MAJOR CHARACTERS IN ROMAN DECLAMATION

BY

MILLER KRAUSE

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2016 © 2016 Miller Krause

2 ACKNOWLEDGEMENTS

I thank the faculty and staff of the University of Florida for their support and patience, though which I was able to complete this dissertation in a relaxed time frame that allowed me to explore profitably many other avenues of research unrelated to declamation.

3 TABLE OF CONTENTS

Page ACKNOWLEDGEMENTS ...... 3 ABSTRACT...... 6

CHAPTER

1 INTRODUCTION...... 7

Definition...... 7 History of Declamation...... 10 Literature Review...... 13 Declamation as Philosophy...... 20 Methods ...... 25

2 REASON AND JUSTICE...... 29

The Philosopher (Philosophus) ...... 30 The Orator (Orator, Disertus)...... 32 The Physician (Medicus)...... 34

3 DIVINE AND HUMAN...... 42

Named Gods...... 44 Vesta ...... 45 Mars ...... 47 Jupiter, Minerva, Prometheus...... 48 Priests (Sacerdotes) ...... 49 Vestal Virgins and the Pontifex...... 50 Priest of Mars ...... 55 Generic Priests...... 56 Religious Figures not Aligned with the City...... 60 Enemy Priests and Vestal Virgins...... 60 The Mage (Magus) ...... 61 Oracles and Sacrifices...... 63 Dreamers ...... 66 People Saved or Destroyed by Gods...... 68

4 THE MARTIAL SPIRIT ...... 70

The Soldier (Miles)...... 70 The General (Imperator and Dux)...... 73 Other Officers: The Tribune (Tribunus) ...... 79 The War Hero (Vir Fortis)...... 80 The Tyrannicide (Tyrannicida)...... 90 The Gladiator (Gladiator) and the Martial Artist (Pancratiasta)...... 95

4 5 MERCHANTS AND ARTISTS ...... 99

The Merchant (Mercator, Negotiator)...... 100 The Slave Dealer (Venaliciarius, Mango)...... 102 The Pimp (Leno) and the Prostitute (Meretrix)...... 103 The Pimp (Leno)...... 104 The Prostitute (Meretrix)...... 108 The Craftsman (Artifex)...... 114 Phidias and Parrhasius...... 115 Craftsmen of the Dec. Maj...... 117

6 FIGURES OUTSIDE THE LAW ...... 121

The King (Rex)...... 122 Cotys ...... 123 Philip and Alexander...... 125 The Tyrant (Tyrannus)...... 126 The Attempted Tyrant ...... 132 The Retired Tyrant...... 136 The Dead Tyrant...... 137 The Pirate (Pirata, Prædo) and Brigand (Latro)...... 139 The Exile (Exul) ...... 144 The Proscript (Proscriptus) ...... 149

7. CONCLUSIONS...... 151

LIST OF REFERENCES...... 156

BIOGRAPHICAL SKETCH...... 160

5 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

MAJOR CHARACTERS IN ROMAN DECLAMATION

By Miller Krause December 2016

Chair: Konstantinos Kapparis Major: Classical Studies

Roman declamation analyzes philosophical questions by working and reworking fictitious speeches that present imaginary characters contesting wildly improbable suits as if in a court of law. Past scholarship into the nature of these suits has focused on the laws governing these suits or on mining the cases for social history and cultural insight. This dissertation examines instead the characters that declamation uses to raise and define its philosophic questions.

The first chapter provides an introduction to declamation and a new perspective on philosophy’s influence on declamation. The subsequent chapters group the major characters of declamation into political and religious characters, military characters, merchants and artists, and characters outside the law.

6 CHAPTER 1 INTRODUCTION

Definition

Declamation was a practice and a product. Both in schools and outside them, elite Hellenistic Greeks and Romans, and after them Christians such as the sixth century bishop Ennodius and major figures of the Renaissance like Juan Luis Vives,

Thomas More, and Desiderius Erasmus, composed and delivered persuasive speeches on topics that were fictions. Some Romans, like Seneca the Elder,

Calpurnius Flaccus, and two figures falsely, as it seems, identified as Quintilian in the manuscript tradition, wrote excerpts of these speeches or, in a few instances, committed the entirety to paper. These products make up the surviving classical

Latin corpus of declamation, our best evidence for the practice in ancient Roman society. The later Latin declamations, from Ennodius on, imitate and innovate upon the classical corpus. In broad outline, the products took two forms: controversiæ, mock judicial speeches that assign punishment or reward for some past action, and suasoriæ or deliberationes, speeches regarding a future course of action and presented in the persona of an advisor generally to a king or free city, but occasionally to a military commander or notable citizen.

The suasoriæ adapted well-known historical, mythic, or literary situations, sometimes with a twist: for example, a declaimer might argue that Hannibal, upon being recalled to Carthage, should obey orders or disobey them either to continue the fight in Italy or to invade Egypt.1 Romans knew the persona or character of

Hannibal and so automatically had a frame of reference for the speech: when and where it was set, who might be giving it, what might be credible, and, for dramatic

1. The theme proposed at Auct. ad Her. 3.2. 7 irony, what actually happened. Suasoriæ thus require a practitioner to put himself into the shoes, as it were, of a well-known figure to work out a moral dilemma from a perspective alien to his own.2 The persona in which the declaimer of a suasoria speaks is that of an advisor to a man of power, thinking and speaking not as a king or general, but as a subordinate advisor, an active participant in a democracy, or a concerned fellow citizen.3

Controversiæ, on the other hand, rarely adopted from outside sources such personæ and settings.4 Instead, they relied upon a plethora of stock characters and stereotyped actions that, whatever their origins, through repetitious use became a troupe proper to the genre. These characters and events may be plausible, as in the characters of the “rich man” and the “poor man.” Often, however, the characters and scenarios of declamation wander farther afield, and ancient criticism reflects this.

When Petronius’ Agamemnon claims that declamation makes students stupid

2. This kind of moral instruction by empathy drew Vives among other Renaissance authors to the practice of declamation; cf. George and Matheeussen 1987: 109. On the other hand, recent scholarship has questioned whether declamation teaches empathy or entrenches stereotypes about non-elite speakers. Bloomer 1997: 59 took the stand that "the whole process of learning to enact characters served as a technique for managing hegemonic identity for a class of speakers." He conceded, however that "to a degree the student learns how others, specifically those denied the right to speak, might speak and feel in some period of crisis" (63). He sustains the position most recently in Bloomer 2010: 306. Connolly 2016:194, discussing Kaster 2001:325–26, points out that declamation’s use of emotions may produce a kind of healing. 3. In this light there is a certain delicate irony in the reputed favor with which the most powerful men of the late Republic and early Empire regarded declamation: Mark Antony and Octavian, as they competed for supremacy at Mutina, also declaimed, as later did Nero; cf. Suet. Gram. et rhet. 25.5–6. 4. One may succinctly list the exceptions: Sen. Controv. 7.2, 9.1, 9.2, 10.5, Con. ex. 3.8, 4.2, 6.5, 8.2; [Quint.] Dec. Min. 292, 323, 333, 339, 386; Calp. 3; and [Quint.] Dec. Maj. 3. One might add the named gods of Sen. Controv. 1.3 and Con. ex. 6.8, and Calp. 26. See also notes on the varying fashions of specificity and generality in declamation below, pp. 10-13. 8 because it treats unrealistic material, he speaks of pirates, tyrants, and oracles and the virgins sacrificed at their command.5 Likewise Quintilian, in a similar complaint, mentions mages, plague and oracles, and cruel stepmothers.6 Nor is it in criticism alone that characters stand as a proxy for declamation, for in Philostratus’ definition of the two kinds of sophistic rhetoric, it is the characters—the poor man and the rich, the hero and the tyrant—that define the new or second sophistic, in opposition to the older, first-sophistic speeches about virtue, justice, and other abstract concepts.7

Characters, and especially stock characters, define this genre in a way that they do not for other kinds of rhetoric: one can, as did Philostratus and Petronius, synecdochically refer to declamation, or even criticize it, simply by naming four or five of its personæ. There are other genres, such as new comedy, that employ stock characters, but only declamation takes this much of its generic identity from characters. Further, the stock characters of declamation differ from the comic stock: the soldiers of declamation are not the braggarts of comedy, nor do the declamatory courts try wily slaves and eunuchs and procuresses. Thus, understanding declamation’s unique characters in their own right, rather than as borrowings from

5. Et ideo ego adulescentulos existimo in scholis stultissimos fieri, quia nihil ex his, quæ in usu habemus, aut audiunt aut vident, sed piratas cum catenis in litore stantes, sed tyrannos edicta scribentes quibus imperent filiis ut patrum suorum capita præcidant, sed responsa in pestilentiam data, ut virgines tres aut plures immolentur… (“And this, in my opinion, is why young men become very stupid in school: because they hear and see nothing we actually use, but pirates standing on the shore with chains, tyrants writing edicts ordering sons to cut off their fathers’ heads, oracular responses given against the plague and ordering that three or more virgins be sacrificed…” Petron. Sat. 1). 6. Nam magos et pestilentiam et responsa et sæviores tragicis novercas aliaque magis adhuc fabulosa frustra inter sponsiones et interdicta quæremus (“For we shall examine mages and plague and oracles and stepmothers more savage than characters out of tragedies and other things even more fabulous… pointlessly, in the midst of stipulations and injunctions,” Quint. Inst. 2.10.5). 7. Phil. V. S. 1.480–81. 9 other genres, is important to understanding the genre and the ways in which it uses them to generate its fictions.

History of Declamation

Fairweather 1981: 104–31 lays out most of the evidence for the development of

Latin declamations prior to Seneca. By Cicero’s time, students were practicing them in schools, as evidenced by his disparagement of the thema on the man who climbed the city walls, in contravention of the law forbidding just that, and repelled the enemies scaling the other side (Cic. De or. 2.100). Cicero complained that such a case gave too simple practice, since arguing real cases required learning many details about laws, circumstances, and especially “the entire life of the people involved in the case.”8 Controversiæ, on the other hand, are built around themata, meager outlines that avoid explaining the deeper motivations behind cases—for inventing those is to add color to a case, one of the declaimer’s principal occupations. Stock characters have no backstory to learn, and so inventing colores for them is easy: the old man, for example, refuses to ransom his son because he trusts in the son’s ability to free himself, or because he hates the son, or for whatever reason a declaimer may project onto him in his speech. The use of more specific characters would restrict the declaimer’s freedom of invention, and they value that freedom more highly than meeting Cicero’s criticism of the practice. Cicero, the first

Latin author to mention declamatory school training, is also the first to criticize it, in part for the generality of its stock characters.

Suetonius, writing perhaps a century and a half after Cicero, mentions “old” declamations (veteres controversiæ), which seem to differ little from those published by Seneca between the years of Cicero and Suetonius or from those after Seneca,

8. …vita denique eorum, qui in causa versantur, tota cognoscenda est. 10 except in that they specify a setting for the declamation.9 The additions of places do little to advance the ethical dilemmas involved, although they might perhaps clarify the legal situation for those students of declamation who knew the laws of Ostia or

Brundisium: but one doubts whether the point of declamation was ever to demonstrate legal oratory within a specific legal system. This depth of specification faded from use, and later declamation so consistently avoided providing a specific setting that Russell 1983: 22 invented a name for the declamatory utopia:

Sophistopolis.10

As with geographic details, the devisers of themata often stripped names from scenarios borrowed from actual events, histories, or myth. Nor was this a sudden innovation, since in the earliest identifiable forerunners of controversiæ, Antiphon’s

Tetralogies, we find the mytheme of death by athletic mischance, as in the stories of

Acrisius and Hyacinthus, abstracted into a minimalist tale. Neither the grieved son nor his accidental murderer have names beyond ὁ παῖς µου and τοῦτο τὸ µειράκιον, my son and that young man.

So, declamation found itself pulled in two directions. From the beginning, at least from Antiphon, a spirit of minimalism reduced the case to the bare essential

9. Suet. Gram. et rhet. 25.9. The first example he gives is set in Ostia, the second begins in Brindisi and wraps up in Rome. That second case, stripped of its places, appears as [Quint.] Dec. Min. 340, the case of the Novicius Prætextatus. 10.In fact, some declamations do permit the assumption of a Roman or Greek setting based on details of the themata: one describing Metellus rescuing the Palladium from the temple of Vesta (Sen. Con. ex. 4.2) could only be Roman, while the case of Callias catching Cimon in adultery (Sen. Controv. 9.1) must be Athenian. Even of these, however, few specifically mention the place in their themata: Athens is the explicit setting of Sen. Controv. 10.5, Con. ex. 3.8, 6.5, 8.2, and [Quint.] Dec. Min. 292, 323, 392; and anywhere but Athens in [Quint.] Dec. Min. 333. One assumes Athens as a setting in Sen. Controv. 9.1, Suas. 5, [Quint.] Dec. Min. 339 and 386; Rome is implied in Sen. Controv. 9.2, Con. ex.. 4.2, 7.2, Suas. 6 and 7; as is some pacified part of the former Cimbrian territory in Calp. 3 and [Quint.] Dec. Maj. 3. No surviving declamation ever mentions Rome (or Ostia or Brindisi) in its thema. 11 actors and setting needed to express the fundamental ethical conflicts at stake, while allowing the speaker full freedom to invent psychological motivations (colores) to underpin the ethical positions of the case. On the other hand, as Fairweather 1981:

122 points out, even in Antiphon’s first Tetralogy there is an unnecessary date, and the Suetonian “old declamations” illustrate a countervailing trend to add details. The kinds of details added—dates, places, persons11—correspond to the differences between theses (θέσεις), general questions, such as whether marriage is a good idea, and hypotheses (ὑποθέσεις), questions that are defined by a particular situation, such as whether the elderly Cato should marry. One might compare

Cicero’s method of political fantasy in Rep. 2, when he has Lælius deny that he will develop an imaginary city like Plato’s Socrates did but instead lays out Rome as a model city, beginning immediately with fantastic claims of Romulus’ birth from Mars and suckling by a beast of the woods together with a call to concede these incredible stories as true for the sake of argument (2.3–4). He does not eschew political fantasy but translates it from the thesis of what the best city might look like to the hypothesis of what made Rome the best city. He immediately afterwards argues the thesis of how close to the sea a city should be situated through the hypothesis of where Romulus, a specific person, founded Rome, a specific city (2.5–11). Since the controversia is a particular instance of hypothesis, the addition of superfluous defining material, including people, in “old” controversiæ and its subsequent abandonment seem to reflect an evolutionary step in the development of exercises based on hypothetical reasoning.

11. Thus Quint., Inst. 3.5, whence also the examples on marriage. 12 The cases preserved in the classical Latin corpus of declamation generally embrace minimalism. Yet, as timeless and placeless as Sophistopolitan cases may be, they still need persons to effect the realization of the thesis in the form of a hypothesis: the plaintiff, the defendant, the other involved parties, the external accessories who impose necessities upon the other actors. Here comes into play the repertoire of stock characters, who range from the common and generic to the oddly specific. The most generic characters are, of course, the son and father, for every man alive is the son of another.12 It comes then as no surprise that the father and son are the most common characters in declamation, and perhaps too in the scholarship about declamation.13 On the other hand, unusual figures like the mage and the pirate stood at a remove from the daily experience of the declaimer. One might well then wonder, along with Petronius and Quintilian, what function the less generic, more outlandish figures of declamation filled that made them part of the declamatory genre, when their inclusion could do little to prepare practitioners to use rhetoric in real-life situations.

Literature Review

The early twentieth century produced immense cataloguing operations:

Sprenger 1911, Lanfranchi 1938, and Bonner 1949:84–132 investigated the laws of juridical declamation (controversiæ), whether they bore any relationship to the real laws that governed Roman or Greek life. Against the assumption, well grounded in

Quintilian’s criticism of the fictitious nature of the laws (Inst. 7.4.11), that declamation did not represent the laws under which one would argue a case in a Roman court,

12.Thomas 1981: 123 notes that family disputes make up more than two thirds of the cases. 13.The father-son relationship has been covered in depth and repeatedly. See Lentano 2015, 2009 and 1989, as well as Gunderson 2003: 59–89. 13 Lanfranchi marshaled evidence of similarities between real and fictive law. Bonner found that some laws had Roman counterparts, some Greek, some none at all.

Some recent work has continued to focus on connections between the law and declamation. Thus Leesen 2010 approached the jurists’ controversiæ reported in

Gaius’ Institutiones as the products of a highly specialized rhetorical institution akin to declamations and influenced by the wider rhetorical context of the Empire. Langer

2007, on the other hand, pursued the effects of rhetorical declamation on the development of real Roman legal thought. Cross-pollination between the rhetorical declaimers and the jurists certainly existed: hence the case of the poisoned bees of

[Quint.] Dec. Maj. 13 closely resembles test cases of bees and the laws of property damage found in Justinian’s Digesta (especially 9.2.27).

To this one might respond that some declamatory laws also have Mosaic counterparts. Deuteronomy 22:22, that an adulterer and adulteress, if caught, should both be killed, strongly resembles the first law of Sen. Controv. 1.4, Adulterum cum adultera qui deprehenderit, dum utrumque corpus interficiat, sine fraude sit.14 Yet, no one suggests searching out the roots of declamatory law in the near East. Instead, it may be more productive to look upon similarities between declamatory laws and the real laws of many cities and cultures as a byproduct of a common desire to state ethical norms that derive from the transcendent notions of justice and equity that many cultures share. Most societies have a concept of marriage, and, preceding from it, adultery; any that prize equity might also derive of adultery the principle that both consenting parties to the crime of adultery be punished. Thus it should not surprise if declamatory law bears similarities to real Roman (and Greek) law: they

14.“Let whoever catches an adulterer with an adulteress be without crime, as long as he kills both of them.” 14 are two systems of ethical thought developed within the same cultural framework, so it would be odd indeed to find no resemblance between them. Likewise some laws may simply reflect a logical manifestation of some very common ethical principle shared among many cultures. Quellenforschung and cataloguing of laws remain helpful in determining exactly what ethical points were under debate in declamation, but they provide little in the way of interpretation or explanation of those declamatory laws that do not cohere with known laws of real antiquity.

A similar strand of scholarship in the twentieth and twenty-first centuries focused on finding similarities between the literary world of Sophistopolis and the historical and cultural milieu of Rome. There certainly are points at which declamation recalls traditional Roman stories, contemporary events, and Greek literature. The blinding of

Metellus (Sen. Controv. 4.2) recalls a similar story told in Roman history, although that story seems to crop up about the time that declamations do.15 The sixth and seventh of Seneca’s Suasoriæ treat the events leading to Cicero’s death, an event within contemporary memory, although the declamatory material that sprang up around it seemed beyond credibility to the declaimers.16 Thus Tabacco 1985 connected the figure of the tyrant in declamation to the new political realities of the

Augustan age. Migliario 2007 deftly and extensively demonstrated connections between the Senecan Suasoriæ and sociopolitical events of the late Republic and early Empire. It would be hard to deny that the use of Liber within Seneca’s

Suasoriæ and his explicit link of Liber and Antony, or the suasoriæ on Cicero’s death, not bear some sort of relation to the politics of the early Augustan age.17

15.See Morgan 1973: 38. 16.Sen. Suas. 6.12 and 14 remark on the incredibility of the sixth theme; the seventh theme derives of the sixth, thanks to Asinius Pollio. 17.Huelsenbeck 2015: 55 argues against what he calls “decoding” such repeated 15 Nevertheless, with the exception of the suasoriæ and controversia explicitly mentioning Cicero,18 all contained within Seneca’s compilation, the themata do not make such connections, but rather the declaimers do in speeches, or Seneca does in his commentary: indeed these seem to be part of Seneca’s message more than an organic feature of the declamatory genre. The declaimers and Seneca may have made use of declamation to promote an agenda, but that agenda alone does not explain declamation.

The end of the twentieth century saw Beard 1993 challenge classical scholarship to expand the interpretation of declamation beyond legal opinion and social history into the realm of mythopoetic. By mythopoesis, Beard means the construction of myth as a storehouse of things that can be said about questions of ethics and identity. Operating in such a genre, a practitioner of mythopoesis can rework traditional stories and speeches to revisit traditional questions and pose new ones. In traditional Greco-Roman myth, these are stories involving gods, kings, heroes, and ordinary people, but the ultimate authority in the universe is divine.

Thus Homer may pose Achilles’ response to Agamemnon’s arrogance as a question of double motivation, wherein both Achilles and the gods act to move along the drama in the human world with different moral perspectives on their own actions; likewise Dares the Phrygian might rewrite the story on the human level alone, posing different motivations and different questions of right and wrong by excluding the associations into concrete political statements, but associations between political figures and gods (Antony = Liber, Augustus = Apollo) were common in ancient thought. Episodes like Latro’s mention of adoption when declaiming before Augustus and Agrippa, in which Mæcenas very nearly pointed out the political undertones of what Latro was not subtly implying about Agrippa’s family (Sen. Controv. 2.4.12–13), render problematic Huelsenbeck’s unwillingness to consider political meanings of declamation. 18.Besides the aforementioned Sen. Suas. 6 and 7, there is Controv. 7.2. 16 divine from consideration. Declamation does much the same: Achilles might face charges for dereliction of duty, and different declaimers could defend or condemn him with diverse arguments. Beard’s approach explains the accumulation of themes and details in declamation, such as the repeated sententia “Mother, what is poison?” by which the declaimer expresses with pathos the innocence of a child suborned to murder.19 Each time a declaimer revisits a case or even a sententia, he can invoke intertextually the previous instances and build upon them. Beard lays special emphasis on the traditional nature of this shared mythopoetic experience, and thus she avoids the Quellenforschung of previous scholarship which had aimed to discover literary or contemporary political origins for the themes and characters (and laws) of declamation. Whence the laws and characters may have first been drawn is of less importance to her theory than the ways they function within declamation’s intertextual tradition.

From Beard’s approach, combined with stereotypes from postmodern literary criticism, drew Gunderson 2003 to attempt to excavate a psychology underlying declamation’s extravagant fictions. His analysis has been influential, if at times difficult.20 Particularly useful is his theoretical approach to naming, taken from

Althusser, which he develops in analyzing the Miles Marianus ([Quint.] Dec. Maj. 3 and Calp. 3): a social identity is constituted by labels, such as “soldier” or “man”

(180–83), and the act of speaking is a negotiation of appellations. The vague, stock

19.Sen. Controv. 9.6.10–12 and [Quint.] Dec. Min. 381.4. 20.Regarding “subjectivation’s trope of turning,” Gunderson writes, “Yet there is no subject anterior to this moment of turning. That is, there is no subject temporally before the law. Instead a subject comes into being in an encounter spatially before the law. Obviously this ‘place’ of the encounter is no real space. Instead it is both everywhere and nowhere” (141–42). Such theory pleases the ear, but more straightforward prose would aid the comprehension. The section begins uncomfortably with the question, “What is madness?” (139). 17 characters of declamation have little identity other than labels, but those labels take meaning from how they are used and re-used in the declamatory tradition.

Nevertheless Gunderson’s methods suffer from two drawbacks. First, his heavy analysis of speeches does not always take into account the countervailing possibilities of rebuttal. For example, his analysis of the Miles Marianus above and the repetition of the shame of “prostitution” in the act of speaking of “prostitution” runs into difficulty when one considers the medieval rebuttal appended to some copies of the Dec. Maj. In this later speech the prosecution argues that the soldier has fabricated the alleged attempt upon his chastity, and so the “prostitution” never occurred, nor did the initial shame, which was but a clever murderer’s subterfuge.

Secondly, while the investigation of masculinity or æsthetics may reveal something about how declaimers generated speeches from the traditional material, it does not explain the fictional world around which they formed those speeches. Nevertheless

Gunderson’s work is important both for taking declamation seriously as a literary genre to be interpreted and for taking a thematic approach to reading declamation, one embraced by Bernstein (2013) in his less extravagant monograph on themes of authority and ethics in declamation.

Secondly, Gunderson’s psychoanalytic reading of especially father-son relationships imposes a modern psychology on an ancient genre.21 There is little evidence that the ancients thought of their own literature in Freudian or Lacanian terms, but Greek and Latin political fiction does make much of the family and its generations.22 Moreover, ancient systems of thought about the soul, psychology in

21.The relationship between family and state is even a subject of wordplay among the declaimers. Consider Sen. Controv. 10.2.2, Quia patriæ judicium habeo, patris perdidi (“Because I have won my case in my country’s eyes, I have lost it in my father’s”). Cf. [Quint.] Dec. Min. 352.2, 18 its oldest meaning, existed and were available to the declaimers. Gunderson does a great service by recognizing that a psychological element lurks within declamation, but his approach risks anachronism.

On a different tack, Wohl 2010: 115–54, in exploring the fictive legal cases and proto-declamations, as it were, of Antiphon, developed the thesis that the characters of the Tetralogies derived from the crimes treated in the speeches. She explains this by a grammatical metaphor of Greek verbs: the verb, the action, is the primary mode of expression, while a subject pronoun need not be spoken except to clarify the action. Likewise justice seeks to punish its transgression, but human justice can only take action against a defendant as a proxy for the crime. The characters of a legal fiction, in her view, proceed from the crime and are defined by it, without exhibiting characteristics or backstories external to the case at hand. This method of analysis has much to commend it, since it succinctly explains the stock characters of declamation: each exists to contribute to the ethical discussion of the case without much backstory, since declaimers use the maneuvering room provided by that void to produce colores. Wohl’s theory also offers an explanation of a question

Gunderson never fully answers, namely the relationship of the subject, the declamatory character, to the law.23 War heroes (viri fortes) and tyrannicides in declamation do exist in part to justify a discussion based on an exception to the law

(the viri fortis or tyrannicidæ præmium), but their stories to have other components that cannot be fully explained by their relationship to the law. Moreover, declamation

22.Plato, especially in the Republic, makes much of the father and son, in the figures of Polemarchus and Cephalus, in the myths of theogony and the propriety of the father-son relationship among the gods, and in the generational shifts responsible for the precession of governments: cf. Burnyeat 2004 and Steinberger 1996. 23.See the previous footnote for Gunderson’s approach to the question. 19 has a large but finite stock of repeated characters that Wohl’s theory does not predict: there is more to their definition than their ability to define a case.

Declamation as Philosophy

Political fantasy represents the workings of a fictional state, and declamation presents the workings of a court in a fictional “Sophistopolis,” to use the term coined by Russell 1983: 22 for the imaginary city in which declamation sets its speeches.

Both provide a space for working out ethical philosophy, and both use laws as a medium through which to explore values. Scholarship on declamation, however, largely ignores the philosophic component of declamation, focusing instead on rhetorical or legal training, social history, or literary context. Parks 1945: 81 calls declamation “merely…an exercise in mental gymnastics.” Bonner 1949: 39 says that the fantasies of declamation served as a “gilding of the pill,” where the pill consists of

“valuable practice in logical thinking, legal interpretation, and clear co-ordination of argument,” but he also recognizes a connection between theses or philosophic questions and declamation, at least its commonplaces and divisiones or outlines of questions to be addressed (2–11). Russell 1985: 21 cites the late fourth and early fifth century bishop Synesius for an account of two men engaging in rhetorical disputation about Cimon and Miltiades and the anonymous figures of the rich man and poor man (De Insomniis 20). Synesius explicitly says that they were very serious about philosophy (ἐπὶ φιλοσοφίᾳ) but dismisses debates over fictions as not pertaining to the study of truth. Russell makes of this a distinction between philosophy and rhetoric, but that Synesius called the matter “philosophy” indicates that one may draw a different distinction, between philosophic questions openly posed as such and philosophic questions argued within a fictitious framework.

20 More recently, some attention has come to the Platonic background behind declamation. Bernstein 2013: 45 notes the Platonic connection between physicians and orators but draws no further connections. Citti 2015: 96, 124–25 makes reference to Pl. Grg. 483 as a formulator of natural law, Tomassi 2015: 249–63 cites in passing Plato’s influence on the character of the tyrant, and Lupi 2015: 320 n. 49, most intriguingly, discusses in a single footnote how a Greek declamatory piece,

Choricius Decl. 5.5, alludes to Plato’s idea of a soul containing an appetitive part.

Most recently, however, the essays edited by Dinter, Guérin and Martinho contain only one reference to Plato (2016: 224), and then only to demonstrate the antiquity of associating tyrants with anthropophagy and bestial natures. The connection between Platonic philosophy, both political and psychological, bears deeper examination than it has received.

If, as Fairweather 1981: 110–11 suggests, declamation has its ancestor in

Antiphon’s Tetralogies, a connection with psychology emerges from the biographical tradition that springs up around him. From [Plut.] X. orat. and the anonymous Vita

Antiphontis we hear that Antiphon not only composed the Tetralogies but also wrote tragedies and invented an art of removing grief, similar to a medical practice (τέχνην

ἀλυπίας συνεστήσατο, ὥσπερ τοῖς νοσοῦσιν ἡ παρὰ τῶν ἰατρῶν θεραπεία ὑπάρχει,

[Plut.] X. orat. 833c). The biographical sources are late and dubious, but they demonstrate that ancient tradition could associate Antiphon, the forerunner of declaimers, with an art of healing grief described in medical terms. This bears a similarity to the Platonic connection between physicians and rhetoricians, as recently mentioned by Bernstein 2013: 45. Tragedy provides a catharsis of fear and pity

(Arist. Poet. 1449b), so it too serves as a kind of psychological treatment. The biographical tradition, shaky as it may be, ascribes to the same man the

21 psychologically cathartic genre of tragedy, a novel τέχνη ἀλυπίας, and the

Tetralogies, so one must consider the possibility that the tradition also sees in

Antiphon’s rhetoric some element of psychological therapy.

This idea of “therapy” emerges again in the philosopher Philo of Larisa, Cicero’s own teacher and heir to Plato’s intellectual patrimony as head of the Academy. Philo explicitly likened the philosopher to a physician (ἐοικέναι δή φησι τὸν φιλόσοφον

ἰατρῷ, Stob. Flor. 2.7.2), in that each must use rhetoric to persuade the infirm first to accept his own θεραπεία and then to defeat his opponent’s arguments. Philo goes further, however, and, recognizing that not all men have leisure for philosophy, prescribes rhetorical therapy via hypotheses as a kind of pop psychology, for lack of a more august term, for the working man:

So, if it were possible for all men to be wise, there would be no need for more kinds of questions: for they are the finely divided offshoots (παραφυάδες) of the matters under discussion. But, since one must take into account ordinary people, some of whom happen to profit from the rhetoric of encouragement—since they cannot have leisure for intricate discourses, due to lack of time or the necessity of working—one must add hypothetical speech, by which they will have advice in digest form for safety and right-dealing in every situation.24

Cicero himself, a man with the leisure for philosophy, later in life reports to Atticus that he uses theses as his own form of therapy:

To keep from surrendering myself entirely to illness, I took up some theses, which are political and pertinent to our times, both to distract myself from my complaints and for exercise in the matter which they treat.25

24.Εἰ µὲν οὖν ἐνεδέχετο πάντας εἶναι σοφούς, οὐκ ἂν ἐδέησε πλειόνων ἔτι τόπων· οἱ γὰρ κατὰ λεπτὸν διαιρούµενοι παραφυάδες εἰσὶ τῶν προκειµένων. ἐπεὶ δὲ καὶ τῶν µέσως διακειµένων ἀνθρώπων πρόνοιαν ποιητέον, οὕς τινας ἐκ τῶν παραινετικῶν λόγων ὠφελεῖσθαι συµβαίνει, µὴ δυναµένους προσευκαιρεῖν τοῖς διεξοδικοῖς πλάτεσιν ἢ διὰ χρόνου στενοχωρίας ἢ διά τινας ἀναγκαίας ἀσχολίας, ἐπεισενεκτέον τὸν ὑποθετικὸν λόγον, δι' οὗ τὰς πρὸς τὴν ἀσφάλειαν καὶ τὴν ὀρθότητα τῆς ἑκάστου χρήσεως ὑποθήκας ἐν ἐπιτοµαῖς ἕξουσιν (Stob. Flor. 2.7.2). 25.…ne me totum ægritudini dedam, sumpsi mihi quasdam tamquam θέσεις, quae 22 Cicero had learned the therapy of rhetoric, likely from his teacher Philo, and he uses the same metaphor of shoots26 as Philo when discussing how rhetoricians who debate controversiæ, in opposition to philosophers, take a bit from civil law, and how

Philo, a philosopher, did the same thing in the Academy (De. or. 3.109–10). For this is what Philo did in his teaching: he mixed rhetoric with philosophic therapy in hypotheses presented as legal cases. Cicero, speaking of the rhetoricians’ claim to ownership of hypothetical discourse, says,

For they lay claim to, if only by its edge, one kind, the one that is defined by times, places, defendants—for now the hearing and practice of these cases is frequent before Philo, who I hear flourishes in the Academy…27

The definition of the hypotheses by defendants (reis) makes clear that Philo taught through legal cases, like the controversiæ of Roman declamation. Reinhardt 2000:

531–47 shows that Philo taught Cicero this system of hypothetical philosophy- rhetoric, but he also winces at the idea of Philo teaching “the rhetorical treatment of the twisted legal problems which were the business of rhetorical schools” (546).

Philo need not have invented the form that declamation took among the Romans, but he worked in hypotheses that blended philosophy and rhetoric at what appears to be a critical period in the development of the declamatory genre, the late Republic, and

et πολιτικαὶ sunt et temporum horum, ut et abducam animum a querelis et in eo ipso de quo agitur exercear (Cic. Att. 9.4.1). 26.The word surculus, offshoot, is unusual for Cicero, occurring elsewhere only in the previous book of the same work, De. or. 2.278, a joke about a Siculian whose wife hanged herself from a fig tree. Given how rare the term is for Cicero, he likely has in mind Philo’s παραφυάς. 27.Nam illud alterum genus, quod est temporibus, locis, reis definitum, obtinent, atque id ipsum lacinia—nunc enim apud Philonem, quem in Academia vigere audio, etiam harum jam causarum cognitio exercitatioque celebratur… (Cic. De. or. 3.110). 23 may well have provided an influence in the development of the genre. If so, it would have added some sort of psychological dimension to declamation.

Academic philosophy did provide the ancients with a model of psychology, the study of the soul, and it did so within the genre of political fiction. Plato’s Republic,

Timæus, Critias, and Laws developed utopian fantasies of cities like Callipolis,

Atlantis, and Magnesia. The fantastic cities divide their citizens into classes, separating the artists and farmers from the warriors and kings. Plato Rep. 433a–45e make clear that the division of Callipolis into ruling, fighting, and productive classes

(which mirror those of the other Platonic utopias) corresponds to the division of the soul into three parts. The soul consists of a more divine part, the seat of reason (τὸ

λογιστικόν), and one more bestial, which in turn divides into two, the spirited seat of anger and courage (τὸ θυµοειδές) and the appetitive seat of pleasures (τὸ

ἐπιθυµητικόν).28 In the utopian city of Callipolis, the Guardians tasked with ruling the city justly correspond to the λογιστικόν, the warriors thirsting for glory to the

θυµοειδές, and the merchants and artisans, who produce goods to meet the city’s needs and seek wealth to finance their own desires, to the ἐπιθυµητικόν. Athens too, at least the mythical Athens coeval with Atlantis, divided its craftsmen and farmers from its warriors (Criti. 110c–e) and had a small cadre of rulers like Theseus

(110a). The Egyptians, in the account Critias relates of Solon’s supposed stay there, divided themselves into a priestly class (τὸ τῶν ἱερῶν γένος), a class of craftsmen

(τὸ τῶν δηµιουργῶν), and the warrior caste (τὸ µάχιµον γένος, Tim. 24a–b). This is, too, Dumezíl’s idéologie tripartite of Indo-European society, a division of people into priests and kings, warriors, and producers. For Plato, this is also the soul, and

28.Cf. Cic. Rep. 1.59, where Cicero uses ratio and consilium for τὸ λογιστικόν, ira and iracundia for τὸ θυµοειδές, and the plural libidines for τὸ ἐπιθυµητικόν. 24 ordering the microcosmic soul involves the same processes as ordering the macrocosmic society. Just as a city seems most just when each class of citizens performs its allotted task without interfering with the others, so too does a human soul become just when its three parts see to their goals without overstepping their bounds and hindering the other parts. The Platonic city, then, stands as an allegory for the soul and must be read on two levels, the macrocosmic and microcosmic.

Sophistopolis too belongs to the genre of political fiction, and like Callipolis and the Platonic cities it struggles to achieve justice. Sophistopolis, however, does so not through its constitution but through its assemblies and courts, where it sets in contest citizens who may represent the rational and divine, the spirited, and the appetitive domains of the soul. Sophistopolis lacks an extensive political apparatus, but the divine and rational element of the soul appears in her philosophers, orators, physicians, priests and priestesses. She does not lack for spirited citizens, as her military, including its war heroes, tyrannicides, and gladiators, represent the

θυµοειδές. Finally, the merchants and artists of the city, especially the prostitute and pimp, those profiteers of pleasure, represent the appetitive part of the soul. I believe that Sophistopolis opens itself to new interpretations when viewed with a consciousness of Platonic social and psychological thought.

Methods

In this dissertation, I catalogue and explore distinctive characters within the imaginary city of Roman declamation and the philosophic questions that they raise. I set as the bounds of this inquiry the limited set of repeating characters that represent civic or social roles, excluding two sets of characters, the family and the pairing of rich mand and poor man.

25 The man who strives to become a tyrant or who serves with distinction in his country’s army is also someone making a choice that illustrates the ways in which his soul moves him. Occupations embody arts and the product of education and experiences, and the conflicts and alliances between occupations reveal ties between fields of human knowledge. Familial relations, on the other hand, represent only the bonds of nature: sons and daughters are simply born to their mothers and fathers. A father may exercise choice in ridding himself of a disappointing son through abdicatio, and a son may find a new father through adoptio, to which extent a reader may seek some element of volition in the family. Such reshuffling of the family does indeed hold valuable lessons about how family psychology,29 but I seek to understand what motivates the very different relations of heroes and tyrants, philosophers and pimps in conflict with one another in the broader state outside the microcosm of the family. Likewise, within that larger civic sphere, I do not take as a main focus of my study the socioeconomic power dynamics encapsulated in the opposition of the rich and poor man, as that difference depends not on art nor even nature, but rather upon fortune. A separate work might profitably undertake to study the psychology of wealth and poverty, the rich man’s arrogance and the poor man’s envy, but I prefer to restrain myself to investigating the occupations of the citizens, wherein their decisions and arts manifest themselves: there is no art of poverty. I therefore exclude the familial relations and the rich and poor men.

The exclusion of the family and the rich and poor men allows me to focus on occupations, such as the pirate and the war hero, and their social roles within

Sophistopolis. Where relevant, I do examine how the family or the rich-poor

29.Gunderson 2003 concerns himself with this especially. 26 distinction may overlap with or influence other characters. The rich man, for example, may command troops as a general, while the poor man never commands troops: the ability to command well derives from martial experience compounded with the faculty of reason, and the rich man is better positioned to gain that experience because he can afford the equipment needed for military expeditions.

The poor man instead may exercise his reason in a form that does not require such expenses, namely public speaking, and exactly this opposition between the rich general and the poor orator appears in [Quint.] Dec. Min. 333. Although poverty and wealth may play some role in determining which avenues are open to a character, nevertheless both the rich and poor men of those examples do exercise reason, both are driven to murder, and both reveal more about their characters through their choices of occupation than by the accidents of their fortune.

I take from Gunderson 2003 an interest in declamatory psychology, but I prefer when possible reading the characters as reflections of Plato’s tripartite division of the soul. Thus I divide the characters into classes accordingly. In the first two chapters,

I give the characters who represent τὸ λογιστικόν, the level of sovereignty and divinity that embodies reason, first in the persons of the philosopher, orator, and physician (29-42) and then in the figures that embody man’s relationship with the divine (42-70). In the following chapter I cover τὸ θυµοειδές in the form of

Sophistopolis’ military, tyrannicides, and gladiators (70-99). Then follow the merchants and artists of Sophistopolis, its producers and seekers of pleasure and profit, representing τὸ ἐπιθυµητικόν (99-121). Finally, I add a fourth caste of outsiders, figures beyond the power of the law and, by curious but persistent metaphor inherent in declamation, also kept outside the spatial bounds of the city

27 (121-151). When possible, I try to see in each character both as a part of the city and as part of the soul.

Although the inventor of the thema may have had some historical or literary exemplum in mind, recasting that example into a situation involving stock characters severs its connections to literary and historical traditions.30 Thus, I do not search far for literary and historical antecedents. Further, I follow Wohl 2010 in the possibility that characters may exist simply to create a particular question in the thema.

Characters exist to define and limit theses, so they must contribute something to the ethical debate at hand.

30.Sen. Con. ex. 6.7, [Quint.] Dec. Min. 291, and Calp. 48 all seem to retell, with names removed, the story of the physician Erisistratus (or the astrologer Leptines) and the love of Antiochus for Stratonice (cf. the extract appended to Val. Max. 5.7, Plut. Demetr. 38), a story that Soranus also tells of Hippocrates (Vita Hippocratis 5). Yet, knowing this makes no difference to reading the declamation, nor do any declaimers make any use of the older stories in performing the declamation. It does, however, make a difference when the subject is named explicitly, as in all of Sen. Suas.: there is deep irony in arguing for or against a proposal whose real outcome one already knows. 28 CHAPTER 2 REASON AND JUSTICE

Omnis vero philosophiae tractatus alienus moribus nostrae civitatis est.

Every discussion of philosophy is foreign to the ways of our city. ([Quint.] Dec. Min. 283.4)

Sophistopolis, for the most part, lacks a ruling class who can embody in the sovereign aspect of the city the soul’s attributes of reason and justice. Utopian fiction like Pl. Rep. concentrates on the political sphere and discusses the ruling class at length; declamation translates its concerns to the courts instead. A war hero and an orator might compete to see who would make the better consul (Calp. 47), but no sitting consul appears in the speeches; the only proconsul, Flaminius of Sen.

Controv. 9.2 (called a prætor in the thema of Con. ex. 9.2), stands accused of lèse- majesté against his own office. Nameless, faceless magistratus and tribuni do scurry about Sophistopolis, but these are mere functionaries running the courts’ business,1 not the philospher-kings embodying reason and justice upon whom political fantasy typically lavishes its attention. Nevertheless, the city does have philosophers, orators, and physicians who use their reasoning to bring health both to the citizens’ bodies and to the body politic.

The philosopher, orator, and physician stand out as characters who often appear in themata with each other or other characters. Generally themata, at least before the Dec. Maj., rejoice in brevity, providing room for the declaimers to invent colores while they investigate a set of questions limited both by the brevity of the thema and

1. Tribunes appear in Sen. Con. ex. 3.9, Calp. 17, 23 and 33, [Quint.] Dec. Min. 380; military tribunes in Calp. 3 and [Quint.] Dec. Maj. 3; magistrates, for whatever value that term might hold, in Sen. Con. ex. 5.6, 5.8, 8.6, [Quint.] Dec. Min. 259, 265, 270, 280, 282, 301, 309, 314, 322, 343, 384; Calp. 16, 34, 41–43, 51. The noun magistratus seems to mean simply any figure who has some authority in the courts. 29 its set of personæ. Specific characters like the pirate appear mostly in cases with very general figures, like the rich and poor man or family members; on the other hand, when specific characters pile up in a thema, they stand out as unusual. The philosopher, orator, and physician appear together in [Quint.] Dec. Min. 268, a rare case involving three occupations contrasted; philosophers appear with orators in

283, the orator with the soldier and war hero in Calp. 32 and 47, and the physician with the tyrant in Calp. 13. For Calpurnius Flaccus and [Quintilian] of the Dec. Min., these three figures, the philosopher, orator, and physician, seem significantly linked by virtue of their ability to coexist with other characters within one thema and indeed with each other in Dec. Min. 268.

The Philosopher (Philosophus)

The philosopher per se stands as one of the rarest figures in declamation: he occurs only twice, both times in [Quint.] Dec. Min. In 268, he appears simply as a stock philosopher, not as an adherent of any particular school, but contrasted across disciplines with the orator and the physician; in 283, he is a Cynic, also contrasted with an orator (disertus). The former case parallels nearly exactly an example that

Quint. Inst. 7.1.38 gives of a type, in which each litigant has the right to speak first: a man has three children, an orator, philosopher, and a doctor. He leaves either an extra share (Quint. Inst.) or his entire legacy ([Quint.] Dec. Min.) to the son most beneficial to the city, which forces the brothers to contend over which of the professions best conduces to the good of the citizens.2 The case thus serves to praise one profession above the others, although the facts that all three litigants are

2. Philippus Beroaldus 1513 took up this theme in his Declamatio an Orator sit philosopho et medico anteponendus (fo. 134v–138v) and parodies it in the subsequent Ebriosi contra Scortatorem et Aleatorem (fo. 139r–142r) and Scortatoris et Aleatoris recriminatio adversus Ebriosum (fo. 142r–145v). 30 brothers bound by mutual fraternal respect and all three professions advance the good in some way also restrict the declaimer’s license to indulge in blame.

In brevity the thema of Dec. Min. 283, the shortest of all surviving, exceeds its close sister 298 by one syllable. Each posits a father disavowing his son based on character: in 283, the orator (disertus) disinherits his Cynic son, in 298 a father embodying rustic virtue his parasite son accustomed to the luxuries of urban wealth.

These are straightforward examples of praise or blame of contrasting lifestyles: the father must demonstrate his son’s degeneracy, perhaps with some light praise of his own virtue3. While each thema contains the CD that allows the son to respond,

[Quintilian] curiously argues both from the father’s perspective, avoiding the chance to model the restraint necessary for the son’s response. Neither the Cynic nor the parasite can present a credible case by rejecting his father while also defeating the abdicatio, his father’s formal rejection of him. Instead, the Cynic must demonstrate that his beliefs and actions aim at the father’s own goals; since the father’s division includes not only an easily tackled rejection of philosophy in general4 but of Cynicism in particular over and above other sects, his response must prove that the Cynic and the eloquent orator share some common end. However intriguing such a defense of

Cynicism might be, the philosopher in this case, as in 268, does not speak.

The philosopher, then, is peculiar to Quintilian Inst. and [Quintilian] Dec. Min., and is always matched against at least an orator, if not also a doctor. Although the

3. The speaker of 283.2 lays this out explicitly: “I do not think it necessary, jury, that I praise at length the civil duties, which I have already performed; my case rests entirely in reflecting upon my son’s life.” Sed non necesse habeo, judices, diu commendare vobis officia civilia, in quibus iam diu satisfeci; omnis mihi actio in dispicienda vita filii posita est. 4. Omnis vero philosophiæ tractatus alienus moribus nostræ civitatis est (283.4). 31 philosopher never speaks in the texts that survive, still being paired against the orator demonstrates that the philosopher is his equal and in some way alternative.

The Orator (Orator, Disertus)

Given that declamation, in its scholastic form if not its leisure practice, served to train orators, and given the self-aware irony that declaimers often demonstrate, it does not surprise that orators appear as characters in declamation; indeed, perhaps more surprising is how rarely the character appears. The figure of the orator, found only in Calpurnius Flaccus 32 and 47 and [Quintilian] Dec. Min. 268, 283, 333, and

337, exists largely to facilitate comparisons between domains in which a citizen could contribute nobly to the common good.

In Dec. Min. 268 and 283, the orator’s contribution is compared to the physician and philosopher (268), and to the philosopher alone (283). Though [Quintilian] does not give the orator’s part in 268, he does present the orator of 283, but he deliberately spends most of his time analyzing the Cynic. He mentions his own role as orator only to say that he guards the dignity of the state and the forum (283.1), and satisfies his civic duties (283.2). The vagaries leave an opening for the Cynic to respond, but they do little to define the life of the orator: there is no mention of his directing public policy or representing the innocent or the wronged before tribunals of justice.

Calp. 32 and 47 compare the orator not to the philosopher nor the physician but to the soldier and war hero. The orator of 32 shows sensitivity to his father’s reputation and wants to prove the father’s innocence in court to vindicate him before the court of public opinion. The war hero could save his father’s life by requesting, as his prize of valor, amnesty for his father, but that will only change the father’s status before the courts. Only the orator can remove doubt from the minds and

32 hearts of the people. The orator of 47 chides the war hero for his Coriolanus-like attitude towards class conflict: it takes an orator to speak to the public in a way that makes the public feel respected. While the two Flaccan cases are fragmentary, and the opposing side, if presented, has been lost, nevertheless what survives offers a cohesive picture. The orator, whether speaking to the jury or the people, effectively persuades them to his will while sensitively taking into account their emotions and likely reactions, always thinking a step ahead to prevent negative reactions much as how a rhetor must think ahead with stasis theory to refute his opponent’s likely points.

Dec. Min. 333 certainly tests the orator’s ability in sensitivity to potential reactions and implications: [Quint.] 333.1–3 explains the many pitfalls of the complex case. A rich man sent a poor man to Athens for education, and the poor man returned disertus. A third man compelled the poor man to prosecute a case against the rich man, and the poor man lost. The rich man charged the poor man with ingratitude. He cannot, however, seem to attack the rich man, as that would make him seem ungrateful, so he must argue his purgatio on the grounds of necessity.

Then, he must also avoid appearing to have thrown the third man’s case to gratify the rich man. The diligence with which the declaimer must weigh his case in advance to avoid the temptation of falling into common rhetorical strategies serves to train him to take into consideration the emotional impact of those strategies, just as claimed the orators of Calpurnius Flaccus’ declamations.

Finally, the orator of Dec. Min. 337 demonstrates the same forethought in a much darker sense, demonstrating also the dark power of oratory. A poor man, who was disertus, convinced the people that a rich man, serving as general against an enemy attacking the city, was actually betraying the state; the people burned the rich

33 man’s house and slaughtered his wife and children. The rich man wins, and his victorious army upon returning does unto the poor man’s home and family as the poor man had done unto the rich. The poor man renders his reasons for opting to kill himself. He does this, [Quintilian] posits, to breed resentment against the rich man

(337.2). Thus he uses his power, which he had before exercised to harm his opponent, again to wound him, and with malice aforethought. He quotes his opponent, “I too have suffered these things,” only to undercut him: “I know where this is going: so that I seem to have suffered justly” (337.11). The orator’s dark art anticipates the public reaction and the opponent, always a step or two ahead in the race to control public opinion.

Between the orator and the disertus lies little, if any, distinction. The disertus is twice called poor, nor is any explicitly rich man ever called disertus, and this squares well with some of Seneca’s diserti such as Timagenes, who worked his way from captive to cook, cook to litter-bearer, and thence into the friendship of Augustus

(Sen. Controv. 10.5.22). Nevertheless, the father of 283 shows no trace of remarkable poverty, and one would be hard pressed to fit the salaputium disertum

Licinius Macer Calvus into the ranks of the impoverished. Instead, the link between the pauper and the disertus more likely lies in demonstrating persuasion’s power in a free state to provide equitable opportunities independent of the blessings or curses of fortune.

The Physician (Medicus)

While the philosopher appeared only in two cases of [Quintilian] and the orator in a handful scattered between the Dec. Min. and Calpurnius Flaccus, the physician appears in every ancient declamatory corpus, and medical images and metaphors fill the Dictiones of Ennodius.

34 In some cases the physician plays not only a supporting role but becomes a legal subject, arguing a case. This is true of the son in Sen. Con. ex. 4.5, but it reaches its height in Dec. Min. 321 and Calp. 13, two cases in which a physician may bear responsibility for poisoning. In each case, someone suspects that he has consumed poison, and a physician administers a supposed antidote. The patient dies. In each case, the alleged original poisoner and the physician contend over which actually administered the poison. In the former case, the patient’s brother falls suspect of poisoning, as does the doctor, so they each charge the other with poisoning. In the latter case, both potential poisoners are physicians, and the patient a tyrant, which gives each physician a claim to the prize of the tyrannicide. Either way, the patient lies dead. The physician does not appear in the declamations as an excellent healer.

Three of the cases (Sen. Con. ex. 6.7, Dec. Min. 291, Calp. 48) take as their model the diagnosis of love-sickness made by Erasistratus upon examining the young Antiochus.5 In none of the cases do Erasistratus or Antiochus appear so named, but rather the characters are anonymous stock; nor do the doctor or doctors discover the precise nature or remedy for the young man’s illness. Instead, they simply determine that he suffers not a physical ailment but a psychological one

5. Valerius Maximus tells the story in an extract appended to 5.7, Plutarch in Vit. Demetr. 38, Lucan in Syr. D. 17. Of these, Valerius Maximus hesitates as to the name of the doctor, whether it had been Erasistratus the cardiologist or Leptines the astrologer. Soranus, in the opening of his Vita Hipppocratis, attributes the diagnosis and remedy to the father of medicine himself, pushing the date back of the century to the rule of Perdiccas II of Macedonia. For detailed discussion of the sources and development of the story, see Pinault 1992:61–77. Bonner 1949:37, believes that story of Lucius Gellius’ son, accused of conducting sexual relations with his stepmother and planning to kill his father (Val. Max. 5.9.1), is as close a parallel to the three cases of these declamations as is the story of Erasistratus. The story of Gellius, however, includes no doctor. 35 (animi vitium: Sen. Con. ex. 6.7; animi languorem: [Quint.] Dec. Min. 291 and Calp.

48). This shows a limit of the physician’s power: trained to heal the body, he cannot help the soul. In each case, the doctors fail to heal the son’s depression, which leads to a sexual rearrangement in which the son obtains from his father or brother the woman who cures his depression, but this rearrangement causes outrage and grief in the family, in two cases (Dec. Min. 291 and Calp. 48) leading to fratricide.

What began as depression, untreated by physicians able to heal only the body, leads to greater and greater problems: a new remedy is needed, one that can check the spread of the animi vitium before it rends the family apart further. This is the job of the law and its declaimer. The fictive law provides charges that represent familial strife, namely the accusation of dementia (Sen. Con. ex. 6.7), by which a son seeks to remove a father from his power as father, and the action of abdicatio (Dec. Min.

291 and Calp. 48), by which a father disavows his son.6 Only before the law and with the aid of rhetoric can the family heal its pain. The fictional nature of the laws, at an extradiegetic level, provides the declaimer with a specific avenue to approach thinking about the ethics of family life and how to resolve grief in real life before it causes damage.

The cases modeled on Erasistratus called in physicians to no avail, and they disappeared upon announcing their inability to help; so too do physicians, whenever called in to consult in the plural, fail to save their patient, although a single physician, better than the rest, might succeed. In Dec. Min. 350, doctors treating a son fallen

6. Despite vaguely similar real-life procedures like exheredatio, these charges are not part of Roman law but serve as a convenience for inspecting familial emotions through declamation. For the fictive nature of abdicatio, see Quint. Inst. 7.4.11, Cod. Just. 8.46.6 and Bonner 1949:101–103. For the same with dementia, see Quint. ibid., Bonner 1949:93–94. For the disconnect between legal practice and declamation in general, see Crook 1995:163–167. 36 into grave illness advise that he be given no water; the son’s stepmother gives him water, and he dies. The doctors gave their advice, the stepmother did the opposite, and the doctors’ opinion proves correct: perhaps they could have saved the son, but they did not because the stepmother intervened. The father charges the stepmother with poisoning, which leads to the physical and definitional question of whether water can be poison, but the case also treats the father’s grief for his son and alienation from the stepmother. In Sen. Con. ex. 4.5, the father disavows his son and grows ill, the doctors give up trying to cure him, but the son, who studied medicine while sundered from his family, treats the illness and rejoins the family. The stepmother falls ill, and the father demands that the son treat her. For the son, the best argument seems to be that the illnesses are psychological: the father grieved after the abdicatio and fell ill of it, while the stepmother fell ill of grief because the son had returned. This physician understands not only healing the body but also the soul; he also knows that he cannot save the stepmother. Finally, in Dec. Maj. 8, the usual coterie of doctors despair of saving infant twins, but one enterprising physician promises to save one of the twins if he can dissect (or perform vivisection upon?) the other. The father allows the procedure, and one son indeed survives while the other dies. The mother charges the father with domestic abuse (malæ tractationis), another fictive charge designed to give a family member a right to air grievances.7

As in the other cases, the doctors as a group failed to cure the initial illness, and a

7. Cf. Bonner 1949:93–94 and Breij 2006:89–98. Though the charge seems to have been fictive, the definition found in [Quint.] Dec. Maj. 18.5 bears similarity to the real-world charge of malæ tractationis found in the Liutpriandi leges 6.67 of the eighth century, where it receives a more narrow definition of physical abuse or the failure to adequately support the wife monetarily. The influence of declamation on the law codes adopted by early medieval (“barbarian”) societies has not, to my knowledge, been explored. 37 single physician did, but the pain does not end there: the family grief grows and must find remedy in court, in discussion and words. Physicians act as a foil for the orator: one has power in the realm of the physical and sensible, but treating the intelligible realm of emotions requires a different sort of physician, an orator.

The physician and orator, along with the philosopher, come face to face in Dec.

Min. 268, which enacts the thema given at Quint. Inst. 7.1.38–39.8 The three figures contend in proving which conduces most to the public good, with inheritance as the prize, but we have only the physician’s speech. Philosophy does good for the few who practice it, and oratory can harm as well as aid, but the physician treats everyone and therefore confers the greatest benefit to the city (268.2–3). Philosophy is not even necessarily beneficial, in part because tyrants and public enemies were graduated from Socrates’ school;9 from here, the physician enumerates a host of theses, none of which have managed to “amputate” the faults of man (268.15).

These are, of course, philosophic theses and not declamatory hypotheses. Likewise the orator falls short in that, although nature requires man to use speech to communicate any idea, excessive ornament is not needed (268.17). Moreover, oratory sometimes breeds detrimental effects in lawsuits and political disputes

8. Some reflection of this may also be sought in Quint. Inst. 2.16.5, in which government officials, physicians, and philosophers may seem useless because of bad examples of each. 9. Quis ignorat ex ipsa Socratis…schola evasisse tyrannos et hostes patriæ suæ, 268.8. The phrase Socratis schola reminds one of the scholastic nature of declamation itself. The physician names no philosopher beyond Socrates, although the descriptions of various beliefs at 268:9–10 may hint at Epicureans, Stoics, and Peripatetics (cf. Winterbottom 1984: 360–61). While the physician does not clarify which tyrants and traitors he means, one might recall Critias; Winterbottom 1984: 360 suggests Dionysius II of Syracuse, “unsuccessfully practised upon by Plato,” and Alcibiades, but Critias, as one of the Thirty, would satisfy both descriptions of tyrant and public enemy in a figure who associated with Socrates rather than Plato. 38 (268.18–20), both for the Greeks and the Romans.10 In short, the physician provides a necessary and beneficial service of greater use to the city: no one falling suddenly ill would consult (consuleret) an orator, nor would it be effective for the philosopher to console (consolaberis) a patient if the medical art were suddenly to disappear.

These two functions, consultation and consolation, appear to be exactly what

Antiphon was supposedly practicing in consulting and consoling the grieving, and they recall Philo’s idea of a layman’s philosophy based on hypotheses and explained through medical metaphor. As Bernstein 2013: 45 notes, Pl. Grg. 456b–c associated the physician with the orator and places them into exactly the sort of contest provided here. 11 The physician, further, was Plato’s first example of justice according to Simonides, the ability to benefit one’s friends and harm one’s enemies (Rep.

332c), so he makes a good figure to represent the healing of the soul and its restoration to justice. Again, Socrates suggests that lawcourts and physicians’ clinics flourish and orators and doctors become powerful when a city lacks the restraint it needs to remain just and healthy (Pl. Rep. 404e). The physician is thus, for Platonic philosophy, an agent of justice, just as much as the orator. This debate itself, divided between philosophy, oratory, and medicine, may represent the psychological element of declamation.

If so, the medical imagery of Ennodius’ Dictiones offers an inversion of declamation’s power to heal. The late fifth- or early sixth-century Dictiones provide

10.“Of either culture,“ utriusque partis (268.20), recalling the use of pars and ex altera parte in two-sided law case (of which 268 is conspicuously not an example). 11. Bernstein, however, claims that cases like this test the orator’s claim to a better ability to persuade than the specialist, and that “Winning the case means a victory for rhetoric itself,” despite the fact that no example survives of a declaimer taking the orator’s side: [Quint.] 268 presents only the physician’s argument, which undercuts Bernstein’s position. 39 the darkest cases of all declamation, and the Ennodian declamatory persona, except in one case (Dictio 21, a response to [Quint.] Dec. Maj. 5), always prosecutes, always with relentless and righteous indignation. When Ennodius says medica manu, “by the doctor’s hand,” in a declamatory Dictio, he means death. In Dictio 17, a son refused to provide for his father, a common idea in controversiæ and one usually remedied with a suit under the law Liberi parentes in egestate aut alant aut vinciantur, “Children shall either support their parents in poverty or be arrested.”12

Where ordinary declamation provides a remedy, Ennodius presents a family for whom the declamatory law failed to intervene in time: the father of Dictio 17 has died of slow starvation, and the son now comes to trial for an unprecedented death that never should happen in Sophistopolis, since an action aut alant aut vinciantur should have lain for the father against the son. Ennodius’ prosecutorial voice tells the son that he would have done better to euthanize the old man, si medica manu praestitisses (17.2). Likewise the tyrant of Dictio 18, the only one ever to appear in court (what penalty could a court impose on a tyrant?) denies death to those who wish for it, as if it were his part to offer or deny death with a medica manu (18.7).

The phrase medica manu does not always take on this dark cast in the Ennodian corpus. Outside the declamatory works, as in his Vita Epifani, Ennodius uses the phrase to describe the administration of justice by Theoderic, qui manu medica publicis consueverat subvenire vulneribus (123), and the healing power of Pope

Symmachus’ rhetoric (ut quidquid ægrum est medica oratione curetis, Epistola 4.1).

Likewise, in Epistola 7.18 to Avienus, Ennodius advises that the doctor’s hand is necessary to heal the grave wounds of a judge suffering from the vices of a base

12.Cf. Sen. Controv. 1.1 (the first law of the first thema of the first declamation in the surviving corpus), 1.7, and 7.4; [Quint.] Dec. Maj. 5. 40 character. Medicine, and specifically the medica manus, appears in Ennodius’ corpus as a metaphor for justice, except in the Dictiones, the failed Sophistopolis where it would, if allowed, provide at least a relief from the torments of injustice unchecked by the laws—yet the character who wields the manus is unjust and thus refuses to grant the solace of death. The medical metaphor continues its ominous tone in Dictio 14, the case of the ambassador who betrayed his country.13 He resembles a doctor (curator), whom the fevered patients trust for a cure, but who instead under the pretense of medicine (sub medicinali specie) snuffs out life (14.6).

The language of medicine, especially the Ennodian favorite penetralia, continues in

Dictio 15, in which a stepmother poisons both her stepson, as do so many

Sophistopolitan stepmothers, and her husband, something no stepmother in earlier declamation dares.14 For Ennodius, whose declamations present crimes beyond the bounds at which older declamatory law should have intervened, medicine brings no relief, the medical experts bring only pain, and justice always takes the form of prosecuting some evil that has slipped whatever leash by which declamation should have restrained maleficence. In Ennodius’ world, declamation has no more power to heal: all that is left is to purge the evil by zealous prosecution.

13.That an ambassador might betray his country, after the fashion of Æschines in 347–46 BC, should have presented itself earlier in the themata, but no ambassador ever betrays his country in the surviving declamations, making Ennodius’ Dictio on the theme another inversion of declamatory norms. 14.Stepmothers allegedly poison their stepsons in Sen. Controv. 9.5 and 9.6, Calp. 12 and 35, [Quint.] Dec. Min. 319, 350 (if water be poison to an ill man), and 381. A stepmother administers a soporific to her stepson and stands trial for poisoning in [Quint.] Dec. Min. 246; they poison stepdaughters in Sen. Con. ex. 6.6 and [Quint.] Dec. Min. 354. In no case before Ennodius, however, does any stepmother or wife ever poison her husband. 41 CHAPTER 3 DIVINE AND HUMAN

Lata est sententia; pronuntiatum est; damnata es: interrogo te hoc loco, mulier, responde mihi: sunt dii?

Sentence is passed on you; your case is closed; you stand condemned. I ask you at this point, woman—tell me—do the gods exist? (Sen. Controv. 1.3.2)

Mary Beard 1993: 55–56 proposed that declamation had assumed for the

Romans the function of myth, and that the idea of law had supplanted mythic divinity as the organizing authority and moral backstop that presided over the mythopoetic renegotiation of social values within the creative model of “Sophistopolis.” The relocation of that authority from the sphere of the divine to the legal, from the author of men to the lawgiver, entailed some Entzauberung of the fictive world, or at least a disenchanted perspective on themes that declamation had inherited from earlier mythopoetic genres such as tragedy and epic. The pantheon recedes from view, leaving behind but a few divinities of state cult, who themselves neither prosecute nor defend. Declamation focuses on human ethics within the context of the civic whole, so it cannot ignore the ethics of state religion as well as the problems that decentralized, non-civic belief systems such as astrology and dream interpretation raise.

Moreover, since the gods of traditional mythic genres have no active role in declamation, their earthly proxies (or schemers who pretend to the role), the priests and oracles and dreamers, represent and defend what authority the divine, devoid of its mythic trappings, enjoys among the Sophistopolitans. The law codifies divine authority in sacerdotal privilegia and conditions imposed upon priesthood, but the declamations in which the laws are found constantly question the justice of that special treatment. Other figures, such as the mage and the astrologer, come into

42 question as authority figures, and their claims to knowledge and abilities become points of debate. Declamation differentiates the credibility and authority that attach to different forms of religion by allowing some, but not all, forms of religious authority to serve as subjects of debate.

Criticism of declamation, however, tends to confound those aspects and hold as unreasonable the frequency of declamatory cases with religious overtones. When

Quintilian wants to point to the elements of declamation that are supra fidem, he gives as his first examples the supernatural magos et pestilentiam et responsa,

“mages and plague and oracular responses” (Inst. 2.10.5). Likewise, Petronius mentions responsa in pestilentiam data, ut virignes tres aut plures immolentur,

“oracular responses given against plague, ordering that three or more virgins be sacrificed” (Sat. 1). Both criticisms mark a division between the attitudes toward religion found in declamation and those reasonably expected in a real courtroom.

However conservative might appear the declaimer who reinforces notions of

“traditional” religion such as state cult or oracular consultation or calls into question the veracity of dreams and fortunetellers, his Sophistopolis stand far apart from the

Roman forum and its trials, where cases about sacrificing virgins simply do not come before a magistrate. The declaimer does not, then, reinforce real values of the contemporary courtroom but rather the values of an ethical philosophy.

Sophistopolis further has priests and temples and even special laws, such as charges of sacrilege or theft from a temple, that add a religious dimension to ordinary theft.1 If the idea of justice, as Beard proposes, supplants the divine as the source of

1. There are only two thieves in the declamatory corpus (Sen. Controv. 10.6 and [Quint.] Dec. Min. 361) but six who have stolen, or who at least claim to have stolen, from temples (Sen. Con. ex. 8.1, 8.2; [Quint.] Dec. Min. 304, 324, 379; Calp. 42). Sacrilege apparently interests the declaimers more than simple theft. 43 mythopoetic authority, the law within declamation must cope with the social acceptance of religion and thus contend with it for authority, a contest that plays out in declamations featuring supernatural elements.

Named Gods

The gods as individual characters receive little attention in the early days of

Roman declamation and even less with the progress of time. They appear only earlier: in five Senecan themata and one of Calpurnius Flaccus,2 but never in the pseudo-Quintilianic declamations. Outside the themata, the [Quint.] Dec. Min. do mention a stripped statue of Jupiter (369.2), but the gods remain largely anonymous figures, as in the commonplace praising man as animal hoc deo proximum (“the animal closest to god,” 260), and formulæ like O di immortales and generic expressions of fate and death, especially in the run of declamations between from

321 to 329. Likewise Calpurnius Flaccus, besides keeping around a priest of Mars, mentions an Amor (33) responsible for nothing more than personifying passion, and he repeats the formula Pro deum atque hominum fidem (20, 34).3 For the declaimers of the pseudo-Quintilianic Dec. Maj., Jupiter makes for nothing more than a good oath as bone Iuppiter,4 while Liber, Ceres, and Minerva are at least worshipped by men in conjunction with the fruits of the earth, although the declaimer stops short of ascribing any etiology to them as actual beings. For the later

2. Sen. Controv. 1.3 and 10.5; Con. ex. 4.2, 6.8, and 8.2; Calp. 26. 3. Calp. 20 and 34. An odd phrase: it appears in comedy, then once each in Cic. Orat. and Sall. Cat. (20.10, attributed to Catiline). 4. Notably, the rare oath had appeared in Sen. Con. ex. 7.1 and Controv. 9.2, both times prefixed by pro; without pro only at Stat. Theb. 12.87 and Flor. Vergilius Orator an Poeta 3.8. In all cases, it accompanies an adverbial exclamation of degree. 44 declaimers, gods play a trifling part in the human contests of justice; they largely fall out of the philosophic debate of declamation after Seneca.

The few gods who are named in themata divide into two groups: those belonging to Roman cities and those to Greek. Of Rome is Vesta, of Athens are

Minerva and Prometheus, and of Elis (in connection with Athens) Jupiter. Mars, mentioned in Calp. 26, might also point to Rome, as might the aquilæ and signa of the army; nothing in the surviving fragments of that declamation, however, could rule out a fictitious Sophistopolis. In general, however, the use of named gods is correlated to geographic specificity, as in the veteres controversiæ that Suetonius recalled.

Vesta

Vesta alone appears more than once in the classical themata: in Seneca’s

Controversiæ, once in connection with a Vestal Virgin5 condemned for sexual misconduct (1.3), once with a Vestal Virgin accused of the same for writing a hexameter line glorifying marriage (6.8), and once when Metellus saves the

Palladium, emblem of the city’s protection, from Vesta’s burning temple (4.2).

Mention of Metellus and the Palladium clearly locates 4.2 in Rome, 1.3 explicitly mentions Roman power, and so Vesta appears to be a marker for Rome. After

Seneca and before Ennodius, however, the declaimers ignore her, as they generally do the gods.

Vesta's inclusion brings two ideas to the declamations, the notion of corporeal integrity of her cult workers and the divine guardianship of civic power.6 Veniet ad

5. That she is a Vestal is not expressed in the thema but clear from Cestius Pius’ sententiæ (1.3.2). Cf. Quint. Inst. 7.8.3. 6. On the connection of these themes in the Vestals, as well as the uniqueness of the Roman conjunction of these thoughts, see especially Parker 2004. 45 colendum Romani imperii pignus etiamsi non stupro, at certe carnificis manu incesta?7 asks Latro. That imperii pignus is, of course, the Palladium that Metellus saves in 4.2, at the cost of his eyes, raising the question of whether an imperfection resulting from heroic service to the goddess and the pignus disqualifies the hero from serving in a sacerdotal capacity. Of these two ideas, that of corporeal integrity bears more heavily on the themata.

But why Vesta? In the case of the Vestal who wrote a line of poetry praising marriage (6.8), in any other woman no crime at all, only the gravity and chastity of the Virgin’s role could make such an innocuous act a capital offense. In that of the woman thrown from a rock for incestum, only to survive to the magistrates’ consternation (1.3), another god might do,8 and indeed many of the declaimers speak of her as invoking the gods in the plural. Metellus, losing his eyes and potentially his pontificate, could have been an unnamed Sophistopolitan losing his chance at sacerdotal privilegium: compare the priest of Mars in Calp. 26, whose privilegium may end when he commits adultery. Moreover, in every case it is not the goddess whose behavior is in question, but her priests and priestesses: they are on trial, not she.

Yet, Seneca’s declaimers choose to add Vesta by name and to take the opportunity to explore Roman connections like the pignus imperii. In this respect,

Vesta serves to allow the earlier declaimers to make specific, Romano-centric

7. “Will a woman violated, if not carnally then certainly by the executioner’s hand, come to venerate the sign of the covenant guaranteeing Roman power?” 1.3 8. While Vestals were ordinarily buried alive as a punishment, citizens convicted of treason and incestum could be thrown from the Tarpeian rock. Cf. Quint. Inst. 7.8.3, where the basics of the theme are repeated sans Vesta, since the thema does not strictly require her. Cestius Pius (1.3.7) however, in defending the Virgin, defines this as a privilegium for priests: that the only real judgment passed on them should be that of the gods at the rock. 46 statements; her disappearance in the later declamations is part of a general trend towards a universalization or generalization of declamation. The concepts of corporeal integrity and divine guarantee of power are part of the Roman identity under discussion and negotiation in Seneca, but not in the later declaimers. As declamation grows, it abandons the older connections to contemporary society and becomes a more generic world unto itself, a Sophistopolis.

In late antiquity, however, Vesta reappears in Ennodius’ Dictio 22, a laus legis in which the speaker advocates the enslavement of enemy priests and Vestal Virgins, suggesting that the speaker is not Roman but eager to sack pagan Rome. In this,

Ennodius inverts Vesta’s role as tutelary divinity for a Roman declaimer: here the goddess earns mention because of her impotence to save her own, or even her city, from servitude. Missing is the theme of integrity, but there is a sense of inadequacy: the priests and Vestals would not have been captured si meruissent ministri esse cælestium (“if they had deserved to be the ministers of the divine”). The true servants of God are, for Ennodius, mixted with the divine (non latet cælestis illa permixtio et, quamvis humanæ fragilitas tunica vestiatur, effulgorat). Vesta, nor the other pagan gods, can offer that, and so the human integrity of Vesta's virgins represents a failing in comparison with the speaker's presumably Christian permixtio.

Mars

After Seneca and Before Ennodius, Mars is the only god to appear in any thema. Calpurnius Flaccus mentions a priest of Mars in Decl. 26, setting up a contrast between the father, a war hero and priest of Mars, and his three deserter sons. The god himself does nothing except to heighten that contrast by his mention.

Again, it is the expectation of behavior appropriate to a priest and soldier and father that comes into question, not the actions of the god. Given that the few fragments

47 remaining mention specifically aquilæ and signa of an army, this seems to be a

Roman Mars: the specificity of the god implies specificity of place. His absence from the remainder of the declamatory corpus is notable: only Vesta stands for Rome elsewhere, and Mars never again merits mention. The law concerns itself with the integrity of the city: martial valor has its place, but that place is not the courts. The declaimer practices justice and the exercise of reason, a part separate from the matial spirit according to the Platonic conception of the tripartite soul.

Jupiter, Minerva, Prometheus

The gods of themata set in specific Greek cities occur only as objects or dedicatees of artworks. The Athenian Phidias makes his Olympian Jupiter for the

Eleans, and Parrhasius, also an Athenian, fashions a Prometheus for the temple of

Minerva.9 These are the only cases mentioning Jupiter, Minerva, or Prometheus in a thema, and they only occur in connection with Athens (the cases are both tried there) and only within Seneca: that is, these Greek-themed cases occur early in the development of the genre. In both cases, artists make gods: Phidias’ hands craft

Jupiter of gold, and Parrhasius makes a Titan in the image of a tortured old man.

The potency of the idea of manufacturing gods is not lost on the declaimers: as an unnamed speaker in the excerpts of 8.2 says, Primum sanguinem deus sui vidit artificis: “The god first saw the blood of his own maker.”

Entwined with this production are questions of xenia, a domain of the Jupiter, and bodily integrity. The Eleans accuse Phidias, the Athenian, of sacrilege, namely

9. Sen. Con. ex. 8.2 and Controv. 10.5. One might imagine Phidias saying “Zeus,” and Parrhasius “Athena,” but the declaimers render the Latin names. Prometheus occurs in the Greek of 10.5.20, 21, 24, but neither Zeus nor Athena survive in Seneca's writings. Notably, Zeus was closely associated with Elis, and Athena was the tutelary goddess of Athens; they correspond to the role of Vesta as chief divinity of the Roman-flavored Sophistopolis. 48 of stealing from Jupiter, god of hospitality, and in return they chop off the hands of the guest artist once they’ve convicted him of theft. Parrhasius buys an old

Olynthian, elsewhere protected guests of the Athenians but here Philip’s prisoners of war, and tortures him as part of his artistic process. Each case involves the violation of a foreigner’s body in connection with the creation of an artistic work, which

Gunderson 2003:91–95 connects to the artistic creativity of the declaimers themselves, who make beautiful speeches by describing human grief and suffering.

These Greek cases contrast heavily with the Roman ones. The cases involving

Mars and Vesta highlight the daring of heroes (Metellus and the Martian priest) and potential civic betrayal (the priest’s deserter sons and the Vestal Virgins who may or may not be incestæ). Above all, however, they deal with the importance of priests and worship to the city’s wellbeing, even while questioning, as in Controv. 1.3, whether gods exist or take an active role in human affairs. The Greek cases, however, involve not heroes or priests but artists: priestly figures are missing entirely, and makers of things supplant directors of worship in the themata.

Seneca's Suasoriæ preserve one further mention of Athena, in Greek and Latin, although not in the thema. Antony, who also identifies himself with Dionysus, becomes the butt of Athenian graffiti (1.6–7). This conforms to the patterns outlined above: the milieu is Athens, and it is not the goddess who acts, but an act that is committed against her statue.

Priests (Sacerdotes)

If the gods are but statues, objects under legal debate, their priests and virgins can act before the law. As with the mentions of gods, Vesta and Mars dominate: of the cult workers appearing in the themata, six serve Vesta, one Mars, and four no specified deity.

49 Vestal Virgins and the Pontifex

As Vesta is the most important divine figure for Roman declamation, so too are her cult workers the most important of the humans afforded special legal status by their religious duties. Vesta's declamatory cult workers are of two sorts: the Vestal

Virgins and the Pontifex, female and male.

Sacerdotal status comes with privilegia and conditions. The status of a Vestal cult worker is desirable: a rich man may go to extraordinary (and, in the view of a poor man, unjust) lengths to see his daughter granted the rights of priesthood (Dec.

Min. 252 and 370). The conditions, however, are more important for Vesta’s priestesses; questions of privilegia arise in the other priests outlined below in Priest of Mars (p. 55) and Generic Priests (p. 56), although the trappings of office are mentioned in some Vestal cases. The prime condition for Vestal cult work is integrity: for women, this means chastity, whose definition, whether simply corporeal or also mental, is up for debate (v. especially Sen. Controv. 1.2); for men, possession of a whole body, including the eyes. Further, the sacerdotal condition can bring a third element, the possibility of divine intervention, which threatens to override mortal concerns over integrity: divine intervention is rare even among the cases dealing with priests, featuring in only one declamation outside the Vestal cases (Dec. Min.

323).

In Sen. Controv. 1.2 and 1.3 and Con. Ex. 6.8, we encounter women either becoming Vestals or facing death, concomitant with termination of sacerdotal status.

The prostitute who killed a man wants to become a Vestal (1.2); she faces the prospect of having lictors clear her path and enjoying social precedence over consuls (1.2.3), but questions linger about her integrity. There is no proof that she is

50 not of intact virginity, as far as the body is concerned,10 but the declaimers who argue against her petition for sacerdotal status question the purity of her mind.11 Mento

(1.2.4) suggests that a Vestal should not hear named the topics of the case: the brothel, the pimp, the whore’s profit, murder. Likewise Pompeius Silo asks her sarcastically not to listen as he narrates her background, because knowledge even through hearing of such things is wrong for a priestess. This reflects one of the major divisions of the case, a question of definition: “Whether chastity refers only to virginity or to abstinence from all shameful and obscene things.12 This is the main question that a Vestal can bring to the thema, and that no other figure can: no other persona would be kept from all shameful things. Those who defend her focus on her bodily integrity, since they cannot address what she has seen or heard without confirming the accusers’ perspective, although Silo Pompeius (1.2.20) does try to redefine the pudicus animus in terms of intent rather than knowledge. The piece does offer declaimers taking the woman’s side another color that derives from her connection to Vesta, namely the possibility of miraculous intervention, since only divine power could have helped the woman escape captivity, prostitution, and trial for murder (1.2.17–21). That she was indeed found innocent of murder by a foreign court puts human justice on the side of divine intervention as two forms of artless

10.Certainly, some do suggest some bodily impurity. Asprenas (1.2.9) refuses to believe her tale of virginity maintained even in the pirates’ boat, and Latro in dividing the case (1.2.14) notes that casting doubt on the issue of her bodily integrity may suffice to make her seem unworthy of the Vestal office. This is purely an art-driven argument, in contrast to the evidence of divine intervention and absolution by another court that the opponents can claim. 11. Cf. Gallio (1.2.11): lex… inquirit in maiores, in corpus, in vitam, “the law…inquires about ancestry, body, life.” 12.…utrum castitas tantum ad virginitatem referatur an ad omnium turpium et obscoenarum rerum abstinentiam (1.2.13). 51 evidence that may be brought on the petitioner’s behalf, bolstering a weak case whose other side, as Seneca himself comments, nihil habet difficultatis (1.2.21). The virgin, one might note, maintained her chastity against a soldier and the worst intentions of a pimp, one the symbol of martial spirit, the other of appetite: keeping herself aloof from them, she could well represent the more divine part of the soul.

Her counterpart in 1.3, the Vestal condemned of incestum and cast from a rock only to survive, similarly raises questions of divine intervention but also of judicial epistemology. Both sides consider the possibility that the gods will save her. Her defenders plead divine knowledge of their client’s innocence earnestly, as in Fulvus

Spasrus’ suggestion that the survival marks the Virgin’s absolution from guilt, and

Cestius Pius’ remark that the point of punishing a priestess at the rock rather than by other processes of execution is precisely to allow the gods to pass sententiam

(1.3.7). Here the gods’ knowledge takes judicial form, in absolution and sentence, as well as precedence over the power of human justice: such a defense questions the court’s competence, since the gods have shown it unjust. From the other side, her accusers invoke divine judgment sarcastically, suggesting that she should be thrown off repeatedly if she has nothing to fear (1.3.3), with several declaimers suggesting that the gods might have saved her the first time so that she could suffer more grievously on subsequent attempts (1.3.8–10). In fact, there is little point in punishing a priestess if divinity is not outraged by her behavior, so both sides of the case must consider the divine: the only question is whether she was saved by the help of the gods (an hæc deorum adjutorio servata sit, 1.3.8), whether a seemingly miraculous event is proof of divine will or an accident.

In [Quint.] Dec. Min. one finds no Vestals as such, but rather rich and poor men competing to have their daughters chosen in comitia as Vestals in two cases (252

52 and 370) that appear to be identical. The poor man's daughter, on the verge of being chosen as Vestal, is raped by the rich man's parasitus. The usual lex raptarum is replaced by one allowing a fine of ten thousand currency units (the generic amount of any sum in the Dec. Min.13) instead of death or marriage without dowry, one of the few times that the well-known law changes: this allows the rich man to step in and pay the parasitus’ fine, giving him an ambiguous role in the rape as a possible accessory. The ambiguity gives rise to the charge of inscriptum maleficium or wrongdoing not covered by any existing law, a proverbially14 declamatory fiction that occurs in few cases.15

Neither the raped nor the rapist are directly involved in the case, which is fought between rich and poor fathers. [Quint.] Dec. Min. 252 and 370 bear some similarity to 343, in which the rich and poor compete, leading to a charge of circumscriptionis, devious legal maneuvering, a charge with no modern equivalent, and its follow-up

344, another case of inscriptum maleficium.16 Like the charge of inscripti maleficii in

13.The myriad is a proverbially high number: it also is the fine for injury committed in a temple (Dec. Min. 265), the reward given to the father of a vir fortis (278), a sum bequeathed to a freedman (318). The declaimers do not elsewhere count so high, except that Sen. Con. ex. 3.1 has a welfare payment of one thousand denarii for the blind, Con. ex. 8.2 a hundred talents as compensation for Phidias' hand, and Fuscus in Sen. Suas. 5.1–2 claims that the casualties in the second Persian war were extincta or cæsa milia. Note that the denomination of the currency is only named in Sen. Con. ex. 3.1 and 8.2, one Roman and the other Greek; elsewhere the lack of a currency, as in this case, leaves the site open to interpretation, although Vestals make up part of Roman state cult. 14.Compare Cicero's prank on Cestius from Sen. Con. ex. 3.pr.17. 15.Besides these two cases, it is found only in Sen. Con. ex. 5.1, lodged against a good Samaritan who saves a man from suicide, and [Quint.] Dec. Min. 344, which also involves a potential suicide. 16.A crime that wrapped in a cloak of law, according to Sen. Con. ex. 6.3.1. Bonner 1949:131 laconically mentions that the Lex Plætoria is “in accord” with the actio circumscriptionis; he fails to mention that the Lex Plætoria concerns only minors. While the sole use in Seneca (Con. ex. 6.3) does pertain to the inheritance of a younger brother, [Quint.] Dec. Min. 343 affords no hint that the poor man is a minor, 53 Dec. Min. 252 and 370, that of circumscriptionis is a rhetorical ploy rather than a legal action: it allows the declaimer to establish a paradoxical situation in which the written law does not safeguard justice and equity. Charges in these contests of rich and poor test the ability of the written law to cope with iniquities that it either does not foresee or even unwittingly abets. Of the cases of inscripti maleficii, all in [Quint.]

Dec. Min. involve the rich-poor conflict and a third party, a woman whose body serves as the site of that conflict, but in such a way that the principal action pertaining to her is legally resolved prior to the case at hand—the rapist parasite is already convicted, or the poor man’s son has already redeemed his beloved prostitute. Thus in the pseudo-Quintilianic cases the candidate for office of Vestal

Virgin is not a legal subject of the case at hand, as she is in all the Senecan cases

(1.2, 1.3, and 6.8).

The ambiguity of the written law, whether to require of Vestal virgins chastity of body only or also of mind, applies as well in the case of her male cult worker, the pontifex Metellus (Sen. Controv. 4.2). The law here specifies that the priest must be

“whole” (integer), not “pure from pure stock.”17 In treating the intent of the law, one declaimer puts the sententia “The law applies the word ‘whole’ to the mind, not to the body.”18 In the male cult worker the body-mind opposition is reversed: in Sen.

Controv. 1.2 and Con. ex. 6.8, it was accuser’s duty to demonstrate that the lawgiver

nor 301 that the rich rapist might be one. Captation of a minor might be chargeable in Dec. Min. 355, but the thema contains a charge of pandering (lenocinii) instead. The charge is absent from Calp. and the Dec. Maj. It seems fair to assume that the charge of circumscriptionis spoken of in the Dec. Min. was not, at least by Quintilian’s time, an analogue of the Lex Plætoria, but rather a declamatory (and paradoxical) charge alleging wrong done through the abuse of legal processes. 17.castus ex castis: found only in the feminine as casta ex castis, Sen. Controv. 1.2 18.Lex integrum ad animum refert, non ad corpus. (Sen. Con. ex. 4.2.1) 54 wanted to apply the requirement of chastity to the mind as well as the body, while in

Con. ex. 4.2, the defense may attempt to show that the law applies only to the mind and not the body. This argument over the applicability of laws of integrity or chastity to both body and mind is the main philosophical point that any cult worker of Vesta brings to the case.

Priest of Mars

There is but one priest of Mars in the declamatory corpus, at Calp. 26. His status gives him the otherwise unknown privilegium sacerdotis, expressed in the law sacerdos Martis damnatum liberet.19 This mirrors the privilegium of the vir fortis, in that it offers a way to bend a law, although the exemption from the law is limited to saving a condemned man from punishment. The authority behind both privilegia, that of the sacerdos and the vir fortis, seems to derive from the defense of the city, and thus the law, from destruction at the hands of the enemy: he who defends the law can bend it once, and he who in two capacities defends the law can bend it twice. The question of Calp. 26 is whether he can bend it thrice by paying the price for the third son’s desertion, but underlying this, the father’s multiple rewards for valor must be contrasted with his sons’ desertions: can one who has done so much to safeguard the city and the law be allowed to sacrifice himself for three who have endangered the city? This seems the only reason for specifying that the priest serves Mars: it sets the priest up as a defender of the city and the law, but one who must ask for an exception to the law. Notably absent is the idea of bodily or spiritual integrity, an absence which underscores the differences in the functions of the priests in declamation.

19.Cf. the law from [Quint] Dec. Min. 284: sacerdos unius supplicio liberandi habeat potestatem, “Let the priest have the power of freeing one person from punishment.” 55 Generic Priests

Four other priests occur in [Quint.] Dec. Min., none of whom are specified as serving any particular god. Their anonymity in this respect underscores their role in declamation, not as signs of any dependence on external literature or culture, but as tokens that, through the possession of privilegia or his role as custodian of a temple, enable the logic of certain philosophical questions to enter debate. Two cases deal with the former privilegia and the other two with the temple.

The priest of [Quint.] Dec. Min. 284 tried to take advantage of a privilegium similar to that of the priest of Mars in Calp. 26, namely to liberate himself from punishment when caught in adultery. The teacher of the debate in a sermo outside the declamatio proper immediately summarizes the questions: whether he loses his privilegium (here called the jus sacerdotis, a defense explicitly tied to his persona in

284.2) when caught committing adultery, which entails a breach of integrity akin to the Vestal cases, whether he can exempt himself from a punishment, and whether such an exemption can be requested in private instead of public. The persona has no relevance beyond raising those questions, nor could any other persona raise the first question, since the vir fortis and tyrannicida, the other personæ tied to privilegia, operate under no restrictions or expectations of sexual morality.

Likewise, the rich priest of Dec. Min. 304 has the privilegium of three absolutions, of which he uses two to free the son of his enemy, a poor man, from punishment for sacrilege and adultery; with the third he wishes to save him from the punishment for desertion, while the poor man, declared a vir fortis in the same war in which his son deserted, wants the wayward son put to death. This case, in its tripartite structure, resembles that of the priest of Mars (Calp. 26), with the complication of the poor father, who gets the privilegium of the vir fortis and wants to

56 put his own son to death. The two fathers oppose their privilegia, creating an impasse for debate on the question of which should prevail. While one might think the same contest could arise between a ter fortis and another vir fortis, declamation usually avoids a situation in which two viri fortes can exercise their extraordinary rights at the same time.20 The tyrannicide never occurs together with the vir fortis, presumably because the vir fortis in such a situation would not have been so declared under the law of the free city but under the tyrant. This leaves the priest as the only source of public privilegium, exception to the law, to contest the præmium of the war hero.

The case also observes the tripartite division of roles in the city. The son has committed sacrilege, theft of holy property, and adultery, both crimes of appetite; his father is a war hero, the embodiment of the martial spirit; the priest, who repeatedly saves the appetitive man, belongs to the class of divinity and justice. The poor hero compares his right with the priest’s according to legal roles (de personis, 304.2): the priest owes his rights to the law, while the law owes its existence to the hero who protected it from the enemy (304.1). The poor hero seeks to avenge the cuckolded husband and the robbed temples, to punish the deserter, since the priest’s pardons have not functioned to correct the appetitive son’s vices but indeed enabled them

(304.3–4). When the divine and rational part of the soul treats the appetites too leniently, the martial spirit seeks to combat the appetite.

20.In such circumstances, a law compels a contest between simultaneous viri fortes, either a judicial contest, according to the law si plures erunt, judicio contendant (“if there are several, let them contend in court,” Sen. Controv. 10.2), or trial by combat ([Quint.] Dec. Min. 258, 271; Calp. 21). Such a contest would overshadow other ethical questions in the case. 57 In the two cases centering on the temple, the adjacent cases Dec. Min. 323 and

324, the duties of the sacerdos as pertain to the temple, not his privilegia, underly the main moral issue.

In the latter case, the priest claims the goods of a man who has confessed to sacrilege, via the law that such a man’s property is to be consecrated to the temple; yet another man claims the same property under a different law. The case opposes the two laws in much the same way as Dec. Min. 304 opposed the ius sacerdotis to the præmium viri fortis. The priest explicitly claims some authority deriving from religion: æquum est priorem esse rationem religionis.21 That this is up for debate points to the inevitable fact that religion’s precedence is indeed in question, and the priest is careful to put both human and divine laws under the authority of equity, as observing what he believes to be the proper order is æquum. In fact both laws under which the opponents lay claim to the property are written laws—scripta est altera deo, altera homini22—but both are written, and thus the products of man and part of a system governed by the authority of equity. The priest has no special right to bypass debate or lay claim to the goods on divine authority alone, but he must rather act his part in the declamatory game. Thus, while he may make a brief play for authority by asserting that laws pertaining to the divine might take precedence and even throw in a locus communis praising such a law (324.3), nevertheless he then proceeds to a much longer defense based on the chronological priority of the sacrilege to the other offense for which goods might be seized (324.5–7). The priest’s authority is very much held in check by mortal, judicial authority, so that, beyond enabling a locus

21.“It is equitable that religion be thought of first.” (324.2) 22.“One law was written for god, the other for man.” (324.2). 58 communis, the function of the sacerdotal condition is little more than to enable a conflict of two scriptæ leges.

The former case, Dec. Min. 323, sees an Athenian priest on trial for his life for aiding the enemy. Alexander had besieged Athens and burned an extramural temple, which he was told triggered the plague that began devastating his army; he rebuilds the temple and agrees to leave in peace if the priest dedicates the temple; the priest does, Alexander leaves peacefully, and the priest is haled before the court, presumably for ending the plague, although the fragmentary remains of the thema do not specify this. Of all the cases, this offers the declaimer the greatest opportunity for demonstrating the power and authority of religion, as [Quintilian] remarks in the sermo preceding the declamation proper, since the beginning and end of the plague serve as an artless proof of divine intervention. Here we do see a direct claim on authority, namely that Athens seeks authority in the temple.23 Though the priest must still defend himself in court and before human law, here he does escape the cardboard role of the priest as vector for privilegia or conflict of laws and assume a role in which his sacerdotal capacity plays a strong role in his defense by giving him

23.Templum non illud vetus, non illud præsentissimæ religionis, non illud est a quo totius civitatis nostræ petitur auctoritas, sed novum aliquod et adhuc inexpertum (“It is not that old temple, not the one of the most active religion, not that from which the authority of our entire city is sought, but a new one and as yet untested,” 243.12). Winterbottom 1984:493 misunderstands the passage in order to defend Rohde’s emendation of est to sit. Winterbottom wants the priest to speak in the hypothetical about dedicating any new temple and to exaggerate the importance of the extramural temple, which Winterbottom wants to be the templum vetus from which the city seeks authority, taking the tricolon as referring to one temple. He even admits this ought to be the Parthenon and not something extramural. The indicative can stand, however, if we understand that the priest is representing his past decision to dedicate the temple and denying that he has done anything on Alexander’s behalf to the important temples of the city—that he has not aided the enemy by altering the city’s established divine order. Such a reading does the priest’s defense more good and requires no emendation. 59 artless proofs of divine will and authority. The prosecution must either acquiesce to the priest’s interpretation of divine intervention or argue that the plague was a natural phenomenon that would have weakened Alexander’s army to the point that the city could have defeated the enemy and retained its freedom through victory, but the latter option does not seem to have entered any of the priest’s refutations of his opponent’s arguments. This case then presents a rare view of the gods in action, hence the repeated use of the superlative præsentissimus24 to emphasize the præsentia numinis of the artless proof: where the gods elsewhere in declamation recede from the world, in this case the divine has agency.

Religious Figures not Aligned with the City

The priest of the city has his counterpart in enemy priests of foreign cities and the mage, but these are rare. These figures are alike in remaining outside the civic sphere of Sophistopolis: the enemy priests represent opposition to the religious authority of the city, while the mage operates outside cult.

Enemy Priests and Vestal Virgins

Cult workers of a city outside the jurisdiction of the controversia appear only in

Ennodius, in the sixth century. In Dictio 22, Ennodius' prosecutorial persona eagerly advocates the enslavement of priests and Vestal virgins taken in a conquered enemy city. He argues that they do not merit better conditions than the general populace nor any privilege of office sparing them from common slavery, since it was divine will that saw them thus reduced: “Who raises those laid low by the gods’ judgment, he struggles against the gods.”25 Divine favor, on the other hand, manifests itself in

24.Not elsewhere found in the declamations save in Quint. Dec. Maj. 13.19, præsentissima medicina, “the most efficacious medicine.” 25.Contra superos nititur, qui quoscumque illorum sententia prosternit extulerit (Dictio 22) 60 victory, and so divine authority not only exists but by the evidence of its existence, namely victory, contradicts the authority of any written law that guarantees freedom to vanquished priests. The closest parallel in earlier declamation is in the case of

Metellus, Sen. Con. ex. 4.2, in which one declaimer suggests that Metellus earned his wounds, “for not without the anger of the gods does a priest become crippled.”26

If the order of the fragments is secure, Gallio had disapproved of this tactic, since it would be dangerous to attack the dignity of a pontifex, but there the gods remain supreme. Ennodius’ attack is as much on the foreign gods as on the priests, who are merely their earthly proxies.

The Mage (Magus)

The magus appears only once, in the pseudo-Quintilianic Dec. Maj. 10, although the real Quintilian (Inst. 2.10.5) immediately lists magi among incredible topics of declamation, so it seems likely that others existed beyond the one of Dec. Maj. 10.27

Indeed incredible seems the role of the magus, hired by a father to lay the ghost of his son, whom his wife believes visits her at night. Bernstein (2013:74) falsely claims that the magus’ “professional credibility is not an issue in this declamation,” ignoring

10.5, 10.11 and especially 10.16–18: the wife’s advocate repeatedly attempts to refute the husband’s position that he does not believe in ghosts. The husband here is imagined as arguing that ghosts do not exist, that the wife imagined that her son’s shade visited her after death: he would say that he hired the magus not out of a belief in any power of conjuring or binding the dead, but as a psychological ploy to

26.Non enim sine ira deorum debilitatur sacerdos. Sen. Con. ex. 4.2.1. 27.Libanius, Declamatio 41, also features a µάγος, whose son (not daughter, pace Russell 1983:26) an oracle demands as price for the city’s safety from plague; the conflict clearly pits the two kinds of religious authority (both occur in Quint. Inst. 2.10.5) against each other. The character is, however, as rare in Greek declamation as in Latin. 61 remove the wife’s grief. In fact, even the wife admits the possibility of delusion:

“Videbam”, inquit, “et fruebar, et ad quem pertinebat, rogo, etiamsi decipiebar?”28

The wife’s advocate may well be refuting the Epicurean position (Kragelund 1991:

265–269): the husband personifies the doctrine, which denies the reality of such spectral visitations but believes in removing grief as would a doctor relieve pain.29 In this case the magus’ professional credibility very much is in question, and in fact is a central philosophic question in the clash between the husband’s Epicurean philosophy and the wife’s superstition.

The wife’s advocate does, however, provide a vivid description of the magus, offered as the hearsay of believers: Advocatur homo, cujus ars est ire contra naturam, qui simul ore squalido barbarum murmur intonuit, pallere superos, audire inferos, tremere terras, ut experimentis loquentium fama est.30 The verb advocatur and phrase experimentis loquentium signal that the description can be taken as an ironic and self-aware comment on the ars of declamation, especially in conjunction with the direct address to the magus as artifex: O mage sæve, crudelis, O in lacrimas artifex nostras, vellem non dedisses tam magnum experimentum!31 The

28.“‘I saw him,’ she says, ‘and enjoyed his company; and whose business was it, I ask, even if I was deceived?” 10.12. 29.Kragelund (1991: 269) does object that the argument fails to include Epicurean mockery of superstition, and thus constitutes a “rhetorical exercise, not a philosophical tract,” on the grounds that mockery characterizes Epicurean philosophy. The husband, of course, in defending himself against a charge of malæ tractationis must avoid alienating the wife through mockery. This does not change the fact that the wife’s advocate attempts to refute Epicurean philosophy throughout the speech: while not a tract, it is a rhetorical and philosophical exercise. 30.“A man is called to help, whose art is to proceed unnaturally; once he has intoned with his filthy mouth the barbarous murmur, the gods grow pale, the dead listen, the earth shakes, as is the rumor of those who speak from experience,” 10.15. 31.“O savage magus, cruel one, O artificer of our tears, would that you had not given such a great experience,” 10.9. 62 word artifex in rhetoric has special meaning, as illustrated by Quintilian’s definition of the term at Inst. 2.14.532: oratory is a science in the technical sense, and the artifex one who knows the science rather than one who has learned by experience.33

At a metapoetic level, the magus represents an untempered and crude declaimer,34 like the shouting ones tormented by the Furies at the beginning of what survives of Petron. Sat., an orator from whose ore squalido comes thunder that would frighten even the gods and lodge itself in the memory of those who have experimentum instead of science (ars). He can be counted as an artifex only in that he knows the science of provoking pathos like fear (pallent superos) or tears (in lacrimas artifex nostras).35 The lack of rhetorical ars in such a fearsome declaimer reflects the lack of professional credibility attributed to the mage in the declamation.

Oracles and Sacrifices

In the first surviving fragments of Petron. Sat., when Agamemnon complains about the outlandish themes of declamation, he mentions oracles responding that three or more virgins must be sacrificed to end a plague (in fact, Sophistopolis never sacrifices more than two); likewise Quintilian (Inst. 2.10.5) mentions pestilentiam et responsa, plague and oracular responses. The oracles, then, rank as characters

32.Artifex est qui percepit hanc artem: id est orator, cujus est summa bene dicere. “The artificer is the one who understands this art: that is, the orator, whose principal goal is to speak well.” Cf. the πειθοῦς δηµιουργός, the “artificer of persuasion,” of Socrates’ statement of Gorgias’ definition of rhetoric at Pl. Grg. 453a. 33.For a summary of Quintilian’s philosophic view of oratory as a science, see Walzer 2003. 34.This is hardly the only example of such an identification in Latin or Greek literature; see de Romily 1975 for the Greek tradition of identifying rhetoricians with magicians. 35.Cf. Quint. Inst. 2.5.15: nam in omnibus fere minus valent præcepta quam experimenta, “for in almost everything instruction is worth more than experience.” 63 alongside pirates, tyrants, and stepmothers, and they rank among least realistic aspects of declamation in the first century ad. Neither Seneca nor [Quint.] Dec. Maj., however, include themata based on oracles, which are confined instead to the Dec.

Min. and Calpurnius Flaccus.

In all cases but one, the oracle demands a human sacrifice, the victima or, more frequently, immolatus (immolandus in Calp.), which occurs in no case without an oracle. In all cases the oracle responds to alleviate a plague.36 If the sacrificial victim is also a litigant in the suit, he or she is a willing victim and believes, or claims to believe, in the veracity of the oracle.37 In cases where a victim is not only willing but explicitly commits suicide, the plague ceases,38 which, despite the post hoc ergo propter hoc fallacy, declaimers can use as inartificial proof of the efficacy of the sacrifice and thus veracity of the oracle.

In no circumstance does anyone ever question whether the oracle is true, only whether the victim suffices. The oracle is a priori credible: someone from the city consulted the oracle with faith in its veracity, and the city (or Alexander) acts in that faith. Religious authority underpins the unquestioned authority of the oracle, which provides the necessity against which the declamation balances its other issue.

The identity of the victim is more fluid than Petronius’ stereotype suggests.

Daughters serve as victims only in two cases,39 men in three: sons in two, and a

36.The odd case out is [Quint.] Dec. Min. 323, in which Alexander’s army destroys an extramural Athenian temple, suffers a plague, consults an oracle, and receives relief not but sacrificing a virgin but by rebuilding the temple. 37.Thus the willing immolandi of Calp. 19 and 44. These cases resemble those requesting permission for suicide, a theme more frequent in Calp. than in other authors. 38.[Quint.] Dec. Min. 326, 329. 39.[Quint.] Dec. Min. 384, Calp. Flac. 44. 64 tyrant in the third.40 Common to all is the family element. The father of the victim attempts to stop his son or daughter from becoming a sacrifice, and the family

(propinqui) of the tyrant want him buried in the forum as one who has saved his city from danger. These cases oppose the integrity and rights of the family to a civic obligation that would not exist without divine authority.

Only in the case of the tyrant ([Quint.] Dec. Min. 329) does the oracle ascribe responsibility for the plague to the victim required for its end. In the cases attributed to Calpurnius Flaccus (19 and 44), the victim seems perfectly willing to meet death and trusts that self-sacrifice will provide relief from the pestilence: at question is whether the victim suffices. One, a disinherited son, seeks to become a sacrifice as a son without a father, as the enigma of the oracle demands (19), while the other, a girl reputed to have committed incest with her brother, wants to die as a virgin sacrifice (44). Each victim would prove a point of honor against his or her father if the community consents and effects the human sacrifice, and if the sacrifice finds sufficient favor with the gods to end the plague, which presupposes that tremendous authority rests with the oracle. In this they agree with the tyrant of [Quint.] Dec. Min.

329 and the son of the legate in 326, each of whom has already completed his sacrifice—and fruitfully, from the civic perspective at least—before the trial. These men died for their belief in the oracle, just as son and daughter in Flaccus’ two declamations intend to do.

No one ever questions the validity or authority of the oracle. On the contrary, the oracle is always right, if enigmatic. The city consults the oracle out of public interest and in the faith of public consent as to its validity. Sophistopolis believes,

40.Sons: [Quint.] Dec. Min. 326, Calp. 19; tyrant: Dec. Min. 329. 65 and that belief cannot come into question: only the response of citizens endowed with free will to obey or disobey the dire necessity imposed by the oracle can be at stake in a court of human justice.

Dreamers

Colores involving dreams found quick criticism among declaimers. Already by

Seneca’s time, Gallio referred to Otho Junius’ writings about colores as the

Antiphontis libri, books of dream interpretations by the sophist Antiphon (Controv.

2.1.33). Despite the possibility that Antiphon may have turned oneirocriticism into antilogy,41 and thus that every dream has its interpretation and counter-interpretation, part of Gallio’s point is that one cannot argue against dreams as a source of motivation. This makes them ridiculous (ridiculum) for being too easy a solution to the problem of inventing credible motivation for characters in declamation, a judgment echoed by Quint. Inst. 4.2.94: “Colores of dreams and superstitions already lost their credibility because they are too easy.”42 It should not surprise, then, that dreams occur in no themata of Sen. Controversiæ nor of [Quint.] Dec.

Min.. On the other hand, Sen. Suas. 4.4 does mention a controversia involving dreams, but only in passing and among his Suasoriæ, and he apologetically refuses to repeat the whole controversia to avoid appearing excessive.43 Only Calp. 10 and

[Quint.] Dec. Maj. 10 revive the dreamer as a character of declamation, and they move the dream from the colores into the thema. Here the dream can offer no cause

41.The few testimonia of Antiphon’s work on dream interpretation seem to indicate that his method was to argue against the most obvious interpretation of any symbol. Cf. Gargarin 2002: 100–01. 42.Somniorum et superstitionum colores ipsa iam facilitate auctoritatem perdiderunt. 43.Valde in vos contumeliosus fuero, si totam controversiam… appears to begin a recusatio, but the text breaks off. 66 for criticism, since the facts of the thema are indisputable. In Calp. 10 the father had a dream, something the mother cannot deny; in Dec. Maj. 10 the wife dreams, and the husband does not dispute that she dreams. At issue instead are the actions taken by the dreamer’s spouse upon learning of the dream. The dreamer must feel betrayed by his or her spouse, to whom he or she entrusts knowledge of a dream relating to their child. Through betrayal of that marital trust a son is lost, according to the dreamer, giving grounds for a suit of either divorce or domestic abuse (malæ tractationis).

In Calp. 10, a father, blind from grief after losing his first two sons, has entrusted his wife with a dream in which he recovers his own sight upon the death of his third son. The wife tells the son, the son kills himself, and the dreamer miraculously regains his sight. There is no point in questioning the contents of the dream or whether the dreamer regained his sight through divine intervention or as part of a post hoc ergo propter hoc fallacy, because the case for divorce arises from the mother’s revelation of the dream to her son, not from the dream itself.

Likewise in Dec. Maj. 10, a mother, grieving over her dead son, dreams that he comes to her at night. She tells the father, who hires a mage (magus) to lay the ghost; after the mage’s intervention, the wife never sees the ghost again, and so she sues the father for abuse, since he took from her the consolation of her son’s image.

By hiring the mage to end the mother’s dreams, whether he believes in dreams and mages or not, the father has acted upon the dream confided in him and has done so in a way that betrays the mother’s trust reposed in him. The case addresses

Quintilian’s somniorum et superstitionum colores by transferring the dream along

67 with the magus44 and ghost out of colores and into the thema. Though the husband questions the reality of the magus’ power, he cannot contend that she does not believe her dream. The dream is as real to the dreamer as the pain of betrayal. The opponent, the spouse to whom the dream is revealed, could question whether the dream contained an authentic message from beyond the physical realm of ordinary reality, but doing so would wander from the core of the case, namely the ethics of acting upon the partner’s dream and the color that must be invented to give a reason for the betrayal of the confidence the dreamer reposes in the partner.

These cases of dreamers turn the ridiculous, as Seneca called it, into the debatable by changing an irrefutable color into an unquestioned fact of the thema.

Freed from arguing about the epistemological validity of the dream, the declaimers turn to the ethics of acting upon information confided by a spouse. As a result, the dream has enough unquestioned authority to motivate the character of the dreamer.

This is analogous to the way that declamation incorporates incredible characters such as pirates and tyrants into its themata: the genre makes elements of fiction into topics of debate.

People Saved or Destroyed by Gods

Divine authority occasionally manifests itself in miracles, irruptions of divine will into the physical world. So claims Fuscus in defending the virgin captured by pirates, sold into prostitution, forced to kill a soldier trying to rape her, and now seeking a place among the Vestal virgins: the gods demonstrate their power in her

(Sen. Controv. 1.2.17). The Vestal, sentenced to be thrown from the rock for a defect of chastity, and who cried out to Vesta as she was thrown, survives her fall, only to be haled before the court again to see if she should still be punished (Sen.

44.On the magus, see above 61-63. 68 Controv. 1.3). Here each side makes claims about the will of the gods. Fuscus

(1.3.3) says to throw her off the rock again, since she has nothing to fear if the gods are on her side; Cestius Pius (1.3.7) explains that the rock allows the gods to express their opinion on the case. Thus far, the gods intercede, if they do, only on behalf of virgins. [Quint.] Dec. Min. 274 offers a different kind of intercession: a thunderbolt strikes down a tyrant in the forum. The declaimers debate whether to cast the corpse unburied out of the city or to inter it where the tyrant fell; the gods, however, acted. “His sins and crimes were condemned by the immortal gods themselves” (274.7), something that mortal law could not accomplish against a tyrant. In 323, the gods send a plague against Alexander’s army, demonstrating their disapproval of his impious destruction of a temple and his war on Athens. Alexander finds salvation in the oracle and the Athenian priest who deigned to dedicate the new temple, but his army has suffered through divine intervention. Thus the gods, when they act directly to save or destroy a character, concern themselves only with virgins and tyrants or kings. In all cases, one may argue that the gods intervene on behalf of the city: either to give the citizens an example of fortitude (the virgin in the brothel) and faith (the Vestal falsely accused) or to maintain the city’s freedom.

69 CHAPTER 4 THE MARTIAL SPIRIT

Quæ est ista contra rerum naturam permutatio, in bello nuptiæ, in judicio bellum?

What is this unnatural reversal: wedding during a war, and war during a trial? (Seneca, Con. ex. 6.5.1)

The law imposes reason on the citizens and order on the city through the persuasion of the orators who debate laws in the assembly and senate and see that those laws produce justice in the courts. Yet, the orators alone do not suffice to defend the city and and the law from persuasion’s counterpart, force. Sophistopolis needs citizens endowed with a bold, martial spirit to fight her enemies and assassinate the tyrants who from time to time overthrow her laws. Just as Pl. Rep.

588c–90d proposes an image of a lion-like part of the soul, and by extension the city, to represent τὸ θυµοειδές, the spirit, so too does Sophistopolis need a component that represents the martial spirit: as a class, the military, and as an individual, the tyrannicide. Such martial spirit is necessary, but fortitude also presents a danger of excessive or misdirected violence that must be checked by the prudence and justice of the law.

The Soldier (Miles)

Few ordinary soldiers, without further qualification as officers or war heroes, appear in the themata of declamation. The details, duties, and rewards of their service are ill-defined, except that [Quint.] Dec. Min. 317.7 requires them to be young and strong. Though strong, they are never the braggart soldiers of New Comedy:

Sophistopolis nourishes no vain Pyrgopolynices. Her soldiers do value honor, and at one point the law of Sophistopolis proclaims that no disgraced citizen may serve his city (Infamis non militet, Calp. 52).

70 The armed and trained soldier can pose a danger to people in his own city.

[Quint.] Dec. Min. 312 treats the fallout of a murder-suicide involving two veterans.

The army in Dec. Min. 337 avenges its rich general, after a poor orator (disertus) convinced the people to kill the general’s family and burn down his house; the army attacks the poor man’s house like an enemy city and yet goes further in that they kill a woman and children, the poor man’s family, instead of taking them captive (337.9–

10). The private militia of slaves and clients in 352 poses an even graver threat to the city and its laws, since such an armed force under the command of a young, noble, rich man operating as a private citizen rather than a duly created general bears all the hallmarks of a putsch in the making. The citizens close the gates against such a threat to keep it outside the city boundaries, just as tyranny must always remain outside the law. When the violence of the martial spirit acts within the city boundaries or against them, it creates a disturbance that the law must quell with its justice.

Elsewhere the miles can serve as an example of chastity, that check on the appetitive part of the soul, as a civic virtue, albeit one threatened by the powerful and well-connected. Two ancient cases and one medieval concern the miles Marianus, a soldier who killed his superior officer, who had allegedly solicited him for sex.1 The case has its roots in an exemplum brought forth by Cicero in Mil. 11, which Valerius

Maximus cites as an example of pudicitia, sexual continence, the word with which

Cicero’s discursus on the case begins.2 The case in declamation presents the

1. Calp. 3, [Quint.] Dec. Maj. 3. A late antique or medieval Tribunus Marianus or Pro Tribuno, encrusted in late lexical peculiarities like the comparative specialius, attaches to Dec. Maj. 3. The antique orations take the soldier’s side, while the later piece distinguishes itself by defending the tribune and disputing the allegation of sexual impropriety. 2. Also referenced at Quint., Inst. 3.11.14, where the soldier is “Arrus,” and 5.11.15; 71 soldier, who until the medieval period always receives defense from the surviving declaimers and never prosecution, as one defending his pudicitia. His attacker embodies the appetite, treating the army like prostitutes, although Marius has ordered the prostitutes and in fact all women out of the camp (Dec. Maj. 3.12).

Gunderson 2003: 153–90 makes much of the homoerotic context, reading in the case a “homosexual panic” (157). Through the lens of psychology or soul-study available to the ancients through Plato, however, the soldier defending his pudiciita embodies the martial spirit restraining the appetitive part of the soul. The declaimer directly contrasts military service, “best measured by the ability to act with valor,” with the appetites libido and cupiditas (Dec. Maj. 3.5–6). If justice for Pl. Rep. 586e–87a means that the just, philosophic part of the soul keeps the other parts in line and performing their proper functions, justice for Marius means keeping his soldiers performing their proper tasks, namely acting with martial valor instead of pursuing their appetites. On the other hand, in Calp. 36, the deserting soldier described as speciosus adolescens, code for a potential rape victim, could fall prey to his former commander precisely he ran from battle; had he the proper martial spirit, he would not be at risk of losing his pudicitia. The soldier of Sen. Controv. 1.2, an attempted rapist whom the virgin prostitute kills with his own sword to protect her chastity, belongs to a foreign city, not Sophistopolis; Blandus (1.2.4) and Asprenatus (1.2.15) hint that he might appear as a gladiator in some versions of the thema. This connection between chastity and the soldier appears in all the declamations outside

Valerius Maximus gives a fuller explanation naming names of all parties (including the soldier, now C. Plotius) at 6.1.12, while Plutarch, Marius 14, gives different names (now the soldier is Trebonius). For a history of the exemplum in the rhetorical tradition, omitting Plutarch, see Schneider 2004:14–17. 72 [Quint.] Dec. Min., but the soldier always stands for the necessary advantages and dangers of the spirited part of the soul.

The General (Imperator and Dux)

[Quint.] Dec. Min. 317 discriminates between soldiers and generals: the soldier is young and strong, able of body and hand, but the city makes an old man equipped with prudence and reason its general (317.7). This characterization usually holds, except in Sen. Controv. 7.7 and [Quint.] Dec. Min. 285, where the city makes a son whose father still lives a general. Nevertheless, the general does take on the sovereign power of command during war, representing the rational part of the soul in command of the martial spirit.

The nouns imperator and dux can apply to the same person, as in the example of Codrus (Sen. Con. ex. 8.4.1) or in Cestius’ words about a crucified general, whom he calls both imperator and dux. These titles are not mixed in the themata except in that the imperator of Calp. 36 can rely on a unique law enslaving deserters to their dux. Nevertheless they seem interchangeable, especially since rich men are repeatedly appointed to each position in the same terms.3 Poor men, on the other hand, never become generals: the one time that a poor man faces the possibility of assuming the burden of command, he refuses, knowing that the offer is a trap (Calp.

50) and lacking the courage to lead men into battle.

3. The rich man is appointed dux in [Quint.] Dec. Min. 337 (Dux creatus bello dives) and Dec. Maj. 11 (Dives dux creatus); imperator in Calp. 7 (dives imperator creatus), 36 (dives creatus est imperator), 50 (Bello tempore creatus est imperator). If there is a difference, it is that the pseudo-Quintilianic declamations use dux when a general is appointed, while Calp. prefers imperator, except in the law of 36. The Senecan declamations use imperator always in the themata, and the pseudo-Quintilianic declamations use imperator of someone already exercising command, like Marius in Dec. Maj. 3. 73 In cases featuring conflict between the rich and poor,4 courage, loyalty, and their opposites become weapons in a personal struggle wherein the additional sovereign power and responsibility of the general amplify the stakes of the contest. The poor man’s sexually attractive son who deserts his post in battle could, because of his cowardice, become the slave of the rich, victorious general in Calp. 36; all that stands in the way is his poor father’s acts of valor as a war hero. The conflict between the laws of the case, the prize of the war hero and a special law created to oppose it, desertor duci serviat, in fact weighs the son’s cowardice against the father’s courage. The poor man of 50 sees his enemy made general and twice defeated, so he passes a law that any general thrice routed be crucified. The rich man loses his third battle and dies on the cross, so his son introduces a private bill transferring command to the poor man, who speaks against the motion knowing that his inability to command will jeopardize his life. Three cases, Calp. 7 and [Quint.]

Dec. Min. 337 and Dec. Maj. 11, destroy entire families suspected of treason. In

Calp. 7, the rich general suspects the poor man’s sons of treason, but under torture they continue to deny their guilt. He kills them and casts their bodies beyond the walls; the enemy bury the brothers and withdraw from their siege. The general argues that the poor sons betrayed the state out of personal enmity towards him: they were inimici. In Dec. Min. 337 and Dec. Maj. 11, the rich man leads the

Sophistopolitan army into battle; the poor man accuses the rich man of treason and moves the people to mob justice, killing the rich man’s family. The rich general wins the war at last and returns home to avenge himself on the poor man: in Dec. Min.

4. For cases including a general, these always begin with the standard pauper et dives inimici: Calp. 7, 36 and 50, and [Quint.] Dec. Min. 337 and Dec. Maj. 11. The variations that allow the poor and rich men to be or seem friends do not occur with the general. 74 337, his army burns the poor man’s house down and kills his wife and children, while in Dec. Maj. 11 he invokes a law punishing false accusations with the same penalty as the accuser would have inflicted upon the falsely accused. In each case, the poor man wishes to die. [Quint.], in explaining his color for the poor man of Dec. Min.

337, invokes envy (invidia, the Latin equivalent of φθόνος), a motive typically ascribed to the poor but also, like φιλονικία and φιλοτιµία, a negative manifestation of the spirited part of the poorly guided soul (Pl. Rep. 586c). Envy too runs through

Dec. Maj. 11 (2, 5, 9), but there is also boldness: the general believes that the rumor of his treason started with the poor man, since “rumor is first born of the audacity of one man” (11.6). The poor man of Dec. Min. 337 too recognizes the bold spirit of the army, the pars populi fortisima (337.9). He compares the vengeance of the army on his house and family to war: “the army conquered me like an enemy city,” but in slaughtering the woman and children they went even further than is the custom of war (337.9–10). In both cases the general and his army have distinguished themselves in public, martial valor, but the poor man acts out of quarrelsomeness and envy, the darker effects of untempered θυµοειδές not directed towards the public good. In both cases that personal grudge expresses itself in a charge of treason against the public, calling into question the public, martial spirit of the loyal, rich man: the quarrels of the rich and poor man, the poor man’s envy, and the rich man’s valor provide a playground for declaimers to explore facets of spirited part of the soul.

The weight of command sometimes comes with the added moral burden of supreme power under martial law, mixing justice and valor. The general of [Quint.]

Dec. Min. 348 ferreted out allegedly treasonous conspirators in his city, locked them up, and burned down the prison; the enemy withdrew. [Quint.] defends him principally under a law that grants a general supreme power during war, an amount

75 of authority that borders on the tyrannical, since it suspends the citizens’ right to due process of law. The defense argues that war is not a time in which trials can be held and the laws retain their force (348.2): the sovereignty of the courts and laws must yield to military necessity. War is a time to rely not only on reason, but also on fear

(348.3), the counterpart of fortitude and martial valor, and ensuring public security often incurs envy and private enmities (348.8). Still, he stands accused of punishing citizens without due process, because the city at peace requires that process to moderate the punitive power of the state and avoid tyranny. The general of Sen.

Con. ex. 5.7, empowered by the same law of supreme command during war and obeying a second law forbidding anyone to open Sophistopolis’ gates at night in time of war, refused to open the gates to admit three hundred prisoners of war at night.

Beyond the usual ancient disdain for prisoners of war who surrendered rather than defending their homeland to victory or death, the few excerpts of the case, from the general’s side, portray the three hundred as breaking the law by flight and returning to destroy the law by opening the gates to the enemies at night. This color of personal cowardice on the prisoners’ part finds its match in the prosecution’s color whereby the general stands accused of personal malice towards the soldiers in their disposition on the battlefield. For the general to secure his absolution, he must demonstrate his focus on public safety and refute any accusation of private enmity on his part. The martial spirit must be always be a social endeavor.

The idea of a private martial spirit emerges only once, in [Quint.] Dec. Min. 352, in which a young (in contrast to the usually older character of the general), noble, rich man leads an army of clients and slaves to defend the city after its army had been twice defeated. He returns to the city to find the gates shut against him, too, like the three hundred prisoners of Sen. Con. ex. 5.7, but in this instance the city

76 promises to open the gates after he stands down his troops and lays down his command. He takes three days to deliberate, lays down his arms, and stand trial for attempted tyranny. The young man never earns the title of imperator or dux, and

[Quint.] in explaining the case explicitly calls the young man and his men privati, not milites (352.2–3). The beneficial martial spirit is social and it requires the auspices of the state: a private army, unchecked by the rational controls of duly created authority, could overthrow the state, just as the unchecked martial spirit within a person could, without reason, dominate the soul.

The same themes of loyalty and betrayal that ran through the disputes between rich generals and poor citizens also motivate the familial disputes involving generals.

The father and son of Sen. Controv. 7.7 compete for command, and the son wins but is captured by the enemy. Ambassadors sent to redeem the general meet the father, weighed down with gold, somewhere between the city and the enemy camp: the declaimer must interpret this fact with colores: the father either betrayed the city and the son out of envy of the command and personal enmity, or he brought gold to ransom his son, but all too late. The father of [Quint.] Dec. Min. 317 commands the army, but his son defects to the enemy and challenges his father to single combat; the father refuses. In both cases, the private rivalry between father and son spills over into the public sphere of war, and private feelings threaten treason and damage the commonwealth. In each case the father stands accused and must defend himself by giving colores of paternal piety that concord with the state’s best interests: the father wishes to redeem his son, not betray him, or he refuses single combat in order to lead his forces on to victory in battle and to avoid fighting his own son. The general can only defend himself as a good general if he also seems a decent father.

77 The cases that arise from a general’s orders or actions do not take place in the field, but in the courts after the actions of war have found their resolution. The general has won victory for the city (unless he should die on the cross, as in Sen.

Controv. 7.7 and Calp. 50) but personal conflicts bring him before the law. Having exercised reason and the martial spirit, he must resolve those personal conflicts and reintegrate himself into the normal order of society, laying down the powers that exceed those of the average citizen and subjecting himself to the judgement of the court.

Two specific, named generals, however, stand apart from the general, unnamed stereotype. Marius, the Roman imperator, must decide in the field the case of the miles Marianus, and Iphicrates, an Athenian general of dubious allegiance who, when called into court, brings with him armed Thracians.5 Iphicrates, called into court, appears armed, with Thracians (and with Cotys, king of the Thracians, himself in Dec. Min. 386), which the prosecution interprets as coercing the jury.6 Here the martial spirit, in the person of the armed general and foreign troops headed by a foreign tyrant, threatens to overwhelm the sovereign reason symbolized by the justice of the courts. Marius might well incline to avenge the relative whom the miles

Marianus killed, a conflict of interest that declamatory law not only fails to avoid but instead uses to increase the difficulty of pleading the soldier’s case before his chain of command. Only in this case does a general appear in a case before his own victory or death, and only in this case does he preside over a court. Dec. Min. 348, in which the general put citizens to death without a trial, provides good contrast to

5. For Marius, see Calp. Flac. 3 and [Quint.] Dec. Maj. 3; for Iphicrates, see Sen. Controv. 6.5 and [Quint.] Dec. Min. 386. 6. The story is not well attested and possibly far removed from the actual events; the rhetor Polyænus does report it at Strat. 3.9.15. 78 the Marian case: Marius could, in theory, punish the soldier who killed his relative without a trial, but he chooses to hold a public trial for a case that reveals the sexual crimes of his own relative. Moreover, by presiding over the trial, Marius stands in for the rational part of the soul, which must restrain the martial spirit, found in the soldier who killed his commanding officer to save his chastity, and the appetites, embodied in the officer who treated the army like a corps of whores. The theme may be salacious, but it provides a perfect image of the Platonic conception of the tripartite soul.

Other Officers: The Tribune (Tribunus)

A military tribune only in the case of the Marian Soldier (Miles Marianus: Calp. 3 and [Quint.] Dec. Min. 3). There he has a rank only to exercise power over another soldier; the rank adds nothing else beyond that unequal relationship. Everywhere else in the themata the characters of the general (often a rich man) and the soldier suffice to express unequal power relations, without any need for an intermediate officer corps. Given the generally binary nature of legal controversiæ, in which usually two parties contest an issue, the lack of an intermediate between commander and commanded should not come as a surprise.

Bernstein (2013:20) suggests that performing the case of the soldier who has killed his tribune prepares an elite for facing challenges to his own future authority as an officer. If this were so, one would expect to find more cases of insubordination

(however justified) and, for that matter, more cases involving an officer corps.

Instead, the military cases present far more challenges to elite authority in the form of private inimicitiæ between rich generals and poor civilians, not insubordination in the chain of command, and the generals seem to get along well with their soldiers. If one were to strip the richer philosophic possibilities from declamation and treat it

79 simply as practice for exercising authority, it would give training mostly in petty, personal squabbles. Sophistopolis simply does not have enough officers to provide practice for handling challenges to authority, but its military does provide characters that can embody the positive and negative aspects of the θυµοειδές and test the justice of its relationship with the other two parts of the soul.

The War Hero (Vir Fortis)

The most important and frequently encountered military figure is, by far, the war hero. Along with the rich man and poor man and the tyrant, the hero (in Greek ἀνήρ

ἀριστεύς, Latin vir fortis, both of which may be shortened to their adjectives), belongs to the set of characters defining the Second Sophistic according to Philostratus V. S.

1.481. Just as the rich and poor men represent opposite poles of wealth,

Philostratus’ tyrant and hero manifest opposite poles of the civic relationship between individual and collective. The tyrant subjects the community to his personal authority, usurping the role of the law, and is vilified for it, while the hero fights, often repeatedly, to sustain the freedom of the community and the authority of its code.

The tyrant’s victory is an inversion of the law, just as if the appetitive part of the soul were to overthrow the rational part and place base desires ahead of reason; his death restores the just order of the city. Despite their opposition in Philostratus’ definition, the hero and tyrant never occur in the same city at the same time.7

The hero fights for the law and the city, not against it, and so the law has mechanisms whereby to encourage his valor and contain his excessive strength: the hero merits a præmium, as does the tyrannicide. The hero generally gets to pick his

7. Calp. 39 involves a tyrant, presumably of a neighboring city, taking the son of a vir fortis hostage; the tyrant’s threat to declare war on the city would make little sense if he already controlled it. The vir fortis poses a threat to him because he could lead Sophistopolis to victory against its neighbor. 80 prize. At its simplest, this can be some token of public, physical memory such as statues (Sen. Controv. 10.2). The prize can take many other forms, however, and sometimes it is whatever the hero wishes: vir fortis quod volet præmium optet.8

The hero’s præmium generally takes the form of an exception to a standing law.

The power of exception comes close to putting him outside the law. [Quint.] Dec.

Min. 266.1 explicitly recognizes the danger of this: “We usually say that no prize can be found that does not violate some law, and therefore the war heroes’ power is great, because it is beyond all laws.”9 Figures beyond the law (covered below, pp.

121–151) include the tyrant, and the most obvious danger is that the hero might ask lawfully to assume tyranny over Sophistopolis, abrogating all law and assuming personal authority. This never happens in declamation, although the next worst possibility does crop up in [Quint.] Dec. Min. 293: the hero asks the city to install him as tyrant of a conquered enemy city. He promises cruelty without greed or lust

(numquid vobis videor avarus, libidinosus, 293.2): he embodies the vengeance of the martial spirit, but not the appetites. Even within his own city, the hero’s martial temper gives him an element of Corolanus’ harshness: the orator of Calp. 47 claims that the hero does not understand how to address the people without offending them. Where a case requires severity, the vir fortis provides an apt character.

A strikingly dark example of the degree to which the hero’s rigid chastity, his embrace of the martial spirit over appetite, surpasses that of the soldier occurs in

8. Thus phrased in Sen. Controv. 10.2; given as two iambs and a cretic, vir fortis optet præmium quod volet, in [Quint.] Dec. Maj. 4, but in Dec. Min. always elliptically, without the præmium for the relative adjective quod, as vir fortis optet quod volet, 258 and 371. Dec. Min. 345 uses the same elliptical format for the tyrannicide’s prize. 9. Dicere solemus, nullum præmium posse inveniri quod non contra legem aliquam sit, et ideo magnam esse virorum fortium potestatem, quia supra omnia jura sit. 81 [Quint.] Dec. Min. 297. A man in love with a prostitute went off to battle and came back a changed man, a hero. When his lover came to meet him, he blinded her.

The law allows her to choose either an eye for an eye (talio) or that the man who blinded her become her guide. She asks that he become her guide, and he refuses and offers his own eyes instead. The extreme violence upon their meeting and the hero’s pertinacity in offering the more violent solution, to his own physical detriment, give a pattern: the hero, transformed into a symbol of extreme θυµοειδές, can no longer tolerate the appetites, embodied in the prostitute, that giver of pleasure and seeker of profit.

Likewise the twin cases of Sen. Con. ex. 4.4 and [Quint.] Dec. Min. 369 present heroes who, losing or breaking their weapons in the heat of battle, take arms from the grave of another war hero, win, and replace them. Each is charged with violating a grave: the vir fortis takes what he needs to kill enemies of the state in time of war, without fastidious observation of laws regarding vandalism or theft. Winterbottom

1984: 569 points out that the thema challenges the definition of one species of sacrilege, but in defining sacrilege the hero will have to claim a distinction between taking for the necessities of war and theft to support the appetites. In the crisis of war, the state too plunders its temples to pay for soldiers (Con. ex. 4.4.1). He stole not gold, the price of vice, but arms, the instruments of virtue (Dec. Min. 369.3). The hero argues that the law protecting something consecrated does not apply when the civic, martial spirit requires it, only when the individual appetite desires it.

The martial spirit does not always prevail in the hero, however. The hero of

Calp. 52 fell into the hands of pirates, was sold into the arena when his country failed to ransom him, and won his freedom but was for marked as infamous serving as a gladiator. A general calls him to battle, and he refuses under the law that the

82 infamous may not fight (infamis non militet). He had once prized above all else immortal glory but now realizes how empty that glory was, since his country forgot to ransom him. In Calp. 15, a man thrice declared a war hero won a special prize, the right not to fight again according to the law ter vir fortis militia vacet. This time, the general compels him to fight, and the hero deserts. He wants to die, having disgraced his name. A father in [Quint.] Dec. Min. 377 likewise compels his son to fight two battles, and the son returns victorious and decorated each time. The father then catches him preparing poison; the son claims that he no longer wishes to live.

The son claims that he fears the enemy (377.5), that he seems born for miseries: fires, shipwrecks, wars (377.9), that he is not fortis enough to bear war (377.11).

Each case presents a hero caught between his past valor and present ignominy, so the declaimers of each must paint a paradoxical character.

Likewise the hero of the brief fragments of Calp. 39 must persuade against a future war. While he was away, the tyrant of another town, threatening war, demanded that Sophistopolis send the hero’s son. Upon the hero’s return, a citizen moves that the city declare war on the tyrant, apparently to recover the son, as the hero quotes his adversary as saying, “But it is a war hero’s son.” The war hero denies that the war is just, because it should have been declared earlier; now the time for war has passed, and his son must die. Sussman 1994: 205 adduces circumstantial evidence that the hero may believe that the tyrant has sexually abused the son, hence that the war no longer seems timely. The fragments offer no explicit evidence for this, nor does the thema call the son speciosus or formosus as usual when sex must be suspected,10 but it would fit the appetitive character of the

10.Of women thrice: Sen. Controv. 2.7 and [Quint.] Dec. Min. 289 and 363. Of men eight times: Sen. Controv. 7.5 and Con. ex. 5.6, Calp. 45, [Quint.] Dec. Min. 279, 292, and 354, and Dec. Maj. 18–19. Calp. 45 is a close parallel, in that it involves 83 tyrant and the chastity of the martial figures. Alternately, in the absence of the adjective speciosus, one may surmise that the hero feels that the city should have fought instead of striking a deal with a tyrant, and that the city has, by bargaining for its safety and giving up one of its own, lost the honor for which a hero strives.

Regardless, this case, like Calp. 15 and 52 and [Quint.] Dec. Min. 377 requires the declaimer to work paradoxically, contrary to the usual character of the vir fortis: the war hero must here argue for peace.

Paradoxical too is Sen. Controv. 1.4, in which the war hero loses his hands, finds himself cuckolded, and demands that his son kill the adulterer and wife, the son’s own mother, as expressly permitted by the law liceat adulterum in matre et filio vindicare. Latro’s division of the quæstiones (1.4.6) revolves entirely around interpretation of the law and especially the force of liceat as opposed to oporteat.

The sententiæ for the father (1.4.1–4), however, focus on the paradox of the vir fortis who has lost the ability to fight for himself.

The hero of [Quint.] Dec. Min. 246 sleeps through a battle, because his stepmother had given him a sleeping draught. He charges the stepmother with poisoning, because he had been charged with desertion for his absence from the line. For a hero, the safety of slumber means death, so a sleeping potion equates to poison in that it robs the hero of his civic purpose and renders him liable to the punishment for desertion. Yet, the potion caused no physical harm to the hero’s body, and the hero imagines the stepmother’s advocate claiming that she gave him the medicine to save him from danger (246.9). What one side sees as salvation, the other calls perdition, leading to a paradox of definitions.

handing over an adulescens speciosus to a tyrant of a neighboring city. 84 The hero’s selfless valor contrasts with the actions of the traitor. The traitor never receives characterization and needs none, because no color can excuse treason: cases of treason can only be contested on status conjecturalis or through exceptions, such as the hero’s prize. The case of the band of accused traitors who escaped their chains, performed heroic deeds, and ask as their prize to argue their innocence of treason without chains ([Quint.] Dec. Min. 303) uses the prize only to set up a division of legal issues regarding the præmium. In 287, 371, and 375 a father stands accused of treason, his son becomes a war hero but refuses to use the exception of the prize to free his father, successfully arguing his father’s innocence instead. None of these cases requires more of the hero than that he have a præmium to provide some potential salvation for the alleged traitor.

Where [Quint] Dec. Min. 287, 371, and 375 offered valiant sons who refused to use their prize to save their fathers from charges of treason, 304, 315, and Calp. 36 present fathers who use the prize to ask for or change the circumstances of a son who deserts during war. The heroic father in 315, whose son deserted, asks not to obey the law that a war hero should kill deserters with his own hand. He seeks to avoid killing his son himself, although he does not contest that the son deserves to die. The poor fathers of 304 and Calp. 36 each opt to kill their own sons. In Calp.

36, the poor father would rather his son die than become the slave of a rich general.

The poor father of [Quint.] Dec. Min. 304, wishes to kill a son who has twice been freed by the exceptions granted by law to a priest, who happens to be the rich enemy of the poor father. The son’s former crimes, adultery and sacrilege, reveal his appetites, and the priest, who should represent the restraining power of the divine part of the soul, has instead indulged the son. The father, embodying the martial spirit, wishes to put an end to his criminal son, who has now revealed through his

85 desertion his total lack of martial spirit. The conflict of laws in the case, the exceptions granted to the priest and the war hero, allows the declaimer to explore the boundaries between the martial and rational elements. Similar is Calp. 26, in which a priest of Mars, who has both the prize of the hero and the privilege of the priest, wishes to free his three sons who had deserted. He uses his two exceptions and claims the right, under the law, to offer himself in punishment for the third. Here one who embodies both the rational and spirited parts wishes to save a son, who has no spirit. Dec. Min. 387 too sees a hero offering his son safety, only to disown him afterwards. In Dec. Min. 304 and Calp. 26, the cases of triple exception, the deserter son, who has preferred his own life over his civic duty, may earn safety from a priest: indulgence and mercy come from the rational part of the soul. With the exception of Calp. 26 and Dec. Min. 387, however, heroic fathers infused with the martial spirit believe that the deserter son should die, and they use their prizes to that end.

The prize itself may become the object of contention when several claim it. In

Calp. 21, a law defines as a prize the physical memory of a painting that commemorates the war hero’s deeds. Two brothers valiantly fight for Sophistopolis, but the law decrees that there can be only one prize: the brothers must, under the law, fight a duel to determine who wins the prize. Upon killing his brother in the duel, the victor asks as his prize the right not to have his deeds remembered. The equally valiant father and son of Sen. Controv. 10.2 face a less severe law, that they must contend in court over their prize. The victorious son asks as his prize statues of his father, again a token of public memory. In each case, the physical memory of the prize threatens to enshrine a victory that brought shame to the victor: the brother who slew his own brother out of a love of glory, and a father bested by his son in

86 court. Sen. Con. ex. 8.5 and [Quint.] Dec. Min. 258, preserve the dispute between victorious sons and fathers but without public memory. In the former, the father had disinherited the son, who then performed an act of heroism and asked as his prize to be reinstated in the family, although the father refused to grant it. The father then became a hero and asked his son to return, but the son refuses. In the latter case, both are set to compete for the prize after winning glory in battle. The father asks the son to yield the prize and avoid a duel, but the son refuses, so the father yields and disinherits the son. In all of these cases, pride satisfying φιλοτιµία lies at stake as much as does the prize, one subjective and internal and the other objective and civic.

When the hero’s prize becomes a weapon in the personal conflicts between the rich and poor, as in the three adjacent cases of Calp. 27–29, the rich man gets the people to decree something terrible against the poor man or his family in exchange for his own promise to perform heroically. The people always believe that the rich man is capable of delivering on that promise. In 27, he asks for the poor man’s death, but he deserts his post in battle while the poor man makes himself a war hero.

This rich man comes closest to the miles gloriosus of comedy, promising more than he can deliver. In the other two cases, the rich man both promises and indeed demonstrates his martial valor; he demands either the death of one of the poor man’s sons (28) or marriage with one of the poor man’s daughters (29). In the latter case, the daughter he had demanded killed herself rather than marry the rich man, so he asks for the other, who, as her poor father claims, wishes to kill herself as well

(29.1). Both cases thus result in the death of at least one of the poor man’s children.

In each of the three cases, the people consent to and decree the prize demanded by the rich man, and in each the rich man’s promise serves as a weapon against the

87 poor man and his family, promising public safety at the expense of a poor man’s private grief.

The rich and poor men appear in other cases, but without the hero’s promise.

The poor father of Calp. 36 performs valiantly in battle, although his son deserted.

The rich general seeks the son as his slave, according to the law desertor duci serviat, but the poor man claims as his prize the death of his own son, both for desertion and to keep him from falling into the hands of his inimicus, his personal enemy. Both the rich father and the poor father of 271 produce three sons each, of whom one son of each man act bravely in subsequent battles. According to the law that heroes must duel for the prize, two of the poor man’s sons in single combat each slew one of the rich man’s sons; after the third war, the rich father orders his remaining son not to fight the third son of the poor man. Upon the son’s refusal, the rich father disinherits him. The son rebukes his father for fear and for having little respect for the son’s abilities (11–12), but he denies that the desire for glory moves him to fight: rather, he wishes to avenge his brothers (12–13) and demonstrate pietas (15). He does not, however, mention that the family name will come to an end if he loses. The war hero’s bloodlust raises the stakes of the personal grudge between the poor and rich man, opening the chance for an entire family to perish.

In many cases, however, the character of the vir fortis means little to the declamation. The martial valor of the son in [Quint.] Dec. Maj. 4, a man whom an astrologer had predicted would become a war hero and then a parricide, serves mainly as confirmation of the fortune-teller’s skill, although the prophecy of parricide also gave the son a death-wish that propelled him to his acts of martial valor (4.4).

In [Quint.] Dec. Min. 278 and 306, the character of the hero appears in cases revolving around money and exposed infants. In the former, a son performs bravely

88 and his father, according to a unique law, receives a monetary award; it turns out that the son had been exposed by another man, and the biological father claims the ten thousand from the father. The case does treat of whether brave character is innate or learned (278.9–12), but the bulk of the case (1–7) deals with the money. The latter case presents a young man claiming to be the exposed son of a man who died leaving his wife a large inheritance. He first claims that to be the lost son, suing for the inheritance, and then performs bravely in battle and asks as his prize to marry the woman he claimed in his lawsuit as his mother. Either way, he would stand to take control of the money: the heroic nature has nothing to do with the case, only appetite for money.

Three cases use the hero’s prize to create doubled actions. Calp. 25 gives a war hero, whose brother had raped a woman who then chose that her rapist should die, the chance to save his brother with his prize. In a unique twist, however, the law gives the hero two prizes instead of one, and he chooses with the second to ask for the raped woman’s own death; his brother rejects that, with the color that he loves the woman he raped. Heroism has nothing to do with the case, which only wants a hero to admit a double exception to the law. [Quint.] uses the hero’s prize in Dec.

Min. 266 and 310 to create situations of double actions. In 266, a man condemned as a traitor proves his worth in battle and asks to argue his case again; his accuser files a procedural motion (præscribit, similar to a γραφή suspending a suit) against him under the law of double jeopardy, bis de eadem re agere ne liceat. In 310, a man recorded as an adulterer fought bravely and, in absence of a law against double jeopardy, asked as his prize to argue his case a second time. He loses and faces the deprivation of his civil rights for being twice convicted of adultery. His heroism

89 means little to the case, beyond a brief mention in passing at 310.1: like 266, the case turns on procedural issues and the præmium as an exception to the law.

Likewise the heroes of [Quint.] Dec. Min. 249 and 294 attempt to interfere with cases pending. The husband of 249, instead of killing the man who allegedly cuckolded him, takes him to court, where procedural laws require him to first sue the suspected adulterer before suing his wife. The alleged adulterer wins the hero’s prize and has his case erased from the record, leaving the husband still wanting to sue the wife. The rich man of 294, accused of treason, wins the prize and asks to kill his accuser, who accepts death on the condition that he first see the treason case against the rich man to its judgement. Both cases simply use the prize to create procedural roadblocks to other pending cases.

The war hero then, like Coriolanus of history, embodies the martial spirit, perhaps to excess. He is rigid in his own chastity and often in how he treats his sons, and he does not hesitate to pursue quarrels with his personal enemies, even at the cost of his own life. He seeks glory above all else, so the physical memory of the city, its statues and paintings, interest him, except that they might also remember the shame that he incurs because of his lust for glory. At times, however, his ethical character means less to a case than the exception from the law that his prize may grant: such cases tend to produce double or triple exceptions or other insoluble legal paradoxes.

The Tyrannicide (Tyrannicida)

Roskam (2009:47–48) points out that, next to lawgivers, the Platonic Academy was most famous for its tyrannicides. Nor does declamation lack its share of tyrant- slayers eager to claim the tyrannicidæ præmium. The number of tyrannicides in

90 declamation11 reflects the flexibility of the tyrannicide’s identity. An adulterer (Sen.

Con. ex. 4.7) may kill a tyrant, as may a doctor (Calp. 13), or the tyrant’s own brother

(Sen. Controv. 1.7), father ([Quint.] Dec. Min. 288) or wife (Calp. 1) may do the deed; the tyrant himself may even become his own tyrannicide (Dec. Min. 329).

Tyrannicide represents a possibility open to all members of the city (except in [Quint.]

Dec. Maj., where tyrannicide never happens), regardless of gender or family or moral qualities, even to the tyrant. Anyone can restore the laws by freeing the city from tyranny, and so anyone can lay claim to the tyrannicide’s prize. Doing so, however, requires enough θυµοειδές to risk one’s own life to kill another. Moreover, the tyrannicide acts alone, unlike the war hero who distinguishes himself in valor among his peers.

Women demonstrate courage in two cases, Sen. Controv. 2.5 and Calp. 1. IN the former, a tyrant tortures a wife to find out what she knows about her husband’s planned assassination attempt. Even under torture, she denies all knowledge of the tyrant’s actions. The declaimers present her as protecting her chastity as would any martial figure: Latro imagines her viewing the instruments of torture with relief that she will face pain instead of rape (2.5.1). Although she shows bravery and perseverance in resisting torture, she does not kill the tyrant: the declaimers, especially Hispanus Cornelius (2.5.5.) and Papirius Fabianus (2.5.7) blame her husband, the tyrannicide, for not acting sooner to prevent that torture. The wife of

Calp. 1, however, does kill two tyrants, her husband and one of her sons. She had asked with her first prize, after killing her husband, that her sons be spared, and the people granted it; after one of her sons seized the citadel, she asked the same for

11. For studies of the tyrannicide, see Tommasi 2015 and especially Tabacco 1985; see also Schwartz 2016 on tyrants in [Quint.] Dec. Min specifically. 91 her remaining son with her second prize, but her motion meets resistance. Her adversary finds it difficult to believe that a woman could kill a tyrant, or that a mother would be willing (1.1). Nevertheless, she has twice assassinated tyrants, and she seeks a prize that has already been granted her.

In the majority of cases, the prize itself is at stake in the trial and becomes the object of legal dispute. What exactly constitutes the tyrannicide’s prize, however, depends on the declamation. In [Quint.] Dec. Min. 282, a statue rewards the man who has “freed the mind” of the citizens, just as the war hero receives the right to have a statue in Sen. Controv. 10.2.12 Xen. Hier. 4.5 mentions such statue-prizes, apparently housed in the temples, inverting the ban on polluted murderers from the temples: the tyrannicide is not a murderer but the opposite, a savior. Likewise in

Dec. Min. 329 the law prescribes burial in the forum, the heart of the city, as a reward, inverting declamatory prohibitions of burial within the city like Homicida insepultus abiciatur (Sen. Con. ex. 8.4) and especially Tyranni corpus extra fines abiciatur (Dec. Min. 274). Both are tokens of public memory: the law wishes the example of the tyrannicide to abide in the minds of the citizens. In other cases, the prize is indemnity or exile, and thus survival, for the sole remaining son of a family

12.Animus liber est, “the mind is free,” has two senses: one, liberation from tyranny, and another, taken along with the following varia gentibus consuetudo est, “different peoples have diverse customs,” explaining the cross-dressing tyrannicide in terms of cultural and moral relativism. The thought finds completion later in bella quoque insidias habent, “wars too have traps”: the city is free because the tyrannicide thought freely about how achieve liberation, without constraining himself by concern for the appearance of masculinity. Cf., however, Winterbottom 1984:396, who supposes a much more complicated interpretation, that the mind is free to imagine the tyrannicide as masculine while the eye sees the transvestite statue: “whatever the dress, we can picture you as fully a man” he imagines the magistrate saying, although the words do not appear in the text. For further tyrants and statues, see also Ennodius Dictio 18, in which the tyrant, inverting all expectation, places a statue of a parricide among those of the august war heroes of the city. 92 whose men in series have seized tyrannical power ([Quint.] Dec. Min. 288, Calp. 1).

In these cases, the future of the family line, the genetic memory of the tyrannicide, stands in the balance against the prospect of yet another tyrant arising from that line.

These mirror the prize of safety granted or withheld by the war hero (Calp. 26 and

27; [Quint.] 287, 371, 375, and 387) and of the victorious general (Calp. 15), except in that the tyrannicide wishes safety only for someone associated with tyranny by blood. As a rule, the tyrannicide’s prize, when specified, extends no further than these forms of memory, except in Calp. 22, wherein the tyrannicide allowed his stepmother choose a prize. Here the tyrannicide’s stepmother, not the tyrannicide himself, chooses the prize, namely marriage to the tyrannicide, although the father’s case depends on showing that his tyrannicide son had colluded with the stepmother in her choice. In this instance, there seems to be no apparent connection between the act of tyrannicide, the prize, and public memory: the stepmother’s intervention is wholly anomalous. Interestingly, the stepmother’s unusual affection for her tyrannicide stepson contrasts with both the usually hostile relationship between stepmother and stepchildren13 and with the only instance of a war hero having a stepmother (Dec. Min. 246). There, the hero’s stepmother gave him a sleeping potion to keep him out of battle, so he was tried as a deserter: the stepmother

13.On the relationship between stepchildren and stepmother, see especially Dec. Min. 327, which explicitly inverts the stereotype of the stepmother seeking to replace the stepchildren with her own heirs. Only two other cases present anything but hatred between stepmother and stepson. Sen. Controv. 6.7, modeled on the love of Stratonice and Antichus (or Phila and Perdiccas, following Soranus, Vita Hippocratis 4–5; cf. Pinault 1992:61–78), morphs into the adulter uxoris cases of Calp. 48 and Dec. Min. 291, transferring the stepmother’s role to a sister-in-law and thus eliminating the image of the loving stepmother. In Dec. Min. 335, a variation on the werewolf story of Petron. Sat. 61–62, even the father refuses to admit that the son might have had anything to do with the stepmother. 93 wished to ruin him. In contrast, the tyrannicide’s stepmother wants him as a husband.

Much more often, however, the prize is not specified, but it is present. So prevails the idea of the prize, that twice (Sen. Con. ex. 3.6 and Controv. 9.4) it is mentioned simply to preclude the declaimer from claiming it as a means of dissolving the questions of the case. In these cases, it does not matter what the prize was, but simply that it has been claimed and no longer lies available to they tyrannicide as an option. In others, the prize is the object of the case, and the litigants contend over which of them merits the prize without specifying what the prize might be (Sen. Con. ex. 4.7, Calp. 13, [Quint.] Dec. Min. 345 and 382). Here the right of the prize is paramount, just as in the previous cases the unavailability of that right was important. In cases where several claimants fight over the prize of a war hero, the fight is physical (Sen. Controv. 10.2, [Quint.] Dec. Min. 258 and 271, Calp. 21), but never so for those who might claim the singular prize of the tyrannicide. Over the war-hero’s prize, only strong men could plausibly contend, but among those laying claim to the tyrannicide’s prize one finds an old man (Dec. Min. 382), another whose opponent suggests that he was parum fortem (345) and two doctors (Calp. 13), hardly the same gallery of manly vigor that the viri fortes exemplify. The figure of the tyrannicide then reflects the patriotic savior-figure of the war hero but in a more inclusive way, allowing the possibility that anyone, not only the strongest of men in peak fighting condition, might claim to have saved the state and its law.

In [Quint.] Dec. Min. 345, 374, and 382, the tyrannicide stands to profit from private rewards, either a rich man’s bounty on the head of the tyrant or an inheritance earmarked for the assassin.14 The war hero never collects a monetary

14.[Quint.] Dec. Min. 345, 374, 382. Only in [Quint.] Dec. Min. does one encounter 94 award, although his father might (as in Dec. Min. 278): his prizes only consist of the glory of public memory, as befits one full of martial spirit and thus thirsty for glory, or of exceptions to the law. The tyrannicides of [Quint.] Dec. Min., however, raise the possibility that someone might risk his life for profit instead of civic-minded courage.

The tyrannicde, then, resembles the war hero in that he or she kills to save the city and for that killing receives a prize. The tyrannicide, however, need not be a man nor even kill by force when poison or deception may do the job: it suffices that he or she slay the tyrant. The tyrannicide may receive private pecuniary compensation in addition to the public præmium, something no glory-hungry war hero earns. This opens up tyrannicide to the appetitive citizens as well as those of a military bent. The tyrannicide acts alone, while the war hero proves his superior martial spirit in combat, a social activity. Although the tyrannicide is the more flexible character, in that any citizen can become one and need only act alone, nevertheless there are fewer tyrannicides in Sophistopolis than war heroes, and [Quint.] Dec. Maj. feature a war hero but no tyrannicide: the tyrannicides die out by the time of the Dec.

Maj.

The Gladiator (Gladiator) and the Martial Artist (Pancratiasta)

Martial artists and gladiators harness the martial spirit, but in combat that imitates war, and in training that imitates that imitative combat. Seneca’s prefaces to his Controversiæ made both important to declamation as metaphors for declaimers, who themselves imitate orators. In the Controv. 3.pr.13, Seneca explicitly likens declamation to gladiatorial training and the forum to the arena. Sen. Controv. 4.pr.1 compares actors (who never appear in declamation), gladiators, and orators in their such private rewards. In two cases (345 and 382) the litigants contend over the public reward, whether it should go to the man who killed the tyrant or to the one who hired the assassin. 95 eternal quest for novelty: Seneca himself is the metaphorical munerarius in charge of the games, setting his declaimers against one another for the reader’s delight. Sen.

Controv. 9.pr.4–5 explicitly contrasts scholastic declamation to gladiatorial combat, in that the gladiator learns to use weapons by handling heavier arms in training than he would in the arena, and to wrestlers (athletæ), in that they wrestle two or three at a time to prepare for a match against a single opponent, while students tackle the easy and soft matter of declamation instead of preparing themselves for the rigors of the forum.15 The gladiator in the arena is to the declaimer giving a Schaudeklamation as a gladiator in training (ludus) is to student practicing Schuldeklamation in the school

(schola, but also ludus), and the gladiator is to the soldier what the declaimer is to an orator.

[Quint.] Dec. Min. 302 seems to pick up on these analogies. A man needing money to bury his father sold himself into the arena, but the before his first match the audience demanded that he be given the wooden sword of retirement; he then finds himself excluded from the first fourteen rows under a law similar to the lex Roscia of

67 BC although he has, upon burying his father, inherited an equestrian legacy. To defend his social class, he claims that never having fought a match in the arena means that he had never actually become a gladiator, just no one would consider an orator a man who had never argued a case (302.2). Sen. Controv. 3.pr.13 says the same about oratory: that one first becomes a tiro, a beginner, not in the school but by making his first speech in the forum. The gladiator of Dec. Min. 302 then defends his presence in the ludus by claiming that other men, whom nobody would call a

15.In Sen. Controv. 9.6, Fulvius Sparsus (9.6.1) and Vibius Gallus (9.6.2) also bring up gladiators as a metaphor for the stepmother who accused her daughter of conspiring with her to poison her stepson. 96 gladiator were present as well: teachers, physicians, servants (302.3). The declaimers themselves were teachers, but beyond that they could lay claim to healing, since declamation, as an art that works in and addresses grief, has its own peculiar relationship to medicine (for which, see pp. 34-42 below). The gladiator allows the declaimer to make ironic, self-aware comments on his own place in the world of oratory.

The three gladiators of surviving declamation, those of Calp. 52, [Quint.] Dec.

Min. 302, and Dec. Maj. 9, are all sold into the arena through the machinations of adverse fortune. The son of Dec. Min. 302 sold himself to pay for his father’s burial, pirates captured the hero of Calp. 52 and sold him into slavery when his country failed to ransom him, and the poor man’s son in Dec. Maj. 9 agreed to take the place of his rich friend who had fallen into the hands of pirates and found no redemption at his father’s hand. The gladiator of Calp. 52 and the rich son of Dec. Maj. 9 both, however, realize that fortune alone does not bear responsibility for their sale into slavery, but that timely ransom could have prevented the sale. In Calp. 52, the gladiator blames his homeland (patria) for not redeeming him from the pirate (pirata, the letters of patria rearranged); in Dec. Maj. 9, that blame falls on the father (pater).

The son of Dec. Min. 302 cannot blame his father or his country, but he does have a defense for selling himself: that he did so out of piety, not like those who sell themselves into the arena out of baseness or appetite (qui vilitate, qui gula se auctorasset, 302.4). The gladiator as an object of sale and the pleasure of spectacle becomes subject to appetitive types such as the pirate or the crowd thirsting to see gore, but his own soul need not give in to the appetitive drive. The gladiator of Calp.

52, although his bitterness robs him of his desire to win eternal glory fighting for his city in war, still seems to relish the fact that no name among the gladiators is more

97 noble than his: his φιλοτιµία has not wholly died, and even among those whom society regards as infames there exist an image and ranks of honor. Likewise the rich man’s son in Dec. Maj. 9 recognizes that the poor friend who took his place in the arena was fortior (9.7), better endowed with the martial spirit. The gladiator thus not only uses θυµοειδές to fight, but also to persevere in the face of adverse fortune and the deprivation of the familial and social structures that should have kept him from becoming a gladiator.

The martial artist (pancratiasta) appears only in Sen. Con. ex. 5.3, wherein a father trains his two sons in the martial arts and takes them out of the city to the

Olympic games, where he goads them fight each other harder by promising to disavow the loser. They both die but earn divine honors. Glory runs through the case: the father raised his sons on the arts not of the battlefield but of the competition, he took his sons to the Olypmic games for Panhellenic glory, and he urged them to fight for glory and for the crowd; they committed mutual fratricide when they put their love of glory ahead of brotherly love. Nevertheless, they earned for this divine honors, which imply public memory: like the war hero who wanted not to be painted slaying his brother (Calp. 21), the tyrannicide whose statue bore women’s garb ([Quint.] Dec. Min. 282), and the statues of the heroic father granted through the indulgence of the son who beat him in a duel (Sen. Controv. 10.2), the glory of public memory preserves something shameful for the brother martial artists.

98 CHAPTER 5 MERCHANTS AND ARTISTS

Et, cum ingenia nostra, quæ nos scilicet ambitiosi nostri aestimatores proxima divinis credimus, ad percipiendas disciplinas multo labore desudent, nulla apes nisi artifex nascitur.

And, although our minds, which we vain judges of ourselves believe second only to the divine, sweat through much toil to understand our lessons, no bee is born save he be born an artist ([Quint.] Dec. Maj. 13.16).

A city cannot function without an economy: there must exist a class dedicated to producing and distributing both the material needs of daily life and the less necessary commodities that elevate life beyond its bare necessities, to practicing arts necessary and enriching, and to providing services that meet the needs and desires of the citizens. Plato tended to ignore this class, the appetitive δηµιουργοί of the Rep. and the non-citizens of the Leg., preferring to focus on the classes that represented reason and martial spirit. Declamation does not wholly ignore the class, but it admits merchants and artists only rarely and in cases more likely to probe questions of the psyche than of commercial law. To judge from Sophistopolis’ courts, very little of the activity classed as necessary enters into dispute: with the exception of [Quint.] Dec. Maj. 12, nourishment enters into question only in cases of children who refuse to support their needy parents, a family concern rather than mercantile.

The themata that do arise in declamation concern merchants of unspecified goods, slaves, or sex, and the visual arts of sculpture and painting. To these may be added the term artifex (equivalent to the Greek δηµιουργός) found regularly and systematically in [Quint.] Dec. Maj. outside the themata.

The visual arts interest the Senecan declaimers alone, and then only when representing images of gods. The two cases link artists on the one hand with the divine and on the other with mortal suffering. [Quint.] Dec. Maj. picks up this

99 dichotomy in its extra-thematic artifex, which seems not only to revive the Senecan ideas about artists but also to structure the work.

The Merchant (Mercator, Negotiator)

If one expected declamation to prepare Roman schoolboys for life in the courts, one might also expect to find a wealth of cases concerning property law and the law of contracts. Either Sophistopolitan merchants proved themselves tediously honest, or disputes regarding mercantile activity contributed little to the declaimer’s real interests. Of the merchant we hear next to nothing in the texts that survive.

In Sen. Controv. 2.7, a husband sets sail, for undisclosed reasons, and a merchant (mercator in the text preserved with the whole of Controv. 2.7,1 and both mercator and negotiator in the excerpts) moves into the neighborhood. He propositions the wife thrice, enticing her with money, and she refuses his advances; dying, the merchant leaves her his fortune in his will, in which he says that he found a chaste (pudica) woman. She claims the inheritance, and the husband returns and charges her with suspected adultery. In a derived case (Dec. Min. 363), a foreigner

(peregrinus) replaces the merchant, and the husband has not left: the foreigner makes his three propositions to the husband, who sends a slave dressed as the wife.

There is no inheritance. As Trenkner 1953: 219 notes, the slave’s role in

[Quintilian]’s version of the case ties into folklore motifs and comedy,2 but no source among those he names can also explain why in each version the would-be adulterer is a merchant. The development of the Senecan merchant into the [Quintilianic] foreigner points to the merchant’s foreignness as a defining trait; indeed, [Quintilian]

1. This case unusually preserves what appears to be Latro’s entire or nearly entire speech and no other declaimers, for one side only, and a few excerpts from the opposing side. 2. Cf. Winterbottom 1984: 564. 100 in the sermo on the case calls the foreigner a merchant (peregrinus negotiator), which justifies the assumption that the two traits are tied. For Latro in Sen. Controv.

2.7.8, this link does allow him to explore the idea that the merchant had traveled far in search of a chaste woman, perhaps something like Diogenes and his lamp. In the end, however, and in absence of any compelling precedents for the story, it seems probable that the foreign merchant serves to allow the defense a color, namely that the foreigner had no one else to whom to leave his fortune as he had no ties to any other living soul, but that he had that fortune to leave behind due to his mercantile activity. [Quintilian], in adapting the case to the folkloric element of the substitute woman and removing the inheritance, then failed to purge the thema of characters no longer necessary to the questions of the case. This would exemplify the process by which characters and details compound, resulting in the complex themata of the

[Quint.] Dec. Maj..

Of all the cases, [Quint.] Dec. Min. 320 comes closest to a dispute over commercial law. [Quint.] in the sermo (320.1–2) even refers to the litigants as petitor and possessor, clarifying the latter as reus for any student who might not know that the possessor is the defendant of the case, petitor the prosecutor: so alien is property law to declamation that the master must explain the peculiar terms for its litigants. The case itself hinges on definition. Of the two partners in a societas

(voluntary partnership),3 one by absence during time of war incurred the public confiscation of his property and thus his share of the property common to the partnership. Returning at last, he seeks half of the property remaining, on the grounds that the publication of goods did not dissolve the partnership. The question

3. On the law of partnership or societas, see Just. Dig. 17.2 and Lanfranchi 1938: 310–316. 101 becomes whether the publication of goods was a penalty (pœna) incurred by negligence or malfeasance, or a loss (damnum) resulting from misfortune beyond the partner’s control. The figure of the merchant provides a convenient way to introduce the peculiar circumstances needed for the question: it provides a reason that one actor would incur what could be considered a penalty without having done a positive harm to the community, and it also provides a reason for the societas whose second partner wishes to see not a penalty but a loss. Beyond setting up such a complicated case, the figure of the merchant is not generally necessary to cases dealing with partnerships, as becomes clear in the next case, Dec. Min. 321, in which an involuntary and hereditary partnership of consortium obtains between two brothers, neither of whom need be a merchant, and neither of whom is one.

Beyond these three cases, the merchant appears seldom. Only one other time does any general merchant appear, but he does not receive the title of merchant: in

Dec. Min. 388, the former dispensator, now freed, goes abroad to conduct trading

(negotiatum profectus). This functions only to explain why he might have been in a position to rediscover the son, thought dead in a pirate raid, alive instead in the possession of a slave dealer.

The Slave Dealer (Venaliciarius, Mango)

The slave dealer is himself a specialized merchant. Two appear in the cases, only in the Dec. Min.: the venaliciarius of 388 and the mango of 340. The much- affixed noun venaliciarius appears only in that case and in Just. Dig.4 and so appears to give an example of legalistic jargon for the more common venalicius, which never appears in the surviving declamations.5 The noun mango appears more widely in

4. Specifically, Dig. 9.2.27.24, 14.4.1.1, 17.1.57.pr, 21.1.37.pr, 21.1.44.1, 32.1.73.4, and 50.16.207.pr.. 5. Venalicius does, however, stand in Suet. Gram. et Rhet. 25.9, describing a 102 Latin but with the connotation of a crafty slave-dealer who makes worse merchandise seem better.6 Indeed he so endeavors in 340, trying to pass off a slave as a free boy to evade customs duty. The publicans give us their estimate of the slave-dealer’s character: he is a man who blushes at nothing, holds nothing back, a man who is dangerously greedy (periculose avarus, 340.12). Aspernas in Sen

Controv. 1.2.9 uses the word in the phrase pirata, leno, mango, the three figures who might have satisfied their lust with the purportedly chaste woman of the case: each is greedy in the declamations.7 The general merchant does not bear such an association with greed as does the mango: indeed, the merchant of Sen. Controv.

2.7 proved rather generous, unless one thinks him adulterous.

The Pimp (Leno) and the Prostitute (Meretrix)

The most frequent commercial transaction in the declamations belongs to the oldest profession. Two figures recur in this trade: the pimp (leno) and the prostitute

(meretrix), who may be independent or work in the pimp’s brothel. Despite knowing that injustice befalls the women of the sex trade,8 despite despising the turpitude of the figures involved, and despite the number of youth whom prostitutes entice into

declamation that seems to be an antecedent of Dec. Min. 340; as well as in a lost speech by Cicero, quoted by the same at Orator 232 and Quintilian at Inst. 9.4.14. 6. In this sense Quintilian uses the word in Inst. 2.15.25, describing a merchant who uses fucus to simulate color and sagina to provide a false sense of robur. He opposes the mango to the exercitator (in the feminine as ars exercitatrix), the true trainer who provides color and robur: Given that these terms have special meaning in the rhetorical vocabulary, one wonders if the exercitator is not also the declaimer. 7. For the greedy pirate see most explicitly Sen. Controv. 1.7.3 and 16. In Calp. 5, the frugality of a band of youth is said to have displeased the pimp to the point of murder. 8. Cf. Calp. 5: a father asks of the pimp, Quid enim aliud in his quam injuriam vendis, “What else but injustice do you sell in your slaves?” 103 prodigality and consequent disinheritance,9 Sophistopolis tolerates the merchants of desire. Indeed, for all the Prætorian edicts and notations of infamy stacking the deck against his kind in real Roman courts,10 the declamatory pander enjoys the protection of the law and initiates cases for property damage (damni injuria dati) when his girls fall in love (Dec. Min. 385). Only those whose actions question the definition of pimping ever stand accused of lenocinii, and no speaker ever suggests outlawing the sex trade as a social evil or moral danger.

The Pimp (Leno)

The pimp occurs only as an incidental character in Seneca but also as a legal subject in Calp. and [Quint.] Dec. Min. In Sen. Controv. 1.2, declaimers consider his character an affront to the dignity of the forum: “Let the pimps be gone from this court” proclaims Latro (1.2.1). Mento begs forgiveness for even mentioning the brothel, the pimp, and meretricious profit (1.2.4). In this case alone does the infelicitous title of pimp enter into the themata of Seneca’s Controversiæ. Likewise in

[Quint.] Dec. Min. 344 the pimp sets up a bidding war between the sons of a rich and poor man; he then exits the case in which the poor and rich fathers contend. The pimp here, as in Sen. Controv. 1.2, exists to move along the circumstances of the case: in Sen. Controv. 1.2, his purchase of the chaste woman challenges the credibility of her chastity, and in Dec. Min. 344 he provides the contest between the sons for a prize unworthy of honor. In each case he merely facilitates the questions rather than posing them.

On the other hand, the pimp, enjoying civic rights in Sophistopolis, can pose those questions by making suit or defending himself in court. The bizarre murder of

9. Unless the father decides to support his son’s indulgences: cf. Dec. Min. 330. 10.Cf. Just. Dig. 3.2.1 and specially 3.2.4.2–3. 104 Calp. 5 reflects a declamation as old as Sen. Controv. 10.1.13, where Seneca reports Julius Bassus declaiming the same theme. A pimp warns five (Calp. 5) or ten

(Sen. Controv. 10.1.13) young men to cease frequenting his establishment; they recklessly disobey and fall into at trap dug for them, a pit filled with fire and covered over with earth. The design of a covered fire pit, in which five or ten youth would perish by the hidden flames,11 challenges the bounds of credibility, but the thema need not seem naturally credible, since it has the force of fact by generic convention.

Only one sentence, addressing the main question of the case, survives in defense of the pimp: “When a consequence is announced in advance, the blame lies with the one who suffers the consequence” (Calp. 5). That the pimp never receives further representation than this one sentence may demonstrate how disagreeable his character proved himself. The record preserves no further justification of self-help or the pimp’s rights as an entrepreneur,12 only invective against the pimp for his trade:

“What else does the pimp sell in his women except injustice?” (Calp. 5.).

Had [Quintilian] given his side of the case, the pimp of Dec. Min. 385 would have raised the question of whether one in his position might call love a loss incurred unjustly. The various declamatory fathers who disown their sons for loving a

11. For a similar idea, see Hor. Carm. 2.1.1–8, where the writing of recent history resembles walking on walking on fire covered with ash. Horace writes the poem to Asinius Pollio (mentioned in 2.1.14), who declaims repeatedly in Sen. Controv.. 12.Sussman 1994: 108 suggests that the youths either refused to pay for services rendered or abused the prostitutes for the pimp to react so violently (in modern parlance, the youths were asking for it). The pimp’s statement of damage (Injuriam inquit faciebant mancipiis meis) provides a possible color supporting the second possibility, but the thema of Calp. 5. and the recollections at Sen. Controv. 10.1.13 do not give the background material for this. Likewise McGinn 1998: 52 n.270, suggesting that the pimp anticipated “rough justice” (without specifying from whom), either invents the color that the pimp killed the youth in self-defense, fearing an assault from them, or suggests that the parents’ anger over their murdered children is somehow unusually harsh. 105 prostitute13 might well agree with the pimp, but the young man who lured her away with a love potion can counter him with a barrage of quæstiones, among first being whether the pimp does not himself constitute a public harm (leno est publicum damnum, 385.4). [Quintilian] suggests a further line of attack based on the pimp’s greed, namely that the pimp brings the case to advertise the girl to a wider target demographic, the whole forum (385.1 in the declamatio and 7 in the sermo). We learn too that the pimp is clever: he makes huge sums of money without any labor

(385.8), and nobody would believe that he could be outfoxed (385.3). [Quintilian] devotes much of the case to the comparatio personarum, the contrast between characters (part of his outline in 385.3), and the pimp’s peculiar character and his unusual “goods” informs the questions that develop, such as whether a pimp can make a claim of property damage.

The pimp is clever, so much so that in Dec. Min. 385.3 he seems a master of circumpscriptio, but in Dec. Min. 325 and 355, cases in which a citizen stands accused of pandering but is not a leno in the traditional sense, present complex quandaries also arise and border on circumscriptio. In 355 a ward and his guardian charged each other with theft of the ward’s inheritance and adultery with the guardian’s wife respectively; they settle by dropping their lawsuits, dodging the danger of trial. The guardian is then by parties unnamed charged with pandering, on the assumption that the settlement permitted the ward to cuckold his guardian in exchange for the inheritance, which in the plaintiff’s view amounts to pandering. In

13.Although cited as a usual cause for abdicatio, as at Dec. Min. 279.3, consorting with prostitutes actually earns the son that punishment only twice, in Calp. 30 and 37. One might additionally color Sen. Controv. 2.4 to make the meretrix the cause of abdicatio, but the declaimers prefer to blame the brother (2.4.7). Paradoxically, no father disinherits his son over a prostitute in Dec. Min. 106 the long and twisting color (355.1–6) that [Quintilian] suggests for the guardian, however, the plaintiffs intended long ago to defraud the ward by legal trickery

(fraudibus suis circumscriberent, 355.1). The plaintiff’s explanation (355.7–8) is briefer but still complex. Likewise complex is 325, in which a poor man had been charged and absolved of pandering after rumor claimed that he had allowed a rich man to cuckold him, although the thema reports no payment rendered at that time.

Upon the rich man’s death, however, his will left his fortune to the poor man, with a codicil asking him to give the estate “to the one to whom I asked you to give it,” and the poor man’s wife sues him to obtain the estate for herself. Her difficulty lies in avoiding confirming the rumors of her adultery with the rich man: she wishes to claim the money but disclaim the affair, so she must make the rich man out to have loved her for her beauty but also have respected her chastity and reputation. The charge of lenocinii helps in this, since the poor husband had not charged his wife with adultery (325.18). Her advocate constructs a fanciful color that the charge was true, to the extent that the husband conspired with the rich man to receive the legacy on promise of permitting something the wife had the decency to shun (325.19). The wife’s case, as would also the husband’s case, rests on suspicion, rumor, abuse, and arguments of probability that in their complexity challenge credibility. Both cases thus link the charge of pandering (lenocinii) with cuckoldry, inheritance, fraud, and circumscription.

In conclusion, the pimp is the cleverest of the merchants, more wily than the mango. Yet it is not only his cleverness that earns him more frequent appearances in Sophistopolis’ courts than any other merchant, but also the questions that his activities can bring to the case. Declamation does not concern itself with the

107 intricacies of commercial law: it prefers cases that touch on psychology and human emotions like love, lust, and revenge.

The Prostitute (Meretrix)

In three cases, Sen. Controv. 1.2 and 9.2 and [Quint.] Dec. Min. 297, the prostitute appears together with other specified characters: the pirate, pimp, soldier, and the Vestal Virgin (Controv. 1.2); the proconsul Flaminius (9.2); and the war hero

(297). In these cases, the prostitute seems to represent the appetitive and profit- seeking part of the soul. More often, however, she plays a minor role in general family cases and suits between rich and poor men, without other specific characters beyond the pimp. Another set of cases deal with the consequences of the grave error of mixing business with true love, a mistake often facilitated or corrected by chemistry, although one must also debate whether love or hate in a bottle brings harm. Finally, there is one male prostitute.

Sen. Controv. 1.2 offers a description of the prostitute in Porcius Latro’s descriptive narration of the virgin’s induction into the brothel (1.2.1), ending with her being led into her room there, and Cestius Pius’ description of her standing with the prostitutes, receiving her client, giving him a kiss (1.2.7). The virgin had been captured by pirates and sold into prostitution but avoided sleeping with her clients until a soldier tried to rape her; she killed him, was aquitted of murder by a plea of self-defense, and was sent back to her own people. After this harrowing abuse and her violent revolt against it, she seeks Vestal status claiming her purity. The main question of the case hangs on the definition of “pure,” and whether one can remain pure after enduring such an environment. Nowhere does it enter into discussion that the city would be more pure without such institutions, and from the declaimers’ familiarity with the workings of the brothel evinced by their descriptions one assumes

108 that Sophistopolis too has houses of ill repute like the one in which the woman was kept. The foreignness of the brothel, apparently in another city, further serves to cordon off the impure in a defined space opposed to the pure spaces of the temples

(1.2.2 and 10) and the forum (1.2.1) of the city. The declamation on the one hand restrains and segregates the private sphere of lucre and appetites from the public domains of religion and justice, while on the other hand it presents a woman who claims to have been pure and just in that sphere and who sues in a court of justice for her place in the temples. This raises the questions of whether it is credible that a person could overcome appetites, her own and others’, to such a degree, whether that is exactly the sort of person who should be a priestess, and why either should seem incredible. Those who take her side (1.2.17–18) see her as a demonstration of either the strength of human character or of divine intervention: either way, she deserves priestly status in their opinion.14

Transgressive as well is the prostitute of Sen. Controv. 9.2, who during dinner convinces Flaminius to execute a condemned prisoner since she had never seen a man beheaded. The proconsul embodies Roman public authority exerting itself in justice (which condemned the prisoner) in a foreign land; the foreign meretrix the appetitive desires that corrupt Flaminius into seeking lucre and pleasure.15 The dinner is a private space that not only satisfies the human needs for food and drink but allows overindulgence of the appetites, as Bassus (9.2.4) describes the dinner; since the prostitute occupies the physical space where the prætor should recline, as

14.This has a long reception in novel and hagiography: to give an example of human fortitude and character, it is the story of Tarsia in Historia Apollonii regis Tyri 32–36 and 40–41; see Panayotakis 2002 for both Tarsia of the Historia Apoollonii and the reception of the story in hagiography. 15.For Flaminius’ avarice, see 9.2.21: “Despolia.” Meretrix, agnoscis hoc verbum? Certe provincia agnoscit. 109 Rufus (9.2.2) describes it, she symbolizes the transformation of necessary appetites into excess. Her appetite for novelty, unchecked by a proconsular prudence rendered servile to her whims, drives Flaminius to his crime, his failure to exercise the processes of justice in a rational and proper manner, as if she were an externalized representation of the appetites of his own soul opposing his reason and judgment.

The unfortunate prostitute of [Quint.] Dec. Min. 297 suffers at the hands not of a reason-driven character, but of an example of martial spirit, a war hero. Why this happened, how he managed to gouge out her eyes, does not appear in the thema, providing ground for colores.16 How and why the hero came to blind the whore he had loved matters little in developing the thema: instead more important is the figure of the war hero, as a symbol of the spirited part of the soul, overpowering and then balking at subjection to the prostitute, who manifests the appetitive part of the soul.

In five cases the prostitute plays only a minor role in cases of family law. In

[Quint.] Dec. Min. 330, a son invents a fictive prostitute to secure funding from his father; the son funnels the money to his mother, whom the father had divorced on grounds of adultery. No real prostitute appears in the case, but the idea of a son falling in love with a prostitute wields so much credibility in declamation that it pulls the wool even over the father’s eyes. The father of Calp. 37 has fallen for a prostitute himself, and his son for another: the son, redirecting the money that his

16.Winterbottom 1984: 417 exceeds the evidence when he suggests, “The meeting is perhaps imagined as taking place during the triumph of the fortis, when he would have been polluted by her like the sacerdos in Seneca.” Castus e castis, the prerequiste of abstaining from all pollution, is nowhere a prerequisite for the vir fortis. Furthermore, only in Calp. 52 and Sen. Controv. 10.2.4 do we find any mention of a vir fortis enjoying a triumph, and each of those need not be taken literally. There is no reason that one must accept Winterbottom’s color of the vir fortis avoiding pollution from a prostitute during the ritual of triumph. 110 father entrusted to him for redeeming the father’s favorite, buys back his own instead. As with Dec. Min. 330, the prostitute provides a pretext for the son to embezzle for his own ends. The sons of poor and rich men in Dec. Min. 344 both love the same prostitute, and her pimp sets a contest to see who can gather funds for her redemption first. The rich man’s father, finding the poor man’s son alone in a deserted place and preparing to kill himself, gives him the money to buy the prostitute’s freedom, thus keeping his own son from the prize. The poor man sues him on a charge of unspecified wrongdoing (inscripti maleficii). The indulgent father of 330 had funded his own son’s debauchery, but nothing in the thema indicated that the son planned to buy the prostitute: when redemption becomes possible, and dalliances become less a casual business transaction and more a seemingly permanent relationship, fathers turn against their sons to chasten them and encourage them to find a more suitable mate. Sophistopolitan fathers tolerate prostitution in their city as long as it does not become true love. Two cases treat of the fallout of paternal rejection. The disavowed sons of Sen. Controv. 2.4 and Calp.

30 betake themselves to a prostitute since they no longer have homes of their own, and each recognizes as his own son an infant born to the meretrix, whom the father

(now grandfather) takes into the family upon his son’s death. These cases explore the step beyond a son’s love for a prostitute, namely the legitimacy of the son of the whore. They also bring in the theme of money, since the infant stands to divide the legacy that the father’s other son, the sole remaining heir, would have received intact.17 In all of these cases, the figure of the prostitute intrudes on the family and divides father against son.

17.So Papirius Fabianus at Sen. Controv. 2.4.3, Bassus at 4, Fuscus and Argentarius for the other side at 5. 111 Two cases, one presented as two sides of the same case in separate declamations, link the prostitute with love or hate potions. The infatuated young man of Dec. Min. 385 gives his love an amatorium, winning her heart and ruining her for her pimp, who sues for property damage. The prostitute of Dec. Maj. 14 and 15, on the other hand, gives a hate potion (odii potio) to her poor lover, who sues for poisoning. In neither case does the prostitute administer a love potion, something one might suspect of one who stands to gain financially from affection won by chemical arts: declamation seems to dance around the obvious, preferring to explore inversions of the most credible possibility. The hate potion best exemplifies this love of inversion, since, as Calboli 2010: 147 remarks, no other example of a hate potion comes down to us from antiquity, though many love potions do.18 As a further inversion, and as a sign of the difference of these declamations from those pertaining to the family, the advocate of the meretrix who administered the hate potion can claim that no complaint lies against her for wrecking a home, corrupting a son, or ruining anyone’s finances through her greed (15.2), the usual themes of the family declamations outlined above. Dec. Min. 385.5 calls into question whether the amatorium had any effect, and 8 gives an alternative possibility, that the young man’s attention instead of his potion brought about the prostitute’s love for him. Dec. Maj.

14 and 15, however, admit the efficacy of the drug but debate whether it was harmful or salutary: can love harm a man, and can hate restore him to a healthier condition?

These three cases explore the nature of love (and hate) and the damage that love

18.One might, however, compare the dual arrows of Cupid, the golden arrow of love and the leaden arrow of its rejection, found in the declaimer Ovid’s poem Met. 1.466–71). These are external agents inducing emotion, although divinity rather than human agency introduces them to their targets. 112 can wreak on the psyche, questions apt perhaps for fans of the Symposium or the

Phædrus moreso than the rescripts and opinions of Roman law.

The undesired attentions bestowed on the meretrix of Dec. Maj. 14 and 15 echo those of the prostitute’s slave who fell in love with her (Calp. 33). She decided to crucify him, but he appealed to the tribunes on the grounds of unjust punishment.

Only the thema and four sentences survive, but the main question seems to revolve around whether the emotion of love can be a crime. The sentence containing crimen aut error, a frequent collocation in the poetic works of the Senecan declaimer Ovid,19 recalls also his carmen et error (Tr. 2.1.207), often taken to pertain to some love or love poem for which he, like the slave, suffered punishment, though by exile instead of crucifixion. The prostitute’s position as domina strengthens the association, since that term applies as well to the mistress of the poet’s persona in elegiac poetry such as Ovid’s Ars Amatoria. This makes the main psychological and philosophic question of the case especially real and relevant to declaimers, as one of their own actually suffered because of this question.

Finally, Calp. 20 presents an inversion of sex in the person of the male prostitute. His twin brother gives reasons why the man chose to prostitute himself: bad company, excessive spending, nequitia or lewdness. While all reasons for behavior given in declamation are colores and thus calculated to push the litigant’s side of the case, the idea that falling in with the wrong crowd motivated the prostitute differs from any reason given for a woman’s prostitution. It does, however, recall

Sen. Con. ex. 5.6, in which a young man dressed as a woman to win a bet and is gang-raped by ten other young men. Women are enslaved (cf. Sen. Controv. 1.2) or

19.Her. 17.48, Met. 3.141–42, Pont. 3.3.75. 113 practice the trade out of financial necessity ([Quint.] Dec. Maj. 15.2), but peer pressure becomes a plausible color when characterizing the male prostitute.

Nevertheless the male prostitute divides the family as does the female, and he also motivates suicide, the occasion for the twin brother’s speech (he asks state permission to die), as did the female prostitute of Dec. Min. 344. Declamation’s job is to heal such divisions and psychological wounds, wrought by mercenary love. The realities of Roman law have little power to heal such grief, a matter better suited to a philosophic rhetoric.

The Craftsman (Artifex)

It is a well-known paradox that, despite the importance of the δηµιουργός in

Platonic theology and politics, and despite the characterization of Socrates in the

Apology as one often engaged in conversation with the ordinary folk of the marketplace, he never converses with any craftsman in Platonic dialogues.20 The same observation obtains in declamation: despite the presence and importance of artisans and manufacturers of goods in any real city, Sophistopolis never sees an ordinary craftsman, a maker of pots or pans, prosecute or defend a case, and there is no stereotyped figure of an unnamed craftsman in declamation. Two cases among Sen. Controversiæ do present extraordinary craftsman, however, both named and famous artists who created mimetic representations of the gods. The noun artifex21 occurs in both these cases and nowhere else until [Quint.] Dec. Maj., where

20.Cf. Strauss 1989: 153–54. 21.For artifex as the Latin translation of the Platonic δηµιουργός, see Cic. Timæus 6: Atqui si pulcher est hic mundus et si probus ejus artifex, profecto speciem æternitatis imitari maluit, sin secus, quod ne dictu quidem fas est, generatum exemplum est pro æterno secutus. Note that the hypothetical allows for two possible creators, one good who creates a beautiful world according to the pattern of the eternal forms, and one who is not good and created a world that is not beautiful. 114 the word recurs frequently and with enough regularity to warrant the suspicion that it assumes a thematic meaning peculiar and important to the collection.

Phidias and Parrhasius

The only two craftsmen in declamatory themata occur in the latter books of Sen.

Cont, and both characters are so specific as to have names. The other named characters are Athenian political figures, such as Miltiades and Demosthenes, or

Macedonian and Thracian kings, or Romans of great political or military power like

Cicero and Marius. The sculptor Phidias and the painter Parrhasius have little in common with them, except that their inclusion rounds off the list of named characters in a way that fills out the Platonic outline of a state, comprising the political elite, the military, and the δηµιουργοί or artisans.22

Phidias, having lost his hands to a charge of sacrilege among the Eleans, is thrice called artifex. The charge, that he stole gold allocated for divine art, joins in

Phidias’ character both his skill in craftsmanship, which gave him opportunity, and an appetite for money, which gave motive. One recalls the Platonic association of the artisan class with profit-making at a political scale, since that class alone of the constituent elements of Platos’ Callipolis enjoys the possession and pursuit of private property, and at a microcosmic scale the desire of the appetitive part of the soul for money with which to fund its appetites. Why else make an artisan a sacrilege? Yet, for the side arguing that Phidias, and thus Athens, was wronged, his craftsmanship rather than his appetite dominates the debate. One sententia posits that the first thing the god saw was his own craftsman’s blood (8.2.1), giving a divine majesty to

Phidias as a creator of gods (perhaps not unlike the δηµιουργός of Pl. Ti. 40a–41e).

22.For the repeated concept of the artisan class divided from the military (and political) class, and by metaphor the tripartite soul, see Criti. 110c–d, Ti. 17c–18c and 24a–b, and the entire Republic. 115 Notably, Phidias appears in Plato’s works, at Prt. 311c and e, Meno 91d, Hp. maj.

290a (where Socrates imagines someone asking whether Phidias is a good

δηµιουργός). The backstory has been altered from what Diod. Sic. 12.39 and Plut.

Vit. Per. 31 present, namely that Phidias stole gold from the statue of Athena in

Athens and was tried there. This change of venue removes any possible Athenian civic culpability: rather, the declaimer can defend Athens’ favorite craftsman, qua artist rather than thief, from the injustice of foreigners. This in turn allows for that extremely positive, apotheosizing valorization of the artist as craftsman of a god.

Parrhasius has no such luck. He is an Athenian tried at Athens for torturing an old, Olynthian slave bought from Philip, and modeling upon that torture the torments of the Prometheus he depicts and displays in the temple of Minerva (Athena), incurring a charge of treason (rei publicæ læsæ, 10.5). The Olynthians in declamation elsewhere are young refugees to whom Athens publicly grants hospitality or even citizenship, but who find some particular host among the

Athenians offering hospitality that seems to have become rape (Sen. Con. ex. 3.8,

[Quint.] Dec. Min. 292). In Parrhasius’ case, much is reversed: the Olynthian victim is not young and sexually attractive but an old man, not a refugee but a prisoner of war and thus a slave, and not the victim of any suspected sexual act that could be contested in statu conjecturalis but of a confirmed and certain murder.23 The thema explicitly states that Parrhasius tortured him and painted Prometheus in his likeness.

Arrelius Fuscus berates him for painting Prometheus not at his best, when making man and sharing fire,24 but at his worst, in agony (10.5.7). On the other hand, as

23.Several Roman declaimers inject the color that the old slave, having aged to the point that life was a burden, wanted to die (10.5.17–19). The Greek declaimers rejected not only that color but all defense of Parrhasius (10.5.19). 24.The theme of man and fire struck a chord among the declaimers, both Greek and 116 Gallio points out, gods are often painted at their worst, caught in adultery or parricide

(10.5.14). Plato levels the same criticism at mimesis, most famously at Rep. 389c–

392a, treating of the danger of representing in art the wicked deeds ascribed to the gods, but he also explicitly uses painting, Parrhasius’ profession, as an example of mimesis at the second remove, which describes well what Parrhasius is doing in painting an old man as a model of Promethean suffering (Rep. 598a-d). In a

Platonic light, Parrhasius represents the worst aspects of mimesis, which in turn gives the declamation an ironic self-awareness, in that the declaimer too becomes an artist of pain. In his sententiæ (10.5.8–10) Sparsus makes especially frequent puns with declamatory terminology: statuitur ex altera parte Parrhasius cum coloribus, Parrhasius is set on one side (of a scene being described, or of the declamation?) with his colors (his paints, or his rhetorical colores, the explanations built around the thema that excuse his actions?). As Morales 1996 has shown, the

Senecan entry as a whole links the figure of the artist and torturer (artifex and carnifex) to that of the declaimer as an artist who works in pain to provoke empathetic and æsthetic reactions from the consumer.

These craftsman, the one linked with divinity and the other with pain, as well as the figure of the literal artist, disappear after Seneca until the pseudo-Quintilianic

Dec. Maj.

Craftsmen of the Dec. Maj.

The noun artifex also regularly occurs in [Quint.] Dec. Maj., in 5.4 and 5.6, 10.9 and 10.11, 13.16, 16.10, and 19.12, although never as part of the thema. This divides the corpus, as it presently stands, into two halves: a decade divided again into two halves, each of which ends with a declamation containing the word twice;

Roman: cf. 10.5.20–21 for imitations of the theme. 117 and a nonad comprising three thirds, whose final pieces each present the word once.

One finds the noun always in the nominative case, except at 10.11, where the genitive case also marks the only instance of a literal rather than figurative craftsman: thus the decade or first half contains three figurative craftsman and one literal, and the nonad three more figurative craftsman. This grouping also respects relationships between declamations, keeping together the related cases of the blind sons (1 and 2) in one pentad, the two sides of the case of the hate potion (14 and

15) in one triad, and case of the father who killed his son in torturing him to find out if he had committed incest with his mother (18 and 19) in another triad. Finally, the manuscript tradition preserves Dracontius’ subscription after 18 and, in two manuscripts, after 10, suggesting that the corpus was at least divided into halves.25

This seems to indicate that some hand arranged these cases intentionally and marked the arrangement with the word artifex.

The first decade presents two cases, 5 and 10, in each of which two artifices appear. The fifth declamation presents a theistic dualism between god, the craftsman of mortality (ille mortalitatis artifex deus, 5.6) who wants man to help his fellow man, and the pirate-king as the savage craftsman of human suffering (sævus

25.Cf. Cameron 2011:446–447; Håkanson 1982:viii, xi–xii. The order of declamations in the two manuscripts of β, which alone hold the subscription after 10, is scrambled. In the rest of the manuscripts, the first declamation appears after 2 (a parallel case) or 19 (at the end of the corpus), likely due to frequent use wearing out the pages of the archetype. That 1 is indeed the first in the manuscript is strengthened by the loss of its preceding thema: loss tends to occur at text boundaries, such as at the beginning of a work. Likewise, the other major lacuna, devouring the conclusion of 16 and perhaps the first word of 17 (cf. Håkanson 1982:xix), falls at the boundary of triadic groupings suggested above, between the triads 14–16 and 17–19. Håkanson notes that the order of 1 is disturbed in some manuscripts, placed after 2 or after 19: the first text was either exchanged with the second, a related case, or moved to the far end of the corpus. 118 et humani doloris artifex, 5.4) who denies that the father may redeem both his sons, forcing him to choose between them. The pirate-king, in his cave immersed in preternatural (ultra naturalem) darkness (5.16), stands in antithesis to the god- craftsman, recalling the theistic dualism of Manichæan and gnostic teachings and the quasi-dualism of Christianity. Like the pirate-king of 5, the mage of 10 is both sævus and an artificer, working on tears (in lacrimas…nostras) that recall the human suffering of 5.4.26 The mage, by virtue of his command of the supernatural, brings to the philosophical debate of the case some metaphysical and psychological element.

Philosophical, and quite Platonic, too is the second craftsman of 10, the only literal representational artist of the Dec. Maj. and the only instance of the noun in the genitive. Here the wife is imagined as grieving over a physical image of her son, such as a death mask (the Roman funerary imago) or some likeness in which the son’s visage is expressed by the hand of a craftsman (expressos et adumbratos artificis manu vultus, 10.11). The mimesis piles up: the declaimer imagines himself as advocate in the main diegetic level imagining a mother, quoted in direct discourse, imagining herself, in the contrafactual, weeping over an image of her son; in the next sentence she laments that she has lost the real source of that image (illum perdidi, unde imago). It is difficult to avoid perceiving a Platonic flavor to artifex in such a stack of images, especially in a piece that elsewhere engages with philosophy.27

Three declamations, 13, 16, and 19, provide single instances of the noun artifex.

The poor man of 13, praising the bee, first claims that human intellect, believing itself close to the divine, labors much to learn arts, then that this comes naturally to the bee: nulla apes nisi artifex nascitur (13.16). The conclusion of the syllogism follows,

26.O mage sæve, crudelis, O in lacrimas artifex nostras… 10.9. 27.Cf. Kragelund 1991. 119 that the bee’s soul has some share of the divine mind (perhaps even more so than man, given the first part of the syllogism), reworking Verg. G. 4.220, itself a philosophic passage.28 The tyrant of 16, on the other hand, revisits the theme of the cruel craftsman (crudelis artifex, 16.10) seen earlier in the pirate-king and mage.

Like them, who divided brothers so that a father would choose between them and who took the ghost of the son from his grieving mother, the tyrant keeps two, the friends of the case, apart. Finally, the father of 19 describes himself as artifex senex,

“the old craftsman” (19.12), in describing how he stretched apart the body of his own son and wrenched apart his limbs in torturing him.

There are, then, three kinds of craftsmen in the text of the Dec. Maj.. In each half of the corpus, two negatively valorized craftsmen sunder what should be together. The pirate-king separates brothers, the mage mother and son; in the latter half, the tyrant separates close friends, and the old father his son’s limbs. Again in each half appears a craftsman associated with divinity: god, the craftsman of mortality, and the bee, who like man has a share of the divine mind. The remaining craftsman, that of 10.11, is, like Phidias and Parrhasius, an actual artist and worker in mimesis, though he is imagined within recursive diegetic frames within a mimetic speech, himself an image of an image of an image.

28.On bees in Plato, see Bell and Naas 2015:249–250; on the bee as a metaphor in the Second Sophistic, see Borthwick 1991. 120 CHAPTER 6 FIGURES OUTSIDE THE LAW

Exuit se tyrannus et erigit; supra leges ponendo extra illas se posuit. Hominem occidere non licet, tyrannum licet.

The tyrant casts off 1 and raises himself up; by putting himself above the law, he has put himself outside them. It is unlawful to kill a man but lawful to kill a tyrant. ([Quint.], Dec. Min. 274.5)

The expression “above the law” is classical: among the letters of Cicero, Brutus speaks of making war on monarchy and extraordinary powers and domination and power that wants to be “above the law.”2 As the declaimer of Dec. Min. 274.5 observes, whatever is above the law is also outside the law. The law acts to bind those within it in ties of justice and equity: but those without its obligations also lose its protection.

The expressions “above” and “outside the law” are not, however, simply metaphors but rather map the law as a concept to a place, namely the city. The tyrant who usurps the law also occupies the citadel far above the city, just as he lives above the law. He descends to the city only to meet his death or to give up his power, and upon death he must be buried outside the walls, just as he lived outside the law. The pirate and the robber dwell far from the reach of the law, as must the enemy too remain outside. The law depends on the physicality of the city: the law exerts authority where citizens can enforce it. In this way, the limits of the law also appear as spatial limits, excluding those whose power transcends the equity necessary for just civic relations. If, as Capello 2016: 217 puts it, “space is the

1. Winterbottom 1984:377 suggests rightly that lege must be understood with se exuit. 2. …regno et imperiis extraordinariis et dominatione et potentia quæ supra leges se esse velit. Cic. Ad Brut. 1.17. 121 primary focus of civic self-definition,” then consistently placing character outside the city defines him as a non-citizen.

The King (Rex)

The character of the king contrasts fundamentally with the free city. Seneca explicitly opposes the two in relating Cestius’ advice on the possible audiences for deliberative declamation (the suasoria): “One should not advise a free state the same way as one does kings, whom one cannot give beneficial advice without first making it more palatable.”3 The caution Cestius prescribes reflects the king’s embodiment of the authority that a free state instead abstracts from the individual and reposes in the laws and judgment of the jurors: such an authority, in the power of one man, lies open to capricious abuse. Since the controversia presupposes the libertas of the city and the authority of law rather than of an individual, no controversia is argued in a city under the rule of a king. Some suasoriæ4 take place before a deliberating king, but only outside the city and on the march: Alexander deliberates whether he should enter Babylon, Agamemnon whether he should sacrifice his daughter to proceed, and so forth.

Nevertheless, the kings of declamation, and especially foreign kings, can interact with the city more than can tyrants. Sen. Con. ex. 6.5 and [Quint.] Dec. Min.

386 present the case of a Thracian king and Iphicrates; the Senecan excerpts preserve no name for this king, but the declaimer of the Dec. Min. calls him Cotys;

Iphicrates’ name in in Sen. Con. ex. 6.5. seems to suffice to imply identification of the

3. non eodem modo in libera civitate dicendam sententiam quo apud reges, quibus etiam quæ prosunt ita tamen ut delectent suadenda sunt. Sen. Suas. 1.5. 4. Sen. Suas. 1, 3, 5, and possibly 2 if one accepts Leonidas’ presence at the deliberation, which Seneca mentions when reporting an invented sententia, falsely ascribed to Herodotus, about dining with Hades (2.11–12, 2.14). The rest of the suasoria does not require him, but nothing controverts his presence. 122 king with Cotys there as well. Alexander's status in Dec. Min. 323, in which he attacks Athens, is unclear from the thema, although the declaimer once calls him a king;5 Philip gets no title other than his own name.6 This means that kings exist only in the earlier declamations (Sen. and [Quint.] Dec. Min., but not in Calp. or [Quint.]

Dec. Maj.), only in classical Greek rather than Roman contexts, and then as warlike northerners—Thracians and Macedonians—who opposed Athens. We never find a

Deiotarus in the themata of controversiæ (but see Sen. Suas. 6.11) nor a Nicomedes nor even an Antiochus (though he makes a cameo in a list of enemies at Sen.

Controv. 7.2.7). The lack of kings in the later declamations mirrors the later avoidance of named characters (except for Marius) or explicitly Greek characters: since no king goes unnamed in declamation, a decline in willingness to name names entails the loss of kings.

Cotys

Cotys7 may be the most interesting of the three kings, not only for his obscurity relative to Alexander and Philip but also for his role in [Quint.] Dec. Min. 386:

Iphicrates brought him (adduxit) into court. The verb adducere here, like the phrase gladium attuli in 386.2, must mean "brought with him (as an aid)" rather than "haled into court": Iphicrates brought the king to impress or terrify the jurors, not to prosecute him.8 Nowhere else does a sovereign appear in court for any reason in

5. Dec. Min. 323.7; he is called simply “Alexander” eleven times in the same declamation, however. The declaimer seems more comfortable using the name than the title. Note that in the Suas. Cestius (1.5), Fabianus (1.9), and Fuscus (4.1) make explicit that Alexander is king. 6. Sen. Controv. 10.5, [Quint.] Dec. Min. 339. 7. For background on Cotys, see Harris 1989. 8. No such thing is attested outside declamation, although extra-declamatory sources usually say that Iphicrates did face trial, likely during the Social War. Diod. Sic. 16.21.4 claims that Iphicrates, along with Timotheus, was fined by the Athenians 123 classical declamation9; the preserved excerpts of the declamation itself, however, do not mention Cotys but rather the sword that Iphicrates brings to the trial. The

Senecan version, on the contrary, seems to have a declaimer mention the king's presence in court: "he came, along with his whole kingdom, as your advocate" (cum toto tibi regno suo venit advocatus, Sen. Con. ex. 6.5.1), though the thema mentions only some armed men in Thracian style (quidam Thracum cultu armati).10 The prosecution will argue that the king or his Thracians represent a threat to the jurors’ safety, and in [Quintilian]’s version even argues that such a threat is a form of violence (386.1). Still, Cotys can to pose a threat to the processes of justice precisely because Athens permits him entry.

Yet, the question lingers: of all the strongmen on the fringes of the ancient world and the margins of history, why call in Cotys from Thrace, why does his name appear in a mostly anonymous genre, and why does he play such an important role that he appears not only in the early, Senecan Controversiæ but also in the later

Declamationes Minores? If Philo and the Academy played a role in the development

after losing a case; Nep. Iphicrates 3 has him absolved of a capital charge; and Isoc. 15.129 has both Iphicrates and Menestheus. No source outside declamation claims that Iphicrates was armed. Nevertheless, see Dem. In Aristocratem 118–119 for the Athenian grant of citizenship to Cotys, which would justify his presence. 9. The sixth-century Ennodius Dictio 18 first breaks the pattern, in that Ennodius charges a tyrant. 10.Kiessling (1872) suggests cultris for the manuscripts' cultu but does not himself print that reading; Müller (1887) does print quidam Thracum cultris armati, likely “some men armed with Thracians' daggers.” Müller's reading is awkward, since neither does the quidam elsewhere in Sen. take a partitive genitive but rather ex with the ablative (cf. 5.1: quidam ex prætereuntibus; 10.5.27: quendam ex spectatoribus), nor does the weapon often want a genitive (although Pliny the Elder's cultris tonsorum, NH 28.79, could support that reading). It's possible, given the Cotyn Thracum regem of [Quint.] Dec. Min. 386 and the apparent mention of Cotys in the sententia cited at Sen. Con. ex. 6.5.1, that some reference to Cotys has been garbled into cultu, but such a conjecture seems weak. 124 and popularization of declamation, an answer presents itself: Cotys was brought to justice by the Academic tyrannicides Python and Heracleides of Ænus, students of

Plato.11 Making Cotys a potential villain in the case increases the visibility of a tyrant slain by Academics.

Philip and Alexander

The Macedonian kings, Philip and Alexander, present themselves to the

Athenians as more hostile than Cotys and do not enter the city, yet they also do not provide a source of external compulsion like tyrants or the menacing Xerxes of Sen.

Suas. 2 and 5. Indeed Philip12 more closely resembles a pirate than a tyrant, as he serves only as an external force responsible for taking captives outside the city. He once appears as a slave dealer, selling Olynthians to the Athenians (Sen. Controv.

10.5),13 and again as the victor of Chæronea ([Quint.] Dec. Min. 339), where he sends back the Athenian captives for free. He never attacks Athens directly nor threatens to, as does Xerxes in Sen. Suas., nor does he exercise power within the city, as a tyrant; but he remains a sovereign enemy against whom war can be waged in the name of freedom (bellum adversus Philippum suscepimus pro libertate totius

Græciæ, [Quint.] Dec. Min 339.10) and, above all else, he serves as a trafficker of captives.

Alexander, in [Quint.] Dec. Min. 323, inherits his father's war (non tam propria quam hereditaria nobiscum constitit contentione, 323.4) but not his piratical

11. For the sources on the assassination, see Roskam 2009:47–48 n.135. and n.136. 12.The second, king of Macedon 359–336 BC. 13.He does not, however, earn a place in any of the other themata dealing with captures Olynthians (Sen. Con. ex. 3.8 and [Quint.] Dec. Min. 292), although Sen. Con. ex. 3.8 present a declaimer, speaking as an Olynthian, who clarifies that it was Philip who captured Olynthus. The association existed, at least in the minds of Seneca's declaimers, but it wasn't necessary to the themata. 125 character nor his taking of captives. Philip never made it to Athens in the declamations; Alexander does, but, unlike Cotys, he remains outside the city.

Instead, he besieges the city and both burns and rebuilds a temple outside the walls.

While temple violation does sometimes characterize tyrants,14 no tyrant ever rebuilds a temple. While oracles give advice to both kings and tyrants, the advice given to tyrants ends in death (cf. Dec. Min. 329), but Alexander receives the advice he needs to put an end to the plague threatening his own army. The course of action prompted by the oracle also results in safety for the city, since Alexander departs from Athens without inflicting further harm. The oracle, like declamation, thus seems to distinguish between the king and the tyrant: the former it allows to atone for his destruction of a temple, while the latter, a character sometimes associated with stripping temples (Sen. Controv. 9.4.2) merits no reprieve.

The Tyrant (Tyrannus)

The tyrannus or tyrant15 provides the controversiæ with an analogue of the king of the suasoriæ. The authority of each derives from his own personal and arbitrary power rather than from any publicly constituted body of public laws. Thus just as

Cestius, in the Senecan Suasoriæ, distinguishes between kings and free cities

(liberæ civitates, 1.5), Blandus does much the same for the Controversiæ. in

14.Cf. Sen. Controv. 9.4.2 (spoliare templa) and 22, and, closer to the declamation at hand, [Quint.] Dec. Min. 329 (templa violaverit). Pl. Rep. 574d, discussing the tyrannic character, mentions temple-stripping with the sarcastic and unusual ἱερόν τι νεωκορήσει (“clean out some temple”) as opposed to ἱεροσυλία (443a; cf. 344b and 552d for the noun ἱερόσυλος and 575b for the verb ἱεροσυλέω). The former applies to tyrants, the latter to non-tyrants; in the declamations, the same distinction seems to exist, as spoliare or violare templa, but not the appellation sacrilegus, and Latro is said to observe this distinction (Sen. Controv. 9.4.10). 15. Tyrants have attracted more scholarly attention than the other characters: see Tommasi 2015 and especially Tabacco 1985; see also Schwartz 2016 on tyrants in [Quint.] Dec. Min specifically. 126 separating the republic from the tyrant (2.5.13). Likewise [Quint.] in Dec. Min. 329.1 characterizes the tyrant as one who steals the freedom and the laws from the state,16 and the young man of [Quint.] Dec. Maj. 16 once calls the tyrant rex (16.3).17 So, the tyrant, like the king, by arrogating to himself the law's power to command and reward and punish, stands in opposition to the free city and its necessary companion, the law.

Yet, the city does not forget its laws during a tyranny: indeed the memory of the law promises to reward a tyrannicide upon the law's restoration.18 So the law sleeps for a time, but the genre requires that it wake, since controversiæ entail the fiction of the court in which the case is argued. No tyrant, however, ever himself hears a case. It follows that the tyrant cannot, while in power, also be a legal subject or directly participate in arguing either side of a controversia, but instead may only play a part in setting up the circumstances of the case. Moreover, if he had, prior to the case at hand, ruled the city in whose courts the declaimers imagine they argue, he must either have died or laid down his power before the charges were laid: if he does lay down his power, the law promises to forget his crimes, but the citizens will remember the wrongs done. Since the tyrant does away with law and freedom, and the controversia pretends to enact a performance set in a free city governed by law,

16.…qui civitati libertatem abstulerit, qui leges sustulerit…. 17.The comparison works only in one direction: no declaimer ever calls a king a "tyrant," and the word is absent wholly from Seneca's extant Suas.. Cf. Ov. Fast. 6.189–90, where Marcus Manlius is condemned crimine regni, for attempted kingship, the pure Latin equivalent of tyrannidis. Rhet. Her. 4.66 imagines an orator conjuring the ghost of Lucius Brutus to remind the audience that he had driven out kings, but the audience thinks of introducing tyrants. 18.Implicit in Sen. Con. ex. 3.6 and Controv. 9.4; Calp. 1; with the explicit law Tyrannicidæ præmium, Sen. Con. ex. 4.7, [Quint.] Dec. Min. 282, and Calp. 13, 22; with similar laws [Quint.] Dec. Min. 329, 345 and 382. Only the controversiæ of [Quint.] Dec. Maj. lack a prize for tyrannicide. 127 logic demands that a tyrant of the same city must always have already perished or resigned, and that the law must have already triumphed, or else that the tyrant belongs to a foreign city. It is not until Ennodius’ inversion of declamatory norms in the late fifth or early sixth century that the tyrant may appear in court (Dictio 18): in classical declamation, the tyrant cannot be subject to the law he is above.

The tyrant's spatial position within but apart from the city further mirrors his opposition to the law. The citadel (arx) represents him: there he has his abode.19

Just as the tyrant places himself above the law in metaphor, so too in his lofty fastness does he live above and apart from the people of his city. As the courts of law summon citizens for justice, the tyrant summons to his citadel the victims of his iniquity,20 though one does have his henchmen (satellites) abduct them thence (Sen.

Controv. 2.5.3). When he needs a doctor, if he does not trust his own, he must send for another from the town (misit ad medicum civitatis, Calp. 13), just as in dealings with pirates beyond the bounds of the city’s power letters and people must be sent,21 because the citadel is considered physically separate from the town, just as the tyrant’s own doctor is not identical to the town doctor. To the citadel too must the tyrannicide climb to seek his prey,22 though he may chase the tyrant from the citadel.

In fact, the declamations only present a tyrant outside his citadel, down among the

19.Sen. Controv. 1.7.8, 1.7.16–17, and 2.5.7; Calp. 1, 6, and 13; [Quint.] Dec. Min. 288.3. Tabacco 1985:15 calls the citadel the dimora canonica del tiranno. 20.Sen. Controv. 9.4, [Quint.] Dec. Min. 282 and Dec. Maj. 16.4. Cf. Calp. 13, where the tyrant has one doctor in the citadel and summons another to come to him. 21.Cf. Sen. Controv. 1.3, 7.1, Con. ex. 1.7, [Quint.] Dec. Min. 342, 373. See also Sen. Controv. 2.2 for a husband abroad sending a message back to his wife in the city, [Quint.] Dec. Min. 333 for a young man sent to Athens, and Dec. Maj. 12 for a legate sent to gather grain abroad. All use forms of the verb mitto for sending an item or person across the city’s frontiers. 22.Sen. Con. ex. 3.6.1 and 4.7; [Quint.] Dec. Min. 274.5, 345 128 people, when he dies, whether pursued by insurgents (Sen. Con. ex. 3.6) or struck by lightning in the forum ([Quint.] Dec. Min. 274), or when he has laid down his power, though the former tyrant who weeps beside the citadel incurs suspicion of longing for his old power ([Quint.] Dec. Min. 267). The tyrant, while in power, cannot leave his citadel but, like an unmoving mover, acts through henchmen sent into the city; nor moved from his place can he return. As Socrates says of the tyrant, he alone is unable to travel (Pl. Rep. 579b). No declaimer bothers to imagine him on any other business elsewhere in the city except in death, and these twin boundaries of the citadel and mortality index the two functions of the declamatory tyrant. The tyrant, while alive, subverts the cultural norms underpinning the laws, and in a passive role as a corpse serves as a pure object of legal dispute.

The tyrant’s character is cruel, greedy, and libidinous. The hero of [Quint.] Dec.

Min. 293, who asks to be made tyrant over a conquered enemy, wants to argue his case like one who will be cruel (tamquam futurus crudelis, 293.1), but he disclaims the appetites (Sed numquid vobis videor avarus, libidinosus?, 293.2) to convince his audience that he intends only a punitive tyranny for a deserving enemy. The usual tyrant gives vent both to anger and to appetite, inverting the social order that the laws protect. A tyrant may order a son to strike his father23 and allow slaves to kill their masters and rape their mistresses (Sen. Controv. 7.6), providing either necessity or license, as the situation requires, for the wrath of the lesser against the stronger. He forces a young man to choose between his blind mother and his friend's life, that is, between the bonds of filial piety and friendship, out of sheer

23.Sen. Controv. 9.4, directly in violation of the law "Whoever strikes his father, his hands shall be cut off" (Qui patrem pulsaverit, manus ei præcidantur). Cf. Pl. Rep. 574c, wherein the tyrannic son of democratic parents would, as a mark of his tyrannic character, strike his father. 129 hatred for human sympathy according to the declaimer of [Quint.] Dec. Maj 16.24 He tortures,25 a power the law elsewhere reserves unto itself against public enemies generally involving conspiracies26 and to fathers against those under their legal power,27 and once expressly forbids using against free men otherwise.28 The violation of temples is also associated with tyrants within controversiæ,29 but no thema includes this detail, only rhetorical characterizations within the speeches. The tyrant not only inverts the general equality of the free state by seizing power for himself alone but also perverts its every custom, with one exception: he objects to adultery. In Sen. Con. ex. 4.7, a tyrant catches a man committing adultery with the tyrant’s wife; he attacks the adulterer, who snatches the sword from him and kills him. The tyrant’s action here accords with Sophistopolitan law, which generally

24.The color giving the tyrant's rejection of sympathy lies at 16.4; the young men themselves proposed the choice, however. 25.Sen. Con. 2.5; [Quint.] Dec. Min. 269; Calp. 13. 26.Traitors: [Quint.] Dec. Min. 307, with the law that a traitor is to be tortured until he reveals his co-conspirators (proditor torqueatur donec conscios indicet); also Calp. 7 without the law but under the martial authority of an imperator. Poisoners: Sen. Controv. 9.6, [Quint.] Dec. Min. 381, and Calp. 12, all with a law that a poisoner is to be tortured until she reveals her co-conspirators (venefica torqueatur donec conscios indicet, in Calp. with rea after Venefica); in all cases torture follows conviction or confession, while the tyrant of Calp. 13 tortures his doctor without trial. Temple robber: only [Quint.] Dec. Min. 379, with the expression "according to the law" (e lege) in the thema but without explicitly giving the words of the law. Murderers: only Dec. Min. 324, with no indication of a law given, but no indication that torture constitutes unusual procedure either. 27.Sen. Con. ex. 8.3 and Controv. 10.5; [Quint.] Dec. Min. 328, 338, 353; Dec. Maj. 18, 19. 28.A free man may not be tortured (Liberum hominem torqueri ne liceat) as evidence in a trial: Dec. Maj. 7; note that Dec. Min. 269 and 353, the other cases in which testimony derived from torture is offered as evidence, involve slaves rather than free men. 29.Sen. Controv. 9.4.22; Dec. Min. 329.1. 130 grants a man the right to kill an adulterer.30 The law here, with exceptions only in

[Quint.] Dec. Min., puts the right of vengeance in the hands of the angry cuckold and thus abdicates its own responsibility to intervene. That abdication to personal authority is the only part of the law that the tyrant, who subsumes in his person all authority, maintains: he tries to take into his hands the sword of vengeance, but he fails. In all else, the tyrant perverts the law.

Outside of the themata, declaimers often connect tyrants to silence and the refusal to speak. A rhetor of Seneca's Con. ex. 5.8 tells of the tyrant31 who built a brazen bull to silence his victims. Tyrants sometimes torture citizens to extract information about plots, but their victims always persist in denying knowledge of any plots. In Sen. Controv. 2.5, the wife responds to the tyrant's henchman according to

Latro, but Cestius Pius, Arellius Fuscus, Hispanus Cornelius, Papirius Fabianus have her remain silent; Latro, however, ex altera parte claims that she never knew anything. The poor man whom the tyrant tortures along with his sons in [Quint.] Dec.

Min. 269 refuses to betray the whereabouts of his rich friend’s money. Likewise, amnesties granted upon a tyrant's voluntary retirement silence any prosecution for his crimes.32 The tyrant, like the king, has a chilling effect on freedom of speech.

30.[Quint.] Dec. Min. 284 allows adulterers to be killed. The laws of Sen. Controv.1.4 and 9.4, reflecting the earliest tradition, and Calp. 49 stipulate that the vengeful cuckold must kill both the adulterer and his own wife to escape blame. Calp 31 allows anyone to kill a mother or sister caught in adultery. [Quint.] Dec. Min. offers non-lethal variations: 357 allows for blinding the adulterer instead of killing him; 249 offers procedures for trying both the adulterer and the wife before the law; 273 gives the cuckold the right to seize his wife’s property; 310 allows for a penalty of disenfranchisement for anyone twice noted for adultery, which presupposes that he was not killed the first time. 31.Likely Phalaris, and the wording of the account closely matches Valerius Maximus' treatment of Phalaris (9.2.9), but the name does not survive in the Senecan excerpts. 32.See The Retired Tyrant (p. 136) below. 131 Over time, the figure of the tyrant is pushed out of the city. In Seneca's

Controversiæ, tyrants always belong to the same Sophistopolis as the case at hand.

The tyrant of a neighboring city appears in the first (253) of the twelve cases in the

Dec. Min. dealing with tyranny, as too in the last (45) of the seven belonging to

Calpurnius Flaccus. In both cases, the tyrant demands a citizen under threat of war, creating a public necessity. In the former, he demands a tyrannicide be surrendered to him, likely for retribution; the the latter, he wants a sexually attractive boy whose father kills him rather than hand him over. The foreign tyrant gets as his hostage the son of a war hero in Calp. 39, a case in which the tyrant must be foreign as the city is free to debate whether to make war upon him. In the later Dec. Maj., the only tyrant to be found is relegated to a foreign city (16), and he imposes only the necessity of a private obligation, not a demand upon the people as a whole.

The Attempted Tyrant

Declamatory law rarely targets attempted crimes or conspiracies to commit crime, except in the cases of those conspiring to treason (Dec. Min. 348) and those who attempt to install themselves as tyrants.

In Calp. 11, a poor man allows a rich man to adopt his three sons. Two meet ends resulting from degeneracy, one caught in adultery and the other condemned for attempted tyranny; the poor man asks for his third son back before he meets a fate like his brothers’. Here the attempted tyrant simply stands in for a terrible path that might come of wealth.

[Quint.] Dec. Min. 254 and 351 and Calp. 6 present exiles who hope to return to the city in exchange for information on a rich man whom the exile claims is plotting a coup. That the alleged tyrant had wealth at his command is clear from the themata of Dec Min. 351 and Calp 6 but only expressed in the speech itself in Dec. Min.

132 254.17: [Quint.] felt it logical and credible to suppose that a man attempting tyranny should also enjoy the use of wealth.33 In Dec. Min. 351 and Calp 6, which give nearly identical cases, the rich man alone opposes the exile’s return when the senate debates the request, and he appears a likely suspect when the exile dies en route to give his information. Nevertheless, the exile himself, as one convicted and exiled, is not above suspicion of mendacity himself.34 Only his secret information about an attempted coup will suffice to win the exile his return: so grave does the

Sophistopolitan senate consider the threat of an attempted tyrant.

Without the counterbalance of the exile’s information, the charge of attempted tyranny appears in three other cases, [Quint.] Dec. Min. 267, 322, and 352. The former tyrant of 267, enjoying amnesty after retirement, weeps beside the citadel, where he had ruled in his impetuous youth, and incurs a charge of attempted tyranny. The case turns on the interpretation of his weeping, that is, the color that each side assigns to his tears, but the former tyrant also defends himself on status conjecturalis, that no other evidence of any attempt exists. His rhetorical questions give a list of what one needs to overthrow the state: to hire bodyguards (Satellitesne contraxi?), possess arms (aut arma habui?), divide money among followers, to conspire among friends. In the first two questions [Quint.] mirrors, in inverse order, the questions at Quint. Inst. 7.2.54, Ubi sunt arma? quos contraxi satellites? The thema of 322 gives to such evidence a name, the apparatus of tyranny (apparatus tyrannidis). There a son, carrying a bloody sword, walks into the assembly and announces that he has killed his father for plotting a coup, and he takes the magistrate into his house to show him the apparatus of tyranny. The question

33.So too Winterbottom 1984: 323 in interpreting the sentence. 34.See The Exile (Exul) , 144 below. 133 becomes whether the father aimed to become tyrant or to stop his son from the same, and so whether a son or a father is more likely to attempt tyranny. Youth, the prosecution against the son claims, lies open to cupiditates, the appetites that motivate the tyrant (322.2). Indeed, the apparatus and arma alone do not make the tyrant, the prosecutor claims, but also the animus, the spirit (322.10). As in the case of the weeping tyrant (267), tyranny is a state of mind as well as a social role. If the apparatus, the arms, money, and followers, together with the state of mind open to desires make a tyrant, the rich, noble youth of 352, having defended the city at the head of a private army of slaves and clients, must give the city cautious pause when he refuses to lay down his weapons before entering the city again. He fits the stereotype, having youth, wealth, arms, an army, and one that contains slaves at that, and he takes three days to think about disarming: that stereotype earns him the charge of attempted tyranny.

Finally, [Quint.] Dec. Min. 261, more a suasoria or even a laus legis than controversia (although [Quint.] explicitly calls it a controversia at 261.1), offers a preventative measure against tyranny, namely a leveling of wealth, supposedly aimed at restraining the spate of tyrants that have sprung up in the city. Tyranny and the apparatus of tyranny require an excess of money, iniquity that can be stamped out by the measure proposed.35 Here, however, the speaker, opposing the law, claims that tyranny does not always spring from excess wealth but sometimes from fracta ratio, bankruptcy (261.8). The language is hedged: wealth is not the chief cause of tyranny (ne præcipua quidem causa), and seizing power is a bit easier

(facilius aliquanto) for those with nothing to lose if the state remains intact. Further,

35.On wealth as an ingredient of tyranny, see Tabacco 1985: 27–29. 134 the bankrupt man would attempt tyranny to recover the wealth he had earlier squandered (ut sua vindicet, sua recipiat, 261.9), suggesting that an impoverished man attempting tyranny comes from a background of wealth. Even when arguing that the bankrupt and disaffected might overthrow the state, [Quint.] still cannot wholly dispense with the possibility of a putsch backed by wealth, only dance around it. One might add, in support of the speaker’s position, that Plato Rep. 565e and

566d–e characterize the tyrant as advocating for redistribution of wealth as a means of currying favor with the poor: the rogatio itself that the Dec. Min. 261 debates has the flavor of a tyrant’s appeal to the masses.

The tyrant has his character, the despoiler of temples and inverter of social norms, but so too does the man attempting tyranny: he should be young and impetuous, full of appetites, with enough money to buy the apparatus of tyranny and hire his henchmen, and with enough friends to conspire about secret plots. In no case do his friends or hirelings inform on him—his conspiracy, if it be one, is airtight—but his father or an exile might try, if only he live long enough. This makes for a case usually difficult to prove, as the prosecutor of 322.1 himself remarks. The suspicion of tyranny rests on the stereotype of character and the colores that the declaimer can bring to bear on that stereotype.

135 The Retired Tyrant

A tyrant can renounce his powers.36 He reinstates the rule of law, but with one stipulation, an amnesty37 that precludes prosecution for whatever the former tyrant has unlawfully done, with penalties either unspecified or capital (Sen. Con. ex. 5.8) for whoever should violate the amnesty. In Sen. Con. ex. 5.8 the retired tyrant seeks an unspecified magistracy.38 His competitor for the office describes him in terms familiar from cases of those who attempt tyranny: he has an appetite for distinction, that is to be divided from the rest, in terms of command and power; he is a man of noble birth and great riches, to whom others owe favors. The competitor, who because of amnesty cannot narrate the tyrant’s past deeds, enacts a kind of praeteritio by promising that in his tenure in office no woman will be raped, no citizen killed, no temples robbed. The retired tyrant, who by taking office could again make himself tyrant, has within his character all the qualities of both the attempted tyrant and the actual one. In his defense, the tyrant claims that all he has ever done was for the good of the state: this may be the only sententia in the corpus to explore from

36.Dominationem deponere, Sen. Con. ex. 5.8, Quint. Inst. 9.2.97; tyrannidem deponere, [Quint.] Dec. Min. 267. Both expressions are unique to declamation: the verb is common with other expressions of power (deposito honore, Suet. Aug. 36.1; deposito suo magistratu, Livy 3.51.12), but Latin literature outside of declamation simply does not have much cause to discuss a tyrant’s abdication. On the other hand, in declamation Sulla lays down his dictatorship with the same construction (cf. Quint. Inst. 3.8.53 and 5.10.72; see also Suet. Jul. 77, where Cæsar, acting more and more the tyrant, calls Sulla uneducated for laying down the dictatorship: Sullam nescisse litteras, qui dictaturam deposuerit). 37.Sub abolitione, Sen. Con. 5.8; sub pacto abolitionis, Quint. Inst. 9.2.97, Dec. Min. 267. Both expressions are unique to declamation. 38.Sophistopolis, though at times resembling Athens or Rome, has neither archon nor consul. She is a free city, with a senate and assembly and courts, but the structures of her executive institutions remain largely a mystery. 136 within the psychology of the tyrant without regret.39 Like his competitor, he must deal with the unspeakable elephant in the room, his past, but he must also characterize himself as a worthy leader who can lead the state again, so the amnesty protects him from appearing regretful. On the other hand, he former tyrant of [Quint.] Dec.

Min. 267, enjoying amnesty without the restriction of capital charges against him speaking of his past, does regret his juvenilis temeritas (267.3) and damnandæ cupiditates (267.4 and without the adjective at 9), as he must at least pretend to feel regret to explain his weeping beside the citadel. Both former tyrants merit suspicion of the desire to retake power, and enjoy the privilege of amnesty, without which they would not have laid down power, but each approaches his memories of tyranny differently depending on his circumstances. In cases of former tyrants, memory must always play a vital role in the case and its colores.

The Dead Tyrant

Two cases in [Quint.] Dec. Min. revive the themes of space. In 274, lightning strikes down a tyrant in the forum; conflicting laws require both that a man thus laid low be buried where heaven smote him and that a tyrant’s corpse be cast out of the city unburied. Declaiming first for removing the corpse, [Quint.] explores a reason for burial, that it causes most people to think more seriously about their descendants

(274.4). The tyrant’s grave, should he receive burial in the forum, would serve as a physical token of public memory for generations to come: children would see the exemplum of the tyrant in the very heart of the city, where they should instead see statues of tyrannicides and war heroes. Declaiming then against the same, [Quint.]

39.The theme of Sulla laying down the dictatorship, alluded to in Juv. 1.15–17, must have addressed something like the psychology of the tyrant, but no example survives from antiquity. Juan Luis Vives, however, produced such a piece as the third of his Sullan Declamations, for which see George 2012. 137 brings up the same idea, that nobody will be able to enter the forum without seeing the grave, but this time with a different point: that the grave will remind future generations that the gods punished a tyrant (274.12–13). Punishment should yield exempla to deter future crimes. Either way, the case hinges on place and memory: propter hoc litigatur (274.4). The tyrant of 329, having learned of the oracle that the tyrant must die for the plague afflicting the city to cease, killed himself; his relatives seek his burial in the forum in keeping with the law that whoever kills a tyrant should find burial in the forum. [Quint.] again brings up the argument of future exempla, that the tomb in the forum will remind generations to come never to dare to exercise tyranny (329.6). The debates over burying a dead tyrant revolve around two forms of memory: the physical monument with its possible meanings for the future citizens of Sophistopolis and the laws, the written reminders of ethical precepts established by the experience and reason of previous generations. The also involve space as a metaphor, regarding the forum as the seat of the laws and a kind of temple of peace

(274.9) where the exemplum of the tyrant, whose life centered on the citadel rather than the forum, can take on special meaning.

At a metapoetic level, this also raises the question of the tyrant’s place in declamation. The imaginary forum of the city is the site of declamation’s fictions, in which the tyrant can never (until Ennodius) play a central role as plaintiff or defendant. Nevertheless, the tyrant is in declamation a frequent and important character, either as an object of tyrannicide, an object of memory, or a force of compulsion or license to violate the law. Furthermore, while other characters of declamation, such as the rare mage or frequently-encountered pirate-king, may test the bounds of credibility, the surviving products of Roman declamation all date from after the end of the Republic, when a single person began to wield enormous power

138 in Rome. Cicero, writing to Atticus in March, 49 BC, after the Senate had fled in the face of Cæsar’s crossing the Rubicon, listed a number of theses on what a citizen should do if a tyrant should seize power (9.4.1). During the first years of the principate, Augustus’ name crops up outside the prefaces of Sen. Controv. only at the tail end of 2.4 (thrice, 12–13) and once in 2.5.20: these passages bookend 2.5, a declamation about a tyrant. If declamation keeps alive a fictitious memory of oratory in a free city, it is a dim and shadowy memory that never speaks of consuls or archons nor has much idea of how a real government functions, and the declaimers perpetuating the memory of Sophistopolis know well that they live under the power of the likes of Cæsar, Augustus, Tiberius, and their successors, men who could well fit the definition of tyrant.

The Pirate (Pirata, Prædo) and Brigand (Latro)

The word pirata seems to have been something of a novelty in the late Republic, and even Quintilian’s teachers hesitated to admit its adjective piratica to the language40 (Inst. 8.3.34). The word pirata and its derivatives appear nowhere in the

Rhetorica ad Herennium, where prædo takes its place (2.33). Yet, pirata and archipirata were favorites with Cicero, the first author in whose works the word survives. Quintilian Inst. 9.4.62 cites archipiratæ as an example of Cicero’s trick of creating cretic and spondaic clausulæ with a single pentasyllable, so the word had a definite Ciceronian association among rhetoricians. Further, Cic. Phil. 2.13.18 links in the person of Mark Antony the stereotypical pirate-king to the stereotype of the

40.Inst. 8.3.34. Quintilian himself seems not to have shared his teachers’ doubts, as he uses piratica [ars] of general piracy (3.8.44) and piraticus mos of lawyers who haggle with clients over fees or charge differently based on the legal danger in which the client finds himself (12.7.11). Among the declaimers, the adjective does not occur except twice in Sen. Controv. 1 (1.2.9 and 1.6.2) and then six times in Dec. Maj. 5; though admissible and even discussed in the Inst., the word occurs nowhere in the Dec. Min. despite the cases (257, 342, 373, 388) featuring pirates. 139 tyrant. Cicero, especially with his invectives against Verres and Antony, made piratæ trendy, and so the Sophistopolis of the Roman declaimers seems beset on all sides with piratae instead of prædones.41

Petronius notices how many pirates there are in declamation: his Encolpius criticizes the “pirates standing on the shore with chains”42 among the unrealistic yet characteristic characters of declamation. Like the tyrant, who must occupy the citadel above the town when he raises himself above the law, the pirate stands on the fringe of the world, beyond the reach of the law. No declamation specifies that place, nor how far it may lie from the city, except that in Dec. Maj. 5.16 the declaimer describes the pirate-king’s dungeon as a preternaturally dark cave beneath a cliff, surrounded by the sea. Nothing in the themata, however, supports that or any other location except simply outside the jurisdiction of the city and its courts.

That the pirates do live outside the civitas, however, is clear from the cases.

Thus the slave of Dec. Min. 342 is sent to marry the pirate-king, inherits his entire estate, and finally returns to the state (rediit in civitatem). The same is not, however, said of the son who married the pirate king’s daughter (Sen. Controv. 1.6) and returned to his father (redit ad patrem), implying thus also to the city. At times, but not always, the pirates capture someone specifically said to be journeying abroad

(peregre profectus: Sen. Con. ex. 3.3 and 7.4; Dec. Maj. 5, 6, and 9). Once (Dec.

Min. 388) pirates appear near a seaside farm; later a slave, abroad on business

41.The pure Latin noun prædo, while common before Cicero (it is the usual word for “pirate” in comedy: cf. Plaut. Mil. 117–19), appears very rarely in declamation. Cestius Pius in Sen Controv. 7.1.8 and 11 uses the term prædo, and it occurs in both the thema of [Quint.] Dec. Maj. 5 and in the speech itself at 5.2, 5–6, 12, and 21. The landlubber latrones of Dec. Min. 335 function much the same as pirates, except that father and son may flee them on foot. 42.…piratas cum catenis in litore stantes… (Sat. 1). Cf. Sen. Controv. 1.2.8, præferentes ante se vincula et catenas, gravia captis onera. 140 (negotiatum profectus), believes that he has found someone who went missing during the pirate raid and returns with him to the state (revertit in patriam). The shore again forms the boundary between pirate and city in Dec. Maj. 6, in which a corpse thrown overboard by the pirates arrives at the state’s shores (litus patrium). The unusual choice of pater, patria, and litus patrium instead of the more usual civitas43 is striking, especially in light of the wordplay of Calp. 52, gladiatorem me fecit non pirata, sed patria, “No pirate, but rather my country, made me a gladiator.” The pirate not only stands outside the city, but to some extent he reflects and scrambles the city even in name.

While the pirate does remain outside the city and the reach of the law, he does not, like the tyrant, represent the absolute inversion of social norms but a different, scrambled order constituted apart from the law of the city. Pirates certainly do have a negative reputation in general. The real-life pirate cuts a mean enough figure to serve Quintilian (Inst. 12.7.3–4) as a paradigm of the sort of client an honest orator should not defend.44 Paradigmatic too, if hyperbolic, seems the pirate-king of Dec.

Maj. 5, the savage craftsman of human suffering45 lurking in his supernaturally dark cavern, who stands in stark contrast to that other craftsman of the same case, the divine craftsman of mortality.46 While declamation does not elsewhere approach such theistic dualism in characterizing the pirate, nevertheless some loci communes, such as Cestius Pius’ description of pirates, do ascribe to them a moral position in

43.Patria occurs elsewhere in themata only in the phrase bello patriæ [aliquis] fortiter fecit (Dec. Min. 304 and Dec. Maj. 4), whereas the city is elsewhere always civitas. 44.Likewise, haggling with a client over fees or charging differentially based on the risks the client faces in the trial is a piraticus mos (3.8.44). 45.Sævus et humani doloris artifex (5.4). 46.ille mortalitatis artifex deus (5.6). 141 terms of divine law: “to them, all that is right (fas) and wrong (nefas) is a joke.”47

Here the pirate stands not opposed to divine right but outside all moral bounds, both civil and divine. With this characterization, he argues that pirates would not likely have abstained from sex with a virgin captive; the other side of the case, however, must argue that they did precisely that. Other pirates show more ethical development. The pirate-king of Sen. Controv. 7.1, upon capturing his father, who had once ordered him killed for parricide, releases him, prompting two declaimers to remark that even among pirates exist men who cannot bring themselves to commit murder (7.1.13, 7.1.14). In this the pirate shows his mercy, that he does not kill the man who would have had him killed. Likewise in Sen. Controv. 1.7, pirates spare and free a captive whose father had promised to pay double his ransom, should they amputate the son’s hands: Cestius Pius calls them merciful pirates (misericordes piratas, 1.7.3). The Greek declaimers, by Seneca’s report, argued that the hands were sacred and public and therefore off limits (1.7.12), which would indicate concern for divine and human law; that the Romans removed such questions from debate indicates a development of the character of the pirate. The boundary of what a pirate would or would not do was moved, but the Roman declaimers like Hispo still recognize a boundary, and that some services even pirates would sell (1.7.6).

Indeed, pirates sell only freedom, and the ransom transactions go smoothly, except when the pirate-king of Dec. Maj. 5 decides that the father’s ransom is too low to gain both sons’ freedom. The pirates never kill a prisoner, even setting free the tyrannicide son of a cruel father (Sen. Controv. 1.7) and the pirate-king’s own father

(Controv. 7.1) without ransom. The son who dies in the pirates’ custody in Dec. Maj.

47.quibus omne fas nefasque lusus est (Sen. Controv. 1.2.8). 142 6 is said in the declamation to have been ill, feverish, neglected (6.22) but not murdered. Pirates never kill or even attack a messenger or a family member come to ransom a prisoner. The only time pirates pose a lethal threat, in Dec. Min. 388, a corpse is found after a pirate raid, but the case hinges on the dead man’s identity, and the grandmother’s side, whom [Quint.] represents in his declamation, argues that pirates would rather take captives than kill (388.8). Pirates do not even kill captives whose families fail to redeem them, as the abandoned son of Sen. Controv.

1.6 lived to run off with the pirate-king’s daughter, the virgin of 1.2. to be sold into prostitution, and the hero of Calp. 52 and son of [Quint.] Dec. Maj. 9 to be sold off as a gladiator. Despite their characterizations as dishonest or cruel, pirates have a financial incentive neither to kill anyone they can spare nor to jeopardize the trust placed in the hope of ransom or redemption. One might even believe the former tyrant, accused of again attempting tyranny, when he claims that the public trust is sacred among pirates (Dec. Min. 267.12): pirates seem to have a certain honor.

Indeed, pirates live by a set of ethical rules that in ways mimic law and the state. The pirates of [Quint.] Dec. Min. 342 seem to have developed their own law code: a woman is sent to them for marriage (quæ in matrimonio archipiratæ esset,

342.12), inherits property from her deceased husband, and could by her beneficia render them obligati to her (342.13). In Roman law, marriage is paradigmatic of natural law, and reciprocal relations or contract of international law or jus gentium.48

Far from inverting customs and laws, these pirates appear to constitute a political system outside the city. They have a leader, the archipirata. An enterprising young citizen cast out of the city might hope to become a pirate-king (Sen. Controv. 7.1),

48.Cf. Justinian, Institutiones 1.2, for matrimony and contracts as paradigmatic of these categories of law. 143 and a good-looking prisoner might even marry his daughter (Controv. 1.6). If the pirates’ taking and redemption or sale of captives is a kind of illegtimate image of commercium, and if the marriage of a woman from the city to the pirate-king or of a citizen to the pirate king’s daughter evidence a bizarre image of connubium, complete with inheritance rights, the pirate community is a twisted image of a state with its own ethical system that mimics law, although one, like democracy or tyranny, based on appetite and profit. Indeed, Pl. Rep. 351c lists pirates and thieves (λῃστὰς

ἢ κλέπτας) along with the state and army as organizations that require some form of internal justice to function effectively (although Grg. 507e denies that the pirate can form any sort of community or closeness to other men). This is not to suggest that the pirates of declamation anticipate the Libertatians and Spensonians of the eighteenth century’s piratical and utopian imagination, but rather that declamation, as a mythopoetic genre working in a legalistic medium of laws and courts, naturally imposes some semblance of political order on any groups it presents, even outsiders like pirates. Yet, declaimers do not treat the pirates as a true state, for then the pirates would be hostes.49 Sophistopolis never makes war on the pirates nor sends any Pompey forth to tame the seas: pirates always await outside, a known and tolerated danger lurking beyond the boundaries that mark the power of the city and the law.

The Exile (Exul)

The exile, cut off from the city and its law, loses their protection; the most frequent consequence of this is the exile’s death at the hands of his fellow citizens.

Most frequently, he has himself caused death by negligent homicide (inprudentis

49.On the distinction between pirates and legitimate public enemies, see Cic. Off. 3.107 and Gell. N.A. 5.6.21. 144 cædis), and the law reciprocates by neglecting the killer’s right to live. The law’s exile is a kind of negative harm: it withdraws its protection but inflicts no direct damage on the body or the property of the exile, whose family members may continue to act in his interests within the city’s bounds. Should some citizen happen to catch the exile within the territory, however, the law authorizes his death. Just as the negligent homicide did not intend to kill, so too the law does not intend the exile’s death: it warns him of the possible consequence of his return and then looks the other way, usually for five years. That exile serves as an alternative to death appears from the thema of [Quint.] Dec. Min. 365, in which death, exile, and disenfranchisement compete as punishments for the same crime, and 288, in which a father, having killed two sons for tyrannicide, seeks to exile the third. In 334, even the advocate of one condemned of treason must leave in exile. Those three cases, however, present only the potential penalty of exile, not the character. Two examples from Sen. Con. ex., one from Calp., and eight from [Quint.] Dec. Min. do present a man already living as an exile; only the Dec. Maj. avoid the character.

The exile of [Quint.] Dec. Min. 248, banished for negligent homicide, and having after his third year away from the city again killed a man by accident, returns after eight years; a citizen kills him within the state. The question here hangs on whether sentences of exile should run concurrently or consecutively. The city condemns, according to law, a traitor and his sons to exile in Dec. Min. 366, but his son, who enjoys the sacrosanct status of an ambassador, returns to the city where a citizen kills him. The case opposes two laws, the sacrosanctity of the ambassador and the right to kill an exile. In Dec. Min. 305, a rich man catches his two poor enemies, exiled for negligent homicide, within the borders and forces them to fight to the death. Though the law allows a citizen to kill an exile found within the borders,

145 making a sport of it tests the boundaries between justice and vindictive pleasure, so the rich man is accused of unjust punishment. Each case uses the boundaries of the state to test boundaries of the law, and each deals with the legal consequences of killing an exile.

In three cases, [Quint.] Dec. Min. 254 and 351 and Calp. 6, an exile claims to have information on a coup plotted against the state. Dec. Min. 351 and Calp. 6 present roughtly the same case: an exile entertains, somewhere beyond the borders, a rich man; he then writes to the senate that he wants to give information on a plot to install a tyrant, and the senate recalls him despite the rich man’s objection. In both cases, someone assassinates the exile before he can render his information; Dec.

Min. 351 specifies that he dies within the state’s jurisdiction. The rich man stands accused of attempted tyranny. Both [Quint.] and Calp., who argues both sides of the case, offer lessons in character assassination, portraying the exile as a man who deserved exile for his sedition and manifold crimes (Dec. Min. 351.1–2) and as an

“unquiet thing” for whom there was no lower to which he could sink (Calp. 6). The exile’s character remains marked by his sentence, and his information merits suspicion because he offers it as the price of remitting the punishment for his past crimes. Like a jailhouse stool-pigeon, who might with a criminal’s lack of integrity bear false witness to lessen the consequences of his own crimes, the exile has little credibility when he announces without proof that he wishes to inform on another.

The exiled informant of [Quint.] Dec. Min. 254 finds himself in the same position when he makes it back to the city alive and informs on a citizen for attempted tyranny, only to find the defendant acquitted by a deadlocked vote. A citizen moves to pass a private bill granting this exile the right to remain. Here, as in Dec. Min.

284, 296 and 305, the case tests a number of legal boundaries: whether the legal

146 system allows for a private bill (despite the many such rogationes for appointing generals), whether it sets a precedent that future exiles might exploit, and whether the bill violates the law that imposed exile (254.7–9). Yet, before addressing the legal questions, [Quint.] feels obliged to defend the exile’s credibility and explain why his information did not lead to the alleged tyrant’s conviction (254.3–6, with discussion of the order of arguments at 254.1–2). In cases featuring an exile who wishes to turn state’s informant, the exile’s credibility becomes paramount.

[Quint.] Dec. Min. 266, presents an exile who, along with the other exiles (for

Sophistopolis banishes many), heeds his city’s call to return in a time of war, wherein he distinguishes himself by martial valor. Hailed as a war hero, he asks as his prize to argue his case again, but his accuser points out that retrial would violate the law against double jeopardy (bis de eadem re agere ne liceat). In one man we see the characters of traitor, exile, and war hero combined, asking as his lawful exception to the law a chance to present himself before it again for its judgement, seeking through the privilege of the hero absolution and erasure of the traitor and exile. He wishes for reintegration into society, to come in from the cold, but he can only achieve this through an exception to the law that subjects him to its judgement: this case exemplifies the liminality of the exile both spatially and legally.

Exile impacts the family differently, contrasting the citizen’s duty to the law with the mutual obligations of father, son, daughter, and brother. In three cases, Sen.

Con. ex. 4.3 and 6.2 and [Quint.] Dec. Min. 285, a father goes into exile for negligent homicide and has difficulties with his son’s obedience in his absence; in a fourth,

Dec. Min. 296, an exiled son winds up dead at his brother’s parasite’s hand. In the cases of the banished father, the law of exiles comes with a second law: the lex raptæ (Con. ex. 4.3), a prohibition against offering exiles food or shelter (Con. ex.

147 6.2), or the right of the victorious general to receive a prize (Dec. Min. 285). In both

Senecan cases, a father goes into exile for negligent homicide and upon return disowns his son for actions taken during the father’s exile. Each time, the son has done nothing contrary to the law. The son of Con. ex. 4.3 advised his sister to opt for her rapist’s death, though the exiled father had written to him asking that he advise her to compel the rapist to marry her instead. “I cannot be disinherited for this, which was done legally,” he claims in defending his disobedience. The son of Con. ex. 6.2 prohibited his sister from helping the exiled father on the borders of the territory and even killed a slave who helped him. The son kept to the spirt and letter of the law, because “I could not do what the law prohibited,” although his actions in policing his family represent a positive effort to enforce the law against his father rather than a passive compliance that could overlook his family’s kindness towards its father.50

The victorious son of Dec. Min. 285 chooses as his prize something other than his father’s recall from exile, and the father upon his eventual return disinherits the son.

Again, the son has violated no law, as no civic obligation compelled him to ask that the father’s just punishment be annulled, but the father sees a failure of filial piety and perhaps, to take into account the color offered (285.1), some jealous fear that the father might take the power that the son commands in the city. In each of these cases, son acted within the bounds of the law outside of which the father dwelt by reason of his own crime. On the other hand, Dec. Min. 296 begins with not a father driven from the city but a son; his brother invites him to return for dinner, and he foolishly does. While the brother sleeps, the exile and a parasitus have an

50.The difference between positive and negative justice appear in the father’s admonition Lex te innocentem esse, non curiosum jubet. Innocens here means passively refusing to violate the law (that is, supply aid to the father), while curiosus represents active effort in enforcing the law. 148 altercation which ends in the exile’s death; the brother casts out the hanger-on who killed his brother, but the father disinherits his remaining son. Here the exile dies legally, since the law permits anyone to kill an exile caught within the jurisdiction

(exulem intra fines deprehensum liceat occidere), but he would not have died had his brother not invited him within the boundaries. In each of these cases, things done lawfully conflict with familial obligations, which probes the boundary between civic law and the duties of the family.

The Proscript (Proscriptus)

A variant on the theme of exile, proscription occurs only in three cases, all

Senecan (Con. ex. 4.8 and 6.4 and Controv. 7.2). All three proscripts share in common the pain of a defeat suffered in civil war, which differentiates proscription from the penalty of exile, assigned to negligent homicide and occasionally treason: proscription represents the vengeance of a new regime.51 The most famous proscript was Cicero, who along with his assassin, Popillius, and enemy, Antonius, are the latest historical figures named in any declamation52. He alone of the declamatory proscripts perishes: the unnamed and archetypal proscript of the Con. ex. always returns to the city and to citizenship. In 4.8, the proscript receives shelter from his freedman and signs an agreement with him that he later rejects on the grounds that agreements made under duress have no validity; the proscript experiences a vulnerability that subjects him to necessity. The husband of 6.4

51.The thema of Con. ex. 4.8 explicitly mentions civil war; two sententiæ for the husband’s part of Con. ex. 6.1 mention a war, though the thema omits that detail; Seneca’s older declaimers, such as Porcius Latro, would have remembered from their youth the circumstances of Cicero’s proscription for Controv. 7.2. That seems to play a part in Latro’s observation that civilis belli necessitas excuses much of Popillius’ act: having lived through that necessity of civil war provides Latro with clarity about the ethics of the case. 52.Cicero also appears in Sen. Suas. 6, with Popilius named at 6.20. 149 miraculously, or not, survives drinking a poison that kills his wife in what seems either a failed suicide pact or a successful and clever murder. The proscript, defending himself, claims that he wanted to die after the miseries of civil war and proscription; the defense suggests that he wanted to inherit from the wife. Both men embody desperation, but other characters could find themselves in dire straits, nor does proscription contribute anything unique to the questions of the cases. Perhaps that is why the character does not continue in later declamation.

150 CHAPTER 7 CONCLUSIONS

The ideal of the “good man skilled at speaking” (vir bonus dicendi peritus), ascribed to Cato, survives first in Sen. Controv. 1.pr.9,1 where Seneca warns against the excesses of a kind of declamation that appeals only to the voluptuaries whom he describes in terms of the body and its lusts. Cato’s precept, however, Seneca describes as an oracle, divine will announced through the mouth of man. The libidinous, too interested in purple prose, ignore the divine truth that ethics lie at the heart of oratory: declamation should teach something about goodness, not simply how to speak and argue.

The genre of declamation has one set of roots in rhetorical education but also another in Philo’s Academic philosophy mixed with rhetoric as an innovation on unlimited philosophical questions (theses). The innovation involved defining those theses into hypotheses. Declamation settled on a level of definition that put philosophic questions in the place of a usually unspecified city at a usually unspecified time: the important specification that turned theses into hypotheses came in the from of declamation’s characters.

The cases are built around sets of characters, with the family, especially the father-son dynamic, and the conflict between the rich and poor man providing the bulk of the cases. Those are the warp of declamation, but beyond those are the golden threads of the woof shot through that make the tapestry interesting: the physician, the Vestal Virgin, the war hero, the prostitute, the pirate and the tyrant and many others. Even within the limited remains of declamation, this cast of characters

1. Cf. Quint. Inst. or. 12, where it is explicitly mentioned at 12.1.1 and its ethical implications discussed thereafter; also Apul. Apol. 94, Fronto Ep. ad M. Cæsarem 4.1.2, and ad Verum 2.1.5. 151 has its limits and frequent repetitions, indicating that these characters hold particular meaning. There are philosophers, orators, and physicians, but never a consul or quæstor or ædile. Vestal virgins and tragic oracles bring in consideration of authority beyond the human realm, but Rome’s augurs and haruspices are missing. Generals and soldiers and war heroes play their parts, but only one military tribune and never a centurion or decurion; the sheer number of tyrannicides must surpass the thronging conspirators under even the worst of Tacitus’ emperors. What few merchants do business in Sophistopolis seem more interested in other men’s wives, while the pimp and prostitute do a trade brisk in profit and pleasure despite their frequent appearances before the court. Hovering above the city or outside her walls are more kings, tyrants, pirates, and exiles than any Roman student practicing for the law court could hope or fear to encounter. The Sophistopolis consisting of these characters is not realistic, nor is it Rome, but it portrays a fantasy world with heavy biases towards certain kinds of stories that involve only certain characters, not the full panoply of social roles found in a real, functioning city or its courts.

This by itself has implications for the study of declamation. Sophistopolis is not a model of Roman society but a fantasy that works out what justice might look like in the courts of an alternate reality. The social roles and relations found in declamation should not be mistaken as evidence of social history in Rome: with perhaps the exception of what Bonner 1949: 34 calls “a recrudescence of piracy under Sextus

Pompeius,” the archipirata and his affectionate daughter (Sen. Controv. 1.6) belong far less to the real anxieties of Roman life than to the romantic fantasy world of

Sophistopolis. These fictitious characters arise not only from borrowings from the stage, history, myth, and traditional exempla, but also from the philosophic systems that influenced rhetoric, especially Platonism.

152 Some juxtapositions of characters touch directly on the admixture of this philosophy with rhetoric. The case of the Orator, Medicus, Philosophus ([Quint.]

Dec. Min. 268, Quint. Inst. 7.1.8) sets in contest three disciplines that offer healing, the first to the state, the second to the body, the third to the soul, recalling also

Plato’s own comparison of medicine and philosophy (Grg. 456b–c). The contest of the Cynic son against his father, the orator, (Dec. Min. 283) allows the orator, refuting the Cynic’s asceticism and shamelessness, to recount both the virtues of public life and of other branches of philosophy and their theses. These are the diegetic versions of Synesius’ extradiegetic story of philosophers wrangling in rhetoric over

Cimon and Miltiades and the rich and poor men: they demonstrate declamatory self- awareness of the relationship between declamation and philosophy.

Some cases become easier to understand when seen through a Platonic lens.

[Quint.] Dec. Min. 297, the case of the prostitute blinded by her heroic lover, presents an act of violence with little credible motivation: the war hero puts out his meretricious lover’s eyes and then offers to blind himself rather than serve as her guide. If the prostitute, in all her profitable voluptuousness, should represent the appetitive part of the soul, and the war hero the dangerously spirited, the violent case becomes a conflict between parts of the soul vying for control in the absence of reason, which only the declamatory court can impose. Likewise the son of Sen.

Controv. 1.4 found himself caught between his heroic but handless father and concupiscent mother caught in the act with her adulterer, between the θυµοειδές and

ἐπιθυµητικόν, forcing him to choose a side, a decision he must defend in court.

Without the Platonic division of the case’s parts, there would be little reason for the father to have been a vir fortis: he need only be handless for the purposes of the legal dispute. But, taking into account the war hero’s place as the example of the

153 spirited element of the soul par excellence, one finds good reason for the hero and the adulterer to take up opposite sides of the case.

Other cases bring together representatives of all three domains of the soul. The virgin of Sen. Controv. 1.9, having demonstrated her mastery over appetitive desires and profit in the pimp’s brothel and her mastery of martial valor against a soldier, seeks recognition of her well-disciplined soul of through induction to the priestly caste. Marius, in Calp. 3 and [Quint.] Dec. Maj. 3, must, by presiding over the case at hand, bring justice and order to his army in the trial of a soldier who, acting out of martial spirit, killed an officer given over to appetites. Behind these labyrinthine and at times sordid themata lurks Platonic psychology, which shapes the characters who come into conflict.

Yet, not all characters of declamation fit into the macrocosmic city or the microcosmic soul. The king, tyrant, pirate, and the exile living above or beyond the law must obey spatial limits that mark them off from the community. These figures therefore can neither sue nor be sued, but by acting as forces of compulsion or license they help shape cases. They interact infelicitously with the characters who represent aspects of the soul: the tyrant, for example, meets his death at the hands of one of two physicians in an epistemological puzzle (Calp. 13), at the command of an oracle ([Quint.] Dec. Min. 329) and the thunder of heaven (274), often through the bravery or cunning of a tyrannicide, and once even on his own sword, held by the adulterer whose appetites included the tyrant’s wife (Sen. Con. ex. 4.7). The rational element of the soul, in both its human and divine aspects, the spirited, and the concupiscent all want a tyrant dead.

In the cases of family disputes or of rich and poor men, the themata tend to draw on only one aspect of the soul. When a merchant might or might not have

154 seduced a wife, as in Sen. Controv. 2.7, the case revolves around appetites, money, and the suspicion of the granting of one for the other, but this leaves no room for the

λογιστικόν or the θυµοειδές. There can be even a movement to simplify cases in this direction: whereas [Quint.] Dec. Min. 337 includes a rich general and a poor orator

(disertus) who use the army and charges of treason to destroy each other’s families, the closely related Dec. Maj. 11 removes the oratorical component, leaving only the general, the spirited element of the soul.

Wohl 2010: 115–54 laid down the principle that Antiphon’s characters had no background except such as was relevant to the case at hand, and she posited that the character develops from the case. I would suggest that philosophy may also guide the formation of the stock of character in Roman declamation, and that the

Platonic tripartite division of the soul informs both the case and the characters. The specialized and colorful characters of Roman declamation, missing from its

Antiphonic ancestor, add to rhetorical practice an element of psychology neither present in nor necessary to rhetorical and legal study, an apparent superfluity echoed in the ancient criticism recorded in Petronius and Quintilian’s remarks on the irrelevance of exotic characters to forensic education. This element of psychology, reflecting Platonic thought, may well reflect a quiet contribution to the genre by the

Academics and especially Philo, whom Cicero remembers mixing rhetoric and philosophy in hypothetical cases. He, in Stobæus’ remarks in the Florilegium, advocated hypothetical argumentation as a subtle way to introduce therapy to those lacking the time or means for more direct philosophy, “gilding the pill” as Bonner

1949: 39 puts it, but gilding the pill of psychology rather than rhetorical and legal theory. Adding this reading to analysis of declamatory characters opens up new interpretative possibilities for the genre.

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159 BIOGRAPHICAL SKETCH

Miller Krause was born in Newport News, Virginia. He was graduated from the

University of Virginia as a Bachelor of the Arts in classics with distinction in 1999 and from the University of Kentucky as a Master of the Arts in classics with a certificate in spoken Latin from the University’s Institutum Studiis Latinis Provehendis in 2009.

During his doctoral studies at the University of Florida, he published “The Quinque

Lineæ Amoris” in Classica et Mediaevalia 65 (2014) and “Declamatory Doctors” in

Ageless Arts 1 (2015). He has been invited to give papers “On Protestant Latin

Narratives of Florida from the Renaissance, or Why History Speaks of Flying

Snakes” at the University of North Florida (Jacksonville, Florida: 2015) and on

“Classical Reception and Latin Pedagogy in 1970's Senegal” at Rhodes College

(Memphis, Tennessee: 2015). He also presented “De natura novi orbis terrarum in duobus locis per interpretationem paulo immutata” in Latin at the Kentucky Foreign

Language Conference (Lexington, Kentucky: 2013); “Declamatory Doctors” at the

Southern Association for the History of Medicine and Science (St. Louis, Missouri:

2014); “Fiction, History, Empire, Books: The Latin Edition of Hernán Cortés' Segunda

Carta” at the International Conference on the Fantastic in the Arts (Orlando, Florida:

2014); “Livy, Cicero, and Ovid in the Supplex Libellus of Chauveton’s De Gallorum in

Floridam Expeditione” at the Classical Association of the Middle West and South

(Waco, Texas: 2014); “The Classics in Léopold Senghor’s Senegal” at the Classical

Association of the Middle West and South, Southern Section (Fredericksburg,

Virginia: 2014); “Coloring Outside the Lines: Magnus Felix Ennodius’ Distorted

Declamations” at the Society for Classical Studies (New Orleans, Louisiana: 2015);

“In Praise of the Clap: Neo-Latin Encomia of Syphilis and Gonorrhea” at the

Southern Association for the History of Medicine and Science (Jackson, Mississippi:

160 2015); “The Invention of Le Moyne’s Gallorum in Floridam...altera navigatio” at the

Societas Internationalis Studiis Neolatinis Provehendis (Vienna, Austria: 2015);

“Laus, Lues, and Louis: Jacobus Plutacrius’ Morbi Gallici…laus” at the Classical

Association of the Middle West and South (Williamsburg, Virginia: 2016); and “Dr.

Lullius Hilarius' Laus Gonorrhoeae and the War of Spanish Succession” at the

Kentucky Foreign Language Conference (Lexington, Kentucky: 2016). Miller was graduated from the University of Florida as a Doctor of Philosophy in classical studies in the winter of 2016 and appointed as an instructor of classical languages, including spoken Latin, at Western Washington University in Bellingham,

Washington.

161