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A. On the spirit of Roman trials.
Prof. Ramsay well remarks, 'the moral feeling which prevailed in a Roman court of justice was entirely at variance with the principles which rule our own.' It may be well to draw out shortly some of the main differences.
There was no class of professional advocates, taking fees and living by their profession. Any citizen could come forward to accuse or defend any other : and, as a high reputation for able pleading helped a man in rising to official distinction, many did so (pro Mur &$ 8, 24). It was also a great advantage to have the power of addressing assemblies with effect (pro Mur $ 24). This naturally led to the introduction of irrelevant matter into speeches in court (see the partitio § 11, where the irrelevance of two of the heads is manifest), particularly allusions to the situation of affairs at the moment, and the probable effect on them of the condemnation or acquittal of the accused (see Introduction C and i in Verrem $$ 10, 15, 17, 20).
2. It not unfrequently happened that a corrupt collusion existed between the accuser and accused. For a sum of money or some other consideration the former would play into the hands of the latter, suppressing evidence and making only a feeble attack upon him. This was called praevaricatio (pro Cluent SS 58, 87, div in Caecil § 58, etc), and was properly applied only to the accuser in a public—that is, a criminal—trial. Hence the chief security for an honest prosecution lay in the personal hostility of the accusator to the reus (see div in Caecil § 64, Tacitus dial 36, 40, Merivale's History of the Romans, c 44). Numberless allusions shew this. In div in Caecil § 12 C Verres, cui te inimicum esse simulas (said
to the would-be praevaricator Caecilius), pro Cluent $ 29 auditis non ab inimico opposed to audiebant ab accusatoribus, § 42 erat huic inimicus Oppianicus: erat: sed tamen erat vitricus (i e he would have shewn mercy even to an inimicus, on the ground of family connexion); and generally the relations of counsel to clients rested on grounds of personal feeling, div in Caecil § 23 magnus ille defensor et amicus eius (see pro Mur §§ 5, 7, 8, 9, 10, 86), pro Mur § 2 inimicorum impetus (see the remarkable plea in § 56).
3. Great weight was attached to the personal influence of the pleaders (pro Mur ss 58, 59, 1 in Verrem $$ 9, 15). This naturally followed from what has been stated above.
4. There was no professionally trained judge to sift the evidence in a summing-up. The praetors were changed from year to year, and merely acted as chairmen of the Courts. With such presidents, no wonder that irrelevant considerations often were the most powerful in determining a verdict.
5. It was customary for the reus to wear old and filthy garments in sign of mourning to excite pity (pro Mur $$ 42, 86, pro Cluent $$ 18, 192, etc). Passionate appeals to the jury, either without allusion to the charge or assuming a client's innocence, were also common in speeches (see the perorations of the two just cited, the story told in pro Cluent $$ 58, 59, and Quintil vi i $36).
6. Bribery (corrumpere iudicium) was common (see for instance pro Cluent $$ 64 foll). In truth it was not guarded against with proper care.
The jury were accessible during the trial to the agents of either party, instead of being kept away by themselves.
It will thus be seen how differently from our English trials a criminal prosecution was conducted at Rome. We are not dealing with the Athenian courts; but one quotation will perhaps be interesting. In Dem de Cor p 230 § 15 we read toù uèv åy@vos olov την προς εμέ έχθραν προισταται, και 16 της ημετέρας έχθρας ημάς εφ' ημών αυτών δίκαιον ήν τον εξετασμόν ποιείσθαι.
B. Leges iudiciariae.
Up to the year 123 BC the iudices, whether single jurymen or a number empanelled to serve on the permanent or extraordinary commissions (quaestiones perpetuae or extraordinariae), were taken
exclusively from the Senate. In that year the tribune Gaius Gracchus transferred the iudicia to the equites. This lex Sempronia was confirmed and strengthened by the lex Servilia repetundarum of Gaius Servilius Glaucia, probably in BC 104 or 100, intended, it seems, to reverse a lex Servilia of Quintus Servilius Caepio passed in BC 106, of which we know very little. But the lex Cornelia of Sulla in BC 81 again installed the senators as iudices, an arrangement which lasted until B C 70. In that year the lex Aurelia of Lucius Aurelius Cotta introduced a new system. The juries were for the future to consist of three decuriae, one of senators and two of men of equestrian rating; one of these two to be formed of men who had served as tribuni aerarii. This last arrangement was in force at the time of Murena's trial. [See Mommsen, book IV CC 3, 6, 10, book v C 3.]
C. On § 62, dixisti: quippe, iam. Here the mss have dixisti quippe iam, the only variant being Lag 9 which has quicpe iam. All editors accept the correction of Manutius, quippiam. What I wish to point out is that this restoration of the passage, though plausible, is not necessary. In § 74 we find ergo ad cenam petitionis causa si quis vocat, condemnetur.
quippe, inquit; tu mihi'..., de fin Iv § 7 ista ipsa quae tu breviter, regem dictatorem divitem solum esse sapientem, a te quidem apte ac rotunde ; quippe; habes enim a rhetoribus, v § 84 quem hunc appellas, Zeno ? 'beatum, inquit. etiam beatissimum ? 'quippe, inquiet, de orat II § 218 leve nomen habet utraque res. quippe; leve enim est totum hoc risum movere, see also pro Rosc Am § 52, pro Planc $ 53, pro Caec $ 55, on which Jordan adds de republ i $61, ad Att V 15 § 1. Madvig on de fin v § 84 says 'quippe is not used ironically by Zeno, as though he were making fun of himself; it gives a strong affirmative answer, with a sort of wonder at any doubt having been possible.' I believe then that in the present passage we might retain the MSS reading, which it must be granted is a strange corruption for quippiam, had that been in the original.
dixisti : quippe, iam fixum et statutum est, you have said:' to be sure I have ; henceforth 'tis fastened and established for ever.'
D. On $ 75, lectuli Punicani.
The received interpretation of this passage is, that part of Tubero's bad taste was shewn in providing mean couches for the guests to recline upon at the banquet. I wish to trace up the authorities for this view and against it.
1. Valerius Maximus VII 5 tells the same story, almost word for word after Cicero; but in pointing out the offence given to the Roman people, he says not a word about the lectuli as mean, or as having been in any way improper; on the contrary, he the people punished the public scandal of such an entertainment by voting against Tubero at the praetorian election, because it thought non unius convivii numerum sed totam se in illis pelliculis iacuisse, thus laying the whole stress on the skins.
Seneca Ep 96 (95) 72 says proderit dicere Tuberonis ligneos lectos, cum in publicum sternerent, haedinasque pro stragulis pelles, et ante ipsius Iovis cellam adposita conviviis vasa fictilia. He evidently uses the term ligneos in contempt.
3. Isidorus Orig xx II § 3 says lectuli Punicani, parvi et humiles et lignei ; nam huiusmodi lecti ex Carthagine primum advecti sunt. Humiles seems =not raised high above the ground, perhaps even “unpretending.'
4. Pliny Nat Hist XXXIII § 144 tells us that these couches were inlaid with precious metals. One Carvilius Pollio was the first to put silver upon dinner-couches; he, however, did not go so far as to overlay them or make them look as splendid as Delian furniture ; he only did them in the Punic style ; he applied gold also in the same style ; and shortly afterwards the silvered couches were made on the Delian plan. All this ostentation, he adds, was expiated by the Sullan civil war. The Punic style' must mean inlaid work. We see also that the date of Carvilius Pollio falls before BC 88; how much, cannot be inferred.
5. Livy XXXIX 6 in speaking of the triumph of Cn Manlius Vulso (BC 187) over the Galatians, goes on to remark that it was the Asiatic army that first brought foreign luxury to Rome. As an instance of this he adduces the introduction of couches, with bronze feet (lecti aerati). Cicero also, II in Verr iv § 60, speaks of the same articles as having been extorted from people in Sicily by
Verres ; and the context makes it certain that he means them for a mark of luxury.
6. sternere does not imply the providing of the couches themselves. Compare II in Verr iv § 58 lectos optime stratos, Tusc disp v § 61 in aureo lecto strato pulcherrimo textili stragulo, and many passages in Plautus. Of course it may do so; thus Metellus (chief Pontiff 243—221 BC) ap Macrob III 13 § 11 says triclinia lectis eburnis strata fuerunt.
Now, whatever the passage of Isidorus may mean, it is of little or no weight. The passage of Seneca proves that in the opinion of the writer these couches were common and coarse, as being made of wood. But Seneca, though a Stoic in theory, was notoriously luxurious, and would naturally think lightly of couches which might for all that have been magnificent in the days of Tubero (who was a contemporary of the Gracchi). Pliny shews that the Punic couches were of considerable value, though not extravagantly rich if compared with others used in his own day. In fact at the date of the story (B C 129) any metallic ornamentation of a couch was rare and costly. It is not, moreover, clear that Tubero provided the couches: and from the language used it is more likely that he did not, for (a) stravit pelliculis haedinis lectulos Punicanos savours strongly of a purposed juxtaposition for the sake of contrast, and (b) he did not provide the tables, or they would have been coarse and rough also, and must have been mentioned; again (c) stravit requires an accusative case, exposuit leaves the ‘tables’to be implied; unless then it can be shewn that the tables were rough and provided by Tubero, I maintain that the presumption is that he did not provide the couches. Fabius provided the tables and couches (a great many would be wanted, and no doubt some had to be hired or borrowed), not splendid, but elegant; Tubero put dirty skins on the couches and common Samian ware on the tables, and so I think the story is understood by Valerius Maximus. Lastly, what says Cicero himself? his haedinis pelliculis praetura deiectus est.
The diminutive lectulos seems not to imply contempt, but the employment of ordinary sofas (see pictures in Rich, Dict Ant) to make up the large number of couches wanted on this occasion.