1 Tamás Nótári Legal and Rhetorical Aspects of Cicero’s Murder Trials C.H. Beck 2014 2 Table of Contents Preface ........................................................................................................................................ 3 Procedure of penal adjudication in Cicero’s age ........................................................................ 5 I. Lawsuit of Sextus Roscius from Ameria .......................................................................... 12 I. 1. Historical background of Pro Roscio Amerino ......................................................... 12 I. 2. Statutory regulation of the crime of par(r)idicium ................................................... 15 I. 3. Handling the facts of the case in Pro Roscio Amerino ............................................. 19 II. Lawsuit of Aulus Cluentius Habitus ................................................................................ 33 II. 1. Historical background of Pro Cluentio ................................................................... 33 II. 2. Applicability of lex Cornelia de sicariis et veneficis in Cluentius’s lawsuit ........... 37 II. 3. The “charge” of iudicium Iunianum and bribe in court of justice ........................... 39 II. 4. Handling the charge of veneficium .......................................................................... 60 II. 5. Rhetorical tactics and double handling of the facts of the case in Pro Cluentio ..... 64 III. Lawsuit of Titus Annius Milo ........................................................................................ 74 III. 1. Historical background of Pro Milone ..................................................................... 74 III. 2. Lawsuit of Milo – Cicero’s narrative and Asconius’s description ......................... 79 III. 3. Handling of the facts of the case in Pro Milone ..................................................... 87 III. 4. The published version of Pro Milone – reasons for publication ............................ 91 III. 5. The motif of killing the tyrant as further development of lawful defence ............. 92 IV. Lawsuit of Quintus Ligarius ........................................................................................ 100 IV. 1. Historical background of Pro Ligario .................................................................. 100 IV. 2. Procedural issues of the lawsuit ........................................................................... 107 IV. 3. Pro Ligario as deprecatio .................................................................................... 110 IV. 4. Clementia Caesaris .............................................................................................. 114 IV. 5. The issue of legitimacy of Caesar’s power in the mirror of Pro Ligario ............. 116 V. Lawsuit of King Diotarus .............................................................................................. 122 V. 1. Historical background and procedural law awkwardnesses of Pro rege Deiotaro 122 V. 2. Shaping Caesar’s image as rhetorical tactics in Deiotariana ................................ 125 Conclusions ............................................................................................................................ 135 Lists of Bibliographical Abbreviations .................................................................................. 138 3 Preface The present monograph intends to get closer to understanding the mechanisms of handling of legal facts in cases, when Cicero’s defendees were charged with murder or attempted murder. Therefor five pieces of the orator’s life-work will be analysed more profoundly from legal and rhetorical aspects in terms of the lawyer’s handling of the facts of the case and rhetorical tactics applied by Cicero in these speeches. 1 The speeches given in defence of Sextus Roscius from Ameria in 81 2 and in defence of Aulus Cluentius Habitus in 66 were delivered in lawsuits brought by the charge of homicide— par(r)icidium and veneficium . These two speeches were made at the very beginning of Cicero’s career—as he established his reputation as an orator by Pro Roscio Amerino as a twenty-six years old young man—and in the first third of it (preceding consulship in 63); so, the former oratio shows great promise of becoming the master of rhetorical strategy and demonstrates his handling of the facts of the case now constituting an individual system, yet not free from certain exaggerations of a young man, and the latter one reveals the orator’s ingenious tactics, now mature, leading (misleading) the court of justice with formidable assurance. The speech given in defence of Titus Annius Milo in 52 was made in a lawsuit brought by the charge of vis . Vis (publica) as crimen covered a general group of crimes that comprised several states of facts from violent disturbance of public order to certain cases of manslaughter. Pro Milone represents an exception in two aspects both among the speeches analysed in the volume and left to us as Cicero’s life-work: on the one hand, this is the oratio whose original was delivered by the orator in a lost lawsuit, however, later on, guided by political considerations, he published its revised version; on the other hand, Pro Milone is the speech of which we exactly know that the version published by Cicero and left to us is different from the oration given before the court of justice not only in style and structure but in its essence. By Pro Ligario Cicero defended Quintus Ligarius before Caesar as judge, who also took a position in the civil war against Caesar, and who—after he had been given acquittal in legal terms and pardon in view of the real political situation—appeared among Caesar’s assassins 1 Despite the speech in defence of Caius Rabirius can be also regarded as a case of murder, because of its fragmentary text, it will not be analysed in this volume. 2 All dates relating to ancient events in this volume are BC. 4 on the Ides of March 44. The oratio made in defence of King Deiotarus is the fruit (if possible) of a both legally and rhetorically more delicate and critical situation: the judge of the case is identical with the injured party of the act brought as a charge, Caesar, that is, the proceedings, conducted in the absence of the accused, in which eventually no judgment was passed, should be considered manifestation of Caesar’s arrogance, who made mockery of the lawsuit, rather than a real action-at-law. All the three speeches have outstanding significance both in terms of the lawyer’s/orator’s handling of the facts of the case under circumstances far from usual or regular, and the development of the relation between Cicero and Caesar as well as the thoughts on the theory of the state framed by Cicero, the analysis of the fight against Caesar’s dictatorship gaining ground, for the sake of saving the order of the state of the Republic. Cluj Napoca, 13 February 2011 Tamás Nótári 5 Procedure of penal adjudication in Cicero’s age In the legal terminology of the age of the Republic the term “quaerere” indicated a body, which was operated under the control of the magistrate, consisting of iudices , and was to adjudge certain crimes. In what sense does the activity denoted by the verb quaerere apply to the operation of the court, or its specific elements? Most often quaerere denotes the activity of the magistrate controlling quaestio , sometimes that of iudices ,1 however, it is not used for the parties’ activity in the lawsuit. It is unclear what the function quaerere originally covered. Theodor Mommsen supposed that as part of the quaerere activity the magistrate controlling quaestio addressed questions to the defendant and the witnesses regarding the case. It is hard to prove this assumption because descriptions are available only from the periods after Sulla, and in this epoch the role of the magistrate and the iudices were rather passive, the way the lawsuit was conducted was controlled by the parties. Thinking of the criminal proceedings of the archaic age it is hard to imagine—knowing the complicated structure of the Roman order of procedure of this age strictly adherent to form—that the magistrate was free to address questions to the parties. Furthermore, quaerere can be explained in two other ways: this term was used to denote the investigation conducted by the quaestio on the case, or the question of the magistrate controlling the quaestio addressed to iudices regarding the defendant’s guilt. The first interpretation fits the order of procedure used in the 1 st century B.C., but cannot be applied— as Theodor Mommsen’s assumption cannot be either—to the legal order of the archaic age. The latter interpretation can be seen as fully corresponding to the early order of procedure, and can be brought into harmony with the sources of the 1 st century, if it can be supposed that the original meaning of the word had obscured, and that is why certain loci refer to iudices as the subjects of quaerere .2 It is in this sense quaestiones perpetuae can be postulated from the 2nd century using Cicero’s formulation. 3 These forums can be called permanent because at the beginning of the official year the praetor urbanus made a list enumerating the name of the members of the courts of justice typically assigned to adjudicating specific crimes, which was in effect throughout the year, so there was no need to set up new courts of justice in each case. In addition to quaestiones perpetuae , or ordinariae , there were quaestiones extraordinariae 1