CICERO'S PRO CAELIO AND THE LEGES DE VI OF ROME IN THE LATE REPUBLIC

by

REBECCA KISELEWICH

A thesis submitted in partial fulfillment of the requirements for the Degree of Bachelor of Arts with Honors in Classics

WILLIAMS COLLEGE

Williamstown, Massachusetts

FEBRUARY, 2004 There is no system of law which affords a more favorable field for such researches [into judicial development] than that of Rome. Roman law occupies, in this regard, a place apart, which it owes, also, to the abundance of documents of every kind, always permitting the investigation of it to be approached from some new side; and which it owes, further, to the enormous mass of work which has been put into it during centuries by generations of commentators.

- P. Girard, Manuel ~le'mentairede Droit ~ornain' Table of Contents

Chapter I . Introduction ...... 3

Chapter I1. Law and Rhetoric in the Pro Caelio ...... 18

Chapter I11 . On Defining the Lex Lutatia de Vi and the Lex Plautia de Vi ...... 30

Chapter IV . A Sullan Approach to Caelius' Indictment ...... 47

Chapter V . The Development of Ambiguity in Leges de Vi ...... 59

Chapter VI . A Comparative Look at Caelius' Indictment ...... 69

Chapter VII . The Digest and Another Consideration of the Leges de Vi ...... 81

Appendix A . Trials of Murder and Violence from 149 to 50 B.C...... 94

Bibliography ...... 97

Acknowledgements: Infinite thanks to Professor Christensen for all of her help and guidance throughout this entire thesis-writing process. to all of my professors at Williams College for getting me to the point where I could write a thesis. and to my parents for all of their love and support . Chapter I. Introduction

After about 2000 years of investigation, much of the legal machinery of the

Roman Late Republic remains poorly understood. The following work brings this issue

into focus through the lens of the Pro Caelio, a defense speech that Cicero delivered (and

later revised for publication1) for the trial of Marcus Caelius Rufus in April of 56 B.C.

Firstly, examining the Pro Caelio shows how slander and gossip could be

transformed into acceptable Roman courtroom evidence, under the cover of the wit and

rhetorical craft of Cicero (Chapter 11). Furthermore, the speech serves as the basis for

analyzing the legal particulars of Caelius' trial. Its two internal references to the law

under which Caelius was indicted have led to a heated scholarly debate over the very

existence of one Roman law (the lex Lutatia de vi) and have confused our understanding

of another law (the lex Plautia de vi) (Chapter 111). The particular charge Cicero addresses, vis ('political violence'), is unexpected considering the exact crimes that

Caelius allegedly committed. This irregular indictment illustrates the presence of some ambiguity within the mid-first century B.C. Roman legal system (Chapters IV and V).

This ambiguity is further explored by consulting other criminal trials and the Digest of

Justinian, the main source of almost all of our current knowledge on Roman law, to gauge how unique Caelius' indictment actually was and to look at the Roman criminal process as a whole (Chapters VI and VII).

Overall, this study offers insight into the Late Republican legal system and some of its problematic intricacies, which appear in part from what Nisbet calls the

"unanalysable charm which makes the Pro Caelio unique"", in part from our lack of

1 see Austin pp. 159-161 for a discussion of the composition of the Pro Caelio as we know it today sufficient resources or documentation from Roman times, and in part from the ambiguous nature of the Roman legal system itself.

Cause of the trialiii

Caelius stood on trial in 56 B.C. for five counts of vis. The charges against him were as follows:

de seditionibus Neapolitanis ('concerning the sedition at Naples'), de Alexandrinorum pulsatione Puteolana ('concerning the beating of the Alexandrians at Puteoli'), de lionis Pallae ('concerning the goods of Palla'), de Dione ('concerning Dio'), and de veneno in Clodianz parato ('concerning the poison prepared for Clodia')'".

These all stemmed from Caelius' alleged involvement in the desperate attempts of the deposed Egyptian king, Ptolemy XI1 Auletes, to reclaim his crown. Ptolemy had initially usurped the Egyptian throne in 80 B.c., after the death of his brother2. The unpopular monarch felt that he needed to secure his rule with the support of powerful allies, so in 59

B.C. Ptolemy heavily taxed his subjects to collect a large bribe3 for Pompey and Caesar.

However, this plan meant to safeguard his sovereignty ended up backfiring - it enraged the Alexandrian populace and thus forced Ptolemy to flee from Egypt. He went to Italy to arrange for the assistance of the Roman army in restoring him as king4. When the

Alexandrians discovered his intentions in 57 B.C., they deployed a deputation of 100 people to the Roman Senate to halt Ptolemy's attempts. Ptolemy responded by trying with violence to thwart their progress towards Rome - he arranged for a vicious mob of local citizens to greet the Alexandrians when they reached Naples, and he attacked them

King Alexander I1 of 6000 talents However, Ptolemy was largely unsuccessful, since the recipients of his bribe were not much help - Caesar was away in Gaul, and Pompey had lost a lot of his power. again when they docked at the port of Puteoli. Dio, the leader of the deputation and an

Academic philosopher, managed to arrive safely in Rome and took refuge at the house of

the senator Lucius ~ucceius~.L. Lucceius' slaves were bribed to murder Dio, but they

were discovered in time, and Dio then moved to the house of Titus Coponius, who was

his acquaintance from Alexandria. However, Dio was murdered there in late 57 B.C. or

early 56 B.C."~.

The two main charges against Caelius (de Dione and de veneno in Clodiam pauato) refer to the attempted murder of Dio and the attempted poisoning of Clodia. The

prosecution alleged that Caelius borrowed gold from Clodia under false pretenses in

order to bribe L. Lucceius' slaves to murder Dio, and when Clodia discovered this,

Caelius was said to have tried to poison her to conceal his first crime. The three

remaining charges appear to have been lesser ones that were taken along with the main

ones, since ordinarily they would have been dealt with in local courts or through private

arrangementsv. One charge (de seditionibus Neapolitanis) refers to his alleged participation in the civil disturbance at Naples, and another (de Alexandrinorum pulsatione Puteolana) refers to his alleged participation in the attack on the Alexandrians

at Puteoli. The last charge (de bonis Pallae) refers to damage to property of Palla, a woman largely unknown to modem scholars, although she may have been the Palla mentioned by the historian Dio Cassius as the mother or step-mother of Lucius Gellius

Poplicola, who married Sempronia Atratina, the adopted sister of Lucius Atratinus, the

5 L. Lucceius was "a close friend of Pompey, and Pompey was a friend of [Ptolemy]" (Wiseman [ed.] 1985, 61), so interestingly L. Lucceius was indirectly allied with his guest's arch-enemy. ~arliera decree had been passed by the Senate, which stated that Ptolemy would be restored to the Egyptian throne with the assistance of the Roman army, but it was recalled before Dio's murder took place, when a tribune opposed to Pompey had promulgated that a Sibylline oracle warned against helping the king of Egypt. Ptolemy had therefore left Rome by the time of Dio's murder (Wiseman [ed.] 1985, 61). Publius Ascius was officially accused of Dio's murder in 56 B.C. by Gaius Licinius Calvus, but Cicero served as his defense speaker, and P. Ascius was acquitted. main prosecutor of CaeliusVi. Not much else is known about these charges. Thus they

appear to be lesser charges, taken along with the remaining two charges of vis.

However, the prosecution of Caelius, in fact, did not arise from the circumstances

related to Ptolemy, but rather it "grew out of a personal quarre~"~".In 56 B.C. Caelius

accused Lucius Calpurnius ~estia~of electoral malpractice twice. On February 11,

Caelius and Cicero met in court, this time as opposing counsel, since Cicero chose to

defend L. Bestia for his actions in the election for praetorship of 57 B.c.""'. Cicero won

the case, and L. Bestia was acquitted, but Caelius did not give up. He began a second

prosecution of L. Bestia along similar lines, but for the upcoming elections. However,

these charges never went to court because L. Bestia's loyal son, Lucius Atratinus,

accused Caelius of vis in an attempt to rescue his father by interrupting, postponing, or

ending Caelius' prosecutionix~x.

Particulars of the trial

Caelius' trial was one of high importance to the Roman public. As Wiseman

points out, "great issues were at stake, and great performers [were] in action""'.

The trial took place in the quaestio de vi ('court for violence') located in the forum in ~ome~on April 3-4,56 B.C., before the praetor Gnaeus Domitius Calvinus. It

was held during the ludi ~e~alensesl~,when most of Rome was on a holiday. Cicero

whom Caelius had formerly supported in the election for praetorship in late 57 B.C. '"A criminal trial] took place in the open Forum where everyone was free to come, look on, and listen. The stage for the trial was an elevated platform [made of wood] . . . [which was one of eight erected] to provide space for all the criminal courts.. . . Each platform was large enough to accommodate the presiding judge and the jury, which sometimes numbered as many as seventy. On the benches below were the defendants and the witnesses" (Taylor 1949,98-99). lo a festival celebrating the introduction of Magna Mater Idaea to Rome, which symbolically took place with the reception of a stone representing the goddess in the temple of Victory on the Palatine on April 4, 204 B.C. (for further reading see Fowler pp. 69-70) provides evidence for this within his Pro Caelio: "diebus festis ludisque publicis,

omnibus forensibus negotiis intermissis unum hoc iudicium exerceatur" ('this one trial is

being held during these days for festivities and public games, when all legal business is

suspended')xiiand "paucis his diebus Sex. Clodius absolutus est [here, in the quaestio de

vi]" ('a few days ago Sextus Clodius was acquitted9)""'. Austin analyzes these passages

and concludes that, in consideration of the known dates of Sextus Clodius' trial, the

remaining records from Cicero, and the timing of the ludi, Cicero must have spoken on

the fourth of April. Therefore, "in view of the number of speakers, and . . . as Cicero is

speaking last," the trial must have begun on the third, Austin concl~des~'~.Hence, in place of the festivities for the holiday, the judge, jurors (approximately 70 of them,

according to Greenidge's estimationxv)and corona ('ring of bystanders') were treated to a spectacle, which encompassed the main speeches delivered by the prosecution and by the defense from opposing benches, followed by the presentation of witnesses''.

The prosecution spoke first, beginning with Lucius Sempronius Atratinus, followed by Publius Clodius, and then Lucius Herennius Balbus. L. Atratinus, who was only been 17 years old at the time, according to St. Jerome 12,xvi , served as the main prosecutor of Caelius. He geared his argument toward destroying Caelius' character and moralS13,xvii. His subscriptores ('assistant prosecutors~)"viiiincluded P. Clodius, who was most likely not the infamous brother of Clodia but rather a lesser member or freedman of the Claudian family (as Austin points out, Cicero's scathing commentary on Clodius and

11 As Wiseman points out, "this postponement of testimony till the end is important for understanding the tactics of each side, particularly in trying to neutralize in advance the effects of the opposition's witnesses" (Wiseman [ed.] 1985,70). 12 "Atratinus, qui xvii natus annos Caelium accusaverat ..." ('Atratinus, who, born was 17 years ago, accused Caelius . . . ') l3 see Chapter I1 for a discussion of his "malediction his sister could not have been included in the Pro Caelio if Clodius (the prosecutor) were

part of the prosecutionx'"), and L. Balbus, who was one of the Luperci priests and an old

friend of L. Atratinus' fatherxx. These two men addressed the charges at hand and

continued probing Caelius' moral fiberxx', although no copies of their speeches exist

today; our only knowledge of what they said comes from Cicero's references to their

speeches in his Pro Caelio, which are largely dismissive.

After the prosecution had presented its case, the defense had an opportunity to

counter. Caelius, Marcus Licinius Crassus, and Marcus Tullius Cicero spoke in that

order. Caelius spoke in his own defense and also pointed some blame to Clodia, who was

allegedly his ex-lover - remnants of his speech include a jibe that L. Atratinus' speech

was composed by Plotius Callus, a "hordearius rhetor" ('barley-blown speaker')""", and

a reference to Clodia as "quadrantaria Clytaemnestra" ('a two-bit Clytemnestra,' "i.e. a

husband-murderer who sells her sexual favors cheaply"xxl'l)""'v. M. Crassus, the richest

man in Rome and a triumvir at the timexxv,dealt with the charges de seditionibus

Neapolitanis, de Alexandrinorum pulsatione Puteolana, and de bonis Pallae - Cicero

declares in his speech that "illam partem causae [concerning those three charges] facile patior graviter et ornate a M. Crassus peroratam" ('I am very pleased that this part of

the case [concerning those three charges] was dealt with fully by M. Crassus seriously

and eloq~ently')~~~'.Cicero, who was by this time about 50 years old and well

established in Roman society14~xxv1',addressed the last two charges, de Dime and de

veneno in Clodiam parato, in his Pro Caelio.

14 Cicero been quaestor in Sicily in 75 B.c., aedile in 69 B.c., praetor in 66 B.c., and consul in 63 B.c.; he delivered his Pro Caelio exactly seven months after his return from exile (see details below). In the end, the defense won its case, and Caelius was acquitted by an unknown

majority.

Historical background of the trial

As Taylor describes, "a great criminal trial was a significant political event [as] . . .

cases were often inspired by political motives, and speeches for defense and prosecution . . might touch immediately on the problems of the day"xxv11'.Since the domain of the

criminal court was so inextricably tied up in the political as well as social interests of

Rome, a short investigation of the setting in which Caelius' trial took place may be

useful.

Caelius grew up in a truly revolutionary era that was full of "bitter partisan strife ,,xxix . . . [in which] rival parties were striving by the use of arms for domination - it was an

age of great political upheaval. The disorder reached new heights in 88 B.C., at which

time Lucius Cornelius Sulla was consul. Thereafter Sulla briefly but effectively asserted

absolute authority over the State by marching on Rome to kill Sulpicius, a tribune who

had been appointed by Gaius ~arius'~and whose harsh laws had caused public riots.

However, a subsequent victory by Marius forced Sulla to leave Rome. Sulla, therefore, pursued a great military victory over Mithridates VI, the king of Pontus in Asia Minor

and Rome's "most persistent enemy" 16,xxx . Upon Sulla's departure from Rome and then

Marius' death, Lucius Cornelius Cinna became the leader of the Marian forces and was appointed consul. Cinna side-stepped official consular elections and remained in power

l5 Marius had "established the role of the general in politics," an example which was followed by Sulla, Pompey, Caesar, and others (Taylor 1949, 17). l6 Mithridates had sought to challenge Roman rule and claim parts of Asia Minor and Greece as his own by stirring up rebellion against the empire there. as a tyrant for the next four years (87-84 B.c.). Under Cinna's rule Sulla was declared an

outlaw, and Valerius Flaccus, who had earlier allied with Marius and Cinna, was sent to

replace Sulla in the coveted position as commander of the mission against Mithridates.

After tremendous conflict for several years, Sulla returned and emerged as

dictator of Rome from 82 through 79 B.C., at the end of which time, he retired and died in

the following year. In his wake, Rome was left troubled: "the terrible events and

kaleidoscopic changes of the past few years had created an atmosphere of nervous

suspicion, mean cupidity, and reckless despair""""'. The Republican political system had

been shaken, and this had severe repercussions that did not diminish for a while. In 78

B.C. Marcus Aemilius Lepidus, a consul at that time, planned an armed rebellion against

the government by reforming grain distribution, with the higher, "popular" goal of

restoring the tribunate, but Quintus Lutatius Catulus, M. Lepidus' co-consul, prevented it

from taking place. Therelore, in the following year M. Lepidus attempted to stage a coup

d'etat by raising an army in Italy and Gaul, but Q. Catulus again stopped him, and M.

Lepidus fled from ~ome"""~~.Gnaeus Pornpeius (commonly known as Pompey), a

prominent general of the time, then sought to establish peace in Rome, and was elected to

the consulship along with M. Crassus.

All of this political turmoil had led to the creation of violent political factionsxxxiii.

As Robinson states, this situation was potentialIy lethal to the state, since

a condition of anarchy and violence lay the opportunity of political adventurers, who, in the hope of retrieving their own personal fortunes, were prepared to plunge the whole state itself into the throes of re~~lution~~~~~.

An expression of the underlying social problems emerged in the figure of Lucius Sergius

Catilina (commonly known as Catiline), "an impoverished and ambitious patrician noble"xxx". Having lost two consular elections (to Cicero and Gaius Antonius Hybrida in

64 B.c., and again in 63 B.c.), Catiline made plans in 63 B.c. to bum Rome, kill Cicero,

and overthrow the government, but he was discovered and his plans did not come to

fruition. Cicero, the key senatorial figure fighting against the conspiracy, arranged for

the declaration of a senatus consulturn ultimum ('final decree of the senate,' basically

martial law that gave absolute power to the consuls to deal with an emergency).

Although Catiline fled from Rome, and Cicero had five of his co-conspirators put to

death without trial, the fissures in Roman society were not healed. The impact of the conspiracies was "to be felt in Roman public life for many years"""""'.

Cicero was determined to achieve harmony and stability in the State by placing

Pompey as its defender and by smoothing class conflicts with the establishment of corzcordia ordinem ('harmony of the orders')"""". However, his plan was foiled by the

Bona Dea scandal17 in 62 B.C. and controversy concerning the taxation of thc Near ~ast", both of which pitted the senatores and equites against each other. Pompey and M.

Crassus formed the First Triumvirate with Caesar in 60 B.C. in order to ensure Caesar's election as consul in 59 B.c. However, in the following year Caesar began his campaigns in Gaul, such that "[he] was well placed [as governor of Gaul] for observation and control

. . . of affairs in ~ome"""""~~~, but he left Rome in an unstable position under the immediate command of Publius Appius Claudius Pulcher (commonly known as Clodius, the name

l7 In 62 B.C Clodius clothed himself as a female slave and intruded upon the Bona Dea rites, the worship of an archaic deity that was performed solely by women. His trial appeared before a jury (composed largely of equites), which was bribed by M. Crassus to acquit Clodius. In an angry response, the Senate tried to revoke the lex Acilia of 122 B.c., which protected non-senatorial jurors from prosecution for corruption and/or bribery. This trial also marks the beginning of the enmity between Clodius and Cicero, as Cicero presented testimony against Clodius that disproved his alibi and slandered his family's name (Gardner 1958, 378). l8 This resulted in the opposition of M. Crassus and Cato and in the nullification of Pompey's prior efforts in the Near East; see Gardner pp. 378-379 for details. he assumed when he converted himself from a patrician to a plebian), the brother of the

infamous Clodia whom Cicero berates in his Pro ~aelio"~"~~.Clodius exerted his power

by passing legislation forbidding the execution of Roman citizens without trial, like

Cicero's execution of the Catilinarians, such that Cicero was forced into exile in March

of 58 B.C. Since Pompey opposed Cicero's exile, tension began to dissolve the

triumvirate. In September of 57 B.C., after much dissent and the vehement lobbying of

Pompey and Milo, Cicero was finally called back to Rome and joyously received19. In

the same year Ptolemy took refuge in Rome from his over-taxed and angry subjects (as

detailed above). In 56 B.c., when Gnaeus Cornelius Lentulus Marcellinus and Lucius

Marcius Philippus were consuls, Rome was left in a politically and socially volatile state.

Against this backdrop of conflict, in which the foundation for a civil war was

brewing, Caelius came to trial. His trial offered yet another arena for discord, such as the

on-going battle between Cicero and ~lodius~~,to be played out.

Life of the defendant

Cicero introduces Caelius to the court as being in his "adulescentiae" ('time of

youth,' i.e., when he was a young man)"'. However, the exact year of Caelius' birth has been widely disputed2'. According to Pliny, "C, Mario Cn. Carbone III coss. a. d. quintum kalend. Zunias M. Caelius Rufus et C. Licinius Calvus eadem die geniti sunt, ovatores quidem ambo, sed tam dispari eventu" ('M. Caelius Rufus and C. Licinius

Calvus were born on the same day, the fifth kalends of June, to C. Marius Cn. Carbone

l9 see Chapter VI for further discussion 20 this time in the form of Clodia, whom Cicero identifies as the "moving force behind the whole trial" (Gruen 1974,307) 21 see Austin pp. 144-146 for a good summary 111; they were certain both orators, but in unequal circumstances') - Caelius' date of birth

was the 2ghof May, 82 B.c."", although some scholars place it as early as 88 B.c."'".

Caelius was born22to a Roman eques who governed land in Africa, but spent a lot

of time in Rome. M. Caelius senior placed his son in a tirocinium fori ('political

apprenticeship') in Rome with M. Crassus and Cicero, just after Caelius had assumed the

toga virilis, when he was about 16 years old. This training continued until 63 B.C.,

through Cicero's election as consul, at which time Caelius decided to cease supporting

Cicero and instead side with Catiline, who was then running for consul. Caelius most

likely withdrew his support of Catiline after he had lost his election and attacked ~ome~'.

After serving under the proconsul Quintus Pompeius Rufus in Africa, Caelius

returned to Rome in 60 B.c., when he was between 22 and 28 years old. At this time he

"formally enter public lifenx1'"with intentions of malung a name for himself on his own,

without the assistance of ~icero""". In kt,to this end Caelius continued to ignore his

old ties with Cicero and successfully brought charges of extortion against C. Antonius,

who was Cicero's co-consul in 63 B.C. (C. Antonius, defended by Cicero, was

condemned in March of 59 B.c.)"'". Now "notable" for this victory, Caelius took up

residence with Clodius, the personal enemy of Cicero, in the fashionable Palatine quarter

of Rome, at which time he met and became intimate with Clodius' sister, ~lodia"'"'. It is

highly probable and widely assumed - although often mistakenly considered certain -

that Clodia is Catullus' Lesbia (and that Caelius is the Caelius mentioned in Catullus'

22 Caelius was born in Praetuttian Interamnia, which was a small town in Picenum in the Appenines, which is about 100 miles northeast of Rome (Wiseman [ed.] 1985, 62; Englert 1990,4). 23 Even so, Cicero makes great efforts in his defense speech to clear Caelius of his decision to join the future conspirator. poems 58 and 100 and the Rufus in poems 69 and 77)24,xlvii . Clodia was the widow of

Quintus Caecilius Metellus ~eler~~,who died in 59 B.C.; she would have been about 36

years old when she met ~aelius"'~~~~.Their alleged two-year love affair ended in 56 B.C.,

when Caelius left the Clodii residence for uncertain reasonsx1ix

In the same year, when he was between 26 and 32 years old, Caelius began his

prosecutions of L. Bestia, and then ended up in court himself (as discussed above).

Unlike in L. Bestia's trials, this time, when facing prosecution from L. Atratinus, Caelius

was supported by Cicero, along with M. Crassus. As Wiseman points out,

It much have taken all his charm to convince [Cicero and Crassus] that his days of friendship with men like Catiline and Clodius were over . . . but in the end, it was an offer neither [Cicero nor Crassus] could refuse. Caelius was too valuable as an ally, and too dangerous as an enemy, for either man to miss the chance of tying him down with a compelling obligation1.

With his former mentors' assistance, Caelius was acquitted, and Atratinus' plans were

foiled becausc Caelius was able to pursue his prosecution of L. Bestia, resuming his

position opposite Cicero, and this time Caelius won (L. Bestia was condemned and sent

into exile).

Thus immediately following his acquittal in 56 B.C., Caelius prospered, whereas

his opponents did not. Clodia, whom Cicero shamelessly slanders in his defense

speechz6, disappears from history after the trial. Such an occurrence is, as Austin

believes, ". . . a factor which shows significantly enough the social importance of the

trial"". It also indicates the trial's capacity for political damage, since social status was

important as a feature of political standing. This illustrates the high costs for Caelius as

for further reading see Austin pp. 148-150 25 consul in 60 B.C. 26 see Chapter I1 he sat on trial, for he could have been the one socially and politically damaged, had he

been condemned.

Much is known of Caelius' successful life after his acquittal due to his extensive

correspondence with ~icero"~~".Caelius chose to pursue his political career; he served as

tribune in 52 B.C. and curule aedile in 50 B.c."". At this time he supported Milo and

opposed Pompey politically. He also acted successfully as prosecutor in a number of

cases1'". When civil war broke out in 49 B.C.,Caelius sided with Caesar (he voted against

Scipio's motion in January to establish Caesar as a public enemy)'". Caesar rewarded

Caelius with an appointment as pvaetorperegvinus (praetor 'of foreign affairs') in 48

B.c., although this came as a disappointment because Caelius had his eye on the position

of praetor urbanus (praetor 'of the city'), the "senior praetorship"lvi,which Caesar

instead gave to Gaius Trebonius. Here Austin assesses that Caelius' "self-conceit and

volatile restiveness were at last to bring about his fall""ii. Caelius prescnted radical,

controversial proposals for debt relief that caused a riot and also his suspension from

OffiCel~iii. He left Rome, turned against Caesar, and joined Milo again. He made a failed

attempt to use bribery to start a rebellion in southern ltalyl'" and was killed by the Gallic

and Spanish troops of Caesar in Thurii in 48 B.C., when he was between 34 and 40 years

old.

Austin evaluates Caelius as a "tragic" figure, a flawed yet talented individual who

suffered from the political turmoil of his time. Austin describes Caelius thus:

As a man he was passionate, vivacious, with a strong if sometimes schoolboyish sense of humor, a handsome young man and a dandy, one of three most skilled dancers of his time. As a politician he was an opportunist and a cynic, too impetuous for any really consistent and far-sighted policy in spite of his singular sensitiveness to the current

27 see Cicero Ad Farniliares, viii trend of politics, too egoistic ever to be dependable, and too independent ever to satisfy his egoism1".

Structure of the Pro Caelio

Exordium (introduction, 9 1-2)

Praemunitio (elimination of insinuations and construction of the case, 83-50)

ArgumentiolConfirmatio and Refutatio (presentation of arguments, 951-69)

Peroratio (conclusion, $70-80)

Girard 1906, 14-15 " Nisbet 1965,69 "'Berry 2000, 124-125; Austin 1960, 152-153; Wiseman (ed.) 1985,54-62 '" Austin 1960, 152 " Austin 1960, 152 "' Gardner 1958,403 ""... Gruen 1974,305 ""'Berry 2000, 123 '" Dorey 1958, 176 " Gardner 1958,400-401 "'Wiseman (ed.) 1985,69 xii Cicero Pro Caelio, i. 1 xiii Cicero Pro Caelio, xxxii.78 "'" Austin 1960, 151 "" Greenidge 1901,447 ""'Austin 1960, 154 """ Berry 2000, 126 """'Austin 1960, 154 "'" Austin 1960, 155-156 "" Austin 1960, 156 ""' Berry 1960, 126 """ Austin 1960, vii """'Berry 2000, 126 ""'"Austin 1960, vii """ Craig 1993, 107 """'Cicero Pro Caelio, x.23 """" Berry 2000, 122 "x"iii Taylor 1949, 98 ""'" Taylor 1949, 1 """ Gruen 1968,248 """'Robinson 1974, 160. """" Robinson 1974, 161 xx"iii Wiseman 1985,25 (Plutarch Caesar 6) Robinson 1974, 175 xxXv Gardner 1958, 376 "x""i Gardner 1958, 376 x"X"ii Gardner 1958, 377 xxxviii Gardner 1958, 384 xxxix Cook et al. 1932, 624 XI Cicero Pro Caelio, ii.3 "" Pliny Historia Naturalis, vii.165 'lii Berry 2000, 122 "Iiii Austin 1960, vi "Iiv Berry 2000, 123 Austin 1960, vi "Ivi Austin 1960, vi "Ivii Austin 1960, 148 "'""'Berry 2000, 123 """ Austin 1960, vi 1 Wiseman (ed.) 1985, 68-69 li Austin 1960, viii lii Austin 1960, ix-x Iiii Berry 2000, 127 IiV Austin 1960, ix Iv Austin 1960, xii '" Wiseman (ed.) 1985,91 lVii Austin 1960, xiii Iviii Austin 1960, xiii li" Wiseman (ed.) 1985,91 I" Austin 1960, xiv Chapter 11. Law and Rhetoric in the Pro Caelio

The legal framework of the Pro Caelio contains few references to the formal charges against caelius1. Indeed, a third of Cicero's speech passes before even the slightest mention of them ($301, and the majority of his speech is concerned with refuting the prosecution's aggressive condemnation of Caelius' character2. On top of this, Cicero includes only two passages on Roman laws, in which no law is either quoted or even named3. Hence, for this reason Cicero has often been accused of intentionally ignoring legal matters in this speech. However, Cicero rests his defense on the idea that the very legal basis of Caelius' case - a charge de vi - is inappropriate, and for this reason Caelius should be acquitted4. In this way, dealing extensively with strict legal issues does not make sense. Instead, Cicero distracts the jury with the ridiculousness of Caelius' prosecution and discredits the instigator of the prosecution.

Cicero, in fact, does not forsake a classical framework for a solid legal defense.

Indeed, he explicitly states that he will adhere to a legally-based arguments: in dramatic, stylized rhetoric and with a flourish of tricolon crescens, Cicero promises, "argumentis agemus, signis luce omni clarioribus crimina refellemus; res cum re, causa cum causa, ratio cum ratione pugnabit" ('we [Cicero] will act using arguments, we will refute the charges with evidence that is clearer than day; we will meet fact with fact, charge with charge, explanation with explanation')'. For this purpose, Cicero recruits non-legal information, such as slander and gossip, and makes it seem "true and convincing"". In

- see Chapter I for a description of the charges 2 Although texts of the prosecutors' speeches do not exist today, much of their content can be ascertained from Cicero's allusions to them in his Pro Caelio. see Chapter I11 for a discussion of these two passages (8 1 and $70) see Chapter I11 this way Cicero can create what Geffcken calls "an atmosphere of illusion"iii, in which he

can situate his formal defense such that it is acceptable as a courtroom speech against an

inappropriate prosecution5. As Riggsby notes, part of the genius behind the Pro Caelio

involves "Cicero's ability to radically restructure the jurors' understanding of the trial"'".

The first way in which Cicero accomplishes this is by redefining the particular

charges that he needs to address in his defense speech. With what Dufallo calls the

"famous distinction between accusatio . . . and maledictio"". Cicero divides the

prosecution's case against Caelius into two types of charges, the formal and the informal.

Initially, accusatio ('accusation'), what is covered by a lex and what is, in this case, the

"duo crimina, auri et veneni" ('two charges, of [stealing] gold and of [attempted]

poisoning )6,vi , is. the term that Cicero applies to the formal charges; maledictio

('slander'), what Alexander calls the prosecution's "character attack""", is the term that

Cicero applies to the informal charges.

Cicero introduces these two terms near the beginning of his speech ($7):

aliud est male dicere, aliud accusare. accusatio crimen desiderat, rem ut definiat, hominem notet, argument0 probet, teste confirmet; maledictio autem nihil habet propositi praeter contumeliam; quae si petulantius iactatur, convicium, si facetius, urbanitas nominatur

('it is one thing to slander, it is another to accuse. An accusation needs a charge to define a fact, to mark a man, to prove by [providing] evidence, to confirm with a witness; slander, however, has no purpose except to insult; if it is thrown around coarsely, it is called abuse, if [it is thrown around] wittily, [it is called] s~phistication')"~~~.

According to this passage, accusatio has a factual basis and a legitimate purpose in the

Roman legal system, whereas maledictio serves only as an outlet for anger and

vengeance. There is no overlap in these two definitions - as Gofoff remarks, the Pro

5 see Chapter I11 for a description of how Cicero makes vis seem inappropriate, and Chapters IV and V for a description of how vis actually was an inappropriate charge for attempting to kill Dio and Clodia, respectively Caelio $7 establishes with "textbook clarity" that accusatio and maledictio are not the same thingix. Cicero reinforces this idea when he goes on to describe how L. Atratinus employed maledictio as a rhetorical weapon to captivate the jury rather than create a solid case. The words "male dicendi" ('for the purpose of slandering')" appear twice in the subsequent passage with intentional pleonasmxi to stress Cicero's admonition to the jury that the prosecution's maledictio has a powerful ability to distort their accusatio.

However, having used his initial definitions to dismiss the prosecution's case as improper, Cicero then re-presents the contrast between accusatio and maledictio: he later explains,

Omaia surzt alia [besides the two charges of attempted murder and poisoning] nun crimina sed maledicta, iurgi petulantis nzagis quam publicae quaestionis . . . convicium est, non acc~isatio.nullum est enirn fundamenturn Itorurn criminum, nullae sedes; voces sunt contumeliosae ternere ab iraao accusaiore auiio aucioi-e emissiie

('all other matters [besides the two charges of attempted murder and poisoning] are not charges but slanders, which are more [appropriate] for an immoral dispute than for a public court . . . that is abuse, not accusation. For there is no foundation of these charges, no basis; they are insults produced heedlessly by the angry accuser who had no a~thority')~".

According to this description, maledictio, if given valid reasoning and rationale, could be considered accusatio. This comparison is less clear than the earlier one ($7). For example, Cicero first states that maledictio absolutely cannot be crimina, but then he immediately contradicts himself by referring to maledictio as crimina. This passage reflects how Cicero confuses and conflates maledictio and accusatio in his Pro Caelio.

Cicero clearly does this when he cunningly makes it seem as if maledictio composes part of the actual formal charges under which Caelius was being prosecuted.

In fact, Cicero does exactly what he rebukes L. Atratinus for doing - he uses maledictio as a rhetorical weapon to distract the jury from the true accusatio (the charges auri et veneni). Cicero devotes the entire praemuntio of his speech to refuting the prosecution's maledictio. In this sense, maledictio functions as the basis for Cicero's defense, which would ordinarily have been the prosecution's accusatio. Thus even though maledictio by definition cannot legitimately be a component of the formal charges in a criminal trial,

Cicero twists his defense to make it appear as such.

The beginning third of the Pro Caelio contains a series of slanderous allegations that, according to Cicero, constitute the prosecution's maledictio. The elements of maledictio that Cicero presents as formal charges are as follows7:

obiectus est pater varie, quod aut parum splendidus ipse aut parum pie tractatus a filio diceretur ('[Caelius'] father was brought up in various ways, because he was said either to have been himself not distinguished enough [for an equites] or not respected enough by his devoted son')""' quod est obiectum municipibus esse adulescentem non probatum suis ('it was brought up that the youth [Caelius] was not approved by his fellow citizens')"'" quo$ obiectum est de pudicitia ('it was brought up about his morals [an allusion to homosexuality] ')"" quod Catilinae familiaritas obiecta Caelio est ('intimacy with Catiline was brought against ~aelius')""' haud scio an de ambitu et de criminibus istis sodalium ac sequestrium . . . similiter respondendum putem ('I am disposed to think that I should respond similarly about electoral malpractice or the charges of political organizations and bribery middlemen')xvii quod aes alierzurn obiecturn est, sumptus reprehensi, tabulaeJlagitatae ('owing another money [debt] was brought up, his expenses blamed, and his account books demanded')xviii

Thus Cicero identifies the prosecution's maledictio repeatedly as containing those items which "obiecti sunt" by the prosecution. Austin translates this verb as meaning "have been brought into the case against [Caelius]""'". Such formal legal terminology, when applied to maledictio, helps Cicero to ensure that the jury will accept the prosecution's maledictio as part of the formal charges (seemingly).

After refuting elements of maledictio one-by-one, as if they were individual pieces of the formal charges de vi, Cicero concludes his defense against them by arguing

see Alexander 2002, pp. 230-233; Alexander lists eight allegations similar to the ones mentioned above, but also including an indirect reference to an allegation of Caelius' betrayal of Bestia (526) generally that none belong in a quaestio de vi. As Gruen indicates, "not one of them [the

slanders] amounts to vis," in the way that Cicero presents themxx. Like his earlier style

when dealing with the separate elements of the prosecution's maledictio, Cicero also

generalizes these elements in legal expression: just as Roman laws were often named

leges de [some crime, such as 'vi'], Cicero describes the "charges" of maledictio as "de

corruptelis, de adulteriis, de protewitate, de sumptibus" ('for seduction, for adultery, for

wantonness, for extravagance'); he adds that they can be "copiose et graviter accusari"

('abundantly and seriously accused')xxi. This wording, which describes the prosecution's

maledictio using the language of accusatio, again conflates the two terms.

Cicero then accuses the prosecution of using such ridiculous, common "charges"

for youthful flaws to prejudice the jurors and trick them into indicting Caelius this way.

Cicero's statement sums up his defense against the maledictio by declaring, "Sed tu mihi

videbare ex communi infamia iuventutis aliyuam invidiam Caelio velle conflare. ituque

uno reo proposito de multorum vitiis cogitabamus" ('But you [prosecutors] seemed to me

to wish to excite hatred against Caelius for wickedness common to youth. And so

when one defendant was put on view, we were thinking about the vices of many')xxii.

Thus, as before, although Cicero censures the prosecution for trying to convict Caelius

under their maledictio by presenting it as if it were part of the formal indictment of

Caelius, Cicero tries to get the jury to exonerate Caelius along in the same lines.

Cicero's attempts to foster such an illusion with maledictioxxiiifollow a constant pattern in which Cicero repeatedly distorts the prosecution's arguments before the jury in his Pro Caelio. As Wiseman contends,

It was in [Cicero's] interest not to present it as they [the prosecutors] did, but to spend time and emphasis on minor points where he had a plausible answer, and to skate quickly over the telling arguments, or break them up and deal with them in a garbled piecemeal way in order to damage their overall impactxx'".

Thus Cicero constantly reconstructs, exaggerates, and twists the prosecution's words to

suit his own purposes in winning over the jury. For example, according to Cicero, the

prosecution suggested that Caelius' father, M. Caelius senior, was "purum splendidus"

('too little splendid') and that "equitis . . . Romani essefilium criminis locon('being a son

of a Roman knight was grounds for a charge')""", but Austin observes, "Cicero has

distorted some remarks [such as these] for his own purposes, to rouse the annoyance of

the equestrian members of the jury [against the prosecution]" and thus gain sympathy for

Caelius"""'. Cicero also occasionally comments on the prosecution's presentation style

and colors it. For instance, he discusses how "te [L. Atratinus] invitum dicere

videbamus" ('we saw that he [L. Atratinus] spoke reluctantly7)"""" and "posuistis

[prosecutors] . .. tamen titubanter et strictim" ('you [prosecutors] made allegations . . .

nevertheless with hesitation and insinuations)""""', not because the prosecution's

arguments were actually presented that way, but because Cicero wants them to be

weakened before the jurors' eyes. In this way, Cicero's treatment of maledictio as if it

were part of the formal charges is consistent with his grand scheme to manipulate the jury's perception of the prosecution's arguments and thus exempt Caelius from

conviction.

Another distortion that Cicero sets up in the praemuntio of his speech involves the implicit definition of Caelius' "true" prosecutor not as the formal prosecutor (L.

Atratinus), who attacks Caelius "palam" ('publically'), but instead as Clodia, who operates "clam" ('secretly ) 8,xxlx . Salzman argues that, although he does not explicitly mention her until later, "from the outset [of the Pro Caelio] Cicero portrays Clodia as . . . seeking revenge in court" for the wrongs supposedly done to her by her ex-lover,

Caeliusxx". Cicero alludes to her underlying and highly significant role in the trial even in his exordium with phrases that Geffcken finds ". . . introduce suspense [and] hint at the scandal to be revealed""""'. For example, Cicero says that Caelius is, in fact, "oppugnari

, XXXll . . . opibus meretriciis" ('being attacked by a wealthy courtesan ) and that L. Atratinus

"alicuius intolerabili libidine et nimis acerbo odio niteretur" ('depended too much on the intolerable lust and bitter hatred of someone else')""x"l. In both cases, Clodia is the unnamed but obviously referenced offender. Thus Cicero makes use of gossip about

Caelius and Clodia's illicit love affair and "repackages [it] in a manner appropriate to a

Roman

Allusions to Clodia in Cicero's defense against the prosecution's maledictio set up the next step in his defense, which responds to the official accusatio (auri et veneni) and depends entirely on exposing Clodia as the "horum duorum criminum . . . auctorem,

. . . fontem" ('the author of these two charges, . . . the source [of them]')9~xx"v.Wisernan notes that, "imperceptibly, Cicero had guided his succession of arguments on the various allegations about Caelius' morals and behavior to the point where he could naturally refer to Clodia"xxxv'. Beginning his defense against accusatio (•˜30)1•‹,Cicero finally identifies

8 Alhough, as Dorey reminds us, it is not necessarily a fact that Clodia the motivating force behind the indictment of Caelius - that is simply Cicero's take on the situation (Dorey 1958, 175-180). Indeed, this is an idea repeated throughout the remainder of the speech - "crimen accusatores abs te . . . dicunt se habere" ('the accusers say that they got the charge from you') (Cicero Pro Caelio, xx.50), e.g. lo However, this is actually not the argumentio, but merely a slight of hand. It is considered to be a part of thepraemuntio that is "devoted to clearing away the awkward side of [L. Atratinus'] revelations in so far as they were damaging to Caelius;" however, "Cicero pretends that he is at last to deal with the actual charges. But it is only a feint, and he uses Clodia's name . . . merely to play with it, cat-and-mouse fashion, to amuse the jury until he is ready for the kill" (Austin 1960, 86). Clodia by name for the first time as the "real" source of accusatio: he states that for both

charges "una atque eadem persona vevsatuv. Auvum sumptum a Clodia, venenum

quaesitum quod Clodiae davetuv, ut dicituv" ('one and the same person is involved. It is

said that the gold [was] taken from Clodia, poison that would be given to Clodia [was]

sought ,) xxxvii , which is a sentiment he repeats at the actual beginning of his avgumentio

($51)". Thus Cicero claims that without Clodia there could be no case against caeliuSxxxviii.

In this way, the invention of Clodia as the "true" prosecutor of Caelius is

elemental to Cicero's defense against accusatio. The substantiation of both issues

concerning the gold and poison was therefore dependent solely on Clodia's evidencexxxix,

and so "her credibility must be destroyed in advance""'. Cicero accomplishes just this

merely by having placed accusatio in the hands of an abhorrent perversion of a

prosecutor - the scandalous Clodia. Women had no Iegal standing in Roman trials, and

moreover, Clodia would have been acting illegally as a female prosecutor. Indeed, an

accusatrix, so to speak, would have been to the Romans as complete a contradiction in

terms as possibly imaginable, one that was ludicrous, outrageous, and entirely repulsive.

Cicero plays up this idea with other images of Clodia as a non-credible woman.

Damaging and derogatory epithets serve as Cicero main line of attack. For example,

Cicero's made-up mimus ('mime')"" of the mock-heroic battle at the Senian baths (where the poison exchange allegedly took place) poses Clodia as the "imperatrix," a female

11 "duo sunt enim crimina una in muliere summorum facinorum, auri quod sumptum a Clodia dicitur, et venerzi quod eiusdenz Clodiae necandae causa parasse Caelium criminantur. aurunz sunzpsit, ut dicitis, quod L. Luccei sewis daret, per quos Alexandrinus Dio qui tum apud Lucceium habitabat necaretur" ('there are two charges from one woman of the lowest morals, one concerning gold which is said to have been taken from Clodia, and one concerning poison which Caelius is accused of having prepared for the purpose of killing Clodia. He took the gold, as you [prosecutors] say, and gave it to the slaves of L. Lucceius, through whom Dio, the Alexandrian then living with L. Lucceius, would be killed') (Cicero Pro Caelio xxi.51) impemtor ('commander') of the prosecution's witne~ses""~.Cicero also stresses Clodia's lack of respectability by calling her a mulier throughout most of his speech. This word contrasts starkly with femina, which "bears a complimentary sense'' that mulier does nOt~liii - Cicero uses femina to describe Quinta Claudia, a highly respectable female ancestor of Clodia's, when he impersonates Appius Claudius Caecus, another long-dead and distinguished Claudian ancestor12, in a grandprosopopoeia ('speech in character')13.

According to Salzman, "when Cicero cites 'Q. illa Claudia' as a paragon of virtue and worthy of Clodia's emulation, he condemns Clodia's behavior [by comparison]," using the different connotations associated with these two homonyms for 'woman'X1iv.Thus

Cicero devastates the prosecution's case by claiming that it depended entirely on Clodia, since he identifies her as the covert prosecutor and utterly ruins her reputation and potential credibility as a witness.

Having discredited Caelius' "true" prosecutor and "her" prosecution along with it,

Cicero then turns to the actual charges brought to the quaestio de vi - the accusatio auri et veneni. As Wiseman describes,

Now that he had neutralized their prejudice against the defendant, and drastically undermined the credit of the chief prosecution witness, he could afford to get down to business at last [in •˜51]"'".

To prove that Caelius did not commit the crimes of which he was accused, Cicero uses the rhetorical technique of fallacy or "dilemma," as Craig describes it'" He examines the evidence in question and determines that, regardless of the particular situation and contradictory options, the same conclusion can be indisputably reached using what Craig calls "the appearance of exhaustive and invincible reasoning [that gives] the illusion of

l2 Appius was censor in 312 B.C. and consul in 307 and 296 B.C. 13 see Austin pp. 90-91; this calling up of a witness from the dead is common in Ciceronian oratory, as Clarke discusses (Clarke 1945,72,77) l4 see Craig pp. 105-121 for a more detailed account of the argument and use of dilemma in the Pro Caelio refuting the accusation without doing so in any substantive way"x1vi.This strategy

enables Cicero to make Caelius and Clodia's love affair essential and supportive in his

refutation of the charges without explicitly confirming it. "The very structure of dilemma

as alternate possibilities which allow one to build an argument on a statement without

admitting that it is a fact is thus the perfect vehicle for Cicero's purpose ''xlvii , Craig

explains, especially considering how Cicero uses the ended love affair as Clodia's motive

in prosecuting Caelius.

Cicero's basic dilemma lies with the "prosecutor" herself". Cicero states that

regardless of Clodia's morality or lack thereof, Caelius is innocent: addressing Clodia,

Cicero challenges, "nobis da viam rationemque defemiomk. Aut enim pudor tuus

defendet nihil a M. Caelio petulantius esse factum, aut impudentia et huic et ceteris

magnum ad se defendendum facultatem dabit" ('give us a way and method of defense.

For either your sense of modesty will contend that nothing was done by M. Caclius

wantonly, or your impropriety will offer both him and the rest [of your lovers] great

capacity to defend themselves')x1viii.Riggsby generalizes this dilemma and summarizes

Cicero's argument as follows:

Clodia . . . either does not have a relationship with Caelius which would make her alleged knowledge of his crimes plausible, or, if she does have such a relationship, she is thereby implicated in such immorality that no weight can be given to her te~timony"'~".

Thus Cicero shapes his argument so that in no way can Caelius possibly be guilty.

Cicero presents his defense of the charges of attempted murder and poisoning similarly -

15 In a similar fashion, to add authority to his witness, Cicero presents a pseudo-dilemma, when in fact it is a "disjunctive question" according to Austin, in which both alternatives are true (Heller 1934, 142): "utrum temeraria, procax, irata mulierfinxisse crimen, an gravis sapiens moderatusque vir religiose testimonium dixisse videatur" ('whether it seems that a rash, wanton, angered woman [Clodia] made up this charge, or whether a serious, wise and temperate man [Luccius] conscientiously gave his testimony') (Cicero Pro Caelio, xxii.55). regardless of the details of the situation, Caelius could not have received gold from

Clodia to murder Dio, and he could not have tried to poison her. Cicero contends,

Si tam familiaris erat Clodiae quam tu esse vis cum de libidine eius tam multa dicis, dixit profecto quo vellet aurum; si tamfamiliaris non erat, non dedit. ita si verum tibi Caelius dixit, o immoderata mulier, sciens tu aurum ad facinus dedisti; si non est ausus dicere, non dedisti .... si enim tam farniliaris erat mulieris quam vos voltis, istos quoque servos familiaris dominae esse sciebat. sin ei tanta consuetude quanta a vobis inducitur non erat, quae cum semis eius potuit familiaritas esse tanta?

('If [Caelius] was as intimate with Clodia as you [Herennius] wish him to be, since you say so much about his lust, then he truly told [Clodia] why he wanted the gold; if he was not as intimate [as you wish him to be], then he did not give it. So if Caelius told the truth to you, o wild woman, you knowingly gave the gold for a crime; if [Caelius] did not dare to tell you, you did not give it.. ... For if [Caelius] was as intimate with that woman [Clodia] as you [prosecutors] wish, he knew that those slaves were also intimate with their mistress. If a closeness did not exist for [Caelius with Clodia] as greatly as is alleged by you [prosecutors], how could such an initimacy exist [for Caelius] with her slaves?')'

These conditional clauses are meant to impart proof of Caelius' innocence to the jury through the examination of all potential perspectives on the crimes with "apparent rationality"". Thus Cicero finally "proves" his case.

In these ways, despite its deceptive lack of exact legal material, the Pro Caelio actually functions as a strong, cohesive legal defense: Cicero's apparent substitution of the prosecution's rnaledictio for their accusatio enables him to distract the jury long enough to set up his unveiling of Clodia as the "true" prosecutor of Caelius, which then enables Cicero to undermine "her" accusatio in the first place.

' Cicero Pro Caelio, ix.22 "... Geffcken 1973,23 "' Geffcken 1973,23 " ~iggsby1999, 104 Dufallo 200 1, 122 " Cicero Pro Caelio, xiii.30 "" Alexander 2002,229 viii Cicero Pro Caelio, iii.7 '" Gotoff 1986, 125 " Cicero Pro Caelio iii.8 "' Austin 1960, 54 ""... Cicero Pro Caelio, xiii.30 ""I Cicero Pro Caelio, ii.3 "'"Cicero Pro Caelio, ii.5 "" Cicero Pro Caelio, iii.6 ""' Cicero Pro Caelio, iv.10 xvii Cicero Pro Caelio, vii. 16 """' Cicero Pro Caelio, vii. 17 "'"Austin 1960, 46 "" Gruen 1974,306 ""' Cicero Pro Caelio, xii.29 """ Cicero Pro Caelio, xii.29 """' Geffcken 1973, 23 ""'" Wiseman (ed.) 1985, 70 """ Cicero Pro Caelio, ii.3 """'Austin 1960,46 xx"ii Cicero Pro Caelio, iii.7 """"' Cicero Pro Caelio, vii. 15 Cicero Pro Caelio, ix.20 """ Salzman 1982,300 Geffeken 1973, 12 """" Cicero Pro Caelio, i. 1 xxxiii Cicero Pro Caelio, i.2 xxxi" Dufallo 2001, 121 """" Cicero Pro Caelio, xiii.31 xxx"i wisemar? (ecl.) 1985, 80 xxxvii Cicero Pro Caelio, xiii.30 xxxviii Cicero Pro Caelio, xii.32 xxxix Dorey 1958, 178 Wiseman (ed.) 1985, 83 xli Cicero Pro Caelio, xxvii.65 xlii Cicero Pro Caelio, xxviii.67 "Iiii Austin 1960, 93 """ Salzman 1982, 301 "'"Wiseman (ed.) 1985, 88 "'"'Craig 1993, 116 "Ivii Craig 1993, 110 "'""' Cicero Pro Caelio, xx.50 "Iix Riggsby 1999,99 ' Cicero Pro Caelio, xxi.53, xxiii.58 Ii Riggsby 1999,99 Chapter 111. On Defining the Lex Lutatia de Vi and the Lex Plautia de Vi

In his Pro Caelio Cicero obscures the legal issues at hand, the charges de vi, with an elaborate verbal dance. Cicero's rebuttal to the charges against Caelius appears on the surface to be rather insubstantial', since instead Cicero focuses on performing for the jurors and berating Clodia'. Along with the lack of other documentation of Caelius' trial,

Cicero's skill at diverting the spotlight off the law and eclipsing the true legal particulars of the trial creates a logistical mess. Cicero offers only two allusions to the law under which Caelius was tried, and these do not even seem to concur entirely. Thus even the specific law under scrutiny during Caelius' trial provides grounds for debate.

Gaps in lists of governmental officials and lost records of law codes have created a storm of confusion over the legal fundamentals of Caelius' case. In particular, it is uncertain whether Caelius was prosecuted under the lex Lutatia de vi (a consular law) or the lex Plautia de vi (a tribunician or praetorian law, which is also known as the lex

Plotia de vi, and should not to be confused with the lex Plautia/Plotia de reditu

~e~idanorum~)).Although it is known that both laws dealt generally with outbreaks of political violence, which included the abuse of office, sedition, public disturbance, and physical assault, many more specific details are missing. One challenge in considering the legal issues of Caelius' trial lies in the fact that these laws are not well characterized in general, and another lies within the confusing references to the laws themselves in the

Pro Caelio (discussed shortly).

' see Chapter I1 2 a law supported by Caesar early in his career (around 75-70 B.c.) that revoked the outlawry of those who had followed M. Lepidus (Greenidge 1901, 524) The lack of definite information on the lex Lutatia and lex Plautia makes it

difficult to determine what exactly their relationship was or whether they were even

separate laws. Scholars generally agree that the lex Lutatia was passed on behalf of the

consul Q. Lutatius Catulus in the context of the Lepidan insurrection (when Catulus' co-

consul, M. Lepidus, marched on Rome after the two consuls had quarreled3 to seek the

restoration of the tribunate and his own re-election, among other thingsii). This dates it

debatably to either 78 or 77 B.C.

The date of the lex Plautia is more elusive because there existed many obscure

people by the name of Plautius in the first half of the first century B.c., but few who are

known to have been in office (as tribune or praetor) during this time. Most scholars

ascribe the lex Plautia to the tribune Marcus Plautius Silvanus of 89 B.C., although others

ascribe it to the same man who proposed the lex Plautia de reditu Lepidanorum (which

itself is dated inexactly, although it has been placed somewhere around 73 B.c.)"', and

others such as Hough date the lex Plautia to as late as 65 B.C. Regardless, both laws had

certainly been enacted well before the time of Caelius' trial.

It is conceivable that the two laws were one and the same. Berry states that

the easiest way of explaining [the relationship between these two laws] is to assume that the lex Lutatia was an ad lzoc measure whose provisions were later incorporated into the lex Plautia.

Thus the lex Lutatia could simply have been an outdated name for what was later included in or known as the lex Plautia. It is also possible that the lex Lutatia was simply a sort of informal epithet that the lex Plautia acquired during its use against M. Lepidus and his followers. Within one sentence in the Pro Caelio (•˜70), Cicero describes a law that appears to relate to the lex Pluutia in its nature, but explains that it was Q. Catulus

see Chapter I who "tulit" it, such that the sentence seems to refer to both the lex Plautia and lex Lutatia at once4. This passage can be interpreted by talilng tulit to mean "proposed," such that the sentence reads that Q. Catulus proposed a law which was then passed by a tribune named Plautius'". Thus under this analysis the lex Lutatia should be considered the consular name for the lex Plautia, and it should be assumed that the Catilinarians as well as Caelius were charged under Q. Catulus' law.

However, this hypothesis, outlined by Mommsen, has been has discredited by scholars such as Hough. Hough concurs with Mommsen that two laws prohibiting the same offense (vis)could not have co-existed. However, Hough examines the available historical dates of events and concludes that the lex Lutatia and lex Plautia were discrete entities that were separated by more than a decade. In fact, he finds that the lex Lutatia may not have remained in force for very long. Indeed, it was not abnormal for a law to be overtly ad hoc and thus have only a short lifespan, existing only long enough to take care of the particular occasion for which it was passed, like the lex Plautia de ueditu

Lepidanouum. However, although his theory may be true, Hough's evidence is not entirely reliable. Hough loola at the prosecution of Gaius Cornelius, a tribune who in 67

B.C. (two years before the date when Hough argues that the lex Plautia was passed) was brought to trial for his alleged participation in riots and disorder under a charge de nzaiestate instead of de vi, when the latter would have been more appropriate. According to Hough, this indicates that neither the lex Lutatia (nor the lex Plautia for that matter - no lex de vi at all) was in existence at that timev. However, inappropriate charges were not uncommon in the Roman legal system5;indeed, this may have been the case in

see below for the full quotation see Chapter VI Caelius' trial6. C. Cornelius' prosecutor may simply have favored maiestas over the more appropriate indictment (vis), so we cannot be absolutely certain that legislation de vi was unavailable just because maiestas was used in its place. In addition, several of the dates that Hough uses are somewhat ambiguous, and so his determination the lex Plautia came into effect in 65 B.C. is not entirely certain. Regardless, Hough's overall proposal that Caelius was unquestionably indicted under the lex Plautia, not the lex Lutatia, still may have some validity.

To modem scholars, the lex Plautia seems more likely than the lex Lutatia to have been used as the law indicting Caelius. The lex Plautia was definitely functional by the time of Caelius' trial - Catiline was indicted in 63 B.C. by Lucius Aemilius Lepidus under itvi,along with other Catilinarians in the following year, as were people such as Milo in

57 B.c., and Publius Asicius and Publius Sestius in 56 B.C. (the same year as Caelius) - and the lex Plautia was not superceded until much later with the passage of the lex Iulia de vi publica and privata by Julius Caesar during his dictatorship. The existence and statutory force of the lex Plautia at the time of Caelius' trial is certain7. In contrast, this cannot be said of the lex Lutatia. The lex Lutatia is a much lower-profile law. The only existing evidence that such a law was part of the Roman legal repertoire is found in the

Pro Caelio.

Other scholars have considered less straightforward alternatives to the arguments of Mommsen and Hough. Rather than settle on the idea that the leges de vi were completely interchangeable/synonymous or distinguish the two laws clearly from each other, more recent scholarship has pursued the relationship between them. Cousin finds

see Chapter IV see Hough p. 135 for a list of references that the lex Plautia extended the competence of the lex Lutatia, either by creating a new quaestio or by contributing a new legal text to the original court. As Cousin observes, whereas the lex Lutatia dealt with vis contra rem publicam, especially when related to seditio, coniumtio, and inuria legatorum, the lex Plautia dealt with vis contra privatosvii.

However, his analysis is grounded in the sole reference (which occurs in the Pro Caelio) to the lex Lutatia and in our records of numerous trials that occurred under the lex Plautia for offenses less significant than sedition against the State. And indeed, it is in Cicero's interest to emphasize the grandeur of Q. Catulus' law, as will be discussed shortly, so

Cicero may distort our perception of this law. Therefore, we should not consider Cicero to be a trustworthy authority on the law. Also, Cousin's dichotomy seems a little too rigid - the realms of the private and public have more overlap, as Lintott notes. Lintott builds on Cousin's theory of the extension of the lex Lutatia into the lex Plautia by saying that the lex Plautia included a slight but significant redefinition of the lex Lutatia.

Lintott's version of this matter states that the lex Lutatia created a court that dealt with vis de seditio, coniuratio, and inuria legatorum, and that the lex Plautia broadened the jurisdiction of the lex Lutatia such that it was applicable in more situationsviii. More specifically, Lintott believes that the lex Plautia reiterated the main purpose of the lex

Lutatia but also added that it "dealt with cases of violence against private citizens which were judged in one way or another to be against the interests of the state"'".

This proposal has for the most part remained acceptable to modem scholars. For example, Jones states that the lex Lutatia still had a quaestio at the time of Caelius' trial, but one separate from that of the lex Plautia because it dealt with its own type of violence". Robinson, similar to Lintott, explains that the lex Plautia did not usurp the position of the lex Lutatia, but rather extended its influence to encompass offenses

against private individuals who had higher importance to the statexi. This compromise

solution, stating that the laws were both separate but interrelated, seems to be the most

reasonable.

Cicero's treatment of the law used to prosecute Caelius presents a challenge to the

modern study of the lex Lutatia and lex Plautia. Firstly, Cicero does not make the law in

general a priority in the Pro Caelio, to such an extent that he never even explicitly names

any law. Secondly, Cicero was a skillful and tricky orator who was set on persuading a jury of Caelius' innocence in large part by diverting the jury's attention from the legal

issues involved in the case8. It was his intent to manipulate and twist information to his

advantage. To this end, Cicero intentionally conflates the two leges de vi in the Pro

Caelio.

In fact, the Pro Caelio opens with his treatment of the law (or perhaps more aptly,

mistreatment of it) - Cicero begins his speech with an intentionally vague and ambiguous

reference to a lex, which he then immediately casts aside. In his exordium Cicero

presents a

legem quae de seditiosis consceleratisque civibus qui armati senatum obsederint, magistratibus vim attulerint, rem publicam oppugnarint cotidie quaeri iubeat

('law, which prescribes that on every day there should be an inquiry about seditious and wicked citizens who when armed besiege the Senate, bear violence against the magistrates, and attack the state')""

There are no identifying clues in this description, such as the name of a particular defendant, prosecutor, or magistrate (like the striking inclusion of Q. Catulus in the

see Chapter I1 reference discussed later), and so one would need other evidence to clarify whether the

lex Lutatia or the lex Plautia is under scrutiny here.

Because Caelius' trial was preceded by multiple cases that took place under the

lex Plautia, and because of the lack of specificity in Cicero's description, the lex Plautia

is commonly the first law that comes to mind upon encountering this reference ($1).

Indeed, many scholars mistakenly accept it as a fact that Caelius was charged under the

lex Plautia. Austin points out that "Sallust (Cat. 31) and others state that the law then

invoked [for Caelius' trial] was the lex Plotia de vi, and the other cases of vis known at

this period were also tried under the lex Pl~tia"~"'.As Hough argues, Cicero's audience,

like all Romans who were familiar with contemporary references, knew the name of the

law in force at the time, and so there was no need to identify ~lautius~~".However, there

is no reason to assume that the Romans were not cognizant of the lex Lutatia in addition

to the lex Plautia. Simply because we have less knowledge 01 the lex Lutatia does not

necessarily mean that the Romans did as well. The law referenced at the beginning of the

Pro Caelio should be taken simply as a lex de vi, not a specific one (either the lex Lutatia

or the lex Plautia), since there is nothing distinct enough in Cicero's description that

would classify it as one or the other.

Indeed, Cicero mentions the law in this passage (3 1) only to critique its merits and

draw attention to its inapplicability to Caelius' alleged actions. Cicero merely wishes to

scorn and brush aside the charge de vi brought against Caelius, and so he does not need to differentiate between the lex Lutatia and the lex Plautia (the jurors would have already been aware of which one was being used). Prominently in the first few sentences of his speech, Cicero denounces the use of a lex de vi. He sets up his presentation of the law with "si" ('if')"". This use of the conditional weakens the apparent force of the law by

placing it in only an imaginary context. Cicero then claims that a stranger observing the

proceedings would assume that a very serious matter was under consideration, but that

this stranger would be mistakenxvi. The words "tanta atvocitas" ('such an atrocity') jump

out at the listener because of the lack of the usual preceding "ut"""", as Austin notesxviii.

These words are reinforced and expanded on only slightly later when Cicero specifies

(with melodramatic litotes) that, "nec dubitet tanti facinovis reus arguatur ut eo neglect0

civitas stare non possit" ('[the stranger] would not doubt that the defendant were charged

with such a felony that the State could not remain standing if it were neglected')"'".

After he briefly describes the law, Cicero then immediately rejects it. According

to him, in an anaphora triple ("nullum . . . nullam . . . nullam"), the stranger would notice the inappropriateness of the law: "legem non impvobet; crimen quod versetur in iudicio

vequivat; cum audiat nullum facinus, nullam audaciarn, nullam vim in iudicium vocari"

('he would not disapprove of the law, he would seek out a charge competent to the court when he hears that no crime, no imprudence, no violent act is being summoned into court')"". Thus Cicero dwells on the law only long enough "to undercut the seriousness" of it, according to ~alzman""',and to establish its inapplicablity. He then continues by addressing the "maledictio" ('slander')""" that the prosecution launched against Caelius, as opposed to any issues related directly to the law9. With this distraction, Cicero attempts to get his audience to forget about the law. Unlike a later reference to the law

($70), after which he continues discussing legal matters by bringing up another criminal trial, Cicero underplays his allusive initial reference to a lade vi.

9 see Chapter I1 Much later in the Pro Caelio, Cicero changes his tactics - he becomes more

definite in his discussion of the law. Indeed, because of the details Cicero provides in

this later passage (•˜70), a swift reading of his entire speech on its face seems to point to

the fact that Caelius was charged under the lex Lutatia. A listener is swayed by the

opening of the peroratio (•˜70),in which Cicero explicates,

de vi quaeritis. Quae lex ad imperium, ad maiestatem, ad statum patriae, ad salutem omnium pertinet, quam legem Q. Catulus armata dissensione civium rei publicae paene extrenzis temporibus tulit, quaeque lex sedata illa Jlamma consulates mei fiunantis reliquias coniurationis exstinxit, hac nunc lege Caeli adulescentia non ad rei publicae poenas sed ad mulieris libidines et delicias deposcitur

('You are inquiring into an issue of violence. The law which pertains to the rule, to the majesty, to the state of our country, and to the welfare of all, the law which Q. Catulus bore when, by armed civil strife, the time of the State was almost at an end, and the law which, after the flames of my consulship were calmed, extinguished the smoldering embers of conspiracy; now under this law is the youth of Caelius invoked, not for reparations to the State but for the wanton interests of a woman')xx"'.

This passage appears to define the law under which Caelius was charged. Because

Cicero describes the law with such careful clarity and detail, especially with the mention of Q. Catulus, at a quick glance he most obviously and almost unmistakably seems to state that the trial at hand is one held under the lex ~utatia~~'"(although he is not quoting the law, as Hough points out, since he does not mention the lex Lutatia by namesxv).

Cicero makes a great effort to highlight and promote this particular discussion of the law such that it by far overshadows (both in length and detail) the earlier reference

(9 1). Having summed up his defense against the charges related to Dio (auri et veneni) and in that way having pounced on yet another opportunity to cut down Clodia, Cicero then focuses his attention meticulously on the lex Lutatia. He coaxes his audience to be receptive to his remarks on the law by buttering up the jury with compliments. Right before launching into his description of the lex Lutatia, Cicero candidly addresses the "iudices" and reminds them of their power and importance: he says, "quantum iudicium sustineatis, quanta res sit commissa vobis" ('now you understand how much you should uphold with your judgment, how great a matter has been entrusted to you )xxvi . Cicero then clarifies the jurors' task by explaining the law to them, and continues by implicitly asking that they respond appropriately to this instance of the lex de vi's misuse by acquitting Caelius. He reinforces this idea by providing an example of the lex de vi's prior abuse - he brings up the trial of two men, Marcus Camurtius and Gaius Caesemus, who were charged for vis when they should not have been. About their case Cicero states, "lege de vi certe non tenebantur eo malejicio" ('they should certainly not have been held for their offense [in a court de vi] ) 10,xxvii . Supposedly the jury was familiar with this reference and would have sympathized with Cicero's analysis of it. Overall this passage ($70) and its context indicate that Cicero explicitly wishes to influence the jury with the idea of the lex Lutatia and its misuse.

This direct reference to the lex Lutatia is supported by two other, less direct references. The author of the lex Lutatia, Q. Catulus, appears first in the speech before the definition of his law ($70). During a lengthy and passionate digression on the death of Clodia's ex-husband, Cicero lovingly describes how Q. Metellus remembered Q.

Catulus on his deathbed: "cum parietem saepe feriens ezlm ggi cum Q. Catulofi~eratei

-conzmunis crebro @tulum, saepe me, saepissime rem publicam nominabat" ('after knocking often on the wall which was common to Q. Catulus and himself", [Metellus] repeatedly called the name of Q. Catulus, often called on me, most often called on the

State')xxvlil . Cicero employs the rhetorical device of alliteration with 'c' sounds (noted

lo see Chapter V for the full passage and a discussion of it 11 smce. apparently their houses were adjoining above) to mimic the action described (knockmg), along with tricolon crescens and striking asyndeton. The impact of this high style language would have effectively drawn

Cicero's audience into his story and impressed Q. Catulus' name upon their minds more firmly, perhaps priming them to hear about the lex Lutatia a little later12. Again, after he has openly discussed the lex Lutatia and just before his grand finale (a misevatio ['call for pity'] in which he begs for sympathy for Caelius' devoted and loving father), Cicero brings up Q. Catulus, only in this instance he refers to Quintus Lutatius Catulus senior13, father of the previously mentioned Q. Catulus. Cicero brings up the "Catuli monumentum" ('the monument of Catulus ) 14,xxix to remind the jury once again of the lex

Lutatia and to re-emphasize the majesty of this lawi5. Thus from the amount of text related to the lex Lutatia in the Pro Caelio, it appears that Cicero wants to focus the jurors' minds on this lex de vi.

Consequently, the question arises of why Cicero would have found it advantageous to explicate on the outdated and obsolete law (the lex Lutatia) as opposed to the current, operational one (the lex Plautia). Perhaps the lex Plautia had been used by

Roman prosecutors more successfully than not in the past (as indeed the records indicate16, especially in the case of alleged members of the Catilinarian conspiracies such as Caelius), and so Cicero may have wanted to avoid this "condemnation stigma" associated with the lex Plautia, but not the lex Lutatia. Similarly, perhaps Cicero wished to use his references to the lex Lutatia to further distance Caelius from the Catilinarians

12 Cicero may also portray Q. Metellus calling on both Cicero and Q. Catulus, two great saviors of the State, to identify Clodia, who supposedly poisoned Q. Metellus, as an enemy of the State. l3 consul in 102 B.C. l4 This refers to the Porticus Catuli, a monument built by Q. Catulus senior on the Palatine commemorating a victory at Vercellae in 101 B.C. (Loeb 1958, 504). l5 It could also allude indirectly to the tremendous legacy ('monument') Q. Catulus the Younger left by enacting the first lex de vi. l6 see Appendix A (in a way less obvious than his ovest attempts to separate Caelius from catiline17). In this way, greater focus on the law unrelated to the conspiracies, the lex Lutatia, would reinforce the effect of his diatribe against catiline18, the "taetuiou hostis huic civituti"

('enemy of this State [Rome] more loathsome [than no one]')""". In addition, Cicero had a strong example of the misuse of the lex Lutatia, as discussed ear1ier19. Maybe Cicero thought that playing up the more esoteric lex would make the indictment in general seem less plausibly connected to Caelius' actions. In this way the prosecution would seem more ridiculous, and the jury would be more sympathetic to Caelius. It is also possible that Cicero hoped that more prevalent references to the outdated law would confuse the jury and guide them toward an acquittal more easily. Indeed, perhaps Cicero brought up the lex Lutatia, along with its dramatic and urgent function to suppress the Lepidan insurrection, in order to help add color to his already sensational narrative and further distract the jury. Alternatively, perhaps the nature of the two de vi laws simply differed such that Cicero found the lex Lutatia to be more desirable and better for freeing Caelius

(as will be discussed at length shortly).

However, despite all the allusions to Q. Catulus and through him the lex Lutatia,

Cicero's apparently clear reference to the lex Lutatia (870) becomes more complicated upon a closer reading of it. Although the mention of Q. Catulus serves as a red flag for the lex Lutatia and necessarily forbids any immediate recollection of the lex Plautia,

Cicero follows this by alluding to metaphorical fires lit by conspiracy during his

l7 Cicero Pro Caelio, iv.10 '*Cicero Pro Caelio, v.12-vi.14 l9 cicero Pro Caelio, xxx.71 cons~lshi~~~'"~"~.This image falls fluidly into line with the other elements that Cicero mentions to describe how the law was used to rid the State of evils, and so it does not immediately stand out as being inconsistent or problematic. However, upon careful consideration, even though Catiline himself is not mentioned, it should register that

Cicero is referring to the triumph over the Catilinarian c~ns~irac~'~'~~.Significantly,

Catiline was prosecuted along with his followers under the la~lautia~~, not the lex

Lutatia (a fact of which Cicero would certainly have been aware, since he served as the prosecutor). Thus it seems that, in fact, there are two contradictory references contained within one sentence of the Pro Caelio - one referring to a law that makes sense according to the specific context that Cicero provides (Q. Catulus' lex Lututia) and one referring to another law that makes sense according to the Catilinarian allusion and the date of the trial (the lex Plautia).

This incongruity leads to the question of how to reconcile the apparent mention of both laws. We should consider at face value the information that Cicero provides - the occasion for the noble birth of the lex de vi (the Lepidan insurrection) and the next most exalted instance of its use (the Catilinarian conspiracy). We should then take into account Cicero's task of exonerating Caelius, for which Cicero seems to have found it most beneficial to overlook exact accuracy in describing a particular law, and instead focus on how legislation de vi in general had rescued the Roman State from ultimate destruction. In addition, Cicero does this even "...when both he and the jury knew that

20 "quaeque lex sedata illajlamma consulates mei fumantis reliquias coniurationis exstinxit" (referenced above) " This happens to be of special interest to Cicero since it was the crowning triumph of his consulship. 22 see Chapter I for details of the conspiracies 23 AS Riggsby notes, "all other mentions of the law under which the Catilinarian conspirators were tried agree that it was the lex Plautia" (Riggsby 1999, 80). the lex Plautia dealt with ordinary cases of private violence as well as offenses against the state""""". Cicero mentions Catulus but no one associated with the lex Plautia to stress the lex Lutatia and simultaneously de-emphasize the lex Plautia such that he can evade the tainted, less glorious past of the lex de vi, when more minor incidents (not large infractions against the State) were examined under the lex Plautia. Thus Cicero uses $70 to call attention to the lofty nature of the lex de vi in general.

By exaggerating the loftiness of the lex de vi, Cicero trivializes Caelius' alleged offenses by contrast and, as in his earlier reference to the law ($I), he contends that a charge de vi is not appropriate for Caelius' case. As Berry notes, Cicero uses $70 to point out "the absurdity of Caelius' being brought to trial under a law designed for use in national emergencies ,,xxxiii . Hough further explains how

Cicero is chiding the prosecution with bringing Caelius to court under so important a law when the matter at stake was really the scandal of a women, -and such a woman [Clodia]. In 570 he is relating the noble history of the law which these scoundrels have used for such a disgraceful purpose. He is not giving a list of cases which had occurred under the lex Lutatia of Catulus, or under the lex Plautia, but he is giving the history of the law de vi, . . . emphasizing the important nature of the situations for which it had been used . . . such was the noble history of the law de vi, and now it is being used ad mulieris libinosae deliciasxxxl".

Indeed, in $70 Cicero addresses the jurors as guardians of the lex de vi. He evokes the remembrance of the grandeur that charges de vi had born in the past in order to create and expose the scandal of squandering this important law on such a silly objective as the prosecution of Caelius, which in truth boiled down to Clodia's venegencexxxV,Cicero suggests. This makes sense, as it fits with Cicero's prior attempts to pass off blame to

Clodia. Cicero implores the jurors to protect the law's majesty and avoid defiling it by acquitting Caelius, who should not have been brought to trial under it in the first place.

Riggsby finds that this defense tactic is valid and relevant - he argues that, "vis (as opposed to homicide, which could perhaps also have been charged) required a certain

level of significance; hence a reply [such as Cicero's] that ridicules the accusation is a

legitimate response ,9XXXV1 . In this way, Cicero's underlying goal to confound the charges

against Caelius and secure an acquittal offers an explanation for his introduction of

conflict and contradiction to his discussion of the law.

Indeed, the grand contradiction that is apparent in the references to the two leges

de vi in the Pro Caelio does not seem as exceptional or troublesome when set against the

backdrop of the rest of the speech, which is fraught with contradictions. Cicero often

purposely contradicts himself in his arguments at different stages in his speech so that he

can coordinate his reasoning with the point he is malung at that moment, at the sacrifice

of having a defense that makes perfectly fluid, logical sense as a whole.

For example, Cicero includes opposite statements about youth and witnesses in

the Pro Caelio. When referring to the young Atratinus, Cicero first allows the

"excusationem . . . aetatis" ('excuse of his age') for bringing Caelius to trial XXXVll , but much

later in his speech Cicero does the opposite by censuring him for being too young and

hence lacking the moral authority to slander ~aeli~s~~~~~~~~~~. For Caelius, Cicero does the

same - at first he indulges youth for being "infirmum" ('weaMsus~eptible)~~~'"and for

succumbing to "cupiditates" ('desires') such as those related clodiaX',but then he

contradicts himself by claiming that he could offer "vacationem adulescentiae" ('an

excuse of youth') but that, in fact, "perfugiis nihil utor aetatis" ('I use nothing in the refuge of age7)"". Later he returns again to his first sentiment of indulgencex'". Cicero

also contradicts himself when at first he warns the jurors that the witnesses of the

24 "Quam quidem partem accusationis admiratus sum et moleste tuli potissimum esse Atratino datum . ..neque aetas illa postulabat" ('I am surprised and disturbed that this part of the accusation [the slandering of Caelius] was entrusted chiefly to Atratinus . . . his age does not ask for it')

44 prosecution are useless and should not be heededx1"' and claims that he himself will not

call on witnesses 25,xhv, but he then goes directly against this by saying that he has no need

for formal arguments because he has a witnessx'". Cicero calls on L. Lucceius (the man

whose slaves were thought to be Caelius' go-betweens26)to the witness box and says

' xlv1 that, "haec est una vox veritatis" ('this is the one voice of truth ) . And then, reverting

back to his original perspective later in the speech, Cicero makes fun of the witnesses

from the Senian baths, the supposed location of the poison exchangex1"". These are just a

few examples of Cicero's "patent inconsistencies," as Craig describes themx1"".

In general, the paths that Cicero's speech takes are full of oratorical twists and

turns and switchbacks, which when examined together do not fit with each other. This

inconsistency is part of the genius of Cicero's rhetoric - it takes incredible skill to use

one argument to make one point, and the opposite argument elsewhere to make a separate

point. This mechanism makes perfect sense in terms of how Cicero deploys his case. In

lieu of this, it may be unreasonable to exempt Cicero's handling of the law from this pattern of contradictions. Thus the Pro Caelio should be received as a prime example of

Cicero's rhetorical expertise (his mastery of contradiction), not as a handbook of the legal

specifics of the lex Lutatia and lex Plautia.

' Alexander 2002,223. ii Cook et al. 1932, 316 "' Hough 1930, 137 '" Mommsen 1899,654 " Hough 1930,142 "' Sallust Bellurn Catilinae., 3 1 "" Cousin 1943,92 ""' Lintott 1968, 121 '" Lintott 1968, 116 " Crook 1972,57 "' Robinson, 1995,29.

25 "VOS absducam a testibus" ('I will lead you Ijurors] away from witnesses') 26 see Chapter I xii Cicero Pro Caelio, i. 1 ""'Austin 1960, 42 "'"Hough 1930, 144 "" Cicero Pro Caelio i. 1 ""' Cicero Pro Caelio i. 1 """ Cicero Pro Caelio i. 1 """'Austin 1962,41 Cicero Pro Caelio i. 1 "" Cicero Pro Caelio i. 1 Salzman 1982, 300 """ Cicero Pro Caelio iii.6 xxiii Cicero Pro Caelio, xxix.70 ""'"Austin 1960, 42 """ Hough 1930, 136 """'Cicero Pro Caelio xxix.70 """" Cicero Pro Caelio xxx.7 1 """"'Cicero Pro Caelio xxiv.59 ""'"Cicero Pro Caelio xxxii.78 """ Cicero Pro Caelio v.13 """'Cicero Pro Caelio, xxix.70 xxxii Lintott 1968, 116 """"'Berry 2000, 258 xxxiv Hough 1930, 144 """" Hough 1930, 143 xxxvi P.iggsby 1999, 104 xxxvii Cicero Pro Caelio i. 1 xxxviii Cicero Pro Caelio iii.7 xxxix Cicero Pro Caelio iv. 10 XI Cicero Pro Caelio xii.28 xli Cicero Pro Caelio xii.30 xlii Cicero Pro Caelio xviii.42 xliii Cicero Pro Caelio ix.21-22 xliv Cicero Pro Caelio, ix.22 "I" Cicero Pro Caelio xxii.54-55 xlvi Cicero Pro Caelio xxii.55 xlvii Cicero Pro Caelio xxviii.67 "lviii Craig 1993, 105-106 Chapter IV. A Sullan Approach to Caelius' Indictment

Besides wooing and distracting the jury, Cicero may enhance the confusion and

contradiction surrounding the lex Lutatia and/or lex Plautia simply to reveal the

ridiculousness of the legal basis for Caelius' trial in the first place. Indeed, some of the

difficulty encountered when trying to understand the charges against Caelius stems from

the fact that a charge de vi does not seem to have been entirely satisfactory or fitting for

the crimes. This trouble comes much less from the actual circumstances and details of

the alleged offenses than from other, more over-arching elements such as the social

atmosphere at the time of Caelius' trial and the ambiguities in Roman criminal law in the

Late Republic. The charges for which Caelius was brought to trial had been highly

public and clearly articulated'. Those that Cicero addresses in his Pro Caelio concern the

attempted murder of a foreign dignitary and the attempted poisoning of a woman'.

Ignoring the political and civil unrest at the time, Austin contends that a quaestio inter

sicarios et veneficiis ('court for murders and poisonings,' which was later called the quaestio de sicariis et veneficis") clearly would have made more sense in this case than a . . quaestio de vi"'. Thus the question arises of exactly why the more appropriate quaestio

was not chosen.

Indeed, at an earlier time, this question would not even have been relevant. At the very crux of the maturation of Roman criminal law, a clause de vi did not exist. During this time offenses that later would be considered de vi were taken under charges such as de maiestate ('for trea~on'~)or de sicaviis et veneficis. During his dictatorship over

' see Chapter I 2 see Chapter V for details Rome in 82-81 B.c., Sulla undertook a massive codification of the leges3~'".This

codification did not include the articulation of a clause de vi, although it did include the

articulation of a clause de sicariis et veneficis.

Under Sulla's guidance, as Schisas describes, Roman criminal law "emerged from

the darkness of previous ages into the dawn of the age of enlightenment which was to

come"". In fact, in the pre-Sullan era, to judge from previous legislationvi, criminal cases

were subject to a trial procedure that was "clumsy" and obsolescentvii. Greenidge notes

that,

criminal procedure at Rome lagged far behind the civil, and this rudeness of procedure was but an expression of the vagueness of the law. There were exceedingly good and sound reasons . . . for keeping the criminal law in this vague condition, as long as Rome remained a city state. But the fact remains that the chaotic nature of the law was reflected in the procedure and that, . . . [under the dictatorship of Sulla], thp, codification of the former was followed by a regulation of the latterv111.

This procedure for criminal trials was first defined with the lex Cdpurnia in 149 B.C.,

which was passed by the tribune Lucius Calpurnius piso'" to establish the first permanent

criminal courtx. Specifically, it established a quaestio de rebus repetundis ('court for

extortion') in response to mismanaged foreign affairs, such as the ignominious murder of

the Lusitanians by the pro-praetor of Further Spain, Sulpicius ~alba~.It extended the

duties of thepvaetovperegvinus by calling on him to serve as the magistrate of the court

who would select a consilium ('council') from an album ('list of senators')"'. The

development of criminal trials proceeded from this point.

No major codifications had taken place since the laws were written down for the first time in the form of the Twelve Tables in the mid fifth century B.c., which was merely "the codification of customary law [law based on customs]" (Girard 1906, 51). see Gruen (1968) p. 13 for further reading Criminal procedure in its earlier stages, which was designed more to accuse and determine compensation and/or punishment than to seek reparation for the wrong-doing, depended heavily on the influence and action of the populus Romanus ('Roman pe~ple')~".Trials took place before an assembly, for which reason they are referred to in modem literature as iudicia populi ('trials of the people')""'. Presumably because of the small size of the Roman community, consensus on criminal matters could be reached in an ad hoc manner, and detailed legislation was not necessary. The various magistrates wielded overlapping and uncertain power in the courts, and their rulings were case- specific and conditional on provocatio ('appeal to the people'), such that the people in centuriate or tribal assembly "decided by their votes the fate of men charged with crimes against the state""'". For example, in 212 B.C. the tribunes' judgment to fine Marcus

Postumius Pyrgensis, who was accused of defrauding the State, was overturned by the peoplex". Such methods were more befitting nascent Rome, which had housed only a small community and whose citizens could all easily have had the opportunity to participate in public affairsx"'.

Sulla recognized this fact and set about modernizing and refining the system for administering criminal justice so that it fit with Rome of the first century B.c., which had virtually exploded in size in the previous century. An increase in the number of Roman citizens had complicated the legal system and had made it much more difficult for the entire populace to be directly involved in it. Sulla therefore instituted a more bureaucratic organization. He established judicial officers and a panel of iudices

('jurors'), which was selected from the 600 eguites senator^')^, in place of the assembly

Sulla raised this number from 300 to compensate for the added judicial courts and various affairs of the State that took them away from Rome (Schias 1926, 140, 150). and provocatio xvii,xviii . The creation of iudicia publica ('public trials') in the Sullan court

system meant that "the old iudicium populi was virtually eliminated from the political

sceneflXix.Indeed, mindful of recent civil strife6, Sulla tried to support his government

with this renovated legal system, which did not place any confidence in the general

populacexx. Thus Sulla's reforms triggered a dramatic shift in the balance of judicial

power between the magistrates of the courts and the people - as the power of the former

was enhanced, the power of the latter was eroded.

However, as Greenidge points out, "in criminal process [Sulla's] new system [had]

not yet stamped out all relics of the older system; ...the new procedure [was] nearly

triumphant, but not quite,'xxi,7 . One of "relics" was the Roman prosecutor, who remained

as any private citizen wishing to initiate a criminal procedure, not a state official or

employeexxii.Consequently, the court system could not be put into motion by the

statexxiii.Cloud identifies this as a glaring weakness in Sulla's system:

A system which relies on a member of the public coming forward to prosecute an offender is likely to prove somewhat erratic. This is particularly true of a system which offers the prosecutor only minimal assistance in preparing his case. He will require a strong incentive: personal involvement, possibilities for self-promotion or the prospect of some financial advantage. In such a situation one can well imagine the discreet or popular criminal evading prosecution altogetherxx1".

Another such "relic" was provocatio, which Sulla did not successfully abolish

altogetherxxv. Indeed, the case of Rabirius proves that remnants of the iudicia populi still

remained even after Sulla's reforms, as this man was apparently condemned by Caesar but acquitted by an appeal to the people in 80 B.c."""'. Thus Sulla's reforms appear to

have taken a significant leap that fell just short of establishing a purely public (not

see Chapter I see Greenidge pp. 417-428 for further reading popular) criminal system, which would function appropriately for the Roman population

in its post-city-state era.

Like the jurisdiction over the courts, the definition of all illegal acts also required

attention due to the unchecked and haphazard accumulation of various laws, especially

ad hoc ones. Sulla therefore created seven categories under which infringements against

the law, those considered the "graver crimes ,,xxvii , would fall:

de sicariis et veneficis ('for murder and poisoning'), de repetundis ('for extortion'), de rnaiestate ('for treason'), de falsisg ('for misconduct,' with respect to trust and inheritance, forgery, and counterfeit coinage), de arnbitu ('for electoral malpractice'), de peculatu ('for embezzlement'), and de iniuriis ('for serious assault')xxviii.

Each law entailed a punishment "proportional to the gravity of the crimes ,,xxix . This act

of Sulla's was not the creative invention of Roman laws, but rather the re-working and re-

organization of them:

In general, novelty was not a hallmark of Sulla's judicial reforms. In this sphere he was essentially an organizer and a systematizer rather than an innovator. Older criminal charges were defined more precisely and in greater detail and analogous offenses were deftly combined in more comprehensive measuresxxx.

Sulla built on the existing legal institutions and enacted new statutes, the leges Corneliae, in order to define exactly what constituted these seven different crimes. He accomplished this by grouping together specific offenses or elements of offenses that shared similar qualitiesxxxi.Thus each of his codified statutes covered an offense that included "a range of offenses, a framework"xxxii.Additionally, whereas beforehand the people had had the job of elaborating and clarifying the details of a charge, under Sulla's new regulations the

This law was originally known as the lex testmentaria. court magistrates now assumed this responsibility as arbitrators empowered with considerable judicial discretionxxxiii.

Thus, in an attempt to remove the potential for variation in the law, Sulla outlined a set of broad procedures, reminiscent of a general template, along which every criminal trial would proceed. His reforms called for the establishment of the system of

, 9,xxxiv quaestiones perpetuae ('permanent jury courts ) - to each specifically defined category of offenses, Sulla dedicated a quaestio. Although certain courts, such as those de maiestate, de sicariis, and de repetundis, had existed at Rome for a long time, they had never before been permanently established or standardizedxxxv~xxxvi. Sulla's quaestiones perpetuae, each composed of a separate elevated wooden platform located in the Roman for~lrn~~~~~~,"effectively replaced the assemblies as criminal courts"xxxviii.

For each quaestio Sulla provided a praetor to serve as the magistrate presiding over all trials held in that specific For this reason Sulla raised the number of praetors to eight1' and kept them in Rome, as opposed to in their provinces as beforex'.

This number of praetors is assumed to have been sufficient for assigning one to every quaestio; however, it seems that nine praetors would actually have been necessary in order to accommodate all seven of the quaestiones and simultaneously maintain the two additional positions of the praetor urbanus, which was the oldest praetor office (it was created in 367 B.c."")""', and the praetovperegrinus. It is possible that lesser courts (such as the quaestiones de falsis and de pec~latu)~~shared a praetor or that the positions of

- - Quaestio originally meant 'inquiry,' but it came to mean 'court' (Lintott 1999, 157). 'O Though Pomponius states, "Deinde Cornelius Sulla ... Praetores quatuor adiecit" ('then Sulla ... added four praetors') to the four existing when Sicily and Sardinia were added to the empire around 227 B.c., Schias argues that Sulla must only have added two because Dio Cassius states that Caesar added two to make a total of ten praetors (Schias 1926, 102, 129). 11 Jones identifies the quaestiones de repetundis, ambitu, sodalicia, and maiestate as the "politically important" courts (Jones 1972, 59). praetor urbanus and praetor pevegrinus were combinedI2. However, current scholarship

does not point to these possibilities, nor does it explain or even recognize this

discrepancy between the said number of praetors and the number of praetors theoretically

needed in the Sullan era13. Regardless, Sulla clearly provided Rome with new legal

machinery that was much more substantive and stable and much less open to

manipulation than that before it (although it was by no means free of instability, as will

be discussed at length later).

Sulla's reforms marked a tremendous advance from the old criminal system, and

they left a legacy, in truth his "most enduring" legacyx1'",that lasted for the remainder of

the Roman empire14. This is especially noteworthy because almost all of the reforms that

Sulla enacted during his dictatorship were repealed after his death - only his changes to

the legal institution of Rome were preserved. Despite some amendments, such as lex

Tullia de ambitu in 63 B.C., and some additions, such as the quaestio and lex Plautia de vi,

in general Sulla provided a framework which served as the stable foundation of Roman

codified lawx"":

Some of his leges Corneliae survived under their old name, embedded in the jurisprudence of the principate; others were remodeled into leges Juliae either by the dictator Caesar or by ~u~ustus"'".

The importance of Sulla's modernization of the Roman legal system is thus highlighted by its persistence through post-Sullan times.

l2 see Lintott (1999) pp. 11, 107 l3 However, J. Balsdon reminds us that "whether or not all the praetores were presidents of courts, we do not know; in the period 80-50 B.C. we only know the names of six praetores de repetundis, two de peculatu, three de ambitu, two de maiestate and three de sicariis; 16, that is, out of a possible 240" (Balsdon 1939, 59). l4 Interestingly, Watson notes, "the four men who achieved exclusive power in the first century B.C. [Sulla, Pompey, Julius Caesar, and Augustus] were all proponents of extensive law reform" (see Watson pp. 95- 100). In the Sullan era, before the existence of any lex de vi, the lex Cornelia de sicariis

et vrnefici~'~would have applied best to Caelius' alleged crimes. The origins of this law

lie in the separate legal procedures de veneficis, de sicariis, and de parricidiis ('for

parricide')16, all of which were incorporated collectively under Sulla's reforms17.

Initially it imposed the penalty of mandatory exile (aquae et ignis interdicitio)18 for murders and attempted murders within Rome or within a mile outside the city limits, both

on the public roads and in private residencesx1"'. Ulpian quotes the law as stating, "ut praetor quaerat de capite ejus qui eum telo ambulaverit hominis necandi causa" ('that the praetor may seek the head of him who walked around with a weapon with the purpose of killing a man')"'"". In lieu of this final phrase, Riggsby notes that, "the text of the lex

Cornelia refers only to intentional homicide [not accidental homicide] ,,xlv111 . In addition, this law contained a clause concerning poison, which Cicero quotes in his Pro Cluentio:

'6iubet lex ea, qua lege haec quaestio constituta est, iudicem quaestionis, . . . quaerere de veneno . . . quicumque fecerit, vendiderit, emerit, habuerit, dederit" ('this law, by which this court is established, orders that the judge of the court inquire about poison.. . who has

, 19,xhx made, sold, bought, possessed, administered it ) .

Furthermore, the competence of the lex de sicariis et veneficis extended to individuals indirectly connected to a murder, such as those individuals who had given l5 "D. XLVII. I. I (Macer): Non omnia iudicia, in quibus crimen vertitur, et publica sunt, sed ea tanturn, quae ex legibus iudicorumpublicorum veniunt ut . .. Cornelia de sicariis et veneficis. . . . Iust. Inst. I. 4. 18. Cic. Pro Cluent. LIV.148: Iubet lex ea, qua lege haec quaestio constituta eat, iudicem quaestionis, hoc est Q. Voconium, cum iis iudicibus, qui ei obvenerint (vos appellat iudices) quaerere de veneno. Collatio Leg. Mos. Et Rom. XII.5 (Ulpianus, Libro VIII): De . .. incendiaries lex quidem Cornelia aqua et igni interdici iussit" (Schias 1926, 130); see Chapter VII for discussion of this law as it appears in the Digest l6 There is a reference to a quaestio de sicariis that existed as early at 142 B.c., and there are multiple instances of the use of a quaestio de venficis in the first half of the second century B.c.; a quaestio de paricidiis existed as early at the fifth century B.C. (see Chapter VI) (for details see Riggsby (1999) p. 50). l7 see Gruen (1968) pp. 261-262 l8 This is also a sign of the development in Roman law, as beforehand, fines were much more commonly used as punishment (Mommsen 1905,68). l9 see also Cicero Pro Cluentio, 151, 154 false testimony or had given or accepted a judicial bribe such that someone had died2','.

It later came to include arson, magic, abortion, castration", instigation of public riots, and failure to report ~hi~wreclts~~'.Gruen states that,

consolidation of procedure for all analogous crimes, not innovation, was the keynote [of the lex Cornelia de sicariis et verzeficis]. Sulla reorganized and stabilized previously existing procedures, placing them all under a single piece of detailed legislation"".

Thus this was an umbrella law with "wide terms"liVthat covered those acts that, as Lintott elucidates, created "a climate of violence, [and] could have grave consequences for society"'". Indeed, Riggsby finds that the word sicarius should largely be considered to mean something like our modern-day "'gangster"'1vi as opposed to a simple 'murderer.'

In this way the overriding purpose of the lex de sicariis et veneficis seems to have arisen as public safety in general through the safeguarding of lifeIviiJviii .

For these reasons, Caelius' supposed crimes appear to fit better into the technical claims of de sicariis et veneficis than into those of de vi. The lex de sicariis et veneficis, unlike the lex de vi, was explicitly specific for attempted murder and poisoning, which were the main charges against Caelius. The three lesser offenses involving the theft from

Palla and public disturbances in Naples and Puteoli should not have come before a quaestin in Rome at all2'; however the wide breadth of the lex Cornelia de sicariis et veneficis could have compensated for this because it "made reasonable the prosecution of related crimes before one court, whereas too narrow a definition would have demanded successive charges before different quaestiones""x. In this way it was entirely plausible and appropriate for the minor charges to be taken along with the main charges in a trial de sicariis et veneficis.

20 This is known as 'tjudicial murder" (Riggsby 1999, 53). 21 see Chapter I

55 However, L. Atratinus, P. Clodius, and L. Balbus chose not to let the main

charges against Caelius determine the law under which they wanted to bring their

prosecution - they did not indict Caelius under the lex de sicariis et veneficis. Instead,

even though both in name and competence the lex de sicariis et veneficis seems to have

been a better match for his criminal trial, the prosecution used the lex de vi to prosecute

Caelius. Austin believes that the prosecution wanted to take advantage of "the undoubted

tendency of the time [that had widened] the official scope of the [lex de vi] " such that

Caelius' case could be brought under it1". To offer possible explanations for why a lex de

vi appeared desirable and why a lex de sicariis et veneficis was disregarded, Austin cites

the importance associated with cases de vi'*'. Perhaps the prosecution wanted to heighten

the significance of the trial by using an indictment de vi. Also, unlike all other criminal

trials, trials de vi could be held even during festivals like the ludi Megalenses. Thus an

indictment de vi could have brought about the prosecution of Caelius sooner than one de

sicaviis et veneficis. This difference seems to have been notable, especially considering L.

Atratinus' immediate goal of interrupting Caelius' prosecution of his father.

In addition, in the mid-first century B.c., vis was a "trendy" prosecution, since so

many cases de vi had taken place at this time. In particular, vis was the indictment of

choice for Catilinarian conspirators (who had most often been condemned under it), so

perhaps the prosecution hoped to associate Caelius with this Catilinarian "stigma" (which

Cicero tried to avoid by promoting the lex Lutatia over the lex Plautia de vi in his defense

speech, as discussed earlier22). Thus factors other than legal standards went into the

decision of how to indict Caelius. In this way Caelius' case, which took place about twenty-five years after Sulla's codification, provides a specific illustration of the limits of

22 see Chapter I11 the Late Republican legal system - despite all of its corrections of the earlier Roman legal system, some potential for manipulation and variation remained, and Caelius was brought to court for vis, not the most appropriate law.

' Gardner 1958,404 " Cook et al. 1932,879 "' Austin 1901, 153 '" Greenidge 1901,423 " Schisas 1926, 128 "' Cook et al. 1932, 876 "" Cook et al. 1932, 873 ""' Greenidge 1901,5 '" Schias 1926, 125 " Gruen 1968,6 "' Schias 1926, 149 "".. . Cook et al. 1932, 304, 876 ""' Cloud 1994,503 "'"Taylor 1949, 98 "" Greenidge 1901, 328 ""' Cook et al. 1932, 304 """ Cook et al. 1932, 876 """'kintot: 1999, 155 "'"Gruen 1968,277 "" Schias 1926, 171 Greenidge 1901, 10 Cook et al. 1932, 877 """'Greenidge 1901,416 ""'"Cloud 1994 528 """ Greenidge 1901,4 16 """' Schias 1926, 18 1 xx"ii Cook et al. 1932, 307 """"' Greenidge 1901,423 ""'" Schias 1926,43, 129 """ Gruen 1968,264-165 xxxi Greenidge 1901,423 xxxiiRobinson1995, 2 """"' Cook et al. 1932, 307 xxx'v Robinson 1995, 1 """" Schias 1926, 122 xxx"i Cloud 1994,516 xxxvii Taylor 1949, 98-99 xxxvii' Cloud 1994,497 xxxix Robinson 1995, 1 "' Schias 1926, 103 "Ii Girard 1906, 63 "Ii' Watson 1974, 63 "Iiii Cook et al. 1932, 308 """ Robinson 1995,3 "'" Strachan-Davidson 1912,21 "I"' Greenidge 1901, 407 "Ivii Strachan-Davidson 19 12,23 x'viii Riggsby 1999, 55 """ Cicero Pro Cluentio, 148 Robinson 1995,43 li Cook et al. 1932, 879 lii Jones 1972, 106 liii Gruen 1968,262 Iiv Strachan-Davidson 1912,34 '" Lintott 1968, 125 '"' Riggsby 1999, 54 I"" Robinson 1995,43 Iviii Cook et al. 1932, 879 IiX Robinson 1995,74 '" Austin 1960, 153 I"' Austin 1901, 153 Chapter V. The Development of Ambiguity in Leges de Vi

Theoretically, the Roman legal system, as updated by Sulla, called for the

anticipation and classification of the full range of human actions with specific and clearly

distinguished laws. However, although it worked on a broad level to provide a backdrop

of general legal definitions, this system could not possibly have applied to every

circumstance or every infraction. As Lintott expresses, "theory and practice were liable

to differ"'. Without a mechanism to ensure some degree of consistency, this system left

room for extensive interpretation and variation of the use of the laws, and so it suffered

from such vulnerability".

Consensus on the law had to be reached in an ad hoc manner. For example, as

Cicero explains in his De Znventione Rhetorica, "primus ergo accusatoris locus est eius nominis" ('first the prosecutor must define the crime that forms thc basis of the charge iii )iv , and so each Roman prosecutor had the potential to shape the application of a law to some extent. The praetor urbanus or the praetorperegrinus, if a non-Roman citizen was concernedv, had similar influence, as he had to grant permission for a plaintiff's suit to become a formal legal action'^"'. This reliance on human assessment consequently insured ambiguity in the legal system through both "interpretation and

A 'misfit' case (one which did not fall neatly under any of the original legislation) did not usually result in the revision of existing legislation. Instead, the Romans deaIt

1 Also, this praetor was involved in the definition of a lawsuit by laying down a 'tformula" particular to each trial that established the conditions that needed to be satisfied for an acquittal or conviction. Lintott paraphrases a general formula by saying, "'If such and such be proved, let the judge condemn, if not, absolve"' (Lintott 1999, 147-148). with it either by squeezing it to fit under an already existing law, without officially

modifying that law's provisions, or by adding on a new law that superceded an existing

one. This either extended the scope of a law in practice or created confusion due to the

existence of two similar laws or did both. Overall the adjustments made to the Roman

legal system over time, as new offences arose, followed the dynamics of chaos - the

boundaries of the laws ran together and overlapped. The adjustments that accommodated

'misfit' cases came to dominate and define the system to a degree that seems extreme to

us today, and they cloud our modern understanding of how Caelius should have been

indicted.

The Roman laws for vis, sicavii et venefici, and maiestas2 had been adjusted for

'misfit' cases to such an extent by the time of Caelius' trial that all of them seem to have

been potentially applicable, at least to some degree, to Caelius' alleged crimes. The

formal definitions of these words did not overlap (according to what we understand their

ancient meanings to have been), but the interpretations, which developed as the Romans

used them to classify criminal acts, paved the way for them to become more closely

related and share similarities in meaning. Although these three laws by no means became

interchangeable, there was enough common ground between them to blur their formal

boundaries.

Over time, different occasions challenged the definitions of these leges de vi, de

sicaviis et veneficis, and de maiestate. When a 'misfit' case arose, new courts did not

need to be formed where the existing ones could be put to use. Watson elucidates this

process of evolution:

2 The lex de iniuriis could also be included here, as it was originally taken care of in the quaestio de sicariis et veneficis (Cloud 1994,525). First the deliberate, conscious use of existing procedure at the in iure stage (i.e. in front of the magistrate) to procure an effect other than that originally envisaged for the procedme. Secondly, the development of new forms of action . . . which in time would be stabilized and the formulae of which would come to be published.. . . Thirdly, the ad hoc granting of actions which were not envisaged by law or in the Edict [of a magistrate], when this seemed desirable, and likewise the refusal. . of a remedy created by law or Edict when this was considered properv"'.

The lex Cornelia de sicariis et veneficis, as discussed earlier, originally set out to

maintain public peace3, but was quickly extended to cover "ordinary murder," both of

which issues were also addressed by the lex de vi'". Maiestas was a decidedly vague legal

concept" almost as old as Rome itself, which was originally geared toward regulating the

provinces of Rome and dealing with crimes 'diminishing the majesty of the Roman

People'"'. However, this word came to be used according to a "vague notion of its

[original] sense""" for any action taken against the empire, even one committed by

residents of Rome. Thus maiestas "overiaps with vis, since, at ieasr eventually, ii came to

include sedition which had been a part of vis from the beginningnsiii. Hence, in part out of

convenience and in part out of necessity, the jurisdiction of the lex de sicariis et veneficis

and lex de maiestate expanded and came to be largely superceded in practice by the jurisdiction of a succession of leges de vi, although there were no formal revisions of the

original lawsxi"

The first known lex de vi, the lex Lutatia, enacted a few years after the leges

Comeliae to deal with the Lepidan insurrection5, set the precedent that legislation de vi

. ..dealt specifically with, first, armed attack on the Senate or magistrates, second, with seizure of public places - compare the way modern revolutionaries take over radio and TV stations - and third, probably, with going armed in public, qualified most likely as contra rem publicamxv.

see Chapter IV It may have originated under Rome's very early rulers (in the form of the word, perduellio, at that time); see Schias pp. 7-13 for further reading. see Chapter I11 for details This definition, especially the final phrase, could also be considered maiestas. Indeed,

Cicero identifies Lepidus' uprising as "caedem hanc ipsam contra rem publicam . . . factum esse" ('this slaughter itself was done against the State')""'. Likewise, Cousin finds that the precise definition of laws de vi lies in "vis contra privatos . . . [and] vis contra rpm publicam"xvii. Cicero7smention of caedem should also make the act compatible for a charge de sicariis et veneficis. Accordingly, the lex Lutatia exhibited notable overlap with the earlier laws.

Thus began a trend of such occurrences, which were regarded as contra rem publicam, and concerned murder, but were classified as offenses de vi - there were numerous trials that occurred a decade or two after the Lepidan insurrection that could have been brought under a lex Cornelia de sicariis et veneficis or de maiestate, but they were actually bought under the lex Plautia de viXViii.For example, the Catilinarian conspirators were indicted under the lex Plautia de vi for their exploits, which included murders and were termed "contra rem publicam" by Cicero and Sallu~t"'~.Milo too was brought to trial for the murder of a very politically significant figure (Clodius) under the lex Plautia de vi6. Thus it seems to have been a tendency of the time to lump under a charge de vi those ". . .crimes of violence having previously only been punished when they could be brought under the head of maiestas or of the crimen de sicariis et veneficis.. .""". Quintus Mucius remarks on the general definition that vis acquired when he says that it came to mean simply, "something [that] was done by force, vi, when a person did it who had been told not to"""'.

Caelius' trial provides an excellent example of how fluid the legal definitions of these three central legal concepts and the laws that embodied them had become. It has see Chapter VI for details already been shown how Caelius could (and perhaps should) have been charged under a lex de sicariis et veaeficis, since he was accused of attempted murder and poisoning7.

Similarly, Caelius' attempted attack on a foreign diplomat, Dio, and on the Alexandrians at Puteoli, as well as his incitation of the people in Naples could all also have fallen under a charge de maiestate, since they were acts abusive to the State. Caelius' poisoning of

Clodia would have been relevant under this charge too because she was the sister of

Clodius, a powerful political figure at the time who had shifting and incendiary political loyalties8. In fact, Cicero makes great efforts to ensure that the court is aware of how intimately Clodia and her brother were linked, when he coyly refers to Clodius in his Pro

Caelio as "istius mulieris viro -fratre volui discere" ('that woman's [Clodia's] husband

- I meant to say br~ther')"~",which plays up the association between Clodia and her brother. Cicero also attempts to demonstrate how Caelius' actions could be construed in general as de maiestate: with his important reference to the lex Lutatia, Cicero claims that

Caelius has been brought to court under a law pertaining ". . .ad imperium, ad maiestatem, ad statum patriae" ('to the rule, to the majesty, to the state of our c~untr~')~~"~"'.On the whole, it appears that Caelius' actions could have been examined just as easily in a quaestio de maiestate as in one de sicariis et venejkis or one de vi". The ability of these three different Roman laws to apply to Caelius' case demonstrates the extent of their overlap by the mid-first century B.C.

7 see Chapter IV see Chapter I for details see Lintott (1968) pp. 116-117 for further reading 10 As little is known about the theft from Palla, it is difficult to determine whether it could have been considered an offense against the State or whether it was simply grouped as a minor charge along with the other more significant ones. Within Cicero's Pro Caelio there exists a reference to the lack of stability in

ascribing legal indictments. Cicero proclaims:

Atque hoc etiam loco M.Camurti et C. Caeserni damnatio praedicatur. 0 stultiam! . . . Qui quamquam lege de vi certe non tenebantur, eo maleficio tamen errant implicati, ut ex nullius legis laqueis eximendi viderentur

('And here also the condemnation of M. Camurtus and C. Caesernus is made known. 0 what foolishness! . . . Although they certainly should not have been held by a law of violence, they were still implicated in this crime, so that they seemed not at all likely to be released from this snare of the law')"xi".

Thus by offering an example of the misuse of the lex de vi, Cicero reveals his own

understanding that this law was so broad that many people attempted to fit all sorts of

cases under it. Interestingly, not only does Cicero provide a concrete example of the

broadening of legal definitions in Rome of the Late Republic, but he also implies that the jurors had some famiiiarity with the issue of ambiguity and lack oL' consisie~icyiii the

laws as well. Cicero uses this story, obviously common-knowledge to his audience in

court (due to the lack of descriptive information), to prove that Caelius has been mis-

charged and so should not be liable under a law de vi: Cicero asks,

M.vero Caelius cur in hoc iudicum vocatur? Cui neque proprium quaestionis crimen obicitur nec vero aliquod eius modi, quod sit a lege seiunctum, cum vestra severitate coniunctum

('Truly why is M. Caelius summoned before this court? Neither is a charge that is appropriate to this court brought against him, nor truly would any charge of this kind, which is outside the scope of this law [de vi],be relevant [to Caelius' alleged offenses] to your severity')""".

Unfortunately, there are no other known mentions of M. Camurtus or C. Caesernus, so no further judgment can be passed about why they should not have been indicted under this law

Evidence of the overlap between Roman laws also lies in the employment of praetors in the legal system. Originally, one lex was examined in one quaestio that was presided over by only one praetor (for one year), yet this one-to-one correlation became

distorted as time passed. The establishment of new permanent courts, such as the

quaestio de vi, in addition to those of Sulla resulted in a praetor shortage, as there were

not enough praetors to preside over all of the quaestiones perpetuaexxvi. This problem

was exacerbated when, on occasion, praetors were called away from their courts if an

urgent military situation demanded attentionxxvii.To compensate, more praetors were

installed, and people other than praetors assumed praetorial roles in the legal

matters ll,xXviii.These "substitute praetors," often ex-aedilesxxix,were called

quaesitores12,xxx . This redistribution of praetors among different courts led to more

blurred legal boundaries and hence more fluidity between courts. As Greenidge

explicates,

The groups of quaestiones, or of their parts, might be readjusted every year, and the praetors must be regarded as a group of High Court judges who distribute the courts amongst themselves, or have them distributed by the Senate, for the coming year, according to considerations of convenience. The introduction of a new court might at any time add to the work of a departmentxxx'.

Hence, overlap in the jurisdiction of different praetors seems to have paralleled the

overlap in laws.

The records of multiple judges presiding over the same court in the same year provide evidence for praetor overlapxxxii.For example, in 54 B.C. Gaius Alfius Flavus

served as praetor in the trial of Aulus Gabinius and later in the trial of Gnaeus Plancius in quaestiones de maiestate and de sodalicia, respectively xxxiii , while at the same time another man, Servilius, was also said to be serving as praetor in the quuestio de sodaliciaxxxiv.Similarly, in 66 B.C. three different people were said to be associated with

l1 For example, Caesar served as quaesitor de sicariis in 64 B.C. (Balsdon 1939, 59). l2 see Jones p. 128 for more examples jurisdiction over the quaestio de sicariis et veneficis: in his speech defending Aulus

Cluentius Habitus from charges of poisoning his father-in-law, Cicero declares, "Quid

est, Q. Naso [the magistrate presiding over A. Habitus' case], cur tu in isto loco sedeas?

. . . huec quaestio sola ita gubernatur? quid M. Plaetori et C. Flamini inter sicarios?"

('What is the reason why you, Quintus Naso, sit in that seat of yours? . . . Is this the only

court thus presiding? What of Marcus Plaetorius and Caius Flaminius in the court for

murderers?')xxxv. Although Jones interprets this as indicating the existence of three

courts (two de sicariis and one de veneficis) that each dealt with infractions of

murderxxxv',Cicero may, in fact, be speaking of multiple people who all served as praetor

in the same court.

Indeed, Caelius' was one of two trials that were held under the auspices of two

different praetors in the same court xxxvii . In 56 B.C. Gnaeus Domitius Calvinus presided

over the trial for Caelius, while Marcus Aemilius Scaurus presided over the trial of

Sestius, who was also charged with vis. This is further complicated by the fact that Cn.

Domitius also served as praetor in the quaestio de ambitu in 56 B.C. No direct evidence

is available to explain these complications. Greenidge speculates that there may have

been two quaestiorzes de vi because of the lex Pluutia and lex ~utatia"~~"~~',though it is

not definite that the lex Lutatia was still in effect at that time or in existence as a separate

lawi3. It may be that two cases de vi arose, and the magistrate de ambitu was called in to

alleviate the extra pressure in the de vi division. Or perhaps one praetor became sick or

otherwise incapable of working, and so another praetor assumed his responsibilities.

Regardless, the use of the same praetors in different courts and different praetors in the

same court promoted the fluidity between laws.

l3 see Chapter I11 The ambiguity embodied in the Roman legal institutions of the middle of the first century B.C. becomes apparent from examining the legal particulars and background of

Caelius' trial. This ambiguity can be considered from two opposite perspectives, as advantageous or disadvantageous: one might argue that the task of a Roman prosecutor was made easier by the multiple options available to him in selecting an indictment, or one might argue that his task was made especially challenging by the existence of more than one law that presented itself as a good match for the crime or set of crimes, and hence selecting one law would have been a complicated and strategic maneuver. Though not enough information survives for us today to determine exactly why Caelius was charged under a lex de vi instead of another applicable law such as the lex Cornelia de sicariis et veneficis or de maiestate, Cicero's devastating rebuttal of the prosecution's case must have left the prosecutors wondering if they would have stood a better chance for a conviction under a different law and in a different court.

' Lintott 1968, 130-131 " Lintott 1999, 64 "' Alexander 2002, 13 iv Cicero De Inventione Rhetorica, ii.53 " Lintott 1999, 147 "' Lintott 1999,96 "" Jones 1972, 106 ""' Watson 1974, 88 '"Robinson 1995,43 " Lintott 1968, 118 "' Schias 1926, 3 "" Schias 1926, 12 ""' Cloud 1994, 5 18 "'" Robinson 1995,43 "" Robinson 1995,78-79 ""'Cicero Pro Milone, 13-14 """ Cousin 1923, 92 """' Lintott 1968, 118 "'" Lintott 1968, 112, 116, 165 "" Cornish 1898,752 ""' Lintott 1968, 127 """ Cicero Pro Caelio, xiii.32 """'Cicero Pro Caelio xxix.70 ""'" Cicero Pro Caelio, xxx.71-72 """ Cicero Pro Caelio, xxx.72 """'Berry 2000, xxvi """" Balsdon 1939, 59 xxviii Schias 1926, 145 Jones 1972, 58 ""'Schias 1926, 146 """ Greenidge 1901,429-430 xxxii Schias 1926, 146 xxxiii Greenidge 1901,430 xxXiv Jones 1972, 59 xxxv Cicero Pro Cluentio, 147 xxxvi Jones 1972, 83 xxxvii Greenidge 1901,430-431 xxxviii Greenidge 1901,43 1 Chapter VI. A Comparative Look at Caelius' Indictment

The particular nature of Caelius' indictment on five counts of vis in 56 B.C.

requires further investigation. At least to a modern reader, it seems bizarre that five

separate offenses, especially ones that occurred on different, unrelated occasions and

ones that do not seem to fall perfectly under the definition of a lex de vi, were considered

together in a quaestio de vi. Detailed examination of the alleged crimes themselves and

of the law itself does not produce definitive clarification of these issues, but rather reveals

that there is a certain degree of ambiguity surrounding Caelius' indictment. Therefore, it

may be useful to look at other cases from Caelius' era that dealt with similar crimes to

provide points of comparison.

Accordingly, these issues concerning potentially inappropriate charges and

concerning charges grouped together will be reviewed using examples from other contexts, namely, the trials of Publius Cornelius Sulla, Titus Annius Milo, and Sextus

Roscius Amerinus. All of these trials, in which Cicero served as a defense advocate, took place within ten years of Caelius' and addressed crimes similar to those of Caelius. They illustrate that the ambiguity present in Caelius' indictment was not particular to his case alone, but rather is indicative of the potential for ambiguity that characterized the Roman legal system of the Late Republic in general.

Publius Cornelius Sulla

The indictment of Publius Cornelius ~ulla',a "professional ruffian"', as Lintott names him, reveals that the lumping of multiple charges under one law and into one trial

' a nephew of the great dictator and Pompey's brother-in-law

69 was not a strange or exceptional aspect of Caelius' indictment. Like many of the

Catilinarian conspirators and like Caelius, P. Sulla, who had supported Catiline and formed a gang to contribute to the turmoil and violence of the 60's B.c., was charged under the lex Plautia de vi2. Having already been convicted under the laCalpurnia de ambitu by Lucius Manlius Torquatus senior in 66 B.c., P. Sulla was prosecuted again by his son, Lucius Torquatus junior, in 62 B.c."'~. This time P. Sulla was called into the quaestio de vi for multiple specific offenses from two incidents that occurred three years apart; thus like Caelius he faced multiple counts of vis in one trial.

As Cicero notes, this was quite literally an instance of "magnitudini criminis"

('the enormity of a charge')"' because P. Sulla was charged for so many different offenses. P. Sulla was called to trial for what Cicero calls the "crimen coniurationis"

('charge of conspiring')'", although this was not the formal charge (vis was), concerning his participation in the first Catilinarian conspiracy of 66 B.C. and the second Catilinarian conspiracy of 63 B.C.

Duae coniurationes abs te, Torquate, constituuntur, una quae Lepido et Volcacio consulibus patre two consule designato facta esse dicitur, altera quae me consule; harum in utraque Sullam dictis fuisse

('You say that there were two conspiracies against you, Torquatus, one which was made when Lepidus and Volcacius were consuls and your father was consul elect, and the other which was made when I was consul; you say that Sulla was involved in both')".

There were various charges that were addressed by Sulla's other defense lawyer, Quintus

Hotensius Hortalus, about which we know of nothing except their mere existence. Cicero dealt with at least three separate charges: that P. Sulla had acted in collaboration with

2 In fact, the Catilinarian conspiracy was the occasion for which this law was used the most (Sallust Bellum Catilinae, 3 1) The trials of both Caelius and P. Sulla were strongly influenced by family - and specifically father and son - dynamics. Caelius had prosecuted L. Bestia and then was prosecuted by L.Bestia's son. The prosecution of P. Sulla seems to have almost been handed down from father to son. Together these two cases exhibit how family and law overlaped and at times merged in Roman public life. catilineV'(and concurrently that he had been identified by the Allobroges as being a

conspiratorvii),that he bought gladiators ('gladiators') for Catiline to usev1",and that he

had forced some people in Pompeii to join the Though a11 of these

incidents and acts clearly fall under the definition of the lex Plautia de vi, the great

amount of time between them makes it somewhat strange that they were all addressed in

one trial.

Thus, despite our imperfect understanding of P. Sulla's indictment, we know that

his trial covered many charges, which implies that Caelius' trial was not an anomaly for

similarly addressing multiple charges. Together these two trials indicate that the lumping

of loosely related charges - those which covered offenses from entirely separate

occasions - seems to have been a feature of at least some cases in the mid-first century

B.C. As discussed earlier5, such lumping of charges contributed to the ambiguity into the

Roman legal system.

Titus Annius Milo

The trial of Titus Annius Milo offers a contrast to that of P. Sulla and that of

Caelius. Unlike the other two defendants, Milo was not indicted for multiple offenses in a single indictment, but rather he was indicted for two offenses, which were each addressed twice, in four separate trials. Beginning on April 4, 52 B.C., Milo sat at trial in a quaestio de vi before the magistrate Lucius Domitius Ahenobarbus. Cicero spoke on his behalf on April 8, but on that same day he was condemned by a vote of 38 to 13'; he therefore immediately went into exile in Massilia. However, he then continued to face

"Pornpeianos esse a Sulk irnpulsos ut ad istarn coniurationern atque ad hoc nefariurn facinus accederent" ('that the people of Pompeii were driven by Sulla to join that conspiracy and that wicked crime') see Chapter V other charges, but in other courts, although Milo himself was not present at those trials.

Asconius relates how.

on the following day [after the trial under the lex Pompeia de vi] Milo was arraigned for corruption before Manlius ~or~uatus~,and condemned in his absence.. . . A few days later Milo was condemned on a charge of illegal association.. . . Following this a second conviction for assault was given against himx'.

Thus in addition to the lex Pornpeia de vi (for the murder of Clodius, which will be

discussed shortly), Milo was next prosecuted under the lex Pornpeia de ambitu for his

allegedly corrupt electoral practices. Then Milo was prosecuted under the lex Licinia de

sodaliciis, which "in effect, sharpened the notion of ambitus""", for his alleged attempts

to corrupt or intimidate voters with organized groups of peoplexiii'xiv.And finally, Milo

was also prosecuted under the lex Plautia de vi again for the murder of ~lodius~,"~.Thus

even though there was tre11.,endous overlap in the fnm laws under which Milo was tried

(two for violence and two for electoral corruption), the charges were still separated into

individual trials8.

This practice of dividing up charges into separate trials - both in place and time -

was not employed in the case of either P. Sulla or of Caelius, and indeed it was avoided

in those instances by lumping the charges together under a single law and into a single

trial. Hence the occurrence of Milo's case, which involved the alternative to Caelius and

Milo's type of indictment, shows that lumping of charges was not a consistent or required

action in the Roman legal system. This indicates that there was no one fixed method for

structuring or undertaking a prosecution in the mid-first century B.C. Thus again, ambiguity appears to have been a hallmark of the Late Republican legal system.

the same prosecutor as for the trial of the lex Pompeia de vi Milo's lieutenant, Marcus Saufeius, also faced charges under both the lex Pompeia de vi and the lex Plautia de vi. 8 Milo was condemned on all of these occasions (he was condemned in absentia in all except the first). In addition to the mere presence of ambiguity, Milo's case also provides evidence for one source of such ambiguity. No strict legal procedure was responsible for shaping the prosecutions of Milo, but rather, varying other motives or interests wielded some influence. The case of Milo, which took place in the same atmosphere of civil strife that

Caelius experienced9, exhibits the blending of law and extra-legal factors such as politics and the state of society at the time of trial. Milo's case largely stemmed from the political battle between Milo, whom Gruen describes as "driven to morbid ambition and addicted to violence"xv1,and Clodius. Having (unsuccessfully) indicted Clodius under the lex Plautia de vi in 57 B.C., Milo had brought his gangs into the streets of Rome and triumphed over Clodius by procuring the return of Cicero from exile, which Clodius had arranged in 58 B.c.)""". Although there was a lull in the conflict for a few years, the situation dissolved again in 52 B.c. The elections for consul that year, in which Milo faced Quintus Caecilius Metellus Scipio and Pubius Plautius Hypsaeus, both of whom

Clodius supported, had roused a great deal of controversy, and had been interrupted on numerous occasions by riotsxv1i1.At last "the confusion was climaxed," Gruen narrates, when Milo and Clodius met on the afternoon of January 18 on the Via Appia above

Bovillae lO,x1x . A brutal skirmish ensued, beginning with verbal taunts and developing into an exchange of blowsxx"', in which Clodius was stabbed many times and there killed, not by the hand of Milo, but supposedly by Milo's supporters, if not directly by his ordersxx1.

The violence advanced into riots tearing through the streets of Rome. The Curia was

see Chapter I lo Milo was traveling with his wife Fausta to Lanuvium, his birthplace and the seat of his position as chief magistrate, to nominate a priest of Juno; Clodius was returning from a town-council meeting in Arcia (Poynton 1902, xii); see the commentary of Q. Asconius for further reading. I I This was a large-scale affair, as it involved slaves from both sides who were armed and ready for battle (Milo had even recruited gladiators such as the renowned Eudamus and Birria) (Lintott 1968, 67). burned to the ground from a funeral pyre built for ~lodius~~",and the house of Lepidus12 was assaulted.

After great turmoil, Pompey, then the sole consul at the time, finally regained control of Rome by passing a senatus con.sultum ultimatum1'), and Milo was brought to trial, while fear generated by the recent civil disturbances still prevailing. Therefore, "to cleanse the city of the disruptive elements that had produced the chaos of recent months"xxiii,Pompey passed two new laws with the approval of the Senate. The first, the lex Pompeia de vi, was directed specifically at the murder of Clodius, the burning of the

Curia, the siege on the house of Lepidus, and other violent acts related to Milo, which were all explicitly referred to in the text of the law. The second, the lex Pompeia de ambitu, was enacted specifically for Milo's corrupt electoral practices14. The leges

Pompeiae had a decidedly ad hoc naturexx1v,and their specificity to Milo's outbreak was such that they "would not have affected the normal working" of the lex Plautia de vi or the lex Cornelia cle ambitu, which were in statutory force at the time and applicable to

Milo's actionsxxv- they did not invalidate the earlier legislation. His new laws, Pompey hoped, would avoid lengthy and unpleasant turmoil, which he predicted the lex Plautia and lex Cornelia would have invitedxxv'. The leges Pompeiae shortened the trial procedure and simultaneously sharpened the penaltiesxxv1i.

Indeed, no reason other than the prosecution of Milo seems to be apparent for the ad hoc passage of the leges Pornpeiae. In his Pro Milone Cicero chastises the legislative body for the presence of such superfluity in the law. He declares that, "enim leges errant

12 who was then the Interrex l3 This action enabled Roman soldiers to enter Rome, which set a precedent for non-civil-war times (Lintott 1968,91). l4 This law was more enduring than the lex Pornpeia de vi (Gruen 1974,237). quaestiones vel de caede vel de vi, nec tantum maerorem ac luctum senatui mars P.

Clodii adferebat, ut nove quaestio constitueretur" ('for there were laws, there were courts

both for murder and for violence, and the death of Clodius should not have incurred such

, xxviii grief and consternation to the senate that it should have established a new court ) , and

he avidly protests against establishment of such a nova quaestioxxix.Cicero presents

Pompey's decision to pass new legislation as an act of desperation, a way to cast " falso

. . . in Milonem" ('slander against Milo')""" and gain the necessary additional advantage

over Milo. Thus overall, although it does not explain why Milo was indicted four

separate times, the passage of the leges Pompeia de vi and de ambitu for the trial of Milo

does reflect how changes in Roman law were tailored to current political events in Rome.

Sextus Roscius Amerinus

The case of Sextus Roscius Amerinus offers an example of an indictment that

seems to have been inappropriate - it is an instance when the Roman prosecutors did not chose to bring their case under the law that to us is the most obvious. S. Roscius was

accused of murdering his father, the well-to-do and eminent Sextus Roscius senior.

Although others before S. Roscius junior had been tried and even condemned for such an offense under the lex de parricidiis (like Gaius Villius for murdering his father in 132

B.C. and Publicius Malleolus for murdering his mother in 101 B.C.), S. Roscius was not tried under this law. Instead, he was brought to the court of Marcus Fannius in late 81 or more probably in early 80 B.C. under Sulla's newly-enacted lex Cornelia de sicariis et veneficis, which did not include a specific reference to parricide at al115~"x"'.Thus it seems odd that S. Roscius was not brought to trial under a lex de parricidiis. Regardless, l5 see Chapter IV the examination of a case of parricide in a quaestio de sicariis et veneficis extended the competence of Sulla's law in practice and reveals the presence of ambiguity surrounding indictments at the time of S. Roscius' trial.

Perhaps some confusion arises from the evolution of the meaning of parricidium.

The concept of pavricidium was not a simple one in Roman times. It dates to as far back as nascent Rome and its supposed second mythical king, Numa ~om~illius~~~~~.Praetors

xxxiii de pan-icidio are mentioned in the Twelve Tables from the mid-fifth century B.C. , thus parvicidium was certainly a formal legal charge by this time. Originally parvicidium was a general term that applied to the intentional murder of a citizenxxx1",but it seems that over time its meaning was narrowed down such that by the first century B.C. it had come to refer specifically to the murder of a father or close relativexxxv.At the same time, sicavius had come to refer to its original meaning ('murderer')xxXvi.Perhaps the overlap between these two words led to some lack of clarity in the legal charges they came to represent, and so in this way, a modern viewer may be uncertain about the examination of

S. Roscius' alleged parricide in a quaestio de sicaviis et veneficis. This overlap has an effect similar to that of the overlap between vis and sicarius (and also maiestas as well)16 that makes a modem viewer uncertain about the examination of Caelius' alleged crimes in a quaestio de vi, as discussed earlier17. Furthermore, it seems that just as the lex

Plautia de vi is thought to have taken over the competence of the lex Cornelia de sicariis et veneficis and of the lex Cornelia de maiestate, the lex Cornelia de sicariis et veneficis appears to have taken over the competence of the lex de parricidiis, as evidenced by the trial of S. Roscius.

l6 though the overlap between vis, sicarius, and maiestas occurred both in their definitions and in practice 17 see Chapter V Cicero does not offer much assistance in our understanding of why a charge of

parricide was examined in a court for murder and poisoning. The discrepancy

surrounding S. Roscius' indictment clearly appears in Cicero's defense speech, the Pro

Roscio Amerino - Cicero refers to a charge de parricidio XXXVll , but he also definitively

states that he is present in the quaestio de sicariis XXXVlll . This incongruity is a result of

"neglegentiam eius in accusando" ('his [C. Erucius', the prosecution's] carelessness in

making his accusation')"""'", Cicero claims. Cicero also identifies that the charge brought

against Roscius is not fitting. For example, he refers to a "crimen commenticium" ('made

up charge')"' and an "accusator ridiculw" ('ridiculous accuser,' i.e., a prosecutor who

brought a ridiculous charge)'*^"", and Cicero continually plays up the prosecution's

absurdity and complete lack of evidence to support their particular indictment. Thus,

although he never directly explains it, Cicero does reference the illogicality of the charge

itself.

The illogicality of S. Roscius' indictment, like Caelius and Milo's, is indicative of

the strong influence that politics and other factors could have on determining and

distorting a criminal charge. The entire case brought against S. Roscius was trumped-up

and exceedingly weakX1"because it arose not to prosecute a criminal, but to satisfy an ulterior motive. S. Roscius' father, Sextus Roscius senior, had met his death near the

Pallacinian baths in ~ome"'"',and Lucius Cornelius Chrysogonus, who was greedy for the inheritance left by S. Roscius senior (the Roscius estate1'), decided to cast suspicion for the murder on S. Roscius junior while claiming the inheritance for himself. Even

l8 With this epithet Cicero refers to L. Chrysogonus to identify him as the true prosecutor in the trial because he had solicited C. Erucius, the formal prosecutor of S. Roscius, to press formal charges, as discussed below. This treatment of L. Chrysogonus is similar to that of Clodia in the Pro Caelio. 19 in. Ameria. a hamlet in Southern Umbria though the lists of Sulla's proscriptions were closed by the time of the murder2', S.

Roscius senior's name was inserted onto them, and so his property was confiscated from

S. Roscius junior by the ~tate"'". At a public auction the large estate conveniently fell

into the hands of L. Chrysogonus, who was one of Sulla's favorite ex-slaves, for a

ridiculously under-valued S. Roscius attempted to get the sale annulled, but he

only succeeded in unsettling the new owner, not in recovering the propertyx'".

Consequently, L. Chrysogonus, after having made numerous unsuccessful attempts to kill

S. Roscius directly, sought a way to secure his retention of the landx'"'. For this reason he

called on Gaius Erucius, an experienced prosecutor, to place the blame for S. Roscius

senior's murder on his son, such that if S. Roscius junior were condemned in a quaestio

de sicariis et veneficis, he would be exiled and thus incapable of reclaiming his property.

In this way L. Chrysogonus' greed prompted the particular charge de sicariis et veneficis

leveled against S. Roscius.

L. Chrysogonus could have also potentially accomplished his goal (ownership of

the Roscius estate) in a quaestio de parricidiis. However, in 8 1/80 B.C. the quaestio de

sicariis et veneficis was more advantageous to this end because the condition of the

courts at this time made a quaestio de sicariis et veneficis more disposed to a conviction than a quaestio de parricidiis - the lex Cornelia de sicariis et venejicis was at that time new and as yet unused, and as Freese notes, "public opinion was in favor of the condemnation of the first person accused [under the lex Cornelia de sicariis et venefi~is]"~'~~'.Hence, it seems likely that S. Roscius was indicted under this law because

20 They had been closed on June 1, 81 B.C. 21 It was sold for 2,000 sesterces, when it was valued at 6,000,000 (Freese 1984, 114). 22 In his speech, Cicero refers to L. Chrysogonus' seizure of the estate by speaking of his "praedam .. nefariam" ('wicked booty') (Cicero Pro Roscio Amerino, ii.6). the prosecution thought that they would have a greater chance of success that way than

under the old lex de parvicidiis. Thus the case against S. Roscius demonstrates that

indictments in the Late Republic could be ambiguous and confusing because of

manipulation by politics and the general atmosphere of the times.

Conclusion

Overall, the cases of P. Sulla, Milo, and S. Roscius serve a two-fold purpose in

considering Caelius' and Roman law in general. They first indicate that Caelius' single

indictment on multiple counts was an unforced, purposeful decision, which the

ambiguous Late Republican legal system made available to the prosecution. Secondly,

they show that Roman political affairs could have such drastic influence over the law as

to bring about the passage of new legislation and alter the selection of indictments.

' Lintott 1968,77 ii Gruen 1974,283,272-273 iii Cicero Pro Sulla, xxiv.69 '" Cicero Pro Sulla, iv.13 " Cicero Pro Sulla, iv. 11 "' Cicero Pro Sulla, v.16-17 "" Cicero Pro Sulla, xiii.36-37 ""' Cicero Pro Sulla, xix.54 '" Cicero Pro Sullu, xxi.60 " Cicero Pro Milone, iii.7 "'Watts 1953, 135-136 "" Gruen 1974,230 ""' Poynton 1902, xix "'" Cicero Pro Plancio, 44-45 "" Lintott 1968, 110 ""'Gruen 1974, 108 """ Gruen 1974, 152 """' Harper and Gallup 1898, 350 "'" Gruen 1974, 152 "" Poynton 1902, xii ""' Greenidge 1901, 390 """ Cook et al. 1932, 624 """' Gruen 1974, 337-338 ""'" Gruen 1974,234 """ Lintott 1968, 123 """'Cook et al. 1932, 625 - xxvii Greenidge 1901, 391 """"' Cicero Pro Milone, v. 13 ""'"Cicero Pro Milone, vi. 14 """ Cicero Pro Milone, xxvi.70 """'Alexander 2002, 67 """" Grant 1975, 16 xxxiii Grant 1975, 16 xxxiv Freese 1930, 119 """" Grant 1975,25 xxxvi Grant 1975, 25 xxxvii Cicero Pro Roscio Arnerino, x.28 xxxviii Cicero Pro Roscio Amerino, ii.6 xxxix Cicero Pro Roscio Amerino, xxi.59 XI Cicero Pro Roscio Amerino, xv.42 xli Cicero Pro Roscio Amerino, xv.42, xviii.50 ""' Donkin 1987, xviii xliii Cicero Pro Roscio Arnerino, vii. 18, viii.21 "Iiv Freese 1984, 113 "Iv Freese 1984, 1 14 "Ivi Freese 1984, 115 "Ivii Freese 1984, 116 Chapter VII. The Digest and Another Consideration of the Leges de Vi

Even though it surfaced more than 500 years after the trials of Caelius, P. Sulla,

Milo, and S. Roscius, the Digesta of Justinian (also know as the Pandectae when it was

later translated strictly, per Justinian's orders, into Greek') offers a cross-section of the

entire development of Roman jurisprudence from the last century B.c.". In this way, a

comparison between the classical laws and the laws detailed in the Digest is very

informative and holds implications for understanding the criminal indictments in the Late

Republic.

The emperor Justinian, who was born a peasant in ~auresium'in 482 A.D.and

ascended to emperorship in 527 A.D.through his uncleladoptive father, ust tin us^, carried

out a vast codification of Roman law. This codification resulted in several texts: the

Digest (the most influential one), the Codex Justinianus (a precursor of the Digest), the

Novellae Constitutiones (a collection of new enactments, those made after the

composition of the Digest), and the Imperatoris Iustiniani Institutiones (an elementary

textbook for law students), all of which are collectively called the Corpus Iuris Civilis'''.

Justinian's attitude was more re-inventive than creative - the emperor gathered the many

separate legal codes and concepts available to him and made them a whole, cohesive

work by combining them together and trying to remove any inconsistencies.

1 which lies in present-day Serbia 2 Justinus became emperor in 518 A.D., and Justinian joined him as a co-regent in 527 A.D. A year later, Justinus died, thus leaving Justinian sole reign over the Rome Empire (Jolowicz 1932,484).

8 1 Justinian's undertaking was incredibly ambitious and expansive. The codification

reached back to the first century B.C., as far as the age of Quintus Mucius scaevola3, who

was consul in 95 B.C. and died in 82 B.C., although the majority of the contents (all

sources except sixiv)come from the period between 100 A.D. and 225 A.D.". Indeed, the

Digest is considered to be "the principal source of our knowledge of the classical period

of Roman law""', as it contains "totum ius antiquum, per millesimum et

quandrigentesimum paene annum confusum" ('all of the ancient law, [which had been] in

a state of confusion for almost 1400 years'), according to ~ustinian"".

Justinian was pursuing greatness, thus it was his ambition to renew the old

grandeur of the imperium ~omanum"~~'"",and part of this plan included the vast

codification of the laws. It had come to his attention that, "omnem legem tvamitem, qui

ab urbe Roma condita et Romuleis descendit temporibus, ita esse confusum, ut in

infinitum extendatur et nullis humanae natuvae capacitate concl~dutur'~('all of our legal

system, which has descended from the foundation of the city of Rome and the time of

Romulus, is so confused that it extends infinitely, and it reaches outside of the capacity of

any human nature')", and he decided to resolve this issue. The emperor charged ahead in

early 528 A.D. with a ten-member committee, composed of professors and state

officialsx1. Justinian called together people who served as his "compilers," called such today "because they plundered (compilave) the classical texts and the imperial constitutions for the codification""". They were ordered to examine the Coda

Gvegovianus, Codex Hermogenianus, and Codex T/zeodosianus and to remove obsolete institutions, contradictions, repetitions, and all extraneous andlor unnecessary

In fact, some of the sections on vis in the Digest contain fragments from Scaevola, who wrote a Jus Civile composed of 18 books (Girard 1906,97). information xiii,xiv (although this was not successfully accomplished in full, as discussed

later)"". They were given "auctovitatem conscribendavum intevpretandarumque legem"

('the authority to compose and interpret the laws7)"" with the goal of the creation of a

Codex Justinianus:

Primum nobis fuit studium a sacratissimis retro princibus initium sumere et eorum constitutiones emendare et uiae dilucidae tradere, quatenus in unum codicem congregutae et omni superuacua similitudirie et iniquissima discordia absolutae uniuersis homirzibus prornptum suae siceritatis praebeant praesidium

('It has been our primary pursuit to make a beginning with the most sacred emperors of before, to free their enactments from errors, and to hand them out in a clear way, in so far as they, collected into one code and freed from all unnecessary repetitions and from most adverse disagreement, might provide all men with the ready protection of their own

After about a year's work, this codex was published on April 7, 529 AD., and was given

stat~~toryforce as a law nine days laterxviii.

The approach used for the creation of the Codex Justinianus demonstrates a

significant shift in the Roman legal institution since the time of Caelius' trial. The

ambiguity and conflict surrounding indictments such as Caelius' finally received

attention and an attempt at improvement. Unlike reform of the legal system during the

Republic and unlike Sullan method of codification, Justinian moved away from simply tacking on new laws when old laws became obsolete or insufficient and from simply reorganizing the pre-existing laws. Instead, Justinian sought to eradicate problem laws and consolidate the remaining ones. He urged that the old laws be "classified with great acuteness and expressed with great technical precision""'" so that a concise, unambiguous system would arise.

However, the Codex Justinianus existed only briefly (it lasted until 534 A.D.), until its power was usurped by the completion of a much larger project - that of the Digest. Indeed, the entire textual body of the Codex has not survived to this day - only a

fragment of a table of contents remains from an Egyptian papyrus4~xx.On December 15,

530 A.D., a constitution, De Conceptione Digestorum, was passed that called for the

compilation of a single work from the writings of ancient jurists, who often quoted

ancient lawsxxi,for which a new chairman of compilers was namedxxii.This man,

Tribonianus, had begun as an assistant to the compilation, at which time he was the head

of the imperial chanceryxxiii.At the time of his appointment as chairman, he held the

office of quaestor sacripalatii ('quaestor of the sacred palace'), and by the time of the

publication of the Digest, he had become the magister ofSiciorum ('minister of

ju~tice')~~'".Although Justinian has received all of the credit for the compilation of the

Digest, the emperor had announced that "omne studium Triborziano viro excelso . . .

imposuimus" ('we [Justinian] entrusted the entire task to Tribonian, a most eminent

man')""". It is also most probable that Tribonianus, whom Justinian repeatedly describes

admiringly as "prudentissimus" ('most wise )xxvi and "excellentissimus" ('most

e~cellent~)~~"~',was the true muse as well as the main instrument in the creation of the ~i~~~~s,xx~lll...

Indeed, it is thought to have been inspiration of Tribonianus to use classical legal

literature as the basis of the work - "in other words the great plan of the Digests.. ." was

Tribonianu~'~~'~.He wielded tremendous power in the composition of the Digest. The

old literature that was used to form the substance of the collection is thought to have

come largely from Tribonianus' own library of many rare booksxxx,which presumably

- -- 4 This is comprised of "in a very fragmentary state, a list of title headings and inscriptions of constitutions of Book I, Titles 11-16" (Jolowicz 1932,501). Indeed, revisions to legislation diminished significantly after Tribonianus' death (Buckland 1975, 89). . . . explains how the codification took on an even more monumental character than had originally been planned, and how the centre of gravity of the whole - contrary to the constitutional conditions of the time - moved from the collection imperial constitutions to that of the jurists' lawxxx'.

Tribonianus was given the task of selecting his colleagues for the committee of the great codification project. This committee had originally only included principle figures in the imperial governmentxxxii,but Tribonianus consulted eleven defense lawyers from the courts in ~ome~,the magister officiorum at the time7, as well as two arztecessores ('law teachers') each from two schools, one in Constantinople and one in Beirut 8,xxxiii

The Digest was published after only three years of intense efforts on December

16, 533 A.D. and was put into statutory force two weeks laterxxxiv,even though originally the time for completion had been set tentatively for ten years, and this was then thought te be cha!!engir;gxxxv or eyer, "j~y"=ss&lis"(b~mmOES~~~e')xxxV1, Thp,rc Z~P,still Some disputes and inconclusive discussions over how so much information was compiled in so short a timexxxvii.However, the most generally accepted opinion is that of Friedrich

~luhrne~~~~~~',who discovered in 1818 that the text of the Digest can be divided into three

"masses," which each contain excerpts from similar sourcesxxxix.Therefore, Bluhme proposes that there were three subcommittees, each entrusted to research and compile one

"mass."

Even so, the Digest took about three times longer to compose than the ~odex"'- it was more ambitious than the previous project, as it both replaced the Codex and also undertook what Kunkel justifiably calls "the mighty work" of collecting the jurist law as

Stephanus, Menas, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Constantinus and Jahannes Constantinus Theophilus (who was on the original committee) and Cratinus of Constantinople, and Dorotheus and Anatolius of Beirut well. Tribonianus and his committee poured over nearly 2,000 books9 ((3,000,000 lines)

from thirty-nine authors, who were included to varying degrees in the final text of the

Digest (the work of Paulus and Ulpian, two jurisconsults of the third century AD.,

together form the basis for almost a half of the Digest, whereas Aelius Gallus appears in

it once, for examplex"). All this information was condensed into 150,000 lines, cited by

the name of the author and work, and organized into fifty books that were subdivided by

chapters ("titles") according to subject matter. The end product contains enough

information to fill one and half ~ibles""'.

Legislation for vis was incorporated into the Digest multiple times. Although the

absolute authority of the quaestiones perpetuae was dwindling by the age of Justinian,

"the substantive categories of the quaestiones perpetuae system remained, from

conservatism, and for ease in interpretation"""". The category of vis had not disappeared

by any means; however, the two laws referenced by Cicero in the Pro Caelio, the leges

Lutatia and Plautia de vi, do not explicitly appear in the Digest since they had been

superceded in practice by new legislation, the leges Iuliae de vi publica and de vi privatalO. It makes sense for these leges Iuliue to appear in the Digest because "later

sources such as the Digest do not generally attribute material to original Republican laws which have been superceded; Romans, not surprisingly, thought of their laws as laws, not as history," as Riggsby notesx"'.

Thus, although the original documentation of vis is very fragmentary, the legal concept de vi and the laws built upon it remained active in Justinian's time and were preserved. Ne visfiat ei, qui in possessionem missus erit ('To forbid the use of force

This number comes from Justinian, although modern-day scholars have determined that Justinian was most likely exaggerating, and that the actual number is more like 1625 books (Jolowicz 1932, 488). 10 These laws were passed well after the earlier legislation de vi either by Julius Caesar or Augustus. against someone sent to take possession') (943.4) is an edict that outlined the occasions

on which it was illegal to drive away or forcibly prevent someone sent by a praetor or

another figure of power from obtaining possession of property or inheritance. The De vi

et de vi armata ('For force and armed force') (943.16) clause covered illegal acts such as

the forcible seizure of possessions, ejection from property, and the refusal of inheritance

to an heir. A succession of two more vis laws" that were direct descendents of the lex

Plautia de vi, the Ad legem Iuliam de vi publica ('lex Julia for public violence') (948.6)

and Ad legem Iuliam de vi privata ('lex Julia for public violence') (348.7) (which will be

discussed in detail shortly), divided vis into public and private offenses12. The multiple

foci in the law reflect the specification that legislation de vi underwent, as each covered

different aspects of vis. In recognition of the great breadth of scope that the earlier

clauses de vi had, the Digest attempted to eliminate the use of general terms and concepts. Rather, vis was sectioned and placed intermittently in the Digest according to more specific qualities.

Of all the leges de vi in the Digest, the Ad legem Iuliam de vi publica appears to have contained the provisions that can be most relevantly compared to the indictment of

Caelius. It announces the liability of those people who

. . . turbae seditionisve faciendae consilium inierint sewosve aut liberos homines in armis habuerint . . . qui pubes cum telo in public0 fuerit . . . qui pessimo exemplo convocatu seditione villas expugnaverint et cum telis et armis bona rapuerint .. . qui ex incendio rapuerit aliquid praeter materiam . .. qui puerum vel feminam vel quemquam per vim stupra~~erit.. . qui in incendio cum glaclio nut telo rapiendi causa fuit vel prohibendi dominum res suas seware .. . qui hominibus armatis possessorem domo agrove suo aut navi sua deiecerit expugnaverit .. . Qui coetu conversu turba seditione incendium fecerit: quique hominem

11 These are followed immediately by the Digest's citation of the lex Cornelia de sicariis et veneficis. 12 Girard clarifies that a distinction "which recurs in modern law, and the credit for which belongs to the Roman jurists, is that between public law (juspublicum), regulating the organization of public authority, and the relations between individuals and the State, and private law Ous privatum), regulating the relations between individuals themselves" (Girard 1906, 10). dolo malo incluserit obsederit: quive fecerit, quo minus sepeliatur, quo magis funus diripiatur distrahatur: quive per vim sibi aliquem obligaverit. . .

('have belonged to a conspiracy to raise a mob or sedition or who have kept either slaves or freemen under arms . . . [or someone] who have appeared in public with a weapon . . . [or those] who have forcibly taken country houses by assembling sedition in the most wicked manner and have seized goods with weapons and arms.. . [or] who has seized anything from a fire except wood . . . [or] who has violated a boy or a woman or any other person through violence.. . [or] who has been present at a fire with a sword or weapon for the purpose of robbery or of preventing the owner rescuing his property . . . [or] who with armed men has expelled or overcome someone who owns a home or his own farm, or his own ship . . . [or] who in a gathering, assembly, mob, or sedition has made a fire [arson], and who with malicious intent has shut a person up or besieged him, or who has done anything for a burial to be less buried [to inhibit a burial], for a burial to be more pillaged or broken up, or who has obliged anyone to himself by force')"'".

Basically any person who seeks to harm or who poses a threat to other people and their possessions was accountable (under penalty of exile) under this law. Each possible circumstance was carefully scripted. In addition, this law even defined where and when the collection of weapons is illegal 13,xlvi , who is a violently dangerous person 14,xlvii, and what specifically defines a weapon 15,xlviii. Thus this law de vi was much more specific than the one under which Caelius was charged. Although the crimes committed at

Naples and Puteoli could have fit within the element of sedition contained within this law, there are very few ways in which the capacity of the later law could have been stretched to include the other offenses of which Caelius was accused.

l3 "domi suae agrove inve villa praeter usum venationis vel itineris vel navigationis . .. excipiuntur autem arma, yuae quis promercii causa habuerit hereditateve ei obvenerint" ('when at someone's own home or farm or in his country house beyond those used for hunting or for a journey or sailing excursion . . . however, those arms are excepted which someone had because of trade or which have come to him through inheritance') l4 "qui tela habuerunt, sed etiam quid aliud nocere potest . .. qui convocatis hominibus vim fecerit, quo quis verberetur etpulsetur, neque homo occisus sit" ('who has not only weapons but also anything else which can be harmful . . . [or] who after having called men together has commited violence, whereby someone is flogged or beaten, even if nobody is killed') l5 "omnia, ex quibus singuli homines nocere possunt" ('everything from which separate men can cause injury'); this weapon is also defined more specifically in the law De vi et de vi armata, which claims that "arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae" ('weapons are all objects that includes both spears and stones, not only the spears of gladiators') (Digest XXXXIII.xvi.3) The other law, Ad legem Iuliam de vi privata, outlawed anyone who "ex

naufmgio dolo malo quid rapuerit" ('has stolen something from a shipwreck with

malicious intent )xlix , 'Cconvocatis hominibus vim fecerit, quo quis verberetur pulsaretur,

neque homo occisus erit" ('after having called men together, has committed violence

, 1 6' resulting in anyone's being flogged or beaten, [even if] nobody is killed ) , coetum . . . et

concursurn fecisse diciturquo minus quis in ius produceretur" ('is said to have raised a

, li 'C mob or gathering to prevent someone's being brought to court ) , deiecit ex agro suo

hominibus congregatis sine armis" ('has expelled a man off his own farm with an

unarmed mob')"', or "ex condemnatione in rem ipsius redactum fuerit, inter ens

communicaretur" ('has shared out among themselves what was recovered after his

[opponent's] ~ondemnation')"~~,as well as anyone who commits creditor fraud"". So,

acts of violence that are, on the whole, related to issues of private property fell under the

competence of this law. It, like the other lex Iulia de vi, is very specific in its definition

of the crimes that it bans. The only charge against Caelius that could have been

applicable to the Ad legem Iuliam de vi privata clause in the Digest would possibly have

been the theft from Palla.

Again, as it was initially shown in Chapter IV, another section of the Digest, the

Ad legem Corneliam de sicariis et ueneficis ('lex Cornelia on murders and poisoners')

(•˜48.8), which refers to Sulla's law, seems to fit almost flawlessly with the charges

against Caelius. It covered anyone

. . . qui hominem occiderit . . . dolo malo .. . quive lzominis occidendi furtive faciendi causa cum telo ambulaverit . . . qui hominis necandi causa venenum confecerit dederit . . . qui hominem occiderit . . . qui hominem non occidit, sed vulneravit . .. qui venenum necandi hominis causa fecerit vel vendiderit vel hab~erit'~.. . apiscendae reciyerandae possessionis causa arma sumpserit . . . qui auctor seditionis fuerit

l6 Cicero quotes this line in his Pro Caelio. ('who has killed a man . . . by malicious intent . . . or who has gone about with a weapon for the purpose of killing or stealing . . . [or] who has made up [or who] has given poison for the purpose of killing a man . . . who has killed a man . . . [or] who has not killed a man but has wounded him . . . [or] who has made or sold or possessed poison for the purpose of killing a man . . . [or] who has taken up arms for the purpose of acquiring [or] recovering possessions . . . [or] who been the author of sedition')'".

Basically all of these clauses apply to crimes of which Caelius was accused, in a very

specific manner - Caelius was accused of attempting murder and poison, of stealing, of

instigating sedition (at Naples), and of taking up arms (against the ~lexandrians)'~.In

addition, this law covered the illegal acceptance of a bribe or presentation of false

evidence such that a criminal defendant was found guilty, the concealment of a

shipwreck, arson, castration, and abortion1". The only overlap that this law appears to

have with the Digest's legislation de vi is the minor part aimed at sedition. The Ad legem

Iuliam de vi publica edict mentions sedition a couple of times, though in more specific

instances than the Ad legem Corneliam de sicaviis et veneficis. Thus if Caelius had faced charges during Justinian's emperorship, the Digest indicates that he should have been indicted under a lex de sicaviis et veneficis. Because the contents of the Digest are derived from earlier legal codes (and especially because its clauses on vis and sicavii et venefici come directly from Late Republican law codes), a comparison of the Digest's material on vis and of $48.8 shows that Caelius' indictment for vis was not the most appropriate - an indictment de sicaviis et veneficis was, as suggested earlier18.

17 However' this law does not seem to apply to the minor charge of theft from Palla. l8 see Chapter IV The neat, separate divisions of legal categories recorded in the Digest, which enable this analysis of Caelius' indictment, were sought consci~usl~'~.Kunkel notes that,

. . .in the composition of the Digest many individual questions had been met with which had been disputed among the classical jurists, and also legal provisions and points of view which were felt to be obsolete or unjust. Many of these offending elements were got out of the way by the compilers by simple exclusions, additions, or other changes'"".

These abridgements, substitutions and alterations, which have been under scrutiny for almost a century, are known as interpolations" (which is a misleading word, Nicholas points out, because it should refer to more than just the addition of new material)'""'.

However, Buckland warns that this clarity is somewhat deceptive and artificial when the

Digest is approached as the authority on ancient law:

for the yrpose, however9of arriving at the classical law, it must be used with caution. The compilers were to alter the original tests so as to make them state current law. It follows that, in determining from a text of Julian in the Digest, what was the law of his time, we have several difficulties to contend with. The literature was already old and no doubt many corruptions and glosses had crept into it.. . . The intentional alterations ["interpolations"] of the text are a more serious matter. Much legal history has been concealed by the compilers and is to be found, if at all, by reading between the lines of the ~igest]'".

Thus, when considering Caelius' "inappropriate" or "nonsensical" indictment, it is understandable that what seems like such a clear-cut issue to us by looking at the Digest was probably more ambiguous in the mid first century B.C.

Since it has been studied and digested for thousands of years, one would think that Late Republican legislation, especially that concerning so basic a human sin as l9 ow ever, despite the clarity in the laws related to vis and sicarius, the Digest was not free of error entirely. The Digest was meant to be, as stated in a provision of the 530 A.D. constitution, a clear and concise collection (Jolowicz 1932, 487). However, Justinian himself admits that not all repetitions were avoided: Justinian states, "si quid autem in tanta legem compositione, quae ab immense librorum numero collecta est, simile forsitan raro, inveniatur, nemo hoc uituperandum existimet" ("if, however, in so great a collection of laws, which was collected from an immense number of books, perhaps a few repetitions should be discovered, let no one think that it should be censured") (Digest De Confirmatione Digestorum 1~.13.24-26). 20 formerly known as "Tribonianism" (Jolowicz 1932,492); see Jolowicz pp. 492-498 for further reading violence, would be overly analyzed and supremely understood by now. However, this is

not the case; its extremely dynamic and complex nature has enabled it to remain

persistently elusive to this day. Examining the Pro Caelio provides only a jumping off point for considering this substantial legal organism that still awaits better characterization.

Kunkel 1966, 153 " Kunkel 1966, 158; Kolbert 1979, 37 "' Nicholas 1962,42, Jolowicz 1932,485 '" Buckland 1975,41 "Nicholas 1962,40; Kolbert 1979, 39 "' Kunkel 1966,158 vii Digest De Conceptione Digestorurn, xlvii.5.17 ""' Kunkel 1966, 153 '" Jolowicz 1932, 484 " Digest De Conceptione Digestorurn, xlvi. 1.12-14 xi Digest De Conceptione Digestorurn, xlvii.3.28-29 "" Kunkel 1966,153 ""' Uunke! 1966, 155 "'" Nicholas 1962, 40 "" Nicholas 1962,43 XVI Digest De Conceptione Digestorum, xlvii.4.6 xvii Digest De Conceptione Digestorurn, xlvi. 1.14-18 """' Kunkel 1966, 155 Metzger 1998,218 Xx Kunkel 1966, 155 ""' Jolowicz 1932,487 Kunkel 1966, 155 """'Nicholas 1962, 40 ""'"Jolowicz 1932,484 """ Digest De Confirrnatione Digestorurn, lv.20-22 XXVi Digest De Confirrnatione Digestorum, lviii.9.17 xxvii Digest De Confirrnatione Digestorum, lxi. 17.26 Xxviii Kunkel 1966, 153; Kolbert 1979, 37-38 Kunkel 1966, 153 """ Nicholas 1962, 40 Kunkel 1966, 154 xxXii Kunkel 1966, 154 xxxiii Jolowicz 1932, 486 xxxiv Kunkel 1966, 155-156 '"""Mommsen et al. 1985, xii xXxvi Digest De Conceptione Digestorurn, xlvii.3.23 xxxvii Nicholas 1962, 43 Xxxviii Buckland 1975, 41 Xxxix Jolowicz 1932, 489 "' Kunkel 1966, 155 Jolowicz 1932,488 'Iii Nicholas 1962,40 'Iiii Robinson 1995, 8, 12 -- -- "IivRiggsby 1999,79 "Iv Digest XLVIII.vi.3,5 "IviDigest XLVIII.vi. 1-2 "IviiDigest XLVIII.vi.9-10 "'""' Digest XLVIII.vi. 11 "IixDigest XLVIII.vii. 1 I Digest XLVIII.vii.2 Ii Digest XLVIII.vii.4 Iii Digest XLVIII.vii.5 Iiii Digest XLVIII.vii.6 liV Digest XLVIII.vii.7 I" Digest XLVIII.viii. 1, 3 I"' Digest XLVIII.viii.1, 3, and 8 Ivii Kunkel 1966, 156 Iviii Nicholas 1962, 40 "" Buckland 1975,42-43 Appendix A. Trials of Murder and Violence from 149 to 50 B.c.'

Defendant Prosecutor Advocate Judge Trial (Petitor) (Accusator) (Patronus) (Quaesitor) Verdict C. Laelius Slaves and P. Cornelius murders of noti Sapiens and later free workers Scipio Nasica hornines in forest of Acquittal Ser. Sulpicius of Serapio Sila Publicani Galba P. Popillius parricidium (murder of C. Villius Laenas and P. 132 1 father of associatiou Conviction Rupilius with Ti. Gracchus)

P. Cornelius senatorial quaestio Scipio M. Fulvius l32 murder of Ti. incomplete Nasica Flaccus Gracchus) Serapio

Q. Fabius iudiciumpopuli (abuse Cn. Pompeius 104 Conviction Maximus 1 of power) Strabo Eburnus

parricidium (murder of Publicius 101 Conviction Malleolus mother)

lex Cornelia de sicariis A. Aurius none Melinus M. Aurius) lex Cornelia de sicariis C. Erucius and et veneficis (murder of M. Fannins early Acquittal Sex. Roscius T. Roscius Cicero his father, Sex. Ma-gnus 1 "RosCins:

C. Ancharius lex Cornelia de sicariis early Conviction L. Varenus Rufus and C. Cicero et veneficis (murders) Erucius? 70s

case Q. Manlius 77? murder of Asuvius Avillius 1 dropped

Statius Albius Q. Manlius 7 murder of Asuvius Acquittal Oppicanicus

P. Cannutius and lex Cornelia de sicariis Scamander A. Cluentius Cicero C. Iunnius 74 et venef'icis (attempt to Conviction Habitus poison Cluentius) lex Cornerlia de P. Cannutius and C. Fabricius C. and L. sicariis et veneficis A. Cluentius C. Iunnius 74 Conviclion of Alatrium Caepasius (attempt to poison Habitus Cluentius) P. Cannutius and lex Cornelia de sicariis A. Cluentius L. Quinctius 74 et vrnej?cis (poison Conviction Habitus attempts)

Statius Albius lex Corrzelia de sicariis A. Cluentius Oppianicus and Cicero et venqficis (murder Acquittal Habitus T. Attius

lex Cornelia de sicariis L. Bellienus C. Iulius Caesar et venqficis (murder of Conviction

lex Cornelia de sicariis C. Iulius Caesar Conviction L. Luscius et veneficis (murders) 64 I Defendant Prosecutor Advocate Trial (Petitor) (Accusator) (Patronus) fGdgeuaesitor) Date Charge ( Verdict 1 I L. Sergius lex Cornelia de sicariis L. Lucceius C. Iulius Caesar Acquittal Catilina et ven

L. Sergius L. Aernilius lex Plautia de vl incomplete Catilina Lepidus Paullus

lex Plautia de vi followers of Novius Niger (participation in Conviction Catiline Catilinarian conspiracy)

---I-lex Plautia de vi Conviction C. Cornelius

I lex Plautia de vi (Catilinarian P. Autronius Conviction Paetus conspiracy, attempted murder)

M. Porcius Laeca Catilinarian conspiracy)

lex Plautia de vi L. Vargunteius

Cornelius and L. Q. Hortensius lex Plautia de vz P. Cornelius Manlius Hortalus and (Catilinarian Acquittal Sulla Torquatus Cicero conspi~xiesj I

late 60s C. to early lex Plautia de vi Conviction Caesernius

late 60s M. to early lex Plautia de vi Conviction Camurtius

lex Plautia de vi L. Vettius P. Vatinius M. Crassus (participation in a plot none I j9 against Pompey)

P. Clodius early lex Plautia de vi T. Annius Milo none Pulcher (violence against Milo) 1 57

P. Clodius lex Plautia de vi T. Annius Milo late 57 Pulcher I (violence) dropped

lex Plautia de vi C. Licinius early P. Asicius Cicero (muder of Alexandrian Acquittal Macer Calvus 56 ambassador) P. Albinovanus, Hortalus, lex Plautia de vi M. ~emilius early P. Sestius Cicero, and T. Crassus, Calvus, (political violence in Acquittal Scaurus ll Claudius and Cicero 57) 1 - L. Atratinus, P. Himself, M. lex Lutatia/Plautia de Crassus, and Cn. Dornitius Acquittal M. Caelius Clodius, and L. vi Balbus Cicero lex Cornelia de sirariis P. Clodius Q. Hortensius Procilius et veneficis (muder of Conviction Hortalus Pulcher paterfamilias) Defendant Prosecutor Advocate Judge Trial (Petitor) (Accusator) (Patronus) (Quaesitor) Date Charge Verdict M. Antonius, M. Claudius Ap. Claudius L. Domitius April lex Pompeia de vi T. Annius Marcellus and Conviction Milo Pulcher, and P. Ahenobarbus 4-7,52 (murder of Clodius) Cicero Valerius Nepos verdict I I reached I I L. Cornificius lex Plautia de vi T. Annius L. Fabius Conviction Milo and Q. Patulcius 11 or 12,52 on or L. Cassius lex Pompeia de vi after Longinus, L. Caelius and (participation in murder Acquittal M. Saufeius April Fulcinius, and C. Cicero of P. Clodius Pulcher) Valerius 12, 52 on or Cinsidius lex Plautia de vi Cn. Aponius, C. M. Terentius after M. Saufeius Fidius, and M. Varro Gibba and (Longus or (participation in murder Acquittal Nonianus) of Clodius) Seius Cicero 18,52 - M. Alfidius and after lex Pompeia de vi Sex. Cloelius C. Caesennius T. Flacconius April (movement of Clodius' Conviction Philo 22,52 body into curia)

P. Cornelius Cicero 527 1exPompeia de vi? Acquittal Dolabella 1 T. Munatius Dec. lex Pompeia de vi Plancus Cicero 52-Jan. (burning of senate Conviction 5 1 house) Bursa - lex Pompeia de vi Q. Pompeius Caelius (burning of senate Conviction Rufus house)

C. Ilex Plautia de vi or lex Conviction Sempronius M. Tuccius Cornelia de iniuriis Rufus 51 1 C. Sempronius M. Tuccius Caelius? 5 1 la~lautia de vi Acquittal Rufus 1

Ap. Claudius lex Pompeia de vi Pulcher I friends of C. Scribonius lex Pompeia Y de vi Curio I

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