Historians in the twentieth century have scrutinized forensic speeches and the trials related to them for political content, in terms of the origin of the trial, the people involved, and their outcome. But the political aspect of trials, though sometimes important, has at times been misunderstood or exaggerated.
Politics certainly played a role in Roman trials, at least the ones from which a speech or other substantial evidence survives, in several ways. (1) Trials usually took place in standing criminal courts, which dealt with crimes that had a strong public interest component. (2) The trials often sprang from a political cause, since the prosecutor was a private citizen. Also, while public spirit might have sometimes been enough to motivate people to take on this substantial task, and while some legal rewards too were an inducement to prosecute under certain laws (Alexander 1985), the desire to harm a personal political enemy or inherited family foe must have often been an important motive. (3) If the prosecutor was not necessarily an enemy of the defendant before the trial, he almost certainly was such after the trial, and patrocinium (‘‘patronage’’) was a benefit that created a reciprocal obligation of the defendant. (4) The trials often had other political effects, because the defendant was often, though not always, a senator, with a political career at stake. A verdict of guilty brought infamia (‘‘disgrace’’) for him, often exile, and almost certainly the end of his political career. (5) Finally, it can readily be conceded that advocates often made political appeals in order to advance their cause, whether for the prosecution or defense. Cicero, in 66 bce, defended Cluentius against the charge of ‘‘judicial murder’’ - that is, the use of the courts to condemn an innocent man. (The charge was made on the grounds that in 74 BCE Cluentius, as prosecutor, had bribed a jury to condemn the defendant.) Cicero emphasizes that this charge only applies to senators. To gain the sympathy of the jurors (two-thirds of whom were not senators), he maintains that if they convict Cluentius under this provision, all non-senators will henceforth be held liable for prosecution for their verdicts as jurors, and also for their testimony as witnesses in the courts (Clu. 150-60). Similarly, Cicero culminates his defense of Murena, consul-elect for 62 bce, with the argument that Rome cannot allow a consul-elect to be convicted when Lucius Sergius Catilina is threatening her with ruin (Mur. 78-87).
But it would be a mistake to think that Cicero and the other advocates made these appeals to advance their own political views, rather than to win their cases. For example, in order to help his client Caelius, who was accused of having consorted with Catiline in the past, Cicero makes the embarrassing, and not necessarily true, admission that he too had once almost been taken in by his later mortal enemy Catiline (Cael. 14). Cicero’s expansive redefinition of optimates(‘‘the best citizens’’) to include almost everyone was delivered to help his client, not to voice his own views (Sest. 1328; Alexander 2002: 215). Advocates were by definition not speaking on their own behalf but on behalf of their clients (see Craig 2002a: 517-20 for a description of ‘‘persuasive process criticism,’’ which analyzes oratory in terms of the speaker moving an audience toward a persuasive goal within particular historical circumstances).
This approach should be favored over one that interprets trials as affording an opportunity for opposing political factions to marshal their forces to decide a fundamentally political, rather than judicial, issue. Particularly between the 1950s and 1980s, many articles and books appeared that analyzed trials in terms of the participants, and what these could reveal about the political alliances and feuds of the time in which the trials took place. Anyone connected with the prosecution was labeled a political enemy of the defendant, and anyone connected with the defense, his political ally. An overview of some Roman historiography will be helpful in understanding the origins and purposes of this ‘‘prosopographical’’ approach, and why it has fallen out of favor.
This approach was based in part on the sociological analysis of Gelzer, whose pathbreaking Roman Nobility (1912) sawfides (‘‘faith’’), involving the obligations between patronus (‘‘patron’’) and cliens (‘‘client’’), as a vital element in the Roman republican political structure, specifically the domination of the nobility. According to this analysis, one type of sucha patronus/cliens relationship occurred in the courts (Gelzer 1969: 86):
Political struggles were for the most part conducted in the courts.... These political trials were an everyday occurrence. Patrocinium in the courts was thus one of the prime expedients of the Roman politician; it opened up a path for him and helped him to maintain the position he had won. Because of its close dependence on oratory it was also capable of elevating the new man.
This concept of patrocinium, a word that refers to the protection offered by a patron to a client in both general and specifically judicial senses, provided an important element in the later prosopographical school of Roman history, which sought to understand Roman politics in terms of individual connections and careers. The foremost practitioners of this approach were MUnzer in his many articles that appeared in Real-Encyclopadie der classischen Altertumswissenschaft (1893-1980) on Roman politicians and in his 1920 magnum opus (MUnzer 1999), and Syme, whose Roman Revolution (1939) formed the starting point for all further work on the republic and the transition to the principate (see also Taylor 1949: 98-118). For prosopographers the identities of the many participants in both sides of a trial served as valuable clues in reconstructing political groups, termed factiones. This approach was given greater credibility by Badian’s brilliant explanation of the trial of Norba-nus in the mid-nineties bce, and the cast of characters who participated in it - a Metellan factio for the prosecution, and a Marian one for the defense. These groupings were portrayed by him, it should be noted, as malleable and impermanent (Badian 1957).
Yet, even at its height, doubts were voiced about the prosopographical method, not least by one of its foremost practitioners, Gruen, who spoke of the ‘‘perils of schematism’’ (Gruen 1971). Broughton (1972: 253-4) likewise, in a sympathetic explication of prosopography, notes some caveats with regard to trials:
Political use of the criminal courts was frequent and is clearly attested, but one must always allow something for the actual guilt or innocence of the accused, for the young orator’s effort to win personal distinction, or the ability of some leading aristocrat in peril in the courts to bring patrons of opposing views together in his defense.
The prosopographical approach produced much fruitful research into the trials of the late republic, but its application to trials hit a substantial roadblock with the publication of Brunt’s Fall of the Roman Republic (1988a). Not only did this volume contain a reprint of Brunt’s chapter on amicitia (‘‘friendship’’), in which he challenged Badian’s interpretation of the trial of Norbanus (Brunt 1965: 15), as well as pointing out that archenemies clodius and cicero both appeared for the defense of Marcus Scaurus in 54 bce (Brunt 1965: 14-15), but it contained a new chapter on clientela (‘‘clientship’’), in which the author denied that forensic clients were clientes in Gelzer’s sense (Brunt 1988c: 405), and moreover refuted the view that clientelae were important building blocks of political power at Rome and that patrocinium determined Roman voting behavior (Brunt 1988c: 424-31). Brunt showed that established advocates were willing to defend those to whom they had no prior connection. Prosecutions needed to be conducted rarely and with discretion; therefore, a Roman politician, mindful of the inimicitia (‘‘feud’’) that would be caused by a prosecution or hostile witness in a capital case, must have been very cautious about engaging in such activity (Brunt 1965: 13-14). As Craig points out in his magisterial survey of Ciceronian bibliography for the period 1974-99, Brunt’s work on clientela has led to a ‘‘paradigm shift’’ away from the view that a network of interpersonal connections determined the functioning of Roman politics (Craig 2002a: 523).
Riggsby has made a convincing argument that Roman jurors needed to believe in their own verdicts (whether or not the facts and the law warranted those verdicts), and oratory was crucial in persuading them to accept the arguments of one side or the other. The viewpoint critiqued by Riggsby takes two forms: emphasis on rhetorical trickery and emphasis on social standing (Riggsby 1999: 5-20; see also Alexander 2002: 31-8). According to the first view, ‘‘what won the juries over was not the validity of Cicero’s case, but the amazing boldness of his argument; not truth, but sheer unmitigated effrontery... truth itself, the guilt or innocence of Cicero’s client, was rarely very important... ’’ (Zetzel 1994). According to the second (Swarney 1993: 155):
The trial in all three cases examined here [Roscius of Ameria, Cluentius, Caelius] was not of evidence and documented reports about crimes, or legally definable versions of the truth, but of reputations and of place within the community.... What we witness in these events is less a judicial and more a social occasion.
Riggsby demonstrates on the basis of ancient evidence (especially Off. 2.51, where Cicero contrasts the verum (‘‘true’’) sought by the jurors with the verisimile (‘‘plausible'') employed by the orators) that the jurors believed that it was their job to decide on a verdict consistent with the truth, as they saw it (Riggsby 1997). Of course, Riggsby is not claiming that all Roman verdicts, or even most Roman verdicts, constituted the legally correct decision based on relevant facts and law, even if it were possible for us today to make that determination. Riggsby's formulation will, in my view, find acceptance, although Craig calls for more work to explain ‘‘how we are to comprehend the acceptance of Cicero’s deceitfulness by his juries/readers’’ (Craig 2002a: 519).
But even if an orator needed to persuade the jurors that his explanation of the case represented the truth, did not the nexus of social relationships, including political relationships, influence their perception of the case? In a limited sense, the answer must be yes - limited to the prestige of the advocate. The forensic speaker vouched for his case by the function of conciliare (‘‘recommend,’’ Cic. De Or. 2.115, 182). Since the Romans made extensive use of the ‘‘rhetoric of advocacy’’ (Kennedy 1968), the character not just of the client but also of the advocate had to be presented in a favorable light, and could therefore influence the jurors (Fantham 1973, for an analysis of conciliare and its application both to speakers and clients). Nor should there be any doubt that the character of the client played a role in the outcome, although in Roman eyes this was not an extralegal factor, but rather constituted evidence that allowed the jurors to assess how plausible it was that the defendant had committed the alleged act or acts that formed the basis of the trial (Riggsby 1999: 37-8; Alexander 2002: 34-6).
It might seem obvious that judicial speeches are directed at jurors, since they decide the verdict, but scholars have argued that the forensic orator spoke to a double audience - not just the jurors but also the corona. This ‘‘crown,'' or crowd of onlookers, gathered around a trial, since it was held in the open Roman Forum, and must have often provided exciting entertainment: ‘‘The Roman public played as large a part in these trials as the formal jury. Repeatedly Cicero speaks of the need to move the anger or sympathy not only of the upper-class jurors but also of the surrounding common citizens, whose hostility could affect and intimidate the jury'' (Fantham 1997: 121, see also 125; cf. Tatum 1999: 15; Millar 1998: 217-18).
Two passages from Cicero’s Brutus might seem to justify this point of view. He describes the ‘‘best-case scenario’’ for an orator in terms of audience reaction: the space around the trial is packed, the corona is numerous {multiplex), the juror is attentive {erectus), and when the orator starts to speak, the crowd itself calls for silence {290). Cicero had previously {200) contrasted the successful speech that holds the jurors’ attention with the unsuccessful speech that leads to jurors yawning, chatting, and checking the time, as well as requesting an adjournment. But in both passages, the emphasis is on the reaction of the jurors, and the corona is mentioned only as a gauge that a critic can use to assess the orator’s performance, not as the group to which the orator addresses his speech {Riggsby 1997: 243 n24; Alexander 2002: 36). To say that the reaction of the corona merely indicates how the speaker is doing is not to deny that it might have, on occasion, influenced the jurors, but neither of these passages speaks to that issue.
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