[Footnote 1: Defence of Plancius, c. 26, 27.]
Did we not say that Cicero was modern, not ancient? Have we not here the original of that Cambridge senior wrangler, who, happening to enter a London theatre at the same moment with the king, bowed all round with a gratified embarrassment, thinking that the audience rose and cheered at him?
It was while he held the office of Aedile that he made his first appearance as public prosecutor, and brought to justice the most important criminal of the day. Verres, late Praetor in Sicily, was charged with high crimes and misdemeanours in his government. The grand scale of his offences, and the absorbing interest of the trial, have led to his case being quoted as an obvious parallel to that of Warren Hastings, though with much injustice to the latter, so far as it may seem to imply any comparison of moral character. This Verres, the corrupt son of a corrupt father, had during his three years' rule heaped on the unhappy province every evil which tyranny and rapacity could inflict. He had found it prosperous and contented: he left it exhausted and smarting under its wrongs. He met his impeachment now with considerable confidence. The gains of his first year of office were sufficient, he said, for himself; the second had been for his friends; the third produced more than enough to bribe a jury.
The trials at Rome took place in the Forum—the open space, of nearly five acres, lying between the Capitoline and Palatine hills. It was the city market-place, but it was also the place where the population assembled for any public meeting, political or other—where the idle citizen strolled to meet his friends and hear the gossip of the day, and where the man of business made his appointments. Courts for the administration of justice—magnificent halls, called basilicae—had by this time been erected on the north and south sides, and in these the ordinary trials took place; but for state trials the open Forum was itself the court. One end of the wide area was raised on a somewhat higher level—a kind of daïs on a large scale—and was separated from the rest by the Rostra, a sort of stage from which the orators spoke. It was here that the trials were held. A temporary tribunal for the presiding officer, with accommodation for counsel, witnesses, and jury, was erected in the open air; and the scene may perhaps best be pictured by imagining the principal square in some large town fitted up with open hustings on a large scale for an old-fashioned county election, by no means omitting the intense popular excitement and mob violence appropriate to such occasions. Temples of the gods and other public buildings overlooked the area, and the steps of these, on any occasion of great excitement, would be crowded by those who were anxious to see at least, if they could not hear.
Verres, as a state criminal, would be tried before a special commission, and by a jury composed at this time entirely from the senatorial order, chosen by lot (with a limited right of challenge reserved to both parties) from a panel made out every year by the praetor. This magistrate, who was a kind of minister of justice, usually presided on such occasions, occupying the curule chair, which was one of the well-known privileges of high office at Rome. But his office was rather that of the modern chairman who keeps order at a public meeting than that of a judge. Judge, in our sense of the word, there was none; the jury were the judges both of law and fact. They were, in short, the recognised assessors of the praetor, in whose hands the administration of justice was supposed to lie. The law, too, was of a highly flexible character, and the appeals of the advocates were rather to the passions and feelings of the jurors than to the legal points of the case. Cicero himself attached comparatively little weight to this branch of his profession;—"Busy as I am", he says in one of his speeches, "I could make myself lawyer enough in three days". The jurors gave each their vote by ballot,—'guilty', 'not guilty', or (as in the Scotch courts) 'not proven',—and the majority carried the verdict.
But such trials as that of Verres were much more like an impeachment before the House of Commons than a calm judicial inquiry. The men who would have to try a defendant of his class would be, in very few cases, honest and impartial weighers of the evidence. Their large number (varying from fifty to seventy) weakened the sense of individual responsibility, and laid them more open to the appeal of the advocates to their political passions. Most of them would come into court prejudiced in some degree by the interests of party; many would be hot partisans. Cicero, in his treatise on 'Oratory', explains clearly for the pleader's guidance the nature of the tribunals to which he had to appeal. "Men are influenced in their verdicts much more by prejudice or favour, or greed of gain, or anger, or indignation, or pleasure, or hope or fear, or by misapprehension, or by some excitement of their feelings, than either by the facts of the case, or by established precedents, or by any rules or principles whatever either of law or equity".
Verres was supported by some of the most powerful families at Rome. Peculation on the part of governors of provinces had become almost a recognised principle: many of those who held offices of state either had done, or were waiting their turn to do, much the same as the present defendant; and every effort had been made by his friends either to put off the trial indefinitely, or to turn it into a sham by procuring the appointment of a private friend and creature of his own as public prosecutor. On the other hand, the Sicilian families, whom he had wronged and outraged, had their share of influence also at Rome, and there was a growing impatience of the insolence and rapacity of the old governing houses, of whose worst qualities the ex-governor of Sicily was a fair type. There were many reasons which would lead Cicero to take up such a cause energetically. It was a great opening for him in what we may call his profession: his former connection with the government of Sicily gave him a personal interest in the cause of the province; and, above all, the prosecution of a state offender of such importance was a lift at once into the foremost ranks of political life. He spared no pains to get up his case thoroughly. He went all over the island collecting evidence; and his old popularity there did him good service in the work.
There was, indeed, evidence enough against the late governor. The reckless gratification of his avarice and his passions had seldom satisfied him, without the addition of some bitter insult to the sufferers. But there was even a more atrocious feature in the case, of which Cicero did not fail to make good use in his appeal to a Roman jury. Many of the unhappy victims had the Roman franchise. The torture of an unfortunate Sicilian might be turned into a jest by a clever advocate for the defence, and regarded by a philosophic jury with less than the cold compassion with which we regard the sufferings of the lower animals; but "to scourge a man that was a Roman and uncondemned", even in the far-off province of Judea, was a thought which, a century later, made the officers of the great Empire, at its pitch of power, tremble before a wandering teacher who bore the despised name of Christian. No one can possibly tell the tale so well as Cicero himself; and the passage from his speech for the prosecution is an admirable specimen both of his power of pathetic narrative and scathing denunciation, "How shall I speak of Publius Gavius, a citizen of Consa? With what powers of voice, with what force of language, with what sufficient indignation of soul, can I tell the tale? Indignation, at least, will not fail me: the more must I strive that in this my pleading the other requisites may be made to meet the gravity of the subject, the intensity of my feeling. For the accusation is such that, when it was first laid before me, I did not think to make use of it; though I knew it to be perfectly true, I did not think it would be credible.—How shall I now proceed?—when I have already been speaking for so many hours on one subject—his atrocious cruelty; when I have exhausted upon other points well-nigh all the powers of language such as alone is suited to that man's crimes;—when I have taken no precaution to secure your attention by any variety in my charges against him,—in what fashion can I now speak on a charge of this importance? I think there is one way—one course, and only one, left for me to take. I will place the facts before you; and they have in themselves such weight, that no eloquence—I will not say of mine, for I have none—but of any man's, is needed to excite your feelings.
"This Gavius of Consa, of whom I speak, had been among the crowds of Roman citizens who had been thrown into prison under that man. Somehow he had made his escape out of the Quarries,[1] and had got to Messana; and when he saw Italy and the towers of Rhegium now so close to him, and out of the horror and shadow of death felt himself breathe with a new life as he scented once more the fresh air of liberty and the laws, he began to talk at Messana, and to complain that he, a Roman citizen, had been put in irons—that he was going straight to Rome—that he would be ready there for Verres on his arrival.
[Footnote 1: This was one of the state prisons at Syracuse, so called, said to have been constructed by the tyrant Dionysius. They were the quarries from which the stone was dug for building the city, and had been converted to their present purpose. Cicero, who no doubt had seen the one in question, describes it as sunk to an immense depth in the solid rock. There was no roof; and the unhappy prisoners were exposed there "to the sun by day and to the rain and frosts by night". In these places the survivors of the unfortunate Athenian expedition against Syracuse were confined, and died in great numbers.]