Chapter 2

In this chapter I want to consider one of Cicero’s murder cases, pro Roscio Amerino, making some comparisons, where relevant, with pro Cluentio of some fourteen years later, which is also concerned with death in the upper ranks of municipal life. (In each there is an all-purpose off-stage villain, Chrysogonus in pro Roscio, Oppianicus senior in pro Cluentio. In each Cicero starts by saying that he will prove positively his client’s innocence, but later, quite properly, reverts to throwing the burden of proof on the accuser.) The speech on behalf of Sextus Roscius from Ameria is one of Cicero’s earliest, and his first criminal trial; he was probably twenty-seven years old when he made it in 80 BC.1 (We have one earlier speech surviving, pro Publio Quinctio, delivered the previous year, which dealt with a fairly complicated matter of partnership, inheritance and debt; we do not know the result.2). The charge was not simply murder, but more specifically parricide, the murder by the defendant of his father. Sextus Roscius’ acquittal seems to have made Cicero’s name as a forensic orator.3

All we know about the case comes from this speech of Cicero’s, so there is no external account of it from which we can estimate his truthfulness. Naturally his picture is slanted; he was an advocate appearing for the defence, and it was his duty to make the best possible argument for his client. He argues that the balance of probabilities, which was what a Roman jury had to decide – videtur fecisse/videtur non fecisse – was that Magnus and Capito, two of the Roscii, one of the leading families, or indeed clans, in Ameria, had brought about Sextus Roscius senior’s death, and certainly the loss of his estate. The first charge does not appear, even on the facts as Cicero gives them, to be at all likely; the second is much more convincing. Cicero’s defence is based, as was common with the Romans, more on character, which was held to be consistent, than on objective evidence. Cicero’s character evidence for Sextus is mostly in the form of a rhetorical topos, a disquisition on the superiority of rural life; his client is represented as a countryman, and so ex hypothesi respectable, but he does at least provide such a laudation.4 Cicero’s reliability in setting out exactly what had happened may be doubted, but he would have been limited by the need for plausibility, particularly as to the kind of facts with which the members of the jury would be well acquainted. To have been caught out in a direct untruth (as opposed to a misdirection) would have damaged his credibility; oratory might be used to make the worse appear the better part, but there were rules to the game.

Sextus Roscius junior’s trial, like that of Cluentius, took place before the quaestio perpetua de sicariis et veneficiis;5 both trials reflect a society where the ravages of civil war had undermined social stability and trust, in the Italian municipalities perhaps even more than in Rome. Before looking at the actual trial, I shall give an outline of the court system, and then a rapid survey of the political background.

The system of the standing jury-courts

The quaestiones perpetuae were the standing jury-courts, of which the first had been established in 149 BC by the lex Calpurnia de repetundis to deal with extortion in the provinces by Roman magistrates. These courts were in permanent session in the sense that, whenever a relevant accusation was made, the praetor in charge of a particular court for the year in question could proceed at once to the enrolment of a jury, chosen from an album (list), also valid for the year. The list of potential jurors or iudices6 was drawn up annually by the Urban Praetor; the jurors were taken from the upper orders of society, sometimes senators, sometimes equestrians,7 sometimes – and always after 70 BC – from both orders.8 This question of the composition of the juries was, for some fifty years after C. Gracchus’ changes in 122 BC an extremely sensitive political question.9 In the 80s Sulla had reversed the Gracchan use of equestrian jurors and in his time the juries were composed exclusively of senators.10 There is a noticeable difference in Cicero’s attitudes to the jurors in pro Roscio and pro Cluentio. In the trial of Sextus Roscius there was a Sullan jury, all senators, comprising perhaps 32 iudices. Cicero speaks respectfully to them as representatives of all that is best in the res publica. In the later trial there was a mixed jury, with probably some 75 iudices, and Cicero could refer to a senatorial jury of 74 BC as having been heavily bribed; this indeed was an important part of his defence of Cluentius. The senatorial members would have had to accept this, because it was a notorious scandal, and the equestrian jurors might have been secretly somewhat amused.

During his dictatorship in 82–81 BC only a year or so before the trial of Sextus Roscius, Sulla revised the statutes governing the standing jury-courts, creating for the first time a systematic criminal legal system.11 Each statute defined its crime, and laid down the procedure and the penalty.12 This was the ordo iudiciorum publicorum, or simply the ordo, further and finally regulated by the Emperor Augustus.13 There is no reason to doubt that Sulla did intend the courts to take over the care of public order; otherwise he would hardly have established or re-established them. There were courts, each set up by its own statute, dealing with treason (maiestas), with extortion by governors in the provinces (de repetundis), with the embezzlement of public funds (de peculatu), with the forging of documents and coining (de falsis), with murder (de sicariis et veneficiis), and probably with assault (iniuria) and with electoral corruption (ambitus). The quaestio perpetua de vi (violence, sedition) was post-Sullan; it is unclear whether it was established by the lex Lutatia or the lex Plautia.14

Each court dealt with one crime or group of crimes: for example, the misappropriation of public monies properly received – de residuis – fell under the court for the embezzlement of public funds, and the acceptance of bribes by those involved officially in the judicial process was classed as extortion. Each court had a magistrate, normally a praetor but sometimes an ex-aedile – in either case he could be called quaesitor (but the term iudex quaestionis seems restricted to the ex-aediles) – who was appointed, or rather allotted, by the Senate to preside over it for the year of his term of office. It was to him that accusations were made, and it was his duty to decide whether the accusation was competent and should be accepted. There might need to be a preliminary hearing, with a jury, if there were several persons seeking to bring an accusation;15 this was because only one man could speak as the formal accuser, but he was allowed supporters, who were called subscriptores. If there were multiple charges, it was for the praetor, presumably the Urban Praetor, to allot the case as seemed most suitable according to set rules.16 A majority verdict was required for a condemnation.17

The quaestio perpetua de sicariis et veneficis

The quaestio perpetua based on the lex Cornelia de sicariis et veneficis had become by Sulla’s time, with the bringing together of two older courts, the single murder court.18 It also had jurisdiction over parricide,19 urban arson,20 and in some cases the corrupt procuring of the condemnation of an innocent person on a capital charge.21 C. Sempronius Gracchus, in whose tribunate all-equestrian juries had been introduced, had had a law – apparently the first on the topic since the Twelve Tables22 – passed against any form of judicial corruption, ne quis in iudicio circumveniatur, which had been aimed at abuse of official power rather than bribery. This law may originally have had a quaestio of its own,23 but it seems to have been subsumed into Sulla’s murder statute in altered form to fit the new circumstances. Earlier, the quaestio de sicariis had dealt with gangsters (the urban equivalent of rural bandits), professional thugs and killers, which explains why the language used in the statute is apparently more concerned with going about armed in preparation for committing murder or theft than with actual killing; attempts very definitely fell within its scope.24 This kind of behaviour came to be dealt with primarily by the legislation on vis in the 70s and later. The quaestio de veneficiis was at least as old as the century and probably dated back to the 120s BC; there had been several notorious quaestiones extraordinariae earlier in the second century to investigate particularly shocking cases of poisoning.25 The fifth chapter of the lex Cornelia covered making, selling and buying poison, as well as using it or arranging for it to be used.26 The penalty of the law was technically capital, death, but it had become customary, by the middle of the second century BC according to Polybius,27 to allow those condemned in the assembly trials to go into exile, as long as even one century had not voted; this custom seems continued in the quaestiones perpetuae. Julius Caesar was to formalize interdiction from fire and water – outlawry – as the penalty, along with confiscation of half or all the convict’s property. It remains obscure whether this applied to those convicted of crimes not covered by the quaestiones perpetuae.

The lack of a state prosecution service and the moral ambivalence of prosecution

One of the main features of Roman criminal procedure is that the Romans never had a state prosecution service, although prosecution ex officio by a magistrate or provincial governor was known. For 500 years or more they relied primarily upon crimes being brought before the criminal courts by individuals, normally the victim or his kin, or else (probably) upon private criminal prosecution before the civil courts;28 this was presumably effective while Rome was a small Italian city-state. In matters where the safety of the state was involved, a magistrate would bring a charge before an assembly of the people – such trials were called iudicia populi. But as Rome grew, and urban life became more impersonal, it became normal, particularly after the establishment of the quaestiones perpetuae, to allow any adult (male) citizen in good standing to bring an accusation if he became aware of a crime; indeed, it became something to be encouraged, even rewarded, and it was with the rewards that moral doubts developed. Plautus in one of his plays has a professional parasite (a low character) unwilling to be an informer (neque quadruplari me volo); it was unbecoming to snap up the property of others without personal risk, and the character would like a law making the successful accuser give half his proceeds to the public purse.29 Accusers were technically delators, delatores nominis, since they laid before the president of the relevant court the name of the accused; the term is often translated by ‘informers’. Index, indices in the plural, is another term sometimes used for these men, because they pointed out, indicated, the allegedly guilty, but generally indices were closer to informers in the modern usage of the term; they were likely to be persons on the fringes of the crime under investigation.30 As Cicero said in pro Roscio:

It is a useful thing that there should be a number of accusers in the state, so that audacity may be held in check by fear, … This is the reason why we are all ready to allow that there should be as many accusers as possible, because an innocent man, if he is accused, can be acquitted, but one who is guilty, unless he is accused, cannot be condemned. For it is more expedient that an innocent man should be acquitted than that a guilty man should not be brought to trial.31

Personal enmity or desire for revenge were considered good moral grounds for prosecuting, whether the prosecutor was the victim of a crime, or connected with him (or her). This was because the Romans held that a degree of self-help was normal and proper in a citizen’s life, although the interests of society might demand the involvement of the authorities. ‘The ordinary Roman had to be his own policeman, but he must have needed a reasonably accessible procedure to deal with capital crimes.’32 To initiate violent action was wrong, and became more so as the Empire developed, but there ought to be a balance in society between the interests of state and individual. (It was perhaps not so very different from the culture of the American West.) The institution of clientage meant that the poor would be under the protection of the powerful, thus making the playing-field more even. There was no police force, as there was not in modern Europe until the eighteenth century at the earliest. (And, as I said in my Introduction, there was not really a criminal law in Rome in the modern sense, but then, neither was there in Europe before the twin forces of the Enlightenment and the Industrial Revolution.33) Self-help was nevertheless approved, not because the forces of law and order were inadequate, but because it was morally good,34 and this particularly applied to domestic offences such as rape and adultery.35

Prosecution was, however, because of its rewards, held to be a morally ambivalent act, which is why Cicero normally appeared for the defence. Sometimes loyalty, whether personal or to a province or city, could justify prosecution, as with his prosecution of Verres.36 And it was not too deplorable for a young advocate at the start of his career, before anyone would ask him to act for the defence, to bring his name into prominence in this way. Yet Cicero viewed with contempt those who made a profession of accusing. This was an attitude widely held. Quintilian, for example, a century later, said that while accusations might be made from either public or private duty, and although the laws would be powerless if nobody prosecuted, yet to live for prosecution and its rewards was brigandage – latrocinium.37 To prosecute for pay was shameful, or even criminal. Because of this system of private prosecution, and in particular because successful prosecution could be lucrative, there developed the offence of calumny under the lex Remnia, perhaps of 91 BC, extended in the Edict of the Urban Praetor.38 This was the bringing of a false charge, from malice, or frivolity, or at least with reckless disregard for the truth. Failing to make good one’s accusation did not of itself infer calumny, but after an acquittal it was the duty of the court to consider the issue.

The Social War and Sulla’s dictatorship

To move now to the political and social background to pro Roscio Amerino (and also pro Cluentio).39 Partly as a result of the military burdens laid upon them by Rome’s various wars, the Italian allies of Rome had been desirous of the Roman citizenship – and its freedom from taxation – since at least around the beginning of the first century BC. In 91 BC a revolt broke out which rapidly escalated into the Social War, the war of the socii or allies, which lasted some three years. It did win the Roman citizenship for all Italians south of the River Po, ‘but at a terrible cost in human lives and suffering; its economic repercussions were serious’.40 Sulla became consul in 88 BC, after the end of the war, and received Asia, and dealing with Mithridates, the ambitious king of Pontus, as his province. The tribune Sulpicius, however, contrary to the conventions of the constitution, carried a law to transfer this command to Marius. Sulla and his army marched on Rome, seized the City and annulled Sulpicius’ laws. Sulpicius, despite his tribunician sacrosanctity, was killed; Marius was declared a public enemy and fled to Africa. Octavius and Cinna, who appeared friendly to Sulla, were elected consuls. Sulla then went off to the East, where he defeated Mithridates and restored Roman power. Cinna’s behaviour was such that Octavius declared him a public enemy, but in vain; Cinna joined Marius, back from Africa, raised armies and took Rome, looting and murdering for five days. Cinna and Marius were elected consuls for 86 BC, but Marius died, and for the next three years there followed what is known as the domination of Cinna in the popularist interest. Cinna, however, was killed in 84 BC, and in 83 BC Sulla returned from the East; open war then broke out again between himself, supported by the party of the optimates, and the younger Marius, leading the populares. A number of senators were slaughtered in Rome on the orders of Marius junior shortly before Sulla reached the City. Sulla was victorious in 82 BC; he showed clemency to those who were swift to submit, but a terrible massacre of those taken prisoner at the battle of the Colline Gate of Rome was the fate of those who resisted.41

The proscriptions

Under the lex Valeria of 82 BC Sulla became dictator legibus scribundis et rei publicae constituendae. He then issued an edict, proscribing his enemies.42 ‘Proscription’43 meant in practice publishing a list of those who were held to be enemies of the state; they were deprived of all rights, so that it was no crime to kill them. Indeed, rewards were paid to those who did kill them – 12,000 denarii a head, a literal head, which was to be publicly exposed in Rome; the 12,000 denarii were paid from public funds under proper accounting procedures. The reward for slaves was their freedom. Anyone who in any way assisted or helped one of the proscribed was to be capitally punished, as was anyone who failed to betray any of them. Once beheaded, the proscribed were not to be allowed funeral rites, but their bodies were to be dragged by iron hooks and tumbled into the Tiber, in some cases after deliberate mutilation.44 Mourning them was forbidden.45 Their estates were confiscated and auctioned off; we are told that this was for the benefit of the buyers, rather than to raise any serious sums,46 since the rewards were not paid from this source. Their children and grandchildren were deprived of their civic rights; they could not stand for a magistracy, or hold any other honour, and may have been barred from living in Rome or Italy.47 This may have been introduced by the lex Cornelia on the proscribed, a law perhaps entitled lex de proscriptione, perhaps lex de hostibus rei publicae,48 which was subsequent to the edict, and may have been intended to give Sulla’s own supporters knowledge of the extent of the vengeance.

A story is told which reveals how people remembered the time of fear: Lucius Catiline had killed his brother before the civil struggle was decided, but he now asked Sulla to proscribe that brother posthumously; Sulla agreed, and in thanks Catiline brought the head of Marcus Marius Gratidianus,49 another of the proscribed, and his own brother-in-law, to Sulla where he sat in the Forum, and then washed his bloody hands there in the lustral water of Apollo.50 Such a background makes more credible Cicero’s list of charges in pro Cluentio against Oppianicus:

Oppianicus was the man who was convicted of falsifying with his own hand the public records of his town, who forged a will, who by fraudulent personation secured the seals and signatures of witnesses to a sham will, who murdered the man in whose name it had been signed and sealed, who put to death his own son’s uncle when a slave and a captive, who secured the proscription and death of his own fellow-townsmen, who killed his brother and then married the widow, who gave a bribe to procure abortion, who murdered his mother-in-law, murdered his wives, murdered at one and the same time his brother’s wife with her expected children and his brother himself, and finally murdered his own children, and who, intending to give poison to his stepson, was taken in the act [not Oppianicus himself, but his minion, Scamander], and when haled to judgment after the conviction of his tools and accomplices bribed a juror to tamper with the other jurors’ votes.51

One must remember that (as we shall see in the case of Germanicus in chapter 3) it was very easy to allege that someone had been poisoned, since the Romans had no adequate knowledge of internal diseases. On the other hand, while we do not have to believe that Oppianicus did actually poison so many of his kin, it is clear that Cicero could put forward these allegations without arousing ridicule; the cheapening of life and the coarsening of sensibility brought about by the Social Wars and the period of the proscriptions must have helped make them credible.

The lex Cornelia de proscriptione included a further list of proscribed persons, and also confiscated the estates of those who had taken up arms against the res publica – that is, against Sulla and his party – including those who had fallen or would fall in the continuing fighting. The confiscation of estates52 seems to have been fixed to come to an end on 1 June 81, but the non-status of the proscribed was to remain in force for ever and everywhere; they could be sought out and killed wherever they were hiding.53 (Not until the lex Antonia of 49 BC were all the legal effects of the lex Cornelia undone.) The first lists included some 40 senators, 1,600 equestrians, and other country gentlemen of comparable status, men such as Sextus Roscius senior.54 ‘Those who fell victims to political resentment and private hatred were as nothing compared with those who were butchered for the sake of their property.’55

The civil strife had ripped apart the social stability of the Italian upper classes. The effects of constant wars ruined much of the Italian peasantry; conscription of adult males led to impoverished or indebted farms, with nobody there to protect them against forcible expropriation. Shortage of labour on the land led to shortages of food, and to the growth of kidnapping; an insufficiently armed traveller might well disappear for ever into the ergastulum of some successful Sullan, as did Marcus Aurius, taken prisoner during the Social War; his whereabouts were eventually discovered, but only in time for him to be put out of the way.56 Unrest among slaves culminated in the rising of Spartacus, which lasted two years (73–71 BC) and harmed much of Italy as his armies ranged over the peninsula. When the rebellion was at last put down by Crassus, 6,000 rebellious slaves were crucified along the length of the via Appia;57 these men too, as has been wryly said, ‘were permanently removed from the labour force’.58 Violence and bloodshed were taken for granted, as was the seizure of one’s enemy’s property, usually but by no means always under the pretext of his being an enemy of the res publica. The trial of Cluentius, some fourteen years after the restoration of legal normality, reveals the continuing harm done to municipal life, for the accusations made by Cicero, while obviously suited to his case, cannot have been totally implausible. But in 80 BC, when the charge of killing his father, parricide in the strict sense, was brought against the younger Sextus Roscius,59 the wars were not quite over – Sulla was still besieging Volaterrae under arms. Parricide might be viewed as a separate crime from murder, with a separate penalty, but it was hardly a common enough crime to justify a court specially assigned to it, so the case was heard before the ordinary murder court, recently re-established by Sulla.

pro Roscio Amerino: the case

Cicero opens his case with an explanation of his own appearance as advocate before the court. His very youth and lack of status – he was at this time an equestrian from one of the Italian municipia, in his case Arpinum, someone not so very different from his client – gave him more freedom to appear at a time when men of greater standing might with reason fear the dangers inherent in defending a case which would inevitably raise issues concerning public affairs. Kinsey’s suggestion that a landless refugee client was not worth much effort to the Metelli and Publius Scipio seems credible.60 Nevertheless, Cicero was presumably able to win some sympathy from the iudices by claiming that he was undertaking the defence of Sextus Roscius, not that he might be adequately defended, but to prevent his not being defended at all.61 Cicero then explained to the jurors what he was talking about. The property of Sextus Roscius senior had been valued at 6 million sesterces, and yet Lucius Cornelius Chrysogonus, the freedman and favourite of Sulla, claimed to have bought it, from Sulla, for 2,000 sesterces. Chrysogonus therefore was looking for some way to secure his illegal seizure, and to remove Sextus Roscius junior, the heir, from the scene.62 It was a gross indignity to their senatorial rank that the jurors should be thought capable of aiding such a plot by supporting Chrysogonus with the law when he had so far relied on crime and the sword.63

It was this attack on Chrysogonus that involved some risk to Cicero. An attack on somebody’s freedman was normally construed as an attack on the patron; Sulla had only just stepped down from a bloody dictatorship, able to do so because he had killed or impoverished all his opponents, but still holding the consulship and in control of an army. Moreover, it was almost certain that nearly all the men of continuing influence in Rome, including the jurors, would have benefited from sales of estates under the proscriptions; these were not to be undone. Cicero’s remarks about Sulla’s innocence, while tactful, need not be ironic;64 he was inclined to the party of the optimates in spite of being a fellow-townsman of Marius. There has been some attempt to diminish Cicero’s claim to courage in undertaking this defence, and it seems true that he probably inflated the importance of Chrysogonus and of his influence on Sulla; Chrysogonus is not mentioned in any ancient source independent of Cicero, which surely would have been the case if he had really been ‘at the time perhaps the most powerful young man in the state’.65 However, Cicero’s speech would have been far less effective if Chrysogonus had not been generally seen as a person of considerable influence. The apparent weakness (for we have only Cicero’s word) of the prosecution case could indeed have been due to the accusers not expecting to meet any resolute defence.

The narrative

Cicero remarks that this was the first murder trial that had taken place for a long time, although there had been slaughter in plenty, in other words, the proscriptions. This was, of course, because the civil wars had not permitted the ordinary functioning of the courts, which had now been revived by Sulla, and were intended to help restore normality. Cicero then turns to the facts of the case – naturally, as he chooses to give them. Roscius senior had been the leading citizen of the municipium of Ameria, an Umbrian hill town rather more than 50 miles north of Rome. He had also enjoyed formal relations of mutual hospitality (hospitium) with some of the most notable senatorial families in Rome, the Metelli, the Servilii and the Scipiones, and had in addition been personally on excellent terms with these families. They, and Roscius, had largely sided with the optimates, Sulla’s side in the civil wars, and Roscius had defended these families’ interests and those of other optimates in and around Ameria. After the end of the civil wars, he was regularly to be found in Rome, seen in public as one comfortably on the victorious side.66 However, there was a long-standing feud between Sextus Roscius senior and two other Roscii of Ameria, Titus Roscius Capito and Titus Roscius Magnus. Magnus was in court as one of the accusers, while Capito, who was well known, Cicero says, as a cut-throat scoundrel, had recently acquired three of Roscius’ farms. One evening, when Roscius was returning from supper, by implication with one of the senatorial families already mentioned, he was set on and killed close to the Baths of Pallacina, near the Circus Flaminius. At this particular time Magnus was in Rome, whereas Sextus was at home in Ameria, managing his father’s estates.67

The news of Roscius’ death was brought to Ameria by one Mallius Glaucia, described by Cicero as a man of no account, a freedman, and a client and familiar of Magnus, and he brought the news, and also the weapon used, not to the son, but to Capito. Although the murder had been committed at dusk, the messenger reached Ameria at daybreak, covering 56 miles in some ten hours with relays of light vehicles – and that was indeed brisk travelling, particularly in the dark.68

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