The History of Roman Literature / From the Earliest Period to the Death of Marcus Aurelius

by Charles Thomas Cruttwell

Both of them spoke in the senate and assembly as well as in the courts; and Crassus was perhaps a better political than forensic orator. Nevertheless the criticism of Cicero, from which we gain our chief knowledge, is mainly directed to their forensic qualifications; and it is probable that at the period at which they flourished, the law-courts offered the fullest combination of advantages for bringing out all the merits of a speaker. For the comitia were moved solely by passion or interest; the senate was swayed by party considerations, and was little touched by argument; whereas the courts offered just enough necessity for exact reasoning without at all resisting appeals to popular passion. Of the two kinds of judicia at Rome, the civil cases were little sought after; the public criminal trials being those which the great patroni delighted to undertake. A few words may not be out of place here on the general division of cases, and the jurisdiction of the magistrates, senate, and people, as it is necessary to understand these in order to appreciate the special kind of oratory they developed.

There had been, previously to this period, two praetors in Rome, the Praetor Urbanus, who adjudged cases between citizens in accordance with civil law, and the Praetor Peregrinus, who presided whenever a foreigner or alien was concerned, and judged according to the principles of natural law. Afterwards six praetors were appointed; and in the time of Antonius they judged not only civil but criminal cases, except those concerning the life of a citizen or the welfare of the state, which the people reserved for themselves. It must be remembered that the supreme judicial power was vested in the sovereign people in their comitia; that they delegated it in public matters to the senate, and in general legal cases to the praetor's court, but that in every capital charge a final appeal to them remained. The praetors at an early date handed over their authority to other judges, chosen either from the citizens at large, or from the body of Judices Selecti, who were renewed every year. These subsidiary judges might consist of a single arbiter, of small boards of three, seven, or ten, &c., or of a larger body called the Centum viri, chosen from the thirty- five tribes, who sat all the year, the others being only appointed for the special case. But over their decisions the praetor exercised a superior supervision, and he could annul them on appeal. The authorities on which the praetor based his practice were those of the Twelve Tables and the custom-law; but he had besides this a kind of legislative prerogative of his own. For on coming into office he had to issue an edict, called edictum perpetuum, [36] specifying the principles he intended to guide him in any new cases that might arise. If these were merely a continuation of those of his predecessor, his edict was called tralaticium, or "handed on." But more often they were of an independent character, the result of his knowledge or his prejudices; and too often he departed widely from them in the course of his year of office. It was not until after the time of Crassus and Antonius that a law was passed enforcing consistency in this respect (67 B.C.). Thus it was inevitable that great looseness should prevail in the application of legal principles, from the great variety of supplementary codes (edicta), and the instability of case-law. Moreover, the praetor was seldom a veteran lawyer, but generally a man of moderate experience and ambitious views, who used the praetorship merely as a stepping-stone to the higher offices of state. Hence it was by no means certain that he would be able to appreciate a complicated technical argument, and as a matter of fact the more popular advocates rarely troubled themselves to advance one.

Praetors also generally presided over capital trials, of which the proper jurisdiction lay with the comitia. In Sulla's time their number was increased to ten, and each was chairman of the quaestio which sat on one of the ten chief crimes, extortion, peculation, bribery, treason, coining, forgery, assassination or poisoning, and violence. [37] As assessors he had the quaesitor or chief juror, and a certain number of the Judices Selecti of whom some account has been already given. The prosecutor and defendant had the right of objecting to any member of the list. If more than one accuser offered, it was decided which should act at a preliminary trial called Divinatio. Owing to the desire to win fame by accusations, this occurrence was not unfrequent.

When the day of the trial arrived the prosecutor first spoke, explaining the case and bringing in the evidence. This consisted of the testimony of free citizens voluntarily given; of slaves, wrung from them by torture; and of written documents. The best advocates, as for instance Cicero in his Milo, were not disposed, any more than we should be, to attach much weight to evidence obtained by the rack; but in estimating the other two sources they differed from us. We should give the preference to written documents; the Romans esteemed more highly the declarations of citizens. These offered a grander field for the display of ingenuity and misrepresentation; it is, therefore, in handling these that the celebrated advocates put forth all their skill. The examination of evidence over, the prosecutor put forth his case in a long and elaborate speech; and the accused was then allowed to defend himself. Both were, as a rule, limited in point of time, and sometimes to a period which to us would seem quite inconsistent with justice to the case. Instead of the strict probity and perfect independence which we associate with the highest ministers of the law, the Roman judices were often canvassed, bribed, or intimidated. So flagitious had the practice become, that Cicero mentions a whole bench having been induced by indulgences of the most abominable kind to acquit Clodius, though manifestly guilty. We know also that Pompey and Antony resorted to the practice of packing the forum with hired troops and assassins; and we learn from Cicero that it was the usual plan for provincial governors to extort enough not only to satisfy their own rapacity, but to buy their impunity from the judges. [38]

Under circumstances like these we cannot wonder if strict law was little attended to, and the moral principles that underlay it still less. The chief object was to inflame the prejudices or anger of the jurors; or, still more, to excite their compassion, to serve one's party, or to acquire favour with the leading citizen. For example, it was a rule that men of the same political views should appear on the same side. Cicero and Hortensius, though often opposed, still retained friendly feelings for each other; but when Cicero went over to the senatorial party, the last bar to free intercourse with his rival was removed, since henceforward they were always retained together.

With regard to moving the pity of the judges, many instances of its success are related both in Greece and Rome. The best are those of Galba and Piso, both notorious culprits, but both acquitted; the one for bringing forward his young children, the other for prostrating himself in a shower of rain to kiss the judges' feet and rising up with a countenance bedaubed with mud! Facts like these, and they are innumerable, compel us to believe that the reverence for justice as a sacred thing, so inbred in Christian civilization, was foreign to the people of Rome. It is a gloomy spectacle to see a mighty nation deliberately giving the rein to passion and excitement heedless of the miscarriage of justice. The celebrated law, re-enacted by Gracchus, "That no citizen should be condemned to death without the consent of the people," banished justice from the sphere of reason to that of emotion or caprice. As progress widens emotion necessarily contracts its sphere; the pure light of reason raises her beacon on high. When Antonius, the most successful of advocates, declared that his success was due not to legal knowledge, of which he was destitute, but to his making the judges pleased, first with themselves and then with himself, we may appreciate his honesty; but we gladly acknowledge a state of things as past and gone in which he could wind up an accusation [39] with these words, "If it ever was excusable for the Roman people to give the reins to their just excitement, as without doubt it often has been, there has no case existed in which it was more excusable than now."

Cicero regards the advent of these two men, M. Antonius and Crassus, as analogous to that of Demosthenes and Hyperides at Athens. They first raised Latin eloquence to a height that rivalled that of Greece. But though their merits were so evenly balanced that it was impossible to decide between them, their excellencies were by no means the same. It is evident that Cicero preferred Crassus, for he assigns him the chief place in his dialogue de Oratore, and makes him the vehicle of his own views. Moreover, he was a man of much more varied knowledge than Antonius. An opinion prevailed in Cicero's day that neither of them was familiar with Greek literature. This, however, was a mistake. Both were well read in it. But Antonius desired to be thought ignorant of it; hence he never brought it forward in his speeches. Crassus did not disdain the reputation of a proficient, but he wished to be regarded as despising it. These relics of old Roman narrowness, assumed whether from conviction or, more probably, to please the people, are remarkable at an epoch so comparatively cultured. They show, if proof were wanted, how completely the appearance of Cicero marks a new period in literature, for he is as anxious to popularise his knowledge of Greek letters as his predecessors had been to hide theirs. The advantages of Antony were chiefly native and personal; those of Crassus acquired and artificial. Antony had a ready wit, an impetuous flow of words, not always the best, but good enough for the purpose, a presence of mind and fertility of invention that nothing could quench, a noble person, a wonderful memory, and a sonorous voice the very defects of which he turned to his advantage; he never refused a case; he seized the bearings of each with facility, and espoused it with zeal; he knew from long practice all the arts of persuasion, and was an adept in the use of them; in a word, he was thoroughly and genuinely popular.

Crassus was grave and dignified, excellent in interpretation, definition, and equitable construction, so learned in law as to be called the best lawyer among the orators; [40] and yet with all this grace and erudition, he joined a sparkling humour which was always lively, never commonplace, and whose brilliant sallies no misfortune could check. His first speech was an accusation of the renegade democrat Carbo; his last, which was also his best, was an assertion of the privileges of his order against the over-bearing insolence of the consul Philippus. The consul, stung to fury by the sarcasm of the speaker, bade his lictor seize his pledges as a senator. This insult roused Crassus to a supreme effort. His words are preserved by Cicero [41]—"an tu, quum omnem auctoritatem universi ordinis pro pignore putaris, eamque in conspectu populi Romani concideris, me his existimas pignoribus posse terreri? Non tibi illa sunt caedenda, si Crassum vis coercere; haec tibi est incidenda lingua; qua vel evulsa, spiritu ipso libidinem tuam libertas mea refutabit." This noble retort, spoken amid bodily pain and weakness, brought on a fever which within a week brought him to the grave (91 B.C.), as Cicero says, by no means prematurely, for he was thus preserved from the horrors that followed. Antonius lived for some years longer. It was under the tyrannical rule of Marius and Cinna that he met his end. Having found, through the indiscretion of a slave, that he was in hiding, they sent hired assassins to murder him. The men entered the chamber where the great orator lay, and prepared to do their bloody work, but he addressed them in terms of such pathetic eloquence that they turned back, melted with pity, and declared they could not kill Antonius. Their leader then came in, and, less accessible to emotion than his men, cut off Antonius' head and carried it to Marius. It was nailed to the rostra, "exposed," says Cicero, "to the gaze of those citizens whose interests he had so often defended."

After the death of these two great leaders, there appear two inferior men who faintly reflect their special excellences. These are C. AURELIUS COTTA (consul 75 B.C.) an imitator of Antonius, though without any of his fire, and P. SULPICIUS RUFUS (fl. 121-88 B.C.) a bold and vigorous speaker, who tried, without success, to reproduce the high-bred wit of Crassus. He was, according to Cicero, [42] the most tragic of orators. His personal gifts were remarkable, his presence commanding, his voice rich and varied. His fault was want of application. The ease with which he spoke made him dislike the labour of preparation, and shun altogether that of written composition. Cotta was exactly the opposite of Sulpicius. His weak health, a rare thing among the Romans of his day, compelled him to practise a soft sedate method of speech, persuasive rather than commanding. In this he was excellent, but that his popularity was due chiefly to want of competitors is shown by the suddenness of his eclipse on the first appearance of Hortensius. The gentle courteous character of Cotta is well brought out in Cicero's dialogue on oratory, where his remarks are contrasted with the mature but distinct views of Crassus and Antonius, with the conservative grace of Catulus, and the masculine but less dignified elegance of Caesar.

Another speaker of this epoch is CARRO, son of the Carbo already mentioned, an adherent of the senatorial party, and opponent of the celebrated Livius Drusus. On the death of Drusus he delivered an oration in the assembly, the concluding words of which are preserved by Cicero, as an instance of the effectiveness of the trochaic rhythm. They were received with a storm of applause, as indeed their elevation justly merits. [43] "O Marce Druse, patrem appello; tu dicere solebas sacram esse rempublicam; quicunque eam violavissent, ab omnibus esse ei poenas persolatas. Patris dictum sapiens temeritas filii comprobavit." In this grand sentence sounds the very voice of Rome; the stern patriotism, the reverence for the words of a father, the communion of the living with their dead ancestors. We cannot wonder at the fondness with which Cicero lingers over these ancient orators; while fully acknowledging his own superiority, how he draws out their beauties, each from its crude environment; how he shows them to be deficient indeed in cultivation and learning, but to ring true to the old tradition of the state, and for that very reason to speak with a power, a persuasiveness, and a charm, which all the rules of polished art could never hope to attain.