CHAPTER VII

CICERO’S RESPONSE TO EXPERIENCE

A shelf of books has been written upon the Greek sources of Cicero’s

ideas, and if one were to discuss the manner in which Cicero’s own

experiences modified those ideas before he accepted them for his own

use one would ask for a second shelf of at least equal length. Cicero’s

political works, like the _De Republica_ and the _De Legibus_ were

written after an extensive perusal of Greek political masterpieces, but

they are not, like many of the philosophical essays, paraphrases. The

author betrays the fact that he has been in politics for a long time,

that he has in fact been a party leader and has held the highest offices

of state. He does deference abundantly to Plato, Polybius, and Panaetius

for good suggestions, but it is an experienced Roman statesman who has

the last word on every issue at stake.

Cicero’s various political works are not all in agreement with each other

nor with the utterances upon the same themes found in his letters and

orations, nor do his political acts follow an unbending course. He lived

in fact through a long period of revolutionary changes in politics, when

consistency through a life-time would have betokened either inability to

learn or stubborn intransigence. Drumann set him down as a turncoat, a

judgment which Mommsen reiterated in a great variety of phrases. Heinze,

in a mistaken attempt to rescue Cicero’s reputation, tried to prove that

he had been a fairly consistent conservative through life. Zielinski, on

the other hand, endeavored to show that Cicero’s theories could be traced

to his reading, and that a search in these sources would explain Cicero’s

somewhat wavering course.

All these views seem to me to emerge from cloisters that are very

far removed from the kind of democratic politics that Cicero lived

through, a kind of politics not entirely unfamiliar to some of us from

daily observation. Drumann and Mommsen wrote in an atmosphere where

firm and consistent loyalty to the existing régime was expected of all

gentlemen and where firm independence and detachment were taken as

marks of vacillation; and even Heinze’s apology breathes some of the

same spirit.[1] As for Cicero’s dependence upon the theories of his

predecessors, it must be admitted that no Roman knew them better or

received more from them. But professors who delve in books all their

lives are apt to over-estimate the effect of written theory and of

tralatician ideas, and to under-estimate the momentum of facts that

compel practical men to take quick and unpremeditated action. Very often

Cicero saw the value of an idea in Plato or Panaetius only after an

experience of his own had thrown him pell-mell upon the realities that

disclosed the meaning of their abstract ideas. I wish here very briefly

to outline his changes in political thought against the background of his

experience and his reading.

In speaking here of Cicero’s party affiliations we must recall that

political parties remained rather amorphous at Rome, since all citizens

could cast their votes directly in the legislative assemblies without

using representatives elected by means of well-organized party machinery;

since labor, confined largely to slaves, had no voice in politics, and

finally since commerce and industry, which are usually very powerful

factors in legislation, never became strong enough at Rome to formulate

an effective program. In the fourth century B.C. the plebeians had

struggled to win political equality with the patricians; in the second

century an era of good feeling reigned in which Polybius was aware only

of a well-balanced coordination of functions between the executive,

senate, and popular assembly acting in self-restrained rivalry; after

the Gracchi the party issues, when at any time they became acute, could

usually be formulated in terms of the question whether the assembly was

sovereign or whether the aristocratic senate had the right to direct or

check its operations. The special questions that arose during the period

and that invited a frequent shifting of party loyalties were numerous,

as for instance, the disposal of public lands, the constitution of the

law-courts, the enfranchisement of the allies, the special ambitions of

men like Marius, Sulla, Caesar, and Pompey, the power of the tribunate,

and the legality of the _senatus consultum ultimum_. During this period

the knights, the propertied middle-class, were usually found to be

aligned on the democratic side because they could more readily secure

what they desired by such a coalition; but whenever the populace showed

an inclination to threaten the rights of property they quickly shifted

toward the senate.

Cicero’s father was a knight from the municipality of Arpinum, and a

neighbor and distant relative of Marius. The old gentleman had marked

leanings away from the theories of pure democracy; nevertheless in

practice his relationship with Marius, his residence in a municipality

where sympathies with the Italian allies begging for the franchise were

strong, and his status as a knight were factors that at times drew him

toward democracy. It is not surprising therefore that the young Cicero

was placed in tutelage under Scaevola the augur, one of the liberal

senators who presently showed his courage by refusing to vote Marius a

traitor at Sulla’s orders. We can also comprehend why the young student

eagerly followed the speeches of Sulpicius, the tribune who tried to

secure a practical franchise for the Italians, and in order to do so

placed Marius in command of the army by removing Sulla. In the years 88-7

it is clear that Cicero lived in a very liberal atmosphere where optimate

politics were not in favor. During the domination of Cinna, Cicero, who

was then diligently studying philosophy, took no active part in politics,

but it is apparent from his later judgments that he bore no love for

this brutal leader of the democracy,[2] though the knights in general

continued to support him. On the other hand, when Sulla returned, seized

the dictatorship and executed sixteen hundred knights, Cicero acquired

for this aristocratic leader an aversion that left its mark throughout

all his later writings. Through these years of revolution, therefore,

Cicero’s sympathies were determined chiefly by antipathy to the

respective leaders of both extremes rather than by any party allegiance.

But when the courts were finally revived in the year 80, Cicero soon

appeared in the defense of Roscius, whom no speaker of distinction had

dared defend because a creature of Sulla had suborned the attack upon

him. We may freely admit that Cicero did not take this case in order to

reveal the venality of Sulla’s régime. He would have betrayed his client

if he had used this opportunity to attack Sulla, for he spoke before a

jury of senators. It is of course quite apparent that if up to this time

Cicero had been an outspoken opponent of the aristocracy, the friends

of Roscius would not have risked employing him in the presence of that

jury. But it is equally certain that Cicero would not have taken a case

that was sure to lead to the exposure of Sulla’s favorite, Chrysogonus,

if he had been a confirmed follower of Sulla. In the speech he made one

definite statement of his political sympathies: “Those who know me, know

... that, after the peaceful settlement, which I especially desired,

could not be consummated, I favored the victory of the side that has

conquered.” This admission, that Sulla was not his first choice, made

before a jury of senators at a time when few men dared speak against

Sulla, can hardly be used to prove Cicero a supporter of Sulla. It is

in fact clear evidence that his disapproval of Sulla’s use of military

force was so well known that it had to be admitted in court and, for

the sake of his client, excused so far as possible by an emphasis upon

a later course of acquiescence. The peroration of the speech, a very

courageous exposure of the brutalities of the Sullan régime, which gives

evidence of a keen insight into social psychology, proves that Cicero

fully understood the evils of the dictatorship.

There is not one among you who does not comprehend that the

Roman people, formerly humane even in the treatment of enemies,

is now suffering from a wave of cruelty here at home....

This not only has resulted in the utterly brutal murder of

many citizens, but has destroyed in our people, once so

compassionate, the capacity to feel any pity.[3]

When we consider these two passages in connection with the fact that

Cicero—without pay of course—took a case which none of the distinguished

men of his day dared touch, we can only reach the conclusion that

Cicero’s aversion to Sulla and his crew was at this time the dominant

influence in his life. This does not indeed prove Cicero a democrat, but

it does go far to explain why Cicero did not for the next sixteen years

reveal any sympathy for the senatorial cause, and why during that period

he frequently criticizes Sulla and his policies,[4] while mentioning the

Gracchi in terms of high praise.[5] Cicero was still a moderate liberal.

Cicero was in Greece when Sulla died and therefore had no share in the

abortive revolution of Lepidus. On his return he took few political

cases, giving a large part of his time to practice in civil cases (Verr.

II, 181), through which he won enough distinction to secure election to

the questorship and aedileship.

In the first Verrine oration Cicero inveighed bitterly against the

past venality of the senatorial courts, instituted by Sulla, and the

selfishness of the oligarchy. This was of course in part due to his

plan to frighten the jurors into a severe judgment, for he went on to

remind them that a reform of the court had been proposed and indeed

was probably imminent. However, it is clear that Cicero was eager to

take the onerous case. He fought for the privilege, he spent months of

expensive and unpaid effort in the midst of the canvassing season upon

it, he went out of his way to reveal the sins of the senatorial misrule

of the provinces, and to speak with high respect of democratic heroes

like the Gracchi, and of democratic proposals like the return of the

tribunate. All these things prove that Cicero could not at this time have

been considered a supporter of the aristocracy. The equestrian order,

with which he was still closely identified despite his entrance into the

senate, had strongly supported Pompey and had united with the populace

in electing him on a moderate democratic program. There can be no doubt

that Cicero had voted wholeheartedly for Pompey and that he supported the

equestrian-democratic _bloc_ and program. If in the Sullan days he was an

independent liberal with aversions to both Cinna and Sulla, he was now

willing to work with the liberal group, even if a somewhat independent

adherent who was waiting to see whether the party made good before

committing himself definitely.

With Pompey’s accession to the consulship the fortunes of the knights,

who had suffered untold disasters under Sulla, reached a turning point.

The restoration of the censorship meant among other things that the

equestrian corporations were again to be assigned provincial contracts;

the restoration of the tribuneship meant that they would not have to

appeal to the hostile senate for desired administrative measures; the

revision of the court panels gave back to them both power and prestige.

Since Pompey proved to be their friend they determined to honor him and

use him further. In 67 they demanded that the seas be cleared of pirates

so that the commerce in which they were interested would be protected;

and they demanded that Pompey be placed in command of the war with

extraordinary powers. When the senate objected, the knights, resting

their arguments upon Gracchan precedents, took the bill directly to

the assembly. The senate considered this revolutionary. The populace,

flattered by this appeal to their assembly and favorably disposed to

Pompey, supported the knights. When the senate induced a tribune to veto

the measure, Gabinius, assuming the validity of the Gracchan theory of

“recall,” threatened to present a bill to depose this tribune, thereby

forcing him to desist. This was tantamount to accepting the democratic

theory of popular sovereignty in its extreme form, and Cicero seems to

have acquiesced. At any rate when Cicero mentioned the incident in the

_Pro Cornelio_ two years later, he raised no objection to the procedure,

and afterwards when he quarreled with Gabinius he did not cast this act

in his teeth.

In the year 66, when Manilius introduced a proposal to place Pompey

in command in Asia, the same coalition of knights and populace again

insulted the senate by taking the bill directly to the assembly. On this

occasion Cicero was the principal speaker for the coalition; and he spoke

as a full-fledged democrat, unashamed. One may of course suppose that

Cicero was largely influenced by life-long connections with the knights

and by a deep devotion to Pompey, apparently dating from the time when he

served under Pompey’s father in the Social War. One also realizes that

the Manilian law had a very great practical appeal, and that a rising and

ambitious young statesman like Cicero would see the advantage of being

chosen as the spokesman for such an important measure of the party then

in power. Be that as it may, the speech of that day is the speech of an

important and accepted member of the popular-equestrian party.[6]

This was the year of Cicero’s praetorship in which he had to serve as

judge in the trial of Licinius Macer, a radical democrat, who was accused

of misappropriation. Cicero mentions the case to Atticus immediately

after the trial, remarking—though a judge had but little discretion in

such matters—that he had been favorably disposed to the culprit in his

management of the case, and had received much favorable comment from the

people for his attitude.[7]

A democratic attitude is again shown by Cicero in his defense of

Cornelius the next year (65). Cornelius in his tribuneship had angered

the senate by proposing several radical plebiscites and especially by his

disregard of a tribunician veto. When the herald had been forbidden by a

tribune to read the bill of Cornelius in question, Cornelius himself had

read it to the assembly, thereby not only breaking an old law but also

in a new manner putting into effect the Gracchan theory of the “recall”

which would strip the senate of its power to interfere in legislation.

When Cornelius was haled to court by some senators on the charge of

_lese majesté_ Cicero undertook to defend him; in this defense Cicero

confined himself to minimizing the charge of the actual breach of a law,

but did not offer any apologies for the attempt of Cornelius to apply

the radical theory of “recall.” Indeed he actually defended that part of

the procedure by referring to the precedent set by Gabinius two years

before.[8] Here then he accepted again the Gracchan theory of popular

sovereignty. In the years 66-5 at least Cicero behaved like a confirmed

democrat.

In July of 65, about the time of his speech, Cicero wrote to Atticus that

he had begun to think of his canvassing for the consulship and that he

was certain of the support of all but the nobles, that is to say, he knew

that the equestrian and democratic groups would vote for him. A few days

later he still felt himself so closely allied with the democratic group

that he was considering giving legal aid to Catiline. That however he did

not do. A careful investigation into the merits of the case was probably

enough to dissuade him.

This year in fact proved a new turning point in Cicero’s politics. Pompey

had now been absent for two years and his coalition lacked effective

leadership. The democrats had suffered in prestige by electing to the

consulship Autronius and Sulla, who were presently convicted of bribery

and deposed. In the reaction against the radicals two conservatives had

been elected. The deposed candidates made matters worse for their party

by entering into (or so it was widely rumored) a conspiracy to seize

power, only to fail again. Catiline, one of their aides, continued the

agitation with more and more questionable proposals, and the party was

so far discredited that the soberer element began to look for saner

leadership. The party itself, under such leadership as Catiline could

give, drifted far toward the left, and among the stronger men only

ambitious politicians like Caesar and Crassus—who hoped to use its

fortunes to their advantage—remained in nominal allegiance. Cicero of

course could not follow such guidance, and it is probable that most

of the property-owning knights had drifted rightward before the year

was over. These men of the middle class had been willing to support

the Gracchan theory of popular sovereignty because it seemed to insure

the possibility of progressive legislation; but when the more radical

democrats began to talk of using the assembly for monetary inflation and

moratoria on private debts, the knights were of course frightened. Caesar

and Crassus added to their fears by proposing to ask for imperialistic

commands for themselves and to check the power of Pompey who had been

winning provinces which the knights hoped to exploit under a stable

régime. Unfortunately none of Cicero’s utterances have survived from this

momentous year (July 65 to July 64) when, like the rest of the knights,

he must have drifted steadily away from the old coalition, or rather

when he saw the left wing of the party drifting steadily away from the

time-honored Roman devotion to law and property rights.

Before the election of 64, in which Cicero stood for the consulship,

Catiline became ever more a demagogue and made an alliance with the

unprincipled Antonius. These two men received the support of Caesar and

Crassus, but of course not of the moderates. The conservative element

of the state disliked to vote for a _novus homo_ like Cicero, but the

only other sound candidates were Cornificius and Galba, who were little

known and fairly sure of defeat. Cicero was certain to get most of the

equestrian vote, he would draw heavily from the popular vote because of

his well-known liberal connections, he had the favor of Pompeian soldiers

and adherents, and on economic and social questions he could be trusted.

The optimates therefore decided to support him although he was not one of

them. But the veering was not all on their part. Cicero also had learned

from the talk of Catiline, Caesar, and Crassus that the Gracchan theory

of popular sovereignty without a senatorial check might lead to dangerous

economic and imperialistic legislation. He accordingly abandoned the

theory that the senate had no constitutional right to interfere in the

popular will, a theory which he had supported in 66 and 65. He doubtless

said so in the senate before election day, when saying so would count.

At any rate very soon after he assumed office, when the question of the

senate’s _auctoritas_ came up in Caesar’s prosecution of Rabirius, he

threw all his energy into the defense of Rabirius and the senate’s right

to proclaim martial law,[9] and he did so by reminding the people that

their great leader Marius, contrary to his party politics, had recognized

the authority of the senate when a great crisis came. This served well as

an apology, if one were needed, for his own abandonment of the central

democratic doctrine when his eyes had been opened to its dangers. Cicero

thus led the knights into a coalition with the optimates and continued

through the year to cement a _concordia ordinum_.

During the summer the second violent canvass of Catiline on a reckless

program of revolution only made Cicero a more confirmed conservative. To

save the state from revolution he had himself to propose a senatorial

order of martial law in October, a measure he would doubtless have fought

three years before, and under its provisions he had the conspirators put

to death, an act which made him the prime defender and advocate of the

central optimate theory, and later caused his banishment at the hands of

Caesar’s democratic coalition. Thus experience and circumstances had in

three years turned the avowed democrat into an extreme optimate. It is

needless to follow his career in detail: the desertion of his coalition

by the knights because Caesar offered them what they desired, his

banishment, which only confirmed his convictions that he was right, his

failure on his return to undo Caesar’s popular legislation because the

senate feared Caesar and dared not follow Cicero. He still clung for a

while to his new doctrine of the senate’s importance, as the _Pro Sestio_

proves, but it was a futile policy. The senators, fearing Caesar, failed

to respond. He saw then, if not before, that the senate could not rule

Rome.

Cicero now retired from active political life and found time to think and

draw conclusions from his experiences for a carefully considered review

of Roman political needs. In the _De Republica_, which he wrote in 54-1,

shortly before the Civil War, he carefully reviewed the history of the

Roman constitution in order to lay a sound foundation for a durable and

reasonable program in case the senate and people should ever regain the

freedom of action which the first “triumvirate” had taken away. There was

some hope that such a program might have a chance, for Crassus was out

of reach and Pompey and Caesar were noticeably falling apart. In this

book he shows that Rome had definitely rejected autocratic government,

and that, as Polybius had already seen, it had combined the machinery of

popular sovereignty with aristocratic checks under strong but short-term

executives. In showing that this form was historically based and that it

had operated well in the happiest days of Rome, Cicero became convinced

that he must give a larger place in his book to the popular assembly than

he had been willing to accord it since the days of Catiline. He says with

rather surprising firmness that the populace must have liberty of action

or they will revolt, and that liberty was a natural right that no man of

intelligence could propose to destroy. This is virtually a confession

that he had gone too far toward oligarchy in his own consulship. He knew

now that if the nobles had been more friendly to the populace, Caesar

would not have been able to seize control. He therefore admits the theory

of popular sovereignty which could not be denied after the events of 59,

but he also seeks for some method by which to check the danger of such a

concession. His new theory is that the body politic should be educated to

accept the leadership and advice of some strong person who might, like

the revered _princeps senatus_ of old, be honored as guardian (_rector_

or _gubernator_) and whose considered advice would be respected by all.

He says explicitly that he has in mind such a man as Scipio Aemilianus,

who at times served in just such a capacity even when he held only the

honorary designation of _princeps senatus_.

In the fragments that we have the precise intention of the great office

does not come out clearly. One scholar believes that Cicero had Pompey in

mind, and that Augustus later tried to put the program in action under

his own régime.[10] A few years later Cicero in a letter to his most

trusted friend says that Pompey had never measured up to the height of

his ideal rector,[11] which seems to be a confession that Cicero had had

Pompey in mind as a possible candidate though fearing that Pompey would

prove deficient as a leader. It can hardly be doubted that Cicero must

have had moments of regrets that the state had not accepted him, Cicero,

for such unofficial leadership after his consulship. It is quite clear

that if Cicero had at that time proved himself a man of outstanding

qualities of leadership he might have become for many years a rector of

the type that he describes. At any rate in 43, after Caesar’s murder,

Cicero assumed for himself the position of rector and gubernator, though

he held no office.[12] However, while writing the _De Republica_ in 54-1,

Cicero could hardly have supposed that his day of influence would return

so long as Caesar or Pompey continued in power.

Another possibility is that when Caesar appeared to be aiming at some

form of autocracy, Cicero entertained the hope of converting that

powerful man by his monograph on government to accept a constitution of

good old traditions and to assume under that constitution a legal and

dignified position such as Scipio had for a while enjoyed. There is at

any rate a significant passage in the _De Provinciis Consularibus_,[13]

written in the year 56 (two years before he began to write the _De

Republica_) in which, after much flattering of Caesar, he suggested that

since Caesar was as moderate as he was wise he would be willing to accept

a constitutional position and act in harmony with the senate, if the

senate would act in a conciliatory manner. That passage may be the safest

clue to follow in trying to fathom the intentions of the _De Republica_.

Cicero’s hopes, however, were shattered. Pompey continued to fall short

of deserving full confidence, and Caesar grew into a politician bent on

his own advancement. The civil war and the victory of Caesar antiquated

the doctrine that Cicero had preached in the _De Republica_, and he

had to revise his program once more. Caesar’s dictatorship temporarily

destroyed the republic, but Cicero could not avoid hoping that there

might be a day of recovery. When he wrote the _De Legibus_[14] a few

years later, Pompey was dead, Caesar was playing the tyrant and Cicero

himself had little hope of gaining the helm of influence. He therefore

abandoned the idea of a _rector_, and yet he knew that if Caesar should

die or be removed the state would again need a constitution. In this new

work accordingly he reverts to the historical tradition of the Scipionic

republic, but openly assigns to the senate the leadership that it tacitly

had had before Scipio’s day, by proposing to allow the senate to control

legislation by the requirement of a vote of ratification (_eius decreta

rata sunto_). This proposed change, which would eliminate the dangers

inherent in the tribunate, shows that Cicero had learned from Caesar’s

career that a rector might become too powerful, that while popular

sovereignty must be recognized as a safety-valve in legislation, the

senate must be given a firmer hold on legislation so that it might check

both the assembly and the magistrates at critical moments. He was once

more, and for reasons easy to comprehend, an advocate of aristocracy.

Cicero had only one brief opportunity to take the helm once more, and

then, in the war against Antony, during the last year of his life, the

state was in such confusion and under such stress of compulsion that

it is not easy to say what theory of the constitution Cicero actually

followed. During his unofficial leadership (he probably had frequent

occasion to think of himself as the _rector_ of his _De Republica_) the

senate carried on the war under a senatus consultum ultimum, which was

regular enough at times of internal disturbance. When it was necessary

to impose a direct tax upon all citizens—which had not been necessary

since 167—the senate seems to have voted the measure without reference

to the assembly. But this also, illogical as it may seem,[15] followed

precedent. Finally, it was the senate that annulled the legislation of

Antony, for which there was also an abundance of precedents. There was,

however, one piece of legislation during this period which betrays the

direction of Cicero’s thought. The _lex Vibia_,[16] an act to confirm

the legality of Caesar’s deed, was ordered to be submitted to the

_centuriate assembly_ on an _auctoritas senatus_, and this shows clearly

that the democratic constitution of Caesar’s régime was now out of favor.

The plebeian assembly could hardly have been slighted in this instance

through fear of the lower classes, for the measure was popular enough. It

was clearly a procedure which could only have meant that Cicero intended

the senate to control legislation by use of the most conservative

machinery provided by the old constitution of Rome. Cicero’s last acts

therefore reveal him even farther away from the democratic policy than

those of his consulship.

This review reveals Cicero as inconsistent in party loyalty; it shows

that he began as a moderate, then, forced by hatred of Sullan tyranny

and induced by immediate practical needs, that he plunged well into

democracy, only to be driven by the democratic excesses and the offices

of responsibility deeply into conservative sympathies. Experience and

observation next led him to revise his theories, first in the direction

of liberalism, then, reacting to Caesar’s errors, toward conservatism.

Yet we need not, with Mommsen, call Cicero a turncoat. He generally

followed a straighter course than the parties that shifted all about him.

Nor need we, with Heinze, insist that he was consistently an optimate all

the years before his consulship, for he was always willing to seek new

theories of government when experience proved the old ones inadequate.

Finally, Zielinski’s view that he acted generally on theories found in

his reading is perhaps less justified than any other. Cicero read widely

and certainly gained some of his ideas from books—the source-hunter may

find parallels in abundance—but when Cicero acted it was not merely

because of what he had found in a book, but because he had had actual

experience and was feeling his way to the logical conclusion of his

observations.

Here we have attempted to illustrate very briefly how Cicero reached his

conclusions in political theory through experience, as in a preceding

chapter we stressed forensic experience as the chief formative factor of

Ciceronian prose. In both of these fields Cicero wrote not primarily as a

well-read man transmitting the views of others, but rather as the chief

authority of his day by virtue of his own accomplishments. In tracing the

body of philosophic essays which he compiled with amazing speed during

the six months of retirement in the year 45, we find a very different

product, for, as he told Atticus, who was surprised by this prolific

output, these are and purport to be merely paraphrases and translations

from the Greek.

In a sense, of course, we find the fruit of Cicero’s experiences in

these also, since he usually chose for paraphrasing what he felt to be

significant, and in each work he omitted what met with his disfavor,

expanding and illustrating the ideas which appealed to him. Furthermore,

since he was concerned rather in presenting clearly the points that

interested him than in giving a faithful translation of the Greek, the

resultant essays often, even when they are to some extent mosaics,

give us very precisely the Ciceronian pattern. Large parts of his

philosophical compilations may therefore be taken to illustrate Cicero’s

own convictions reached through his own experience; and when we deal with

such work it may be more fruitful to consider Cicero’s own contribution

to the final design than to hunt the original quarry from which he drew

each _tessera_.

Let us turn to another illustration of how Cicero’s views altered and

enlarged through personal experience until at last, even though he

expressed himself through paraphrased passages, he succeeds in making us

feel that he is giving us an epitome of his own personal convictions. For

this purpose we may consider his statements about the survival of the

soul after death.

In his youth, especially during the civil wars when a public career

seemed for a time closed, Cicero had devoted much time to the study

of philosophy, and, being a normal Roman of the old type, to whom the

actualities of life meant more than metaphysical speculation, for whom

the world of realities was too full of interest to allow any time for

mystical contemplation, he had naturally accepted the agnostic attitude

of the New Academy toward the “unknowable.” With the New Academy he

was theoretically ready to admit “probabilities,” even to act on

probabilities, but epistemology had no appeal for him. Of course there

are degrees of likelihood and the degrees are apt to vary with mood and

occasion. When Cicero spoke before the populace he could see enough

plausibility in the argument for Divinity to assume its existence for

the time being. But when he wrote to his intimate friends the likelihood

did not seem pressing enough to receive mention. He supposed with

many other agnostic statesmen of his day that official worship of the

gods was useful in the maintenance of the social system,[17] and this

explains why, when he stood before the people, giving official advice,

his faith seemed to expand. We need not take such faith very seriously.

With the problem of the survival of the soul—except for a brief toying

with a Platonic Myth in the _De Republica_—Cicero did not concern himself

till very late in life. Like most Romans he explained to himself the

phrases of the Greek mystics in a simple formula of “Gloria,” which,

when analyzed, resolved itself into something like the “immortality of

fame.”[18]

We all know how great a rôle the insistence upon fame and reputation

played in the education of the aristocracy at Rome. Since parents and

teachers had no religious authority and no fixed ethical sanctions

to which to appeal in presenting the claims of duty, the examples of

ancestral heroes and the _mos majorum_ came to be their decalogue. In

their own homes children were shown the _imagines_ of their famous

ancestors and taught to read the inscribed _tituli_ of their honors and

triumphs. “Go thou and do likewise” was the obvious inference from daily

lessons. It is safe to say that the constantly instilled respect for

heroic ancestors was the most powerful factor in ethical teaching that

ancient Rome knew. When Cicero so readily drops into the remark that

what concerns him is what posterity will say of him a thousand years

hence, he reveals the effectiveness of this moral pedagogy. Again and

again in his speeches he frankly admits that _Gloria_, the immortality

of fame, is what spurs him to incessant activity. The immortality of the

“Choir Invisible”[19] was the only survival that the normal Roman of the

cultured classes of the time expected.

Cicero, who read very widely in Greek writers, had of course come in

contact with many mystics. He had enjoyed the poetry of Plato’s myths; he

was a good friend of Neo-Pythagoreans like Nigidius Figulus, with whom he

had long conversations on this very subject at Ephesus in 51; he had also

conversed with and read the works of Posidonius, who interpolated much

oriental mysticism into his Stoicism. But all of this had left few traces

in Cicero’s utterances, until a very great grief overwhelmed him.[20] In

February of the year 45, two years before his death, his daughter Tullia,

his one deep passion, died after years of suffering. Cicero gave in

completely to his sorrow and withdrew to the forest of Astura, where he

walked alone and communed with himself for several weeks. All his friends

sent him letters of consolation, but they were typical Roman letters that

gave little cheer, only reminding him that it was the duty of a Cicero

to be strong, that life had little of value now that liberty was lost,

that his own life was near its end. What he wanted was some ray of hope,

and he sought the books of the mystics to give him what he needed. He

read and pondered and temporarily accepted a “probability” that he had

occasionally used in speeches to the populace, but never considered of

use to himself. And he wrote it out in a _Consolatio_ in order to make

it more persuasive. The basis of this pamphlet was Crantor’s argument,

taken from Plato, that the soul reveals capacities that imply eternal

existence.[21] But Cicero carried the argument to a conclusion that

neither Crantor nor Plato would have accepted, the conclusion that Tullia

still lived, would live eternally as a divine being, and if divine must

have a shrine. This means that Cicero’s new faith, though suggested by

reading which had hitherto had no appeal for him, was vitalized now

through his deep love for Tullia, that it took its meaning from his own

experience, and must reach the conclusion that his love for her dictated.

We know, of course, that he sought justification for this conclusion in

whatever authority he could find. He says so explicitly in a letter to

Atticus:[22]

In trying to escape from the painful sting of recollection I

take refuge in recalling something to your memory. Whatever you

think of it, please pardon me. The fact is _I find that some

of the authors over whom I am poring consider appropriate the

very thing that I have often discussed with you, and I hope

you approve of it. I mean the shrine._ Please give it all the

attention your affection for me dictates.... I shall use all

the opportunities permitted in an age as erudite as this to

consecrate her memory by every kind of memorial borrowed from

the genius of all the masters, Greek and Latin. Perhaps it

will only gall my wound: but I consider myself pledged by a

kind of vow or promise; and I am more concerned about the long

ages when I shall not be than about my short day, which, short

though it is, seems all too long to me. I have tried everything

and find nothing that gives me rest.

In Greek writers, who justified the apotheosis of Hellenic rulers by

appealing to the cult of “Heroes,” he could find such arguments and he

seems even to have employed Euhemeristic writings, for he ended the

strange _Consolatio_ with the words:[23]

If the children of Cadmos, of Amphion and of Tyndarus were

carried to heaven in glory, she too deserves this honor. This

I shall accomplish and with the approval of the immortal gods

shall declare and consecrate you before all the world ... as

one of the immortals.

His well-stocked library of Greek books was full of such mystical ideas,

but they had had no meaning for him till this moment. Now he seized

the idea with determination, and to Atticus, who doubtless thought it

a passing whim and gave him no encouragement, he wrote almost every

day urging him to find a suitable spot for the shrine he proposed to

consecrate, and to engage an architect who should plan its erection.

This mood of mysticism probably lasted only a few months. The reading

he went through in seeking justification for his conclusions led him to

write the _Hortensius_, that enthusiastic eulogy of philosophy which

converted St. Augustine to a new mode of life. In its fragments we find

traces of the same un-Roman mysticism. Then in the first _Tusculan

Disputation_, which he wrote in May of the same year, he repeated the

gist of the argument which he had used in the _Consolatio_ and with

nearly as much assurance. However, in this same month he began his first

draft of the _Academica_, a careful review of epistemological theory, and

this brought him back to his earlier agnosticism. His letters now show

less interest in the proposed shrine. In July they cease entirely: it

would seem that the “apotheosis” of Tullia was abandoned.

Let us take one more illustration. James Bryce once reckoned that Roman

law was still influential in the courts of about three hundred million

people; and he pointed out that it had gained this capacity because the

jurists of the Empire had based every paragraph of the statutes upon the

general principle of equity. Stroux, in his brilliant monograph entitled

_Summum jus summa injuria_, has recently demonstrated that Cicero,

employing Aristotelian rules of rhetoric, exerted a powerful influence

upon the reform of Roman Law by emphasizing in his rhetorical treatises

the claims of equity as against statute, and of intention (_voluntas_) as

against the literal interpretation of the word. This is all to the good.

But the process was hardly as simple as that. The Aristotelian rules of

rhetoric had worked no vast reforms in Greece, and at Rome they were

not likely to prove less arid in practical life if left to the mercy of

text-books. Ideas do not readily revive in that impersonal fashion.

There are two very definite reasons why the ideas of equity and intention

had a fair chance to grow into importance in the Ciceronian court. The

first is the existence of the peregrine court. As early as 242 B.C.

the senate had created a special court for strangers to use in their

litigation with Romans. This was, of course, devised in order to attract

traders to Rome with a guaranty that they would be dealt with fairly, and

it could only be a tribunal of arbitration seeking to reach equitable

decisions regardless of Roman statute and by formulary procedure. We

know how this court familiarized the Romans with the standard practices

of commercial peoples, how it created a respect for _jus gentium_, how

in time it accustomed the Romans to respect equity as a thing more

sacred than local law and how it trained them to use the formula,

until, by about 150 B.C., even the urban court could abandon the rigid

_legis actiones_ in favor of the formulary procedure, and the praetor’s

edict was given standing by the side of statute. It is, of course,

inconceivable that phrases advocating a free interpretation of law,

translated from rhetorical school books, could have won any response at

Rome unless the courts had been ready for them.

But there is another item in the reckoning. Cicero, who studied law at

the time when this revolution was taking place in the native courts, set

out on a long and influential career of forty years as a lawyer for the

defense. In that career he had a greater need than anyone else for what

we may call the humane and sociological interpretation of law. He seized,

of course, with eagerness upon the rhetorical distinction, provided by

the Greeks, between the word and the spirit, between law and equity, but

this distinction had already been recognized at Rome by the creation of

the peregrine court, had in fact been latent in the long series of laws

that brought the plebeians their rights during the several centuries of

bloodless compromises of the early Republic. Indeed it is safe to say

that Cicero without the aid of alien ideas would necessarily have evolved

his enthusiasm for equitable interpretation during his long career as a

defensive advocate, using as his tool the Roman court with its formulary

procedure, its _jus honorarium_, and its respect for _aequitas_ and _jus

gentium_.[24] In a word, a reform already in progress at home gave Cicero

an excellent opportunity to develop his legal practice on the principles

of a liberal interpretation of law and to draw upon Greek authors for

useful support for his contention, and thus aid in formulating general

principles that made the civil law the text-book of the world.

Cicero was a wide reader, and he appropriated ideas from far and near,

but he appropriated and applied what he read at the points where he

was doing his own thinking, and he applied it creatively. Such was,

throughout his life, Cicero’s response to experience.

FOOTNOTES

[1] The prefaces of Tyrrell and Purser, and the brief biographies of

Strachan-Davidson and of Boissier are models of sane judgment regarding

Cicero’s political behavior.

[2] Throughout his life Cicero found no good word for Cinna, though he

was fair enough to democracy to praise the Gracchans even during Sulla’s

ascendancy, _De Invent._ 1. 5.

[3] _Pro Roscio_, 136.

[4] _In Caecil._, 70; _In Verr._ i. 37; iii, 81; _Pro Caec._ 69; _Pro

Cluent._ 151; _In Toga Cand._, ed. Stengl., 68; _Lex Agr._ ii. 81.

[5] _Pro Cluent._, 151; _In Toga Cand._ 69; _Lex Agr._ ii, 10; 31; _Pro

Rab._ 14, 15. In the days of his most pronounced sympathy for the senate

he refers to the Gracchi with less deference and at times goes so far as

to justify their execution.

[6] _De Imperio Cn. Pompei._

[7] _Ad Att._ i. 4; Plut. _Cic._ 9.

[8] _Pro Corn._ ed. Stengl. p. 57.

[9] Hardy (_Jour. Phil._ XXXIV, 16) denies that the question of the

senate’s _auctoritas_ was at stake in this trial, since Sallust’s

_Catiline_ and Caesar’s _Bell. Civ._ admit the constitutionality of the

_Sen. Cons. Ult._ But Sallust and Caesar wrote almost twenty years later,

after Caesar had packed the senate for use in any measure he chose.

The question was then no longer of any importance. Cicero’s speech,

_Pro Rabirio_, definitely says that the issue at stake was the senate’s

authority.

[10] E. Meyer, _Caesars Monarchie_: a thesis questioned by Heinze. Sabine

and Smith, _Cicero on the Commonwealth_ (1929), keep their attention too

closely to the Greek sources.

[11] _Ad. Att._ viii. 11.

[12] He does, however, not use those terms: cf. _Fam._ xi. 6: _adpetam

huius rei principatum_; _Fam._ xii, 24, 2 (Jan. 43): _me principem

senatui populoque Romano professus sum_; _Fam._ x. 28: _totem rem

publicam sum amplexus_.

[13] _De Prov. Proc._ 38 ff.

[14] See C. W. Keyes, “Original Elements in Cicero’s Ideal Constitution,”

_Am. Jour. Phil._, 1921, 309 ff. A part of the _De Leg._ was written

before Pompey’s death.

[15] The senate, though not a representative body, had voted all tax

bills before the tribute was abandoned in 167 B.C. There is little doubt

that the Gracchi would have altered this illogical procedure if the

tribute had remained in their day. In 43 Cicero probably followed the

only ancient precedent there was without considerations of political

theory.

[16] Cic. _Phil._ x. 17: _legem comitiis centuriatis ex auctoritate

nostra laturus est_ (Vibius Pansa).

[17] _De Natura Deor._ i. 3, written during the summer of 45.

[18] On Cicero’s use of Gloria see _Pro Rabirio_, 29-30; _Pro Archia_,

28; _Pro Sestio_, 47; _Ad Att._ ii, 5. Late in life Cicero wrote a

treatise in two books on this subject.

[19] George Eliot used as a motto for her poem on this theme the very

words of Cicero written when he proposed to erect the shrine to Tullia:

_longumque illud tempus cum non ero_, _Att._ xii. 18.

[20] Warde Fowler, _Religious Experience_, 385, has seen the significance

of this experience.

[21] He quotes it in the Tusculans, i, 68.

[22] _Ad. Att._ xii. 18; it is curious that in this very letter he still

reverts when speaking of himself, to his old agnosticism in longum illud

tempus _cum non ero_.

[23] Quoted by Lactantius, _Inst. Div._ i, 16.

[24] For Cicero’s attitude on _Jus gentium_, see _De Off._ iii. 17; i.

23.

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