Lectures on Rhetoric and Belles Lettres: Lecture XXVIII — Eloquence of the Bar — Analysis of Cicero's Oration for Cluentius
I treated in the last lecture of what is peculiar to the eloquence of popular assemblies. Much of what was said on that head is applicable to the eloquence of the bar, the next great scene of public speaking, to which I now proceed, and my observations upon which will therefore be the shorter. All, however, that was said in the former lecture, must not be applied to it; and it is of importance that I begin with showing where the distinction lies.
In the first place, the ends of speaking at the bar, and in popular assemblies, are commonly different. In popular assemblies, the great object is persuasion; the orator aims at determining the hearers to some choice or conduct, as good, fit, or useful. For accomplishing this end, it is incumbent on him to apply himself to all the principles of action in our nature; to the passions and to the heart, as well as to the understanding. But, at the bar, conviction is the great object. There, it is not the speaker’s business to persuade the judges to what is good or useful, but to show them what is just and true; and of course, it is chiefly, or solely, to the understanding that his eloquence is addressed. This is a characteristical difference which ought ever to be kept in view.
In the next place, speakers at the bar address themselves to one or to a few judges, and these, too, persons generally of age, gravity, and authority of character. There they have not those advantages which a mixed and numerous assembly affords for employing all the arts of speech, even supposing their subject to admit them. Passion does not rise so easily; the speaker is heard more coolly; he is watched over more severely; and would expose himself to ridicule by that high vehement tone, which is only proper in speaking to a multitude.
In the last place, the nature and management of the subjects which belong to the bar, require a very different species of oratory from that of popular assemblies. In the latter, the speaker has a much wider range. He is seldom confined to any precise rule; he can fetch his topics from a great variety of quarters; and employ every illustration which his fancy or imagination suggests. But, at the bar, the field of speaking is limited to precise law and statute. Imagination is not allowed to take its scope. The advocate has always lying before him the line, the square, and the compass. These, it is his principal business to be continually applying to the subjects under debate.
For these reasons, it is clear, that the eloquence of the bar is of a much more limited, more sober and chastened kind, than that of popular assemblies; and for similar reasons, we must beware of considering even the judicial orations of Cicero or Demosthenes, as exact models of the manner of speaking which is adapted to the present state of the bar. It is necessary to warn young lawyers of this; because, though these were pleadings spoken in civil or criminal causes, yet, in fact, the nature of the bar anciently, both in Greece and Rome, allowed a much nearer approach to popular eloquence, than what it now does. This was owing chiefly to two causes:
First, Because in the ancient judicial orations, strict law was much less an object of attention than it is become among us. In the days of Demosthenes and Cicero, the municipal statutes were few, simple, and general; and the decision of causes was trusted, in a great measure, to the equity and common sense of the judges. Eloquence, much more than jurisprudence, was the study of those who were to plead causes. Cicero somewhere says, that three months study was sufficient to make any man a complete civilian;
nay, it was thought that one might be a good pleader at the bar, who had never studied law at all. For there were among the Romans a set of men called pragmatici, whose office it was to give the orator all the law knowledge which the cause he was to plead required, and which he put into that popular form, and dressed up with those colours of eloquence, that were best fitted for influencing the judges before whom he spoke.
We may observe next, that the civil and criminal judges, both in Greece and Rome, were commonly much more numerous than they are with us, and formed a sort of popular assembly. The renowned tribunal of the Areopagus at Athens consisted of fifty judges at the least. * Some make it to consist of a great many more. When Socrates was condemned, by what court it is uncertain, we are informed that no fewer than 280 voted against him. In
Rome, the Praetor, who was the proper judge both in civil and criminal causes, named, for every cause of moment, the Judices Selecti, as they were called, who were always numerous, and had the office and power of both judge and jury. In the famous cause of Milo, Cicero spoke to fifty-one Judices Selecti, and so had the advantage of addressing his whole pleading, not to one or a few learned judges of the point of law, as is the case with us, but to an assembly of Roman citizens. Hence all those arts of popular eloquence, which we find the Roman orator so frequently employing, and probably with much success. Hence tears and commiseration are so often made use of as the instruments of gaining a cause. Hence certain practices, which would be reckoned theatrical among us, were common at the Roman bar; such as introducing not only the accused person dressed in deep mourning, but presenting to the judges his family, and his young children, endeavouring to move them by their cries and tears.
For these reasons, on account of the wide difference between the ancient and modern state of the bar, to which we may add also the difference in the turn of ancient and modern eloquence, which I formerly took notice of, too strict an imitation of Cicero’s manner of pleading would now be extremely injudicious. To great advantage he may still be studied by every speaker at the bar. In the address with which he opens his subject, and the insinuation he employs for gaining the favour of the judges; in the distinct arrangement of his facts; in the gracefulness of his narration; in the conduct and exposition of his arguments, he may and he ought to be imitated. A higher pattern cannot be set before us; but one who should imitate him also in his exaggeration and amplifications, in his diffuse and pompous declamation, and in his attempts to raise passion, would now make himself almost as ridiculous at the bar, as if he should appear there in the Toga of a Roman lawyer.
Before I descend to more particular directions concerning the eloquence of the bar, I must be allowed to take notice, that the
* Vide Potter, Antiq. vol. i. p. 102.
foundation of a lawyer’s reputation and success, must always be laid in a profound knowledge of his own profession. Nothing is of such consequence to him, or deserves more his deep and serious study. For whatever his abilities as a speaker may be, if his knowledge of the law be reckoned superficial, few will choose to commit their cause to him. Besides previous study, and a proper stock of knowledge attained, another thing, highly material to the success of every pleader, is, a diligent and painful attention to every cause with which he is entrusted, so as to be thoroughly master of all the facts and circumstances relating to it. On this, the ancient rhetoricians insist with great earnestness, and justly represent it as a necessary basis to all the eloquence that can be exerted in pleading. Cicero tells us (under the character of Antonius, in the second book De Oratore) that he always conversed at full length with every client who came to consult him; that he took care there should be no witness to their conversation, in order that his client might explain himself more freely; that he was wont to start every objection, and to plead the cause of the adverse party with him, that he might come at the whole truth, and be fully prepared on every point of the business; and that, after the client had retired, he used to balance all the facts with himself, under three different characters, his own, that of the judge, and that of the advocate on the opposite side. He censures very severely those of the profession who decline taking so much trouble; taxing them not only with shameful negligence, but with dishonesty and breach of trust.* To the same purpose Quintilian, in the eighth chapter of his last book, delivers a great many excellent rules concerning all the methods which a lawyer should employ for attaining the most thorough knowledge of the cause he is to plead; again and again recommending patience and attention in conversation with clients, and observing very sensibly, e Non tam obest audire supervacua, quam ignorare necessaria. Frequenter enim'et vulnus, et remedium, in iis orator inveniet quae litigatorie in neutram partem, habere momentum videbantur.’t
Supposing an advocate to be thus prepared, with all the knowledge which the study of the law in general, and of that cause which he is to plead in particular, can furnish him, I must next ob-
* { Equidem soleo dare operam, ut de sua quisque re me ipse doceat; et ne quis alius adsit, quo liberius loquatur; et agere adversarii causam, ut ille agat suam; et quicquid de sua re cogitaret, in medium proferat. Itaque cum ille decessit , tres personas unus sustineo, summa animi equitate; meam, adversarii, judices. — Nonnulli dum operam suam multam existimari volunt, ut toto foro volitare, et aecusa ad causam ire videantur, causas dicunt incognitas. In quo est illa quidem magna offensio, vel negligentiae susceptis rebus, vel perfidiae receptis; sed etiam illa, major opinione, quod nemo potest de ea re quam non novit, non turpissime dicere.’
f 1 To listen to something that is superfluous can do no hurt; whereas to be ignorant of something that is material, may be highly prejudicial. The advocate will frequently discover the weak side of a cause, and learn at the same time, what is the proper defence, from circumstances which, to the party himself, appeared to be o / little or no moment.’
serve, that eloquence in pleading is of the highest moment for giving support to a cause. It were altogether wrong to infer, that because the ancient popular and vehement manner is now in a great measure superseded, there is therefore no room for eloquence at the bar, and that the study of it is become superfluous. Though the manner of speaking be changed, yet still there is a right and proper manner, which deserves to be studied as much as ever. Perhaps there is no scene of public speaking where eloquence is more necessary. For, on other occasions, the subject on which men speak in public, is frequently sufficient, by itself, to interest the hearers. But the dryness and subtilty of the subjects generally agitated at the bar, require, more than any other, a certain kind of eloquence, in order to command attention; in order to give proper weight to the arguments that are employed, and to prevent any thing which the pleader advances from passing unregarded. The effect of good speaking is always very great. There is as much difference in the impression made upon the hearers, by a cold, dry, and confused speaker, and that made by one who pleads the same cause with elegance, order, and strength, as there is between our conception of an object, when it is presented to us in a dim light, and when we behold it in a full and clear one.
It is no small encouragement to eloquence at the bar, that of all the liberal professions, none gives fairer play to genius and abilities than that of the advocate. He is less exposed than some others to suffer by the arts of rivalry, by popular prejudices, or secret intrigues. He is sure of coming forward according to his merit; for he stands forth every day to view; he enters the list boldly with his competitors; every appearance which he makes is an appeal to the public, whose decision seldom fails of being just, because it is impartial. Interest and friends may set forward a young pleader with peculiar advantages beyond others, at the beginning; but they can do no more than open the field to him. A reputation resting on these assistances will soon fall. Spectators remark, judges decide, parties watch; and to him will the multitude of clients never fail to resort, who gives the most approved specimens of his knowledge, eloquence, and industry.
It must be laid down for a first principle, that the eloquence suited to the bar, whether in speaking or in writing law papers, is of the calm and temperate kind, and connected with close reasoning. Sometimes a little play may be allowed to the imagination, in order to enliven a dry subject, and to give relief to the fatigue of attention; but this liberty must be taken with a sparing hand; for a florid style, and a sparkling manner, never fail to make the speaker be heard with a jealous ear, by the judge. They detract from his weight, and always produce a suspicion of his failing in soundness and strength of argument. It is purity and neatness of expression which is chiefly to be studied; a style perspicuous and proper, which shall not be needlessly overcharged with the pedantry of law terms, and where, at the same time, no affectation shall appear of avoiding these, when they are suitable and necessary.
Verbosity is a common fault, of which the gentlemen of this profession are accused; and into which the habit of speaking and writing so hastily, and with so little preparation, as they are often obliged to do, almost unavoidably betrays them. It cannot, therefore, be too much recommended to those who are beginning to practise at the bar, that they should early study to guard against this, while as yet they have full leisure for preparation. Let them form themselves, especially in the papers which they write, to the habit of a strong and a correct style; which expresses the same thing much better in a few words, than is done by the accumulation of intricate and endless periods. If this habit be once acquired, it will become natural to them afterwards, when the multiplicity of business shall force them to compose in a more precipitant manner. Whereas, if the practice of a loose and negligent style has been suffered to become familiar, it will not be in their power, even upon occasions when they wish to make an unusual effort, to express themselves with energy and grace. '
Distinctness is a capital property in speaking at the bar. This should be shown chiefly in two things; first, in stating the question; in showing clearly what is the point in debate; what we admit; what we deny; and where the line of division begins between us, and the adverse party. Next, it should be shown in the order and arrangement of all the parts of the pleading. In every sort of oration, a clear method is of the utmost consequence; but in those embroiled and difficult cases which belong to the bar, it is almost all in all. Too much pains, therefore, cannot be taken, in previously studying the plan and method. If there be indistinctness and disorder there, we can have no success in convincing: we leave the whole cause in darkness.
With respect to the conduct of narration and argumentation, I shall hereafter make several remarks, when I come to treat of the component parts of a regular oration. I shall at present only observe, that the narration of facts at the bar, should always be as concise as the nature of them will admit. Facts are always of the greatest consequence to be remembered during the course of the pleading; but, if the pleader be tedious in his manner of relating them, and needlessly circumstantial, he lays too great a load upon the memory. Whereas, by cutting off all superfluous circumstances in his recital, he adds strength to the material facts; he both gives a clearer view of what he relates, and makes the impression of it more lasting. In argumentation, again, I would incline to give scope to a more diffuse manner at the bar, than on some other occasions. For in popular assemblies, where the subject of debate is often a plain question, arguments, taken from known topics, gain strength by their conciseness. But the obscurity of law-points frequently requires the arguments to be spread out, and placed in different lights, in order to be fully apprehended.
When the pleader comes to refute the arguments employed by his adversary, he should be on his guard not to do them injustice, by disguising, or placing them in a false light. The deceit is soon discovered; it will not fail of being exposed: and tends to impress the judge and the hearers with distrust of the speaker, as one who either wants discernment to perceive, or wants fairness to admit, the strength of the reasoning on the other side. Whereas, when they see that he states, with accuracy and candour, the arguments which have been used against him, before he proceeds to combat them, a strong prejudice is created in his favour. They are naturally led to think, that he has a clear and full conception of all that can be said on both sides of the argument; that he has entire confidence in the goodness of his own cause; and does not attempt to support it by any artifice or concealment. The judge is thereby inclined to receive much more readily, the impressions which are given him by a speaker, who appears both so fair and so penetrating. There is no part of the discourse, in which the orator has greater opportunity of showing a masterly address, than when he sets himself to represent the reasonings of his antagonists, in order to refute them.
Wit may sometimes be of service at the bar, especially in a lively reply, by which we may throw ridicule on something that has been said on the other side. But, though the reputation of wit be dazzling to a young pleader, I would never advise him to rest his strength upon this talent. It is not his business to make an audience laugh, but to convince the judge; and seldom, or never, did any one rise to eminence in his profession, by being a witty lawyer.
A proper degree of warmth in pleading a cause is always of use. Though, in speaking to a multitude, greater vehemence be natural; yet, in addressing ourselves even to a single man, the warmth which arises from seriousness and earnestness, is one of the most powerful means of persuading him. An advocate personates his client; he has taken upon him the whole charge of his interests; he stands in his place. It is improper, therefore, and has a bad effect upon the cause, if he appears indifferent and unmoved; and few clients will be fond of trusting their interests in the hands of a cold speaker.
At the same time, he must beware of prostituting his earnestness and sensibility so much as to enter with equal warmth into every cause that is committed to him, whether it can be supposed really to excite his zeal or not. There is a dignity of character, which is of the utmost importance for every one in this profession to support. For it must never be forgotten, that there is no instrument of persuasion more powerful, than an opinion of probity and honour in the person who undertakes to persuade.* It is scarcely possible for any hearer to separate altogether the impression made by the character of him that speaks, from the things that he says. However secretly and imperceptibly, it will be always lending its weight to one side or other; either detracting from, or adding to, the authority and influence of his speech. This opinion of honour and probity must therefore be carefully preserved, both by some degree of delicacy in the choice of causes, and by the man-
* ‘ Plurimum ad omnia momenti est in hoc positum, si vir bonus creditur. Sic eniro ramtiogitj ut non studium advocati, videatur affere, sed pene testis fidem.’
Quinct. 1. iv c. u ner of conducting them. And though, perhaps, the nature of the profession may render it extremely difficult to carry this delicacy to its utmost length, yet there are attentions to this point, which, as every good man for virtue’s sake, so every prudent man for reputation’s sake, will find to be necessary. He will always decline embarking in causes that are odious and manifestly unjust; and, when he supports a doubtful cause, he will lay the chief stress upon such arguments as appear to his own judgment the most tenable; reserving his zeal and his indignation for cases where injustice and iniquity are flagrant. But of the personal qualities and virtues requisite in public speakers, I shall afterwards have occasion to discourse.
These are the chief directions which have occurred to me concerning the peculiar strain of speaking at the bar. In order to illustrate the subject farther, I shall give a short analysis of one of Cicero’s pleadings, or judicial orations. I have chosen that, pro Cluentio. The celebrated one, pro Milone, is more laboured and showy; but it is too declamatory. That, pro Cluentio, comes nearer the strain of a modern pleading; and though it has the disadvantage of being very long and complicated too in the subject, yet it is one of the most chaste, correct, and forcible, of all Cicero’s judicial orations, and well deserves attention for its conduct.
Avitus Cluentius, a Roman knight of splendid family and fortunes, had accused his stepfather Oppianicus, of an attempt to poison him. He prevailed in the prosecution; Oppianicus was condemned and banished. But as rumours arose of the judges having been corrupted in this cause, these gave occasion to much popular clamour, and had thrown a heavy odium on Cluentius. Eight years afterwards Oppianicus died. An accusation was brought against Cluentius of having poisoned him, together with a charge also of having bribed the judges in the former trial to condemn. In this action Cicero defends him. The accusers were Sassia, the mother of Cluentius, and widow of Oppianicus, and young Oppianicus, the son. Q. Naso, the Praetor, was judge, together with a considerable number of Judices Selecti.
The introduction of the oration is simple and proper, taken from no common-place topic, but from the nature of the cause. It begins with taking notice, that the whole oration of the accuser was divided into two parts.* These two parts were, the charge of having poisoned Oppianicus; on which the accuser, conscious of having no proof, did not lay the stress of his cause; but rested it chiefly on the other charge of formerly corrupting the judges, which was capital in certain cases, by the Roman law. Cicero proposes to follow him in this method, and to apply himself chiefly to the vindication of his client from the latter charge. He makes several proper ob-
* 1 Animadvertite, judices, omnem accusatoris orationem in duas divisam esse parfifs, aliarum altpra mihi niti et magnopere confidere videbatur, invidid jam inveterate judicii Juniani, altera tantum modo consuetudinis causd, timide et diffidenter attingere rationem veneficii criminum; qud de re lege est haec questio constituta. Itaque mihi certum est hanc eandem distributionem invidise et criminum sic in defensione servare, ut cranes intelligant, nihil me nec subterfugere volnisse reticendo, nec obscurare dicendo ' servations on the danger of judges suffering themselves to be swayed by a popular cry, which often is raised by faction, and directed against the innocent. He acknowledges, that Cluentius had suffered much and long by reproach, on account of what had passed at the former trial; but begs only a patient and attentive hearing, and assures the judges, that he will state every thing relating to that matter so fairly and so clearly, as shall give them entire satisfaction. A great appearance of candour reigns throughout this introduction.
The crimes with which Cluentius was charged, were heinous.
A mother accusing her son, and accusing him of such actions, as having first bribed judges to condemn her husband, and having afterwards poisoned him, were circumstances that naturally raised strong prejudices against Cicero’s client. The first step, therefore, necessary for the orator, was to remove these prejudices; by showing what sort of persons Cluentius’s mother, and her husband Oppianicus, were; and thereby turning the edge of public indignation against them. The nature of the cause rendered this plan altogether proper, and in similar situations it is fit to be imitated. He executes his plan with much eloquence and force; and in doing it, lays open such a scene of infamy and complicated guilt, as gives a shocking picture of the manners of that age; and such as would seem incredible, did not Cicero refer to the proof that was taken in the former trial, of the facts which he alleges.
Sassia, the mother, appears to have been altogether of an abandoned character. Soon after the death of her first husband, the father of Cluentius, she fell in love with Aurius Melinus, a young man of illustrious birth and great fortune, who was married to her own daughter. She prevailed with him to divorce her daughter, and then she married him herself.'* This Melinus being afterwards, by the means of Oppianicus, involved in Sylla’s proscription, and put to death; and Sassia being left, for the second time, a widow, and in a very opulent situation, Oppianicus himself made his addresses to her. She, not startled at the imprudence of the proposal, nor at the thoughts of marrying one, whose hands had been imbrued in her former husband’s blood, objected only, as Cicero says, to Oppiani-cus having two sons by his present wife. Oppianicus removed the objection by having his sons privately despatched; and then, divorcing his wife, the infamous match was concluded between him and Sassia. These flagrant deeds are painted, as we may well believe, with the highest colours of Cicero’s eloquence, which here has a very proper field. Cluentius, as a man of honour, could no longer
* ‘ Lectum ilium genialem quera biennio ante filiae sure mibenti straverat, in e&dem domo sibi ornari et sterni, expulsd atque exturbatd fdid, jubet. Nubit ge nero socrus, nullis auspicibus, funestis ominibus omnium. 0 mulieris scelus incredibile, & prseter hanc unam, in omni vita inauditum! 0 audaciam singulareir non timuisse, si minus vim deorum, hominumque famam, at illam ipsain noctem, facesque illas nuptiales? non limen cubiculi? non cubile filiae? non parietes denique ipsos superiorum testes nuptiarum? perfregit ac prostravit omnia cupiditate &, furore? vicit pudorem libido; timorem audacid; rationem amentid.’ The warmth of Cicero’s eloquence, which this passage beautifully exemplifies, is here fully justified by the subject.
live on any tolerable terms with a woman, a mother only in this name, who had loaded herself and all her family with so much dishonour; and hence the feud which had ever since subsisted between them, and had involved her unfortunate son in so much trouble and persecution. As for Oppianicus, Cicero gives a short history of his life, and a full detail of his crimes; and by what he relates, Oppianicus appears to have been a man daring, fierce, and cruel, insatiable in avarice and ambition; trained and hardened in all the crimes which those turbulent times of Marius and Sylla’s proscriptions produced; ‘Such a man/ says our orator, ‘ as, in place of being surprised that he was condemned, you ought rather to wonder that he had escaped so long.’
And now, having prepared the way by all this narration, which is clear and elegant, he enters on the history of that famous trial, in which his client was charged with corrupting the judges. Both Cluentius and Oppianicus were of the city of Larinum. In a public contest about the rights of the freemen of that city, they had taken opposite sides; which embittered the misunderstanding already subsisting between them. Sassia, now the wife of Oppianicus, pushed him on to the destruction of her son, whom she had long hated, as one who was conscious of her crimes; and, as Cluentius was known to have made no will, they expected, upon his death, to succeed to his fortune. The plan was formed, therefore, to despatch him by poison; which, considering their former conduct, is no incredible part of the story. Cluentius was at that time indisposed: the servant of his physician was to be bribed to give him poison, and one, an intimate friend of Oppianicus, was employed in the negotiation. The servant having made the discovery, Cluentius first prosecuted Scamander, a freedman of Fabricius, in whose custody the poison was found; and afterwards Fabricius, for this attempt upon his life. He prevailed in both actions: and both these persons were condemned by the voices, almost unanimous, of the judges.
Of both these Prejudicial as our author calls them, or previous trials, he gives a very particular account: and rests upon them a great part of his argument, as in neither of them, there was the least charge or suspicion of any attempt to corrupt the judges. But in both these trials, Oppianicus was pointed at plainly; in both, Scamander and Fabricius, were prosecuted as only the instruments and ministers of his cruel designs. As a natural consequence, therefore, Cluen-tius immediately afterwards raised a third prosecution against Oppi-anicus himself, the contriver and author of the whole. It was in this prosecution, that money was said to have been given to the judges, all Rome was filled with the report of it, and the alarm loudly raised that no man’s life or liberty was safe, if such dangerous practices were not checked. By the following arguments, Cicero defends his client against this heavy charge of the Crimen corrupti Judicii.
He reasons first, that there was not the least reason to suspect it, seeing the condemnation of Oppianicus was a direct and necessary consequence of the judgments given against Scamander and Fabricius, in the two former trials; trials that were fair and uncorrupted, to the satisfaction of the whole world. Yet by these, the road was laid clearly open to the detection of Oppianicus’s guilt. His instruments and ministers being once condemned, and by the very same judges too, nothing could be more absurd than to raise a cry about an innocent person being circumvented by bribery, when it was evident, on the contrary, that a guilty person was now brought into judgment, under such circumstances, that unless the judges were altogether inconsistent with themselves, it was impossible for him to be acquitted.
He reasons next, that, if in this trial there were any corruption of the judges by money, it was infinitely more probable, that corruption should have proceeded from Oppianicus than from Cluentius, For setting aside the difference of character between the two men, the one fair, the other flagitious; what motive had Cluentius to try so odious and dangerous an experiment, as that of bribing judges? Was it not much more likely that he should have had recourse to this last remedy, who saw and knew himself, and his cause, to be in the utmost danger, than the other, who had a cause clear in itself, and of the issue of which, in consequence of the two previous sentences given by the same judges, he had full reason to be confident? Was it not much more likely that he should bribe, who had every thing to fear; whose life, and liberty, and fortune, were at stake; than he who had already prevailed in a material part of his charge, and who had no further interest in the issue of the prosecution than as justice was concerned?
In the third place, he asserts it as a certain fact, that Oppianicus did attempt to bribe the judges; that the corruption in this trial, so much complained of, was employed, not by Cluentius, but against him. He calls on Titus Attius, the orator on the opposite side; he challenges him to deny, if he can, or if he dare, that Stalenus, one of the thirty-two Judices Selecti, did receive money from Oppiani-cus; he names the sum that was given; he names the persons that were present, when, after the trial was over, Stalenus was obliged to refund the bribe. This is a strong fact, and would seem quite decisive. But, unluckily, a very cross circumstance occurs here. For this very Stalenus gave his voice to condemn Oppianicus. For this strange incident, Cicero accounts in the following manner: Stale-nus, says he, known to be a worthless man, and accustomed before to the like practices, entered into a treaty with Oppianicus to bring him off, and demanded for that purpose a certain sum, which he undertook to distribute among a competent number of the other judges. When he was once in possession of the money: when he found a greater treasure than ever he had been master of, deposited in his empty and wretched habitation, he became very unwilling to part with any of it to his colleagues; and bethought himself of some means by which he could contrive to keep it all to himself. The scheme which he devised for this purpose, was, to promote the condemnation, instead of the acquittal of Oppianicus; as, from a condemned person, he did not apprehend much danger of being lect. xxviii.] ORATION FOR CLUENTIUS.
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called to account, or being obliged to make restitution. Instead, therefore, of endeavouring to gain any of his colleagues, he irritated such as he had influence with against Oppianicus, by first promising them money in his name, and afterwards telling them that Oppianicus had cheated him.* When sentence was to be pronounced, he had taken measures for being absent himself: but being brought ’s lawyers from another court, and obliged to give his voice, he found it necessary to lead the way in condemning the man whose money he had taken, without fulfilling the bargain which he had made with him.
By these plausible facts and reasonings, the character of Cluentius seems in a great measure cleared; and, what Cicero chiefly intended, the odium thrown upon the adverse party. But a difficult part of the orator’s business still remained. There were several subsequent decisions of the praetor, the censors, and the senate, against the judges in this cause; which all proceeded, or seemed to proceed, upon this ground of bribery and corruption: for it is plain the suspicion prevailed, that if Oppianicus had given money to Stalenus, Cluentius had out-bribed him. To all these decisions, however, Cicero replies with much distinctness and subtilty of argument; though it might be tedious to follow him through all his reasonings on these heads. He shows, that the facts were, at that time, very indistinctly known; that the decisions appealed to were hastily given; that not one of them concluded directly against his client; and that such as they were, they were entirely brought about by the inflammatory and factious harangues of Quinctius, the tribune of the people, who had been the agent and advocate of Oppi-anicus; and who, enraged at the defeat he had sustained, had employed all his tribunitial influence to raise a storm against the judges who condemned his client.
At length, Cicero comes to reason concerning the point of law. The Crimen Corrupti Judicii, or the bribing of judges, was capital. In the famous Lex Cornelia de Sicariis, was contained this, clause (which we find still extant, Pandect, lib. xlviii. tit. 10, § 1.) ‘ Qui judicem corruperit, vel corrumpendum curaverit, hac lege teneatur.’ This clause, however, we learn from Cicero, was restricted to magistrates and senators; and as Cluentius was only of the equestrian order, he was not, even supposing him guilty, within the law. Of this Cicero avails himself doubly; and as he shows here the most masterly address, I shall give a summary of his pleading on this part of the cause: ‘ You,’ says he to the advocate for the prosecutor, ‘ you, T. Attius, I know, had every where given it out, that I
* ‘ Cum esset egens, sumptuosus, audax, callidus, perfidiosus, ct cum dorm suaj, emserrimis in locis, et inanissimis, tantum numraorum positum viderit, ad omuem malitiam et fraudem versare mentem suam coop'd. J)cmne judicibus? mihi igitur, ipsi prader periculum et, infamiam quid queeretur? Siquis cum forte casus ex penculo sripuerit, nonne redendum est? prsecipitantcm igitur impellamus, inquit, et perditurc prosternamus. Capit hoc consilium id pecuniam quihusclam judicibus lcvissimis polliceatur, deinde earn postca supprimat; ut quoniain graves homines suA sponte sfever& judicatures putabat, hos qui leviores erant, destitutione iratos Gppianico redderet ’
was to defend my client, not from facts, not upon the footing of innocence, but by taking advantage merely of the law in his behalf Have I done so? I appeal to yourself. Have I sought to cover him behind a legal defence only? On the contrary, have I not pleaded his cause as if he had been a senator, liable, by the Cornelian law, to be capitally convicted; and shown, that neither proof nor probable presumption lies against his innocence? In doing so, I must acquaint you, that I have complied with the desire of Cluen tius himself. For when he first consulted me in this cause, and when I informed him that it was clear no action could be brought against him from the Cornelian law, he instantly besought and obtested me, that I would not rest his defence on that ground; saying, with tears in his eyes, that his reputation was as dear to him as his life; and that what he sought, as an innocent man, was not only to be absolved from any penalty, but to be acquitted in the opinion of all his fellow citizens.
‘ Hitherto, then, I have pleaded this cause upon his plan. But my client must forgive me, if now I shall plead it upon my own. For I should be wanting to myself, and to that regard which my character and station require me to bear to the laws of the state, if I should allow any person to be judged of by a law which does not bind him. You, Attius, indeed, have told us, that it was a scandal and reproach, that a Roman knight should be exempted from those penalties to which a senator, for corrupting judges, is liable. But I must tell you, that it would be a much greater reproach, in a state that is regulated by law, to depart from the law. What safety have any of us in our persons, what security for our rights, if the law shall be set aside? By what title do you, Q. Naso, sit in that chair, and preside in this judgment? By what right, T. Attius, do you accuse, or do I defend? Whence all the solemnity and pomp of judges, and clerks, and officers, of which this house is full? Does not all proceed from the law, which regulates the whole departments of the state, which, as a common bond, holds its members together; and, like the soul within the body, actuates and directs all the public functions ?* On what ground, then, dare you speak lightly of the law, or move that, in a criminal trial, judges should advance one step beyond what it permits them to go? The wisdom of our ancestors has found, that, as senators and magistrates enjoy higher dignities, and greater advantages than other members of the state, the law should also, with regard to them, be more strict, and the purity and uncorruptedness of their morals be guarded by more severe sanctions.
* Ait Attius, indignum esse facinus, si senator Judicio quenquam circumvenerit, eum legibus teneri: si Eques Romanos hoc idem fecerit, eum non teneri. Ut tibi concedam hoc indignum esse, tu mihi concedas necesse est multe esse indignius, in e'X civitate quae legibus contineatur, discedi a legibus. Hoc nam vinculum est hujus dig* nitatis qu& fruimur in republic. Hoc fundamentum libertatis; hie Tons equitatis; mens et animus, et consiliwm, et sententia civitatis posita est in legibus. Ut corpora nostra sine mente, sic civitas sine lege, suis partibus, ut nervis ac sanguine h membris, iti non potest. Legum ministri, magistratus; legum interpretes, judices; legum do aique idcirco omnes sumus servi, ut liberi esse possimus; Quid est, Q. Naso, cur tu La hoc loco sedeas ?. &©
J But if it be your pleasure that this institution should be altered, if you wish to have the Cornelian law, concerning bribery, extended to all ranks, then let us join, not in violating the law, but in proposing to have this alteration made by a new law. My client, Cluentius, will be the foremost in this measure, who now, while the old law subsists, rejected its defence, and required his cause to be pleaded, as if he had been bound by it. But, though he would not avail himself of the law, you are bound in justice not to stretch it beyond its proper limits.5
Such is the reasoning of Cicero on this head; eloquent surely, and strong. As his manner is diffuse, I have greatly abridged i: from the original, but have endeavoured to retain its force.
In the latter part of the oration, Cicero treats of the other accusation that was brought against Cluentius, of having poisoned Oppianicus. On this, it appears, his accusers themselves laid small stress; having placed their chief hope in overwhelming Cluentius with the odium of bribery in the former trial; and therefore, on this part of the cause, Cicero does not dwell long. He shows the improbability of the whole tale which they related concerning this pretended poisoning, and makes it appear to be altogether destitute of any shadow of proof.
Nothing, therefore, remains, but the peroration or conclusion of the whole. In this, as indeed throughout the whole of this oration. Cicero is uncommonly chaste; and, in the midst of much warmth and earnestness, keeps clear of turgid declamation. The peroration turns on two points; the indignation which the character and conduct of Sassia ought to excite, and the compassion due to a son persecuted through his whole life by such a mother. He recapitulates the crimes of Sassia; her lewdness, her violation of every decorum; her incestuous marriages, her violence and cruelty. He places, in the most odious light, the eagerness and fury which she had shown in the suit she was carrying on against her son; describes her journey from Larinum to Rome, with a train of attendants, and a great store of money, that she might employ every method for circumventing and oppressing him in this trial; while, in the whole course of her journey, she was so detested, as to make a solitude wherever she lodged; she was shunned and avoided by all; her company and her very looks were reckoned contagious; the house was deemed polluted which was entered into by so abandoned a woman.* To this he opposes the character of Cluentius, fair, un
* ‘ Cum appropinqnare hujus judicium ei nuntiatum est, confestim hue adolavit, nc aut aceusatoribus diligentia, aut pecmj»a testibus deesset; aut ne forte mater hoc sibi optatissimum spectaculum hujus sordium atque luctus, et tanti squaloris araitteret. Jam vero quod iter Tiomam hujus mulieris fuisse existimatis? Quod ego propter vici-nitaiem Aquinatium ct Venafranorum ex multis comperi: quos concursus in his oppidis? Quantos et virorum et mulierum gemitus esse factos? Mulierem quandam Larino, atque illam usque a mari supero Romara proficisci cum magno comitatu et pecuniA, quo facilius circumvenire judicio capitis, atque opprimere (ilium posset. Nemo erat i'ilorum, poene dicam, quin expiandum ilium locum esse arbitraretur quacunque ilia iter fecisset; nemo, quin terrain ipsam violari, quae mater est omnium, vestigiis con-scleratse matris putaret. Itaque nullo in. oppido consistfendi ei potestas fuit, nemo ea tot hospitibus inventus est qui non contagionem aspect&J fugeret.’
spotted, and respectable. He produces the testimonies of the magistrates of Larinum in his favour, given in the most ample and honourable manner by a public decree, and supported by a great concourse of the most noted inhabitants, who were now present to second every thing that Cicero could say in favour of Cluentius.
‘Wherefore, judges,’ he concludes, ‘if you abominate crimes, stop the triumph of this impious woman; prevent this most unnatural mother from rejoicing in her son’s blood. If you love virtue and worth, relieve this unfortunate man, who, for so many years, has been exposed to most unjust reproach through the calumnies raised against him by Sassia, Oppianicus, and all their adherents. Better far had it been for him, to have ended his days at once by the poison which Oppianicus had prepared for him, than to have escaped those snares, if he must still be oppressed by an odium which I have shown to be so unjust. But in you he trusts, in your clemency, and your equity, that now, on a full and fair hearing of this cause, you will restore him to his honour; you will restore him to his friends and fellow-citizens, of whose zeal and high estimation of him you have seen such strong proofs; and will show, by your decision, that though faction and calumny may reign for a while in popular meetings and harangues, in trial and judgment, regard is paid to the truth only.’
I have given only a skeleton of this oration of Cicero. What I principally aimed at, was to show his disposition and method; his arrangement of facts, and the conduct and force of some of his main arguments. But, in order to have a full view of the subject, and of the art with which the orator manages it, recourse must be had to the original. Few of Cicero’s orations contain a greater variety of facts and argumentations, which renders it difficult to analyze it fully. But for this reason I chose it, as an excellent example of managing at the bar, a complex and intricate cause, with order, elegance, and force.