persons of my own rank might be found guilty of it. But he immediately began to pray and beseech me not to defend him by taking the point of law. When I had reasoned with him at some length, he induced me to adopt his view; for he declared with tears, that he was not more anxious to retain his civic rights than his reputation and character. I therefore complied with his request, but for this reason, (for I by no means ought to do so on all occasions,) because I saw that, without resorting to the legal objection, there was a complete defence upon the merits. I perceived that my client would come off with more honour if I defended him as I have done, though there would be less trouble and difficulty, if I took the objection of which he was unwilling that I should avail myself; for if my only object had been to get the verdict in this case, I should have contented myself with simply citing the law, and immediately have sat down." He then, however, grapples with the argument of Attius, the counsel on the other side, that it would be a disgraceful incongruity that a senator should be amenable to the particular law in question, but not one of the equestrian order like Cluentius. "Admitting it were so," he says, "you must allow that it would be much more disgraceful not to abide by the law, for this is the support of the rank which we enjoy in the commonwealth, this the foundation of liberty, this the fountain of equity. The mind, the soul, the will, the counsels of the state consist in the laws. As bodies cannot use their limbs and sinews without a soul, so is the state powerless without the law. The ministers of the law are the magistrates, the interpreters of the law the judges, and to this end are we all the servants of the law, that we may thereby be free."

1 Pro Cluentio, c. 53.

CH. IV.]

CICERO CROSS-EXAMINING.

127

Another instance may be taken from Cicero's advice as to the mode of dealing with a witness. He quite understood the danger of putting too many questions in cross-examination, which often has the effect of rivetting the unfavourable impression already produced by the examination in chief. The following passage from his speech in defence of Fonteius, contains hints which might be useful for Nisi Prius practice at the present day. "It is my duty as counsel to put a question or two, and that briefly, to a witness, when examining to any particular fact; and often to abstain from putting any questions at all, lest I should give an adverse witness an opportunity of damaging my case, or seem to put leading questions to a willing one."1

It would excite no little laughter now-a-days to see an advocate setting out for Westminster Hall, attended by a long train of clients and admiring friends, and escorted to his home after the labours of the day amidst their congratulations and applause. Yet this was the ordinary case at Rome, where, as it was the usual custom to appear in public with a crowd of parasites and retainers, such marks of popularity occasioned no surprise. But even in cold and decorous England one instance at least of this enthusiasm has been known. After the trials of Hardy, Horne Tooke, and Thelwall, and their triumphant acquittals through the splendid advocacy of Erskine, his horses were taken from his carriage, and he was drawn home by the mob with tumultuous cheers.2

Ne aut irato facultas ad dicendum data, aut cupido auctoritas attributa esse videatur.-pro Fonteio, c. 6.

2 It is said that the patriotic friends who took the horses out of the carriage, forgot to return them.

CHAPTER V.

SOME ACCOUNT OF THE ADVOCATES OF ROME
DURING THE REPUBLIC.

As when of old, some orator renown'd,

In Athens or free Rome, where eloquence

Flourish'd, since mute, to some great cause address'd,
Stood in himself collected.

1

MILTON.

IN inquiring into the history of Advocacy at Rome, we need not ascend higher than the time of Marc Cato, the censor. Previously to him, no name adorns her forensic annals; and oratory was scarcely known. A peculiar kind of public speaking had indeed been cultivated there from the earliest times of the commonwealth, -that of funeral orations 2; some of which, like that pronounced by the great Fabius over his son 3, and that by Q. Metellus over his father, were read and admired at Rome in the days of the Cæsars. But we must not be deluded by a name, or imagine that if time had spared to us these oraisons funèbres of the ancient Romans, we should have found in them anything to compare with the speech of Pericles, as given by Thucydides, or the eloquent harangues of Bossuet.

We hear of a few men whose memory was cherished

1 Ellendt, Hist. Rom. Eloq.

2 Dion. Hal. v. 17. Plut. Popl. 9.

3 Cic. Cat. 4. 12.

Plin. Hist. Nat. vii. 43, 44. With the exception of a fragment of the speech delivered by Metellus, which may still be read in Pliny, no specimen of this more early kind of Roman oratory remains.

1

129

by their countrymen as having been the orators of bygone days; but their speeches were not those of advocates addressing legal tribunals, but appeals to the multitude; and of many of these Cicero admits that there was no authentic tradition, that they possessed any of the charms of eloquence, his expression being "tantummodo conjecturâ ducor ad suspicandum." Such were Menenius the dictator, to whom was attributed that famous apologue which, according to popular belief, had the effect of quelling the insurrection of the commons when they had quitted Rome, and taken their stand on the Sacred Hill2, and Fabricius, and Popilius, and Curius Dentatus, and Fabius Maximus, and Appius Claudius.

"3

the people,” and But no fragment

The first, whose reputation for eloquence rested upon positive testimony, was Cornelius Cethegus, consul in the second Punic war, nearly a century and a half before the consulship of Cicero. Of him the poet Ennius sang as "the flower of all "the orator with the silver tongue.' of his speeches was preserved, even in the time of Cicero, and the verses of Ennius were then the only record of of his fame. The rigid simplicity of legal forms amongst the Romans in the early ages of the republic afforded little scope for the efforts of an advocate, for actions were then determined with all the strictness which characterises the system of special pleading in the English law. 4

1 Brut. 14.

2

Livy, ii. 32. Cic. Brut. 14. Cicero attributes this to Valerius, but it is a curious fact that when referring to past events, Cicero everywhere follows totally different annals from Livy. See Niebuhr, Hist. of Rome, i. 534. 3" Flos delibatus populi : 'suaviloquenti ore. Cic. Brut. 15.

66

There is some amusing ridicule thrown

4 See Gaius, Instit. iv. § 12. upon this precise technicality, quæ tota ex rebus fictis commentitiisque constaret, in Cicero's speech in defence of Murena, cap. 12.

We are so much in the habit of regarding Cato as the stern moralist and censor of Rome, that we are at first surprised when we discover that he was one of her most gifted advocates. If we may credit the testimony of antiquity, he was an eloquent orator, a profound lawyer, and a great writer. We think of him only as the living type of the old Roman severity of manners, struggling alone against the tide of innovation, and fearing not to attack the noblest and most powerful citizens if they yielded to the corruption of the times. In this spirit of inflexible virtue he denounced Minucius the consul, and robbed him of his anticipated triumph 2; and Veturius, whom he deprived of his Equestrian rank 3 ; and Galba, against whom, for a base and perfidious act of treachery towards the Lusitanians, many thousands of whom he massacred, after betraying them into a pretended negotiation for peace, he launched the terrors of his invective when bending under the weight of fourscore years. We can scarcely believe that he was one of the most accomplished men of letters, of whom Rome can boast, when we recollect his hostility to the introduction of Greek philosophy. Greece, however, had her revenge; and in his old age, Cato betook himself to the study of her language and literature, which he had before affected to despise. I say affected, for we may well believe that his contempt was not genuine. It was because he dreaded the effect which the degraded and effeminate manners of the Greeks, in his day, might have upon his countrymen, that he opposed all intercourse between them; and not because he was insensible

Cic. de Orat. i. 37. Liv. xxxix. 40.

2 Liv. xxxvii. 46. Aul. Gell. x. 3.; xiii. 24.

3 Festus in voc. Stata Sacrificia.

Cic. Brut. 23.; pro Murena, 28. Suet. Galb. 3.