History of Roman Literature from its Earliest Period to the Augustan Age. Vol. II

by John Colin Dunlop

The Plebiscita were enacted by the plebeians in the Comitia Tributa, apart from the patricians, and independently of the sanction of the Senate, at the rogation of their own Tribunes, instead of one of the superior magistrates. The patricians generally resisted these decrees, as they were chiefly directed against the authority of the Senate, and the privileges of the higher orders of the state. But, by the Lex Horatia, the same weight and authority were given to them as to laws properly so termed, and thenceforth they differed only in name, and the manner in which they were enacted.

A Senatusconsultum was an ordinance of the Senate on those points concerning which it possessed exclusive authority; but rather referred to matters of state, as the distribution of provinces, the application of public money, and the like, than to the ordinary administration of justice.

The patricians, being deprived by the Twelve Tables of the privilege of arbitrarily pronouncing decisions, as best suited their interests; and being frustrated in their miserable attempts to maintain an undue advantage in matters of form, by secreting the rules of procedure held in courts of justice, they had now reserved to them only the power of interpreting to others the scope and spirit of the laws. Till the age, at least, of Augustus, the civil law was completely unconnected and dissipated; and no systematic, accessible, or authoritative treatise on the subject, appeared during the existence of the republic[299]. The laws of the Twelve Tables were extremely concise and elliptical; and it seems highly probable that they were written in this style, not for the sake of perspicuity, but to leave all that required to be supplied or interpreted in the power of the Patricians[300]. The changes, too, in the customs and language of the Romans, rendered the style of the Twelve Tables less familiar to each succeeding generation; and the ambiguous passages were but imperfectly explained by the study of legal antiquarians. It was the custom, likewise, for each successive Prætor to publish an edict, announcing the manner in which justice was to be distributed by him—the rules which he proposed to follow in the decision of doubtful cases; and the degree of relief which his equity would afford from the precise rigour of ancient statutes. This annual alteration in forms, and sometimes even in the principles of law, introduced a confusion, which persons engrossed with other occupations could not unravel. The obscurity of old laws, and fluctuating jurisdiction of the Prætors, gave rise to that class of men called Jurisconsults, whose business it was to explain legal difficulties, and reconcile statutory contradictions. It was the relation of patron and client, which was coeval almost with the city itself, and was invested with a sacred, inviolable character, that gave weight to the dicta of those who, in some measure, came in place of the ancient patrons, and usually belonged to the patrician order.—“On the public days of market or assembly,” says Gibbon, “the masters of the art were seen walking in the Forum, ready to impart the needful advice to the meanest of their fellow-citizens, from [pg 138]whose votes, on a future occasion, they might solicit a grateful return. As their years and honours increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who, at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and incidents of judicial proceedings, were the ordinary subject of these consultations; and the verbal or written opinions of the jurisconsults were framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons; and the Mucian race was long renowned for the hereditary knowledge of the civil law[301].” Though the judges and prætors were not absolutely obliged, till the time of the emperors, to follow the recorded opinions of the Jurisconsults, they possessed during the existence of the republic a preponderating weight and authority. The province of legislation was thus gradually invaded by these expounders of ancient statutes, till at length their recorded opinions, the Responsa Prudentum, became so numerous, and of such authority, that they formed the greatest part of the system of Roman jurisprudence, whence they were styled by Cicero, in his oration for Cæcina, Jus Civile.

It is perfectly evident, however, that the civil law was neither much studied nor known by the orators of the Senate, and Forum. Cicero, in his treatise De Oratore, informs us, that Ser. Galba, the first speaker of his day, was ignorant of law, inexperienced in civil rights, and uncertain as to the institutions of his ancestors. In his Brutus he says nearly the same thing of Antony and Sulpicius, who were the two greatest orators of their age, and who, he declares, knew nothing of public, private, or civil law. Antony in particular, always expressed a contempt for the study of the civil law[302]. Accordingly, in the dialogue De Oratore, he is made to say, “I never studied the civil law, nor have I been sensible of any loss from my ignorance of it in those causes which I was capable of managing in our courts[303].” In the same dialogue, Scævola says, “The present age is totally ignorant of the laws of the Twelve Tables, except you, Crassus, who, led by curiosity, rather than from its being any province annexed to eloquence, studied civil law under me.” In his oration for Muræna, Cicero talks lightly of the study of the civil law, and treats his opponent with scorn on account of his knowledge of its words of [pg 139]style and forms of procedure[304]. With exception, then, of Crassus, and of Scævola, who was rather a jurisconsult than a speaker, the orators of the age of Cicero, as well as those who preceded it, were uninstructed in law, and considered it as no part of their duty to render themselves masters, either of the general principles of jurisprudence, or the municipal institutions of the state. Crassus, indeed, expresses his opinion, that it is impossible for an orator to do justice to his client without some knowledge of law, particularly in questions tried before the Centumviri, who had cognizance of points with regard to egress and regress in property, the interests of minors, and alterations in the course of rivers; and he mentions several cases, some of a criminal nature, which had lately occurred at Rome, where the question hinged entirely on the civil law, and required constant reference to precedents and authorities. Antony, however, explains how all this may be managed. A speaker, for example, ignorant of the mode of drawing up an agreement, and unacquainted with the forms of a contract, might defend the rights of a woman who has been contracted in marriage, because there were persons who brought everything to the orator or patron, ready prepared,—presenting him with a brief, or memorial, not only on matters of fact, but on the decrees of the Senate, the precedents and the opinions of the jurisconsults. It also appears that there were solicitors, or professors of civil law, whom the orators consulted on any point concerning which they wished to be instructed, and the knowledge of which might be necessary previous to their appearance in the Forum. In this situation, the harangue of the orator was more frequently an appeal to the equity, common sense, or feelings of the judge, than to the laws of his country. Now, where a pleader addresses himself to the equity of his judges, he has much more occasion, and also much more scope, to display his eloquence, than where he must draw his arguments from strict law, statutes, and precedents. In the former case, many circumstances must be taken into account; many [pg 140]personal considerations regarded; and even favour and inclination, which it belongs to the orator to conciliate, by his art and eloquence, may be disguised under the appearance of equity. Accordingly, Cicero, while speaking in his own person, only says, that the science of law and civil rights should not be neglected; but he does not seem to consider it as essential to the orator of the Forum, while he enlarges on the necessity of elegance of language, the erudition of the scholar, a ready and popular wit, and a power of moving the passions[305].

That these were the arts to which the Roman orators chiefly trusted for success in the causes of their clients, is apparent from the remains of their discourses, and from what is said of the mode of pleading in the rhetorical treatises of Cicero. “Pontius,” says Antony, in the dialogue so often quoted, “had a son, who served in the war with the Cimbri, and whom he had destined to be his heir; but his father, believing a false report which was spread of his death, made a will in favour of another child. The soldier returned after the decease of his parent; and, had you been employed to defend his cause, you would not have discussed the legal doctrine as to the priority or validity of testaments; you would have raised his father from the grave, made him embrace his child, and recommend him, with many tears, to the protection of the Centumviri.”

Antony, speaking of one of his own most celebrated orations, says, that his whole address consisted, 1st, in moving the passions; 2d, in recommending himself; and that it was thus, and not by convincing the understanding of the judges, that he baffled the impeachment against his clients[306]. Valerius Maximus has supplied, in his eighth book, many examples of unexpected and unmerited acquittals, as well as condemnations, from bursts of compassion and theatrical incidents. The wonderful influence, too, of a ready and popular wit in the management of causes, is apparent from the instances given in the second book De Oratore of the effects it had produced in the Forum. The jests which are there recorded, though not very excellent, may be regarded as the finest flowers of wit of the Roman bar. Sometimes they were directed against the opposite party, his patron, or witnesses; and, if sufficiently impudent, seldom failed of effect.

That the principles and precepts of the civil law were so little studied by the Roman orators, and hardly ever alluded to in their harangues, while, on the other hand, the arts of persuasion, and wit, and excitement of the passions, were all-pow[pg 141]erful, and were the great engines of legal discussion, must be attributed to the constitution of the courts of law, and the nature of the judicial procedure, which, though very imperfect for the administration of justice, were well adapted to promote and exercise the highest powers of eloquence. It was the forms of procedure—the description of the courts before which questions were tried—and the nature of these questions themselves[307]—that gave to Roman oratory such dazzling splendour, and surrounded it with a glory, which can never shine on the efforts of rhetoric in a better-regulated community, and under a more sober dispensation of justice.

The great exhibitions of eloquence were, 1st, In the civil and criminal causes tried before the Prætor, or judges appointed under his eye. 2d, The discussions on laws proposed in the assemblies of the people. 3d, The deliberations of the Senate.

The Prætor sat in the Forum, the name given to the great square situated between Mount Palatine and the Capitol, and there administered justice. Sometimes he heard causes in the Basilicæ, or halls which were built around the Forum; but at other times the court of the Prætor was held in the area of the Forum, on which a tribunal was hastily erected, and a certain space for the patron, client, and witnesses, was railed off, and protected from the encroachment of surrounding spectators. This space was slightly covered above for the occasion with canvass, but being exposed to the air on all sides, the court was an open one, in the strictest sense of the term[308].

From the time of the first Punic war there were two Prætors, to whom the cognizance of civil suits was committed,—the Prætor urbanus and Prætor peregrinus. The former tried the causes of citizens according to the Roman laws; the latter judged the cases of allies and strangers by the principles of natural equity; but as judicial business multiplied, the number of Prætors was increased to six. The Prætor was the chief judge in all questions that did not fall under the immediate cognizance of the assemblies of the people or the Senate. Every action, therefore, came, in the first instance, before the Prætor; but he decided only in civil suits of importance: and if the cause was not of sufficient magnitude for the immediate investigation of his tribunal, or hinged entirely on matters of fact, he appointed one or more persons to judge of it. These [pg 142]were chosen from a list of judices selecti, which was made up from the three orders of senators, knights, and people. If but one person was appointed, he was properly called a judex, or arbiter. The judex determined only such cases as were easy, or of small importance; and he was bound to proceed according to an express law, or a certain form prescribed to him by the Prætor. The arbiter decided in questions of equity which were not sufficiently defined by law, and his powers were not so restricted by the Prætor as those of the ordinary judex. When more persons than one were nominated by the Prætor, they were termed Recuperatores, and they settled points of law or equity requiring much deliberation. Certain cases, particularly those relating to testaments or successions, were usually remitted by the Prætor to the Centumviri, who were 105 persons, chosen equally from the thirty-five tribes. The Prætor, before sending a case to any of those, whom I may call by the general name of judges, though, in fact, they more nearly resembled our jury, made up a formula, as it was called, or issue on which they were to decide; as, for example, “If it be proved that the field is in possession of Servilius, give sentence against Catulus, unless he produce a testament, from which it shall appear to belong to him.”