Part 16

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 totally 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 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 little 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 appears, 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.

3. Finally, the deliberations of the Senate, which was the great council of the state, afforded, at least to its members, the noblest opportunities for the exertions of eloquence. This august and numerous body consisted of individuals who had reached a certain age, and who were possessed of a certain extent of property, who were supposed to be of unblemished reputation, and most of whom had passed through the annual magistracies of the state. They were consulted upon almost everything that regarded the administration or safety of the commonwealth. The power of making war and peace, though it ultimately lay with the people assembled in the Comitia Centuriata, was generally left by them entirely to the Senate, who passed a decree of peace or war previous to the suffrages of the Comitia. The Senate, too, had always reserved to itself the supreme direction and superintendance of the religion of the country, and the distribution of the public revenue—the levying or disbanding troops, and fixing the service on which they should be employed—the nomination of governors for the provinces—the rewards assigned to successful generals for their victories, and the guardianship of the state in times of civil dissension. These were the great subjects of debate in the Senate, and they were discussed on certain fixed days of the year, when its members assembled of course, or when they were summoned together for any emergency. They invariably met in a temple, or other consecrated place, in order to give solemnity to their proceedings, as being conducted under the immediate eye of Heaven. The Consul, who presided, opened the business of the day, by a brief exposition of the question which was to be considered by the assembly. He then asked the opinions of the members in the order of rank and seniority. Freedom of debate was exercised in its greatest latitude; for, though no senator was permitted to deliver his sentiments till it came to his turn, he had then a right to speak as long as he thought proper, without being in the smallest degree confined to the point in question. Sometimes, indeed, the Conscript Fathers consulted on the state of the commonwealth in general; but even when summoned to deliberate on a particular subject, they seem to have enjoyed the privilege of talking about anything else which happened to be uppermost in their minds. Thus we find that Cicero took the opportunity of delivering his seventh Philippic when the Senate was consulted concerning the Appian Way, the coinage, and Luperci—subjects which had no relation to Antony, against whom he inveighed from one end of his oration to the other, without taking the least notice of the only points which were referred to the consideration of the senators(312). The resolution of the majority was expressed in the shape of a decree, which, though not properly a law, was entitled to the same reverence on the point to which it related; and, except in matters where the interests of the state required concealment, all pains were taken to give the utmost publicity to the whole proceedings of the Senate.

The number of the Senate varied, but in the time of Cicero, it was nearly the same as the British House of Commons; but it required a larger number to make a quorum. Sometimes there were between 400 and 500 members present; but 200, at least during certain seasons of the year, formed what was accounted a full house. This gave to senatorial eloquence something of the spirit and animation created by the presence of a popular assembly, while at the same time the deliberative majesty of the proceedings required a weight of argument and dignity of demeanour, unlooked for in the Comitia, or Forum. Accordingly, the levity, ingenuity, and wit, which were there so often crowned with success and applause, were considered as misplaced in the Senate, where the consular, or prætorian orator, had to prevail by depth of reasoning, purity of expression, and an apparent zeal for the public good.

It was the authority of the Senate, with the calm and imposing aspect of its deliberations, that gave to Latin oratory a somewhat different character from the eloquence of Greece, to which, in consequence of the Roman spirit of imitation, it bore, in many respects, so close a resemblance. The power of the Areopagus, which was originally the most dignified assembly at Athens, had been retrenched amid the democratic innovations of Pericles. From that period, everything, even the most important affairs of state, depended entirely, in the pure democracy of Athens, on the opinion, or rather the momentary caprice of an inconstant people, who were fond of pleasure and repose, who were easily swayed by novelty, and were confident in their power. As their precipitate decisions thus often hung on an instant of enthusiasm, the orator required to dart into their bosoms those electric sparks of eloquence which inflamed their passions, and left no corner of the mind fitted for cool consideration. It was the business of the speaker to allow them no time to recover from the shock, for its force would have been spent had they been permitted to occupy themselves with the beauties of style and diction. “Applaud not the orator,” says Demosthenes, at the end of one of his Philippics, “but do what I have recommended. I cannot save you by my words, you must save yourselves by your actions.” When the people were persuaded, every thing was accomplished, and their decision was embodied in a sort of decree by the orator. The people of Rome, on the other hand, were more reflective and moderate, and less vain than the Athenians; nor was the whole authority of the state vested in them. There was, on the contrary, an accumulation of powers, and a complication of different interests to be managed. Theoretically, indeed, the sovereignty was in the people, but the practical government was intrusted to the Senate. As we see from Cicero’s third oration, _De Lege Agraria_, the same affairs were often treated at the same time in the Senate and on the Rostrum. Hence, in the judicial and legislative proceedings, in which, as we have seen, the feelings of the judges and prejudices of the vulgar were so frequently appealed to, some portion of the senatorial spirit pervaded and controlled the popular assemblies, restrained the impetuosity of decision, and gave to those orators of the Forum, or Comitia, who had just spoken, or were to speak next day in the Senate, a more grave and temperate tone, than if their tongues had never been employed but for the purpose of impelling a headlong multitude.

But if the Greeks were a more impetuous and inconstant, they were also a more intellectual people than the Romans. Literature and refinement were more advanced in the age of Pericles than of Pompey. Now, in oratory, a popular audience must be moved by what corresponds to the feelings and taste of the age. With such an intelligent race as the Greeks, the orator was obliged to employ the most accurate reasoning, and most methodical arrangement of his arguments. The flowers of rhetoric, unless they grew directly from the stem of his discourse, were little admired. The Romans, on the other hand, required the excitation of fancy, of comparisons, and metaphors, and rhetorical decoration. Hence, the Roman orator was more anxious to seduce the imagination than convince the understanding; his discourse was adorned with frequent digressions into the field of morals and philosophy, and he was less studious of precision than of ornament.

On the whole, the circumstances in the Roman constitution and judicial procedure, appear to have wonderfully conspired to render

CICERO

an accomplished orator. He was born and educated at a period when he must have formed the most exalted idea of his country. She had reached the height of power, and had not yet sunk into submission or servility. The subjects to be discussed, and characters to be canvassed, were thus of the most imposing magnitude, and could still be treated with freedom and independence. The education, too, which Cicero had received, was highly favourable to his improvement. He had the first philosophers of the age for his teachers, and he studied the civil law under Scævola, the most learned jurisconsult who had hitherto appeared in Rome. When he came to attend the Forum, he enjoyed the advantage of daily hearing Hortensius, unquestionably the most eloquent speaker who had yet shone in the Forum or Senate. The harangues of this great pleader formed his taste, and raised his emulation, and, till near the conclusion of his oratorical career, acted as an incentive to exertions, which might have abated, had he been left without a competitor in the Forum. The blaze of Hortensius’s rhetoric would communicate to his rival a brighter flame of eloquence than if he had been called on to refute a cold and inanimate adversary. Still, however, the great secret of his distinguished oratorical eminence was, that notwithstanding his vanity, he never fell into the apathy with regard to farther improvement, by which self-complacency is so often attended. On the contrary, Cicero, after he had delivered two celebrated orations, which filled the Forum with his renown, so far from resting satisfied with the acclamations of the capital, abandoned, for a time, the brilliant career on which he had entered, and travelled, during two years, through the cities of Greece, in quest of philosophical improvement and rhetorical instruction.