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Quem ego vobis, si quid habet aut momenti commendatio aut auctoritatis confirmatio mea, consul consulem, iudices, ita commendo, ut cupidissimum otii, studiosissimum bonorum, acerrimum contra seditionem, for40 tissimum in bello, inimicissimum huic coniurationi, quae nunc rem publicam labefactat, futurum esse promittam et spondeam.

once a year made a formal and from Lanuvium, such an official official sacrifice to Juno Sospita, sacrifice in his consulship would who had two temples at Rome. be doubly grateful to the ancient 35. suum: as Murena came deity of that municipium.

§ 1.

EXCURSUS II.

ROMAN CRIMINAL TRIALS.

AT the conclusion of the speech for Murena, it may be well in preparation for those for Sulla, Milo, and Sestius, to give in connected form an outline of the procedure in the criminal courts in Cicero's time.

I. All criminal cases were tried by the standing courts (quaestiones perpetuae), as remodelled by Sulla. We know of six of these, de repetundis (misgovernment), de sicariis et veneficis (murder), de ambitu (illegal canvassing), de peculatu (embezzlement), de maiestate (treason), de falso (forgery), but there were probably others. § 2. Cases submitted to these courts were tried by a judge and jury. The official title of the judge was quaesitor; the jury as a body was termed consilium, while the individuals composing it were called iudices. Whenever, therefore, the plural iudices occurs in a phrase relating to a criminal trial it must be translated 'jurors' or 'jury,’ never 'judges.'

§3.

II. The praetors, eight in number, were the Roman judges; but as two of these, the praetor urbanus and praetor peregrinus, were engaged with civil cases, six only were free to preside over the criminal courts, and to these six were assigned by lot the six courts men§ 4. tioned by name above. Over the remaining courts presided specially appointed officers (usually ex-aediles), who had the special title iudex

quaestionis as well as the general one quaesitor. The duty of the judge was merely that of a presiding officer. He was bound to see that the provisions of the law were strictly complied with, but was not allowed to direct or control the decision, which rested entirely with the iudices.

III. The jurors were Roman citizens living in the city itself, or in § 5. its immediate vicinity, and serving without pay. No one was eligible for jury duty who was invested with any of the higher offices of state, or who had ever been convicted of any offence affecting his standing as a citizen of full rights (civis optimo iure, p. 53, § 2). A list of men eligible for jury duty (album iudicum) was made up by the praetor urbanus at the beginning of his term, and was valid for the year. Of the jurors one-third had to be senators and two-thirds equestrians: § 6. of the latter class, one-half (i.e., one-third of the whole number) had to be tribuni aerarii, district presidents. Not much is known about these, but, as they were elected by the tribes, one-third of the jury was indirectly, at least, elective.

IV. A suit was begun by the accuser making application to the § 7. judge of the proper court for leave to bring the charge. As two or more persons might desire to prosecute the same man on the same charge, it was sometimes necessary for the judge to decide who should be the chief accuser (accusator), and who the supporters (subscriptores). When this had been determined by due inquiry (divinatio), the chief accuser made the formal charge (nomen detulit); and the judge, having first notified the accused (reus), and made sure that the accuser was a Roman citizen, duly registered the case (nómen recepit) upon his docket. He then fixed the day of trial, usually at an interval of ten days, and had the accused arrested and held for trial, or admitted him to bail.

v. On the day of trial the proper number (unknown to us) of § 8. jurors was chosen by lot from those not already engaged in other trials, but the accuser and accused had the privilege of challenging (reiectio) a certain number without assigning any cause. The remaining (consilium iudicum) were sworn, and the trial commenced. If it was not finished on the first day, the court adjourned to the next but one (perendie), and so on until the arguments of the counsel (altercatio) were finished, and the evidence was all in. The judge § 9. then called upon the jurors for their verdict, and apparently renewed their oaths. Each juror wrote his decision (sententia) secretly upon a tablet in one of three forms: A. (absolvo), 'not guilty;' C. (condemno), 'guilty;' or N. L. (non liquet), 'not proven.' The verdict was determined by a majority of votes, or, if there was a tie, the verdict was given in favor of the defendant. If the majority voted N. L., the case was tried again; otherwise, there was no appeal from the judgment of a quaestio.

§ 10.

VI. It will be noticed immediately that this procedure differs widely from ours. There was no professionally trained judge to sift the evidence, and sum it up for the jury. The quaesitores were changed from year to year, and the praetors at least were more apt to § 11. be skilful politicians than learned jurists. There was no class of professional advocates taking fees and living by their profession. Any citizen might accuse or defend any other, and, as a high reputation as a successful pleader helped a man to political distinction, many did So. Thus the relations of counsel to clients rested more than now $12. upon the grounds of personal feeling. Again it not infrequently happened that collusion existed between the accuser and the accused. The former frequently played into the hands of the latter by suppressing evidence, and conducting the case without energy (praevaricatio), and hence the chief security for an honest prosecution lay in § 13. the personal hostility of the two. Then no bounds were set to the matter of an advocate's speech. The time might be limited by the judge or by agreement, but the only measure of relevancy was the patience of the jury. It is safe to say that a modern judge would not allow half of any of Cicero's speeches to reach the ears of the jury. Lord Brougham declares that not one-sixth of the oration for Archias would be admissible in an English court. Great importance was therefore attached to an advocate's skill as an orator, and as much, perhaps, to his personal influence with the jury, and his posi§ 14. tion in the state. Other means, too, were employed to work upon the feelings of the jury. The accused was attended by crowds of friends; his wife, children, and parents surrounded him, and he and they wore old and filthy garments as a sign of mourning. Influential men were secured to testify in general terms to his character, memorials were presented from distant communities, and deputations were often § 15. present throughout the trial. Finally, bribery was too common to excite surprise, and was made all the easier because the jury was accessible to the agents of both parties instead of being kept apart as now. We may therefore conclude that while the Roman criminal law was administered more expeditiously than ours, it was not free from objectionable features.

M. TULLI CICERONIS

ORATIO IN CATILINAM TERTIA

AD POPULUM.

I. Rem publicam, Quirites, vitamque omnium ves- 1 trum, bona, fortunas, coniuges liberosque vestros atque hoc domicilium clarissumi imperii, fortunatissimam pulcherrimamque urbem, hodierno die deorum inmortalium summo erga vos amore, laboribus, consiliis, periculis 5 meis e flamma atque ferro ac paene ex faucibus fati ereptam et vobis conservatam ac restitutam videtis. Et si non minus nobis iucundi atque inlustres sunt ii 2 dies, quibus conservamur, quam illi, quibus nascimur, quod salutis certa laetitia est, nascendi incerta con- 10

TITLE: Tertia: read p. 34, §§ 58-60; review p. 31, §§ 50-55. AD POPULUM; see on Title of the Second Oration.

Exordium § 1-§ 3. 24: You are rejoicing over the safety of the city, and waiting to hear how that safety has been assured.

§ 1. 1, 4. Quirites: see on II. 1. 1. hodierno die hodie; for date, see p. 35, § 59 ad fin.

=

7, videtis: a general idea of the events of the morning and preceding night had spread through the city, but particulars were wanting.

8. Et si: as often the conditional clause cannot be distinguished in sense from a causal (quod, quia), so in English.

§ 2. 10. nascendi condicio, the terms of birth;' i.e., the lot into which we are born.

dicio, et quod sine sensu nascimur, cum voluptate servamur, profecto, quoniam illum, qui hanc urbem condidit, ad deos inmortalis benivolentia famaque sustulimus, esse apud vos posterosque vestros in honore 15 debebit is, qui eandem hanc urbem conditam amplificatamque servavit. Nam toti urbi, templis, delubris, tectis ac moenibus subiectos prope iam ignis circumdatosque restinximus, idemque gladios in rem publicam destrictos rettudimus mucronesque eorum a iugulis 3 vestris deiecimus. Quae quoniam in senatu inlustrata, 21 patefacta, comperta sunt per me, vobis iam exponam breviter, Quirites, ut, et quanta et quam manifesta et qua ratione investigata et comprehensa sint, vos, qui et ignoratis et expectatis, scire possitis.

25

Principio ut Catilina paucis ante diebus erupit ex

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11. sensu, 'consciousness.' vo- mus, 'beaten down, turned aside,' luptate, a sense of pleasure,' the fencing terms. inlustrata, etc.: so-called 'pregnant' use of a word, the three participles are arranged the sense requiring an extension in the order of their importance of its strict meaning; for Eng- in Cicero's mind; in the order of lish examples, see Webster under time the series would be com'pregnant.' perta, patefacta, in senatu inlustrata.

12, 13. illum, qui: Romulus, deified under the name of Quiri- § 3. 21-23. per me, 'by my nus, and honored with a yearly agency,' a little more modest than festival on the 17th of February. a me or mihi. quanta . . . combenivolentia famaque, affec-prehensa sint: quanta is the tion and praise,' perhaps hendiadys. subject of the two passive verbs, 15, 16. is, qui, Cicero. tem- not of sint, to be supplied from plis, delubris, 'temples and them, but as this accumulation of shrines:' in this phrase the dis- interrogatives cannot be literally tinction is merely of size, though trans., turn thus: 'the imporstrictly the delubrum differed from tance, completeness, and method the templum in being dedicated to of these discoveries and proofs.' a particular divinity and implying always a building, or at least a shrine.

19, 20. rettudimus, deieci

Part first of the speech: the story of the arrest, 1. 25-§ 15. See p. 34, §§ 58, 59.

25-27. ut, in temporal meaning,

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