The Legal Procedure of Cicero's Time

and to employ the works of Cicero as the material for and the illustration of this picture. I came to the conclusion that the first method of treatment, although far the easier, would be both tedious and incomplete tedious, because it would necessarily involve repetitions and irrelevant digressions; and incomplete, because it would leave gaps, capable of being filled up from other literary records, which might be employed in a general discussion of the subject but which it would be difficult to introduce into a mere commentary on the speeches. I therefore adopted the plan of a systematic treatment. The danger of this course, of which I have been keenly sensible, is the necessity of dependence for many important details, about which Cicero tells us nothing, on other and for the most part later sources. But the difficulty is only real with respect to civil procedure. Cicero's speeches on criminal matters afford ample material for the reconstruction of the criminal courts of his time; on the other hand, his four speeches on matters of private law, with the numerous passing references to civil procedure which are contained in his other works, often supply hints and suggestions rather than principles or facts. How these suggestions fit into the scheme which is detailed for us by Gaius and other lawyers of the imperial period, is one of the chief problems which the first book of my treatise attempts to solve. Personally, I am convinced that the danger is smaller than it at first appears. A knowledge of the changes wrought by the constitution of the Empire can be employed to eliminate irrelevant elements: the principles of Roman process can be shown to be one of the most

durable things in Roman history, and the onus probandi usually rests on one who would deny the prevalence in the Ciceronian period of a legal rule enunciated by Gaius. Those readers, however, who do not feel such confidence as I do in the continuity of Roman procedure, may observe with satisfaction that, where Cicero or some republican source is not the authority, I have generally stated the existence of an institution as a probability and not as a fact.

But, if in some respects Cicero's evidence on civil procedure is too narrow, in others it is too wide. None of the speeches on criminal matters contain such obscure and subtle points as the four which deal with questions of private law. To consider such questions in the text or the notes would have spoilt the proportions and symmetry of the work. I have, therefore, treated these speeches in an appendix, and have devoted a brief commentary to each in turn.

The length of this book has far exceeded my original anticipations: but I intended it to be a work of reference, and, as compression would have spoilt it for this purpose, its growth was inevitable. I could not afford to neglect the full citation in the notes of any passage that had an intimate bearing on the text; nor could I omit passages which, though not necessary for proof, would appeal to a reader as not less difficult than those which were. The notes had to be compiled with an eye to the index of passages in Cicero which will be found at the end of the volume.

During the long time which I have spent in the correction of the proofs my knowledge of subjects already treated has often been increased and my

views have consequently been sometimes modified. The new views thus gained could not always be incorporated in the text, as the book was passing through the press. Hence the necessity for the additional notes which will be found printed after the appendices. They contain both second thoughts of my own and ideas that were suggested by friends who looked through my pages. I have been particularly fortunate in the assistance that I have received from the latter source. The book was read in manuscript by Professor Pelham, who made many valuable suggestions, especially as to its form. The proofs have been read by Mr. StrachanDavidson, whose helpful criticism has enabled me to correct errors and clear up obscurities. I am also grateful for assistance on special points to Professor Goudy, Mr. W. Warde Fowler and Mr. A. C. Clark. In the final verification of the references in the later portion of the work I am greatly indebted to a former pupil, Miss Muriel Clay of Lady Margaret Hall.

A. H. J. G.

Oxford,

January, 1901.