success in the causes of their clients, is apparent from the remains of
their discourses, and from what is said of the mode of pleading in the
rhetorical treatises of Cicero. “Pontius,” says Antony, in the dialogue so
often quoted, “had a son, who served in the war with the Cimbri, and whom
he had destined to be his heir; but his father, believing a false report
which was spread of his death, made a will in favour of another child. The
soldier returned after the decease of his parent; and, had you been
employed to defend his cause, you would not have discussed the legal
doctrine as to the priority or validity of testaments; you would have
raised his father from the grave, made him embrace his child, and
recommend him, with many tears, to the protection of the Centumviri.”
Antony, speaking of one of his own most celebrated orations, says, that
his whole address consisted, 1st, in moving the passions; 2d, in
recommending _himself_; and that it was thus, and not by convincing the
understanding of the judges, that he baffled the impeachment against his
clients(306). Valerius Maximus has supplied, in his eighth book, many
examples of unexpected and unmerited acquittals, as well as condemnations,
from bursts of compassion and theatrical incidents. The wonderful
influence, too, of a ready and popular wit in the management of causes, is
apparent from the instances given in the second book _De Oratore_ of the
effects it had produced in the Forum. The jests which are there recorded,
though not very excellent, may be regarded as the finest flowers of wit of
the Roman bar. Sometimes they were directed against the opposite party,
his patron, or witnesses; and, if sufficiently impudent, seldom failed of
effect.
That the principles and precepts of the civil law were so little studied
by the Roman orators, and hardly ever alluded to in their harangues,
while, on the other hand, the arts of persuasion, and wit, and excitement
of the passions, were all-powerful, and were the great engines of legal
discussion, must be attributed to the constitution of the courts of law,
and the nature of the judicial procedure, which, though very imperfect for
the administration of justice, were well adapted to promote and exercise
the highest powers of eloquence. It was the forms of procedure—the
description of the courts before which questions were tried—and the nature
of these questions themselves(307)—that gave to Roman oratory such
dazzling splendour, and surrounded it with a glory, which can never shine
on the efforts of rhetoric in a better-regulated community, and under a
more sober dispensation of justice.
The great exhibitions of eloquence were, 1st, In the civil and criminal
causes tried before the Prætor, or judges appointed under his eye. 2d, The
discussions on laws proposed in the assemblies of the people. 3d, The
deliberations of the Senate.
The Prætor sat in the Forum, the name given to the great square situated
between Mount Palatine and the Capitol, and there administered justice.
Sometimes he heard causes in the Basilicæ, or halls which were built
around the Forum; but at other times the court of the Prætor was held in
the area of the Forum, on which a tribunal was hastily erected, and a
certain space for the patron, client, and witnesses, was railed off, and
protected from the encroachment of surrounding spectators. This space was
slightly covered above for the occasion with canvass, but being exposed to
the air on all sides, the court was an open one, in the strictest sense of
the term(308).
From the time of the first Punic war there were two Prætors, to whom the
cognizance of _civil_ suits was committed,—the _Prætor urbanus_ and
_Prætor peregrinus_. The former tried the causes of citizens according to
the Roman laws; the latter judged the cases of allies and strangers by the
principles of natural equity; but as judicial business multiplied, the
number of Prætors was increased to six. The Prætor was the chief judge in
all questions that did not fall under the immediate cognizance of the
assemblies of the people or the Senate. Every action, therefore, came, in
the first instance, before the Prætor; but he decided only in civil suits
of importance: and if the cause was not of sufficient magnitude for the
immediate investigation of his tribunal, or hinged entirely on matters of
fact, he appointed one or more persons to judge of it. These were chosen
from a list of _judices selecti_, which was made up from the three orders
of senators, knights, and people. If but one person was appointed, he was
properly called a _judex_, or _arbiter_. The _judex_ determined only such
cases as were easy, or of small importance; and he was bound to proceed
according to an express law, or a certain form prescribed to him by the
Prætor. The _arbiter_ decided in questions of equity which were not
sufficiently defined by law, and his powers were not so restricted by the
Prætor as those of the ordinary _judex_. When more persons than one were
nominated by the Prætor, they were termed _Recuperatores_, and they
settled points of law or equity requiring much deliberation. Certain
cases, particularly those relating to testaments or successions, were
usually remitted by the Prætor to the _Centumviri_, who were 105 persons,
chosen equally from the thirty-five tribes. The Prætor, before sending a
case to any of those, whom I may call by the general name of judges,
though, in fact, they more nearly resembled our jury, made up a _formula_,
as it was called, or issue on which they were to decide; as, for example,
“If it be proved that the field is in possession of Servilius, give
sentence against Catulus, unless he produce a testament, from which it
shall appear to belong to him.”
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.