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Blueprint for Legal Practice: Establishing Cicero's Ideal Style

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Blueprint for Legal Practice: Establishing Cicero's Ideal Style Xavier University Exhibit Honors Bachelor of Arts Undergraduate 2015-4 Blueprint for Legal Practice: Establishing Cicero’s Ideal Style Henry L. Farrington Xavier University - Cincinnati Follow this and additional works at: http://www.exhibit.xavier.edu/hab Part of the Ancient History, Greek and Roman through Late Antiquity Commons, Ancient Philosophy Commons, and the Classical Literature and Philology Commons Recommended Citation Farrington, Henry L., "Blueprint for Legal Practice: Establishing Cicero’s Ideal Style" (2015). Honors Bachelor of Arts. Paper 6. http://www.exhibit.xavier.edu/hab/6 This Capstone/Thesis is brought to you for free and open access by the Undergraduate at Exhibit. It has been accepted for inclusion in Honors Bachelor of Arts by an authorized administrator of Exhibit. For more information, please contact [email protected]. Blueprint for Legal Practice: Establishing Cicero’s Ideal Style H.L. Farrington Xavier University, Class of 2015 Capstone Thesis – Spring Semester 2015 Table of Contents: Introduction ………………………………………………………………………………..... i Chapter One – Introduction to Roman Law and the Roman Courtroom ……………………. 1 The Inception of Roman Law ……………………………………………………....... 2 Plebeians and Patricians ……………………………………………………………. 4 Formation of the Twelve Tables of Roman Law …………………………………….. 5 The Roman Courtroom ……………………………………………………………… 9 Development of the Roman Legal System …………………………………………... 12 Advocacy Arises: Patronus & Cliens ……………………………………………….. 16 The Roman Advocate ………………………………………………………………... 18 Chapter Two – Cicero the Orator: An Analysis of De Oratore………………...………….... 23 Brief Context …………………………………………………………………….…... 23 Analysis: De Oratore, Book I …………………………………………………….….. 26 Analysis: De Oratore, Book II …………………………………………………….…. 30 Analysis: De Oratore, Book III …………………………………………………….... 34 Cicero’s Blueprint from De Oratore……………………………………………....… 37 Chapter Three – Cicero the Advocate: Roman Cases …………………………………….…. 43 Brief Context ………………………………………………………………………… 45 Case Analysis: In Verrem I, II………………………………………………………. 47 Case Analysis: Pro Cluentio………………………………………………………… 53 Case Analysis: Pro Caelio……………………………………………………………. 58 Case Analysis: In Pisonem………………………………………………………….. 64 Chapter Four – Crossing Time and Space: Cicero and Modern America …………………... 70 Crossing Time and Space ……………………………………………………………. 70 American Legal System: Foundational Principles …………………………………... 74 Advocacy in Modern America ……………………………………………………….. 79 Chapter Five – Applying Cicero’s Blueprint in Modern America …………………………... 83 Legal Education and Training ………………………………………………………. 84 Application of Stylistic Blueprint ……………………………………………………. 86 Conclusions………………………………………………………………………………….. 93 Bibliography………………………………………………………………..…………………95 [Cover-Page Photo “SPQR Banner of Ancient Rome” courtesy of ucyclopedia.wikia.com - located in the public domain.] Abstract: Marcus Tullius Cicero represents the greatest historical expression of the ideal, best orator and lawyer. Cicero is praised for his success in the Roman trial court and skills of legal practice in that arena. Due to the disparity between the Roman world and modern America in the late- 20 th /21 st century and the lack of a comprehensive guideline, American lawyers do not directly emulate the style of Cicero, with the goal of achieving the status of the ideal lawyer. Nevertheless, Cicero has a certain, specific style of legal practice which can be applied to the modern American trial court setting. Through the analyses of Cicero’s De Oratore, a stylistic blueprint containing the eleven (11) attributes of the ideal lawyer are established with the purpose of realistic application for modern lawyers seeking to embody Cicero’s ideal. The blueprint is applied to four (4) cases from Cicero’s own legal experience to support the argument for Cicero’s criteria. It is then applied to the modern American courtroom, and provides the means by which a generalized definition of the American lawyer would embody these ideal attributes. H. L. Farrington Xavier University 2015 [Introduction] Every spectator, in every corner of the courtroom, has been hanging on every word that has flown from the mouth of the enraged orator. Utter silence falls over the audience as that lawyer who has proven his worth so many times before, in this same arena, casts mountains of incriminating evidence upon the traitor, Catiline. Each gesture strikes the spirit like a physical blow, and each word is infused with frustration and love for the Republic of Rome – “O tempora! O mores!” – These words strike the soul to the very core. How can this be a time where traitors go free? How can this be a time when champions of the Republic are accused? How have the foundational values of Roman society been so corrupted? The Traitor goes free; The Lawyer is exiled. Oh the times, Oh the customs. The rest of the scene fades from the mind, and all that remains is the advocate of Rome. The shining star that is the example for all lawyers; past and present. No matter the times or the customs, this remains true. There are lessons to be learned from the man who worked tirelessly for the benefit of others, even in the face of a decaying society, perhaps in present times more than ever. Marcus Tullius Cicero; the orator, the advocate, the man. This research focuses on the actions of Marcus Tullius Cicero in the Roman courtroom, and an in-depth analysis of the development of Roman law from the conception of the Roman Republic in 509 B.C., through the life of Cicero up to 55 B.C. Starting with the fundamental principles of Roman law during the Republican period, the numerous changes and reforms to the system will be closely analyzed to show the progression and transformation of Roman law from the beginning, to the Roman law that Cicero studied and practiced on a daily basis in his professional career. i This research also deals with the modern American courtroom, its procedure, and its actors ranging from the late 1990s through 2014. A comparison will be able to be set up in order to analyze the modern courtroom proceedings according to ancient Roman criteria. This discussion of the modern courtroom is aimed at the realistic application for modern lawyers seeking to embody Cicero’s own personal style of legal practice, expressed in this thesis as the ideal style of legal practice. Cicero has a certain, specific style of law practice which can be applied to the modern trial court. Through an in-depth analysis of Cicero’s De Oratore , it is possible to define what in Cicero’s mind makes the ‘ideal orator,’ and it will be proven through this analysis that Cicero’s ‘ideal orator’ and his idea of the ‘ideal lawyer’ are one and the same. By establishing the criteria that Cicero lays out in the De Oratore , a ‘blueprint’ will be defined by which modern law practices can be compared with ancient Roman law practices. The research regarding Cicero himself is extensive and covers a prosecution and defense case from early in his career, as well as a prosecution and defense case from late in his career. This is essential for developing the most well-rounded understanding of Cicero’s style of legal advocacy possible, and will make the relationship between the ancient and modern worlds the most clear. The life story of Cicero is one of a man who started without wealth and came from relative obscurity, yet rose to fame unbound by time. Although it is possible to write to no end about the lifetime achievements and events of Cicero, it is nevertheless essential to lay out in some detail where Cicero came from and provide an outline of the key events that molded him into the orator and lawyer that is so respected by so many scholars and students in every generation of the world. ii Cicero was born to a father of the equestrian rank in 106 B.C., meaning that although his family was not quite Roman nobility, his family was not especially poor either.1 This allowed for Cicero to undergo the proper education for a young Roman youth to enter the world of Roman politics. Yet it is significant to note that Cicero himself was a novus homo , being the first of his family to enter the political life. And truly, even from his youth, Cicero had an inclination towards the practice of law, 2 undoubtedly enforced by his many teachers. The most noteworthy of which, from a legal standpoint, was Quintus Mucius Scaevola; considered to be one of the most significant and respected reformers of the Roman legal system for his definition of the genera , and his interpretation and understanding of the 12 Tables of the Roman legal system set forth by the decimviri in 451 B.C. 3 Livy, in his greatest historical work Ab Urbe Condita , describes the formation of the decemvirate, and the transition period from the previously established Roman Monarchy, to the new Roman Republic. 4 After studying for only a few years under Scaevola, Cicero pursued a brief military career where he served under Pompeius Strabo during the Social Wars 5 as well as under Sulla during the conflict with the Marsi 6 before returning to Roman political life. In 75 B.C., after the conclusion of the Marsian War, Cicero returned to Rome and was awarded the office of quaestor and was stationed in Sicily where he served as provincial treasurer and collected taxes for the government. 1 Powell, Paterson (2004), p. 37: Cicero belonged to a family of semi-wealthy landowners; Powell and Paterson claim in their introduction that this ‘landowner’ class was more predisposed to “a strongly developed ethic of public service for the benefit of their fellow-citizens” (Powell, Paterson. Chapter One, page 37). Contemporaries of Cicero from this class often entered politics as advocates. 2 Wilkin (1947), p. 1 – 7 ; Powell, Paterson (2004), p. 1 3 Watson (1995), p. 3: The first 10 of Rome’s Twelve Tables were drafted by the 1 st ever 10 decimviri ; The final two tables were drafted by the 2 nd decimviri , who were widely regarded in history as being marred by corruption. 4 Liv. III.1-43. 5 The Social Wars (90 – 88 BC): uprising of Roman allies all along the Italian peninsula.
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