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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.
1. 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. SS 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 condenınation or acquittal of the accused (see Intr. C).
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. Numberless allusions shew this. In div. in Caecil. $ 12 G. 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 (sc. 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 (cf. pro Mur. SS 5, 7, 8, 9, 10, 86), pro Mur. § 2 inimicorum impetus (cf. the remarkable plea in $ 56).
3. Great weight was attached to the personal influence of the pleaders (pro Mur. $$ 58, 59). This naturally followed from what has been stated above.
4. There was no professionally trained judge to sift the evidence in a summing-up. The praetors were changed from year to year, and merely acted as chairmen of the Courts. With such presidents, no wonder that irrelevant considerations often were the most powerful in determining a verdict.
5. It was customary for the reus to wear old and filthy garments in sign of mourning to excite pity (pro Mur. $$ 42, 86, pro Cluent. $S 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).
6. Bribery (corrumpere iudicium) was common (see for instance pro Cluent. SS 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 pèy ảy@vos όλου την προς εμέ έχθραν προΐσταται, $ 16 της ημετέρας έχθρας ημάς εφ' ημών αυτών δίκαιον ήν τον εξετασμόν ποιείσθαι.
B. Leges iudiciarias.
Up to the year 123 B.C. 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 B.C. 100. But the ler Cornelia of Sulla in B.C. 80 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 quippiam.
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 Or. II § 218 leve nomen habet utraque res. quippe; leve enim est totum hoc risum movere, see also pro Caec. $ 55, on which Jordan adds de Rep. 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. 01 $ 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 says that the people punished the public scandal of such an entertainment by voting against Tubero at the praetorian election, because it
thought nan unius convivii numerum sed totam se in illis pelliculis iacuisse, thus laying the whole stress on the skins.
2. 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, tell 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 B.C. 88; how much, cannot be inferred.
5. Livy, XXXIX. 6, in speaking of the triumph of Gn. Manlius Vulso (B. C. 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. cf. II in Verr. iv. § 58, lectos optime stratos, Tusc. D. v. $ 61, in aureo lecto strato pulcherrimo textili strugulo, and many passages in Plautus.
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 acc. 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.
Ex iure manum consertum uerba sunt ex antiquis actionibus, quae, cum lege agitur et uindiciae contenduntur, dici nunc quoque apud praetorem solent. rogaui ego Romae grammaticum, celebri hominem fama et multo nomine, quid haec uerba essent? tum ille me despiciens : 'aut erras,' inquit, “adulescens, aut ludis ; rem enim doceo grammaticam, non ius respondeo: si quid igitur ex Vergilio, Plauto, Ennio quaerere habes, quaeras licet.'
ex Ennio ergo, inquam, "est, magister, quod quaero. Ennius enim uerbis hisce usus est.' cumque ille demiratus aliena haec esse a poetis et haud usquam inueniri in carminibus Ennii diceret, tum ego hos uersus ex octauo annali absentes* dixi, nam forte eos tamquam insigniter praeter alios factos memineram :
pellitur e medio sapientia, ui geritur res;