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Like most complex societies, ancient Romans had mechanisms to suppress what we would regard as crime. But what exactly is suppressed and how that suppression is accomplished can vary widely with the structures of the individual societies. "Crime" may be seen, for instance, as the violation of divine will (often in the form of kingly will), a breach of the social contract, or a social pathology. Directed against crime, however defined, are an equally broad variety of responses: divine sanction, formal trials, lynchings, shunning, gossip in the streets, and so forth. This book examines the role of the Republican (roughly 150-50 B.C.) iudicia publica, "public courts," often taken as analogous to modern American criminal courts. I ask what the distinctive functions of these courts were, and in particular, I am interested in examining the various discursive practices that cluster around the iudicia publica, in order to analyze the conceptual categories that are only crudely represented by the modern terms "crime" and "criminal court."
The bulk of this work is devoted to the analysis of four individual charges that fall under the jurisdiction of the iudicia publica (chapters 2-5). I have chosen these four "crimes" because they are far and away the best documented. They are as follows (I append the conventional but potentially misleading translations): ambitus (electoral bribery), de sicariis et veneficiis (murder), vis (assault, riot), and repetundae (extortion by provincial administrators). The evidence examined comes largely from legal and oratorical texts, and the first chapter is devoted to the various methodological issues that arise from this choice of material. The former class is, perhaps surprisingly, less important to the immediate study; advocates' speeches will be the primary evidence used here, and there are several reasons for this. Our records of the legal texts of the time are highly fragmentary and do not necessarily derive from reliable sources. The fragments that do survive have been studied fairly thoroughly by previous scholars. The most important reason, however, is that it would be a methodological error to focus too narrowly on formal legal definitions. Other forms of discourse can reveal just as much about relevant conceptual categories, because they do just as much (at least potentially) to create those categories. This is a particularly compelling consideration for the evaluation of Roman courtroom oratory. Since Roman advocates are not subject to any significant rules of procedure, and because there is no charge to the jury in a Roman court, there is little to give legal definitions the privileged position that some feel they hold in other societies. If the orator is externally constrained, it is by the preconceptions of the audience (the jurors), which had in turn been formed by previous speeches and other, less specialized discourses.
Given this evidentiary base, I analyze the concerns and categories that underlie ambitus, vis, and the rest. We are at a special advantage in approaching ambitus (illegal electoral practices) because we have a surviving "how-to" manual of electioneering, probably written by Cicero's brother, Quintus. The core notion of ambitus is a quid pro quo exchange of cash for votes, but many practices which deviate somewhat from this prototype are also understood, to constitute ambitus. These include the giving of nonmonetary goods (e.g., food or public games) and the indirect use of cash to win votes (e.g., by hiring campaign staff). However, the "exchange" can be defended if it is not a strict quid pro quo. Thus patrons might direct favors and goods to clients, and their clients would be expected to vote for them; obligation in these cases does not derive from any particular transaction but from generalized, ongoing roles. It was acceptable to pay off the voters, so long as one did so on a continuing basis. This is a typical pattern among (economically) primitive societies. They attempt to establish a firm distinction between interactions within a community (characterized by the "free" exchange of "gifts") and those between separate communities (characterized by exchange of commodities, and particularly the supercommodity-money). Even in societies that are largely dominated by commodity exchange, gift-exchange often retains an ideologically privileged position. Thus ambitus law attempts to enforce gift-exchange in the politically sensitive area of electioneering.
Earlier Roman homicide law was highly fragmented. Separate courts considered killing of a near-relative and murder by poison, as well as crimes of violence (including homicide) by professional criminals. There is no recorded legislation in this period concerning simple homicide. But early in Cicero's career the various courts were consolidated, and, most important, the professional crime law was expanded to include all intentional homicides. The common element of homicide was extracted from the bases of its various components (religious pollution, racketeering). This common element, in generalized form, becomes the basis of all prosecutions before the court de sicariis et veneficiis (a composite name which continued to reflect the history of the court). Courtroom argumentation in these cases confirms that the crime being tried is fairly simply a matter of intentional killing: arguments are directed at motive and opportunity rather than social context (as in cases of ambitus). Even in the absence of direct evidence arguing in either direction (as is usually the case in ancient societies), the language of sight and perspicuity is used to describe the advocate's conclusions. The crime is thus made out to be a fact of the physical, not the social, world. This language is not broadly used in trials on other charges (again, contrast ambitus). Here the intuitions we derive from a modern popular understanding of murder or homicide are less likely to lead us astray. In both cases the question is largely just "Did X kill Y?"
Vis is the ordinary Latin word for "force" or "violence," but we now recognize that it was applied in criminal cases only if they had political overtones. My additional claim, however, is that vis was reconceptualized during Cicero's lifetime, and that this was because of a change in the underlying notion of how broadly the "political" was to be defined. Even before the advent of Caesar's dictatorship and the subsequent establishment of the imperial system, there was a growing centralization of authority in the Roman state apparatus. Two aspects of this centralization are an increase in force used by the state to enforce public order and a parallel suppression of the use of force by private individuals. This reconfiguration of the public/private distinction, eventually aligning violence nearly completely with the former term, produces a corresponding change in vis. As a result of this change Cicero and other advocates are eventually deprived of arguments which had earlier been used to good effect. In particular, it was no longer possible to claim that acts of violence had no political significance. They automatically constituted usurpation of state authority. Particularly interesting is a case in which Cicero eschews a political line of argument in court (in attempting to secure an acquittal) but then uses it in a published version of the same defense, in an apparent attempt to reverse the change that was going on at the time.
The last of the four charges, repetundae, was to be laid against provincial governors (or other officials) who took too much money from their subjects. We may reject two proposed views of the true nature of this charge. The first is that repetundae consists of undue exploitation of office to extract any amount of money from provincials. Yet a quasi-public letter of advice from Cicero to his brother Quintus suggests that avoiding such exploitation represents an unusual and voluntary level of morality. Nor is mutual consent or goodwill, ever offered as a defense. An opposing view holds that in reality repetundae courts were a sham staged to mollify provincials; this view is superficially supported by a reading of the defenses, which often stress the untrustworthiness of the provincials. However, a more careful reading of these texts shows that these attacks are narrow and (in the ancient scientific context) reasonable attacks on one of the two generally available sources of evidence-local witnesses. The credibility of the other source (written records) is also attacked, and by the same methods as are used in other types of cases. Instead of either of these views, courtroom practice seems to support a narrowly statutory definition. The law apparently forbids the extraction (by whatever means) of more than a certain amount of money (fixed by law) from a province by a governor (or other official). Such a charge could very well have been handled as ambitus in reverse, with the crime resting in the social circumstances of the exchange, but, as noted above, the precise circumstances do not seem to matter. As with murder the central issue is seen as a matter of fact (and here there is the possibility of direct evidence) and is discussed accordingly.
These individual studies allow us to address in the final chapter more general questions: If these individual offenses are all prosecuted by the same mechanism, what is the supercategory? Why are these diverse problems addressed by largely the same solution? Realizing then that "criminality" is a category at least potentially specific to the contemporary world, I want to consider the objects of the Roman iudicia publica. There does not seem to have been any academic discourse on "crime" in ancient Rome nor any political (in the conventional sense) talk which spoke of "crime" or "law and order" as objects in the Roman field of view. On the one hand, this forces us to rely primarily on induction from the individual subjects of the iudicia publica to draw our conclusions. On the other, this lack of a specifically criminological discourse can itself serve as a marker of the character, and particularly the alien character, of the Roman courts. The iudicia publica were courts in which the public as a whole could seek redress for wrongs done to it (i.e., the whole community); by contrast, the private courts (iudicia privata) were places where the individual sought redress for individual wrongs. But while this means that the public courts tried people for crimes, they do not reflect a more abstract category of crime.
1. The Question and Sources
The topic of this book is the Roman iudicia publica, literally "public" (usually described as "criminal") courts. In particular I want to consider the various rubrics under which cases were tried during the Late Republic, ca. 150-50 B.C. (henceforth all dates will be B.C. unless noted). Andrew Lintott (1990: 10) has said of the offense of ambitus (usually translated as "electoral bribery") that the Romans took it as a serious threat to the political order and that therefore we must ask, "What was precisely understood by ambitus and why, in their view, had it to be suppressed?" This question of definition is of central importance and deserves to be extended to the other criminal offenses studied in this book as well. The difficulty here is that we have virtually no direct evidence for what Roman jurors thought about what they were doing in particular cases. We do, however, have evidence in a more general sense for what went on in the courtroom- Cicero's speeches in a number of criminal cases. We must use these speeches, in combination with evidence from outside the courtroom, to attempt to triangulate the position of the jurors and to try to estimate what their concerns were in judging criminal cases. In so doing we can only produce an approximation of the criteria by which defendants were in practice acquitted or convicted. Nonetheless, what evidence we do have has not been fully exploited because of concentration, on the one hand, on technical legal investigations, and, on the other, on historical studies that generally ignore the substance of individual trials. John Crook (1995:196) has described advocacy as "the point of input into the law of the values from outside, the perceptions of the community at large." Rather than following that input into the law, this study will attempt to trace it back to its source in "the community at large."
In coming to these questions, I take a somewhat different approach from most current Anglo-American work on Roman legal institutions. The conventional (and quite successful) approach has been to pick an interesting area of social practice and then ask what the law governing that area tells us about it. I take the reverse approach. My objects of study are all creations of the law—ambitus, vis ("violence"), repetundae (conventionally "extortion"), homicide, and the iudicia publica themselves. What I wish to study about these courts is less their formal legal structure than their practical functioning as a part of the broader political and social life of the community. In particular I will be interested primarily in speeches Cicero gave in court in actual cases. The iudicia publica operated not on the basis of briefs, written motions, or private deliberations but through public speaking. Hence, these speeches get us to the heart of the institution. Obviously I have exaggerated the methodological contrast here for the sake of clarity. Responsible historians have always been aware of nonlegal evidence and integrated it into their studies. Likewise, this work will not ignore important technical issues of the criminal law. Nonetheless, I think the different interests and emphases are clear and significant.
This method is meant not as an advance on, but as a complement to, other approaches. While I have chosen it partly as a matter of individual taste as to what constitutes an interesting scholarly question, there are also specific reasons that this approach is appropriate to a study of the iudicia publica. First, the strictly legal evidence for the Republican criminal courts is extremely limited and fragmented. Insofar as they can be separated, we are in a better position to examine the practice of the courts than their legal framework. Second, the iudicia publica were in substance a less "legal" institution than, for instance, the "civil" (i.e., private) courts. This claim will be argued in detail below, but a few brief observations can be made here. In criminal cases no magistrate charged the jury or made evidentiary or other legal rulings. (And even if they had had this function, the presiding officers did not necessarily have any legal expertise.) Lay jurors tried both law and fact. Prosecution and defense were ordinarily conducted by orators rather than jurists. Third, to the extent that the meaning of any social practice is constructed by the discourses in which it is embedded, all of those discourses should be taken seriously. For instance, Leps (1992) has shown the importance of journalism and detective fiction to nineteenth-century constructions of criminality. Similarly, the principles of oratory in the Roman criminal courts are, in themselves, important facts about those courts. These facts are doubtless related to the law but cannot even in principle be refuted or superseded by legal facts. Nor, to be sure, can they themselves refute or supersede "legal" facts (in the narrow sense). They are simply of different orders.
This method brings with it new opportunities but also certain limitations. First of all, only certain offenses can be dealt with. Chapters will be devoted to each of the four charges on which we have at least two surviving speeches. Thus other charges such as peculatus (theft of public funds), perduellio (apparently an archaic form of treason), and maiestas (the more modern treasonlike charge) will be dealt with only peripherally. A major problem is that virtually all the evidence comes from the speeches of Cicero. Here we are limited both to the work of a single individual and (with one notable exception) to defense speeches alone. Comparison of different speeches may help cancel out factors peculiar to individual cases, but it might still leave us with personal Ciceronian biases. However, while Cicero was an extraordinary advocate in many ways, here that may work to our advantage. As it is one of the central tenets of modern rhetoric that the persuasive speaker must recognize and work with the expectations of his audience, Cicero's success indicates that he understood the jurors' preconceptions very well indeed.
Even Cicero once pointed out that a successful advocate (such as himself) must have a firm grasp of his audience's presuppositions and prejudices: "I would not, jurors, be competent to plead any case, if I, who am involved in fending off men's dangers, could not see what is fixed in the common sense and in the very nature of all" (Clu. 17). That is, Cicero's genius in this respect should not be seen as a matter of unfettered creativity and originality in the Romantic fashion. Rather, it is a matter of being able to articulate and/or exploit broadly held prejudices. As Anthony Corbeill (1996: 8) has noted in his recent study of Roman political humor, "[Cicero's] success virtually ensures that the humorous appeals found in these oratorical texts articulate values and presuppositions present in the majority of his Roman audience." Of course, it will also be useful to parallel any conclusions drawn from the Ciceronian material with other evidence, where possible. It must be kept in mind, however, that most of this other material was produced under different circumstances and for different ends than courtroom oratory and so is suspect evidence for that courtroom practice. For instance, even if we have an account of a trial recorded by a historian such as Livy, we do not know whether that version was originally intended to convict, exonerate, or make some entirely different moral or political point. When dealing with Cicero we have the enormous advantage of knowing exactly what his main bias was: he wanted to win the case at hand. In the end we will simply have to (as so often in ancient history) admit the limitations of the evidence; for this aspect of the iudicia publica we are largely dependent on a single voice. While this is unfortunate, we should remember that that is one more voice than we often hear.
The matter of having largely defense speeches seems to be easier to control. Naturally, the prosecution will ordinarily try to construe any offense as broadly as possible, while the defense will try to narrow it. Nonetheless, there is reason to hope they were not simply talking past each other. When we compare the strategies of Cicero's repetundae defenses with those found in his prosecution of Verres on the same charge, they mirror each other closely. That is, he uses roughly the same set of categories to structure both prosecution and defense. We are helped here by dealing with those charges on which several different cases each were tried. In individual cases Cicero may try to avoid this or that aspect of an offense, but from several different speeches we have some hope of piecing together the whole. Thus, while it can be dangerous to try to reconstruct any specific prosecution claim from Cicero's corresponding defense, we can expect a generic resemblance between prosecution and defense. It must also be kept in mind that the present task rarely requires us to decide whether Cicero was telling the truth. We ask rather, "What is it that he wished the jurors to believe?"
Treatments of the laws themselves (the first section of each chapter) serve two purposes in this context. First, laws naturally offer definitions much more explicitly and concisely than oratory. Hence they are useful in establishing quickly the general area with which each offense is concerned. Second, examination of the laws can alert us to potential substantive issues that we should consider in the oratory surrounding each charge. Tracing the history of legislation, not just the details of the formally applicable statute, will be particularly important for establishing points of potential conflict. These treatments of the law, however, will be deliberately partial; they will be restricted almost entirely to issues that will arise again in the main discussion of each chapter. As a result, certain issues of genuine legal significance will be omitted, particularly those involving general principles of criminal liability. For instance, Roman law ordinarily requires a culpable mental state, in addition to the criminal act, to establish liability. Lack of this culpable mental state is only once and obliquely offered as a defense in surviving speeches, so it will not be treated in much detail. Roman law also has a notion of vicarious liability (as for, e.g., aiding and abetting), though not one as elaborately articulated as in Anglo-American law. Again, no defense turns on these issues, so I will largely pass over them.
All these methodological questions notwithstanding, there is not, in any case, a great deal of evidence either for Republican criminal law or for the detailed conduct of trials in other sources. In the last chapter I will argue that this lacuna is significant and not merely an accident of transmission. Here let me just be more specific about the nature of the evidentiary situation. For texts of the statutes we have a fragmentary inscription of the text of one law and scattered quotations from Cicero of a few others. The Digest, the sixth century A.D. compilation of legal commentary, treats criminal law in only one of its fifty books. Its immediate sources are all imperial. Nor are juristic comments on Republican criminal law preserved in other sources. Some of Cicero's rhetorical treatises and works of political philosophy touch on crime, but only briefly and generally intermingled with other matters. Other rhetorical writings (e.g., Seneca the Elder, Quintilian) mention criminal cases fairly often but generally use them as examples in treating other kinds of technical issues. While there are references to individual crimes or criminal acts, there is little evidence of an overarching Roman category of "crime."
2. Taking the Roman Courts Seriously
The reputation of a Roman orator/politician could depend in large part on his performance in the criminal courts. Cicero himself said that he owed his start in political life to his defense of Sextus Roscius on a murder charge in 80 (Brut. 312; Off. 2.51) and his special prominence on the Roman scene to his prosecution of Verres for repetundae in 70 (Brut. 318-1g). Yet the courts did not exist purely to give aspiring statesmen opportunity for oratorical display, or did they? A central problem in the interpretation of Cicero's forensic speeches is their tendency to avoid (so it is said) substantive discussion of the charges. Alleged tactics of avoidance include flamboyant use of certain rhetorical figures, extensive self-reference, and invoking the ambiance of the arena or the comic theater. This disappointment of our expectation that criminal accusations are to be countered by denial might well lead us to suspect a fundamental cultural mismatch; what we casually call the Roman "criminal courts" (the iudicia publica) are perhaps in some respects fundamentally different from the institutions of that name in our own society. This mismatch can be (and has been) exaggerated, but if we take it seriously, there are at least two responsible approaches to the problem. One set of theories argues that "discussing the charges" is not what the Roman iudicia publica were for—that we have improperly imposed our concept of "court" across cultures. One theory of this sort has been expressed in the claim that "truth itself, the guilt or innocence of Cicero's client, was rarely very important.... [Instead,] what won the juries over was not the validity of Cicero's case, but the amazing boldness of his argument; not truth, but sheer, unmitigated effrontery." This account requires a certain collusion between the parties, and in fact the whole society, to speak of the courts in terms of crime and guilt. Another collusion theory claims that the official charges were merely a pretext for a contest of another sort. On this account, though, the competition is not one of eloquence but of very generalized social standing. "The trial in all three cases examined [pro Roscio Amerino, pro Cluentio, pro Caelio] was not of evidence and documented reports about the crimes, or legally definable versions of the truth, but of reputations and of place within the community. . . . What we witness in these events is less a judicial and more a social occasion."
The other approach, and the one for which I wish to argue here, is to suggest that the problem is not with the concept of "court." Instead, there has been a tendency to drastically underestimate the "relevance to the case" of many of Cicero's arguments. The bulk of this book will, inter alia, outline a more adequate notion of relevance, which depends primarily on accepting the evidentiary value of claims about character and on reexamining the definitions of the various offenses tried by the courts. First, however, I want to address the external arguments: what is the evidence for the Romans' understanding of their own courts? I hope to show that Roman courts were understood primarily to establish whether defendants had or had not committed certain reasonably well defined crimes. I begin with a brief look at Roman prescriptive accounts of the iudicia publica and at the history of those courts. Following this will be a more extended consideration of descriptive accounts ofvarious trials, drawn mostly from Cicero's letters. All these types of evidence will show that an account of the courts must center on the role of truth in their proceedings.
Roman prescriptive accounts of the function of the courts are not very different from our own. Cicero restricts the partisanship of a man serving as judge in a friend's trial to "preferring that the friend's case be true (veram)" and, within the limits of the law, to arranging the schedule to the friend's liking (Off. 2.43). Cicero's weighting of the importance of obligation to a friend versus duty to state may perhaps be idiosyncratic, but the passage would not usefully assert his position if it mischaracterized the nature of the duty (i.e., a true verdict). We know jurors swore to judge by the laws, so presumably the verdict is supposed to be about the subject of those laws—a crime or crimes (Inv. 1.70, 2.131-33, Verr. 1.46, Clu. 164, and especially Verr. 1.3; cf. Cael. 21, Rosc. 152, Clu. 27). For instance, Inv. 1.48 reports, "A court judgment is a matter of religion because those who made the judgment have sworn an oath according to the laws." "Truth" seems to have been the goal of the witnesses' oaths as well (Rosc. 101,104; Rab. Perd. 7; Flacc. 11,12,18; Cael. 20, 25). Thus these prescriptive accounts (both legal and theoretical) give no hint that defense advocates would, as it is claimed, avoid the notional charges.
The history of the iudicia publica also makes unlikely the collusion theories, according to which the overt charge had nothing to do with the "real" reason for the trial. The Romans were willing to hand over a great deal of power to these courts, and the allotment of senators and/or equites to the juries was a strongly contested issue from the creation of the courts until 70. Furthermore, since there was no state prosecutor, ambitious politicians could and did bring their opponents before the bar on their own. Despite all this, we do not hear of aggrieved convicts or demagogues or (most significantly) desperate defense advocates calling for the restriction of courts and prosecutions in general. Rather, they must have been seen as serving some necessary societal function by restricting the behavior of individual citizens (for moral, pragmatic, religious, or other reasons). This argues against the entertainmentoriented theory, but it still allows for the possibility of a test of status, after the fashion of Athenian ostracism. But neither collusion theory accounts for the proliferation of criminal courts. In the Roman system the jurisdictions of the iudicia publica were not divided geographically or hierarchically, but by offense (i.e., one for murder, one for treason, and so forth). The number of these courts grew from one to seven in the period from 149 to 81 as more and more offenses were subjected to this kind of jurisdiction. The penalties of these courts are also distinctive: virtual exile for many, but also fines (for provincial extortion), a ban on office-holding (for electoral malpractice), and an exotic form of execution (for parricide, killing a near relative, at most periods). Under either collusion theory there would be no motive for the proliferation of distinct charges. Any one of them (or a more generalized offense) would always suffice, as with ostracism.
We also have a more specific reason to believe that for at least one Republican politician—Cicero—trials were about murder, electoral malpractice, vis, and the like. Cicero often refers to the outcome of trials in his letters, and the consequences are frequently described as if judgment had been passed or was understood to have been passed on the respective crimes. For instance, he says of his own defense of Sestius on a charge of vis (seditious violence):
Our Sestius was acquitted March 14 by a unanimous vote, and indeed it was most beneficial to the state that no disagreement appear in a case of this sort (in eius modi causa).
(Q. fr. 2.4.1)
Sestius, Cicero had argued in his preserved speech, was a patriot rather than a thug. His motivation supposedly justified his use of violence. Hence Cicero sees the acquittal as a vindication of this alleged legal principle. The issue as described here is not Cicero's performance, nor even Sestius' character or standing, but the informal precedent established. Note that Cicero here says causa, "case," not viro or homine, "person."
Verdicts of individual trials might well be affected by politics (e.g., Att. 2.3.1, 4.18.3,4; Fam. 3.12.1, 7.2.2-3), bribery (e.g., Att. 4.17.4), the performance of the speakers, or all of the above (Att. 4.18.1; cf. Q. fr. 3.3.3, 3.4.1). However, these influences are all seen as deflecting the jurors from their normal, proper task. Thus in 56 Cicero lamented that the iniquitas of the conditions under which one Sittius was tried was stronger than veritas (Fam. 5.17.2). Moreover, the impropriety of these factors is not merely a matter of Cicero's personal moral evaluation, as the following example illustrates nicely. In 54 he complained about the leniency of the courts:
Sufenas and Cato were acquitted on the fourth of July; Procilius was convicted. From this it's clear that the jurors do not care a bit about electoral malpractice, the assemblies, the failure of the elections, treason, and not even the republic as a whole; at least they do not want to see a pater familias killed in his own house, though even this was a close call, for 22 voted to acquit, 28 to convict. Publius, in tears, did move the minds of the judges with his eloquent conclusion.
(Att. 4.15.4) 25
The jurors' verdicts are taken as reflecting their judgment on criminal acts, not on the performance of advocates. (There is rhetorical slippage here between specific criminal acts and general categories of crime, but that slippage, still common today, presupposes a factual judgment on the defendant. The rhetorical trick works precisely because the criminality of homicide is never really at issue.) It is important that Cicero claims the public impact of the judgment is weakened by the close vote, even though he personally attributes votes for acquittal to an effective defense performance. This illustrates the work of a widespread presumption that jurors judge crimes. Without Cicero's specific insight into this particular jury, the observer would assume that they were genuinely divided on the issues. Conversely, Cicero can claim that the conviction of Rutilius Rufus was unjust, despite an admittedly inadequate defense, precisely because he was innocent (de Or. 1.229-30; Brut. 115-16). Cicero's commitment to Rufus' innocence may well be personally or ideologically motivated, but he can expect that, if accepted, the fact of innocence justifies his outrage. In this case a judgment allegedly based on performance can be used to exculpate the defendant in the eyes of later audiences.
If, on the other hand, we see trials as centered on questions of social standing, it is difficult to explain a passage such as the following. At Att. 4.17.5 Cicero complains that he does not know what to say in three apparently routine defenses in cases of electoral malpractice. "I don't for the life of me know what I'll say; I can't find a thing in those three books you praise so much." That Cicero would have such a problem is compatible with a performance-oriented theory (though no more so than a crime-oriented one). What it cannot support is the notion that the jurors are primarily interested in the defendant's general position within the community. If this were the case, then there would be little need for arguments specific to each case. Knowing what kind ofpersona would be acceptable to a broad spectrum of jurors, Cicero could simply construct it without regard for specific accusations demanding specific refutation.
Even Cicero's jokes presuppose the notion that juries should (and ordinarily do) judge crimes. During the campaign for the consulship of 65 Catiline was being hindered by an accusation of electoral malpractice. Cicero's evaluation of the situation in a letter to Atticus is that "Catiline will certainly be a candidate if it is judged that the sun does not shine at mid-day" (Att.1.1.1). This might simply mean that Cicero thought Catiline's acquittal unlikely, but in that case the expression "it is judged that" is rather wordy. One might also wonder why Cicero would have considered undertaking the defense himself (Att. 1.2.1) if he had thought the case a hopeless one. What Cicero seems to mean is that Catiline is, to Cicero, clearly guilty and needs to get the jury to miss (or ignore) that fact. Nonetheless, the jurors are presented as passing a judgment, whether or not the correct one, on a crime, not a performance or general social standing. A similar interpretation attaches to Cicero's famous remark (preserved in Quintilian) about his defense of Cluentius:
Nor did Cicero himself lose his sight [of the truth], when he boasted that he had covered the jurors in shadow in Cluentius' case.
We are not likely ever to know precisely what strategy Cicero referred to by "covered the jurors in shadow. " But what is clear is that the general sense of the phrase must be like that of the English "pulled the wool over their eyes" (cf Val. Max. 3.8.3). This is precisely not what one would need to do according to the "collusion" scenarios described above. It would, however, be appropriate if jurors were, in principle, fact-finders.
But even if the theoretical goal of the courts was discovery of the truth, we cannot, of course, count on orators automatically to provide it. One of the advances in our reading of Cicero over recent decades is the recognition that his version of events does not consist of "the facts" or even a favorable selection of the facts." He presents a construct which is neither historical nor antihistorical, but rhetorical (in the sense of "aimed at persuasion"). As Harold Gotoff remarks:
The only thing Cicero needs to create in his listeners is a disposition to acquit. Whether they should so vote because the charges against his client are dismissed as irrelevant, disproved as false, or despised as a cover for the character assassination of his client is a secondary matter.
In observing this sound principle, however, we must be careful not to adopt a point of view too focused on the performer. Obviously not all arguments are equally effective, and the difference lies in the local context. We cannot meaningfully ask what jurors find persuasive without asking more specifically what they find persuasive under these particular circumstances, i.e., sitting as jurors. Today we would attribute different persuasive value to an identical anecdote about a car's reliability, if that anecdote were recounted by a used-car salesman, a boasting neighbor, the secretary of transportation, or Consumer Reports. Similarly, we must not assume that Roman jurors could simply be bullied into accepting anything as grounds for acquittal. If, then, orators were constrained by the audience's dispositions and expectations, we must ask what those were.
The discussion above has hinted at one of the central factors in influencing a criminal jury-"truth" (veritas, Fam. 5.17.2; veram ... causam, Off. 3.43)This should perhaps not be surprising in an institution whose other official description was quaestio ("inquiry"), rather than certamen ("contest") or ludi ("games"); contrast here the common Greek use of [agon] ("contest") of lawsuits. Now of course this cannot mean truth in an absolute sense. Even if the speakers had intended to be informative (which, ex hypothesi, they did not), and even if the jurors had the benefit of rumor now lost to us, neither had any more direct access to absolute truth than we do. Rather, "truth," as Gotoff (1993:297) remarks in a later article, "is just a ploy." What Gotoff means by this remark is that truth (as understood by the orator) is deployed only if doing so happens to coincide with what would have been the most effective strategy anyway; an orator might, for instance, eschew a factual defense, even a truthful one, in favor of a more exciting counterattack. We can, however, give another interpretation to Gotoff's claim. Truth, that is to say the production of a truth, a plausible account of reality, is a trope or strategy. Hence Cicero claims (Off. 2.51), "In trials it is always a juror's duty to pursue the truth (verum); the defense advocate's is sometimes to protect his client by means of the plausible (verisimili), even if it is less true." But what we have seen above suggests that in forensic oratory truth was not just any trope, but a distinctive and obligatory one. The orator's case must appear true.
We see a further illustration of the status of truth in oratory in Quintilian's repeated warnings about bringing the habits of scholastic declamation to court. Some of these warnings could be seen in purely formal terms, referring to the danger of being rhetorically one-upped. Yet others must refer to confrontation with (some version of) the facts (IO 2.10.8, 5.13.36, 7.2.54-55) and even the attempt to one-up the opponent is always based on producing a "truer" account (IO 5.13.6, 6.1.43). Cicero provides a concrete example in his anecdote about a pleader named Caepasius (Clu. 58-59). Caepasius was humiliated in court one day not because his client left the courtroom while he was still arguing his case (for that had happened some time before the disaster), but because the advocate gestured in what he thought was his client's direction after the latter had fled. The contradiction, the mismatch with reality, was the source of the humor and so of the rhetorical failure.
3. Politics and the Courts
Before leaving these issues, we should consider two complications: one dealing with external political power, the other with power relationships internal to the courtroom. We noted briefly above cases in which Cicero suggests a political motive for some jurors. It might be objected that, whatever the "official" function of the courts, these political interventions rendered that function irrelevant for the orator and even rendered the orator himself irrelevant. This fails to account for the evidence noted in the preceding section, but even on its own terms the argument fails. In none of the cases cited above does the outcome seem to be known in advance (bribery is likely to have been similarly unpredictable, especially when used by both sides). Hence it would have behooved the orator to make the best available argument, to produce an acceptable truth.
It may, however, be worth considering a little longer the question of how political the Roman courts were, as most aspects of the question have received surprisingly little direct attention. The largest-scale recent works focusing on the Republican criminal courts are Erich Gruen's (1968) Roman Politics and the Criminal Courts, 149-78 B.C., along with the relevant sections of his later The Last Generation of the Roman Republic (1974:260-357), and J.-M. David's (1992) Le patronat judiciaire au dernier siécle de la république romaine. Gruen's interest in the courts is primarily instrumental; he uses patterns of prosecution along with more traditional prosopographical methods to trace patterns of political alliance and factional strife in the Late Republic. David's opus is more sociological in its focus, but it takes a similarly procedural view of the courts: who played the various formal roles and under which circumstances? The trial itself remains something of a "black box." The questions about individual crimes raised at the beginning of this chapter require that we look inside the box. But in asking the question "How political were individual Roman criminal trials?" we must first consider the sense to be attached to the term "political."
One sense this notion has been given is the idea that the motivation for prosecutions was normally factional or personal enmity. Since there was no state prosecutor's office, this will necessarily have been true to some extent. The defendants we know of are largely men of affairs; it would not have been hard to find someone with a grudge to prosecute when a prominent person did something that could be taken as a violation of the law. Or, in the absence of long-standing enemies, there was the possibility of aspiring young prosecutors (like Cicero himself against Verres) who would benefit both from the exposure of a public trial and even more from the various rewards for most successful prosecutions (Taylor 1949:113-15; Alexander 1985). We in fact know of cases where the primary motivation was political, such as Caelius' second prosecution of Dollabella (Fam. 3.10.5). Gruen also points out that cases in which there is a long gap between offense and prosecution are likely to have been significantly motivated by politics (1974:266), as are ambitus cases prosecuted only after the defendant had held office or even lost the election (1974:301). We also know of a few cases, such of those of Q. Servilius Caepio (TLRR 97) and M. Tuccius (TLRR 335), where prosecutions were apparently mounted for the tactical motive of delaying another trial. Cicero even suggests in pro Roscio (§55, cf. §30) that a prosecutor needed to show personal enmity to show that his accusation was in earnest.
None of this suggests, however, that jurors or the creators of the courts had similarly political motives. And we also know of cases where the original motivation of the prosecution seems to have been seeking justice, not political advantage. The Sicilians apparently approached Cicero in regard to Verres' prosecution, rather than the other way around (Scaur. 24), and Cato famously promised to prosecute the winners of the consular elections of 63, whoever they might be (Mur. 62). We will see in the next chapter that Cicero often ends up opposing personal friends and political allies in the courts without, apparently, damaging his relationship with them. This may indicate that personal loyalty was not the primary issue. Personal anger may be more important, especially in cases (such as pro Milone or most ambitus trials) where the prosecutor was the victim (or a close relative of the victim) of the crime. There is, however, little reason to doubt that a coincidence of opportunity (in the form of some action by the defendant) and personal animosity motivated most criminal prosecutions. But the motives of individual prosecutors do not bear on the issue of the motivations for the creation of the system, nor for the votes of jurors. That Roman nobles won political prominence by military victories does not imply that the army was (solely) a "political" institution in the sense usually attached to that word. So it was with the courts, as well.
Another interpretation that has been attached to the notion of the "politicality" of Roman criminal trials is that, whatever the motive for prosecution, conviction or acquittal was a test of factional or personal strength. This is relevant to the present work since, if all the parties know that the trial is an irrelevant formality, the evidentiary value of the speeches can be called into question. It is impossible to trace jurors' motivations directly, but we do have some circumstantial evidence that trials were not political in this sense (in addition to the general arguments of the previous section). Consider first the class of trials mentioned above, in which the alleged offense significantly predates the trial. These defendants are regularly acquitted. We may also look at trials which seem to form part of a series of accusations and counteraccusations between political enemies (see Gruen 1968:196, 206). Again the ready inference is that these trials were motivated primarily by political or personal hostility. The fact that such defendants are also normally acquitted suggests that the juries did really want to be convinced that some wrong had been done. Also important in this context is Cicero's remark at Brut. 106 that, since the introduction of the secret ballot in 137, jurors had to be persuaded. That is, presumably, the secret ballot neutralized the force of predictable political ties. Thus participants at least expected that cases would be won in court, rather than by preexisting alliances. This is not surprising. No doubt some jurors in particular cases went in with a personal commitment to vote for (or against) the defendant. However, the bulk of the jurors (especially among the two lower and larger orders) will have had weak and/or ambivalent political interests in the parties in a given case. Hence it behooved the advocates to try to convince at least part of the jury that the defendant did (or did not) commit the crime in question, and Cicero knew this. To the extent that other jurors came to the trial strongly committed on personal grounds to a particular verdict, they would not affect his rhetoric; they were a lost cause.
A third sense of "political" might be that the outcome of trials was determined (at least in part) by differences in policy or ideology. One case that is described in these terms in our sources is that of P. Rutilius Rufus (TLRR 94). He was allegedly convicted partly because of his refusal to mount an emotionally effective defense (de Or. 1.229) and partly because of the anger of the equites at his handling of tax collections in Asia (Vel. Pat. 2.13.2; Dio fr. 97). Here there is a division between the senate and the equites, for tax-collection was largely in the hands of the latter. The current tendency (reasonable in my opinion) is to minimize the difference of interests between the two orders, but the question of the tax contracts seems to have been one of the genuine sticking points (Brunt 1988:148-50). Doubtless, at this level of abstraction some Roman trials were political; in fact, we will show just that in some of the studies that follow. However, to anticipate the general argument somewhat, this need not conflict with the assertion that Roman courts ideally existed to judge and punish the criminal acts of individual citizens. We will see not only that several of the individual offenses tried in the iudicia publica are, on their face, political in character, but that on further examination the same can be said for all the acts that were in their purview. There are no crimes at Rome which are not political crimes. But if crimes are defined in political terms, this still leaves it to the jury to determine whether that definition has been met in particular cases. Politics and truth are not contradictory but complementary.
So much for politics outside the courts, but what about the politics—that is, power relations—inside the courtroom? It was claimed above that, looking in from the outside, Romans expected jurors to pass "true" judgments on the basis of the law and fact in each case. But how far could the advocates go inside the courtroom in shaping the jurors' understanding of the substance of that law and fact? To some small extent reshaping of presuppositions presumably goes on in any argument (or even conversation). But more to the point, advocates could potentially have imposed certain assumptions by virtue of the specialized, restricted world of the courtroom. Compare the imposition on a modern jury of terms of art like "murder" (as distinct from homicide), "possession" (which might not include items in one's hand), or even "not guilty" (meaning merely "not demonstrably guilty," rather than "innocent"). Of course, this imposition is facilitated by a judge who is authorized to give definitive judgments on such matters and, less obtrusively, by the formal training and licensing the advocates (as well as the judge) are known by jurors to have undergone. What of the Roman situation? The following sketch of Roman legal procedure will address these questions. (It will also serve to clarify procedural references that will come up in the course of the study as a whole.) This examination will result in a conclusion that is at first sight paradoxical. Compared to their modern counterparts, Roman trial advocates were relatively unconstrained in formal terms; they seem to have been particularly free from detailed intervention in matters of law on the part of the presiding magistrate. Yet it may be argued that the overall effect of this procedural system, combined with the limited range of jury selection, creates considerable informal constraints on the advocates. Roman jurors were major actors in their own right, and knowledge of their prejudices and preconceptions about the law and the case would have been even more important than it is in a modern court. These preconceptions may not have been absolutely fixed points, but altering them significantly would have been prohibitively difficult.
The Roman system of criminal courts (quaestiones) was strongly adversarial. The defendant, usually represented by one or more counsel, squared of against a private person (or persons) who served as prosecutor. The prosecutor might also be assisted by one or more so-called subscriptores. Neither side's speakers were (normally) legal professionals, though these will have been consulted. The state (in the person of the praetor or lesser presiding officer) only participated to the extent of allowing or rejecting the prosecution, then arranging to pick the "best" prosecutor when several had made themselves available. The jurors technically had three options: acquit (absolvo), condemn (condemno), or not proven (non liquet). However, as the prosecution needed an outright majority of the votes cast to win, the trial could have one of only two official outcomes. The social distinction between votes of absolvo and non liquet is less clear; for an example of the exploitation of this voting possibility see below. The penalties for most crimes were clearly fixed by law. In cases where variable damages were assessed, they were determined in a separate proceeding before the same jury (litis aestimatio). Nor were there clear guidelines for what we would call burden of proof. This fact by itself might indicate either that the issue had not even been clearly formulated or that it was so well resolved that it could "go without saying." The way Cicero manipulates the point suggests that the former may have been the case.
The individual courts were presided over by one of the praetors or a subordinate or iudex quaestionis—either is called a quaesitor. Once the case had been accepted by the praetor and the prosecutor had been chosen, there was little official interference in the conduct of the case; the quaesitor kept time and counted the votes. Nearly anything within the time limits seems to have been allowed. Most important for the present topic is the lack of a formal charge to the jury instructing them on what issues they were to decide or what the applicable law might be. This, at any rate, is the orthodox view. Bauman (1996 25-26) has recently offered a challenge which, while not ultimately successful, deserves notice. The central figure here is Lucius Cassius Longinus Ravilla, known for two things in antiquity: his judicial severity and his admonition to jurors "whenever he was the quaesitor in some homicide case" to ask "who benefited (cui bono)?" This certainly looks like influence by the presiding officer, but what exactly is being influenced? The one trial under Cassius about which we have detailed information was a quaestio extraordinaria—an ad hoc investigation by a magistrate, usually at the direction of the senate or assembly. The other references to his severity all refer to him acting in the capacity of a judge. This description makes more sense for a quaestio extraordinaria, in which the investigating magistrate probably himself had a hand in the judgment, than for a standing court, in which the official verdict at least was decided by the jurors. We do not know much about Cassius' judicial career, but he was tribune in 137, consul in 127, and censor in 125 and presided over the trial of the Vestals (the trial cited above) in 113. The chronology of the various standing courts (and especially for those of the different kinds ofhomicide) is highly uncertain, but they are not clearly attested for the period in which Cassius was active. It is quite likely, then, that his instructions were addressed not to the jurors of a standing court but to his own consilium, or circle of advisors. This is certainly the case for the Marcus Scaurus criticized by Sallust for his conduct of hearings against Mamilius (BJ 40.4-5).
Given this freedom during the course of the trial, a particular point of pretrial procedure becomes important: the indictment (inscriptio). How does it restrict the advocate's freedom in advance? Criminal procedure at Rome was never as highly developed as was civil procedure, and the system was not regularized until the lex Iulia iudiciorum publicorum, probably of Augustus (conceivably of Julius Caesar). Thus in our period procedure may have varied somewhat from court to court. What then can we tell about the inscriptio (often, but slightly less formally, the subscriptio) in the time of Cicero? The only preserved specimen (Paulus, D. 48.2.3) is for an adultery charge, not a criminal offense until Augustus and so presumably postdating the procedural reforms. In addition to charge, accuser, and defendant, this passage gives the barest details of the crime: time, place, and the person with whom the adultery was committed. Passing references in Cicero (Inv. 2.58; Clu. 86) indicate only name of prosecutor, defendant, and the law under which the case was to be tried, but there is no way to be sure that these remarks are comprehensive. Distinctions were made within the jurisdiction of individual courts: Inv. 2.58 discusses a homicide case where parricide is specified in the inscriptio. However, this need not imply that the details of a crime were normally included. Parricide had different legal consequences, certainly in procedure and perhaps in penalty, from other forms of homicide, so its inclusion may well have been exceptional. The direct evidence suggests that details of the crime were sketchy or nonexistent in the Republican inscriptio. There is also an argumentum ex silentio. Even when claiming the irrelevancy of opposing arguments (e.g., in the opening sections of pro Cluentio), Cicero never makes a procedural argument based on the inscriptio; he relies only on general notions of duty. More positively, we should recall that the main purpose of the pretrial proceedings was to ensure an energetic prosecution (cf. Divinatio in Caecilium). We must keep in mind that such a procedure would give the defendant only minimal protection; he was not even present most of the time.
The form of the indictment raises a methodological issue that will be relevant to several points in the body of this study. It may thus be best to deal with it immediately. It is a well-established fact that some actions exposed the actor to criminal liability under more than one statute. For instance, a provincial governor who exceeded his authority in various ways might be tried under the maiestas or repetundae laws; though apparently rare in practice, independent prosecutions under all applicable statutes were possible. Most examples are imperial or slightly earlier (involving especially Julius Caesar's repetundae law of 59). Under the empire the law of maiestas seems to have absorbed virtually the entire Republican law of vis. Nonetheless, the phenomenon does originate earlier; presumably Milo could have been tried for homicide as well as vis in the killing of Clodius. Despite these overlapping jurisdictions, however, the one thing we know certainly that the prosecutor had to be clear about in his indictment was the formal charge, so that the case could be handled by the "proper" court. Jurors were not asked whether, on the one hand, a given act looked more like maiestas or repetundae or whether, on the other, it was offensive regardless of legal grounds; they were asked whether it was repetundae. Even if the boundaries of the various offenses were sometimes unclear or overlapping as a matter of statute, the structure of the court system guaranteed that specific trials continued to be about specific offenses. Whether those same offenses (defined operationally) also overlapped is an empirical question. Thus when we turn to actual cases which might in theory have been tried under different statutes, we may for the most part ignore that fact. The prosecution presumably felt they could show the offense charged, and in any case the defense would certainly have denied that offense.
We have considered the judge, the indictment, and the parties to the suit. Now we must look at the composition of the jury. A jury panel was fairly large, often containing more than fifty members. One-third of the total was drawn from each of three orders (the top three legal statuses): senators, equites, and tribuni aerarii (Att.1.16.3; Q. fr. 2.4.6). The juries were highly uniform with respect to sex (all male) and class. We may also expect considerable similarity of education (rhetoric and literary classics and exposure to political oratory in courts and contiones) and of occupation (simultaneous interests in land, business, and often politics). We should note that these similarities are all in areas which might potentially have produced differences in conceptions of the legal system or in the weight given different evaluative criteria, and thus there is a strong potential for a uniformity of judging expectations for Cicero (or any other advocate) to target. Also important for this topic is the simple fact that these jurors can be expected to have had relatively clear and fixed expectations going into a trial. The groups subject to jury duty were relatively small (especially the senators). The upper classes were also the special target of much of the criminal legislation (ambitus, repetundae). A rhetorical education aimed precisely at forensic speaking was the central form of formal education for the upper class. Finally, the penalties for many of the crimes to be considered were severe: loss of all civil rights, normally resulting in exile. Hence the jurors as a group would have both motivation and opportunity to form opinions about the proper functioning of the legal system prior to their actual appearance on a panel, and these beliefs would likely have had deep ideological and/or philosophical grounding.
The situation in the iudicia publica was in many respects similar to that in the iudicia privata as described by Frier (1985:197-234). The major differences are the much larger criminal juries, the apparent absence of jurists as advisors to the jurors or even as authorities to be cited by advocates, and the absence of a formula given by the praetor to specify the issue(s) at stake for the jurors. (Advocates in criminal, as well as civil, cases were not normally themselves lawyers.) The latter two points, the absence ofjurists and formulae, might be thought to increase the advocates' power to shape each case in the absence of an "impartial" central authority such as the judge in a modern American court. Up to a point this must be true. However, the Roman system is structurally so different that this kind of proportional argument no longer makes sense. To the lack of legal formalities corresponds the absence of expectation of legal formalism. That is, this system (unlike the American one) does nothing to suggest that the legal world is a realm of specialized discourse, understood only by initiates. After the speeches and witnesses, the advocates engaged in altercatio, a more informal, back-and-forth argument, which would have brought them closer to the realm of normal discourse. The Roman system does not concentrate expert status (as a source of authority) in the advocates; it undercuts the pretensions to special authority of any supposed experts. Frier (1985:228-29) rightly points out that the giving of a formula does not in fact settle all issues of law for civil jurors; the interpretation of formulae can be quite complex and technical. However, the giving of formulae in their characteristically technical language does signal to the jurors that they have entered a marked area and that the issue they are to decide is outside their normal competence. This is not the case in the public courts. There the jurors are free to assume that their ordinary understanding of the case is (broadly speaking) the proper understanding.
A courtroom is an example of an "immediate truth-determination forum." That is, the judges, whether jurors or the presiding officer(s), must convert a whole trial's worth of evidence, testimony, and argumentation into a single judgment. This book will address the rules (or principles or procedures) which the jurors in a Late Republican Roman criminal court used tó convert such a mass of information into their simple verdict. While it is impossible to make direct observations of jurors' thinking, we can see how an effective advocate (Cicero) would address himself to their concerns. As discussed above, oratorical success is almost by definition dependent on the speaker's ability to satisfy the audience's expectations (though this may involve some clarification or modification of the details of those expectations). I will examine the paradigms for judging which Cicero offers the jurors in his various criminal trials. These will be surprisingly limited, given the normal assumption that Cicero will say whatever will promote victory. I would maintain these few patterns represent values and concepts broadly and deeply shared among the Roman elite. Cicero exploits this "common sense" to produce a persuasive account of how his client did not commit a crime." (Readers not already familiar with the individual cases may wish to consult Appendix A, which gives a brief account of the argument and dramatis personae of the various trials.)
Finally, I should say a few words here about the term "paradigm," which will be used frequently in subsequent chapters. For decades now this word has been used heavily in the humanities, particularly in the contexts of Thomas Kuhn's analysis of scientific revolutions as "paradigm shifts" and of various postmodern appropriations of Kuhn's work. I have in mind something rather different and more limited. Much of the present study will be concerned with "judging paradigms," that is (as the previous paragraph suggested), paradigms offered to jurors as models for how they should make their decisions. After all, there must be some procedure for reducing hours of speeches, testimony, and other evidence to one of three, preexisting verdicts. It is, of course, in the absence of an authoritative paradigm in the form of a judge's charge that the jurors' and advocates' paradigms become most important. Sometimes the paradigms we can recover from Cicero are only partial models, e.g., suggestions that a specific piece of information is (ir)relevant or about burden of proof. Often they are more holistic. The entire case, Cicero will sometimes suggest to the jurors, comes to this or that single question or problem . In any case, when the word "paradigm" appears in what follows, it should be understood as "judging paradigm" as defined here.