their effect by the orator’s advance in years, but they suffered still
more by being transferred to paper. As his chief excellence consisted in
action and delivery, his writings were much inferior to what was expected
from the high fame he had enjoyed; and, accordingly, after death, he
retained little of that esteem, which he had so abundantly possessed
during his life(280). Although, therefore, his orations had been
preserved, they would have given us but an imperfect idea of the eloquence
of Hortensius; but even this aid has been denied us, and we must,
therefore, now chiefly trust for his oratorical character to the opinion
of his great but unprejudiced rival. The friendship and honourable
competition of Hortensius and Cicero, present an agreeable contrast to the
animosities of Æschines and Demosthenes, the two great orators of Greece.
It was by means of Hortensius that Cicero was chosen one of the college of
Augurs—a service of which his gratified vanity ever appears to have
retained an agreeable recollection. In a few of his letters, indeed,
written during the despondency of his exile, he hints a suspicion that
Hortensius had been instrumental in his banishment, with a view of
engrossing to himself the whole glory of the bar(281); but this mistrust
ended with his recall, which Hortensius, though originally he had advised
him to yield to the storm, urged on with all the influence of which he was
possessed. Hortensius also appears to have been free from every feeling of
jealousy or envy, which in him was still more creditable, as his rival was
younger than himself, and yet ultimately forced him from the supremacy.
Such having been their sentiments of mutual esteem, Cicero has done his
oratoric talents ample justice—representing him as endued with almost all
the qualities necessary to form a distinguished speaker. His imagination
was fertile—his voice was sweet and harmonious—his demeanour dignified—his
language rich and elegant—his acquaintance with literature extensive. So
prodigious was his memory, that, without the aid of writing, he
recollected every word he had meditated, and every sentence of his
adversary’s oration, even to the titles and documents brought forward to
support the case against him—a faculty which greatly aided his peculiarly
happy art of recapitulating the substance of what had been said by his
antagonists or by himself(282). He also originally possessed an
indefatigable application; and scarcely a day passed in which he did not
speak in the Forum, or exercise himself in forensic studies or
preparation. But, of all the various arts of oratory, he most remarkably
excelled in a happy and perspicuous arrangement of his subject. Cicero
only reproaches him, and that but slightly, with showing more study and
art in his gestures than was suitable for an orator. It appears, however,
from Macrobius, that he was much ridiculed by his contemporaries, on
account of his affected gestures. In pleading, his hands were constantly
in motion, whence he was often attacked by his adversaries in the Forum
for resembling an actor; and, on one occasion, he received from his
opponent the appellation of _Dionysia_, which was the name of a celebrated
dancing girl(283). Æsop and Roscius frequently attended his pleadings, to
catch his gestures, and imitate them on the stage(284). Such, indeed, was
his exertion in action, that it was commonly said that it could not be
determined whether people went to hear or to see him(285). Like
Demosthenes, he chose and put on his dress with the most studied care and
neatness. He is said, not only to have prepared his attitudes, but also to
have adjusted the plaits of his gown before a mirror, when about to issue
forth to the Forum; and to have taken no less care in arranging them, than
in moulding the periods of his discourse. He so tucked up his gown, that
the folds did not fall by chance, but were formed with great care, by
means of a knot artfully tied, and concealed in the plies of his robe,
which apparently flowed carelessly around him(286). Macrobius also records
a story of his instituting an action of damages against a person who had
jostled him, while walking in this elaborate dress, and had ruffled his
toga, when he was about to appear in public with his drapery adjusted
according to the happiest arrangement(287)—an anecdote, which, whether
true or false, shows, by its currency, the opinion entertained of his
finical attention to everything that concerned the elegance of his attire,
or the gracefulness of his figure and attitudes. He also bathed himself in
odoriferous waters, and daily perfumed himself with the most precious
essences(288). This too minute attention to his person, and to
gesticulation, appears to have been the sole blemish in his oratorical
character; and the only stain on his moral conduct, was his practice of
corrupting the judges of the causes in which he was employed—a practice
which must be, in a great measure, imputed to the defects of the judicial
system at Rome; for, whatever might be the excellence of the Roman laws,
nothing could be worse than the procedure under which they were
administered(289).
Hortensius has received more justice from Cicero than another orator,
Licinius Calvus, who, for a few years, was also considered as his rival in
eloquence. Calvus has already been mentioned as an elegant poet; but
Seneca calls his competition with Cicero in oratory, _iniquissimam litem_.
His style of speaking was directly the reverse of that of Hortensius: he
affected the Attic taste in eloquence, such as it appeared in what he
conceived to be its purest form—the orations of Lysias. Hence that correct
and slender delicacy at which he so studiously aimed, and which he
conducted with great skill and elegance; but, from being too much afraid
of the faults of redundance and unsuitable ornament, he refined and
attenuated his discourse till it lost its raciness and spirit. He
compensated, however, for his sterility of language, and diminutive
figure, by his force of elocution, and vivacity of action. “I have met
with persons,” says Quintilian, “who preferred Calvus to all our orators;
and others who were of opinion, that the too great rigour which he
exercised on himself, in point of precision, had debilitated his
oratorical talents. Nevertheless, his speeches, though chaste, grave, and
correct, are frequently also vehement. His taste of writing was Attic; and
his untimely death was an injury to his reputation, if he designed to add
to his compositions, and not to retrench them.” His most celebrated
oration, which was against the unpopular Vatinius, was delivered at the
age of twenty. The person whom he accused, overpowered and alarmed,
interrupted him, by exclaiming to the judges, “Must I be condemned because
he is eloquent?” The applause he obtained in this case may be judged of
from what is mentioned by Catullus, of some one in the crowd clapping his
hands in the middle of his speech, and exclaiming, “O what an eloquent
little darling(290)!” Calvus survived only ten years after this period,
having died at the early age of thirty. He left behind him twenty-one
books of orations, which are said to have been much studied by the younger
Pliny, and were the models he first imitated(291).
Calvus, though a much younger man than Cicero, died many years before him,
and previous to the composition of the dialogue _Brutus_. Most of the
other contemporaries, whom Cicero records in that treatise on celebrated
orators, were dead also. Among an infinite variety of others, he
particularly mentions Marcus Crassus, the wealthy triumvir, who perished
in the ill-fated expedition against the Parthians; and who, though
possessed but of moderate learning and capacity, was accounted, in
consequence of his industry and popular arts, among the chief forensic
patrons. His language was pure, and his subject well arranged; but in his
harangues there were none of the lights and flowers of eloquence,—all
things were expressed in the same manner, and the same tone.
Towards the conclusion of the dialogue, Cicero mentions so many of his
predeceased contemporaries, that Atticus remarks, that he is drawing up
the dregs of oratory. Calidius, indeed, seems the only other speaker who
merits distinguished notice. He is characterized as different from all
other orators,—such was the soft and polished language in which he arrayed
his exquisitely delicate sentiments. Nothing could be more easy, pliable,
and ductile, than the turn of his periods; his words flowed like a pure
and limpid stream, without anything hard or muddy to impede or pollute
their course; his action was genteel, his mode of address sober and calm,
his arrangement the perfection of art. “The three great objects of an
orator,” says Cicero, while discussing the merits of Calidius, “are to
instruct, delight, and move. Two of these he admirably accomplished. He
rendered the most abstruse subject clear by illustration, and enchained
the minds of his hearers with delight. But the third praise of moving and
exciting the soul must be denied him; he had no force, pathos, or
animation(292).” Such, indeed, was his want of emotion, where it was most
appropriate, and most to be expected, that, while pleading his own cause
against Q. Gallius for an attempt to poison him, though he stated his case
with elegance and perspicuity, yet it was so smoothly and listlessly
detailed, that Cicero, who spoke for the person accused, argued, that the
charge must be false and an invention of his own, as no one could talk so
calmly, and with such indifference, of a recent attempt which threatened
his own existence(293).
These were the most renowned orators who preceded the age of Cicero, or
were contemporaries with him; and before proceeding to consider the
oratorical merits of him by whom they have been all eclipsed, at least in
the eye of posterity, it may be proper, for a single moment, to remind the
reader of the state of the Roman law,—of the judicial procedure, and of
the ordinary practice of the Forum, at the time when he commenced and
pursued his brilliant career of eloquence.
The laws of the first six kings of Rome, called the _Leges Regiæ_, chiefly
related to sacred subjects,—regulations of police,—divisions of the
different orders in the state,—and privileges of the people. Tarquinius
Superbus having laid a plan for the establishment of despotism at Rome,
attempted to abolish every law of his predecessors which imposed control
on the royal prerogative. About the time of his expulsion(294), the Senate
and people, believing that the disregard of the laws was occasioned by
their never having been reduced in writing, determined to have them
assembled and recorded in one volume; and this task was intrusted by them
to Sextus Papyrius, a patrician. Papyrius accordingly collected, with
great assiduity, all the laws of the monarchs who had governed Rome
previously to the time of Tarquin. This collection, which is sometimes
called the _Leges Regiæ_, and sometimes the Papyrian Code, did not obtain
that confirmation and permanence which might have been expected. Many of
the _Leges Regiæ_ were the result of momentary emergencies, and
inapplicable to future circumstances. Being the ordinances, too, of a
detested race, and being in some respects but ill adapted to the genius
and temper of a republican government, a great number of them soon fell
into desuetude(295). The new laws promulgated immediately after the
expulsion of the kings, related more to those constitutional modifications
which were rendered necessary by so important a revolution, than to the
civil rights of the citizen. In consequence of the dissensions of the
patricians and plebeians, every _Senatusconsultum_ proceeding from the
deliberations of the Senate was negatived by the _veto_ of the Tribunes,
while the Senate, in return, disowned the authority of the _Plebiscita_,
and denied the right of the Tribunes to propose laws. There was thus a
sort of legal interregnum at Rome; at least, there were no fixed rules to
which all classes were equally subjected: and the great body of the people
were too often the victims of the pride of the patricians and tyranny of
the consular government. In this situation, C. Terentius Arsa brought
forward the law known by the name of _Terentilla_, of which the object was
the election by the people of ten persons, who should compose and arrange
a body of laws for the administration of public affairs, as well as
decision of the civil rights of individuals according to established
rules. The Senate, who maintained that the dispensation of justice was
solely vested in the supreme magistrates, contrived, for five years, to
postpone execution of this salutary measure; but it was at length agreed,
that, as a preparatory step, and before the creation of the Decemvirs, who
were to form this code, three deputies should be sent to Greece, and the
Greek towns of Italy, to select such enactments as they might consider
best adapted to the manners and customs of the Roman people.
The delegates, who departed on this embassy towards the close of the year
300, were occupied two years in their important mission. From what cities
of Greece, or Magna Græcia, they chiefly borrowed their laws, has been a
topic of much discussion, and seems to be still involved in much
uncertainty(296); though Athens is most usually considered as having been
the great fountain of their legislation.
On the return of the deputies to Rome, the office of Consul was
suppressed, and ten magistrates, called Decemvirs, among whom these
deputies were included, were immediately created. To them was confided the
care of digesting the prodigious mass of laws which had been brought from
Greece. This task they accomplished with the aid of Hermodorus, an exile
of Ephesus, who then happened to be at Rome, and acted as their
interpreter. But although the importation from Greece formed the chief
part of the twelve tables, it cannot be supposed that the ancient laws of
Rome were entirely superseded. Some of the _Leges Regiæ_, which had no
reference to monarchical government, as the laws of Romulus, concerning
the _Patria potestas_, those concerning parricides, the removal of
landmarks, and insolvent debtors, had, by tacit consent, passed into
consuetudinary law; and all those which were still in observance were
incorporated in the Decemviral Code; in the same manner as the
institutions of the heroic ages of Greece formed a part of the laws of
Solon and Lycurgus.
Before a year had elapsed from the date of their creation, the Decemvirs
had prepared ten books of laws; which, being engraved on wooden or ivory
tables, were presented to the people, and received the sanction of the
Senate, and ratification of the Comitia Centuriata. Two supplementary
tables were soon afterwards added, in consequence of some omissions which
were observed and pointed out to the Decemvirs. In all these tables the
laws were briefly expressed. The first eight related to matters of private
right, the ninth to those of public, and the tenth to those of religious
concern. These ten tables established very equitable rules for all
different ranks, without distinction; but in the two supplemental tables
some invidious distinctions were introduced, and many exclusive privileges
conferred on the patricians.
On the whole, the Decemvirs appear to have been very well versed in the
science of legislation. Those who, like Cicero(297) and Tacitus, possessed
the Twelve Tables complete, and who were the most competent judges of how
far they were adapted to the circumstances and manners of the people, have
highly commended the wisdom of these laws. Modern detractors have chiefly
objected to the sanguinary punishments they inflicted, the principles of
the law of retaliation which they recognized, and the barbarous privileges
permitted to creditors on the persons of their debtors. The severer
enactments, however, of the Twelve Tables, were evidently never put in
force, or so soon became obsolete, that the Roman laws were at length
esteemed remarkable for the mildness of their punishments—the penalties of
scourging, or death, being scarcely in any case inflicted on a Roman
citizen.
The tables on which the Decemviral Code had been inscribed, were destroyed
by the Gauls at the sack of the city; but such pains were taken in
recovering copies, or making them out from recollection, that the laws
themselves were almost completely re-established.
It might reasonably have been expected that a system of jurisprudence,
carefully extracted from the whole legislative wisdom of Italy and Greece,
should have restored in the commonwealth that good order and security
which had been overthrown by the uncertainty of the laws, and the disputes
of the patricians and plebeians. But the event did not justify the
well-founded expectation. The ambition and lawless passions of the chief
Decemvir had rendered it necessary for him and his colleagues to abdicate
their authority before they had settled with sufficient precision how
their enactments were to be put in practice or enforced. It thus became
essential to introduce certain _formulæ_, called _Legis Actiones_, in
order that the mode of procedure might not remain arbitrary and uncertain.
These, consisting chiefly of certain symbolical gestures, adapted to a
legal claim or defence, were prepared by Claudius Cœcus about the middle
of the fifth century of Rome, but were intended to be kept private among
the pontiffs and patrician Jurisconsults, that the people might not have
the benefit of the law without their assistance. Cl. Flavius, however, a
secretary of Claudius, having access to these formularies, transcribed and
communicated them to the people about the middle of the fifth century of
Rome. From this circumstance they were called the _Jus civile Flavianum_.
This discovery was so disagreeable to the patricians, that they devised
new legal forms, which they kept secret with still more care than the
others. But in 553, Sextus Ælius Catus divulged them again, and in
consequence, these last prescripts obtained the name of _Jus Ælium_, which
may be regarded as the last part and completion of the Decemviral laws;
and it continued to be employed as the form of process during the whole
remaining period of the existence of the commonwealth.
As long as the republic survived, the Twelve Tables formed the foundation
of the Roman law, though they were interpreted and enlarged by such new
enactments as the circumstances of the state demanded(298). Thus the _Lex
Aquilia_ and _Alinia_ were mere modifications of different heads of the
twelve tables. Most of the new laws were introduced in consequence of the
increase of empire and luxury, and the conflicting interests of the
various orders in the state. Laws, properly so called, were proposed by a
superior magistrate, as the Consul, Dictator, or Prætor, with consent of
the Senate; they were passed by the whole body of the people, patricians
and plebeians, assembled in the Comitia Centuriata, and bore ever after
the name of the proposer.
The _Plebiscita_ were enacted by the plebeians in the Comitia Tributa,
apart from the patricians, and independently of the sanction of the
Senate, at the _rogation_ of their own Tribunes, instead of one of the
superior magistrates. The patricians generally resisted these decrees, as
they were chiefly directed against the authority of the Senate, and the
privileges of the higher orders of the state. But, by the _Lex Horatia_,
the same weight and authority were given to them as to laws properly so
termed, and thenceforth they differed only in name, and the manner in
which they were enacted.
A _Senatusconsultum_ was an ordinance of the Senate on those points
concerning which it possessed exclusive authority; but rather referred to
matters of state, as the distribution of provinces, the application of
public money, and the like, than to the ordinary administration of
justice.
The patricians, being deprived by the Twelve Tables of the privilege of
arbitrarily pronouncing decisions, as best suited their interests; and
being frustrated in their miserable attempts to maintain an undue
advantage in matters of form, by secreting the rules of procedure held in
courts of justice, they had now reserved to them only the power of
interpreting to others the scope and spirit of the laws. Till the age, at
least, of Augustus, the civil law was completely unconnected and
dissipated; and no systematic, accessible, or authoritative treatise on
the subject, appeared during the existence of the republic(299). The laws
of the Twelve Tables were extremely concise and elliptical; and it seems
highly probable that they were written in this style, not for the sake of
perspicuity, but to leave all that required to be supplied or interpreted
in the power of the Patricians(300). The changes, too, in the customs and
language of the Romans, rendered the style of the Twelve Tables less
familiar to each succeeding generation; and the ambiguous passages were
but imperfectly explained by the study of legal antiquarians. It was the
custom, likewise, for each successive Prætor to publish an edict,
announcing the manner in which justice was to be distributed by him—the
rules which he proposed to follow in the decision of doubtful cases; and
the degree of relief which his equity would afford from the precise rigour
of ancient statutes. This annual alteration in forms, and sometimes even
in the principles of law, introduced a confusion, which persons engrossed
with other occupations could not unravel. The obscurity of old laws, and
fluctuating jurisdiction of the Prætors, gave rise to that class of men
called Jurisconsults, whose business it was to explain legal difficulties,
and reconcile statutory contradictions. It was the relation of patron and
client, which was coeval almost with the city itself, and was invested
with a sacred, inviolable character, that gave weight to the _dicta_ of
those who, in some measure, came in place of the ancient patrons, and
usually belonged to the patrician order.—“On the public days of market or
assembly,” says Gibbon, “the masters of the art were seen walking in the
Forum, ready to impart the needful advice to the meanest of their
fellow-citizens, from whose votes, on a future occasion, they might
solicit a grateful return. As their years and honours increased, they
seated themselves at home on a chair or throne, to expect with patient
gravity the visits of their clients, who, at the dawn of day, from the
town and country, began to thunder at their door. The duties of social
life, and incidents of judicial proceedings, were the ordinary subject of
these consultations; and the verbal or written opinions of the
jurisconsults were framed according to the rules of prudence and law. The
youths of their own order and family were permitted to listen; their
children enjoyed the benefit of more private lessons; and the Mucian race
was long renowned for the hereditary knowledge of the civil law(301).”
Though the judges and prætors were not absolutely obliged, till the time
of the emperors, to follow the recorded opinions of the Jurisconsults,
they possessed during the existence of the republic a preponderating
weight and authority. The province of legislation was thus gradually
invaded by these expounders of ancient statutes, till at length their
recorded opinions, the _Responsa Prudentum_, became so numerous, and of
such authority, that they formed the greatest part of the system of Roman
jurisprudence, whence they were styled by Cicero, in his oration for
Cæcina, _Jus Civile_.
It is perfectly evident, however, that the civil law was neither much
studied nor known by the _orators_ of the Senate, and Forum. Cicero, in
his treatise _De Oratore_, informs us, that Ser. Galba, the first speaker
of his day, was ignorant of law, inexperienced in civil rights, and
uncertain as to the institutions of his ancestors. In his _Brutus_ he says
nearly the same thing of Antony and Sulpicius, who were the two greatest
orators of their age, and who, he declares, knew nothing of public,
private, or civil law. Antony in particular, always expressed a contempt
for the study of the civil law(302). Accordingly, in the dialogue _De
Oratore_, he is made to say, “I never studied the civil law, nor have I
been sensible of any loss from my ignorance of it in those causes which I
was capable of managing in our courts(303).” In the same dialogue, Scævola
says, “The present age is totally ignorant of the laws of the Twelve
Tables, except you, Crassus, who, led by curiosity, rather than from its
being any province annexed to eloquence, studied civil law under me.” In
his oration for Muræna, Cicero talks lightly of the study of the civil
law, and treats his opponent with scorn on account of his knowledge of its
words of style and forms of procedure(304). With exception, then, of
Crassus, and of Scævola, who was rather a jurisconsult than a speaker, the
orators of the age of Cicero, as well as those who preceded it, were
uninstructed in law, and considered it as no part of their duty to render
themselves masters, either of the general principles of jurisprudence, or
the municipal institutions of the state. Crassus, indeed, expresses his
opinion, that it is impossible for an orator to do justice to his client
without some knowledge of law, particularly in questions tried before the
Centumviri, who had cognizance of points with regard to egress and regress
in property, the interests of minors, and alterations in the course of
rivers; and he mentions several cases, some of a criminal nature, which
had lately occurred at Rome, where the question hinged entirely on the
civil law, and required constant reference to precedents and authorities.
Antony, however, explains how all this may be managed. A speaker, for
example, ignorant of the mode of drawing up an agreement, and unacquainted
with the forms of a contract, might defend the rights of a woman who has
been contracted in marriage, because there were persons who brought
everything to the orator or patron, ready prepared,—presenting him with a
brief, or memorial, not only on matters of fact, but on the decrees of the
Senate, the precedents and the opinions of the jurisconsults. It also
appears that there were solicitors, or professors of civil law, whom the
orators consulted on any point concerning which they wished to be
instructed, and the knowledge of which might be necessary previous to
their appearance in the Forum. In this situation, the harangue of the
orator was more frequently an appeal to the equity, common sense, or
feelings of the judge, than to the laws of his country. Now, where a
pleader addresses himself to the equity of his judges, he has much more
occasion, and also much more scope, to display his eloquence, than where
he must draw his arguments from strict law, statutes, and precedents. In
the former case, many circumstances must be taken into account; many
personal considerations regarded; and even favour and inclination, which
it belongs to the orator to conciliate, by his art and eloquence, may be
disguised under the appearance of equity. Accordingly, Cicero, while
speaking in his own person, only says, that the science of law and civil
rights should not be neglected; but he does not seem to consider it as
essential to the orator of the Forum, while he enlarges on the necessity
of elegance of language, the erudition of the scholar, a ready and popular
wit, and a power of moving the passions(305).