Ancient Rome and Modern America; A Comparative Study of Morals and Manners

by Guglielmo Ferrero

Men’s passions began to get the better of them. The amour propre of the two small factions came more prominently into play the more the case assumed a political aspect. Inasmuch as the opposition of one of the two Consuls who had proposed the law was the greatest impediment to the approval of the law, means must be found for getting rid of Piso. The Pietists thought of exerting pressure upon him by means of the Senate. They summoned a meeting of the Senate on urgent business, and proposed a motion inviting the Consuls once more to join in recommending the law to the popular vote; in other words, intimating to Piso that he had better abandon his attitude of obstruction. A lively discussion ensued. The friends of Clodius opposed the motion with great energy; but it was carried by four hundred votes to fifteen. A truly crushing majority! Clodius’s act was so offensive to the public that few Senators dared openly to side with him, even though they were conscious that the law which was meant to bring him to book was fraught with danger.

Piso, however, did not allow this vote of the Senate to influence him. The discontent of the Popular party was increasing, and the public agitation, not in favour of Clodius, but against the law, was gathering force, being focussed on that particular provision which undoubtedly was the most dangerous, namely, the authority given to the Prætor to choose the judges from the panel of jurors instead of entrusting the choice to the fortune of the lot. The law, it is true, established this procedure only for the purposes of the action against Clodius. But was not the precedent a dangerous one? Would it not be possible, after this first experiment, to try to apply the same method to other cases? That would result in putting into the hands of the preponderant party a formidable weapon for the destruction of its adversaries: the giving to the Prætor in office the power to choose the judges who should be summoned to decide the numberless cases by means of which that party sought to deprive their rivals of their most influential leaders.

So the struggle waxed fiercer and fiercer. Piso would not give way, and the Popular party supported him, never mentioning Clodius, but asserting that the law was unjust, dangerous, and deadly—that the death-blow would be given to the Republic on the day on which a magistrate, elected by, and bound by ties to, one party, was invested with the power to choose the judges for every law-suit. The Pietist party, supported by the majority of the Senate, and by the Sullan association, adopted the opposite tactics. It made light of the provisions of the law and the dangers anticipated and denounced by the Popular party. It protested that Clodius had committed a horrible sacrilege, and could not be allowed to go unpunished without compromising still further in the eyes of the disgusted and affrighted masses the waning authority of the State. Intrigues and plots thickened on this side and on that. Both sides endeavoured to influence public opinion, but in this attempt the Popular party was the more successful. For that party, by dint of dogged and dexterous efforts, and without paying any regard to the votes of the Senate, which was almost unanimously favourable to the opposite party, succeeded in persuading the public that the law was immoderate, tyrannical, and dangerous, especially in the matter of the powers entrusted to the Prætor.

The day arrived when the more enlightened men of the Conservative party realised that the law, in the form in which it had been drafted, would never be approved. Piso by himself, helped by the Popular party and by the growing mistrust of public opinion, sufficed to checkmate the majority of the Senate and the party in power. It was necessary, therefore, to devise a compromise. And the man who devised it was Hortensius, the great orator who ten years before had been Verres’s defending counsel. He proposed that the two Consuls should abandon their law; and that Fusius Calenus, who was tribune of the plebs, should bring forward another, in which the first part of the preceding law, that which made of Clodius’s act an incest, should be retained, but the second part should be modified in such a way that the judges summoned to administer it should not be the College of Pontiffs but the ordinary jury, chosen in the ordinary way, that is to say, by lot, and not, as the law of the two Consuls proposed, by the Prætors. By this equable compromise Hortensius hoped to satisfy all parties—he disarmed the opposition of the Popular party, which would not dare, now that the law had been purged of the provision which aroused the greatest mistrust in the public, to persist in its opposition, and to risk appearing too openly to desire the protection of Clodius. He gave a sop to public opinion, which was deeply stirred and offended by the scandal. He gave satisfaction to the amour propre of the Conservative party, by presenting them with the head of Clodius. As a matter of fact, he thought—and this was the argument he used to persuade the most recalcitrant of the Pietist party—that it was not necessary to alter the mode of choosing the judges. Clodius’s guilt was so evident that it was quite impossible to imagine that a court of law, however corrupt, could acquit him.

The first of Hortensius’s anticipations quickly came true. The law, thus modified, passed without difficulty. At once, several citizens hastened to indict Clodius of incest. Matters had not gone far, however, before everyone perceived that Hortensius’s second anticipation, that the conviction of Clodius was inevitable, would not be realised so easily. Months had passed; the first impression of horror made on the public had faded. The Conservative party—the same that had made such efforts to save Verres—was too deeply committed to obtaining the conviction of Clodius at whatever cost, for the Popular party not to take Clodius under its protection, though it did so covertly and without compromising itself too far. Crassus and Cæsar in particular, without appearing on the scene, were disposed to do whatever they could, to help Clodius, and to procure him, if it were possible, an acquittal, an outcome which in no less a degree than the conviction of Verres, would have been a rebuff for the party which Sulla had installed in the government, and which, notwithstanding all the reverses which it had undergone in recent years, was still so powerful. Clodius on his side worked with the energy of despair to escape conviction, which would have shattered his political career irreparably and forever.

The trial took place at the beginning of May, in the midst of a curiosity and excitement which may be easily imagined. The two parties had by now decided to face each other once again, as in Verres’s time, in the confined arena of a law-court. The judges were chosen by lot, and the defendant especially availed himself of the right which the law conceded to both sides, of challenging a certain number of them. Nobody was surprised at this, as everyone knew that the struggle would be a fierce one, or rather a hopeless one, for the accused. Indeed, how could Clodius escape conviction, when his guilt was so manifest? In declaring his act to be incestum, the law had already condemned him in anticipation. When, however, the jury had been impannelled, and the trial opened, an unexpected and dramatic incident occurred. Clodius defended himself by saying that the matrons present at the feast in honour of the Bona Dea had been deceived. They had mistaken somebody else for him. On that day he was actually not in Rome, but at Iteramna (Terni)!

Just at first, this alibi made the public laugh. Nobody took it seriously. It seemed to everyone that Clodius was joking and wished to make fun of the Court, or that he was trying a desperate coup. But here, too, they were wrong. Clodius intended that his point be taken quite seriously, and had prepared his defence much more cleverly than his adversaries, emboldened by the certainty of victory, supposed. People were not slow to realise this, as the trial went on and on, without producing that proof of Clodius’s guilt which everybody thought so easy and certain, and without destroying his daring alibi. The first step was to put Clodius’s slaves to the torture,—a step which was allowed in a case in which “incest” was imputed. This procedure was, however, barren of results. Clodius had sent the five slaves of whose evidence he was particularly afraid, partly to his brother in Greece, and partly to a distant property of his in the Alps. Then came Cæsar, who had been cited as a witness, and by whose evidence also the enemies of Clodius set great store. Had he not divorced his wife immediately after the scandal? This divorce clearly indicated that Cæsar considered his wife guilty; a state of mind which gave ground for hope that he would revenge himself by charging Clodius. Cæsar, however, had too great an interest in pleasing Crassus, whose desire to give the Democratic party the satisfaction of procuring the acquittal of Clodius was growing keener and keener. So Cæsar deposed under examination that he knew nothing and could say nothing, as, in conformity with religious precepts, he was out of the house that evening. Great was the irritation and disappointment of the prosecutors, one of whom thereupon, in order to put Cæsar in a difficulty, asked Cæsar for what reason, if he knew nothing and could say nothing, he had divorced his wife immediately after the scandal had broken out. Cæsar then, assuming a solemn air, pronounced the famous phrase: “Because Cæsar’s wife must be above suspicion,” a phrase which historians have proceeded to quote as a proof of his precocious monarchical ambitions and of his masterful temperament. On the contrary, the phrase was merely a boutade, devised to elude an embarrassing question in a political trial, which none of those who heard it took too seriously, and in saying which Cæsar himself knew quite well that nobody would take him at his word. In fact, the public smiled at the idea of the elegant and debt-laden demagogue, who was known to all for his somewhat free opinions and customs, having become all at once so jealous of the spotless reputation of his house.

At any rate, as a loophole the answer was a clever one; and the prosecutors could not press the question. So Julia, Cæsar’s sister, and Aurelia, his mother, came forward. Both deposed that, on the night on which the mysteries of the Bona Dea were celebrated, a man had been surprised in Cæsar’s house; but that they could not say with certainty that the defendant was the man. We should be doing an injustice to the memory of the two noble dames if we suspected that this evidence was not candid, but prompted by concern for the political interests and friendships of their brother and son. Is it not probable that, in the confusion and disorder of the just-discovered scandal, neither may have scrutinised the man in female disguise with so much attention and particularity as to be able to recognise him subsequently in court, where Clodius denied the identity with so much assurance? Therefore this evidence also was in Clodius’s favour; for there was nobody who could affirm positively that the man surprised in the middle of the rites of the Bona Dea was the accused.

Next came the evidence adduced by Clodius, to prove his alibi. It took the form of a certain C. Causinius Schola, who deposed frankly and resolutely that the gentlemen of the jury might take it from him that at a certain hour on the day of the mysteries of the Bona Dea, he had conversed with Clodius at Iteramna, which was ninety thousand passi distant from Rome. This evidence, after that of Cæsar, Julia, and Aurelia, made the acquittal of Clodius inevitable. Certain proofs of his guilt there were none. The improbable alibi, which at the beginning nobody had taken seriously, threatened to triumph owing to the doubts and scruples of a few witnesses, the adroit reticence of others, and thanks to the subterranean workings of Clodius’s friends, backed by Crassus’s gold.

Then came a second and even more unexpected surprise. At the very moment when Clodius seemed to have emerged victorious, there appeared to destroy his alibi.... Who? Cicero himself. Cited as witness, Cicero deposed that on the day of the mysteries, three hours before the hour at which Causinius declared that he had spoken to Clodius at Terni, Clodius had come to call on him at his house in Rome! What had happened? Cicero had up to that time adopted a distinctly reserved attitude, making it clear that he, who since the suppression of Catiline’s conspiracy had become one of the leading figures in the State, had no wish to be mixed up in so trivial and stupid an affair. For what reason did he thus hurl himself all at once, at the close of the trial, into the thick of the fight, and opposing his evidence to that of Causinius, seem to challenge the jury to choose between his word—the word of a man of consular rank, the word of one of the three or four most famous men in the Empire—and that of this obscure and probably corrupt witness? Had he yielded to the pressure of the Conservative party, which, realising that the prey was slipping from their grasp, had wished to make a supreme attempt to destroy the alibi which had been so adroitly prepared by Clodius? Had he, upright and honourable man as he was, yielded to his disgust at seeing a comedy, which had been staged with such ability, completely successful? Or had he yielded to pressure and to considerations of the sort of which Plutarch speaks? Plutarch says that Cicero’s wife, Terentia, was jealous of Clodia, Clodius’s sister, whom she suspected of having cast eyes upon Cicero; and had so much worried Cicero, by harping upon the subject, and accusing him of sparing Clodius out of regard for the sister, that Cicero, in order to convince her that her jealousy was groundless, gave the evidence he did.