It was in presence of these judges that the patrons and orators, surrounded by a crowd of friends and retainers, pleaded the causes of their clients. They commenced with a brief exposition of the nature of the points in dispute. Witnesses were afterwards examined, and the arguments on the case were enforced in a formal harangue. A decision was then given, according to the opinion of a majority of the judges. The Centumviri continued to act as judges for a whole year; but the other judices only sat till the particular cause was determined for which they had been appointed. They remained, however, on the numerous list of the judices selecti, and were liable to be again summoned till the end of the year, when a new set was chosen for the judicial business of the ensuing season. The Prætor had the power of reversing the decisions of the judges, if it appeared that any fraud or gross error had been committed. If neither was alleged, he charged himself with the duty of seeing the sentence which the judges had pronounced carried into execution. Along with his judicial and ministerial functions, the Prætor possessed a sort of legislative power, by which he supplied the deficiency of laws that were found inadequate for many civil emergencies. Accordingly, each new Prætor, as we have already seen, when he entered on his office, issued an edict, announcing the supplementary code which he intended to follow. Every Prætor had a to[pg 143]tally different edict; and, what was worse, none thought of adhering to the rules which he had himself traced; till at length, in the year 686, the Cornelian law, which met with much opposition, prohibited the Prætor from departing in practice from those principles, or regulations, he had laid down in his edict.
Capital trials, that is, all those which regarded the life or liberty of a Roman citizen, had been held in the Comitia Centuriata, after the institution of these assemblies by Servius Tullius; but the authority of the people had been occasionally delegated to Inquisitors, (Quæsitores,) in points previously fixed by law. For some time, all criminal matters of consequence were determined in this manner: But from the multiplicity of trials, which increased with the extent and vices of the republic, other means of despatching them were necessarily resorted to. The Prætors, originally, judged only in civil suits; but in the time of Cicero, and indeed from the beginning of the seventh century, four of the six Prætors were nominated to preside at criminal trials—one taking cognizance of questions of extortion—a second of peculation—a third of illegal canvass—and the last, of offences against the state, as the Crimen majestatis, or treason. To these, Sylla, in the middle of the seventh century, added four more, who inquired into acts of public or private violence. In trials of importance, the Prætor was assisted by the counsel of select judges or jurymen, who originally were all chosen from the Senate, and afterwards from the order of Knights; but in Cicero’s time, in consequence of a law of Cotta, they were taken from the Senators, Knights, and Tribunes of the treasury. The number of these assessors, who were appointed for the year, and nominated by the Prætor, varied from 300 to 600; and from them a smaller number was chosen by lot for each individual case. Any Roman citizen might accuse another before the Prætor; and not unfrequently the young patricians undertook the prosecution of an obnoxious magistrate, merely to recommend themselves to the notice or favour of their countrymen. In such cases there was often a competition between two persons for obtaining the management of the impeachment, and the preference was determined by a previous trial, called Divinatio. This preliminary point being settled, and the day of the principal trial fixed, the accuser, in his first speech, explained the nature of the case,—fortifying his statements as he proceeded by proofs, which consisted in the voluntary testimony of free citizens, the declarations of slaves elicited by torture, and written documents. Cicero made little account of the evidence of slaves; but the art of extracting truth from a free [pg 144]witness—of exalting or depreciating his character—and of placing his deposition in a favourable light, was considered among the most important qualifications of an orator. When the evidence was concluded, the prosecutor enforced the proofs by a set speech, after which the accused entered on his defence.
But though the cognizance of crimes was in ordinary cases delegated to the Prætors, still the Comitia reserved the power of judging; and they actually did judge in causes, in which the people, or tribunes, who dictated to them, took an interest, and these were chiefly impeachments of public magistrates, for bribery or peculation. It was not understood, in any case, whether tried before the whole people or the Prætor, that either party was to be very scrupulous in the observance of truth. The judges, too, were sometimes overawed by an array of troops, and by menaces. Canvassing for acquittal and condemnation, were alike avowed, and bribery, at least for the former purpose, was currently resorted to. Thus the very crimes of the wretch who had plundered the province intrusted to his care, afforded him the most obvious means of absolution; and, to the wealthy peculator, nothing could be more easy than an escape from justice, except the opportunity of accusing the innocent and unprotected. “Foreign nations,” says Cicero, “will soon solicit the repeal of the law, which prohibits the extortions of provincial magistrates; for they will argue, that were all prosecutions on this law abolished, their governors would take no more than what satisfied their own rapacity, whereas now they exact over and above this, as much as will be sufficient to gratify their patrons, the Prætor and the judges; and that though they can furnish enough to glut the avarice of one man, they are utterly unable to pay for his impunity in guilt[309].”
The organization of the judicial tribunals was wretched, and their practice scandalous. The Senate, Prætors, and Comitia, all partook of the legislative and judicial power, and had a sort of reciprocal right of opposition and reversal, which they exercised to gratify their avarice or prejudices, and not with any view to the ends of justice. But however injurious this system might be to those who had claims to urge, or rights to defend, it afforded the most ample field for the excursions of eloquence. The Prætors, though the supreme judges, were not men bred to the law—advanced in years—familiarized with precedents—secure of independence—and fixed in their stations for life. They were young men of lit[pg 145]tle experience, who held the office for a season, and proceeded through it, to what were considered as the most important situations of the republic. Though their procedure was strict in some trivial points of preliminary form, devised by the ancient Jurisconsults, they enjoyed, in more essential matters, a perilous latitude. On the dangerous pretext of equity, they eluded the law by various subtilties or fictions; and thus, without being endued with legislative authority, they abrogated ancient enactments according to caprice. It was worse when, in civil cases, the powers of the Prætor were intrusted to the judges; or when, in criminal trials, the jurisdiction was assumed by the whole people. The inexperience, ignorance, and popular prejudices of those who were to decide them, rendered litigations extremely uncertain, and dependent, not on any fixed law or principle, but on the opinions or passions of tumultuary judges, which were to be influenced and moved by the arts of oratory. This furnished ample scope for displaying all that interesting and various eloquence, with which the pleadings of the ancient orators abounded. The means to be employed for success, were conciliating favour, rousing attention, removing or fomenting prejudice, but, above all, exciting compassion. Hence we find, that in the defence of a criminal, while a law or precedent was seldom mentioned, every thing was introduced which could serve to gain the favour of the judges, or move their pity. The accused, as soon as the day of trial was fixed, assumed an apparently neglected garb; and although allowed, whatever was the crime, to go at large till sentence was pronounced, he usually attended in court surrounded by his friends, and sometimes accompanied by his children, in order to give a more piteous effect to the lamentations and exclamations of his counsel, when he came to that part of the oration, in which the fallen and helpless state of his client was to be suitably bewailed. Piso, justly accused of oppression towards the allies, having prostrated himself on the earth in order to kiss the feet of his judges, and having risen with his face defiled with mud, obtained an immediate acquittal. Even where the cause was good, it was necessary to address the passions, and to rely on the judge’s feelings of compassion, rather than on his perceptions of right. Rutilius prohibited all exclamations and entreaties to be used in his defence: He even forbade the accustomed and expected excitement of invocations, and stamping with the feet; and “he was condemned,” says Cicero, “though the most virtuous of the Romans, because his counsel was compelled to plead for him as he would have done in the republic of Plato.” It thus ap[pg 146]pears, that it was dangerous to trust to innocence alone, and the judges were the capricious arbiters of the fate of their fellow-citizens, and not (as their situation so urgently required) the inflexible interpreters of the laws of their exalted country.
But if the manner of treating causes was favourable to the exertions of eloquence, much also must be allowed for the nature of the questions themselves, especially those of a criminal description, tried before the Prætor or people. One can scarcely figure more glorious opportunities for the display of oratory, than were afforded by those complaints of the oppressed and plundered provinces against their rapacious governors. From the extensive ramifications of the Roman power, there continually arose numerous cases of a description that can rarely occur in other countries, and which are unexampled in the history of Britain, except in a memorable impeachment, which not merely displayed, but created such eloquence as can be called forth only by splendid topics, without which rhetorical indignation would seem extravagant, and attempted pathos ridiculous.
The spot, too, on which the courts of justice assembled, was calculated to inspire and heighten eloquence. The Roman Forum presented one of the most splendid spectacles that eye could behold, or fancy conceive. This space formed an oblong square between the Palatine and Capitoline hills, composed of a vast assemblage of sumptuous though irregular edifices. On the side next the Palatine hill stood the ancient Senate-house, and Comitium, and Temple of Romulus the Founder. On the opposite quarter, it was bounded by the Capitol, with its ascending range of porticos, and the temple of the tutelar deity on the summit. The other sides of the square were adorned with basilicæ, and piazzas terminated by triumphal arches; and were bordered with statues, erected to the memory of the ancient heroes or preservers of their country[310]. Having been long the theatre of the factions, the politics, the intrigues, the crimes, and the revolutions of the capital, every spot of its surface was consecrated to the recollection of some great incident in the domestic history of the Romans; while their triumphs over foreign enemies were vividly called to remembrance by the Rostrum itself, which stood in the centre of the vacant area, and by other trophies gained from vanquished nations:—
“Et cristæ capitum, et portarum ingentia claustra,
Spiculaque, clipeique, ereptaque rostra carinis[311].”
A vast variety of shops, stored with a profusion of the most costly merchandize, likewise surrounded this heart and centre of the world, so that it was the mart for all important commercial transactions. Being thus the emporium of law, politics, and trade, it became the resort of men of business, as well as of those loiterers whom Horace calls Forenses. Each Roman citizen, regarding himself as a member of the same vast and illustrious family, scrutinized with jealous watchfulness the conduct of his rulers, and looked with anxious solicitude to the issue of every important cause. In all trials of oppression or extortion, the Roman multitude took a particular interest,—repairing in such numbers to the Forum, that even its spacious square was hardly sufficient to contain those who were attracted to it by curiosity; and who, in the course of the trial, were in the habit of expressing their feelings by shouts and acclamations, so that the orator was ever surrounded by a crowded and tumultuary audience. This numerous assembly, too, while it inspired the orator with confidence and animation, after he had commenced his harangue, created in prospect that anxiety which led to the most careful preparation previous to his appearance in public. The apprehension and even trepidation felt by the greatest speakers at Rome on the approach of the day fixed for the hearing of momentous causes, is evident from many passages of the rhetorical works of Cicero. The Roman orator thus addressed his judges with all the advantages derived both from the earnest study of the closet, and the exhilaration imparted to him by unrestrained and promiscuous applause.
2. Next to the courts of justice, the great theatre for the display of eloquence, was the Comitia, or assemblies of the people, met to deliberate on the proposal of passing a new law, or abrogating an old one. A law was seldom offered for consideration but some orator was found to dissuade its adoption; and as in the courts of justice the passions of the judges were addressed, so the favourers or opposers of a law did not confine themselves to the expediency of the measure, but availed themselves of the prejudices of the people, alternately confirming their errors, indulging their caprices, gratifying their predilections, exciting their jealousies, and fomenting their dislikes. Here, more than anywhere, the many were to be courted by the few—here, more than anywhere, was created that excitement which is most favourable to the influence of eloquence, and forms indeed the element in which alone it breathes with freedom.