BMCR 2003.09.37

The Case for the Prosecution in the Ciceronian Era

, The case for the prosecution in the Ciceronian era. Master and use copy. Digital master created according to Benchmark for Faithful Digital Reproductions of Monographs and Serials, Version 1. Digital Library Federation, December 2002.. Ann Arbor: University of Michigan Press, 2002. 1 online resource (xii, 370 pages). ISBN 9780472025848 $70.00.

In 1990 Michael C. Alexander (hereafter A.) provided students of the law and oratory of the late Roman Republic with one of their most useful tools.1 In the volume under review he carries his studies of these matters further, attempting to reconstruct the main lines of the prosecution case against eleven men defended by Cicero in extant speeches. He confines himself to cases tried before the quaestiones perpetuae (roughly = criminal courts) of Rome under three headings: 1) extortion, 2) electoral malpractice, and 3) homicide and violence; under each he considers the relevant individual cases in chronological order. There is a general introduction, an introduction providing legal background to each of the three sections, a conclusion, two appendices, a bibliography, and indices of ancient sources, names, and topics. An English translation is provided, in the interest of accessibility, for all foreign language quotations. The volume has been handsomely produced by Michigan Press.

A. thus offers a different contextualization for Cicero’s speeches than the rhetorical and prosopographical studies that have prevailed in the recent past. By putting the speeches back into the agonistic setting from which they came, A. is positioned to shed new light on Cicero’s achievement. A. is, as he notes, not the first to undertake such a project, which has been pursued on a much smaller scale by D.M. Ayers and M. Pierpaoli.2 But A.’s much broader scope gives him a large advantage in identifying patterns and strategies. Though A. has every right to circumscribe the project as he has, his definition excludes two very interesting cases, namely the prosecutions of C. Rabirius (for perduellio) and Milo (for vis but under a special procedure; cf. A., p.263, n. 5). Dare one hope that he may take these up in some other place?

The groundwork is carefully laid in the Introduction. Early on A. cites Quintilian’s warning of the hazards of attempting such reconstructions (p.3; Inst. 10.5.20). The difficulty is that Cicero’s surviving speech seldom yields a clear picture of the prosecution case, particularly in trials in which C. is merely one of a panel of defense speakers. A. generally navigates these treacherous shoals with admirable caution and restraint, attaching appropriate caveats when he becomes speculative. The introduction goes on to explain the role of the prosecutor in criminal procedure and that it had to be assumed by private citizens. The much debated problem of the relation of Cicero’s published speeches to their delivered versions is also broached. After reviewing the evidence A. concludes that “changes … were not of a sort that should compel us to view the published defense speech as an imaginary response to an imaginary prosecution” (p.25), whereby he joins what seems to be an emerging consensus. Under “Method” (pp.28-31) A. indicates the skeptical strategies that will guide his efforts to tease out the prosecution arguments lurking beneath the smooth veneer of Cicero’s rhetoric. He goes on to argue, against some recent opinion, that the law played an important role in Roman trials; the key is to remember that it is ‘Roman’ law, with the bar set lower for the prosecution ( fecisse videtur, not “beyond a reasonable doubt”) since the ancient prosecutor lacked the backing of police powers and official status. The ancient prosecutor did, however, have some advantages over the defense, as A. goes on to explain: only he could compel testimony, and he perhaps — though this is controversial — did not need to disclose all charges prior to the trial. The prosecutor therefore needed above all to do his homework, whereas the defense counsel needed quick wits. Finally, in spite of his chapter titles “In M. Fonteium” etc., A. explains that he is not providing a rhetorical product meant to stand against its Ciceronian counterpart but rather an analysis of the arguments likely to have been offered by the prosecution.

Trials for extortion (and probably also peculatus) differed, as A. remarks (p.57), from most criminal trials (with the partial exception of electoral malpractice) in that, in the event of a guilty verdict, there was not only a punishment (the loss of citizen rights and de facto exile) but also an award of damages to those injured; these were assessed by the same jurors in an appended procedure, the litis aestimatio. A.’s discussion of the four extortion cases is aided by our extant example of a corresponding prosecution, namely Cicero’s Verrines. This comparative material is cited at a number of points but particularly in A.’s reconstruction of the case against M. Fonteius, a governor of Gaul who was tried the year after Verres (69). Both cases centered on financial malfeasance but also included charges related to the defendant’s previous life ( vita ante acta) and military activity as governor. Given the similarly structured cases, it is a fair comment when A. remarks (p.75): “To the extent that readers of the Verrines are inclined to conclude that Verres was guilty of extortion, they should be open to the possibility that they would feel much the same way about Fonteius” if the prosecution speeches survived. The prosecutors seem to have blundered, however, in raising the spectre of a Gallic rebellion, which may have made the jurors recalcitrant rather than prone to convict.

The nature of the extant evidence hampers any attempt to reconstruct the extortion cases against L. Valerius Flaccus and M. Aemilius Scaurus. For the former, Hortensius’ detailed handling of the charges would have been more helpful than Cicero’s speech, which paints with broad strokes (A., p.82). Cicero’s reliance on ethnic stereotypes and false dilemma certainly makes the modern reader suspicious, but these were conventions of ancient courtroom rhetoric. Without having Hortensius’ speech I would be a bit more hesitant than A. to draw conclusions about the strength of the prosecution case. Scaurus’ defense was handled by a team of no fewer than six orators, and Cicero’s surviving speech is badly mutilated. The upshot is that we know more about the politics surrounding the case than the actual charges, and a conclusion about the overall strength of the prosecution case seems, on present evidence, unattainable (though certainly some of Cicero’s arguments are weak: cf. A., p.108).

The case against C. Rabirius Postumus is unique. He was not technically a defendant or charged with any crime. He was prosecuted under the quo ea pecunia pervenerit clause of the lex Iulia. The allegation was in particular that he received money that Gabinius was convicted of having extorted. Yet even so the prosecution made an issue of Rabirius’ vita ante acta, an indicator that this was by now virtually de rigueur for a successful prosecution de repetundis. Whether Cicero’s elaborate apologia for his client’s service as treasurer of Ptolemy Auletes and obfuscation of the legal issues carried the jurors’ conviction is unclear; in any case, the defendant survived and went on to be proconsul of Cilicia in 47.

Even in a time and place where professional pollsters sample and weigh opinion with great care there are electoral surprises; a fortiori in ancient Rome. A.’s “Part Two: Electoral Malpractice” considers two cases in which the victory of the apparently less likely candidate becomes the catalyst for prosecution. The two trials were conducted under distinct laws, and perhaps for that reason A. draws few comparisons between them, but there are some interesting points of contact, including the fact that Cicero’s participation on the defense side becomes itself an issue in both trials. In both cases he argues that the aristocratic prosecutor was not necessarily better placed to win and that the foreign service of a Murena or Plancius could constitute a very respectable candidate’s resumé. In both trials Cicero was evidently successful: Murena’s acquittal is shown by his service as consul in 62; in Plancius’ case the outcome is less clear (because it is disputed whether the trial took place before or after his service as aedile) but success is likely in view of Cicero’s publication of the speech. Moreover, the precise content of the law underlying the prosecution of Plancius, the lex Licinia de sodaliciis, is controversial, the issue being whether coitio (“collusion” in this context) is itself illegal or is brought up only in order to create the presumption that bribery occurred (A. allows the possibility of the former). The larger lesson is that these cases are symptoms of Syme’s Roman revolution, the process by which “obscure people from obscure places superseded the Roman nobility” (so A., p.144, apropos of Plancius).

A.’s Part Three combines cases that fall under the statutes against homicide and violence, whereby the latter is so defined as to involve a threat to the community in general and goes onto a fast judicial track. The two murder cases A. considers take the reader a bit lower on the social scale, namely to the domi nobiles Sextus Roscius of Ameria and Aulus Cluentius Habitus of Larinum.

In A.’s reconstruction C. Erucius’ prosecution of Roscius of Ameria consisted of the straightforward claim that a wicked son, too impatient to await his inheritance and fearful of losing it altogether, killed his father. Erucius may even have included a version of the cui bono? argument by pointing to the presumption at the time of the elder Roscius’ death that his son would inherit (p.158). Cicero, in his first criminal case, counters by seeking to pin the murder on two apparent relatives of the dead man, both of whom had connections with the prosecution, T. Roscius Magnus and T. Roscius Capito. He associates with them Sulla’s freedman Chrysogonus as an accessory after the fact since he was instrumental in adding Roscius senior’s name to the proscription list and subsequently bought his property at auction for a fraction of its value. A. follows Kinsey’s rehabilitation of Magnus and Capito (pp.153-55), shows that Cicero has no real refutation for Erucius’ account of how Roscius jr. killed his father (p.160), explains more convincingly than heretofore why Cicero does not simply admit the murder but claim that it was legal under the proscriptions (pp.160-66), and shows that, pace Cicero, Chrysogonus is unlikely to be pulling the strings behind the prosecution (pp.166-72). Rather, Cicero has created a political drama to upstage Erucius’ scenario of the wicked son. One of the minor benefits of A.’s treatment is the light shed on the legal issues that may underlie Chrysogonus’ refusal to allow slaves under his control to be subject to legal inquiry, including torture (A., n. 33, pp.305-6). Some aspects of the trial are, and may always remain, murky, but A. has certainly brought the understanding of this case several steps forward.

The evaluation of legal issues is especially important in the case of Cluentius. Here we have one piece of information about the case apart from Cicero’s defense speech, namely his notice of the prosecutor T. Attius at Brutus 271; A. overstates, however, in claiming that Cicero’s remark there that Attius was trained in the principles of Hermagoras’ doctrine of stasis “corroborates the view that Attius made an argument about the suitability of such a charge [i.e., of judicial murder] before this court” (p. 175): at most Attius’ training opens the possibility that the was alert to arguments about the proper venue of particular charges. A. carefully sketches the geographical and socio-political background to the case.3 Much of Cicero’s defense is devoted to the trial held eight years previously in which Oppianicus was convicted of attempting to murder Cluentius and in particular whether the jury in that case had been bribed. He seeks to support his claim that Oppianicus and not his client had resorted to bribery by citing two previous trials which, he contends, created a praeiudicium of Oppianicus’ guilt. A. is good at ferreting out implausibilities in Cicero’s account of the transfer of poison for the murder and offers an alternative scenario (which, he acknowledges, cannot be proven). A. is also suspicious of Cicero’s statement that Cluentius was reluctant to frame a will disinheriting his mother Sassia and thus remained intestate in spite of his fears that Oppianicus was plotting against his life so that Sassia, who was also Oppianicus’ wife, could inherit the property. Here I wonder whether A. has not been influenced too much by Cicero’s negative portrayal of Sassia: perhaps Cluentius hoped that the family quarrels could be patched up after all and hesitated to make what must have seemed an irrevocable break with his mother; once convinced that his life was under threat, however, he did not hesitate to prosecute the culprit, Oppianicus. If Cicero famously boasted of having occluded the jurors’ vision in this case (Quint. Inst. 2.17.21), A. shows how he probably achieved this result by reversing the importance of its two basic components. Thus he dealt at length with the minor charge of judicial murder and then briskly handled the poisoning charges. The exhausted jurors were perhaps so grateful that the lengthy pleading was coming to a close that they failed to register the inadequacy of Cicero’s response to the poisoning charges.

The year following his exposure of Catiline and his followers Cicero was called upon to defend P. Cornelius Sulla on charges of vis stemming from his alleged involvement in the conspiracy. Here A. shows himself adept at teasing out from Cicero’s rhetorical deformations strong prosecution arguments; see, e.g., the shrewd observation apropos Sul. 51-55: “Cornelius’s charge, viewed objectively, ought to carry considerable weight, precisely for the reason that Cicero mocks his father. After all, the son has information directly from a participant, one who, at this stage, derives absolutely no benefit from his turncoat activity” (p.195). He also has a sharp eye for places where Cicero evades potentially damaging topics by quickly changing the subject (see pp.194 and 201). Moreover, he shows (pp.203-4), against D.H. Berry in his admirable commented edition, that the order in which Cicero presents his arguments need not reflect the prosecution’s dispositio; indeed, it would be surprising if he had adhered to it. A. reviews the eight points alleged against Sulla and concludes “I do not believe that, with the evidence at our disposal, we are in a position to dismiss any of the charges outright” (p.204). That is an interesting finding, but I wish he had engaged Berry’s arguments (at pp.33-39 of his edn.) for Sulla’s innocence.

Many readers will turn eagerly to the chapter (12) about the prosecution of M. Caelius Rufus, a case interesting in itself, for the light it sheds on society of the late Republic, and for the scholarly controversies it has generated. A. notes that Pro Caelio conforms to the pattern whereby a person who is not the prosecutor but associated with the prosecution becomes a target of vilification. Clodia thus stands in the line of Chrysogonus in Pro Roscio Amerino and Sassia in Pro Cluentio. Unlike the others, however, Clodia is not gratuitously dragged in; rather, she is at the center of two substantive charges: of murdering the Egyptian legate Dio, since she provided the money that fueled the plot, and of her own murder; Cicero therefore expects her to testify against his client (Cael. 35). One of the controversies about the speech has to do with whether or to what degree the prosecution made reference to a love affair between Caelius and Clodia. A. concludes (p.234) that if Cicero is right in implying that Clodia will testify to Caelius’ immorality (Cael. 50), the testimony is likely to have been about notorious goings-on at Baiae, hardly a personal confession. There is, however, another possibility: Clodia may have been meant to testify only about her loan of money to Caelius and his plot to murder her; Cicero may, in other words, be disingenuously confounding two distinct parts of the prosecution’s case (the testimony has not yet been offered when he characterizes it). Hence the prosecution may or may not have committed the “serious mistake” (A., p.236) of planning to call Clodia to testify to Caelius’ immorality. The prosecution definitely did make a mistake, however, when Atratinus called Caelius a pulchellum Iasonem. A. argues convincingly that not Clodia, but Ptolemy figured as Medea in the prosecution’s scenario; Cicero then brilliantly seized the opportunity to recast Clodia as Medea (A., pp.226-29). A. argues against some contrary opinion that all seven violations alleged against Caelius fall under the scope of the law against vis 4 and that Cicero has an adequate reply to none of them (though the other defense speakers, Crassus and Caelius himself, may have done). But, as in Pro Roscio Amerino, Cicero prevailed nonetheless by finding the right lightning rod (in this case Clodia) for the jurors’ displeasure.

On some other occasions Cicero was also helped by prosecutorial ineptness. So incompetent were the prosecutors in Sestius’ case, for instance, that Vatinius accused them of collusion with the defense. They drew a murky distinction between Milo’s use of violence and Sestius’, praising the one while excoriating the other; and by dropping the phrase natio optimatium (Sest. 96) they gave Cicero an opportunity to expatiate on his very inclusive definition of the optimates. Hence the outcome: a rare unanimous acquittal.

Generally balanced, judicious and au courant with scholarship on the history of the period as well as rhetoric, law and procedure, this study should be the first port of call for those interested in the legal issues and argumentation of these eleven cases. A.’s book helps us to see Cicero’s work in the criminal courts, which was really the source of his influence, the way his contemporaries saw it. Though the approach works better for some cases than for others, readers will find shrewd observations that illuminate a number of obscure or controversial issues. One comes away with enhanced respect for the Roman prosecutor, who lacked public office or access to police powers, faced pervasive prejudice against his function, and had to assemble a case often in the face of extreme time pressure and uncooperative magistrates. Viewed from this perspective, the Verrines should probably count as Cicero’s chief forensic achievement.5


1. M.C.A., Trials of the Late Roman Republic 149 B.C. to 50 B.C. Phoenix Supplement 26 (Toronto, 1990).

2. D.M. Ayers, The Speeches of Cicero’s Opponents: Studies in Pro Roscio Amerino, In Verrem, and Pro Murena (diss., Princeton, 1950); M. Pierpaoli, “L’orazione di Servio Sulpicio Rufo nel processo di Murena,” Maia 49 (1997) 231-53.

3. Here A. might have been helped by some of the papers in Pro Cluentio di M.T. Cicerone, Atti del convegno nazionale, Larino 4-5 Dicembre 1992, a cura dell’amministrazione comunale di Larino (Larino, 1997).

4. The seditiones Neapolitanae charged against Caelius (Cael. 23) have been seen as “local disturbances without political significance,” to which A. adds (p.237) that the matter “could have been related to the theme of Baiae”; if so, however, the connection with the law against vis is not prima facie clear. The seditiones are likely to have been, rather, political in nature and related to the Catilinarian conspiracy, like the seditiones alleged to have been fomented at Pompeii by P. Sulla (Sul. 60-62) and that caused the despatch of P. Sestius to secure Capua (Sest. 9-10). It may be relevant here that Caelius died in 48 leading an insurrection in southern Italy.

5. A few details: p.21, l. 8: A. endorses Marshall’s denial that Asconius attests that the delivered Pro Milone was taken down by shorthand; one wonders whether Philologus 146 (2002), 182-85, would have changed his mind; p.24, last two lines: A. assumes that the rubrics replacing content in some speeches were added by editors, but in view of their early attestation, it is generally assumed that Cicero himself effected the abridgement when he published the speeches (cf. Austin on Cael. 19, which may be an exception); p.42, last line: lay: laid; p.70, l. 16: A. supposes that Cicero included an argument because “he expected to encounter [it] as a prosecutor”; but one wonders whether Cicero was contemplating further prosecutions at the time of the Verrines; probably he included this refutation as a model for orators in training (his stated goal in publishing his speeches in general); p.151, ll. 12-14 and p.307, n. 46: here, as sometimes elsewhere, a reference to N. Marinone, Cronologia ciceroniana (Rome, 1997) might have been helpful (in this case, p.58); p.154, l. 26: family matters: property; p.155, 8th from last l.: Roscius: Roscio; p.158, 7th from last l.: Roscius’ brother was definitely dead (cf. section 42); p.162, l. 28 ff.: pace A., there is no reason to suppose that the in adversariorum praediis argument (Sex. Rosc. 126) was ever raised before Sulla or that Sulla even knew of Sex. Roscius’ proscription; p.168, ll. 24-25: one might add the stronger argument: “and give three farms outright to another”; p.175, l. 9: στάσις; p.186, ll. 7-8: extraordinarius: extra ordinem; p.187, l. 23: a senator: an eques; p.190, l. 9: takes: take; ibid., 3rd from last l.: defense: prosecution; p.198, ll. 28-29: A. leaves open the possibility that Sittius’ trip to Spain in 64 was already part of the groundwork “Catiline was laying … for a coup d’état the following year”; this is not impossible but probably should have been argued for, since most historians of the conspiracy assume that it was only after his defeat in the consular elections of 63 that Catiline turned to revolutionary violence; p.220, l. 15: Caelius: Cicero.