between triumvirs and senate, Cicero faces a dilemma over where his own voluntas should lie. In a letter to Lentulus Spinther in 54 bce, he describes feeling caught between the ideals of a bonum civem, loyalty to the Republic over faction, and a bonum virem, honoring his friendship with Caesar and Pompey.Footnote 61 In this tour de force of rationalization, Cicero floats three separate arguments, each of which hinges on voluntas as a deep but alterable affiliation. He first pleads the superior claim of Pompey’s service to the Republic and their bonds of friendship. How could Cicero be criticized if “in certain speeches I changed my tack a little and aligned my will with the dignity of this great man [me immutassem meamque voluntatem ad summi viri de meque optime meriti dignitatem adgregassem]?”Footnote 62 Second, he complains that even if he had kept his former stance, there are no longer optimates worthy of the name: “[A]ccordingly, men of sense, of whom I hope I am and am considered to be, have now completely to reshape their will and position [et sententia et voluntas mutata esse debet]” (20.18).Footnote 63 In a final appeal to Lentulus, Cicero maintains that, after all, it was the boni who shifted their wills first (ac bonorum voluntatibus mutatis, 20.21), and therefore, “we must move with the times [temporibus adsentiendum].”Footnote 64 Besides suggesting what we would call a guilty conscience, this variegated plea shows the importance of voluntas as affiliation and the lengths to which Cicero went to justify his own.
3.4 Boundaries of Political Will
3.4.1 The Status Quo and Its Problems
As Straumann demonstrates, Roman constitutionalism was, somewhat paradoxically, the result of political failure. Derived in great part from unwritten norms,Footnote 65 the principal constraints of the early republican constitution were procedural and temporal, not substantive. Despite endemic tensions between patricians and plebeians, laws passed by proper order in the assemblies were typically perceived as legitimate, especially following the Lex Hortensia of 287 bce.Footnote 66 As we have seen in this chapter, a magistrate’s scope of action was limited by the complementary powers of his colleagues and the expiration of his term of office – following which, in extreme cases, he could be prosecuted for abuses of power.Footnote 67 While “entrenched” norms such as the individual right to a trial before the people (provocatio) are in evidence prior to the Gracchan crisis,Footnote 68 explicit arguments for those norms – properly “constitutional” claims – only emerge, in Straumann’s view, in the partisan battles of the late 2nd and early 1st centuries bce.Footnote 69 Only as the constitution was collapsing, in other words, did constitutional thought come into its own.
Could a people’s assembly give Sulla the power to declare Roman citizens enemies of the state?Footnote 70 Could a law to redistribute land be held invalid in the face of a higher-order right to property?Footnote 71 Though sources for disputes like these are often from Cicero’s lifetime or later, Straumann shows how ius and mos maiorum may have been increasingly evoked after 132 bce to annul otherwise lawful acts. His main area of focus involves the limits to popular legislation, a topic I examine more fully in Chapter 5.Footnote 72 For the purpose of individual magistrates, the point is that by Cicero’s lifetime the collapse of traditional “checks and balances” required new forms of argument to counter the willful and ambitious.Footnote 73
The problem of legitimacy was mirrored in the essential instability of voluntas in common usage: The same word marked both a lawful decision and the personal desires one might place above the law. This linguistic ambiguity was reflected in the problem of self-help: Since Rome had no state police force, when a magistrate invoked emergency powers, he was not only able but expected to enforce those powers with violence.Footnote 74 As a young orator, Cicero exploits this ambiguity when it suits his needs. He could argue that the seemingly dubious voluntas of a magistrate was legitimate, as in the case of Sulla, for whom “the people of Rome passed a law that gave his own will legal force [legem populus Romanus iusserat ut ipsius voluntas ei posset esse pro lege].”Footnote 75 Conversely, in another case he cautions a jury not to accept the censors’ judgment against his client as binding, being “their will or opinion, whichever it was [sive voluntas sive opinio].”Footnote 76 Similarly, he describes the augurs’ assignment of Verres to the city praetorship as “more gratifying to his own will and Chelidon’s than to the will of the Roman people [magis ex sua Chelidonisque, quam ex populi Romani voluntate].”Footnote 77 Even where Cicero admits that a magistrate’s voluntas was used legally, he can signal that political will and public interest may not be the same.Footnote 78
3.4.2 Cicero’s Bounded Voluntas
As he confronts the rise of violence and the shattering of old norms, Cicero pleads more strenuously for rational limits to the exercise of political will. Reading together references from his letters and speeches, we find the primary tenets of the pluralist system he envisions.
Firstly, each of Rome’s public officials has a scope of action within which he can exercise independent judgment. In his letter to Quintus on how best to govern a province, Cicero advises his brother that his signet ring, symbol of his magistracy, be “not the tool of other men’s wills but the witness of your own [minister alienae voluntatis sed testis tuae].”Footnote 79 Like imperium, will carries the double sense of the governor’s decision at a given moment and a durable faculty or power.Footnote 80 Depending on his place in the hierarchy, a magistrate should be expected to carry out the wills of others;Footnote 81 so, too, was he free to alter his own will as circumstances changed.Footnote 82 Critically, his will operates within a framework of written law, as when Cicero accuses Verres of subverting voluntate ac sententia legis.Footnote 83 In sum, a magistrate’s will, though unforced, should align both with the statutes and customs of the past and with the consilia of Rome’s best men.Footnote 84 As such, a wise statesman both honors and augments the voluntas of Rome’s ancestors.Footnote 85
Secondly, in Cicero’s republic, will is not singular and self-regarding but one voice in a polyphony. Though independent in judgment, a leader must take account of where his colleagues stand, as does the consul-elect Plancius in “elicit[ing] the wills of my fellow governors and commanders in adjoining provinces [eliciendae etiam voluntates reliquorum].”Footnote 86 Those of more senior rank will expect and deserve deference on certain matters,Footnote 87 requiring prudent compromise; Cicero affirms to Atticus that even in the second speaking slot reserved for ex-consuls, “one’s will is not too much fettered by one’s sense of the consular favor [voluntatem non nimis devinctam beneficio consulis].”Footnote 88 In all things, one must respect the wills of one’s colleagues and not harm or diminish (laedere) them.Footnote 89 Hard cases arise when private and public status collide. When the tribune Flaminius carries a land bill “against the wishes of the senate and in contrary to the wills of the best men [invito senatu et omnino contra voluntatem omnium optimatium],” his father exerts patria potestas and drags him off the rostrum.Footnote 90 But these hard cases underscore the general principle that the voluntas of each man be proportional to his place in a common order.
Thirdly, a statesman should use the notion of will to temper conflict. In its legal sense, to act contra voluntatem meant to defy a person with auctoritas over oneself; Cicero uses this sense in reassuring his ill servant Tiro that he has not acted contra meam voluntatem in remaining absent.Footnote 91 In his politics, however, he often seeks to portray opposition not as defiance but rather as a temporary dissonance of will. When assigned the second slot in the speaking list of ex-consuls, Cicero counters the slight by observing that it will allow him to speak contra voluntatem of the first-place Piso, a former legal client he doesn’t much like.Footnote 92 Positioning himself between optimates and triumvirs after the conference at Luca, Cicero notes bitterly that since speaking contra Pompei voluntatem had not won over the boni, he might as well tack toward Pompey again.Footnote 93 In both of these cases, the phrase contra voluntatem makes clear that speaking against Piso or Pompey in the senate does not mean that the men are eternally inimici. Cicero’s opposition is not aimed at their persons but their personae.Footnote 94 Some of his peers apparently accepted this usage; Lepidus, on the march against Antony, pardons Silanus and Culleo out of considerations of past friendship, despite their having assisted Antony contra meam voluntatem.Footnote 95 The phrase thus gives a stable frame to an otherwise provocative act, depersonalizing the conflict and favoring a reconciliation.Footnote 96
3.4.3 Outer Limits: Violence and Temeritas
As we have seen, the earliest surviving use of voluntas is the ablative voluntate to signify willing action.Footnote 97 In Cicero’s corpus, the word underpins one of his closest-held convictions: that brute force should yield to free choice in public affairs. In De inventione, he proposes that justice first arose in human society when, by the power of oratory, men abandoned rule by the strongest and learned “to obey others willingly [aliis parere sua voluntate].”Footnote 98 Similarly, in Book 3 of De republica, Laelius argues that the Republic will decline “if the habit of lawlessness begins to spread and changes our rule from one of justice to one of force [ad vim a iure traduxerit], so that those who up to the present have obeyed us willingly are held faithful by fear alone [qui adhuc voluntate nobis oboediunt, terrore teneantur].”Footnote 99 Both at the Republic’s beginning and at its end, the primacy of lawful will over brute force is Cicero’s criterion of civilization.
Free choice is, Cicero insists, the very soul of Roman law. In his defense of Caecina, Cicero asserts that no citizen can be compelled to renounce his citizenship: Those Romans who downgrade their status by joining colonies do so “either of their own will or to avoid a penalty imposed by law [aut sua voluntate aut legis multa profecti sunt]: had they been willing to undergo the penalty, they could have remained within the citizen body.”Footnote 100 He employs a similar argument to ensnare Verres’ lawyers, who had accused his Sicilian witnesses of bias. Cicero argues that certain statues erected in Verres’ honor were either sua voluntate statuisse (“set up of their own will”), refuting the alleged bias, or were extorted illegally by Verres himself.Footnote 101 “Will anyone doubt,” Cicero concludes, “that a man who is bound to be your deadly enemy, who has sustained the heaviest wrongs at your hands, paid the money supposed to be for your statue because he was ordered and forced [vi atque imperio adductus], and not because he was obligated or willed it [non officio ac voluntate]?”Footnote 102 The contrast of vis and voluntas and the link between the farmers’ will and their duty frame the justice of Cicero’s claim.Footnote 103 At the other end of the moral spectrum, Cicero decries the evil voluntas of Catiline’s cronies and links Clodius’ voluntas to his impudentia, audacia, and cupiditas.Footnote 104 Rather than resolve the bivalence in his notion of will, Cicero heightens it for rhetorical effect. This nebulous space between lawful and self-serving will is the gap through which Caesar will march his legions.
The utmost expression of will was temeritas. The word’s etymology is complex. It shares the same root as tenebra, a shadow, yet Cicero also links it to the Greek propeteia, “running beyond the mark” in a moral sense.Footnote 105 In nonphilosophical use, the word covers a wide spectrum from simple thoughtlessness to criminal ambition.Footnote 106 Its political purpose, however, is to mark the responsibility of actors whose volition carries them beyond ancestral norms. Cicero locates temeritas in the arrogance of his popularis enemies;Footnote 107 in his speech for Plancius, he accuses them of carrying the Roman people along with them in their recklessness, “by impulse and temerity [impetu … et quadam etiam temeritate].”Footnote 108 Temeritas, Cicero wants to say, is will unbridled by reason.Footnote 109 But whereas Cicero’s typical adversaries can be painted as reckless monsters, the case of Caesar is not so simple. His cognitive gifts are beyond question; his excesses cannot be compared to the temeritas of a grasping child, as Cicero does with Piso.Footnote 110 Cicero insists that Caesar’s unbounded will is temeritas, but rather than emphasizing its lack of self-control, he focuses instead on the “error of opinion” (opinionis error) that led such a brilliant man to a misguided use of his will.Footnote 111 Unsurprisingly, Caesar rejects this label – nihil temere agendum, he writes in Bellum GallicumFootnote 112 – and he may also have applied Greek ideas to suit his needs. Lévy observes: “Caesar, perhaps because he had learned from Epicureanism that action is determined by calculation, asks his soldiers for an unwavering will, which is something else entirely from temeritas.”Footnote 113 Cicero calls for a rationally bounded will; Caesar, only an unfailing one.
3.5 Caesar’s Voluntas
Caesar had several assets in his drive to refashion the rule of law around himself. There was the immediate pretext of Pompey’s overreach and the senate’s dubious treatment of his allies.Footnote 114 More importantly, he could call on the venerable principle of self-help: Victims of a crime, whether private or public, bore the primary responsibility to redress it. Where the danger was particularly grave and urgent, Roman tradition allowed for the emergency use of force, as Cicero himself had sanctioned against Catiline and his allies. Curiously, in that very case Caesar may have argued to constrain the will of Rome’s consul by citing a law that extended provocatio to the military sphere – a speech in which, if Sallust is correct, Caesar warned about the precedent of removing limits to individual power!Footnote 115 Caesar famously exploits the institution of the dictatorship – to which he had been elected by a vote of the assemblyFootnote 116 – and the precedent of Sulla, whose voluntas Cicero admits had been given the force of lex.Footnote 117 Consequently, Caesar did not need to invent a new vocabulary to justify his regime – only stretch the one that already existed.Footnote 118
If Cicero’s voluntas is a force governed by ethical restraint, the dictator’s will obeys only itself. Merely describing this new order could be a struggle. Cicero writes to a friend that Caesar’s consolidation of power has made all things uncertain, “when the path of legality has been forsaken, and that there is no guaranteeing the future of what depends on someone else’s will, not to say his whims [quod positum est in alterius voluntate ne dicam libidine].”Footnote 119 Each of the principles Cicero had defended – that individual will be constrained, balanced, and uncoerced – Caesar rejects. Freedom of speech is gone; Cicero must “say nothing offensive to his will or those of people he likes.”Footnote 120 Caesar’s intentions are now the only ones worth mapping: Cicero finds himself reassuring the senate that no one could doubt “what is Caesar’s will with regard to war [quae Caesaris de bello voluntas fuerit],”Footnote 121 and he is at pains to excuse any wartime actions “less according to Caesar’s will” (minus ex Caesaris voluntate) as “extremely unwilling” (invitissimum) and “someone else’s idea” (aliorum consilio).Footnote 122 A man’s orientation to Caesar’s will is now the sole indicator of his standing, as when Cicero pleads to Caesar that Ligarius had never been “distant from your will [alienae a te voluntatis],”Footnote 123 or when Caecina worries that Caesar has judged some of his writing to be contra suam voluntatem.Footnote 124 To act contra voluntatem Caesaris was no longer to create a temporary opposition in a stable order, but rather to defy the voluntas patris of Rome itself.
After Caesar’s death, Cicero was briefly optimistic that Rome’s traditional equilibrium could be restored. He thanks Oppius for his advice that Cicero join Pompey’s camp, in which “you thought more of my duty than of [Caesar’s] will [antiquius tibi officium meum quam illius voluntas fuit].”Footnote 125 The restoration of Rome’s liberty is, in Cicero’s retelling, a triumph of many wills over one: “And so, all decent men killed Caesar so far as it was in them to do so: some lacked design, some courage, some opportunity; none lacked the will [aliis consilium, aliis animus, aliis occasio defuit; voluntas nemini].”Footnote 126
Yet history shows that Caesar accelerates a semantic process in which an imperator’s will would not only be unbound by constitutional restraint, but would become the very source of law. As the dictator’s heirs take control of the “restored” republic, they cannily adjust the language of authority. The jurist Modestinus writes, regarding the crime of electoral bribery (ambitus) against which Cicero had so often inveighed: “[T]his law is obsolete in Rome today, because the creation of magistrates belongs to the care of the emperor, not the favor of the people [quia ad curam principis magistratuum creatio pertinet, non ad populi favorem].”Footnote 127 The overturning of republican tradition is accomplished not by direct attack but by the introduction of new phrases – “the care (cura) of the emperor” – suggesting a benevolent paterfamilias, not a domineering tyrannus. In civil disputes, a citizen’s voluntas remains a key criterion of justice,Footnote 128 but in high public matters, as Ulpian writes, “that which has been decided by the emperor has the force of law [quod principi placuit, legis habet vigorem].”Footnote 129 And yet, an idea of constraint lingers in the Roman legal psyche. To the above dictum, the jurist adds this explanation: “because the emperor himself is given his imperium and power by a law of the people [utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat].”Footnote 130 Centuries after Cicero, the unboundedness of imperial will continued to complicate Rome’s greatest idea: its rule of law.
