Life and literature in the Roman republic

by Tenney Frank

FOOTNOTES

[1] Inez Scott, Early Roman Tradition in the Light of Archaeology, Memoirs Am. Acad. in Rome, VII (1929). The archaeological evidence referred to in this chapter may be found in my Roman Buildings of the Republic (Rome 1924), and in an essay on the “Early Temple of Castor,” Mem. Am. Acad. in Rome, V; a part of this chapter has already appeared in the Am. Hist. Rev. (1927).

[2] E.g. Rosenberg, Einleitung und Quellenkunde, and J. T. Shotwell, Introduction to the History of History.

[3] See art. “Licinius Macer,” by Münzer, in Realencycl., XIII.

[4] Cato’s first three books of Origines similarly recorded the legends of other Italian cities without pretending to judge their historical value, but in his history of his own day he proved himself a very accurate observer. However, he seems to have treated only episodes that interested him. Piso, the last of the early annalists, introduced the unwise method of rationalizing the early myths in order to make them more plausible.

[5] Some of the evidence may be found in my Roman Buildings, 53, 78, 83.

[6] Cicero, like many a modern statesman, desired a favorable presentation of his deeds in history and biography. However, when it was not a question of his own deeds, his historical ideals were very high. In his Brutus (292-4) he insists that history requires the same accuracy as testimony given in court under oath. In the De Oratore (ii. 62-3) he says that the first requirement of the historian is to have courage to tell the whole truth and never to deceive. He consulted the archives even to get an accurate setting for his fictitious dialogues (Ad. Att. xiii. 33, 3; xiii. 3, 3; xii. 5, 3). Some modern critics have found heart to suspect Cicero’s historical ideals because he insisted that history should be well written!

[7] Op. cit., 201.

[8] Polybius VI, 56; XIII, 3; XVIII, 35; XXXII, 8-9.

[9] Cf. Klotz, art. “Livius,” in Pauly-Wissowa-Kroll, XIII, 816 for a critical bibliography.

[10] Tacitus, Ann. 7, 34: fidei praeclarus.

[11] Plut. Cato minor, 18. On Roman archives see art. “Archive,” in Pauly-Wissowa-Kroll, II, 560.

[12] Silenus, Sosylus, and Chaireas; Eumachus of Naples may also have been a contemporary. The explicit details of the battles in Campania may well owe something to him.

[13] Livy, 38, 50.

[14] De Sanctis, Storia dei Romani, III, 2, 338 pp.

[15] See Jour. Roman Studies, 1919, 202.

[16] Beloch, Röm. Geschichte, 89, 629.

CHAPTER VII
CICERO’S RESPONSE TO EXPERIENCE

A shelf of books has been written upon the Greek sources of Cicero’s ideas, and if one were to discuss the manner in which Cicero’s own experiences modified those ideas before he accepted them for his own use one would ask for a second shelf of at least equal length. Cicero’s political works, like the De Republica and the De Legibus were written after an extensive perusal of Greek political masterpieces, but they are not, like many of the philosophical essays, paraphrases. The author betrays the fact that he has been in politics for a long time, that he has in fact been a party leader and has held the highest offices of state. He does deference abundantly to Plato, Polybius, and Panaetius for good suggestions, but it is an experienced Roman statesman who has the last word on every issue at stake.

Cicero’s various political works are not all in agreement with each other nor with the utterances upon the same themes found in his letters and orations, nor do his political acts follow an unbending course. He lived in fact through a long period of revolutionary changes in politics, when consistency through a life-time would have betokened either inability to learn or stubborn intransigence. Drumann set him down as a turncoat, a judgment which Mommsen reiterated in a great variety of phrases. Heinze, in a mistaken attempt to rescue Cicero’s reputation, tried to prove that he had been a fairly consistent conservative through life. Zielinski, on the other hand, endeavored to show that Cicero’s theories could be traced to his reading, and that a search in these sources would explain Cicero’s somewhat wavering course.

All these views seem to me to emerge from cloisters that are very far removed from the kind of democratic politics that Cicero lived through, a kind of politics not entirely unfamiliar to some of us from daily observation. Drumann and Mommsen wrote in an atmosphere where firm and consistent loyalty to the existing régime was expected of all gentlemen and where firm independence and detachment were taken as marks of vacillation; and even Heinze’s apology breathes some of the same spirit.[1] As for Cicero’s dependence upon the theories of his predecessors, it must be admitted that no Roman knew them better or received more from them. But professors who delve in books all their lives are apt to over-estimate the effect of written theory and of tralatician ideas, and to under-estimate the momentum of facts that compel practical men to take quick and unpremeditated action. Very often Cicero saw the value of an idea in Plato or Panaetius only after an experience of his own had thrown him pell-mell upon the realities that disclosed the meaning of their abstract ideas. I wish here very briefly to outline his changes in political thought against the background of his experience and his reading.

In speaking here of Cicero’s party affiliations we must recall that political parties remained rather amorphous at Rome, since all citizens could cast their votes directly in the legislative assemblies without using representatives elected by means of well-organized party machinery; since labor, confined largely to slaves, had no voice in politics, and finally since commerce and industry, which are usually very powerful factors in legislation, never became strong enough at Rome to formulate an effective program. In the fourth century B.C. the plebeians had struggled to win political equality with the patricians; in the second century an era of good feeling reigned in which Polybius was aware only of a well-balanced coordination of functions between the executive, senate, and popular assembly acting in self-restrained rivalry; after the Gracchi the party issues, when at any time they became acute, could usually be formulated in terms of the question whether the assembly was sovereign or whether the aristocratic senate had the right to direct or check its operations. The special questions that arose during the period and that invited a frequent shifting of party loyalties were numerous, as for instance, the disposal of public lands, the constitution of the law-courts, the enfranchisement of the allies, the special ambitions of men like Marius, Sulla, Caesar, and Pompey, the power of the tribunate, and the legality of the senatus consultum ultimum. During this period the knights, the propertied middle-class, were usually found to be aligned on the democratic side because they could more readily secure what they desired by such a coalition; but whenever the populace showed an inclination to threaten the rights of property they quickly shifted toward the senate.

Cicero’s father was a knight from the municipality of Arpinum, and a neighbor and distant relative of Marius. The old gentleman had marked leanings away from the theories of pure democracy; nevertheless in practice his relationship with Marius, his residence in a municipality where sympathies with the Italian allies begging for the franchise were strong, and his status as a knight were factors that at times drew him toward democracy. It is not surprising therefore that the young Cicero was placed in tutelage under Scaevola the augur, one of the liberal senators who presently showed his courage by refusing to vote Marius a traitor at Sulla’s orders. We can also comprehend why the young student eagerly followed the speeches of Sulpicius, the tribune who tried to secure a practical franchise for the Italians, and in order to do so placed Marius in command of the army by removing Sulla. In the years 88-7 it is clear that Cicero lived in a very liberal atmosphere where optimate politics were not in favor. During the domination of Cinna, Cicero, who was then diligently studying philosophy, took no active part in politics, but it is apparent from his later judgments that he bore no love for this brutal leader of the democracy,[2] though the knights in general continued to support him. On the other hand, when Sulla returned, seized the dictatorship and executed sixteen hundred knights, Cicero acquired for this aristocratic leader an aversion that left its mark throughout all his later writings. Through these years of revolution, therefore, Cicero’s sympathies were determined chiefly by antipathy to the respective leaders of both extremes rather than by any party allegiance.

But when the courts were finally revived in the year 80, Cicero soon appeared in the defense of Roscius, whom no speaker of distinction had dared defend because a creature of Sulla had suborned the attack upon him. We may freely admit that Cicero did not take this case in order to reveal the venality of Sulla’s régime. He would have betrayed his client if he had used this opportunity to attack Sulla, for he spoke before a jury of senators. It is of course quite apparent that if up to this time Cicero had been an outspoken opponent of the aristocracy, the friends of Roscius would not have risked employing him in the presence of that jury. But it is equally certain that Cicero would not have taken a case that was sure to lead to the exposure of Sulla’s favorite, Chrysogonus, if he had been a confirmed follower of Sulla. In the speech he made one definite statement of his political sympathies: “Those who know me, know ... that, after the peaceful settlement, which I especially desired, could not be consummated, I favored the victory of the side that has conquered.” This admission, that Sulla was not his first choice, made before a jury of senators at a time when few men dared speak against Sulla, can hardly be used to prove Cicero a supporter of Sulla. It is in fact clear evidence that his disapproval of Sulla’s use of military force was so well known that it had to be admitted in court and, for the sake of his client, excused so far as possible by an emphasis upon a later course of acquiescence. The peroration of the speech, a very courageous exposure of the brutalities of the Sullan régime, which gives evidence of a keen insight into social psychology, proves that Cicero fully understood the evils of the dictatorship.

There is not one among you who does not comprehend that the Roman people, formerly humane even in the treatment of enemies, is now suffering from a wave of cruelty here at home.... This not only has resulted in the utterly brutal murder of many citizens, but has destroyed in our people, once so compassionate, the capacity to feel any pity.[3]

When we consider these two passages in connection with the fact that Cicero—without pay of course—took a case which none of the distinguished men of his day dared touch, we can only reach the conclusion that Cicero’s aversion to Sulla and his crew was at this time the dominant influence in his life. This does not indeed prove Cicero a democrat, but it does go far to explain why Cicero did not for the next sixteen years reveal any sympathy for the senatorial cause, and why during that period he frequently criticizes Sulla and his policies,[4] while mentioning the Gracchi in terms of high praise.[5] Cicero was still a moderate liberal.

Cicero was in Greece when Sulla died and therefore had no share in the abortive revolution of Lepidus. On his return he took few political cases, giving a large part of his time to practice in civil cases (Verr. II, 181), through which he won enough distinction to secure election to the questorship and aedileship.

In the first Verrine oration Cicero inveighed bitterly against the past venality of the senatorial courts, instituted by Sulla, and the selfishness of the oligarchy. This was of course in part due to his plan to frighten the jurors into a severe judgment, for he went on to remind them that a reform of the court had been proposed and indeed was probably imminent. However, it is clear that Cicero was eager to take the onerous case. He fought for the privilege, he spent months of expensive and unpaid effort in the midst of the canvassing season upon it, he went out of his way to reveal the sins of the senatorial misrule of the provinces, and to speak with high respect of democratic heroes like the Gracchi, and of democratic proposals like the return of the tribunate. All these things prove that Cicero could not at this time have been considered a supporter of the aristocracy. The equestrian order, with which he was still closely identified despite his entrance into the senate, had strongly supported Pompey and had united with the populace in electing him on a moderate democratic program. There can be no doubt that Cicero had voted wholeheartedly for Pompey and that he supported the equestrian-democratic bloc and program. If in the Sullan days he was an independent liberal with aversions to both Cinna and Sulla, he was now willing to work with the liberal group, even if a somewhat independent adherent who was waiting to see whether the party made good before committing himself definitely.

With Pompey’s accession to the consulship the fortunes of the knights, who had suffered untold disasters under Sulla, reached a turning point. The restoration of the censorship meant among other things that the equestrian corporations were again to be assigned provincial contracts; the restoration of the tribuneship meant that they would not have to appeal to the hostile senate for desired administrative measures; the revision of the court panels gave back to them both power and prestige. Since Pompey proved to be their friend they determined to honor him and use him further. In 67 they demanded that the seas be cleared of pirates so that the commerce in which they were interested would be protected; and they demanded that Pompey be placed in command of the war with extraordinary powers. When the senate objected, the knights, resting their arguments upon Gracchan precedents, took the bill directly to the assembly. The senate considered this revolutionary. The populace, flattered by this appeal to their assembly and favorably disposed to Pompey, supported the knights. When the senate induced a tribune to veto the measure, Gabinius, assuming the validity of the Gracchan theory of “recall,” threatened to present a bill to depose this tribune, thereby forcing him to desist. This was tantamount to accepting the democratic theory of popular sovereignty in its extreme form, and Cicero seems to have acquiesced. At any rate when Cicero mentioned the incident in the Pro Cornelio two years later, he raised no objection to the procedure, and afterwards when he quarreled with Gabinius he did not cast this act in his teeth.

In the year 66, when Manilius introduced a proposal to place Pompey in command in Asia, the same coalition of knights and populace again insulted the senate by taking the bill directly to the assembly. On this occasion Cicero was the principal speaker for the coalition; and he spoke as a full-fledged democrat, unashamed. One may of course suppose that Cicero was largely influenced by life-long connections with the knights and by a deep devotion to Pompey, apparently dating from the time when he served under Pompey’s father in the Social War. One also realizes that the Manilian law had a very great practical appeal, and that a rising and ambitious young statesman like Cicero would see the advantage of being chosen as the spokesman for such an important measure of the party then in power. Be that as it may, the speech of that day is the speech of an important and accepted member of the popular-equestrian party.[6]

This was the year of Cicero’s praetorship in which he had to serve as judge in the trial of Licinius Macer, a radical democrat, who was accused of misappropriation. Cicero mentions the case to Atticus immediately after the trial, remarking—though a judge had but little discretion in such matters—that he had been favorably disposed to the culprit in his management of the case, and had received much favorable comment from the people for his attitude.[7]

A democratic attitude is again shown by Cicero in his defense of Cornelius the next year (65). Cornelius in his tribuneship had angered the senate by proposing several radical plebiscites and especially by his disregard of a tribunician veto. When the herald had been forbidden by a tribune to read the bill of Cornelius in question, Cornelius himself had read it to the assembly, thereby not only breaking an old law but also in a new manner putting into effect the Gracchan theory of the “recall” which would strip the senate of its power to interfere in legislation. When Cornelius was haled to court by some senators on the charge of lese majesté Cicero undertook to defend him; in this defense Cicero confined himself to minimizing the charge of the actual breach of a law, but did not offer any apologies for the attempt of Cornelius to apply the radical theory of “recall.” Indeed he actually defended that part of the procedure by referring to the precedent set by Gabinius two years before.[8] Here then he accepted again the Gracchan theory of popular sovereignty. In the years 66-5 at least Cicero behaved like a confirmed democrat.

In July of 65, about the time of his speech, Cicero wrote to Atticus that he had begun to think of his canvassing for the consulship and that he was certain of the support of all but the nobles, that is to say, he knew that the equestrian and democratic groups would vote for him. A few days later he still felt himself so closely allied with the democratic group that he was considering giving legal aid to Catiline. That however he did not do. A careful investigation into the merits of the case was probably enough to dissuade him.

This year in fact proved a new turning point in Cicero’s politics. Pompey had now been absent for two years and his coalition lacked effective leadership. The democrats had suffered in prestige by electing to the consulship Autronius and Sulla, who were presently convicted of bribery and deposed. In the reaction against the radicals two conservatives had been elected. The deposed candidates made matters worse for their party by entering into (or so it was widely rumored) a conspiracy to seize power, only to fail again. Catiline, one of their aides, continued the agitation with more and more questionable proposals, and the party was so far discredited that the soberer element began to look for saner leadership. The party itself, under such leadership as Catiline could give, drifted far toward the left, and among the stronger men only ambitious politicians like Caesar and Crassus—who hoped to use its fortunes to their advantage—remained in nominal allegiance. Cicero of course could not follow such guidance, and it is probable that most of the property-owning knights had drifted rightward before the year was over. These men of the middle class had been willing to support the Gracchan theory of popular sovereignty because it seemed to insure the possibility of progressive legislation; but when the more radical democrats began to talk of using the assembly for monetary inflation and moratoria on private debts, the knights were of course frightened. Caesar and Crassus added to their fears by proposing to ask for imperialistic commands for themselves and to check the power of Pompey who had been winning provinces which the knights hoped to exploit under a stable régime. Unfortunately none of Cicero’s utterances have survived from this momentous year (July 65 to July 64) when, like the rest of the knights, he must have drifted steadily away from the old coalition, or rather when he saw the left wing of the party drifting steadily away from the time-honored Roman devotion to law and property rights.

Before the election of 64, in which Cicero stood for the consulship, Catiline became ever more a demagogue and made an alliance with the unprincipled Antonius. These two men received the support of Caesar and Crassus, but of course not of the moderates. The conservative element of the state disliked to vote for a novus homo like Cicero, but the only other sound candidates were Cornificius and Galba, who were little known and fairly sure of defeat. Cicero was certain to get most of the equestrian vote, he would draw heavily from the popular vote because of his well-known liberal connections, he had the favor of Pompeian soldiers and adherents, and on economic and social questions he could be trusted. The optimates therefore decided to support him although he was not one of them. But the veering was not all on their part. Cicero also had learned from the talk of Catiline, Caesar, and Crassus that the Gracchan theory of popular sovereignty without a senatorial check might lead to dangerous economic and imperialistic legislation. He accordingly abandoned the theory that the senate had no constitutional right to interfere in the popular will, a theory which he had supported in 66 and 65. He doubtless said so in the senate before election day, when saying so would count. At any rate very soon after he assumed office, when the question of the senate’s auctoritas came up in Caesar’s prosecution of Rabirius, he threw all his energy into the defense of Rabirius and the senate’s right to proclaim martial law,[9] and he did so by reminding the people that their great leader Marius, contrary to his party politics, had recognized the authority of the senate when a great crisis came. This served well as an apology, if one were needed, for his own abandonment of the central democratic doctrine when his eyes had been opened to its dangers. Cicero thus led the knights into a coalition with the optimates and continued through the year to cement a concordia ordinum.

During the summer the second violent canvass of Catiline on a reckless program of revolution only made Cicero a more confirmed conservative. To save the state from revolution he had himself to propose a senatorial order of martial law in October, a measure he would doubtless have fought three years before, and under its provisions he had the conspirators put to death, an act which made him the prime defender and advocate of the central optimate theory, and later caused his banishment at the hands of Caesar’s democratic coalition. Thus experience and circumstances had in three years turned the avowed democrat into an extreme optimate. It is needless to follow his career in detail: the desertion of his coalition by the knights because Caesar offered them what they desired, his banishment, which only confirmed his convictions that he was right, his failure on his return to undo Caesar’s popular legislation because the senate feared Caesar and dared not follow Cicero. He still clung for a while to his new doctrine of the senate’s importance, as the Pro Sestio proves, but it was a futile policy. The senators, fearing Caesar, failed to respond. He saw then, if not before, that the senate could not rule Rome.

Cicero now retired from active political life and found time to think and draw conclusions from his experiences for a carefully considered review of Roman political needs. In the De Republica, which he wrote in 54-1, shortly before the Civil War, he carefully reviewed the history of the Roman constitution in order to lay a sound foundation for a durable and reasonable program in case the senate and people should ever regain the freedom of action which the first “triumvirate” had taken away. There was some hope that such a program might have a chance, for Crassus was out of reach and Pompey and Caesar were noticeably falling apart. In this book he shows that Rome had definitely rejected autocratic government, and that, as Polybius had already seen, it had combined the machinery of popular sovereignty with aristocratic checks under strong but short-term executives. In showing that this form was historically based and that it had operated well in the happiest days of Rome, Cicero became convinced that he must give a larger place in his book to the popular assembly than he had been willing to accord it since the days of Catiline. He says with rather surprising firmness that the populace must have liberty of action or they will revolt, and that liberty was a natural right that no man of intelligence could propose to destroy. This is virtually a confession that he had gone too far toward oligarchy in his own consulship. He knew now that if the nobles had been more friendly to the populace, Caesar would not have been able to seize control. He therefore admits the theory of popular sovereignty which could not be denied after the events of 59, but he also seeks for some method by which to check the danger of such a concession. His new theory is that the body politic should be educated to accept the leadership and advice of some strong person who might, like the revered princeps senatus of old, be honored as guardian (rector or gubernator) and whose considered advice would be respected by all. He says explicitly that he has in mind such a man as Scipio Aemilianus, who at times served in just such a capacity even when he held only the honorary designation of princeps senatus.

In the fragments that we have the precise intention of the great office does not come out clearly. One scholar believes that Cicero had Pompey in mind, and that Augustus later tried to put the program in action under his own régime.[10] A few years later Cicero in a letter to his most trusted friend says that Pompey had never measured up to the height of his ideal rector,[11] which seems to be a confession that Cicero had had Pompey in mind as a possible candidate though fearing that Pompey would prove deficient as a leader. It can hardly be doubted that Cicero must have had moments of regrets that the state had not accepted him, Cicero, for such unofficial leadership after his consulship. It is quite clear that if Cicero had at that time proved himself a man of outstanding qualities of leadership he might have become for many years a rector of the type that he describes. At any rate in 43, after Caesar’s murder, Cicero assumed for himself the position of rector and gubernator, though he held no office.[12] However, while writing the De Republica in 54-1, Cicero could hardly have supposed that his day of influence would return so long as Caesar or Pompey continued in power.

Another possibility is that when Caesar appeared to be aiming at some form of autocracy, Cicero entertained the hope of converting that powerful man by his monograph on government to accept a constitution of good old traditions and to assume under that constitution a legal and dignified position such as Scipio had for a while enjoyed. There is at any rate a significant passage in the De Provinciis Consularibus,[13] written in the year 56 (two years before he began to write the De Republica) in which, after much flattering of Caesar, he suggested that since Caesar was as moderate as he was wise he would be willing to accept a constitutional position and act in harmony with the senate, if the senate would act in a conciliatory manner. That passage may be the safest clue to follow in trying to fathom the intentions of the De Republica.

Cicero’s hopes, however, were shattered. Pompey continued to fall short of deserving full confidence, and Caesar grew into a politician bent on his own advancement. The civil war and the victory of Caesar antiquated the doctrine that Cicero had preached in the De Republica, and he had to revise his program once more. Caesar’s dictatorship temporarily destroyed the republic, but Cicero could not avoid hoping that there might be a day of recovery. When he wrote the De Legibus[14] a few years later, Pompey was dead, Caesar was playing the tyrant and Cicero himself had little hope of gaining the helm of influence. He therefore abandoned the idea of a rector, and yet he knew that if Caesar should die or be removed the state would again need a constitution. In this new work accordingly he reverts to the historical tradition of the Scipionic republic, but openly assigns to the senate the leadership that it tacitly had had before Scipio’s day, by proposing to allow the senate to control legislation by the requirement of a vote of ratification (eius decreta rata sunto). This proposed change, which would eliminate the dangers inherent in the tribunate, shows that Cicero had learned from Caesar’s career that a rector might become too powerful, that while popular sovereignty must be recognized as a safety-valve in legislation, the senate must be given a firmer hold on legislation so that it might check both the assembly and the magistrates at critical moments. He was once more, and for reasons easy to comprehend, an advocate of aristocracy.

Cicero had only one brief opportunity to take the helm once more, and then, in the war against Antony, during the last year of his life, the state was in such confusion and under such stress of compulsion that it is not easy to say what theory of the constitution Cicero actually followed. During his unofficial leadership (he probably had frequent occasion to think of himself as the rector of his De Republica) the senate carried on the war under a senatus consultum ultimum, which was regular enough at times of internal disturbance. When it was necessary to impose a direct tax upon all citizens—which had not been necessary since 167—the senate seems to have voted the measure without reference to the assembly. But this also, illogical as it may seem,[15] followed precedent. Finally, it was the senate that annulled the legislation of Antony, for which there was also an abundance of precedents. There was, however, one piece of legislation during this period which betrays the direction of Cicero’s thought. The lex Vibia,[16] an act to confirm the legality of Caesar’s deed, was ordered to be submitted to the centuriate assembly on an auctoritas senatus, and this shows clearly that the democratic constitution of Caesar’s régime was now out of favor. The plebeian assembly could hardly have been slighted in this instance through fear of the lower classes, for the measure was popular enough. It was clearly a procedure which could only have meant that Cicero intended the senate to control legislation by use of the most conservative machinery provided by the old constitution of Rome. Cicero’s last acts therefore reveal him even farther away from the democratic policy than those of his consulship.

This review reveals Cicero as inconsistent in party loyalty; it shows that he began as a moderate, then, forced by hatred of Sullan tyranny and induced by immediate practical needs, that he plunged well into democracy, only to be driven by the democratic excesses and the offices of responsibility deeply into conservative sympathies. Experience and observation next led him to revise his theories, first in the direction of liberalism, then, reacting to Caesar’s errors, toward conservatism. Yet we need not, with Mommsen, call Cicero a turncoat. He generally followed a straighter course than the parties that shifted all about him. Nor need we, with Heinze, insist that he was consistently an optimate all the years before his consulship, for he was always willing to seek new theories of government when experience proved the old ones inadequate. Finally, Zielinski’s view that he acted generally on theories found in his reading is perhaps less justified than any other. Cicero read widely and certainly gained some of his ideas from books—the source-hunter may find parallels in abundance—but when Cicero acted it was not merely because of what he had found in a book, but because he had had actual experience and was feeling his way to the logical conclusion of his observations.

Here we have attempted to illustrate very briefly how Cicero reached his conclusions in political theory through experience, as in a preceding chapter we stressed forensic experience as the chief formative factor of Ciceronian prose. In both of these fields Cicero wrote not primarily as a well-read man transmitting the views of others, but rather as the chief authority of his day by virtue of his own accomplishments. In tracing the body of philosophic essays which he compiled with amazing speed during the six months of retirement in the year 45, we find a very different product, for, as he told Atticus, who was surprised by this prolific output, these are and purport to be merely paraphrases and translations from the Greek.

In a sense, of course, we find the fruit of Cicero’s experiences in these also, since he usually chose for paraphrasing what he felt to be significant, and in each work he omitted what met with his disfavor, expanding and illustrating the ideas which appealed to him. Furthermore, since he was concerned rather in presenting clearly the points that interested him than in giving a faithful translation of the Greek, the resultant essays often, even when they are to some extent mosaics, give us very precisely the Ciceronian pattern. Large parts of his philosophical compilations may therefore be taken to illustrate Cicero’s own convictions reached through his own experience; and when we deal with such work it may be more fruitful to consider Cicero’s own contribution to the final design than to hunt the original quarry from which he drew each tessera.

Let us turn to another illustration of how Cicero’s views altered and enlarged through personal experience until at last, even though he expressed himself through paraphrased passages, he succeeds in making us feel that he is giving us an epitome of his own personal convictions. For this purpose we may consider his statements about the survival of the soul after death.

In his youth, especially during the civil wars when a public career seemed for a time closed, Cicero had devoted much time to the study of philosophy, and, being a normal Roman of the old type, to whom the actualities of life meant more than metaphysical speculation, for whom the world of realities was too full of interest to allow any time for mystical contemplation, he had naturally accepted the agnostic attitude of the New Academy toward the “unknowable.” With the New Academy he was theoretically ready to admit “probabilities,” even to act on probabilities, but epistemology had no appeal for him. Of course there are degrees of likelihood and the degrees are apt to vary with mood and occasion. When Cicero spoke before the populace he could see enough plausibility in the argument for Divinity to assume its existence for the time being. But when he wrote to his intimate friends the likelihood did not seem pressing enough to receive mention. He supposed with many other agnostic statesmen of his day that official worship of the gods was useful in the maintenance of the social system,[17] and this explains why, when he stood before the people, giving official advice, his faith seemed to expand. We need not take such faith very seriously. With the problem of the survival of the soul—except for a brief toying with a Platonic Myth in the De Republica—Cicero did not concern himself till very late in life. Like most Romans he explained to himself the phrases of the Greek mystics in a simple formula of “Gloria,” which, when analyzed, resolved itself into something like the “immortality of fame.”[18]

We all know how great a rôle the insistence upon fame and reputation played in the education of the aristocracy at Rome. Since parents and teachers had no religious authority and no fixed ethical sanctions to which to appeal in presenting the claims of duty, the examples of ancestral heroes and the mos majorum came to be their decalogue. In their own homes children were shown the imagines of their famous ancestors and taught to read the inscribed tituli of their honors and triumphs. “Go thou and do likewise” was the obvious inference from daily lessons. It is safe to say that the constantly instilled respect for heroic ancestors was the most powerful factor in ethical teaching that ancient Rome knew. When Cicero so readily drops into the remark that what concerns him is what posterity will say of him a thousand years hence, he reveals the effectiveness of this moral pedagogy. Again and again in his speeches he frankly admits that Gloria, the immortality of fame, is what spurs him to incessant activity. The immortality of the “Choir Invisible”[19] was the only survival that the normal Roman of the cultured classes of the time expected.

Cicero, who read very widely in Greek writers, had of course come in contact with many mystics. He had enjoyed the poetry of Plato’s myths; he was a good friend of Neo-Pythagoreans like Nigidius Figulus, with whom he had long conversations on this very subject at Ephesus in 51; he had also conversed with and read the works of Posidonius, who interpolated much oriental mysticism into his Stoicism. But all of this had left few traces in Cicero’s utterances, until a very great grief overwhelmed him.[20] In February of the year 45, two years before his death, his daughter Tullia, his one deep passion, died after years of suffering. Cicero gave in completely to his sorrow and withdrew to the forest of Astura, where he walked alone and communed with himself for several weeks. All his friends sent him letters of consolation, but they were typical Roman letters that gave little cheer, only reminding him that it was the duty of a Cicero to be strong, that life had little of value now that liberty was lost, that his own life was near its end. What he wanted was some ray of hope, and he sought the books of the mystics to give him what he needed. He read and pondered and temporarily accepted a “probability” that he had occasionally used in speeches to the populace, but never considered of use to himself. And he wrote it out in a Consolatio in order to make it more persuasive. The basis of this pamphlet was Crantor’s argument, taken from Plato, that the soul reveals capacities that imply eternal existence.[21] But Cicero carried the argument to a conclusion that neither Crantor nor Plato would have accepted, the conclusion that Tullia still lived, would live eternally as a divine being, and if divine must have a shrine. This means that Cicero’s new faith, though suggested by reading which had hitherto had no appeal for him, was vitalized now through his deep love for Tullia, that it took its meaning from his own experience, and must reach the conclusion that his love for her dictated. We know, of course, that he sought justification for this conclusion in whatever authority he could find. He says so explicitly in a letter to Atticus:[22]

In trying to escape from the painful sting of recollection I take refuge in recalling something to your memory. Whatever you think of it, please pardon me. The fact is I find that some of the authors over whom I am poring consider appropriate the very thing that I have often discussed with you, and I hope you approve of it. I mean the shrine. Please give it all the attention your affection for me dictates.... I shall use all the opportunities permitted in an age as erudite as this to consecrate her memory by every kind of memorial borrowed from the genius of all the masters, Greek and Latin. Perhaps it will only gall my wound: but I consider myself pledged by a kind of vow or promise; and I am more concerned about the long ages when I shall not be than about my short day, which, short though it is, seems all too long to me. I have tried everything and find nothing that gives me rest.

In Greek writers, who justified the apotheosis of Hellenic rulers by appealing to the cult of “Heroes,” he could find such arguments and he seems even to have employed Euhemeristic writings, for he ended the strange Consolatio with the words:[23]

If the children of Cadmos, of Amphion and of Tyndarus were carried to heaven in glory, she too deserves this honor. This I shall accomplish and with the approval of the immortal gods shall declare and consecrate you before all the world ... as one of the immortals.

His well-stocked library of Greek books was full of such mystical ideas, but they had had no meaning for him till this moment. Now he seized the idea with determination, and to Atticus, who doubtless thought it a passing whim and gave him no encouragement, he wrote almost every day urging him to find a suitable spot for the shrine he proposed to consecrate, and to engage an architect who should plan its erection.

This mood of mysticism probably lasted only a few months. The reading he went through in seeking justification for his conclusions led him to write the Hortensius, that enthusiastic eulogy of philosophy which converted St. Augustine to a new mode of life. In its fragments we find traces of the same un-Roman mysticism. Then in the first Tusculan Disputation, which he wrote in May of the same year, he repeated the gist of the argument which he had used in the Consolatio and with nearly as much assurance. However, in this same month he began his first draft of the Academica, a careful review of epistemological theory, and this brought him back to his earlier agnosticism. His letters now show less interest in the proposed shrine. In July they cease entirely: it would seem that the “apotheosis” of Tullia was abandoned.

Let us take one more illustration. James Bryce once reckoned that Roman law was still influential in the courts of about three hundred million people; and he pointed out that it had gained this capacity because the jurists of the Empire had based every paragraph of the statutes upon the general principle of equity. Stroux, in his brilliant monograph entitled Summum jus summa injuria, has recently demonstrated that Cicero, employing Aristotelian rules of rhetoric, exerted a powerful influence upon the reform of Roman Law by emphasizing in his rhetorical treatises the claims of equity as against statute, and of intention (voluntas) as against the literal interpretation of the word. This is all to the good. But the process was hardly as simple as that. The Aristotelian rules of rhetoric had worked no vast reforms in Greece, and at Rome they were not likely to prove less arid in practical life if left to the mercy of text-books. Ideas do not readily revive in that impersonal fashion.

There are two very definite reasons why the ideas of equity and intention had a fair chance to grow into importance in the Ciceronian court. The first is the existence of the peregrine court. As early as 242 B.C. the senate had created a special court for strangers to use in their litigation with Romans. This was, of course, devised in order to attract traders to Rome with a guaranty that they would be dealt with fairly, and it could only be a tribunal of arbitration seeking to reach equitable decisions regardless of Roman statute and by formulary procedure. We know how this court familiarized the Romans with the standard practices of commercial peoples, how it created a respect for jus gentium, how in time it accustomed the Romans to respect equity as a thing more sacred than local law and how it trained them to use the formula, until, by about 150 B.C., even the urban court could abandon the rigid legis actiones in favor of the formulary procedure, and the praetor’s edict was given standing by the side of statute. It is, of course, inconceivable that phrases advocating a free interpretation of law, translated from rhetorical school books, could have won any response at Rome unless the courts had been ready for them.

But there is another item in the reckoning. Cicero, who studied law at the time when this revolution was taking place in the native courts, set out on a long and influential career of forty years as a lawyer for the defense. In that career he had a greater need than anyone else for what we may call the humane and sociological interpretation of law. He seized, of course, with eagerness upon the rhetorical distinction, provided by the Greeks, between the word and the spirit, between law and equity, but this distinction had already been recognized at Rome by the creation of the peregrine court, had in fact been latent in the long series of laws that brought the plebeians their rights during the several centuries of bloodless compromises of the early Republic. Indeed it is safe to say that Cicero without the aid of alien ideas would necessarily have evolved his enthusiasm for equitable interpretation during his long career as a defensive advocate, using as his tool the Roman court with its formulary procedure, its jus honorarium, and its respect for aequitas and jus gentium.[24] In a word, a reform already in progress at home gave Cicero an excellent opportunity to develop his legal practice on the principles of a liberal interpretation of law and to draw upon Greek authors for useful support for his contention, and thus aid in formulating general principles that made the civil law the text-book of the world.

Cicero was a wide reader, and he appropriated ideas from far and near, but he appropriated and applied what he read at the points where he was doing his own thinking, and he applied it creatively. Such was, throughout his life, Cicero’s response to experience.