John Davies looks at the working life of Rome’s finest advocate.
In the United States law is always a post-graduate qualification; its students must first gain a degree in the liberal arts. Sir Walter Scott, himself no stranger to the legal profession, once observed: ‘A lawyer without history or literature is a mechanic, a mere working mason: if he possess some knowledge of these, he may venture to call himself an architect.’ Cicero would have agreed; no one understood better the delicate balance the advocate must achieve between art and logic, if he is to succeed. The necessary medium of law being language, eloquence and the ability to persuade are the sine qua non of the advocate. The majority of his published speeches were heard in the open air in the Forum. In these great public trials the activities of the advocate and of the politician were often intertwined. We need to put ourselves in his position on one of these occasions: his regular audience would number over a hundred : the jury (known as iudices), the presiding magistrate, usually a praetor, prosecutors, the defendant with his counsel and supporters, those assisting counsel on either side, and the witnesses. But this leaves out the crowd of spectators which surrounded the court and expected to hear every word. Once Cicero was defending a man on a murder charge and the trial had such political significance that the court was surrounded by Pompey’s soldiers. Cicero gave up his defence in the first half hour, unable to cope with the intimidation. So we should think in terms of an arena as much as a court of law.
Cicero was no coward, though. Early in his career he prosecuted one of the most powerful aristocrats in Rome for his corrupt governorship of Sicily, and he won his case. This was all the more impressive as he was himself not part of the inner circle in the senate but a man from an obscure provincial town, and no one in his family had ever held public office at Rome. Advocacy at Rome in the late Republic was not, in the modern sense, a profession. It was not (at least officially) a way of making a living. Unsalaried the advocate may have been, but hardly unrewarded for his services. We know that Cicero once received a substantial loan from a grateful client which he used to help him purchase a house on the exclusive Palatine Hill. We can, I think, speak of a Roman ‘Bar’. Anyone wishing to practise had to be introduced at the outset of his career by someone who had held the office of consul—and certainly in Cicero’s time the fledgling advocate would have spent some time attached as a ‘pupil’ to a prominent practitioner. Such a pupil was Marcus Caelius, who learned from Cicero himself and won several cases on the strength of it. Something of a playboy, he chose to end an affair with a married woman from one of the noblest families in Rome. Her revenge was to have Caelius prosecuted for murder on a fabricated charge. Cicero defended him successfully and ruined the woman’s reputation in the process. This famous speech, the Pro Caelio, shows how important were the advocate’s own personality and his authority as a means of persuasion. Cicero puts on his best avuncular manner in defending Caelius, at times sounding more like a character witness than an advocate but getting away with it because of his brilliant performance.
We are used to hearing questions about the morality of advocacy. It is an old complaint going back (at least) to Swift’s notorious remark in Gulliver’s Travels that ‘advocates defend the guilty and attack the innocent, according to how they are paid’. This is, of course, the popular caricature and far from the truth. The best riposte by far is that of Dr Johnson: ‘A lawyer has no business with the justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge.’ The Roman Bar did not lack an ethical basis. Cicero says at one point that a defence advocate should be prepared to offer his services to a guilty client but he adds the important qualification that the defendant ‘is not an immoral or wicked person’. If he misleads the court, a modern barrister risks disciplinary proceedings; all a Roman advocate risked was exposure as a liar. Cicero is alleged to have said once to friends that he had ‘thrown dust in the eyes of the jury’, which is usually taken to mean he had deliberately misled them into letting his client go free. But, if he did say this, might it not have been a piece of light-hearted self deprecation, entirely in his manner, after winning a difficult case? Mainly, it seems that Roman advocates were expected to accept the cases they were offered, though Cicero makes it clear that he believed a defence brief might at times be honourably refused. Another remark of his rings true. This is that an advocate could perhaps be forgiven for refusing a brief, but not for showing carelessness in defending a client. My understanding of his position is that it does not differ much from that of modern advocates: they must not lie but rather put forward plausible arguments on the evidence before the court. An independent assessment of the truth is not for the advocate to reach but rather for the judge and jury. The position is summed up pretty well by Quintilian, the first professor of rhetoric at Rome, who lived a hundred years after Cicero and regarded him as the greatest of orators. The good advocate, he says, will not plead causes if he knows them to be unjust: ‘He will not open up the safe harbour of his eloquence to pirates’. Sometimes it is as hard a task to defend the innocent as it is to defend the guilty. If he is snowed under with work in a case, the advocate should give priority to those cases in which litigants are persons of good character; he shouldn’t make it a principle to support the powerful against the weak. As to fees and bargaining with clients, ideally these should be avoided, though there is nothing wrong with allowing a client to express his gratitude in tangible form.
A few words on the Roman courts. Most of Cicero’s major cases were heard by a panel of jurors under the presidency of a magistrate. These panels ranged in number from about thirty to over seventy. Neither the presiding magistrate nor the jurors were necessarily experts in the law, and in major trials panels were drawn from the aristocracy. However, when Cicero was 36 years old, the principle was established that a third of the jury in a criminal court should be senators, a third equestrian, the property rank below senators, and a third tribuni aerarii, men less wealthy than equestrians. Cicero had at times to plead before an entirely senatorial jury and he had to allow for what he knew of their inclinations. But after 70 BC when this law came into effect, an advocate had to use arguments a layman would understand, as well as those trained in the law. Cicero, as a senator himself from 70 BC onwards, would know some of the individual jurors personally and would be able to take account of their likes and dislikes. What happened in court could not have been simpler: opening speech or speeches for the prosecution, reply by the defence, then the examination of witnesses on both sides. After this the court went straight to a vote. There were no closing speeches, no summing up, no time officially allocated for deliberation, just an immediate vote by the jurors, no doubt influenced by the surrounding crowd of listeners, with a simple majority deciding matters. As in Scottish law, it was possible to reach a third verdict of non liquet or ‘not proven’.
I suggested earlier that these trials resembled theatre. Advocates certainly had to play to the crowd as well as to convince the jury. Cicero was famous for his wit and ability to make his audience laugh, usually at the expense of his opponent. If you were a defendant, you were liable to have your whole life revealed in tabloid detail, and there were no rules against attacks on past character. We never hear of an advocate being interrupted for irrelevance. Also permitted were shameless appeals to sympathy; a defendant would appear in mourning, unkempt and dirty, along with family and relatives similarly dressed. Some witnesses preferred to give their evidence as a written deposition, to avoid being subjected to verbal abuse thinly disguised as questioning. Advocates on either side could speak virtually without restriction, and it seems that courts were very interested in questions of general character as well as guilt and innocence, not unlike modern jurors, however much they are warned against this by the judge. Cicero was so successful because he had talent and also worked very hard. When civil wars disrupted the court system in the 80s BC his legal initiation was delayed a few years but he used these to concentrate on his studies and so to come to the Forum fully trained. From then on he was in constant demand in the courts, unless he was away from Rome, as when a bout of bad health caused him to escape to Greece to recuperate and to refine his rhetorical skills. For strong lungs and physical fitness were needed by a good orator. Background noise was a constant problem and delivery (pronuntiatio) was of paramount importance, as the great Demosthenes had insisted two centuries earlier. Cicero continued to appear in court even in the busy year of his consulship; he saw a connection between his life in the courts and his political career. Few of his contemporaries would have questioned this.
Some further weapons in his armoury are worth noting. Cicero had read Aristotle on rhetoric and what he had to say on ethos and pathos. By ethos he meant the speaker’s presentation of his client’s character, but for Cicero this had to be widened: there was the advocate’s own character, as well as that of the client, to consider; also the opportunity to destroy the credibility of the prosecutor or of a hostile witness. At this he had no equal. By pathos was meant the appeal to the emotions and here, too, he reigned supreme. One thinks of Caesar changing colour and dropping his papers while listening to Cicero’s defence of Ligarius, or of Clodia having to endure the scathing criticism of her stern ancestor, conjured up from the grave and impersonated by Cicero himself as a figure of scandalised rectitude. Such histrionics (as we might call them) were not just tolerated but heartily enjoyed by Cicero’s listeners. It was the fashion of the time. He used irony and humour to great effect; and also ridicule, which always serves a purpose. Two examples are the way he sends up Cato’s Stoic philosophy in his defence of Murena and the way he compares the prosecutor in his defence of Roscius to the geese that guarded the Capitol. But Cicero knew that he had to be far more than a stand-up comic, however much the courts resembled theatre.
No one had a better knowledge of the law or of the principles of rhetoric as formulated by the Greeks. Few advocates can have worked harder or learned so well from mistakes. Few can have struck so fine a balance between knowledge and eloquence. The attention he paid to legal argumentation suggests strongly that the Roman lawcourts could assess legal argument intelligently, despite the attractions caused by emotive advocates and the often rowdy environment in which they worked. Cicero had no compunctions about using his powers of rhetoric to entice a jury into seeing things his way. It was the accepted modus operandi of his day and reflected a culture different from that of the modern lawcourt. The Forum was a battle-ground, often of violence and intimidation, and this was the background to the practice of the law by advocates. Political activity had its own armoury and this included the lawcourts, where in many ways no holds were barred. Cicero had a strong sense of justice and from an early time in his career he showed a willingness to put his personal safety at risk to defend a cause if he felt it was right.
This was never more in evidence than when he decided to attack Mark Antony the friend of Caesar at the end of his career in a series of political speeches, because he saw him as a threat to Roman decency and liberty. Cicero had relied upon the support of the young Octavian, the future emperor Augustus, but he miscalculated and found himself at the top of Antony’s proscription list, agreed on by the same Octavian. He was killed by Antony’s soldiers, who had also been instructed to cut off his head and hands. These were displayed on the speakers’ platform in the Forum as a grisly reminder of the dangers of eloquence. Antony’s wife stuck one of her hairpins into Cicero’s tongue, which had insulted her husband so memorably, and all Rome was left to ponder on the fate of its most accomplished orator.
John Davie is a lecturer at Trinity College Oxford, having been Head of Classics at St Paul’s School. He has published translations of Euripides, Seneca and Horace and his translation of Cicero’s ‘On Life and Death’ was published by Oxford World’s Classics last year (reviewed by Marion Gibbs at: https://classicsforall.org.uk/book-reviews/cicero-life-death/).