A few months, however, before his death, which happened in 703, he pleaded for his nephew, Messala, who was accused of illegal canvassing, and who was acquitted, more in consequence of the astonishing exertions of his advocate, than the justice of his cause. So unfavourable, indeed, was his case esteemed, that however much the speech of Hortensius had been admired, he was received on entering the theatre of Curio on the following day, with loud clamour and hisses, which were the more remarked, as he had never met with similar [pg 128]treatment in the whole course of his forensic career278. The speech, however, revived all the ancient admiration of the public for his oratorical talents, and convinced them, that had he always possessed the same perseverance as Cicero, he would not have ranked second to that orator. Another of his most celebrated harangues was that against the Manilian law, which vested Pompey with such extraordinary powers, and was so warmly supported by Cicero. That against the sumptuary law proposed by Crassus and Pompey, in the year 683, which tended to restrain the indulgence of his own taste, was well adapted to Hortensius’ style of eloquence; and his speech was highly characteristic of his disposition and habits of life. He declaimed, at great length, on the glory of Rome, which required splendour in the mode of living followed by its citizens279. He frequently glanced at the luxury of the Consuls themselves, and forced them at length, by his eloquence and sarcastic declamation, to relinquish their scheme of domestic retrenchment.

The speeches of Hortensius, it has been already mentioned, lost part of their effect by the orator’s advance in years, but they suffered still more by being transferred to paper. As his chief excellence consisted in action and delivery, his writings were much inferior to what was expected from the high fame he had enjoyed; and, accordingly, after death, he retained little of that esteem, which he had so abundantly possessed during his life280. Although, therefore, his orations had been preserved, they would have given us but an imperfect idea of the eloquence of Hortensius; but even this aid has been denied us, and we must, therefore, now chiefly trust for his oratorical character to the opinion of his great but unprejudiced rival. The friendship and honourable competition of Hortensius and Cicero, present an agreeable contrast to the animosities of Æschines and Demosthenes, the two great orators of Greece. It was by means of Hortensius that Cicero was chosen one of the college of Augurs—a service of which his gratified vanity ever appears to have retained an agreeable recollection. In a few of his letters, indeed, written during the despondency of his exile, he hints a suspicion that Hortensius had been instrumental in his banishment, with a view of engrossing to himself the whole glory of the bar281; but this mistrust ended with his recall, which Hortensius, though originally he had advised him to yield to the storm, urged on with all the influence of which he was possessed. Hortensius also appears to have been free from every feeling of jealousy or envy, which in him was still [pg 129]more creditable, as his rival was younger than himself, and yet ultimately forced him from the supremacy. Such having been their sentiments of mutual esteem, Cicero has done his oratoric talents ample justice—representing him as endued with almost all the qualities necessary to form a distinguished speaker. His imagination was fertile—his voice was sweet and harmonious—his demeanour dignified—his language rich and elegant—his acquaintance with literature extensive. So prodigious was his memory, that, without the aid of writing, he recollected every word he had meditated, and every sentence of his adversary’s oration, even to the titles and documents brought forward to support the case against him—a faculty which greatly aided his peculiarly happy art of recapitulating the substance of what had been said by his antagonists or by himself282. He also originally possessed an indefatigable application; and scarcely a day passed in which he did not speak in the Forum, or exercise himself in forensic studies or preparation. But, of all the various arts of oratory, he most remarkably excelled in a happy and perspicuous arrangement of his subject. Cicero only reproaches him, and that but slightly, with showing more study and art in his gestures than was suitable for an orator. It appears, however, from Macrobius, that he was much ridiculed by his contemporaries, on account of his affected gestures. In pleading, his hands were constantly in motion, whence he was often attacked by his adversaries in the Forum for resembling an actor; and, on one occasion, he received from his opponent the appellation of Dionysia, which was the name of a celebrated dancing girl283. Æsop and Roscius frequently attended his pleadings, to catch his gestures, and imitate them on the stage284. Such, indeed, was his exertion in action, that it was commonly said that it could not be determined whether people went to hear or to see him285. Like Demosthenes, he chose and put on his dress with the most studied care and neatness. He is said, not only to have prepared his attitudes, but also to have adjusted the plaits of his gown before a mirror, when about to issue forth to the Forum; and to have taken no less care in arranging them, than in moulding the periods of his discourse. He so tucked up his gown, that the folds did not fall by chance, but were form[pg 130]ed with great care, by means of a knot artfully tied, and concealed in the plies of his robe, which apparently flowed carelessly around him286. Macrobius also records a story of his instituting an action of damages against a person who had jostled him, while walking in this elaborate dress, and had ruffled his toga, when he was about to appear in public with his drapery adjusted according to the happiest arrangement287—an anecdote, which, whether true or false, shows, by its currency, the opinion entertained of his finical attention to everything that concerned the elegance of his attire, or the gracefulness of his figure and attitudes. He also bathed himself in odoriferous waters, and daily perfumed himself with the most precious essences288. This too minute attention to his person, and to gesticulation, appears to have been the sole blemish in his oratorical character; and the only stain on his moral conduct, was his practice of corrupting the judges of the causes in which he was employed—a practice which must be, in a great measure, imputed to the defects of the judicial system at Rome; for, whatever might be the excellence of the Roman laws, nothing could be worse than the procedure under which they were administered289.

Hortensius has received more justice from Cicero than another orator, Licinius Calvus, who, for a few years, was also considered as his rival in eloquence. Calvus has already been mentioned as an elegant poet; but Seneca calls his competition with Cicero in oratory, iniquissimam litem. His style of speaking was directly the reverse of that of Hortensius: he affected the Attic taste in eloquence, such as it appeared in what he conceived to be its purest form—the orations of Lysias. Hence that correct and slender delicacy at which he so studiously aimed, and which he conducted with great skill and elegance; but, from being too much afraid of the faults of redundance and unsuitable ornament, he refined and attenuated his discourse till it lost its raciness and spirit. He compensated, however, for his sterility of language, and diminutive figure, by his force of elocution, and vivacity of action. “I have met with persons,” says Quintilian, “who preferred Calvus to all our orators; and others who were of opinion, that the too great rigour which he exercised on himself, in point of precision, had debilitated his oratorical talents. Nevertheless, his speeches, though chaste, grave, and correct, are frequently also vehement. His taste of writing was Attic; and his untimely death was an injury to his reputation, if he designed to add to his compositions, and not to retrench them.” His most celebrated oration, which was against the unpopular Vatinius, was delivered at the age of twenty. The person whom he accused, overpowered and alarmed, interrupted him, by exclaiming to the judges, “Must I be condemned because he is eloquent?” The applause he obtained in this case may be judged of from what is mentioned by Catullus, of some one in the crowd clapping his hands in the middle of his speech, and exclaiming, “O what an eloquent little darling290!” Calvus survived only ten years after this period, [pg 132]having died at the early age of thirty. He left behind him twenty-one books of orations, which are said to have been much studied by the younger Pliny, and were the models he first imitated291.

Calvus, though a much younger man than Cicero, died many years before him, and previous to the composition of the dialogue Brutus. Most of the other contemporaries, whom Cicero records in that treatise on celebrated orators, were dead also. Among an infinite variety of others, he particularly mentions Marcus Crassus, the wealthy triumvir, who perished in the ill-fated expedition against the Parthians; and who, though possessed but of moderate learning and capacity, was accounted, in consequence of his industry and popular arts, among the chief forensic patrons. His language was pure, and his subject well arranged; but in his harangues there were none of the lights and flowers of eloquence,—all things were expressed in the same manner, and the same tone.

Towards the conclusion of the dialogue, Cicero mentions so many of his predeceased contemporaries, that Atticus remarks, that he is drawing up the dregs of oratory. Calidius, indeed, seems the only other speaker who merits distinguished notice. He is characterized as different from all other orators,—such was the soft and polished language in which he arrayed his exquisitely delicate sentiments. Nothing could be more easy, pliable, and ductile, than the turn of his periods; his words flowed like a pure and limpid stream, without anything hard or muddy to impede or pollute their course; his action was genteel, his mode of address sober and calm, his arrangement the perfection of art. “The three great objects of an orator,” says Cicero, while discussing the merits of Calidius, “are to instruct, delight, and move. Two of these he admirably accomplished. He rendered the most abstruse subject clear by illustration, and enchained the minds of his hearers with delight. But the third praise of moving and exciting the soul must be denied him; he had no force, pathos, or animation292.” Such, indeed, was his want of emotion, where it was most appropriate, and most to be expected, that, while pleading his own cause against Q. Gallius for an attempt to poison him, though he stated his case with elegance and perspicuity, yet it was so smoothly and listlessly detailed, that Cicero, who spoke for the person accused, argued, that the charge must be false and an invention of his own, as no one could talk so calmly, and with such indifference, of a recent attempt which threatened his own existence293.

The laws of the first six kings of Rome, called the Leges Regiæ, chiefly related to sacred subjects,—regulations of police,—divisions of the different orders in the state,—and privileges of the people. Tarquinius Superbus having laid a plan for the establishment of despotism at Rome, attempted to abolish every law of his predecessors which imposed control on the royal prerogative. About the time of his expulsion294, the Senate and people, believing that the disregard of the laws was occasioned by their never having been reduced in writing, determined to have them assembled and recorded in one volume; and this task was intrusted by them to Sextus Papyrius, a patrician. Papyrius accordingly collected, with great assiduity, all the laws of the monarchs who had governed Rome previously to the time of Tarquin. This collection, which is sometimes called the Leges Regiæ, and sometimes the Papyrian Code, did not obtain that confirmation and permanence which might have been expected. Many of the Leges Regiæ were the result of momentary emergencies, and inapplicable to future circumstances. Being the ordinances, too, of a detested race, and being in some respects but ill adapted to the genius and temper of a republican government, a great number of them soon fell into desuetude295. The new laws promulgated immediately after the expulsion of the kings, related more to those constitutional modifications which were rendered necessary by so important a revolution, than to the civil rights of the citizen. In consequence of the dissensions of the patricians and plebeians, every Senatusconsultum proceeding from the deliberations of the Senate was negatived by the veto of the Tribunes, while the Senate, in return, disowned the authority of the Plebiscita, and denied the right of the Tribunes to propose laws. There was thus a sort of legal interregnum at Rome; at least, there were no fixed rules to which all classes were equally subjected: and the great body [pg 134]of the people were too often the victims of the pride of the patricians and tyranny of the consular government. In this situation, C. Terentius Arsa brought forward the law known by the name of Terentilla, of which the object was the election by the people of ten persons, who should compose and arrange a body of laws for the administration of public affairs, as well as decision of the civil rights of individuals according to established rules. The Senate, who maintained that the dispensation of justice was solely vested in the supreme magistrates, contrived, for five years, to postpone execution of this salutary measure; but it was at length agreed, that, as a preparatory step, and before the creation of the Decemvirs, who were to form this code, three deputies should be sent to Greece, and the Greek towns of Italy, to select such enactments as they might consider best adapted to the manners and customs of the Roman people.

The delegates, who departed on this embassy towards the close of the year 300, were occupied two years in their important mission. From what cities of Greece, or Magna Græcia, they chiefly borrowed their laws, has been a topic of much discussion, and seems to be still involved in much uncertainty296; though Athens is most usually considered as having been the great fountain of their legislation.

On the return of the deputies to Rome, the office of Consul was suppressed, and ten magistrates, called Decemvirs, among whom these deputies were included, were immediately created. To them was confided the care of digesting the prodigious mass of laws which had been brought from Greece. This task they accomplished with the aid of Hermodorus, an exile of Ephesus, who then happened to be at Rome, and acted as their interpreter. But although the importation from Greece formed the chief part of the twelve tables, it cannot be supposed that the ancient laws of Rome were entirely superseded. Some of the Leges Regiæ, which had no reference to monarchical government, as the laws of Romulus, concerning the Patria potestas, those concerning parricides, the removal of landmarks, and insolvent debtors, had, by tacit consent, passed into consuetudinary law; and all those which were still in observance were incorporated in the Decemviral Code; in the same manner as the institutions of the heroic ages of Greece formed a part of the laws of Solon and Lycurgus.

Before a year had elapsed from the date of their creation, the Decemvirs had prepared ten books of laws; which, being [pg 135]engraved on wooden or ivory tables, were presented to the people, and received the sanction of the Senate, and ratification of the Comitia Centuriata. Two supplementary tables were soon afterwards added, in consequence of some omissions which were observed and pointed out to the Decemvirs. In all these tables the laws were briefly expressed. The first eight related to matters of private right, the ninth to those of public, and the tenth to those of religious concern. These ten tables established very equitable rules for all different ranks, without distinction; but in the two supplemental tables some invidious distinctions were introduced, and many exclusive privileges conferred on the patricians.

On the whole, the Decemvirs appear to have been very well versed in the science of legislation. Those who, like Cicero297 and Tacitus, possessed the Twelve Tables complete, and who were the most competent judges of how far they were adapted to the circumstances and manners of the people, have highly commended the wisdom of these laws. Modern detractors have chiefly objected to the sanguinary punishments they inflicted, the principles of the law of retaliation which they recognized, and the barbarous privileges permitted to creditors on the persons of their debtors. The severer enactments, however, of the Twelve Tables, were evidently never put in force, or so soon became obsolete, that the Roman laws were at length esteemed remarkable for the mildness of their punishments—the penalties of scourging, or death, being scarcely in any case inflicted on a Roman citizen.

The tables on which the Decemviral Code had been inscribed, were destroyed by the Gauls at the sack of the city; but such pains were taken in recovering copies, or making them out from recollection, that the laws themselves were almost completely re-established.

It might reasonably have been expected that a system of jurisprudence, carefully extracted from the whole legislative wisdom of Italy and Greece, should have restored in the commonwealth that good order and security which had been overthrown by the uncertainty of the laws, and the disputes of the patricians and plebeians. But the event did not justify the well-founded expectation. The ambition and lawless passions of the chief Decemvir had rendered it necessary for him and his colleagues to abdicate their authority before they had settled with sufficient precision how their enactments were to be put in practice or enforced. It thus became essential to introduce certain formulæ, called Legis Actiones, in order [pg 136]that the mode of procedure might not remain arbitrary and uncertain. These, consisting chiefly of certain symbolical gestures, adapted to a legal claim or defence, were prepared by Claudius Cœcus about the middle of the fifth century of Rome, but were intended to be kept private among the pontiffs and patrician Jurisconsults, that the people might not have the benefit of the law without their assistance. Cl. Flavius, however, a secretary of Claudius, having access to these formularies, transcribed and communicated them to the people about the middle of the fifth century of Rome. From this circumstance they were called the Jus civile Flavianum. This discovery was so disagreeable to the patricians, that they devised new legal forms, which they kept secret with still more care than the others. But in 553, Sextus Ælius Catus divulged them again, and in consequence, these last prescripts obtained the name of Jus Ælium, which may be regarded as the last part and completion of the Decemviral laws; and it continued to be employed as the form of process during the whole remaining period of the existence of the commonwealth.

As long as the republic survived, the Twelve Tables formed the foundation of the Roman law, though they were interpreted and enlarged by such new enactments as the circumstances of the state demanded298. Thus the Lex Aquilia and Alinia were mere modifications of different heads of the twelve tables. Most of the new laws were introduced in consequence of the increase of empire and luxury, and the conflicting interests of the various orders in the state. Laws, properly so called, were proposed by a superior magistrate, as the Consul, Dictator, or Prætor, with consent of the Senate; they were passed by the whole body of the people, patricians and plebeians, assembled in the Comitia Centuriata, and bore ever after the name of the proposer.

The Plebiscita were enacted by the plebeians in the Comitia Tributa, apart from the patricians, and independently of the sanction of the Senate, at the rogation of their own Tribunes, instead of one of the superior magistrates. The patricians generally resisted these decrees, as they were chiefly directed against the authority of the Senate, and the privileges of the higher orders of the state. But, by the Lex Horatia, the same weight and authority were given to them as to laws properly so termed, and thenceforth they differed only in name, and the manner in which they were enacted.

The patricians, being deprived by the Twelve Tables of the privilege of arbitrarily pronouncing decisions, as best suited their interests; and being frustrated in their miserable attempts to maintain an undue advantage in matters of form, by secreting the rules of procedure held in courts of justice, they had now reserved to them only the power of interpreting to others the scope and spirit of the laws. Till the age, at least, of Augustus, the civil law was completely unconnected and dissipated; and no systematic, accessible, or authoritative treatise on the subject, appeared during the existence of the republic299. The laws of the Twelve Tables were extremely concise and elliptical; and it seems highly probable that they were written in this style, not for the sake of perspicuity, but to leave all that required to be supplied or interpreted in the power of the Patricians300. The changes, too, in the customs and language of the Romans, rendered the style of the Twelve Tables less familiar to each succeeding generation; and the ambiguous passages were but imperfectly explained by the study of legal antiquarians. It was the custom, likewise, for each successive Prætor to publish an edict, announcing the manner in which justice was to be distributed by him—the rules which he proposed to follow in the decision of doubtful cases; and the degree of relief which his equity would afford from the precise rigour of ancient statutes. This annual alteration in forms, and sometimes even in the principles of law, introduced a confusion, which persons engrossed with other occupations could not unravel. The obscurity of old laws, and fluctuating jurisdiction of the Prætors, gave rise to that class of men called Jurisconsults, whose business it was to explain legal difficulties, and reconcile statutory contradictions. It was the relation of patron and client, which was coeval almost with the city itself, and was invested with a sacred, inviolable character, that gave weight to the dicta of those who, in some measure, came in place of the ancient patrons, and usually belonged to the patrician order.—“On the public days of market or assembly,” says Gibbon, “the masters of the art were seen walking in the Forum, ready to impart the needful advice to the meanest of their fellow-citizens, from [pg 138]whose votes, on a future occasion, they might solicit a grateful return. As their years and honours increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who, at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and incidents of judicial proceedings, were the ordinary subject of these consultations; and the verbal or written opinions of the jurisconsults were framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons; and the Mucian race was long renowned for the hereditary knowledge of the civil law301.” Though the judges and prætors were not absolutely obliged, till the time of the emperors, to follow the recorded opinions of the Jurisconsults, they possessed during the existence of the republic a preponderating weight and authority. The province of legislation was thus gradually invaded by these expounders of ancient statutes, till at length their recorded opinions, the Responsa Prudentum, became so numerous, and of such authority, that they formed the greatest part of the system of Roman jurisprudence, whence they were styled by Cicero, in his oration for Cæcina, Jus Civile.

It is perfectly evident, however, that the civil law was neither much studied nor known by the orators of the Senate, and Forum. Cicero, in his treatise De Oratore, informs us, that Ser. Galba, the first speaker of his day, was ignorant of law, inexperienced in civil rights, and uncertain as to the institutions of his ancestors. In his Brutus he says nearly the same thing of Antony and Sulpicius, who were the two greatest orators of their age, and who, he declares, knew nothing of public, private, or civil law. Antony in particular, always expressed a contempt for the study of the civil law302. Accordingly, in the dialogue De Oratore, he is made to say, “I never studied the civil law, nor have I been sensible of any loss from my ignorance of it in those causes which I was capable of managing in our courts303.” In the same dialogue, Scævola says, “The present age is totally ignorant of the laws of the Twelve Tables, except you, Crassus, who, led by curiosity, rather than from its being any province annexed to eloquence, studied civil law under me.” In his oration for Muræna, Cicero talks lightly of the study of the civil law, and treats his opponent with scorn on account of his knowledge of its words of [pg 139]style and forms of procedure304. With exception, then, of Crassus, and of Scævola, who was rather a jurisconsult than a speaker, the orators of the age of Cicero, as well as those who preceded it, were uninstructed in law, and considered it as no part of their duty to render themselves masters, either of the general principles of jurisprudence, or the municipal institutions of the state. Crassus, indeed, expresses his opinion, that it is impossible for an orator to do justice to his client without some knowledge of law, particularly in questions tried before the Centumviri, who had cognizance of points with regard to egress and regress in property, the interests of minors, and alterations in the course of rivers; and he mentions several cases, some of a criminal nature, which had lately occurred at Rome, where the question hinged entirely on the civil law, and required constant reference to precedents and authorities. Antony, however, explains how all this may be managed. A speaker, for example, ignorant of the mode of drawing up an agreement, and unacquainted with the forms of a contract, might defend the rights of a woman who has been contracted in marriage, because there were persons who brought everything to the orator or patron, ready prepared,—presenting him with a brief, or memorial, not only on matters of fact, but on the decrees of the Senate, the precedents and the opinions of the jurisconsults. It also appears that there were solicitors, or professors of civil law, whom the orators consulted on any point concerning which they wished to be instructed, and the knowledge of which might be necessary previous to their appearance in the Forum. In this situation, the harangue of the orator was more frequently an appeal to the equity, common sense, or feelings of the judge, than to the laws of his country. Now, where a pleader addresses himself to the equity of his judges, he has much more occasion, and also much more scope, to display his eloquence, than where he must draw his arguments from strict law, statutes, and precedents. In the former case, many circumstances must be taken into account; many [pg 140]personal considerations regarded; and even favour and inclination, which it belongs to the orator to conciliate, by his art and eloquence, may be disguised under the appearance of equity. Accordingly, Cicero, while speaking in his own person, only says, that the science of law and civil rights should not be neglected; but he does not seem to consider it as essential to the orator of the Forum, while he enlarges on the necessity of elegance of language, the erudition of the scholar, a ready and popular wit, and a power of moving the passions305.

That these were the arts to which the Roman orators chiefly trusted for success in the causes of their clients, is apparent from the remains of their discourses, and from what is said of the mode of pleading in the rhetorical treatises of Cicero. “Pontius,” says Antony, in the dialogue so often quoted, “had a son, who served in the war with the Cimbri, and whom he had destined to be his heir; but his father, believing a false report which was spread of his death, made a will in favour of another child. The soldier returned after the decease of his parent; and, had you been employed to defend his cause, you would not have discussed the legal doctrine as to the priority or validity of testaments; you would have raised his father from the grave, made him embrace his child, and recommend him, with many tears, to the protection of the Centumviri.”

Antony, speaking of one of his own most celebrated orations, says, that his whole address consisted, 1st, in moving the passions; 2d, in recommending himself; and that it was thus, and not by convincing the understanding of the judges, that he baffled the impeachment against his clients306. Valerius Maximus has supplied, in his eighth book, many examples of unexpected and unmerited acquittals, as well as condemnations, from bursts of compassion and theatrical incidents. The wonderful influence, too, of a ready and popular wit in the management of causes, is apparent from the instances given in the second book De Oratore of the effects it had produced in the Forum. The jests which are there recorded, though not very excellent, may be regarded as the finest flowers of wit of the Roman bar. Sometimes they were directed against the opposite party, his patron, or witnesses; and, if sufficiently impudent, seldom failed of effect.

That the principles and precepts of the civil law were so little studied by the Roman orators, and hardly ever alluded to in their harangues, while, on the other hand, the arts of persuasion, and wit, and excitement of the passions, were all-pow[pg 141]erful, and were the great engines of legal discussion, must be attributed to the constitution of the courts of law, and the nature of the judicial procedure, which, though very imperfect for the administration of justice, were well adapted to promote and exercise the highest powers of eloquence. It was the forms of procedure—the description of the courts before which questions were tried—and the nature of these questions themselves307—that gave to Roman oratory such dazzling splendour, and surrounded it with a glory, which can never shine on the efforts of rhetoric in a better-regulated community, and under a more sober dispensation of justice.

The great exhibitions of eloquence were, 1st, In the civil and criminal causes tried before the Prætor, or judges appointed under his eye. 2d, The discussions on laws proposed in the assemblies of the people. 3d, The deliberations of the Senate.

The Prætor sat in the Forum, the name given to the great square situated between Mount Palatine and the Capitol, and there administered justice. Sometimes he heard causes in the Basilicæ, or halls which were built around the Forum; but at other times the court of the Prætor was held in the area of the Forum, on which a tribunal was hastily erected, and a certain space for the patron, client, and witnesses, was railed off, and protected from the encroachment of surrounding spectators. This space was slightly covered above for the occasion with canvass, but being exposed to the air on all sides, the court was an open one, in the strictest sense of the term308.

From the time of the first Punic war there were two Prætors, to whom the cognizance of civil suits was committed,—the Prætor urbanus and Prætor peregrinus. The former tried the causes of citizens according to the Roman laws; the latter judged the cases of allies and strangers by the principles of natural equity; but as judicial business multiplied, the number of Prætors was increased to six. The Prætor was the chief judge in all questions that did not fall under the immediate cognizance of the assemblies of the people or the Senate. Every action, therefore, came, in the first instance, before the Prætor; but he decided only in civil suits of importance: and if the cause was not of sufficient magnitude for the immediate investigation of his tribunal, or hinged entirely on matters of fact, he appointed one or more persons to judge of it. These [pg 142]were chosen from a list of judices selecti, which was made up from the three orders of senators, knights, and people. If but one person was appointed, he was properly called a judex, or arbiter. The judex determined only such cases as were easy, or of small importance; and he was bound to proceed according to an express law, or a certain form prescribed to him by the Prætor. The arbiter decided in questions of equity which were not sufficiently defined by law, and his powers were not so restricted by the Prætor as those of the ordinary judex. When more persons than one were nominated by the Prætor, they were termed Recuperatores, and they settled points of law or equity requiring much deliberation. Certain cases, particularly those relating to testaments or successions, were usually remitted by the Prætor to the Centumviri, who were 105 persons, chosen equally from the thirty-five tribes. The Prætor, before sending a case to any of those, whom I may call by the general name of judges, though, in fact, they more nearly resembled our jury, made up a formula, as it was called, or issue on which they were to decide; as, for example, “If it be proved that the field is in possession of Servilius, give sentence against Catulus, unless he produce a testament, from which it shall appear to belong to him.”

It was in presence of these judges that the patrons and orators, surrounded by a crowd of friends and retainers, pleaded the causes of their clients. They commenced with a brief exposition of the nature of the points in dispute. Witnesses were afterwards examined, and the arguments on the case were enforced in a formal harangue. A decision was then given, according to the opinion of a majority of the judges. The Centumviri continued to act as judges for a whole year; but the other judices only sat till the particular cause was determined for which they had been appointed. They remained, however, on the numerous list of the judices selecti, and were liable to be again summoned till the end of the year, when a new set was chosen for the judicial business of the ensuing season. The Prætor had the power of reversing the decisions of the judges, if it appeared that any fraud or gross error had been committed. If neither was alleged, he charged himself with the duty of seeing the sentence which the judges had pronounced carried into execution. Along with his judicial and ministerial functions, the Prætor possessed a sort of legislative power, by which he supplied the deficiency of laws that were found inadequate for many civil emergencies. Accordingly, each new Prætor, as we have already seen, when he entered on his office, issued an edict, announcing the supplementary code which he intended to follow. Every Prætor had a to[pg 143]tally different edict; and, what was worse, none thought of adhering to the rules which he had himself traced; till at length, in the year 686, the Cornelian law, which met with much opposition, prohibited the Prætor from departing in practice from those principles, or regulations, he had laid down in his edict.

Capital trials, that is, all those which regarded the life or liberty of a Roman citizen, had been held in the Comitia Centuriata, after the institution of these assemblies by Servius Tullius; but the authority of the people had been occasionally delegated to Inquisitors, (Quæsitores,) in points previously fixed by law. For some time, all criminal matters of consequence were determined in this manner: But from the multiplicity of trials, which increased with the extent and vices of the republic, other means of despatching them were necessarily resorted to. The Prætors, originally, judged only in civil suits; but in the time of Cicero, and indeed from the beginning of the seventh century, four of the six Prætors were nominated to preside at criminal trials—one taking cognizance of questions of extortion—a second of peculation—a third of illegal canvass—and the last, of offences against the state, as the Crimen majestatis, or treason. To these, Sylla, in the middle of the seventh century, added four more, who inquired into acts of public or private violence. In trials of importance, the Prætor was assisted by the counsel of select judges or jurymen, who originally were all chosen from the Senate, and afterwards from the order of Knights; but in Cicero’s time, in consequence of a law of Cotta, they were taken from the Senators, Knights, and Tribunes of the treasury. The number of these assessors, who were appointed for the year, and nominated by the Prætor, varied from 300 to 600; and from them a smaller number was chosen by lot for each individual case. Any Roman citizen might accuse another before the Prætor; and not unfrequently the young patricians undertook the prosecution of an obnoxious magistrate, merely to recommend themselves to the notice or favour of their countrymen. In such cases there was often a competition between two persons for obtaining the management of the impeachment, and the preference was determined by a previous trial, called Divinatio. This preliminary point being settled, and the day of the principal trial fixed, the accuser, in his first speech, explained the nature of the case,—fortifying his statements as he proceeded by proofs, which consisted in the voluntary testimony of free citizens, the declarations of slaves elicited by torture, and written documents. Cicero made little account of the evidence of slaves; but the art of extracting truth from a free [pg 144]witness—of exalting or depreciating his character—and of placing his deposition in a favourable light, was considered among the most important qualifications of an orator. When the evidence was concluded, the prosecutor enforced the proofs by a set speech, after which the accused entered on his defence.

But though the cognizance of crimes was in ordinary cases delegated to the Prætors, still the Comitia reserved the power of judging; and they actually did judge in causes, in which the people, or tribunes, who dictated to them, took an interest, and these were chiefly impeachments of public magistrates, for bribery or peculation. It was not understood, in any case, whether tried before the whole people or the Prætor, that either party was to be very scrupulous in the observance of truth. The judges, too, were sometimes overawed by an array of troops, and by menaces. Canvassing for acquittal and condemnation, were alike avowed, and bribery, at least for the former purpose, was currently resorted to. Thus the very crimes of the wretch who had plundered the province intrusted to his care, afforded him the most obvious means of absolution; and, to the wealthy peculator, nothing could be more easy than an escape from justice, except the opportunity of accusing the innocent and unprotected. “Foreign nations,” says Cicero, “will soon solicit the repeal of the law, which prohibits the extortions of provincial magistrates; for they will argue, that were all prosecutions on this law abolished, their governors would take no more than what satisfied their own rapacity, whereas now they exact over and above this, as much as will be sufficient to gratify their patrons, the Prætor and the judges; and that though they can furnish enough to glut the avarice of one man, they are utterly unable to pay for his impunity in guilt309.”

The organization of the judicial tribunals was wretched, and their practice scandalous. The Senate, Prætors, and Comitia, all partook of the legislative and judicial power, and had a sort of reciprocal right of opposition and reversal, which they exercised to gratify their avarice or prejudices, and not with any view to the ends of justice. But however injurious this system might be to those who had claims to urge, or rights to defend, it afforded the most ample field for the excursions of eloquence. The Prætors, though the supreme judges, were not men bred to the law—advanced in years—familiarized with precedents—secure of independence—and fixed in their stations for life. They were young men of lit[pg 145]tle experience, who held the office for a season, and proceeded through it, to what were considered as the most important situations of the republic. Though their procedure was strict in some trivial points of preliminary form, devised by the ancient Jurisconsults, they enjoyed, in more essential matters, a perilous latitude. On the dangerous pretext of equity, they eluded the law by various subtilties or fictions; and thus, without being endued with legislative authority, they abrogated ancient enactments according to caprice. It was worse when, in civil cases, the powers of the Prætor were intrusted to the judges; or when, in criminal trials, the jurisdiction was assumed by the whole people. The inexperience, ignorance, and popular prejudices of those who were to decide them, rendered litigations extremely uncertain, and dependent, not on any fixed law or principle, but on the opinions or passions of tumultuary judges, which were to be influenced and moved by the arts of oratory. This furnished ample scope for displaying all that interesting and various eloquence, with which the pleadings of the ancient orators abounded. The means to be employed for success, were conciliating favour, rousing attention, removing or fomenting prejudice, but, above all, exciting compassion. Hence we find, that in the defence of a criminal, while a law or precedent was seldom mentioned, every thing was introduced which could serve to gain the favour of the judges, or move their pity. The accused, as soon as the day of trial was fixed, assumed an apparently neglected garb; and although allowed, whatever was the crime, to go at large till sentence was pronounced, he usually attended in court surrounded by his friends, and sometimes accompanied by his children, in order to give a more piteous effect to the lamentations and exclamations of his counsel, when he came to that part of the oration, in which the fallen and helpless state of his client was to be suitably bewailed. Piso, justly accused of oppression towards the allies, having prostrated himself on the earth in order to kiss the feet of his judges, and having risen with his face defiled with mud, obtained an immediate acquittal. Even where the cause was good, it was necessary to address the passions, and to rely on the judge’s feelings of compassion, rather than on his perceptions of right. Rutilius prohibited all exclamations and entreaties to be used in his defence: He even forbade the accustomed and expected excitement of invocations, and stamping with the feet; and “he was condemned,” says Cicero, “though the most virtuous of the Romans, because his counsel was compelled to plead for him as he would have done in the republic of Plato.” It thus ap[pg 146]pears, that it was dangerous to trust to innocence alone, and the judges were the capricious arbiters of the fate of their fellow-citizens, and not (as their situation so urgently required) the inflexible interpreters of the laws of their exalted country.

The spot, too, on which the courts of justice assembled, was calculated to inspire and heighten eloquence. The Roman Forum presented one of the most splendid spectacles that eye could behold, or fancy conceive. This space formed an oblong square between the Palatine and Capitoline hills, composed of a vast assemblage of sumptuous though irregular edifices. On the side next the Palatine hill stood the ancient Senate-house, and Comitium, and Temple of Romulus the Founder. On the opposite quarter, it was bounded by the Capitol, with its ascending range of porticos, and the temple of the tutelar deity on the summit. The other sides of the square were adorned with basilicæ, and piazzas terminated by triumphal arches; and were bordered with statues, erected to the memory of the ancient heroes or preservers of their country310. Having been long the theatre of the factions, the politics, the intrigues, the crimes, and the revolutions of the capital, every spot of its surface was consecrated to the recollection of some great incident in the domestic history of the Romans; while their triumphs over foreign enemies were vividly called to remembrance by the Rostrum itself, which stood in the centre of the vacant area, and by other trophies gained from vanquished nations:—