CICERO'S PRO CAELIO AND THE LEGES DE VI OF ROME IN THE LATE

REPUBLIC
by
REBECCA KISELEWICH
A thesis submitted in partial fulfillment
of the requirements for the
Degree of Bachelor of Arts with Honors
in Classics
WILLIAMS COLLEGE
Williamstown, Massachusetts
FEBRUARY, 2004
There is no system of law which affords a more favorable field for such
researches [into judicial development] than that of Rome. Roman law
occupies, in this regard, a place apart, which it owes, also, to the
abundance of documents of every kind, always permitting the
investigation of it to be approached from some new side; and which it
owes, further, to the enormous mass of work which has been put into it
during centuries by generations of commentators.
- P. Girard, Manuel ~le'mentaire de Droit ~ornain'
Table of Contents
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter I . Introduction 3
Chapter I1 . Law and Rhetoric in the Pro Caelio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Chapter I11 . On Defining the Lex Lutatia de Vi and the Lex Plautia de Vi . . . . . . . . . . . 30
Chapter IV . A Sullan Approach to Caelius' Indictment . . . . . . . . . . . . . . . . . . . . . . . . . 47
Chapter V . The Development of Ambiguity in Leges de Vi . . . . . . . . . . . . . . . . . . . . . . 59
Chapter VI . A Comparative Look at Caelius' Indictment . . . . . . . . . . . . . . . . . . . . . . . 69
Chapter VII . The Digest and Another Consideration of the Leges de Vi . . . . . . . . . . . . 81
Appendix A . Trials of Murder and Violence from 149 to 50 B.C. . . . . . . . . . . . . . . . . . 94
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bibliography 97
Acknowledgements: Infinite thanks to Professor Christensen for all of her help and
guidance throughout this entire thesis-writing process. to all of my professors at Williams
College for getting me to the point where I could write a thesis. and to my parents for all
of their love and support .
Chapter I. Introduction
After about 2000 years of investigation, much of the legal machinery of the
Roman Late Republic remains poorly understood. The following work brings this issue
into focus through the lens of the Pro Caelio, a defense speech that Cicero delivered (and
later revised for publication1) for the trial of Marcus Caelius Rufus in April of 56 B.C.
Firstly, examining the Pro Caelio shows how slander and gossip could be
transformed into acceptable Roman courtroom evidence, under the cover of the wit and
rhetorical craft of Cicero (Chapter 11). Furthermore, the speech serves as the basis for
analyzing the legal particulars of Caelius' trial. Its two internal references to the law
under which Caelius was indicted have led to a heated scholarly debate over the very
existence of one Roman law (the lex Lutatia de vi) and have confused our understanding
of another law (the lex Plautia de vi) (Chapter 111). The particular charge Cicero
addresses, vis ('political violence'), is unexpected considering the exact crimes that
Caelius allegedly committed. This irregular indictment illustrates the presence of some
ambiguity within the mid-first century B.C. Roman legal system (Chapters IV and V).
This ambiguity is further explored by consulting other criminal trials and the Digest of
Justinian, the main source of almost all of our current knowledge on Roman law, to
gauge how unique Caelius' indictment actually was and to look at the Roman criminal
process as a whole (Chapters VI and VII).
Overall, this study offers insight into the Late Republican legal system and some
of its problematic intricacies, which appear in part from what Nisbet calls the
"unanalysable charm which makes the Pro Caelio unique"", in part from our lack of
1
see Austin pp. 159-161 for a discussion of the composition of the Pro Caelio as we know it today
sufficient resources or documentation from Roman times, and in part from the ambiguous
nature of the Roman legal system itself.
Cause of the trialiii
Caelius stood on trial in 56 B.C. for five counts of vis. The charges against him
were as follows:
de seditionibus Neapolitanis ('concerning the sedition at Naples'),
de Alexandrinorum pulsatione Puteolana ('concerning the beating of the Alexandrians at
Puteoli'),
de lionis Pallae ('concerning the goods of Palla'),
de Dione ('concerning Dio'), and
de veneno in Clodianz parato ('concerning the poison prepared for Clodia')'".
These all stemmed from Caelius' alleged involvement in the desperate attempts of the
deposed Egyptian king, Ptolemy XI1 Auletes, to reclaim his crown. Ptolemy had initially
usurped the Egyptian throne in 80 B.c., after the death of his brother2. The unpopular
monarch felt that he needed to secure his rule with the support of powerful allies, so in 59
B.C. Ptolemy heavily taxed his subjects to collect a large bribe3 for Pompey and Caesar.
However, this plan meant to safeguard his sovereignty ended up backfiring - it enraged
the Alexandrian populace and thus forced Ptolemy to flee from Egypt. He went to Italy
to arrange for the assistance of the Roman army in restoring him as king4. When the
Alexandrians discovered his intentions in 57 B.C., they deployed a deputation of 100
people to the Roman Senate to halt Ptolemy's attempts. Ptolemy responded by trying
with violence to thwart their progress towards Rome - he arranged for a vicious mob of
local citizens to greet the Alexandrians when they reached Naples, and he attacked them
King Alexander I1
of 6000 talents
However, Ptolemy was largely unsuccessful, since the recipients of his bribe were not much help - Caesar
was away in Gaul, and Pompey had lost a lot of his power.
again when they docked at the port of Puteoli. Dio, the leader of the deputation and an
Academic philosopher, managed to arrive safely in Rome and took refuge at the house of
the senator Lucius ~uc c e i us ~. L. Lucceius' slaves were bribed to murder Dio, but they
were discovered in time, and Dio then moved to the house of Titus Coponius, who was
his acquaintance from Alexandria. However, Dio was murdered there in late 57 B.C. or
early 56 B.C."~.
The two main charges against Caelius (de Dione and de veneno in Clodiam
pauato) refer to the attempted murder of Dio and the attempted poisoning of Clodia. The
prosecution alleged that Caelius borrowed gold from Clodia under false pretenses in
order to bribe L. Lucceius' slaves to murder Dio, and when Clodia discovered this,
Caelius was said to have tried to poison her to conceal his first crime. The three
remaining charges appear to have been lesser ones that were taken along with the main
ones, since ordinarily they would have been dealt with in local courts or through private
arrangementsv. One charge (de seditionibus Neapolitanis) refers to his alleged
participation in the civil disturbance at Naples, and another (de Alexandrinorum
pulsatione Puteolana) refers to his alleged participation in the attack on the Alexandrians
at Puteoli. The last charge (de bonis Pallae) refers to damage to property of Palla, a
woman largely unknown to modem scholars, although she may have been the Palla
mentioned by the historian Dio Cassius as the mother or step-mother of Lucius Gellius
Poplicola, who married Sempronia Atratina, the adopted sister of Lucius Atratinus, the
5
L. Lucceius was "a close friend of Pompey, and Pompey was a friend of [Ptolemy]" (Wiseman [ed.] 1985,
61), so interestingly L. Lucceius was indirectly allied with his guest's arch-enemy.
~a r l i e r a decree had been passed by the Senate, which stated that Ptolemy would be restored to the
Egyptian throne with the assistance of the Roman army, but it was recalled before Dio's murder took place,
when a tribune opposed to Pompey had promulgated that a Sibylline oracle warned against helping the king
of Egypt. Ptolemy had therefore left Rome by the time of Dio's murder (Wiseman [ed.] 1985, 61).
Publius Ascius was officially accused of Dio's murder in 56 B.C. by Gaius Licinius Calvus, but Cicero
served as his defense speaker, and P. Ascius was acquitted.
main prosecutor of CaeliusVi. Not much else is known about these charges. Thus they
appear to be lesser charges, taken along with the remaining two charges of vis.
However, the prosecution of Caelius, in fact, did not arise from the circumstances
related to Ptolemy, but rather it "grew out of a personal quarre~"~". In 56 B.C. Caelius
accused Lucius Calpurnius ~ e s t i a ~ of electoral malpractice twice. On February 11,
Caelius and Cicero met in court, this time as opposing counsel, since Cicero chose to
defend L. Bestia for his actions in the election for praetorship of 57 B.c.""'. Cicero won
the case, and L. Bestia was acquitted, but Caelius did not give up. He began a second
prosecution of L. Bestia along similar lines, but for the upcoming elections. However,
these charges never went to court because L. Bestia's loyal son, Lucius Atratinus,
accused Caelius of vis in an attempt to rescue his father by interrupting, postponing, or
ending Caelius' prosecutionix~x.
Particulars of the trial
Caelius' trial was one of high importance to the Roman public. As Wiseman
points out, "great issues were at stake, and great performers [were] in action""'.
The trial took place in the quaestio de vi ('court for violence') located in the
forum in ~ o m e ~ on April 3-4,56 B.C., before the praetor Gnaeus Domitius Calvinus. It
was held during the ludi ~ e ~ a l e n s e s l ~ , when most of Rome was on a holiday. Cicero
whom Caelius had formerly supported in the election for praetorship in late 57 B.C.
'"A criminal trial] took place in the open Forum where everyone was free to come, look on, and listen.
The stage for the trial was an elevated platform [made of wood] . . . [which was one of eight erected] to
provide space for all the criminal courts.. . . Each platform was large enough to accommodate the presiding
judge and the jury, which sometimes numbered as many as seventy. On the benches below were the
defendants and the witnesses" (Taylor 1949,98-99).
l o a festival celebrating the introduction of Magna Mater Idaea to Rome, which symbolically took place
with the reception of a stone representing the goddess in the temple of Victory on the Palatine on April 4,
204 B.C. (for further reading see Fowler pp. 69-70)
provides evidence for this within his Pro Caelio: "diebus festis ludisque publicis,
omnibus forensibus negotiis intermissis unum hoc iudicium exerceatur" ('this one trial is
being held during these days for festivities and public games, when all legal business is
suspended')xii and "paucis his diebus Sex. Clodius absolutus est [here, in the quaestio de
vi]" (' a few days ago Sextus Clodius was acquitted9)""'. Austin analyzes these passages
and concludes that, in consideration of the known dates of Sextus Clodius' trial, the
remaining records from Cicero, and the timing of the ludi, Cicero must have spoken on
the fourth of April. Therefore, "in view of the number of speakers, and . . . as Cicero is
speaking last," the trial must have begun on the third, Austin c onc l ~de s ~' ~. Hence, in
place of the festivities for the holiday, the judge, jurors (approximately 70 of them,
according to Greenidge's estimationxv) and corona ('ring of bystanders') were treated to a
spectacle, which encompassed the main speeches delivered by the prosecution and by the
defense from opposing benches, followed by the presentation of witnesses''.
The prosecution spoke first, beginning with Lucius Sempronius Atratinus,
followed by Publius Clodius, and then Lucius Herennius Balbus. L. Atratinus, who was
12,xvi
only been 17 years old at the time, according to St. Jerome , served as the main
prosecutor of Caelius. He geared his argument toward destroying Caelius' character and
moralS13,xvii . His subscriptores ('assistant prosecutors~)"viii included P. Clodius, who was
most likely not the infamous brother of Clodia but rather a lesser member or freedman of
the Claudian family (as Austin points out, Cicero's scathing commentary on Clodius and
11
As Wiseman points out, "this
tactics of each side, particularly
(Wiseman [ed.] 1985,70).
postponement of testimony till the end is important for understanding the
in trying to neutralize in advance the effects of the opposition's witnesses"
12 "
Atratinus, qui xvii natus annos Caelium accusaverat ..." ('Atratinus, who, born was 17 years ago,
accused Caelius . . . ')
l 3 see Chapter I1 for a discussion of his "malediction
his sister could not have been included in the Pro Caelio if Clodius (the prosecutor) were
part of the prosecutionx'"), and L. Balbus, who was one of the Luperci priests and an old
friend of L. Atratinus' fatherxx. These two men addressed the charges at hand and
continued probing Caelius' moral fiberxx', although no copies of their speeches exist
today; our only knowledge of what they said comes from Cicero's references to their
speeches in his Pro Caelio, which are largely dismissive.
After the prosecution had presented its case, the defense had an opportunity to
counter. Caelius, Marcus Licinius Crassus, and Marcus Tullius Cicero spoke in that
order. Caelius spoke in his own defense and also pointed some blame to Clodia, who was
allegedly his ex-lover - remnants of his speech include a jibe that L. Atratinus' speech
was composed by Plotius Callus, a "hordearius rhetor" ('barley-blown speaker')""", and
a reference to Clodia as "quadrantaria Clytaemnestra" ('a two-bit Clytemnestra,' "i.e. a
husband-murderer who sells her sexual favors cheaply"xxl'l)""'v. M. Crassus, the richest
man in Rome and a triumvir at the timexxv, dealt with the charges de seditionibus
Neapolitanis, de Alexandrinorum pulsatione Puteolana, and de bonis Pallae - Cicero
declares in his speech that "illam partem causae [concerning those three charges] facile
patior graviter et ornate a M. Crassus peroratam" ('I am very pleased that this part of
the case [concerning those three charges] was dealt with fully by M. Crassus seriously
and e l oq~e nt l y' ) ~~~' . Cicero, who was by this time about 50 years old and well
established in Roman society14~xxv1', addressed the last two charges, de Di me and de
veneno in Clodiam parato, in his Pro Caelio.
14
Cicero been quaestor in Sicily in 75 B.c., aedile in 69 B.c., praetor in 66 B.c., and consul in 63 B.c.; he
delivered his Pro Caelio exactly seven months after his return from exile (see details below).
In the end, the defense won its case, and Caelius was acquitted by an unknown
majority.
Historical background of the trial
As Taylor describes, "a great criminal trial was a significant political event [as] . . .
cases were often inspired by political motives, and speeches for defense and prosecution
. .
might touch immediately on the problems of the day"xxv11'. Since the domain of the
criminal court was so inextricably tied up in the political as well as social interests of
Rome, a short investigation of the setting in which Caelius' trial took place may be
useful.
Caelius grew up in a truly revolutionary era that was full of "bitter partisan strife
,,xxix
. . . [in which] rival parties were striving by the use of arms for domination - it was an
age of great political upheaval. The disorder reached new heights in 88 B.C., at which
time Lucius Cornelius Sulla was consul. Thereafter Sulla briefly but effectively asserted
absolute authority over the State by marching on Rome to kill Sulpicius, a tribune who
had been appointed by Gaius ~ a r i u s ' ~ and whose harsh laws had caused public riots.
However, a subsequent victory by Marius forced Sulla to leave Rome. Sulla, therefore,
pursued a great military victory over Mithridates VI, the king of Pontus in Asia Minor
and Rome's "most persistent enemy"
16,xxx
. Upon Sulla's departure from Rome and then
Marius' death, Lucius Cornelius Cinna became the leader of the Marian forces and was
appointed consul. Cinna side-stepped official consular elections and remained in power
l 5 Marius had "established the role of the general in politics," an example which was followed by Sulla,
Pompey, Caesar, and others (Taylor 1949, 17).
l6 Mithridates had sought to challenge Roman rule and claim parts of Asia Minor and Greece as his own by
stirring up rebellion against the empire there.
as a tyrant for the next four years (87-84 B.c.). Under Cinna's rule Sulla was declared an
outlaw, and Valerius Flaccus, who had earlier allied with Marius and Cinna, was sent to
replace Sulla in the coveted position as commander of the mission against Mithridates.
After tremendous conflict for several years, Sulla returned and emerged as
dictator of Rome from 82 through 79 B.C., at the end of which time, he retired and died in
the following year. In his wake, Rome was left troubled: "the terrible events and
kaleidoscopic changes of the past few years had created an atmosphere of nervous
suspicion, mean cupidity, and reckless despair""""'. The Republican political system had
been shaken, and this had severe repercussions that did not diminish for a while. In 78
B.C. Marcus Aemilius Lepidus, a consul at that time, planned an armed rebellion against
the government by reforming grain distribution, with the higher, "popular" goal of
restoring the tribunate, but Quintus Lutatius Catulus, M. Lepidus' co-consul, prevented it
from taking place. Therelore, in the following year M. Lepidus attempted to stage a coup
d'etat by raising an army in Italy and Gaul, but Q. Catulus again stopped him, and M.
Lepidus fled from ~ome " " " ~~. Gnaeus Pornpeius (commonly known as Pompey), a
prominent general of the time, then sought to establish peace in Rome, and was elected to
the consulship along with M. Crassus.
All of this political turmoil had led to the creation of violent political factionsxxxiii.
As Robinson states, this situation was potentialIy lethal to the state, since
a condition of anarchy and violence lay the opportunity of political
adventurers, who, in the hope of retrieving their own personal fortunes,
were prepared to plunge the whole state itself into the throes of
r e ~ ~ l u t i o n ~ ~ ~ ~ ~ .
An expression of the underlying social problems emerged in the figure of Lucius Sergius
Catilina (commonly known as Catiline), "an impoverished and ambitious patrician
noble"xxx". Having lost two consular elections (to Cicero and Gaius Antonius Hybrida in
64 B.c., and again in 63 B.c.), Catiline made plans in 63 B.c. to bum Rome, kill Cicero,
and overthrow the government, but he was discovered and his plans did not come to
fruition. Cicero, the key senatorial figure fighting against the conspiracy, arranged for
the declaration of a senatus consulturn ultimum ('final decree of the senate,' basically
martial law that gave absolute power to the consuls to deal with an emergency).
Although Catiline fled from Rome, and Cicero had five of his co-conspirators put to
death without trial, the fissures in Roman society were not healed. The impact of the
conspiracies was "to be felt in Roman public life for many years"""""'.
Cicero was determined to achieve harmony and stability in the State by placing
Pompey as its defender and by smoothing class conflicts with the establishment of
corzcordia ordinem ('harmony of the orders')"""". However, his plan was foiled by the
Bona Dea scandal17 in 62 B.C. and controversy concerning the taxation of thc Near ~as t " ,
both of which pitted the senatores and equites against each other. Pompey and M.
Crassus formed the First Triumvirate with Caesar in 60 B.C. in order to ensure Caesar's
election as consul in 59 B.c. However, in the following year Caesar began his campaigns
in Gaul, such that "[he] was well placed [as governor of Gaul] for observation and control
. . . of affairs in ~ome"""""~~~ , but he left Rome in an unstable position under the immediate
command of Publius Appius Claudius Pulcher (commonly known as Clodius, the name
l 7 In 62 B.C Clodius clothed himself as a female slave and intruded upon the Bona Dea rites, the worship of
an archaic deity that was performed solely by women. His trial appeared before a jury (composed largely
of equites), which was bribed by M. Crassus to acquit Clodius. In an angry response, the Senate tried to
revoke the lex Acilia of 122 B.c., which protected non-senatorial jurors from prosecution for corruption
and/or bribery. This trial also marks the beginning of the enmity between Clodius and Cicero, as Cicero
presented testimony against Clodius that disproved his alibi and slandered his family's name (Gardner
1958, 378).
l 8 This resulted in the opposition of M. Crassus and Cato and in the nullification of Pompey's prior efforts
in the Near East; see Gardner pp. 378-379 for details.
he assumed when he converted himself from a patrician to a plebian), the brother of the
infamous Clodia whom Cicero berates in his Pro ~ a e l i o " ~ " ~ ~ . Clodius exerted his power
by passing legislation forbidding the execution of Roman citizens without trial, like
Cicero's execution of the Catilinarians, such that Cicero was forced into exile in March
of 58 B.C. Since Pompey opposed Cicero's exile, tension began to dissolve the
triumvirate. In September of 57 B.C., after much dissent and the vehement lobbying of
Pompey and Milo, Cicero was finally called back to Rome and joyously received19. In
the same year Ptolemy took refuge in Rome from his over-taxed and angry subjects (as
detailed above). In 56 B.c., when Gnaeus Cornelius Lentulus Marcellinus and Lucius
Marcius Philippus were consuls, Rome was left in a politically and socially volatile state.
Against this backdrop of conflict, in which the foundation for a civil war was
brewing, Caelius came to trial. His trial offered yet another arena for discord, such as the
on-going battle between Cicero and ~ l o d i u s ~ ~ , to be played out.
Life of the defendant
Cicero introduces Caelius to the court as being in his "adulescentiae" ('time of
youth,' i.e., when he was a young man)"'. However, the exact year of Caelius' birth has
been widely disputed2'. According to Pliny, "C, Mario Cn. Carbone III coss. a. d.
quintum kalend. Zunias M. Caelius Rufus et C. Licinius Calvus eadem die geniti sunt,
ovatores quidem ambo, sed tam dispari eventu" ('M. Caelius Rufus and C. Licinius
Calvus were born on the same day, the fifth kalends of June, to C. Marius Cn. Carbone
l 9 see Chapter VI for further discussion
20 this time in the form of Clodia, whom Cicero identifies as the "moving force behind the whole trial"
(Gruen 1974,307)
21
see Austin pp. 144-146 for a good summary
111; they were certain both orators, but in unequal circumstances') - Caelius' date of birth
was the 2gh of May, 82 B.c."", although some scholars place it as early as 88 B.c."'".
Caelius was born22 to a Roman eques who governed land in Africa, but spent a lot
of time in Rome. M. Caelius senior placed his son in a tirocinium fori ('political
apprenticeship') in Rome with M. Crassus and Cicero, just after Caelius had assumed the
toga virilis, when he was about 16 years old. This training continued until 63 B.C.,
through Cicero's election as consul, at which time Caelius decided to cease supporting
Cicero and instead side with Catiline, who was then running for consul. Caelius most
likely withdrew his support of Catiline after he had lost his election and attacked ~ o m e ~ ' .
After serving under the proconsul Quintus Pompeius Rufus in Africa, Caelius
returned to Rome in 60 B.c., when he was between 22 and 28 years old. At this time he
"formally enter public lifenx1'" with intentions of malung a name for himself on his own,
without the assistance of ~icero""". In k t , to this end Caelius continued to ignore his
old ties with Cicero and successfully brought charges of extortion against C. Antonius,
who was Cicero's co-consul in 63 B.C. (C. Antonius, defended by Cicero, was
condemned in March of 59 B.c.)"'". Now "notable" for this victory, Caelius took up
residence with Clodius, the personal enemy of Cicero, in the fashionable Palatine quarter
of Rome, at which time he met and became intimate with Clodius' sister, ~lodia"'"'. It is
highly probable and widely assumed - although often mistakenly considered certain -
that Clodia is Catullus' Lesbia (and that Caelius is the Caelius mentioned in Catullus'
22
Caelius was born in Praetuttian Interamnia, which was a small town in Picenum in the Appenines, which
is about 100 miles northeast of Rome (Wiseman [ed.] 1985, 62; Englert 1990,4).
23 Even so, Cicero makes great efforts in his defense speech to clear Caelius of his decision to join the
future conspirator.
24,xlvii
poems 58 and 100 and the Rufus in poems 69 and 77) . Clodia was the widow of
Quintus Caecilius Metellus ~ e l e r ~ ~ , who died in 59 B.C.; she would have been about 36
years old when she met ~ a e l i u s " ' ~ ~ ~ ~ . Their alleged two-year love affair ended in 56 B.C.,
when Caelius left the Clodii residence for uncertain reasonsx1ix
In the same year, when he was between 26 and 32 years old, Caelius began his
prosecutions of L. Bestia, and then ended up in court himself (as discussed above).
Unlike in L. Bestia's trials, this time, when facing prosecution from L. Atratinus, Caelius
was supported by Cicero, along with M. Crassus. As Wiseman points out,
It much have taken all his charm to convince [Cicero and Crassus] that
his days of friendship with men like Catiline and Clodius were over . . .
but in the end, it was an offer neither [Cicero nor Crassus] could refuse.
Caelius was too valuable as an ally, and too dangerous as an enemy, for
either man to miss the chance of tying him down with a compelling
obligation1.
With his former mentors' assistance, Caelius was acquitted, and Atratinus' plans were
foiled becausc Caelius was able to pursue his prosecution of L. Bestia, resuming his
position opposite Cicero, and this time Caelius won (L. Bestia was condemned and sent
into exile).
Thus immediately following his acquittal in 56 B.C., Caelius prospered, whereas
his opponents did not. Clodia, whom Cicero shamelessly slanders in his defense
speechz6, disappears from history after the trial. Such an occurrence is, as Austin
believes, ". . . a factor which shows significantly enough the social importance of the
trial"". It also indicates the trial's capacity for political damage, since social status was
important as a feature of political standing. This illustrates the high costs for Caelius as
for further reading see Austin pp. 148-150
25 consul in 60 B.C.
26 see Chapter I1
he sat on trial, for he could have been the one socially and politically damaged, had he
been condemned.
Much is known of Caelius' successful life after his acquittal due to his extensive
correspondence with ~i cer o"~~". Caelius chose to pursue his political career; he served as
tribune in 52 B.C. and curule aedile in 50 B.c."". At this time he supported Milo and
opposed Pompey politically. He also acted successfully as prosecutor in a number of
cases1'". When civil war broke out in 49 B.C., Caelius sided with Caesar (he voted against
Scipio's motion in January to establish Caesar as a public enemy)'". Caesar rewarded
Caelius with an appointment as pvaetorperegvinus (praetor 'of foreign affairs') in 48
B.c., although this came as a disappointment because Caelius had his eye on the position
of praetor urbanus (praetor 'of the city'), the "senior praetorship"lvi, which Caesar
instead gave to Gaius Trebonius. Here Austin assesses that Caelius' "self-conceit and
volatile restiveness were at last to bring about his fall""ii. Caelius prescnted radical,
controversial proposals for debt relief that caused a riot and also his suspension from
OffiCel~iii
. He left Rome, turned against Caesar, and joined Milo again. He made a failed
attempt to use bribery to start a rebellion in southern ltalyl'" and was killed by the Gallic
and Spanish troops of Caesar in Thurii in 48 B.C., when he was between 34 and 40 years
old.
Austin evaluates Caelius as a "tragic" figure, a flawed yet talented individual who
suffered from the political turmoil of his time. Austin describes Caelius thus:
As a man he was passionate, vivacious, with a strong if sometimes
schoolboyish sense of humor, a handsome young man and a dandy, one
of three most skilled dancers of his time. As a politician he was an
opportunist and a cynic, too impetuous for any really consistent and
far-sighted policy in spite of his singular sensitiveness to the current
27 see Cicero Ad Farniliares, viii
trend of politics, too egoistic ever to be dependable, and too
independent ever to satisfy his egoism1".
Structure of the Pro Caelio
Exordium (introduction, 9 1-2)
Praemunitio (elimination of insinuations and construction of the case, 83-50)
ArgumentiolConfirmatio and Refutatio (presentation of arguments, 951-69)
Peroratio (conclusion, $70-80)
Girard 1906, 14-15
" Nisbet 1965,69
"'Berry 2000, 124-125; Austin 1960, 152-153; Wiseman (ed.) 1985,54-62
'" Austin 1960, 152
" Austin 1960, 152
"' Gardner 1958,403
""... Gruen 1974,305
""' Berry 2000, 123
'" Dorey 1958, 176
" Gardner 1958,400-401
"'Wiseman (ed.) 1985,69
xii
Cicero Pro Caelio, i. 1
xiii
Cicero Pro Caelio, xxxii.78
"'" Austin 1960, 151
"" Greenidge 1901,447
""' Austin 1960, 154
""" Berry 2000, 126
"""' Austin 1960, 154
"'" Austin 1960, 155- 156
"" Austin 1960, 156
""' Berry 1960, 126
""" Austin 1960, vii
"""' Berry 2000, 126
""'" Austin 1960, vii
""" Craig 1993, 107
"""' Cicero Pro Caelio, x.23
"""" Berry 2000, 122
"x"iii Taylor 1949, 98
""'" Taylor 1949, 1
""" Gruen 1968,248
"""' Robinson 1974, 160.
"""" Robinson 1974, 161
xx"iii Wiseman 1985,25 (Plutarch Caesar 6)
Robinson 1974, 175
xxXv Gardner 1958, 376
"x""i Gardner 1958, 376
x"X"ii Gardner 1958, 377
xxxviii
Gardner 1958, 384
xxxix Cook et al. 1932, 624
XI
Cicero Pro Caelio, ii.3
"" Pliny Historia Naturalis, vii.165
'lii Berry 2000, 122
"Iiii Austin 1960, vi
"Iiv Berry 2000, 123
Austin 1960, vi
"Ivi Austin 1960, vi
"Ivii Austin 1960, 148
"'""' Berry 2000, 123
""" Austin 1960, vi
1
Wiseman (ed.) 1985, 68-69
l i
Austin 1960, viii
lii
Austin 1960, ix-x
Iiii Berry 2000, 127
IiV Austin 1960, ix
Iv Austin 1960, xii
'" Wiseman (ed.) 1985,91
lVii Austin 1960, xiii
Iviii Austin 1960, xiii
li" Wiseman (ed.) 1985,91
I" Austin 1960, xiv
Chapter 11. Law and Rhetoric in the Pro Caelio
The legal framework of the Pro Caelio contains few references to the formal
charges against caelius1. Indeed, a third of Cicero's speech passes before even the
slightest mention of them ($301, and the majority of his speech is concerned with refuting
the prosecution's aggressive condemnation of Caelius' character2. On top of this, Cicero
includes only two passages on Roman laws, in which no law is either quoted or even
named3. Hence, for this reason Cicero has often been accused of intentionally ignoring
legal matters in this speech. However, Cicero rests his defense on the idea that the very
legal basis of Caelius' case - a charge de vi - is inappropriate, and for this reason Caelius
should be acquitted4. In this way, dealing extensively with strict legal issues does not
make sense. Instead, Cicero distracts the jury with the ridiculousness of Caelius'
prosecution and discredits the instigator of the prosecution.
Cicero, in fact, does not forsake a classical framework for a solid legal defense.
Indeed, he explicitly states that he will adhere to a legally-based arguments: in dramatic,
stylized rhetoric and with a flourish of tricolon crescens, Cicero promises, "argumentis
agemus, signis luce omni clarioribus crimina refellemus; res cum re, causa cum causa,
ratio cum ratione pugnabit" ('we [Cicero] will act using arguments, we will refute the
charges with evidence that is clearer than day; we will meet fact with fact, charge with
charge, explanation with explanation')'. For this purpose, Cicero recruits non-legal
information, such as slander and gossip, and makes it seem "true and convincing"". In
-
see Chapter I for a description of the charges
2
Although texts of the prosecutors' speeches do not exist today, much of their content can be ascertained
from Cicero's allusions to them in his Pro Caelio.
see Chapter I11 for a discussion of these two passages (8 1 and $70)
see Chapter I11
this way Cicero can create what Geffcken calls "an atmosphere of illusion"iii, in which he
can situate his formal defense such that it is acceptable as a courtroom speech against an
inappropriate prosecution5. As Riggsby notes, part of the genius behind the Pro Caelio
involves "Cicero's ability to radically restructure the jurors' understanding of the trial"'".
The first way in which Cicero accomplishes this is by redefining the particular
charges that he needs to address in his defense speech. With what Dufallo calls the
"famous distinction between accusatio . . . and maledictio"". Cicero divides the
prosecution's case against Caelius into two types of charges, the formal and the informal.
Initially, accusatio ('accusation'), what is covered by a lex and what is, in this case, the
"duo crimina, auri et veneni" ('two charges, of [stealing] gold and of [attempted]
6,vi .
poisoning ) , is the term that Cicero applies to the formal charges; maledictio
('slander'), what Alexander calls the prosecution's "character attack""", is the term that
Cicero applies to the informal charges.
Cicero introduces these two terms near the beginning of his speech ($7):
aliud est male dicere, aliud accusare. accusatio crimen desiderat, rem
ut definiat, hominem notet, argument0 probet, teste confirmet;
maledictio autem nihil habet propositi praeter contumeliam; quae si
petulantius iactatur, convicium, si facetius, urbanitas nominatur
('it is one thing to slander, it is another to accuse. An accusation needs
a charge to define a fact, to mark a man, to prove by [providing]
evidence, to confirm with a witness; slander, however, has no purpose
except to insult; if it is thrown around coarsely, it is called abuse, if [it
is thrown around] wittily, [it is called] s~phistication' )"~~~.
According to this passage, accusatio has a factual basis and a legitimate purpose in the
Roman legal system, whereas maledictio serves only as an outlet for anger and
vengeance. There is no overlap in these two definitions - as Gofoff remarks, the Pro
5
see Chapter I11 for a description of how Cicero makes vis seem inappropriate, and Chapters IV and V for a
description of how vis actually was an inappropriate charge
for attempting to kill Dio and Clodia, respectively
Caelio $7 establishes with "textbook clarity" that accusatio and maledictio are not the
same thingix. Cicero reinforces this idea when he goes on to describe how L. Atratinus
employed maledictio as a rhetorical weapon to captivate the jury rather than create a solid
case. The words "male dicendi" ('for the purpose of slandering')" appear twice in the
subsequent passage with intentional pleonasmxi to stress Cicero's admonition to the jury
that the prosecution's maledictio has a powerful ability to distort their accusatio.
However, having used his initial definitions to dismiss the prosecution's case as
improper, Cicero then re-presents the contrast between accusatio and maledictio: he later
explains,
Omaia surzt alia [besides the two charges of attempted murder and
poisoning] nun crimina sed maledicta, iurgi petulantis nzagis quam
publicae quaestionis . . . convicium est, non acc~isatio. nullum est enirn
fundamenturn Itorurn criminum, nullae sedes; voces sunt contumeliosae
ternere ab iraao accusaiore auiio aucioi-e emissiie
('all other matters [besides the two charges of attempted murder and
poisoning] are not charges but slanders, which are more [appropriate]
for an immoral dispute than for a public court . . . that is abuse, not
accusation. For there is no foundation of these charges, no basis; they
are insults produced heedlessly by the angry accuser who had no
a~t hori t y' )~".
According to this description, maledictio, if given valid reasoning and rationale, could be
considered accusatio. This comparison is less clear than the earlier one ($7). For
example, Cicero first states that maledictio absolutely cannot be crimina, but then he
immediately contradicts himself by referring to maledictio as crimina. This passage
reflects how Cicero confuses and conflates maledictio and accusatio in his Pro Caelio.
Cicero clearly does this when he cunningly makes it seem as if maledictio
composes part of the actual formal charges under which Caelius was being prosecuted.
In fact, Cicero does exactly what he rebukes L. Atratinus for doing - he uses maledictio
as a rhetorical weapon to distract the jury from the true accusatio (the charges auri et
veneni). Cicero devotes the entire praemuntio of his speech to refuting the prosecution's
maledictio. In this sense, maledictio functions as the basis for Cicero's defense, which
would ordinarily have been the prosecution's accusatio. Thus even though maledictio by
definition cannot legitimately be a component of the formal charges in a criminal trial,
Cicero twists his defense to make it appear as such.
The beginning third of the Pro Caelio contains a series of slanderous allegations
that, according to Cicero, constitute the prosecution's maledictio. The elements of
maledictio that Cicero presents as formal charges are as follows7:
obiectus est pater varie, quod aut parum splendidus ipse aut parum pie tractatus a filio
diceretur ('[Caelius'] father was brought up in various ways, because he was
said either to have been himself not distinguished enough [for an equites] or not
respected enough by his devoted son')""'
quod est obiectum municipibus esse adulescentem non probatum suis ('it was brought up
that the youth [Caelius] was not approved by his fellow citizens')"'"
quo$ obiectum est de pudicitia ('it was brought up about his morals [an allusion to
homosexuality] ')""
quod Catilinae familiaritas obiecta Caelio est ('intimacy with Catiline was brought
against ~aelius')""'
haud scio an de ambitu et de criminibus istis sodalium ac sequestrium . . . similiter
respondendum putem ( ' I am disposed to think that I should respond similarly
about electoral malpractice or the charges of political organizations and bribery
middlemen')xvii
quod aes alierzurn obiecturn est, sumptus reprehensi, tabulaeJlagitatae ('owing another
money [debt] was brought up, his expenses blamed, and his account books
demanded')xviii
Thus Cicero identifies the prosecution's maledictio repeatedly as containing those items
which "obiecti sunt" by the prosecution. Austin translates this verb as meaning "have
been brought into the case against [Caelius]""'". Such formal legal terminology, when
applied to maledictio, helps Cicero to ensure that the jury will accept the prosecution's
maledictio as part of the formal charges (seemingly).
After refuting elements of maledictio one-by-one, as if they were individual
pieces of the formal charges de vi, Cicero concludes his defense against them by arguing
see Alexander 2002, pp. 230-233; Alexander lists eight allegations similar to the ones mentioned above,
but also including an indirect reference to an allegation of Caelius' betrayal of Bestia (526)
generally that none belong in a quaestio de vi. As Gruen indicates, "not one of them [the
slanders] amounts to vis," in the way that Cicero presents themxx. Like his earlier style
when dealing with the separate elements of the prosecution's maledictio, Cicero also
generalizes these elements in legal expression: just as Roman laws were often named
leges de [some crime, such as 'vi'], Cicero describes the "charges" of maledictio as "de
corruptelis, de adulteriis, de protewitate, de sumptibus" ('for seduction, for adultery, for
wantonness, for extravagance'); he adds that they can be "copiose et graviter accusari"
('abundantly and seriously accused')xxi. This wording, which describes the prosecution's
maledictio using the language of accusatio, again conflates the two terms.
Cicero then accuses the prosecution of using such ridiculous, common "charges"
for youthful flaws to prejudice the jurors and trick them into indicting Caelius this way.
Cicero's statement sums up his defense against the maledictio by declaring, "Sed tu mihi
videbare ex communi infamia iuventutis aliyuam invidiam Caelio velle conflare. ituque
uno reo proposito de multorum vitiis cogitabamus" ('But you [prosecutors] seemed to me
to wish to excite hatred against Caelius for wickedness common to youth. And so
when one defendant was put on view, we were thinking about the vices of many')xxii.
Thus, as before, although Cicero censures the prosecution for trying to convict Caelius
under their maledictio by presenting it as if it were part of the formal indictment of
Caelius, Cicero tries to get the jury to exonerate Caelius along in the same lines.
Cicero's attempts to foster such an illusion with maledictioxxiii follow a constant
pattern in which Cicero repeatedly distorts the prosecution's arguments before the jury in
his Pro Caelio. As Wiseman contends,
It was in [Cicero's] interest not to present it as they [the prosecutors]
did, but to spend time and emphasis on minor points where he had a
plausible answer, and to skate quickly over the telling arguments, or
break them up and deal with them in a garbled piecemeal way in order
to damage their overall impactxx'".
Thus Cicero constantly reconstructs, exaggerates, and twists the prosecution's words to
suit his own purposes in winning over the jury. For example, according to Cicero, the
prosecution suggested that Caelius' father, M. Caelius senior, was "purum splendidus"
('too little splendid') and that "equitis . . . Romani essefilium criminis locon('being a son
of a Roman knight was grounds for a charge')""", but Austin observes, "Cicero has
distorted some remarks [such as these] for his own purposes, to rouse the annoyance of
the equestrian members of the jury [against the prosecution]" and thus gain sympathy for
Caelius"""'. Cicero also occasionally comments on the prosecution's presentation style
and colors it. For instance, he discusses how "te [L. Atratinus] invitum dicere
videbamus" ('we saw that he [L. Atratinus] spoke reluctantly7)"""" and "posuistis
[prosecutors] . . . tamen titubanter et strictim" ('you [prosecutors] made allegations . . .
nevertheless with hesitation and insinuations)""""', not because the prosecution's
arguments were actually presented that way, but because Cicero wants them to be
weakened before the jurors' eyes. In this way, Cicero's treatment of maledictio as if it
were part of the formal charges is consistent with his grand scheme to manipulate the
jury's perception of the prosecution's arguments and thus exempt Caelius from
conviction.
Another distortion that Cicero sets up in the praemuntio of his speech involves the
implicit definition of Caelius' "true" prosecutor not as the formal prosecutor (L.
Atratinus), who attacks Caelius "palam" ('publically'), but instead as Clodia, who
8,xxlx
operates "clam" ('secretly ) . Salzman argues that, although he does not explicitly
mention her until later, "from the outset [of the Pro Caelio] Cicero portrays Clodia as . . .
seeking revenge in court" for the wrongs supposedly done to her by her ex-lover,
Caeliusxx". Cicero alludes to her underlying and highly significant role in the trial even in
his exordium with phrases that Geffcken finds ". . . introduce suspense [and] hint at the
scandal to be revealed""""'. For example, Cicero says that Caelius is, in fact, "oppugnari
, XXXl l
. . . opibus meretriciis" ('being attacked by a wealthy courtesan ) and that L. Atratinus
"alicuius intolerabili libidine et nimis acerbo odio niteretur" ('depended too much on the
intolerable lust and bitter hatred of someone else')""x"l. In both cases, Clodia is the
unnamed but obviously referenced offender. Thus Cicero makes use of gossip about
Caelius and Clodia's illicit love affair and "repackages [it] in a manner appropriate to a
Roman
Allusions to Clodia in Cicero's defense against the prosecution's maledictio set
up the next step in his defense, which responds to the official accusatio (auri et veneni)
and depends entirely on exposing Clodia as the "horum duorum criminum . . . auctorem,
. . . fontem" ('the author of these two charges, . . . the source [of them]')9~xx"v. Wisernan
notes that, "imperceptibly, Cicero had guided his succession of arguments on the various
allegations about Caelius' morals and behavior to the point where he could naturally refer
to Clodia"xxxv'. Beginning his defense against accusatio (30)1, Cicero finally identifies
8
Alhough, as Dorey reminds us, it is not necessarily a fact that Clodia the motivating force behind the
indictment of Caelius - that is simply Cicero's take on the situation (Dorey 1958, 175-180).
Indeed, this is an idea repeated throughout the remainder of the speech - "crimen accusatores abs te . . .
dicunt se habere" ('the accusers say that they got the charge from you') (Cicero Pro Caelio, xx.50), e.g.
l o However, this is actually not the argumentio, but merely a slight of hand. It is considered to be a part of
thepraemuntio that is "devoted to clearing away the awkward side of [L. Atratinus'] revelations in so far as
they were damaging to Caelius;" however, "Cicero pretends that he is at last to deal with the actual charges.
But it is only a feint, and he uses Clodia's name . . . merely to play with it, cat-and-mouse fashion, to amuse
the jury until he is ready for the kill" (Austin 1960, 86).
Clodia by name for the first time as the "real" source of accusatio: he states that for both
charges "una atque eadem persona vevsatuv. Auvum sumptum a Clodia, venenum
quaesitum quod Clodiae davetuv, ut dicituv" ('one and the same person is involved. It is
said that the gold [was] taken from Clodia, poison that would be given to Clodia [was]
, xxxvii
sought ) , which is a sentiment he repeats at the actual beginning of his avgumentio
($51)". Thus Cicero claims that without Clodia there could be no case against
caeliuSxxxviii.
In this way, the invention of Clodia as the "true" prosecutor of Caelius is
elemental to Cicero's defense against accusatio. The substantiation of both issues
concerning the gold and poison was therefore dependent solely on Clodia's evidencexxxix,
and so "her credibility must be destroyed in advance""'. Cicero accomplishes just this
merely by having placed accusatio in the hands of an abhorrent perversion of a
prosecutor - the scandalous Clodia. Women had no Iegal standing in Roman trials, and
moreover, Clodia would have been acting illegally as a female prosecutor. Indeed, an
accusatrix, so to speak, would have been to the Romans as complete a contradiction in
terms as possibly imaginable, one that was ludicrous, outrageous, and entirely repulsive.
Cicero plays up this idea with other images of Clodia as a non-credible woman.
Damaging and derogatory epithets serve as Cicero main line of attack. For example,
Cicero's made-up mimus ('mime')"" of the mock-heroic battle at the Senian baths (where
the poison exchange allegedly took place) poses Clodia as the "imperatrix," a female
11
"duo sunt enim crimina una in muliere summorum facinorum, auri quod sumptum a Clodia dicitur, et
venerzi quod eiusdenz Clodiae necandae causa parasse Caelium criminantur. aurunz sunzpsit, ut dicitis,
quod L. Luccei sewis daret, per quos Alexandrinus Dio qui tum apud Lucceium habitabat necaretur"
('there are two charges from one woman of the lowest morals, one concerning gold which is said to have
been taken from Clodia, and one concerning poison which Caelius is accused of having prepared for the
purpose of killing Clodia. He took the gold, as you [prosecutors] say, and gave it to the slaves of L.
Lucceius, through whom Dio, the Alexandrian then living with L. Lucceius, would be killed') (Cicero Pro
Caelio xxi.51)
impemtor ('commander') of the prosecution's witne~ses""~. Cicero also stresses Clodia's
lack of respectability by calling her a mulier throughout most of his speech. This word
contrasts starkly with femina, which "bears a complimentary sense'' that mulier does
nOt ~l i i i
- Cicero uses femina to describe Quinta Claudia, a highly respectable female
ancestor of Clodia's, when he impersonates Appius Claudius Caecus, another long-dead
and distinguished Claudian ancestor12, in a grandprosopopoeia ('speech in character')13.
According to Salzman, "when Cicero cites 'Q. illa Claudia' as a paragon of virtue and
worthy of Clodia's emulation, he condemns Clodia's behavior [by comparison]," using
the different connotations associated with these two homonyms for 'woman'X1iv. Thus
Cicero devastates the prosecution's case by claiming that it depended entirely on Clodia,
since he identifies her as the covert prosecutor and utterly ruins her reputation and
potential credibility as a witness.
Having discredited Caelius' "true" prosecutor and "her" prosecution along with it,
Cicero then turns to the actual charges brought to the quaestio de vi - the accusatio auri
et veneni. As Wiseman describes,
Now that he had neutralized their prejudice against the defendant, and
drastically undermined the credit of the chief prosecution witness, he
could afford to get down to business at last [in 51]"'".
To prove that Caelius did not commit the crimes of which he was accused, Cicero uses
the rhetorical technique of fallacy or "dilemma," as Craig describes it'" He examines the
evidence in question and determines that, regardless of the particular situation and
contradictory options, the same conclusion can be indisputably reached using what Craig
calls "the appearance of exhaustive and invincible reasoning [that gives] the illusion of
l 2 Appius was censor in 312 B.C. and consul in 307 and 296 B.C.
13
see Austin pp. 90-91; this calling up of a witness from the dead is common in Ciceronian oratory, as
Clarke discusses (Clarke 1945,72,77)
l 4 see Craig pp. 105-121 for a more detailed account of the argument and use of dilemma in the Pro Caelio
refuting the accusation without doing so in any substantive way"x1vi. This strategy
enables Cicero to make Caelius and Clodia's love affair essential and supportive in his
refutation of the charges without explicitly confirming it. "The very structure of dilemma
as alternate possibilities which allow one to build an argument on a statement without
''xlvii
admitting that it is a fact is thus the perfect vehicle for Cicero's purpose , Craig
explains, especially considering how Cicero uses the ended love affair as Clodia's motive
in prosecuting Caelius.
Cicero's basic dilemma lies with the "prosecutor" herself". Cicero states that
regardless of Clodia's morality or lack thereof, Caelius is innocent: addressing Clodia,
Cicero challenges, "nobis da viam rationemque defemiomk. Aut enim pudor tuus
defendet nihil a M. Caelio petulantius esse factum, aut impudentia et huic et ceteris
magnum ad se defendendum facultatem dabit" ('give us a way and method of defense.
For either your sense of modesty will contend that nothing was done by M. Caclius
wantonly, or your impropriety will offer both him and the rest [of your lovers] great
capacity to defend themselves')x1viii. Riggsby generalizes this dilemma and summarizes
Cicero's argument as follows:
Clodia . . . either does not have a relationship with Caelius which would
make her alleged knowledge of his crimes plausible, or, if she does
have such a relationship, she is thereby implicated in such immorality
that no weight can be given to her te~timony"'~".
Thus Cicero shapes his argument so that in no way can Caelius possibly be guilty.
Cicero presents his defense of the charges of attempted murder and poisoning similarly -
15
In a similar fashion, to add authority to his witness, Cicero presents a pseudo-dilemma, when in fact it is
a "disjunctive question" according to Austin, in which both alternatives are true (Heller 1934, 142): "utrum
temeraria, procax, irata mulierfinxisse crimen, an gravis sapiens moderatusque vir religiose testimonium
dixisse videatur" ('whether it seems that a rash, wanton, angered woman [Clodia] made up this charge, or
whether a serious, wise and temperate man [Luccius] conscientiously gave his testimony') (Cicero Pro
Caelio, xxii.55).
regardless of the details of the situation, Caelius could not have received gold from
Clodia to murder Dio, and he could not have tried to poison her. Cicero contends,
Si tam familiaris erat Clodiae quam tu esse vis cum de libidine eius tam
multa dicis, dixit profecto quo vellet aurum; si tam familiaris non erat,
non dedit. ita si verum tibi Caelius dixit, o immoderata mulier, sciens
tu aurum ad facinus dedisti; si non est ausus dicere, non dedisti .... si
enim tam farniliaris erat mulieris quam vos voltis, istos quoque servos
familiaris dominae esse sciebat. sin ei tanta consuetude quanta a vobis
inducitur non erat, quae cum semis eius potuit familiaritas esse tanta?
('If [Caelius] was as intimate with Clodia as you [Herennius] wish him
to be, since you say so much about his lust, then he truly told [Clodia]
why he wanted the gold; if he was not as intimate [as you wish him to
be], then he did not give it. So if Caelius told the truth to you, o wild
woman, you knowingly gave the gold for a crime; if [Caelius] did not
dare to tell you, you did not give it.. ... For if [Caelius] was as intimate
with that woman [Clodia] as you [prosecutors] wish, he knew that those
slaves were also intimate with their mistress. If a closeness did not
exist for [Caelius with Clodia] as greatly as is alleged by you
[prosecutors], how could such an initimacy exist [for Caelius] with her
slaves?')'
These conditional clauses are meant to impart proof of Caelius' innocence to the jury
through the examination of all potential perspectives on the crimes with "apparent
rationality"". Thus Cicero finally "proves" his case.
In these ways, despite its deceptive lack of exact legal material, the Pro Caelio
actually functions as a strong, cohesive legal defense: Cicero's apparent substitution of
the prosecution's rnaledictio for their accusatio enables him to distract the jury long
enough to set up his unveiling of Clodia as the "true" prosecutor of Caelius, which then
enables Cicero to undermine "her" accusatio in the first place.
' Cicero Pro Caelio, ix.22
" ... Geffcken 1973,23
"' Geffcken 1973,23
" ~i g g s b y 1999, 104
Dufallo 200 1, 122
" Cicero Pro Caelio, xiii.30
"" Alexander 2002,229
viii
Cicero Pro Caelio, iii.7
'" Gotoff 1986, 125
" Cicero Pro Caelio iii.8
"' Austin 1960, 54
""... Cicero Pro Caelio, xiii.30
""I Cicero Pro Caelio, ii.3
"'" Cicero Pro Caelio, ii.5
"" Cicero Pro Caelio, iii.6
""' Cicero Pro Caelio, iv.10
xvii
Cicero Pro Caelio, vii. 16
"""' Cicero Pro Caelio, vii. 17
"'" Austin 1960, 46
"" Gruen 1974,306
""' Cicero Pro Caelio, xii.29
""" Cicero Pro Caelio, xii.29
"""' Geffcken 1973, 23
""'" Wiseman (ed.) 1985, 70
""" Cicero Pro Caelio, ii.3
"""' Austin 1960,46
xx"ii Cicero Pro Caelio, iii.7
""""' Cicero Pro Caelio, vii. 15
Cicero Pro Caelio, ix.20
""" Salzman 1982,300
Geffeken 1973, 12
"""" Cicero Pro Caelio, i. 1
xxxiii Cicero Pro Caelio, i.2
xxxi" Dufallo 2001, 121
"""" Cicero Pro Caelio, xiii.31
xxx"i wisemar? (ecl.) 1985, 80
xxxvii Cicero Pro Caelio, xiii.30
xxxviii
Cicero Pro Caelio, xii.32
xxxix Dorey 1958, 178
Wiseman (ed.) 1985, 83
xli
Cicero Pro Caelio, xxvii.65
xlii
Cicero Pro Caelio, xxviii.67
"Iiii Austin 1960, 93
""" Salzman 1982, 301
"'" Wiseman (ed.) 1985, 88
"'"' Craig 1993, 116
"Ivi i Craig 1993, 110
"'""' Cicero Pro Caelio, xx.50
"Iix Riggsby 1999,99
' Cicero Pro Caelio, xxi.53, xxiii.58
Ii Riggsby 1999,99
Chapter 111. On Defining the Lex Lutatia de Vi and the Lex Plautia de Vi
In his Pro Caelio Cicero obscures the legal issues at hand, the charges de vi, with
an elaborate verbal dance. Cicero's rebuttal to the charges against Caelius appears on the
surface to be rather insubstantial', since instead Cicero focuses on performing for the
jurors and berating Clodia'. Along with the lack of other documentation of Caelius' trial,
Cicero's skill at diverting the spotlight off the law and eclipsing the true legal particulars
of the trial creates a logistical mess. Cicero offers only two allusions to the law under
which Caelius was tried, and these do not even seem to concur entirely. Thus even the
specific law under scrutiny during Caelius' trial provides grounds for debate.
Gaps in lists of governmental officials and lost records of law codes have created
a storm of confusion over the legal fundamentals of Caelius' case. In particular, it is
uncertain whether Caelius was prosecuted under the lex Lutatia de vi (a consular law) or
the lex Plautia de vi (a tribunician or praetorian law, which is also known as the lex
Plotia de vi, and should not to be confused with the lex Plautia/Plotia de reditu
~e ~i d a n o r u m~) ) . Although it is known that both laws dealt generally with outbreaks of
political violence, which included the abuse of office, sedition, public disturbance, and
physical assault, many more specific details are missing. One challenge in considering
the legal issues of Caelius' trial lies in the fact that these laws are not well characterized
in general, and another lies within the confusing references to the laws themselves in the
Pro Caelio (discussed shortly).
' see Chapter I1
2
a law supported by Caesar early in his career (around 75-70 B.c.) that revoked the outlawry of those who
had followed M. Lepidus (Greenidge 1901, 524)
The lack of definite information on the lex Lutatia and lex Plautia makes it
difficult to determine what exactly their relationship was or whether they were even
separate laws. Scholars generally agree that the lex Lutatia was passed on behalf of the
consul Q. Lutatius Catulus in the context of the Lepidan insurrection (when Catulus' co-
consul, M. Lepidus, marched on Rome after the two consuls had quarreled3 to seek the
restoration of the tribunate and his own re-election, among other thingsii). This dates it
debatably to either 78 or 77 B.C.
The date of the lex Plautia is more elusive because there existed many obscure
people by the name of Plautius in the first half of the first century B.c., but few who are
known to have been in office (as tribune or praetor) during this time. Most scholars
ascribe the lex Plautia to the tribune Marcus Plautius Silvanus of 89 B.C., although others
ascribe it to the same man who proposed the lex Plautia de reditu Lepidanorum (which
itself is dated inexactly, although it has been placed somewhere around 73 B.c.)"', and
others such as Hough date the lex Plautia to as late as 65 B.C. Regardless, both laws had
certainly been enacted well before the time of Caelius' trial.
It is conceivable that the two laws were one and the same. Berry states that
the easiest way of explaining [the relationship between these two laws]
is to assume that the lex Lutatia was an ad lzoc measure whose
provisions were later incorporated into the lex Plautia.
Thus the lex Lutatia could simply have been an outdated name for what was later
included in or known as the lex Plautia. It is also possible that the lex Lutatia was simply
a sort of informal epithet that the lex Plautia acquired during its use against M. Lepidus
and his followers. Within one sentence in the Pro Caelio (70), Cicero describes a law
that appears to relate to the lex Pluutia in its nature, but explains that it was Q. Catulus
see Chapter I
who "tulit" it, such that the sentence seems to refer to both the lex Plautia and lex Lutatia
at once4. This passage can be interpreted by talilng tulit to mean "proposed," such that
the sentence reads that Q. Catulus proposed a law which was then passed by a tribune
named Plautius'". Thus under this analysis the lex Lutatia should be considered the
consular name for the lex Plautia, and it should be assumed that the Catilinarians as well
as Caelius were charged under Q. Catulus' law.
However, this hypothesis, outlined by Mommsen, has been has discredited by
scholars such as Hough. Hough concurs with Mommsen that two laws prohibiting the
same offense (vis) could not have co-existed. However, Hough examines the available
historical dates of events and concludes that the lex Lutatia and lex Plautia were discrete
entities that were separated by more than a decade. In fact, he finds that the lex Lutatia
may not have remained in force for very long. Indeed, it was not abnormal for a law to
be overtly ad hoc and thus have only a short lifespan, existing only long enough to take
care of the particular occasion for which it was passed, like the lex Plautia de ueditu
Lepidanouum. However, although his theory may be true, Hough's evidence is not
entirely reliable. Hough loola at the prosecution of Gaius Cornelius, a tribune who in 67
B.C. (two years before the date when Hough argues that the lex Plautia was passed) was
brought to trial for his alleged participation in riots and disorder under a charge de
nzaiestate instead of de vi, when the latter would have been more appropriate. According
to Hough, this indicates that neither the lex Lutatia (nor the lex Plautia for that matter -
no lex de vi at all) was in existence at that timev. However, inappropriate charges were
not uncommon in the Roman legal system5; indeed, this may have been the case in
see below for the full quotation
see Chapter VI
Caelius' trial6. C. Cornelius' prosecutor may simply have favored maiestas over the
more appropriate indictment (vis), so we cannot be absolutely certain that legislation de vi
was unavailable just because maiestas was used in its place. In addition, several of the
dates that Hough uses are somewhat ambiguous, and so his determination the lex Plautia
came into effect in 65 B.C. is not entirely certain. Regardless, Hough's overall proposal
that Caelius was unquestionably indicted under the lex Plautia, not the lex Lutatia, still
may have some validity.
To modem scholars, the lex Plautia seems more likely than the lex Lutatia to have
been used as the law indicting Caelius. The lex Plautia was definitely functional by the
time of Caelius' trial - Catiline was indicted in 63 B.C. by Lucius Aemilius Lepidus under
itvi, along with other Catilinarians in the following year, as were people such as Milo in
57 B.c., and Publius Asicius and Publius Sestius in 56 B.C. (the same year as Caelius) -
and the lex Plautia was not superceded until much later with the passage of the lex Iulia
de vi publica and privata by Julius Caesar during his dictatorship. The existence and
statutory force of the lex Plautia at the time of Caelius' trial is certain7. In contrast, this
cannot be said of the lex Lutatia. The lex Lutatia is a much lower-profile law. The only
existing evidence that such a law was part of the Roman legal repertoire is found in the
Pro Caelio.
Other scholars have considered less straightforward alternatives to the arguments
of Mommsen and Hough. Rather than settle on the idea that the leges de vi were
completely interchangeable/synonymous or distinguish the two laws clearly from each
other, more recent scholarship has pursued the relationship between them. Cousin finds
see Chapter IV
see Hough p. 135 for a list of references
that the lex Plautia extended the competence of the lex Lutatia, either by creating a new
quaestio or by contributing a new legal text to the original court. As Cousin observes,
whereas the lex Lutatia dealt with vis contra rem publicam, especially when related to
seditio, coniumtio, and inuria legatorum, the lex Plautia dealt with vis contra privatosvii.
However, his analysis is grounded in the sole reference (which occurs in the Pro Caelio)
to the lex Lutatia and in our records of numerous trials that occurred under the lex Plautia
for offenses less significant than sedition against the State. And indeed, it is in Cicero's
interest to emphasize the grandeur of Q. Catulus' law, as will be discussed shortly, so
Cicero may distort our perception of this law. Therefore, we should not consider Cicero
to be a trustworthy authority on the law. Also, Cousin's dichotomy seems a little too
rigid - the realms of the private and public have more overlap, as Lintott notes. Lintott
builds on Cousin's theory of the extension of the lex Lutatia into the lex Plautia by
saying that the lex Plautia included a slight but significant redefinition of the lex Lutatia.
Lintott's version of this matter states that the lex Lutatia created a court that dealt with vis
de seditio, coniuratio, and inuria legatorum, and that the lex Plautia broadened the
jurisdiction of the lex Lutatia such that it was applicable in more situationsviii. More
specifically, Lintott believes that the lex Plautia reiterated the main purpose of the lex
Lutatia but also added that it "dealt with cases of violence against private citizens which
were judged in one way or another to be against the interests of the state"'".
This proposal has for the most part remained acceptable to modem scholars. For
example, Jones states that the lex Lutatia still had a quaestio at the time of Caelius' trial,
but one separate from that of the lex Plautia because it dealt with its own type of
violence". Robinson, similar to Lintott, explains that the lex Plautia did not usurp the
position of the lex Lutatia, but rather extended its influence to encompass offenses
against private individuals who had higher importance to the statexi. This compromise
solution, stating that the laws were both separate but interrelated, seems to be the most
reasonable.
Cicero's treatment of the law used to prosecute Caelius presents a challenge to the
modern study of the lex Lutatia and lex Plautia. Firstly, Cicero does not make the law in
general a priority in the Pro Caelio, to such an extent that he never even explicitly names
any law. Secondly, Cicero was a skillful and tricky orator who was set on persuading a
jury of Caelius' innocence in large part by diverting the jury's attention from the legal
issues involved in the case8. It was his intent to manipulate and twist information to his
advantage. To this end, Cicero intentionally conflates the two leges de vi in the Pro
Caelio.
In fact, the Pro Caelio opens with his treatment of the law (or perhaps more aptly,
mistreatment of it) - Cicero begins his speech with an intentionally vague and ambiguous
reference to a lex, which he then immediately casts aside. In his exordium Cicero
presents a
legem quae de seditiosis consceleratisque civibus qui armati senatum
obsederint, magistratibus vim attulerint, rem publicam oppugnarint
cotidie quaeri iubeat
('law, which prescribes that on every day there should be an inquiry
about seditious and wicked citizens who when armed besiege the
Senate, bear violence against the magistrates, and attack the state')""
There are no identifying clues in this description, such as the name of a particular
defendant, prosecutor, or magistrate (like the striking inclusion of Q. Catulus in the
see Chapter I1
reference discussed later), and so one would need other evidence to clarify whether the
lex Lutatia or the lex Plautia is under scrutiny here.
Because Caelius' trial was preceded by multiple cases that took place under the
lex Plautia, and because of the lack of specificity in Cicero's description, the lex Plautia
is commonly the first law that comes to mind upon encountering this reference ($1).
Indeed, many scholars mistakenly accept it as a fact that Caelius was charged under the
lex Plautia. Austin points out that "Sallust (Cat. 31) and others state that the law then
invoked [for Caelius' trial] was the lex Plotia de vi, and the other cases of vis known at
this period were also tried under the lex Pl ~t i a"~"' . As Hough argues, Cicero's audience,
like all Romans who were familiar with contemporary references, knew the name of the
law in force at the time, and so there was no need to identify ~l a ut i us ~~" . However, there
is no reason to assume that the Romans were not cognizant of the lex Lutatia in addition
to the lex Plautia. Simply because we have less knowledge 01 the lex Lutatia does not
necessarily mean that the Romans did as well. The law referenced at the beginning of the
Pro Caelio should be taken simply as a lex de vi, not a specific one (either the lex Lutatia
or the lex Plautia), since there is nothing distinct enough in Cicero's description that
would classify it as one or the other.
Indeed, Cicero mentions the law in this passage (3 1) only to critique its merits and
draw attention to its inapplicability to Caelius' alleged actions. Cicero merely wishes to
scorn and brush aside the charge de vi brought against Caelius, and so he does not need to
differentiate between the lex Lutatia and the lex Plautia (the jurors would have already
been aware of which one was being used). Prominently in the first few sentences of his
speech, Cicero denounces the use of a lex de vi. He sets up his presentation of the law
with "si" ('if')"". This use of the conditional weakens the apparent force of the law by
placing it in only an imaginary context. Cicero then claims that a stranger observing the
proceedings would assume that a very serious matter was under consideration, but that
this stranger would be mistakenxvi. The words "tanta atvocitas" ('such an atrocity') jump
out at the listener because of the lack of the usual preceding "ut"""", as Austin notesxviii.
These words are reinforced and expanded on only slightly later when Cicero specifies
(with melodramatic litotes) that, "nec dubitet tanti facinovis reus arguatur ut eo neglect0
civitas stare non possit" ('[the stranger] would not doubt that the defendant were charged
with such a felony that the State could not remain standing if it were neglected')"'".
After he briefly describes the law, Cicero then immediately rejects it. According
to him, in an anaphora triple ("nullum . . . nullam . . . nullam"), the stranger would notice
the inappropriateness of the law: "legem non impvobet; crimen quod versetur in iudicio
vequivat; cum audiat nullum facinus, nullam audaciarn, nullam vim in iudicium vocari"
('he would not disapprove of the law, he would seek out a charge competent to the court
when he hears that no crime, no imprudence, no violent act is being summoned into
court')"". Thus Cicero dwells on the law only long enough "to undercut the seriousness"
of it, according to ~alzman""', and to establish its inapplicablity. He then continues by
addressing the "maledictio" ('slander')""" that the prosecution launched against Caelius,
as opposed to any issues related directly to the law9. With this distraction, Cicero
attempts to get his audience to forget about the law. Unlike a later reference to the law
($70), after which he continues discussing legal matters by bringing up another criminal
trial, Cicero underplays his allusive initial reference to a l a d e vi.
9
see Chapter I1
Much later in the Pro Caelio, Cicero changes his tactics - he becomes more
definite in his discussion of the law. Indeed, because of the details Cicero provides in
this later passage (70), a swift reading of his entire speech on its face seems to point to
the fact that Caelius was charged under the lex Lutatia. A listener is swayed by the
opening of the peroratio (70), in which Cicero explicates,
de vi quaeritis. Quae lex ad imperium, ad maiestatem, ad statum
patriae, ad salutem omnium pertinet, quam legem Q. Catulus armata
dissensione civium rei publicae paene extrenzis temporibus tulit,
quaeque lex sedata illa Jlamma consulates mei fiunantis reliquias
coniurationis exstinxit, hac nunc lege Caeli adulescentia non ad rei
publicae poenas sed ad mulieris libidines et delicias deposcitur
('You are inquiring into an issue of violence. The law which pertains
to the rule, to the majesty, to the state of our country, and to the welfare
of all, the law which Q. Catulus bore when, by armed civil strife, the
time of the State was almost at an end, and the law which, after the
flames of my consulship were calmed, extinguished the smoldering
embers of conspiracy; now under this law is the youth of Caelius
invoked, not for reparations to the State but for the wanton interests of
a woman')xx"'.
This passage appears to define the law under which Caelius was charged. Because
Cicero describes the law with such careful clarity and detail, especially with the mention
of Q. Catulus, at a quick glance he most obviously and almost unmistakably seems to
state that the trial at hand is one held under the lex ~ u t a t i a ~ ~ ' " (although he is not quoting
the law, as Hough points out, since he does not mention the lex Lutatia by namesxv).
Cicero makes a great effort to highlight and promote this particular discussion of
the law such that it by far overshadows (both in length and detail) the earlier reference
( 9 1). Having summed up his defense against the charges related to Dio (auri et veneni)
and in that way having pounced on yet another opportunity to cut down Clodia, Cicero
then focuses his attention meticulously on the lex Lutatia. He coaxes his audience to be
receptive to his remarks on the law by buttering up the jury with compliments. Right
before launching into his description of the lex Lutatia, Cicero candidly addresses the
"iudices" and reminds them of their power and importance: he says, "quantum iudicium
sustineatis, quanta res sit commissa vobis" ('now you understand how much you should
xxvi
uphold with your judgment, how great a matter has been entrusted to you ) . Cicero
then clarifies the jurors' task by explaining the law to them, and continues by implicitly
asking that they respond appropriately to this instance of the lex de vi's misuse by
acquitting Caelius. He reinforces this idea by providing an example of the lex de vi's
prior abuse - he brings up the trial of two men, Marcus Camurtius and Gaius Caesemus,
who were charged for vis when they should not have been. About their case Cicero
states, "lege de vi certe non tenebantur eo malejicio" ('they should certainly not have
10,xxvii
been held for their offense [in a court de vi] ) . Supposedly the jury was familiar
with this reference and would have sympathized with Cicero's analysis of it. Overall this
passage ($70) and its context indicate that Cicero explicitly wishes to influence the jury
with the idea of the lex Lutatia and its misuse.
This direct reference to the lex Lutatia is supported by two other, less direct
references. The author of the lex Lutatia, Q. Catulus, appears first in the speech before
the definition of his law ($70). During a lengthy and passionate digression on the death
of Clodia's ex-husband, Cicero lovingly describes how Q. Metellus remembered Q.
Catulus on his deathbed: "cum parietem saepe feriens ezlm ggi cum Q. Catulofi~erat ei
conzmunis crebro @tulum, saepe me, saepissime rem publicam nominabat" ('after
-
knocking often on the wall which was common to Q. Catulus and himself", [Metellus]
repeatedly called the name of Q. Catulus, often called on me, most often called on the
S tate')xxvlil
. Cicero employs the rhetorical device of alliteration with 'c' sounds (noted
l o see Chapter V for the full passage and a discussion of it
11 .
smce apparently their houses were adjoining
above) to mimic the action described (knockmg), along with tricolon crescens and
striking asyndeton. The impact of this high style language would have effectively drawn
Cicero's audience into his story and impressed Q. Catulus' name upon their minds more
firmly, perhaps priming them to hear about the lex Lutatia a little later12. Again, after he
has openly discussed the lex Lutatia and just before his grand finale (a misevatio ['call for
pity'] in which he begs for sympathy for Caelius' devoted and loving father), Cicero
brings up Q. Catulus, only in this instance he refers to Quintus Lutatius Catulus senior13,
father of the previously mentioned Q. Catulus. Cicero brings up the "Catuli
14,xxix
monumentum" ('the monument of Catulus ) to remind the jury once again of the lex
Lutatia and to re-emphasize the majesty of this lawi5. Thus from the amount of text
related to the lex Lutatia in the Pro Caelio, it appears that Cicero wants to focus the
jurors' minds on this lex de vi.
Consequently, the question arises of why Cicero would have found it
advantageous to explicate on the outdated and obsolete law (the lex Lutatia) as opposed
to the current, operational one (the lex Plautia). Perhaps the lex Plautia had been used by
Roman prosecutors more successfully than not in the past (as indeed the records
indicate16, especially in the case of alleged members of the Catilinarian conspiracies such
as Caelius), and so Cicero may have wanted to avoid this "condemnation stigma"
associated with the lex Plautia, but not the lex Lutatia. Similarly, perhaps Cicero wished
to use his references to the lex Lutatia to further distance Caelius from the Catilinarians
12
Cicero may also portray Q. Metellus calling on both Cicero and Q. Catulus, two great saviors of the
State, to identify Clodia, who supposedly poisoned Q. Metellus, as an enemy of the State.
l 3 consul in 102 B.C.
l 4 This refers to the Porticus Catuli, a monument built by Q. Catulus senior on the Palatine commemorating
a victory at Vercellae in 101 B.C. (Loeb 1958, 504).
l5 It could also allude indirectly to the tremendous legacy ('monument') Q. Catulus the Younger left by
enacting the first lex de vi.
l6 see Appendix A
(in a way less obvious than his ovest attempts to separate Caelius from catiline17). In this
way, greater focus on the law unrelated to the conspiracies, the lex Lutatia, would
reinforce the effect of his diatribe against catiline18, the "taetuiou hostis huic civituti"
('enemy of this State [Rome] more loathsome [than no one]')""". In addition, Cicero had
a strong example of the misuse of the lex Lutatia, as discussed ear1ier19. Maybe Cicero
thought that playing up the more esoteric lex would make the indictment in general seem
less plausibly connected to Caelius' actions. In this way the prosecution would seem
more ridiculous, and the jury would be more sympathetic to Caelius. It is also possible
that Cicero hoped that more prevalent references to the outdated law would confuse the
jury and guide them toward an acquittal more easily. Indeed, perhaps Cicero brought up
the lex Lutatia, along with its dramatic and urgent function to suppress the Lepidan
insurrection, in order to help add color to his already sensational narrative and further
distract the jury. Alternatively, perhaps the nature of the two de vi laws simply differed
such that Cicero found the lex Lutatia to be more desirable and better for freeing Caelius
(as will be discussed at length shortly).
However, despite all the allusions to Q. Catulus and through him the lex Lutatia,
Cicero's apparently clear reference to the lex Lutatia (870) becomes more complicated
upon a closer reading of it. Although the mention of Q. Catulus serves as a red flag for
the lex Lutatia and necessarily forbids any immediate recollection of the lex Plautia,
Cicero follows this by alluding to metaphorical fires lit by conspiracy during his
l7 Cicero Pro Caelio, iv.10
'* Cicero Pro Caelio, v.12-vi.14
l 9 cicero Pro Caelio, xxx.71
c o n s ~ l s h i ~ ~ ~ ' " ~ " ~ . This image falls fluidly into line with the other elements that Cicero
mentions to describe how the law was used to rid the State of evils, and so it does not
immediately stand out as being inconsistent or problematic. However, upon careful
consideration, even though Catiline himself is not mentioned, it should register that
Cicero is referring to the triumph over the Catilinarian c ~ n s ~ i r a c ~ ' ~ ' ~ ~ . Significantly,
Catiline was prosecuted along with his followers under the l a ~ l a u t i a ~ ~ , not the lex
Lutatia (a fact of which Cicero would certainly have been aware, since he served as the
prosecutor). Thus it seems that, in fact, there are two contradictory references contained
within one sentence of the Pro Caelio - one referring to a law that makes sense according
to the specific context that Cicero provides (Q. Catulus' lex Lututia) and one referring to
another law that makes sense according to the Catilinarian allusion and the date of the
trial (the lex Plautia).
This incongruity leads to the question of how to reconcile the apparent mention of
both laws. We should consider at face value the information that Cicero provides - the
occasion for the noble birth of the lex de vi (the Lepidan insurrection) and the next most
exalted instance of its use (the Catilinarian conspiracy). We should then take into
account Cicero's task of exonerating Caelius, for which Cicero seems to have found it
most beneficial to overlook exact accuracy in describing a particular law, and instead
focus on how legislation de vi in general had rescued the Roman State from ultimate
destruction. In addition, Cicero does this even "...when both he and the jury knew that
20
"quaeque lex sedata illajlamma consulates mei fumantis reliquias coniurationis exstinxit" (referenced
above)
" This happens to be of special interest to Cicero since it was the crowning triumph of his consulship.
22 see Chapter I for details of the conspiracies
23 AS Riggsby notes, "all other mentions of the law under which the Catilinarian conspirators were tried
agree that it was the lex Plautia" (Riggsby 1999, 80).
the lex Plautia dealt with ordinary cases of private violence as well as offenses against
the state""""". Cicero mentions Catulus but no one associated with the lex Plautia to
stress the lex Lutatia and simultaneously de-emphasize the lex Plautia such that he can
evade the tainted, less glorious past of the lex de vi, when more minor incidents (not large
infractions against the State) were examined under the lex Plautia. Thus Cicero uses $70
to call attention to the lofty nature of the lex de vi in general.
By exaggerating the loftiness of the lex de vi, Cicero trivializes Caelius' alleged
offenses by contrast and, as in his earlier reference to the law ($I), he contends that a
charge de vi is not appropriate for Caelius' case. As Berry notes, Cicero uses $70 to
point out "the absurdity of Caelius' being brought to trial under a law designed for use in
,,xxxiii
national emergencies . Hough further explains how
Cicero is chiding the prosecution with bringing Caelius to court under
so important a law when the matter at stake was really the scandal of a
women, -and such a woman [Clodia]. In 570 he is relating the noble
history of the law which these scoundrels have used for such a
disgraceful purpose. He is not giving a list of cases which had occurred
under the lex Lutatia of Catulus, or under the lex Plautia, but he is
giving the history of the law de vi, . . . emphasizing the important nature
of the situations for which it had been used . . . such was the noble
history of the law de vi, and now it is being used ad mulieris libinosae
deliciasxxxl".
Indeed, in $70 Cicero addresses the jurors as guardians of the lex de vi. He evokes the
remembrance of the grandeur that charges de vi had born in the past in order to create and
expose the scandal of squandering this important law on such a silly objective as the
prosecution of Caelius, which in truth boiled down to Clodia's venegencexxxV, Cicero
suggests. This makes sense, as it fits with Cicero's prior attempts to pass off blame to
Clodia. Cicero implores the jurors to protect the law's majesty and avoid defiling it by
acquitting Caelius, who should not have been brought to trial under it in the first place.
Riggsby finds that this defense tactic is valid and relevant - he argues that, "vis (as
opposed to homicide, which could perhaps also have been charged) required a certain
level of significance; hence a reply [such as Cicero's] that ridicules the accusation is a
, 9XXXV1
legitimate response . In this way, Cicero's underlying goal to confound the charges
against Caelius and secure an acquittal offers an explanation for his introduction of
conflict and contradiction to his discussion of the law.
Indeed, the grand contradiction that is apparent in the references to the two leges
de vi in the Pro Caelio does not seem as exceptional or troublesome when set against the
backdrop of the rest of the speech, which is fraught with contradictions. Cicero often
purposely contradicts himself in his arguments at different stages in his speech so that he
can coordinate his reasoning with the point he is malung at that moment, at the sacrifice
of having a defense that makes perfectly fluid, logical sense as a whole.
For example, Cicero includes opposite statements about youth and witnesses in
the Pro Caelio. When referring to the young Atratinus, Cicero first allows the
" XXXVl l
excusationem . . . aetatis" ('excuse of his age') for bringing Caelius to trial , but much
later in his speech Cicero does the opposite by censuring him for being too young and
hence lacking the moral authority to slander ~ a e l i ~ s ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ . For Caelius, Cicero does the
same - at first he indulges youth for being "infirmum" (' weaMsus~ept i bl e)~~~' " and for
succumbing to "cupiditates" ('desires') such as those related clodiaX', but then he
contradicts himself by claiming that he could offer "vacationem adulescentiae" ('an
excuse of youth') but that, in fact, "perfugiis nihil utor aetatis" ('I use nothing in the
refuge of age7)"". Later he returns again to his first sentiment of indulgencex'". Cicero
also contradicts himself when at first he warns the jurors that the witnesses of the
24 "Quam quidem partem accusationis admiratus sum et moleste tuli potissimum esse Atratino datum
. ..neque aetas illa postulabat" ( ' I am surprised and disturbed that this part of the accusation [the slandering
of Caelius] was entrusted chiefly to Atratinus . . . his age does not ask for it')
44
prosecution are useless and should not be heededx1"' and claims that he himself will not
25,xhv
call on witnesses , but he then goes directly against this by saying that he has no need
for formal arguments because he has a witnessx'". Cicero calls on L. Lucceius (the man
whose slaves were thought to be Caelius' go-betweens26) to the witness box and says
' xlv1
that, "haec est una vox veritatis" ('this is the one voice of truth ) . And then, reverting
back to his original perspective later in the speech, Cicero makes fun of the witnesses
from the Senian baths, the supposed location of the poison exchangex1"". These are just a
few examples of Cicero's "patent inconsistencies," as Craig describes themx1"".
In general, the paths that Cicero's speech takes are full of oratorical twists and
turns and switchbacks, which when examined together do not fit with each other. This
inconsistency is part of the genius of Cicero's rhetoric - it takes incredible skill to use
one argument to make one point, and the opposite argument elsewhere to make a separate
point. This mechanism makes perfect sense in terms of how Cicero deploys his case. In
lieu of this, it may be unreasonable to exempt Cicero's handling of the law from this
pattern of contradictions. Thus the Pro Caelio should be received as a prime example of
Cicero's rhetorical expertise (his mastery of contradiction), not as a handbook of the legal
specifics of the lex Lutatia and lex Plautia.
' Alexander 2002,223.
ii Cook et al. 1932, 316
"' Hough 1930, 137
'" Mommsen 1899,654
" Hough 1930,142
"' Sallust Bellurn Catilinae., 3 1
"" Cousin 1943,92
""' Lintott 1968, 121
'" Lintott 1968, 116
" Crook 1972,57
"' Robinson, 1995,29.
25 "VOS absducam a testibus" ( ' I will lead you Ijurors] away from witnesses')
26 see Chapter I
xii
Cicero Pro Caelio, i. 1
""' Austin 1960, 42
"'" Hough 1930, 144
"" Cicero Pro Caelio i. 1
""' Cicero Pro Caelio i. 1
""" Cicero Pro Caelio i. 1
"""' Austin 1962,41
Cicero Pro Caelio i. 1
"" Cicero Pro Caelio i. 1
Salzman 1982, 300
""" Cicero Pro Caelio iii.6
xxiii
Cicero Pro Caelio, xxix.70
""'" Austin 1960, 42
""" Hough 1930, 136
"""' Cicero Pro Caelio xxix.70
"""" Cicero Pro Caelio xxx.7 1
""""' Cicero Pro Caelio xxiv.59
""'" Cicero Pro Caelio xxxii.78
""" Cicero Pro Caelio v.13
"""' Cicero Pro Caelio, xxix.70
xxxii Lintott 1968, 116
""""' Berry 2000, 258
xxxiv Hough 1930, 144
"""" Hough 1930, 143
xxxvi P.iggsby 1999, 104
xxxvii Cicero Pro Caelio i. 1
xxxviii
Cicero Pro Caelio iii.7
xxxix Cicero Pro Caelio iv. 10
XI
Cicero Pro Caelio xii.28
xli
Cicero Pro Caelio xii.30
xlii
Cicero Pro Caelio xviii.42
xliii
Cicero Pro Caelio ix.21-22
xliv
Cicero Pro Caelio, ix.22
"I" Cicero Pro Caelio xxii.54-55
xlvi
Cicero Pro Caelio xxii.55
xlvii
Cicero Pro Caelio xxviii.67
"lviii Craig 1993, 105-106
Chapter IV. A Sullan Approach to Caelius' Indictment
Besides wooing and distracting the jury, Cicero may enhance the confusion and
contradiction surrounding the lex Lutatia and/or lex Plautia simply to reveal the
ridiculousness of the legal basis for Caelius' trial in the first place. Indeed, some of the
difficulty encountered when trying to understand the charges against Caelius stems from
the fact that a charge de vi does not seem to have been entirely satisfactory or fitting for
the crimes. This trouble comes much less from the actual circumstances and details of
the alleged offenses than from other, more over-arching elements such as the social
atmosphere at the time of Caelius' trial and the ambiguities in Roman criminal law in the
Late Republic. The charges for which Caelius was brought to trial had been highly
public and clearly articulated'. Those that Cicero addresses in his Pro Caelio concern the
attempted murder of a foreign dignitary and the attempted poisoning of a woman'.
Ignoring the political and civil unrest at the time, Austin contends that a quaestio inter
sicarios et veneficiis ('court for murders and poisonings,' which was later called the
quaestio de sicariis et veneficis") clearly would have made more sense in this case than a
. .
quaestio de vi"'. Thus the question arises of exactly why the more appropriate quaestio
was not chosen.
Indeed, at an earlier time, this question would not even have been relevant. At the
very crux of the maturation of Roman criminal law, a clause de vi did not exist. During
this time offenses that later would be considered de vi were taken under charges such as
de maiestate ('for t r e a ~on' ~) or de sicaviis et veneficis. During his dictatorship over
' see Chapter I
2
see Chapter V for details
Rome in 82-81 B.c., Sulla undertook a massive codification of the leges3~'". This
codification did not include the articulation of a clause de vi, although it did include the
articulation of a clause de sicariis et veneficis.
Under Sulla's guidance, as Schisas describes, Roman criminal law "emerged from
the darkness of previous ages into the dawn of the age of enlightenment which was to
come"". In fact, in the pre-Sullan era, to judge from previous legislationvi, criminal cases
were subject to a trial procedure that was "clumsy" and obsolescentvii. Greenidge notes
that,
criminal procedure at Rome lagged far behind the civil, and this
rudeness of procedure was but an expression of the vagueness of the
law. There were exceedingly good and sound reasons . . . for keeping
the criminal law in this vague condition, as long as Rome remained a
city state. But the fact remains that the chaotic nature of the law was
reflected in the procedure and that, . . . [under the dictatorship of Sulla],
thp, codification of the former was followed by a regulation of the
latterv111.
This procedure for criminal trials was first defined with the lex Cdpurnia in 149 B.C.,
which was passed by the tribune Lucius Calpurnius piso'" to establish the first permanent
criminal courtx. Specifically, it established a quaestio de rebus repetundis ('court for
extortion') in response to mismanaged foreign affairs, such as the ignominious murder of
the Lusitanians by the pro-praetor of Further Spain, Sulpicius ~ a l b a ~ . It extended the
duties of thepvaetovperegvinus by calling on him to serve as the magistrate of the court
who would select a consilium ('council') from an album ('list of senators')"'. The
development of criminal trials proceeded from this point.
No major codifications had taken place since the laws were written down for the first time in the form of
the Twelve Tables in the mid fifth century B.c., which was merely "the codification of customary law [law
based on customs]" (Girard 1906, 51).
see Gruen (1968) p. 13 for further reading
Criminal procedure in its earlier stages, which was designed more to accuse and
determine compensation and/or punishment than to seek reparation for the wrong-doing,
depended heavily on the influence and action of the populus Romanus ('Roman
pe~pl e' ) ~". Trials took place before an assembly, for which reason they are referred to in
modem literature as iudicia populi ('trials of the people')""'. Presumably because of the
small size of the Roman community, consensus on criminal matters could be reached in
an ad hoc manner, and detailed legislation was not necessary. The various magistrates
wielded overlapping and uncertain power in the courts, and their rulings were case-
specific and conditional on provocatio ('appeal to the people'), such that the people in
centuriate or tribal assembly "decided by their votes the fate of men charged with crimes
against the state""'". For example, in 212 B.C. the tribunes' judgment to fine Marcus
Postumius Pyrgensis, who was accused of defrauding the State, was overturned by the
peoplex". Such methods were more befitting nascent Rome, which had housed only a
small community and whose citizens could all easily have had the opportunity to
participate in public affairsx"'.
Sulla recognized this fact and set about modernizing and refining the system for
administering criminal justice so that it fit with Rome of the first century B.c., which had
virtually exploded in size in the previous century. An increase in the number of Roman
citizens had complicated the legal system and had made it much more difficult for the
entire populace to be directly involved in it. Sulla therefore instituted a more
bureaucratic organization. He established judicial officers and a panel of iudices
('jurors'), which was selected from the 600 eguites senator^')^, in place of the assembly
Sulla raised this number from 300 to compensate for the added judicial courts and various affairs of the
State that took them away from Rome (Schias 1926, 140, 150).
and provocatio
xvii,xviii
. The creation of iudicia publica ('public trials') in the Sullan court
system meant that "the old iudicium populi was virtually eliminated from the political
sceneflXix. Indeed, mindful of recent civil strife6, Sulla tried to support his government
with this renovated legal system, which did not place any confidence in the general
populacexx. Thus Sulla's reforms triggered a dramatic shift in the balance of judicial
power between the magistrates of the courts and the people - as the power of the former
was enhanced, the power of the latter was eroded.
However, as Greenidge points out, "in criminal process [Sulla's] new system [had]
not yet stamped out all relics of the older system; ... the new procedure [was] nearly
,'xxi,7
triumphant, but not quite . One of "relics" was the Roman prosecutor, who remained
as any private citizen wishing to initiate a criminal procedure, not a state official or
employeexxii. Consequently, the court system could not be put into motion by the
statexxiii. Cloud identifies this as a glaring weakness in Sulla's system:
A system which relies on a member of the public coming forward to
prosecute an offender is likely to prove somewhat erratic. This is
particularly true of a system which offers the prosecutor only minimal
assistance in preparing his case. He will require a strong incentive:
personal involvement, possibilities for self-promotion or the prospect of
some financial advantage. In such a situation one can well imagine the
discreet or popular criminal evading prosecution altogetherxx1".
Another such "relic" was provocatio, which Sulla did not successfully abolish
altogetherxxv. Indeed, the case of Rabirius proves that remnants of the iudicia populi still
remained even after Sulla's reforms, as this man was apparently condemned by Caesar
but acquitted by an appeal to the people in 80 B.c."""'. Thus Sulla's reforms appear to
have taken a significant leap that fell just short of establishing a purely public (not
see Chapter I
see Greenidge pp. 417-428 for further reading
popular) criminal system, which would function appropriately for the Roman population
in its post-city-state era.
Like the jurisdiction over the courts, the definition of all illegal acts also required
attention due to the unchecked and haphazard accumulation of various laws, especially
ad hoc ones. Sulla therefore created seven categories under which infringements against
,,xxvii
the law, those considered the "graver crimes , would fall:
de sicariis et veneficis ('for murder and poisoning'),
de repetundis ('for extortion'),
de rnaiestate ('for treason'),
de falsisg ('for misconduct,' with respect to trust and inheritance, forgery, and counterfeit
coinage),
de arnbitu ('for electoral malpractice'),
de peculatu ('for embezzlement'), and
de iniuriis ('for serious assault')xxviii.
,,xxix
Each law entailed a punishment "proportional to the gravity of the crimes . This act
of Sulla's was not the creative invention of Roman laws, but rather the re-working and re-
organization of them:
In general, novelty was not a hallmark of Sulla's judicial reforms. In
this sphere he was essentially an organizer and a systematizer rather
than an innovator. Older criminal charges were defined more precisely
and in greater detail and analogous offenses were deftly combined in
more comprehensive measuresxxx.
Sulla built on the existing legal institutions and enacted new statutes, the leges Corneliae,
in order to define exactly what constituted these seven different crimes. He accomplished
this by grouping together specific offenses or elements of offenses that shared similar
qualitiesxxxi. Thus each of his codified statutes covered an offense that included "a range
of offenses, a framework"xxxii. Additionally, whereas beforehand the people had had the
job of elaborating and clarifying the details of a charge, under Sulla's new regulations the
This law was originally known as the lex testmentaria.
court magistrates now assumed this responsibility as arbitrators empowered with
considerable judicial discretionxxxiii.
Thus, in an attempt to remove the potential for variation in the law, Sulla outlined
a set of broad procedures, reminiscent of a general template, along which every criminal
trial would proceed. His reforms called for the establishment of the system of
, 9,xxxiv
quaestiones perpetuae ('permanent jury courts ) - to each specifically defined
category of offenses, Sulla dedicated a quaestio. Although certain courts, such as those
de maiestate, de sicariis, and de repetundis, had existed at Rome for a long time, they had
never before been permanently established or standardizedxxxv~xxxvi . Sulla's quaestiones
perpetuae, each composed of a separate elevated wooden platform located in the Roman
f o r ~ l r n ~ ~ ~ ~ ~ ~ , "effectively replaced the assemblies as criminal courts"xxxviii.
For each quaestio Sulla provided a praetor to serve as the magistrate presiding
over all trials held in that specific For this reason Sulla raised the number of
praetors to eight1' and kept them in Rome, as opposed to in their provinces as beforex'.
This number of praetors is assumed to have been sufficient for assigning one to every
quaestio; however, it seems that nine praetors would actually have been necessary in
order to accommodate all seven of the quaestiones and simultaneously maintain the two
additional positions of the praetor urbanus, which was the oldest praetor office (it was
created in 367 B.c."")""', and the praetovperegrinus. It is possible that lesser courts (such
as the quaestiones de falsis and de p e c ~ l a t u ) ~ ~ shared a praetor or that the positions of
- -
Quaestio originally meant 'inquiry,' but it came to mean 'court' (Lintott 1999, 157).
' O Though Pomponius states, "Deinde Cornelius Sulla ... Praetores quatuor adiecit" ('then Sulla ... added
four praetors') to the four existing when Sicily and Sardinia were added to the empire around 227 B.c.,
Schias argues that Sulla must only have added two because Dio Cassius states that Caesar added two to
make a total of ten praetors (Schias 1926, 102, 129).
11
Jones identifies the quaestiones de repetundis, ambitu, sodalicia, and maiestate as the "politically
important" courts (Jones 1972, 59).
praetor urbanus and praetor pevegrinus were combinedI2. However, current scholarship
does not point to these possibilities, nor does it explain or even recognize this
discrepancy between the said number of praetors and the number of praetors theoretically
needed in the Sullan era13. Regardless, Sulla clearly provided Rome with new legal
machinery that was much more substantive and stable and much less open to
manipulation than that before it (although it was by no means free of instability, as will
be discussed at length later).
Sulla's reforms marked a tremendous advance from the old criminal system, and
they left a legacy, in truth his "most enduring" legacyx1'", that lasted for the remainder of
the Roman empire14. This is especially noteworthy because almost all of the reforms that
Sulla enacted during his dictatorship were repealed after his death - only his changes to
the legal institution of Rome were preserved. Despite some amendments, such as lex
Tullia de ambitu in 63 B.C., and some additions, such as the quaestio and lex Plautia de vi,
in general Sulla provided a framework which served as the stable foundation of Roman
codified lawx"":
Some of his leges Corneliae survived under their old name, embedded
in the jurisprudence of the principate; others were remodeled into leges
Juliae either by the dictator Caesar or by ~u~ust us"' ".
The importance of Sulla's modernization of the Roman legal system is thus highlighted
by its persistence through post-Sullan times.
l 2 see Lintott (1999) pp. 11, 107
l 3 However, J. Balsdon reminds us that "whether or not all the praetores were presidents of courts, we do
not know; in the period 80-50 B.C. we only know the names of six praetores de repetundis, two de peculatu,
three de ambitu, two de maiestate and three de sicariis; 16, that is, out of a possible 240" (Balsdon 1939,
59).
l 4 Interestingly, Watson notes, "the four men who achieved exclusive power in the first century B.C. [Sulla,
Pompey, Julius Caesar, and Augustus] were all proponents of extensive law reform" (see Watson pp. 95-
100).
In the Sullan era, before the existence of any lex de vi, the lex Cornelia de sicariis
et vrnefi ci ~' ~ would have applied best to Caelius' alleged crimes. The origins of this law
lie in the separate legal procedures de veneficis, de sicariis, and de parricidiis ('for
parricide')16, all of which were incorporated collectively under Sulla's reforms17.
Initially it imposed the penalty of mandatory exile (aquae et ignis interdicitio)18 for
murders and attempted murders within Rome or within a mile outside the city limits, both
on the public roads and in private residencesx1"'. Ulpian quotes the law as stating, "ut
praetor quaerat de capite ejus qui eum telo ambulaverit hominis necandi causa" ('that
the praetor may seek the head of him who walked around with a weapon with the purpose
of killing a man')"'"". In lieu of this final phrase, Riggsby notes that, "the text of the lex
,,xlv111
Cornelia refers only to intentional homicide [not accidental homicide] . In addition,
this law contained a clause concerning poison, which Cicero quotes in his Pro Cluentio:
' 6
iubet lex ea, qua lege haec quaestio constituta est, iudicem quaestionis, . . . quaerere de
veneno . . . quicumque fecerit, vendiderit, emerit, habuerit, dederit" ('this law, by which
this court is established, orders that the judge of the court inquire about poison.. . who has
, 19,xhx
made, sold, bought, possessed, administered it ) .
Furthermore, the competence of the lex de sicariis et veneficis extended to
individuals indirectly connected to a murder, such as those individuals who had given
l 5 "D. XLVII. I. I (Macer): Non omnia iudicia, in quibus crimen vertitur, et publica sunt, sed ea tanturn,
quae ex legibus iudicorumpublicorum veniunt ut . .. Cornelia de sicariis et veneficis. . . . Iust. Inst. I. 4. 18.
Cic. Pro Cluent. LIV.148: Iubet lex ea, qua lege haec quaestio constituta eat, iudicem quaestionis, hoc est
Q. Voconium, cum iis iudicibus, qui ei obvenerint (vos appellat iudices) quaerere de veneno. Collatio Leg.
Mos. Et Rom. XII.5 (Ulpianus, Libro VIII): De . .. incendiaries lex quidem Cornelia aqua et igni interdici
iussit" (Schias 1926, 130); see Chapter VII for discussion of this law as it appears in the Digest
l 6 There is a reference to a quaestio de sicariis that existed as early at 142 B.c., and there are multiple
instances of the use of a quaestio de venficis in the first half of the second century B.c.; a quaestio de
paricidiis existed as early at the fifth century B.C. (see Chapter VI) (for details see Riggsby (1999) p. 50).
l 7 see Gruen (1968) pp. 261-262
l8 This is also a sign of the development in Roman law, as beforehand, fines were much more commonly
used as punishment (Mommsen 1905,68).
l 9 see also Cicero Pro Cluentio, 15 1, 154
false testimony or had given or accepted a judicial bribe such that someone had died2','.
It later came to include arson, magic, abortion, castration", instigation of public riots, and
failure to report ~hi ~wr ecl t s ~~' . Gruen states that,
consolidation of procedure for all analogous crimes, not innovation,
was the keynote [of the lex Cornelia de sicariis et verzeficis]. Sulla
reorganized and stabilized previously existing procedures, placing them
all under a single piece of detailed legislation"".
Thus this was an umbrella law with "wide terms"liV that covered those acts that, as Lintott
elucidates, created "a climate of violence, [and] could have grave consequences for
society"'". Indeed, Riggsby finds that the word sicarius should largely be considered to
mean something like our modern-day "'gangster"'1vi as opposed to a simple 'murderer.'
In this way the overriding purpose of the lex de sicariis et veneficis seems to have arisen
IviiJviii
as public safety in general through the safeguarding of life .
For these reasons, Caelius' supposed crimes appear to fit better into the technical
claims of de sicariis et veneficis than into those of de vi. The lex de sicariis et veneficis,
unlike the lex de vi, was explicitly specific for attempted murder and poisoning, which
were the main charges against Caelius. The three lesser offenses involving the theft from
Palla and public disturbances in Naples and Puteoli should not have come before a
quaestin in Rome at all2'; however the wide breadth of the lex Cornelia de sicariis et
veneficis could have compensated for this because it "made reasonable the prosecution of
related crimes before one court, whereas too narrow a definition would have demanded
successive charges before different quaestiones""x. In this way it was entirely plausible
and appropriate for the minor charges to be taken along with the main charges in a trial
de sicariis et veneficis.
20
This is known as 'tjudicial murder" (Riggsby 1999, 53).
21
see Chapter I
55
However, L. Atratinus, P. Clodius, and L. Balbus chose not to let the main
charges against Caelius determine the law under which they wanted to bring their
prosecution - they did not indict Caelius under the lex de sicariis et veneficis. Instead,
even though both in name and competence the lex de sicariis et veneficis seems to have
been a better match for his criminal trial, the prosecution used the lex de vi to prosecute
Caelius. Austin believes that the prosecution wanted to take advantage of "the undoubted
tendency of the time [that had widened] the official scope of the [lex de vi] " such that
Caelius' case could be brought under it1". To offer possible explanations for why a lex de
vi appeared desirable and why a lex de sicariis et veneficis was disregarded, Austin cites
the importance associated with cases de vi'*'. Perhaps the prosecution wanted to heighten
the significance of the trial by using an indictment de vi. Also, unlike all other criminal
trials, trials de vi could be held even during festivals like the ludi Megalenses. Thus an
indictment de vi could have brought about the prosecution of Caelius sooner than one de
sicaviis et veneficis. This difference seems to have been notable, especially considering L.
Atratinus' immediate goal of interrupting Caelius' prosecution of his father.
In addition, in the mid-first century B.c., vis was a "trendy" prosecution, since so
many cases de vi had taken place at this time. In particular, vis was the indictment of
choice for Catilinarian conspirators (who had most often been condemned under it), so
perhaps the prosecution hoped to associate Caelius with this Catilinarian "stigma" (which
Cicero tried to avoid by promoting the lex Lutatia over the lex Plautia de vi in his defense
speech, as discussed earlier22). Thus factors other than legal standards went into the
decision of how to indict Caelius. In this way Caelius' case, which took place about
twenty-five years after Sulla's codification, provides a specific illustration of the limits of
22 see Chapter I11
the Late Republican legal system - despite all of its corrections of the earlier Roman
legal system, some potential for manipulation and variation remained, and Caelius was
brought to court for vis, not the most appropriate law.
' Gardner 1958,404
" Cook et al. 1932,879
"' Austin 1901, 153
'" Greenidge 1901,423
" Schisas 1926, 128
"' Cook et al. 1932, 876
"" Cook et al. 1932, 873
""' Greenidge 190 1 , 5
'" Schias 1926, 125
" Gruen 1968,6
"' Schias 1926, 149
"" . . . Cook et al. 1932, 304, 876
""' Cloud 1994,503
"'" Taylor 1949, 98
"" Greenidge 1901, 328
""' Cook et al. 1932, 304
""" Cook et al. 1932, 876
"""' kintot: 1999, 155
"'" Gruen 1968,277
"" Schias 1926, 171
Greenidge 1901, 10
Cook et al. 1932, 877
"""' Greenidge 1901,416
""'" Cloud 1994 528
""" Greenidge 190 1, 4 16
"""' Schias 1926, 18 1
xx"ii Cook et al. 1932, 307
""""' Greenidge 190 1,423
""'" Schias 1926,43, 129
""" Gruen 1968,264-165
xxxi
Greenidge 1901,423
xxxiiRobinson 1995, 2
""""' Cook et al. 1932, 307
xxx'v Robinson 1995, 1
"""" Schias 1926, 122
xxx"i Cloud 1994,5 16
xxxvii Taylor 1949, 98-99
xxxvii' Cloud 1994,497
xxxix Robinson 1995, 1
"' Schias 1926, 103
"Ii Girard 1906, 63
"Ii' Watson 1974, 63
"Iiii Cook et al. 1932, 308
""" Robinson 1995,3
"'" Strachan-Davidson 1912,21
"I"' Greenidge 1901, 407
"Ivii Strachan-Davidson 19 12,23
x'viii Riggsby 1999, 55
""" Cicero Pro Cluentio, 148
Robinson 1995,43
li Cook et al. 1932, 879
lii Jones 1972, 106
liii Gruen 1968,262
I i v Strachan-Davidson 1912,34
'" Lintott 1968, 125
'"' Riggsby 1999, 54
I"" Robinson 1995,43
Iviii Cook et al. 1932, 879
IiX Robinson 1995,74
'" Austin 1960, 153
I"' Austin 1901, 153
Chapter V. The Development of Ambiguity in Leges de Vi
Theoretically, the Roman legal system, as updated by Sulla, called for the
anticipation and classification of the full range of human actions with specific and clearly
distinguished laws. However, although it worked on a broad level to provide a backdrop
of general legal definitions, this system could not possibly have applied to every
circumstance or every infraction. As Lintott expresses, "theory and practice were liable
to differ"'. Without a mechanism to ensure some degree of consistency, this system left
room for extensive interpretation and variation of the use of the laws, and so it suffered
from such vulnerability".
Consensus on the law had to be reached in an ad hoc manner. For example, as
Cicero explains in his De Znventione Rhetorica, "primus ergo accusatoris locus est eius
nominis" ('first the prosecutor must define the crime that forms thc basis of the
iii iv
charge ) , and so each Roman prosecutor had the potential to shape the application of a
law to some extent. The praetor urbanus or the praetorperegrinus, if a non-Roman
citizen was concernedv, had similar influence, as he had to grant permission for a
plaintiff's suit to become a formal legal action'^"'. This reliance on human assessment
consequently insured ambiguity in the legal system through both "interpretation and
A 'misfit' case (one which did not fall neatly under any of the original legislation)
did not usually result in the revision of existing legislation. Instead, the Romans deaIt
1
Also, this praetor was involved in the definition of a lawsuit by laying down a 'tformula" particular to
each trial that established the conditions that needed to be satisfied for an acquittal or conviction. Lintott
paraphrases a general formula by saying, "'If such and such be proved, let the judge condemn, if not,
absolve"' (Lintott 1999, 147- 148).
with it either by squeezing it to fit under an already existing law, without officially
modifying that law's provisions, or by adding on a new law that superceded an existing
one. This either extended the scope of a law in practice or created confusion due to the
existence of two similar laws or did both. Overall the adjustments made to the Roman
legal system over time, as new offences arose, followed the dynamics of chaos - the
boundaries of the laws ran together and overlapped. The adjustments that accommodated
'misfit' cases came to dominate and define the system to a degree that seems extreme to
us today, and they cloud our modern understanding of how Caelius should have been
indicted.
The Roman laws for vis, sicavii et venefici, and maiestas2 had been adjusted for
'misfit' cases to such an extent by the time of Caelius' trial that all of them seem to have
been potentially applicable, at least to some degree, to Caelius' alleged crimes. The
formal definitions of these words did not overlap (according to what we understand their
ancient meanings to have been), but the interpretations, which developed as the Romans
used them to classify criminal acts, paved the way for them to become more closely
related and share similarities in meaning. Although these three laws by no means became
interchangeable, there was enough common ground between them to blur their formal
boundaries.
Over time, different occasions challenged the definitions of these leges de vi, de
sicaviis et veneficis, and de maiestate. When a 'misfit' case arose, new courts did not
need to be formed where the existing ones could be put to use. Watson elucidates this
process of evolution:
2
The lex de iniuriis could also be included here, as it was originally taken care of in the quaestio de sicariis
et veneficis (Cloud 1994,525).
First the deliberate, conscious use of existing procedure at the in iure
stage (i.e. in front of the magistrate) to procure an effect other than that
originally envisaged for the procedme. Secondly, the development of
new forms of action . . . which in time would be stabilized and the
formulae of which would come to be published.. . . Thirdly, the a d hoc
granting of actions which were not envisaged by law or in the Edict [of
a magistrate], when this seemed desirable, and likewise the refusal . . of a
remedy created by law or Edict when this was considered properv"'.
The lex Cornelia de sicariis et veneficis, as discussed earlier, originally set out to
maintain public peace3, but was quickly extended to cover "ordinary murder," both of
which issues were also addressed by the lex de vi'". Maiestas was a decidedly vague legal
concept" almost as old as Rome itself, which was originally geared toward regulating the
provinces of Rome and dealing with crimes 'diminishing the majesty of the Roman
People'"'. However, this word came to be used according to a "vague notion of its
[original] sense""" for any action taken against the empire, even one committed by
residents of Rome. Thus maiestas "overiaps with vis, since, at ieasr eventually, ii came to
include sedition which had been a part of vis from the beginningnsiii. Hence, in part out of
convenience and in part out of necessity, the jurisdiction of the lex de sicariis et veneficis
and lex de maiestate expanded and came to be largely superceded in practice by the
jurisdiction of a succession of leges de vi, although there were no formal revisions of the
original lawsxi"
The first known lex de vi, the lex Lutatia, enacted a few years after the leges
Comeliae to deal with the Lepidan insurrection5, set the precedent that legislation de vi
. ..dealt specifically with, first, armed attack on the Senate or
magistrates, second, with seizure of public places - compare the way
modern revolutionaries take over radio and TV stations - and third,
probably, with going armed in public, qualified most likely as contra
rem publicamxv.
see Chapter IV
It may have originated under Rome' s very early rulers (in the form of the word, perduellio, at that time);
see Schias pp. 7-13 for further reading.
see Chapter I11 for details
This definition, especially the final phrase, could also be considered maiestas. Indeed,
Cicero identifies Lepidus' uprising as "caedem hanc ipsam contra rem publicam . . .
factum esse" ('this slaughter itself was done against the State')""'. Likewise, Cousin finds
that the precise definition of laws de vi lies in "vis contra privatos . . . [and] vis contra
rpm publicam"xvii. Cicero7s mention of caedem should also make the act compatible for a
charge de sicariis et veneficis. Accordingly, the lex Lutatia exhibited notable overlap
with the earlier laws.
Thus began a trend of such occurrences, which were regarded as contra rem
publicam, and concerned murder, but were classified as offenses de vi - there were
numerous trials that occurred a decade or two after the Lepidan insurrection that could
have been brought under a lex Cornelia de sicariis et veneficis or de maiestate, but they
were actually bought under the lex Plautia de viXViii. For example, the Catilinarian
conspirators were indicted under the lex Plautia de vi for their exploits, which included
murders and were termed "contra rem publicam" by Cicero and Sal l u~t "' ~. Milo too was
brought to trial for the murder of a very politically significant figure (Clodius) under the
lex Plautia de vi6. Thus it seems to have been a tendency of the time to lump under a
charge de vi those ". . .crimes of violence having previously only been punished when
they could be brought under the head of maiestas or of the crimen de sicariis et
veneficis.. .""". Quintus Mucius remarks on the general definition that vis acquired when
he says that it came to mean simply, "something [that] was done by force, vi, when a
person did it who had been told not to"""'.
Caelius' trial provides an excellent example of how fluid the legal definitions of
these three central legal concepts and the laws that embodied them had become. It has
see Chapter VI for details
already been shown how Caelius could (and perhaps should) have been charged under a
lex de sicariis et veaeficis, since he was accused of attempted murder and poisoning7.
Similarly, Caelius' attempted attack on a foreign diplomat, Dio, and on the Alexandrians
at Puteoli, as well as his incitation of the people in Naples could all also have fallen under
a charge de maiestate, since they were acts abusive to the State. Caelius' poisoning of
Clodia would have been relevant under this charge too because she was the sister of
Clodius, a powerful political figure at the time who had shifting and incendiary political
loyalties8. In fact, Cicero makes great efforts to ensure that the court is aware of how
intimately Clodia and her brother were linked, when he coyly refers to Clodius in his Pro
Caelio as "istius mulieris viro - fratre volui discere" ('that woman's [Clodia's] husband
- I meant to say br~t her' )"~", which plays up the association between Clodia and her
brother. Cicero also attempts to demonstrate how Caelius' actions could be construed in
general as de maiestate: with his important reference to the lex Lutatia, Cicero claims that
Caelius has been brought to court under a law pertaining ". . . ad imperium, a d maiestatem,
a d statum patriae" ('to the rule, to the majesty, to the state of our c ~ u n t r ~ ' ) ~ ~ " ~ " ' . On the
whole, it appears that Caelius' actions could have been examined just as easily in a
quaestio de maiestate as in one de sicariis et venejkis or one de vi". The ability of these
three different Roman laws to apply to Caelius' case demonstrates the extent of their
overlap by the mid-first century B.C.
7
see Chapter IV
see Chapter I for details
see Lintott (1968) pp. 116-1 17 for further reading
10
As little is known about the theft from Palla, it is difficult to determine whether it could have been
considered an offense against the State or whether it was simply grouped as a minor charge along with the
other more significant ones.
Within Cicero's Pro Caelio there exists a reference to the lack of stability in
ascribing legal indictments. Cicero proclaims:
Atque hoc etiam loco M. Camurti et C. Caeserni damnatio praedicatur.
0 stultiam! . . . Qui quamquam lege de vi certe non tenebantur, eo
maleficio tamen errant implicati, ut ex nullius legis laqueis eximendi
viderentur
('And here also the condemnation of M. Camurtus and C. Caesernus is
made known. 0 what foolishness! . . . Although they certainly should
not have been held by a law of violence, they were still implicated in
this crime, so that they seemed not at all likely to be released from this
snare of the law')"xi".
Thus by offering an example of the misuse of the lex de vi, Cicero reveals his own
understanding that this law was so broad that many people attempted to fit all sorts of
cases under it. Interestingly, not only does Cicero provide a concrete example of the
broadening of legal definitions in Rome of the Late Republic, but he also implies that the
jurors had some famiiiarity with the issue of ambiguity and lack oL' consisie~icy iii the
laws as well. Cicero uses this story, obviously common-knowledge to his audience in
court (due to the lack of descriptive information), to prove that Caelius has been mis-
charged and so should not be liable under a law de vi: Cicero asks,
M. vero Caelius cur in hoc iudicum vocatur? Cui neque proprium
quaestionis crimen obicitur nec vero aliquod eius modi, quod sit a lege
seiunctum, cum vestra severitate coniunctum
('Truly why is M. Caelius summoned before this court? Neither is a
charge that is appropriate to this court brought against him, nor truly
would any charge of this kind, which is outside the scope of this law
[de vi ], be relevant [to Caelius' alleged offenses] to your severity')""".
Unfortunately, there are no other known mentions of M. Camurtus or C. Caesernus, so no
further judgment can be passed about why they should not have been indicted under this
law
Evidence of the overlap between Roman laws also lies in the employment of
praetors in the legal system. Originally, one lex was examined in one quaestio that was
presided over by only one praetor (for one year), yet this one-to-one correlation became
distorted as time passed. The establishment of new permanent courts, such as the
quaestio de vi, in addition to those of Sulla resulted in a praetor shortage, as there were
not enough praetors to preside over all of the quaestiones perpetuaexxvi. This problem
was exacerbated when, on occasion, praetors were called away from their courts if an
urgent military situation demanded attentionxxvii. To compensate, more praetors were
installed, and people other than praetors assumed praetorial roles in the legal
matters ll,xXviii. These "substitute praetors," often ex-aedilesxxix, were called
12,xxx
quaesitores . This redistribution of praetors among different courts led to more
blurred legal boundaries and hence more fluidity between courts. As Greenidge
explicates,
The groups of quaestiones, or of their parts, might be readjusted every
year, and the praetors must be regarded as a group of High Court
judges who distribute the courts amongst themselves, or have them
distributed by the Senate, for the coming year, according to
considerations of convenience. The introduction of a new court might
at any time add to the work of a departmentxxx'.
Hence, overlap in the jurisdiction of different praetors seems to have paralleled the
overlap in laws.
The records of multiple judges presiding over the same court in the same year
provide evidence for praetor overlapxxxii. For example, in 54 B.C. Gaius Alfius Flavus
served as praetor in the trial of Aulus Gabinius and later in the trial of Gnaeus Plancius in
xxxiii
quaestiones de maiestate and de sodalicia, respectively , while at the same time
another man, Servilius, was also said to be serving as praetor in the quuestio de
sodaliciaxxxiv. Similarly, in 66 B.C. three different people were said to be associated with
l 1 For example, Caesar served as quaesitor de sicariis in 64 B.C. (Balsdon 1939, 59).
l 2 see Jones p. 128 for more examples
jurisdiction over the quaestio de sicariis et veneficis: in his speech defending Aulus
Cluentius Habitus from charges of poisoning his father-in-law, Cicero declares, "Quid
est, Q. Naso [the magistrate presiding over A. Habitus' case], cur tu in isto loco sedeas?
. . . huec quaestio sola ita gubernatur? quid M. Plaetori et C. Flamini inter sicarios?"
('What is the reason why you, Quintus Naso, sit in that seat of yours? . . . Is this the only
court thus presiding? What of Marcus Plaetorius and Caius Flaminius in the court for
murderers?')xxxv. Although Jones interprets this as indicating the existence of three
courts (two de sicariis and one de veneficis) that each dealt with infractions of
murderxxxv', Cicero may, in fact, be speaking of multiple people who all served as praetor
in the same court.
Indeed, Caelius' was one of two trials that were held under the auspices of two
xxxvii
different praetors in the same court . In 56 B.C. Gnaeus Domitius Calvinus presided
over the trial for Caelius, while Marcus Aemilius Scaurus presided over the trial of
Sestius, who was also charged with vis. This is further complicated by the fact that Cn.
Domitius also served as praetor in the quaestio de ambitu in 56 B.C. No direct evidence
is available to explain these complications. Greenidge speculates that there may have
been two quaestiorzes de vi because of the lex Pluutia and lex ~ u t a t i a " ~ ~ " ~ ~ ' , though it is
not definite that the lex Lutatia was still in effect at that time or in existence as a separate
lawi3. It may be that two cases de vi arose, and the magistrate de ambitu was called in to
alleviate the extra pressure in the de vi division. Or perhaps one praetor became sick or
otherwise incapable of working, and so another praetor assumed his responsibilities.
Regardless, the use of the same praetors in different courts and different praetors in the
same court promoted the fluidity between laws.
l 3 see Chapter I11
The ambiguity embodied in the Roman legal institutions of the middle of the first
century B.C. becomes apparent from examining the legal particulars and background of
Caelius' trial. This ambiguity can be considered from two opposite perspectives, as
advantageous or disadvantageous: one might argue that the task of a Roman prosecutor
was made easier by the multiple options available to him in selecting an indictment, or
one might argue that his task was made especially challenging by the existence of more
than one law that presented itself as a good match for the crime or set of crimes, and
hence selecting one law would have been a complicated and strategic maneuver. Though
not enough information survives for us today to determine exactly why Caelius was
charged under a lex de vi instead of another applicable law such as the lex Cornelia de
sicariis et veneficis or de maiestate, Cicero's devastating rebuttal of the prosecution's
case must have left the prosecutors wondering if they would have stood a better chance
for a conviction under a different law and in a different court.
' Lintott 1968, 130-13 1
" Lintott 1999, 64
"' Alexander 2002, 13
iv
Cicero De Inventione Rhetorica, ii.53
" Lintott 1999, 147
"' Lintott 1999,96
"" Jones 1972, 106
""' Watson 1974, 88
'"Robinson 1995,43
" Lintott 1968, 11 8
"' Schias 1926, 3
"" Schias 1926, 12
""' Cloud 1994, 5 18
"'" Robinson 1995,43
"" Robinson 1995,78-79
""' Cicero Pro Milone, 13-14
""" Cousin 1923, 92
"""' Lintott 1968, 11 8
"'" Lintott 1968, 112, 116, 165
"" Cornish 1898,752
""' Lintott 1968, 127
""" Cicero Pro Caelio, xiii.32
"""' Cicero Pro Caelio xxix.70
""'" Cicero Pro Caelio, xxx.71-72
""" Cicero Pro Caelio, xxx.72
"""' Berry 2000, xxvi
"""" Balsdon 1939, 59
xxviii Schias 1926, 145
Jones 1972, 58
""' Schias 1926, 146
""" Greenidge 1901,429-430
xxxii Schias 1926, 146
xxxiii Greenidge 190 1,430
xxXiv Jones 1972, 59
xxxv Cicero Pro Cluentio, 147
xxxvi Jones 1972, 83
xxxvii Greenidge 1901,430-43 1
xxxviii
Greenidge 190 1, 43 1
Chapter VI. A Comparative Look at Caelius' Indictment
The particular nature of Caelius' indictment on five counts of vis in 56 B.C.
requires further investigation. At least to a modern reader, it seems bizarre that five
separate offenses, especially ones that occurred on different, unrelated occasions and
ones that do not seem to fall perfectly under the definition of a lex de vi, were considered
together in a quaestio de vi. Detailed examination of the alleged crimes themselves and
of the law itself does not produce definitive clarification of these issues, but rather reveals
that there is a certain degree of ambiguity surrounding Caelius' indictment. Therefore, it
may be useful to look at other cases from Caelius' era that dealt with similar crimes to
provide points of comparison.
Accordingly, these issues concerning potentially inappropriate charges and
concerning charges grouped together will be reviewed using examples from other
contexts, namely, the trials of Publius Cornelius Sulla, Titus Annius Milo, and Sextus
Roscius Amerinus. All of these trials, in which Cicero served as a defense advocate, took
place within ten years of Caelius' and addressed crimes similar to those of Caelius. They
illustrate that the ambiguity present in Caelius' indictment was not particular to his case
alone, but rather is indicative of the potential for ambiguity that characterized the Roman
legal system of the Late Republic in general.
Publius Cornelius Sulla
The indictment of Publius Cornelius ~ul l a' , a "professional ruffian"', as Lintott
names him, reveals that the lumping of multiple charges under one law and into one trial
' a nephew of the great dictator and Pompey's brother-in-law
69
was not a strange or exceptional aspect of Caelius' indictment. Like many of the
Catilinarian conspirators and like Caelius, P. Sulla, who had supported Catiline and
formed a gang to contribute to the turmoil and violence of the 60's B.c., was charged
under the lex Plautia de vi2. Having already been convicted under the l a Calpurnia de
ambitu by Lucius Manlius Torquatus senior in 66 B.c., P. Sulla was prosecuted again by
his son, Lucius Torquatus junior, in 62 B.c."'~. This time P. Sulla was called into the
quaestio de vi for multiple specific offenses from two incidents that occurred three years
apart; thus like Caelius he faced multiple counts of vis in one trial.
As Cicero notes, this was quite literally an instance of "magnitudini criminis"
('the enormity of a charge')"' because P. Sulla was charged for so many different
offenses. P. Sulla was called to trial for what Cicero calls the "crimen coniurationis"
('charge of conspiring')'", although this was not the formal charge (vis was), concerning
his participation in the first Catilinarian conspiracy of 66 B.C. and the second Catilinarian
conspiracy of 63 B.C.
Duae coniurationes abs te, Torquate, constituuntur, una quae Lepido et
Volcacio consulibus patre two consule designato facta esse dicitur,
altera quae me consule; harum in utraque Sullam dictis fuisse
('You say that there were two conspiracies against you, Torquatus, one
which was made when Lepidus and Volcacius were consuls and your
father was consul elect, and the other which was made when I was
consul; you say that Sulla was involved in both')".
There were various charges that were addressed by Sulla's other defense lawyer, Quintus
Hotensius Hortalus, about which we know of nothing except their mere existence. Cicero
dealt with at least three separate charges: that P. Sulla had acted in collaboration with
2
In fact, the Catilinarian conspiracy was the occasion for which this law was used the most (Sallust Bellum
Catilinae, 3 1 )
The trials of both Caelius and P. Sulla were strongly influenced by family - and specifically father and
son - dynamics. Caelius had prosecuted L. Bestia and then was prosecuted by L. Bestia's son. The
prosecution of P. Sulla seems to have almost been handed down from father to son. Together these two
cases exhibit how family and law overlaped and at times merged in Roman public life.
catilineV' (and concurrently that he had been identified by the Allobroges as being a
conspiratorvii), that he bought gladiators ('gladiators') for Catiline to usev1", and that he
had forced some people in Pompeii to join the Though a11 of these
incidents and acts clearly fall under the definition of the lex Plautia de vi, the great
amount of time between them makes it somewhat strange that they were all addressed in
one trial.
Thus, despite our imperfect understanding of P. Sulla's indictment, we know that
his trial covered many charges, which implies that Caelius' trial was not an anomaly for
similarly addressing multiple charges. Together these two trials indicate that the lumping
of loosely related charges - those which covered offenses from entirely separate
occasions - seems to have been a feature of at least some cases in the mid-first century
B.C. As discussed earlier5, such lumping of charges contributed to the ambiguity into the
Roman legal system.
Titus Annius Milo
The trial of Titus Annius Milo offers a contrast to that of P. Sulla and that of
Caelius. Unlike the other two defendants, Milo was not indicted for multiple offenses in
a single indictment, but rather he was indicted for two offenses, which were each
addressed twice, in four separate trials. Beginning on April 4, 52 B.C., Milo sat at trial in
a quaestio de vi before the magistrate Lucius Domitius Ahenobarbus. Cicero spoke on
his behalf on April 8, but on that same day he was condemned by a vote of 38 to 13'; he
therefore immediately went into exile in Massilia. However, he then continued to face
"Pornpeianos esse a Sul k irnpulsos ut ad istarn coniurationern atque ad hoc nefariurn facinus accederent"
('that the people of Pompeii were driven by Sulla to join that conspiracy and that wicked crime')
see Chapter V
other charges, but in other courts, although Milo himself was not present at those trials.
Asconius relates how.
on the following day [after the trial under the lex Pompeia de vi] Milo
was arraigned for corruption before Manlius ~ o r ~ u a t u s ~ , and
condemned in his absence.. . . A few days later Milo was condemned
on a charge of illegal association.. . . Following this a second
conviction for assault was given against himx'.
Thus in addition to the lex Pornpeia de vi (for the murder of Clodius, which will be
discussed shortly), Milo was next prosecuted under the lex Pornpeia de ambitu for his
allegedly corrupt electoral practices. Then Milo was prosecuted under the lex Licinia de
sodaliciis, which "in effect, sharpened the notion of ambitus""", for his alleged attempts
to corrupt or intimidate voters with organized groups of peoplexiii'xiv. And finally, Milo
was also prosecuted under the lex Plautia de vi again for the murder of ~ l o d i u s ~ , " ~ . Thus
even though there was tre11.,endous overlap in the fnm laws under which Milo was tried
(two for violence and two for electoral corruption), the charges were still separated into
individual trials8.
This practice of dividing up charges into separate trials - both in place and time -
was not employed in the case of either P. Sulla or of Caelius, and indeed it was avoided
in those instances by lumping the charges together under a single law and into a single
trial. Hence the occurrence of Milo's case, which involved the alternative to Caelius and
Milo's type of indictment, shows that lumping of charges was not a consistent or required
action in the Roman legal system. This indicates that there was no one fixed method for
structuring or undertaking a prosecution in the mid-first century B.C. Thus again,
ambiguity appears to have been a hallmark of the Late Republican legal system.
the same prosecutor as for the trial of the lex Pompeia de vi
Milo's lieutenant, Marcus Saufeius, also faced charges under both the lex Pompeia de vi and the lex
Plautia de vi.
8
Milo was condemned on all of these occasions (he was condemned in absentia in all except the first).
In addition to the mere presence of ambiguity, Milo's case also provides evidence
for one source of such ambiguity. No strict legal procedure was responsible for shaping
the prosecutions of Milo, but rather, varying other motives or interests wielded some
influence. The case of Milo, which took place in the same atmosphere of civil strife that
Caelius experienced9, exhibits the blending of law and extra-legal factors such as politics
and the state of society at the time of trial. Milo's case largely stemmed from the
political battle between Milo, whom Gruen describes as "driven to morbid ambition and
addicted to violence"xv1, and Clodius. Having (unsuccessfully) indicted Clodius under the
lex Plautia de vi in 57 B.C., Milo had brought his gangs into the streets of Rome and
triumphed over Clodius by procuring the return of Cicero from exile, which Clodius had
arranged in 58 B.c.)""". Although there was a lull in the conflict for a few years, the
situation dissolved again in 52 B.c. The elections for consul that year, in which Milo
faced Quintus Caecilius Metellus Scipio and Pubius Plautius Hypsaeus, both of whom
Clodius supported, had roused a great deal of controversy, and had been interrupted on
numerous occasions by riotsxv1i1. At last "the confusion was climaxed," Gruen narrates,
when Milo and Clodius met on the afternoon of January 18 on the Via Appia above
lO,x1x
Bovillae . A brutal skirmish ensued, beginning with verbal taunts and developing into
an exchange of blowsxx"', in which Clodius was stabbed many times and there killed, not
by the hand of Milo, but supposedly by Milo's supporters, if not directly by his ordersxx1.
The violence advanced into riots tearing through the streets of Rome. The Curia was
see Chapter I
l o Milo was traveling with his wife Fausta to Lanuvium, his birthplace and the seat of his position as chief
magistrate, to nominate a priest of Juno; Clodius was returning from a town-council meeting in Arcia
(Poynton 1902, xii); see the commentary of Q. Asconius for further reading.
I I
This was a large-scale affair, as it involved slaves from both sides who were armed and ready for battle
(Milo had even recruited gladiators such as the renowned Eudamus and Birria) (Lintott 1968, 67).
burned to the ground from a funeral pyre built for ~ l o d i u s ~ ~ " , and the house of Lepidus12
was assaulted.
After great turmoil, Pompey, then the sole consul at the time, finally regained
control of Rome by passing a senatus con.sultum ultimatum1'), and Milo was brought to
trial, while fear generated by the recent civil disturbances still prevailing. Therefore, "to
cleanse the city of the disruptive elements that had produced the chaos of recent
months"xxiii, Pompey passed two new laws with the approval of the Senate. The first, the
lex Pompeia de vi, was directed specifically at the murder of Clodius, the burning of the
Curia, the siege on the house of Lepidus, and other violent acts related to Milo, which
were all explicitly referred to in the text of the law. The second, the lex Pompeia de
ambitu, was enacted specifically for Milo's corrupt electoral practices14. The leges
Pompeiae had a decidedly ad hoc naturexx1v, and their specificity to Milo's outbreak was
such that they "would not have affected the normal working" of the lex Plautia de vi or
the lex Cornelia cle ambitu, which were in statutory force at the time and applicable to
Milo's actionsxxv - they did not invalidate the earlier legislation. His new laws, Pompey
hoped, would avoid lengthy and unpleasant turmoil, which he predicted the lex Plautia
and lex Cornelia would have invitedxxv'. The leges Pompeiae shortened the trial
procedure and simultaneously sharpened the penaltiesxxv1i.
Indeed, no reason other than the prosecution of Milo seems to be apparent for the
ad hoc passage of the leges Pornpeiae. In his Pro Milone Cicero chastises the legislative
body for the presence of such superfluity in the law. He declares that, "enim leges errant
12
who was then the Interrex
l3 This action enabled Roman soldiers to enter Rome, which set a precedent for non-civil-war times (Lintott
1968,91).
l 4 This law was more enduring than the lex Pornpeia de vi (Gruen 1974,237).
quaestiones vel de caede vel de vi, nec tantum maerorem ac luctum senatui mars P.
Clodii adferebat, ut nove quaestio constitueretur" ('for there were laws, there were courts
both for murder and for violence, and the death of Clodius should not have incurred such
, xxviii
grief and consternation to the senate that it should have established a new court ) , and
he avidly protests against establishment of such a nova quaestioxxix. Cicero presents
Pompey's decision to pass new legislation as an act of desperation, a way to cast " falso
. . . in Milonem" ('slander against Milo')""" and gain the necessary additional advantage
over Milo. Thus overall, although it does not explain why Milo was indicted four
separate times, the passage of the leges Pompeia de vi and de ambitu for the trial of Milo
does reflect how changes in Roman law were tailored to current political events in Rome.
Sextus Roscius Amerinus
The case of Sextus Roscius Amerinus offers an example of an indictment that
seems to have been inappropriate - it is an instance when the Roman prosecutors did not
chose to bring their case under the law that to us is the most obvious. S. Roscius was
accused of murdering his father, the well-to-do and eminent Sextus Roscius senior.
Although others before S. Roscius junior had been tried and even condemned for such an
offense under the lex de parricidiis (like Gaius Villius for murdering his father in 132
B.C. and Publicius Malleolus for murdering his mother in 101 B.C.), S. Roscius was not
tried under this law. Instead, he was brought to the court of Marcus Fannius in late 81 or
more probably in early 80 B.C. under Sulla's newly-enacted lex Cornelia de sicariis et
veneficis, which did not include a specific reference to parricide at al115~"x"'. Thus it
seems odd that S. Roscius was not brought to trial under a lex de parricidiis. Regardless,
l5 see Chapter IV
the examination of a case of parricide in a quaestio de sicariis et veneficis extended the
competence of Sulla's law in practice and reveals the presence of ambiguity surrounding
indictments at the time of S. Roscius' trial.
Perhaps some confusion arises from the evolution of the meaning of parricidium.
The concept of pavricidium was not a simple one in Roman times. It dates to as far back
as nascent Rome and its supposed second mythical king, Numa ~ o m ~ i l l i u s ~ ~ ~ ~ ~ . Praetors
xxxiii
de pan-icidio are mentioned in the Twelve Tables from the mid-fifth century B.C.
,
thus parvicidium was certainly a formal legal charge by this time. Originally parvicidium
was a general term that applied to the intentional murder of a citizenxxx1", but it seems that
over time its meaning was narrowed down such that by the first century B.C. it had come
to refer specifically to the murder of a father or close relativexxxv. At the same time,
sicavius had come to refer to its original meaning ('murderer')xxXvi. Perhaps the overlap
between these two words led to some lack of clarity in the legal charges they came to
represent, and so in this way, a modern viewer may be uncertain about the examination of
S. Roscius' alleged parricide in a quaestio de sicaviis et veneficis. This overlap has an
effect similar to that of the overlap between vis and sicarius (and also maiestas as well)16
that makes a modem viewer uncertain about the examination of Caelius' alleged crimes
in a quaestio de vi, as discussed earlier17. Furthermore, it seems that just as the lex
Plautia de vi is thought to have taken over the competence of the lex Cornelia de sicariis
et veneficis and of the lex Cornelia de maiestate, the lex Cornelia de sicariis et veneficis
appears to have taken over the competence of the lex de parricidiis, as evidenced by the
trial of S. Roscius.
l6 though the overlap between vis, sicarius, and maiestas occurred both in their definitions and in practice
17
see Chapter V
Cicero does not offer much assistance in our understanding of why a charge of
parricide was examined in a court for murder and poisoning. The discrepancy
surrounding S. Roscius' indictment clearly appears in Cicero's defense speech, the Pro
XXXVl l
Roscio Amerino - Cicero refers to a charge de parricidio , but he also definitively
XXXVl l l
states that he is present in the quaestio de sicariis . This incongruity is a result of
"neglegentiam eius in accusando" ('his [C. Erucius', the prosecution's] carelessness in
making his accusation')"""'", Cicero claims. Cicero also identifies that the charge brought
against Roscius is not fitting. For example, he refers to a "crimen commenticium" ('made
up charge')"' and an "accusator ridiculw" ('ridiculous accuser,' i.e., a prosecutor who
brought a ridiculous charge)'*^"", and Cicero continually plays up the prosecution's
absurdity and complete lack of evidence to support their particular indictment. Thus,
although he never directly explains it, Cicero does reference the illogicality of the charge
itself.
The illogicality of S. Roscius' indictment, like Caelius and Milo's, is indicative of
the strong influence that politics and other factors could have on determining and
distorting a criminal charge. The entire case brought against S. Roscius was trumped-up
and exceedingly weakX1" because it arose not to prosecute a criminal, but to satisfy an
ulterior motive. S. Roscius' father, Sextus Roscius senior, had met his death near the
Pallacinian baths in ~ome"'"', and Lucius Cornelius Chrysogonus, who was greedy for
the inheritance left by S. Roscius senior (the Roscius estate1'), decided to cast suspicion
for the murder on S. Roscius junior while claiming the inheritance for himself. Even
l 8 With this epithet Cicero refers to L. Chrysogonus to identify him as the true prosecutor in the trial
because he had solicited C. Erucius, the formal prosecutor of S. Roscius, to press formal charges, as
discussed below. This treatment of L. Chrysogonus is similar to that of Clodia in the Pro Caelio.
19 .
in Ameria. a hamlet in Southern Umbria
though the lists of Sulla's proscriptions were closed by the time of the murder2', S.
Roscius senior's name was inserted onto them, and so his property was confiscated from
S. Roscius junior by the ~tate"'". At a public auction the large estate conveniently fell
into the hands of L. Chrysogonus, who was one of Sulla's favorite ex-slaves, for a
ridiculously under-valued S. Roscius attempted to get the sale annulled, but he
only succeeded in unsettling the new owner, not in recovering the propertyx'".
Consequently, L. Chrysogonus, after having made numerous unsuccessful attempts to kill
S. Roscius directly, sought a way to secure his retention of the landx'"'. For this reason he
called on Gaius Erucius, an experienced prosecutor, to place the blame for S. Roscius
senior's murder on his son, such that if S. Roscius junior were condemned in a quaestio
de sicariis et veneficis, he would be exiled and thus incapable of reclaiming his property.
In this way L. Chrysogonus' greed prompted the particular charge de sicariis et veneficis
leveled against S. Roscius.
L. Chrysogonus could have also potentially accomplished his goal (ownership of
the Roscius estate) in a quaestio de parricidiis. However, in 8 1/80 B.C. the quaestio de
sicariis et veneficis was more advantageous to this end because the condition of the
courts at this time made a quaestio de sicariis et veneficis more disposed to a conviction
than a quaestio de parricidiis - the lex Cornelia de sicariis et venejicis was at that time
new and as yet unused, and as Freese notes, "public opinion was in favor of the
condemnation of the first person accused [under the lex Cornelia de sicariis et
venef i ~i s ] " ~' ~~' . Hence, it seems likely that S. Roscius was indicted under this law because
20
They had been closed on June 1, 81 B.C.
21
It was sold for 2,000 sesterces, when it was valued at 6,000,000 (Freese 1984, 114).
22
In his speech, Cicero refers to L. Chrysogonus' seizure of the estate by speaking of his "praedam ..
nefariam" ('wicked booty') (Cicero Pro Roscio Amerino, ii.6).
the prosecution thought that they would have a greater chance of success that way than
under the old lex de parvicidiis. Thus the case against S. Roscius demonstrates that
indictments in the Late Republic could be ambiguous and confusing because of
manipulation by politics and the general atmosphere of the times.
Conclusion
Overall, the cases of P. Sulla, Milo, and S. Roscius serve a two-fold purpose in
considering Caelius' and Roman law in general. They first indicate that Caelius' single
indictment on multiple counts was an unforced, purposeful decision, which the
ambiguous Late Republican legal system made available to the prosecution. Secondly,
they show that Roman political affairs could have such drastic influence over the law as
to bring about the passage of new legislation and alter the selection of indictments.
' Lintott 1968,77
ii Gruen 1974,283,272-273
iii
Cicero Pro Sulla, xxiv.69
'" Cicero Pro Sulla, iv.13
" Cicero Pro Sulla, iv. 11
"' Cicero Pro Sulla, v.16-17
"" Cicero Pro Sulla, xiii.36-37
""' Cicero Pro Sulla, xix.54
'" Cicero Pro Sullu, xxi.60
" Cicero Pro Milone, iii.7
"'Watts 1953, 135-136
"" Gruen 1974,230
""' Poynton 1902, xix
"'" Cicero Pro Plancio, 44-45
"" Lintott 1968, 110
""' Gruen 1974, 108
""" Gruen 1974, 152
"""' Harper and Gallup 1898, 350
"'" Gruen 1974, 152
"" Poynton 1902, xii
""' Greenidge 1901, 390
""" Cook et al. 1932, 624
"""' Gruen 1974, 337-338
""'" Gruen 1974,234
""" Lintott 1968, 123
"""' Cook et al. 1932, 625
-
xxvii Greenidge 1901, 391
""""' Cicero Pro Milone, v. 13
""'" Cicero Pro Milone, vi. 14
""" Cicero Pro Milone, xxvi.70
"""' Alexander 2002, 67
"""" Grant 1975, 16
xxxiii Grant 1975, 16
xxxiv Freese 1930, 1 19
"""" Grant 1975,25
xxxvi Grant 1975, 25
xxxvii Cicero Pro Roscio Arnerino, x.28
xxxviii
Cicero Pro Roscio Amerino, ii.6
xxxix Cicero Pro Roscio Amerino, xxi.59
XI
Cicero Pro Roscio Amerino, xv.42
xli
Cicero Pro Roscio Amerino, xv.42, xviii.50
""' Donkin 1987, xviii
xliii
Cicero Pro Roscio Arnerino, vii. 18, viii.21
"Iiv Freese 1984, 1 13
"Iv Freese 1984, 1 14
"Ivi Freese 1984, 115
"Ivii Freese 1984, 11 6
Chapter VII. The Digest and Another Consideration of the Leges de Vi
Even though it surfaced more than 500 years after the trials of Caelius, P. Sulla,
Milo, and S. Roscius, the Digesta of Justinian (also know as the Pandectae when it was
later translated strictly, per Justinian's orders, into Greek') offers a cross-section of the
entire development of Roman jurisprudence from the last century B.c.". In this way, a
comparison between the classical laws and the laws detailed in the Digest is very
informative and holds implications for understanding the criminal indictments in the Late
Republic.
The emperor Justinian, who was born a peasant in ~auresi um' in 482 A.D. and
ascended to emperorship in 527 A.D. through his uncleladoptive father, ust tin us^, carried
out a vast codification of Roman law. This codification resulted in several texts: the
Digest (the most influential one), the Codex Justinianus (a precursor of the Digest), the
Novellae Constitutiones (a collection of new enactments, those made after the
composition of the Digest), and the Imperatoris Iustiniani Institutiones (an elementary
textbook for law students), all of which are collectively called the Corpus Iuris Civilis'''.
Justinian's attitude was more re-inventive than creative - the emperor gathered the many
separate legal codes and concepts available to him and made them a whole, cohesive
work by combining them together and trying to remove any inconsistencies.
1
which lies in present-day Serbia
2
Justinus became emperor in 518 A.D., and Justinian joined him as a co-regent in 527 A.D. A year later,
Justinus died, thus leaving Justinian sole reign over the Rome Empire (Jolowicz 1932,484).
8 1
Justinian's undertaking was incredibly ambitious and expansive. The codification
reached back to the first century B.C., as far as the age of Quintus Mucius scaevola3, who
was consul in 95 B.C. and died in 82 B.C., although the majority of the contents (all
sources except sixiv) come from the period between 100 A.D. and 225 A.D.". Indeed, the
Digest is considered to be "the principal source of our knowledge of the classical period
of Roman law""', as it contains "totum ius antiquum, per millesimum et
quandrigentesimum paene annum confusum" ('all of the ancient law, [which had been] in
a state of confusion for almost 1400 years'), according to ~ustinian"".
Justinian was pursuing greatness, thus it was his ambition to renew the old
grandeur of the imperium ~omanum"~~' "", and part of this plan included the vast
codification of the laws. It had come to his attention that, "omnem legem tvamitem, qui
ab urbe Roma condita et Romuleis descendit temporibus, ita esse confusum, ut in
infinitum extendatur et nullis humanae natuvae capacitate concl ~dut ur' ~ ('all of our legal
system, which has descended from the foundation of the city of Rome and the time of
Romulus, is so confused that it extends infinitely, and it reaches outside of the capacity of
any human nature')", and he decided to resolve this issue. The emperor charged ahead in
early 528 A.D. with a ten-member committee, composed of professors and state
officialsx1. Justinian called together people who served as his "compilers," called such
today "because they plundered (compilave) the classical texts and the imperial
constitutions for the codification""". They were ordered to examine the Co d a
Gvegovianus, Codex Hermogenianus, and Codex T/zeodosianus and to remove obsolete
institutions, contradictions, repetitions, and all extraneous andlor unnecessary
In fact, some of the sections on vis in the Digest contain fragments from Scaevola, who wrote a Jus Civile
composed of 18 books (Girard 1906,97).
xiii,xiv
information (although this was not successfully accomplished in full, as discussed
later)"". They were given "auctovitatem conscribendavum intevpretandarumque legem"
('the authority to compose and interpret the laws7)"" with the goal of the creation of a
Codex Justinianus:
Primum nobis fuit studium a sacratissimis retro princibus initium
sumere et eorum constitutiones emendare et uiae dilucidae tradere,
quatenus in unum codicem congregutae et omni superuacua
similitudirie et iniquissima discordia absolutae uniuersis homirzibus
prornptum suae siceritatis praebeant praesidium
('It has been our primary pursuit to make a beginning with the most
sacred emperors of before, to free their enactments from errors, and to
hand them out in a clear way, in so far as they, collected into one code
and freed from all unnecessary repetitions and from most adverse
disagreement, might provide all men with the ready protection of their
own
After about a year's work, this codex was published on April 7, 529 AD. , and was given
stat~~tory force as a law nine days laterxviii.
The approach used for the creation of the Codex Justinianus demonstrates a
significant shift in the Roman legal institution since the time of Caelius' trial. The
ambiguity and conflict surrounding indictments such as Caelius' finally received
attention and an attempt at improvement. Unlike reform of the legal system during the
Republic and unlike Sullan method of codification, Justinian moved away from simply
tacking on new laws when old laws became obsolete or insufficient and from simply
reorganizing the pre-existing laws. Instead, Justinian sought to eradicate problem laws
and consolidate the remaining ones. He urged that the old laws be "classified with great
acuteness and expressed with great technical precision""'" so that a concise, unambiguous
system would arise.
However, the Codex Justinianus existed only briefly (it lasted until 534 A.D.),
until its power was usurped by the completion of a much larger project - that of the
Digest. Indeed, the entire textual body of the Codex has not survived to this day - only a
fragment of a table of contents remains from an Egyptian papyrus4~xx. On December 15,
530 A.D., a constitution, De Conceptione Digestorum, was passed that called for the
compilation of a single work from the writings of ancient jurists, who often quoted
ancient lawsxxi, for which a new chairman of compilers was namedxxii. This man,
Tribonianus, had begun as an assistant to the compilation, at which time he was the head
of the imperial chanceryxxiii. At the time of his appointment as chairman, he held the
office of quaestor sacripalatii ('quaestor of the sacred palace'), and by the time of the
publication of the Digest, he had become the magister ofSiciorum ('minister of
j u~t i ce' ) ~~' ". Although Justinian has received all of the credit for the compilation of the
Digest, the emperor had announced that "omne studium Triborziano viro excelso . . .
imposuimus" ('we [Justinian] entrusted the entire task to Tribonian, a most eminent
man')""". It is also most probable that Tribonianus, whom Justinian repeatedly describes
xxvi
admiringly as "prudentissimus" ('most wise ) and "excellentissimus" ('most
e ~c e l l e n t ~) ~~" ~' , was the true muse as well as the main instrument in the creation of the
...
~ i ~ ~ ~ ~ s , x x ~ l l l
Indeed, it is thought to have been inspiration of Tribonianus to use classical legal
literature as the basis of the work - "in other words the great plan of the Digests.. ." was
Tr i boni anu~' ~~' ~. He wielded tremendous power in the composition of the Digest. The
old literature that was used to form the substance of the collection is thought to have
come largely from Tribonianus' own library of many rare booksxxx, which presumably
- --
4
This is comprised of "in a very fragmentary state, a list of title headings and inscriptions of constitutions
of Book I, Titles 11-16" (Jolowicz 1932,501).
Indeed, revisions to legislation diminished significantly after Tribonianus' death (Buckland 1975, 89).
. . . explains how the codification took on an even more monumental
character than had originally been planned, and how the centre of
gravity of the whole - contrary to the constitutional conditions of the
time - moved from the collection imperial constitutions to that of the
jurists' lawxxx'.
Tribonianus was given the task of selecting his colleagues for the committee of the great
codification project. This committee had originally only included principle figures in the
imperial governmentxxxii, but Tribonianus consulted eleven defense lawyers from the
courts in ~ o m e ~ , the magister officiorum at the time7, as well as two arztecessores ('law
teachers') each from two schools, one in Constantinople and one in Beirut
8,xxxiii
The Digest was published after only three years of intense efforts on December
16, 533 A.D. and was put into statutory force two weeks laterxxxiv, even though originally
the time for completion had been set tentatively for ten years, and this was then thought
te be cha!!engir;gxxxv or eyer, "j~y"=ss&lis" ( b~mmOES~~~e' ) xxxV1, Thp,rc Z ~ P , still Some
disputes and inconclusive discussions over how so much information was compiled in so
short a timexxxvii. However, the most generally accepted opinion is that of Friedrich
~ l u h r n e ~ ~ ~ ~ ~ ~ ' , who discovered in 18 18 that the text of the Digest can be divided into three
"masses," which each contain excerpts from similar sourcesxxxix. Therefore, Bluhme
proposes that there were three subcommittees, each entrusted to research and compile one
"mass."
Even so, the Digest took about three times longer to compose than the ~odex"' - it
was more ambitious than the previous project, as it both replaced the Codex and also
undertook what Kunkel justifiably calls "the mighty work" of collecting the jurist law as
Stephanus, Menas, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Constantinus
and Jahannes
Constantinus
Theophilus (who was on the original committee) and Cratinus of Constantinople, and Dorotheus and
Anatolius of Beirut
well. Tribonianus and his committee poured over nearly 2,000 books9 ((3,000,000 lines)
from thirty-nine authors, who were included to varying degrees in the final text of the
Digest (the work of Paulus and Ulpian, two jurisconsults of the third century AD. ,
together form the basis for almost a half of the Digest, whereas Aelius Gallus appears in
it once, for examplex"). All this information was condensed into 150,000 lines, cited by
the name of the author and work, and organized into fifty books that were subdivided by
chapters ("titles") according to subject matter. The end product contains enough
information to fill one and half ~ibles""'.
Legislation for vis was incorporated into the Digest multiple times. Although the
absolute authority of the quaestiones perpetuae was dwindling by the age of Justinian,
"the substantive categories of the quaestiones perpetuae system remained, from
conservatism, and for ease in interpretation"""". The category of vis had not disappeared
by any means; however, the two laws referenced by Cicero in the Pro Caelio, the leges
Lutatia and Plautia de vi, do not explicitly appear in the Digest since they had been
superceded in practice by new legislation, the leges Iuliae de vi publica and de vi
privatalO. It makes sense for these leges Iuliue to appear in the Digest because "later
sources such as the Digest do not generally attribute material to original Republican laws
which have been superceded; Romans, not surprisingly, thought of their laws as laws, not
as history," as Riggsby notesx"'.
Thus, although the original documentation of vis is very fragmentary, the legal
concept de vi and the laws built upon it remained active in Justinian's time and were
preserved. Ne visfiat ei, qui in possessionem missus erit ('To forbid the use of force
This number comes from Justinian, although modern-day scholars have determined that Justinian was
most likely exaggerating, and that the actual number is more like 1625 books (Jolowicz 1932, 488).
10
These laws were passed well after the earlier legislation de vi either by Julius Caesar or Augustus.
against someone sent to take possession') (943.4) is an edict that outlined the occasions
on which it was illegal to drive away or forcibly prevent someone sent by a praetor or
another figure of power from obtaining possession of property or inheritance. The De vi
et de vi armata ('For force and armed force') (943.16) clause covered illegal acts such as
the forcible seizure of possessions, ejection from property, and the refusal of inheritance
to an heir. A succession of two more vis laws" that were direct descendents of the lex
Plautia de vi, the Ad legem Iuliam de vi publica (' lex Julia for public violence') (948.6)
and Ad legem Iuliam de vi privata (' lex Julia for public violence') (348.7) (which will be
discussed in detail shortly), divided vis into public and private offenses12. The multiple
foci in the law reflect the specification that legislation de vi underwent, as each covered
different aspects of vis. In recognition of the great breadth of scope that the earlier
clauses de vi had, the Digest attempted to eliminate the use of general terms and
concepts. Rather, vis was sectioned and placed intermittently in the Digest according to
more specific qualities.
Of all the leges de vi in the Digest, the Ad legem Iuliam de vi publica appears to
have contained the provisions that can be most relevantly compared to the indictment of
Caelius. It announces the liability of those people who
. . . turbae seditionisve faciendae consilium inierint sewosve aut liberos
homines in armis habuerint . . . qui pubes cum telo in public0 fuerit . . .
qui pessimo exemplo convocatu seditione villas expugnaverint et cum
telis et armis bona rapuerint .. . qui ex incendio rapuerit aliquid praeter
materiam . .. qui puerum vel feminam vel quemquam per vim
stupra~~erit .. . qui in incendio cum glaclio nut telo rapiendi causa fuit
vel prohibendi dominum res suas seware .. . qui hominibus armatis
possessorem domo agrove suo aut navi sua deiecerit expugnaverit .. .
Qui coetu conversu turba seditione incendium fecerit: quique hominem
11
These are followed immediately by the Digest's citation of the lex Cornelia de sicariis et veneficis.
12
Girard clarifies that a distinction "which recurs in modern law, and the credit for which belongs to the
Roman jurists, is that between public law (juspublicum), regulating the organization of public authority,
and the relations between individuals and the State, and private law Ous privatum), regulating the relations
between individuals themselves" (Girard 1906, 10).
dolo malo incluserit obsederit: quive fecerit, quo minus sepeliatur, quo
magis funus diripiatur distrahatur: quive per vim sibi aliquem
obligaverit. . .
('have belonged to a conspiracy to raise a mob or sedition or who have
kept either slaves or freemen under arms . . . [or someone] who have
appeared in public with a weapon . . . [or those] who have forcibly taken
country houses by assembling sedition in the most wicked manner and
have seized goods with weapons and arms.. . [or] who has seized
anything from a fire except wood . . . [or] who has violated a boy or a
woman or any other person through violence.. . [or] who has been
present at a fire with a sword or weapon for the purpose of robbery or
of preventing the owner rescuing his property . . . [or] who with armed
men has expelled or overcome someone who owns a home or his own
farm, or his own ship . . . [or] who in a gathering, assembly, mob, or
sedition has made a fire [arson], and who with malicious intent has shut
a person up or besieged him, or who has done anything for a burial to
be less buried [to inhibit a burial], for a burial to be more pillaged or
broken up, or who has obliged anyone to himself by force')"'".
Basically any person who seeks to harm or who poses a threat to other people and their
possessions was accountable (under penalty of exile) under this law. Each possible
circumstance was carefully scripted. In addition, this law even defined where and when
13,xlvi 14,xlvii
the collection of weapons is illegal , who is a violently dangerous person , and
15,xlviii
what specifically defines a weapon . Thus this law de vi was much more specific
than the one under which Caelius was charged. Although the crimes committed at
Naples and Puteoli could have fit within the element of sedition contained within this
law, there are very few ways in which the capacity of the later law could have been
stretched to include the other offenses of which Caelius was accused.
l 3 "domi suae agrove inve villa praeter usum venationis vel itineris vel navigationis . .. excipiuntur autem
arma, yuae quis promercii causa habuerit hereditateve ei obvenerint" ('when at someone's own home or
farm or in his country house beyond those used for hunting or for a journey or sailing excursion . . .
however, those arms are excepted which someone had because of trade or which have come to him through
inheritance')
l 4 "qui tela habuerunt, sed etiam quid aliud nocere potest . .. qui convocatis hominibus vim fecerit, quo
quis verberetur etpulsetur, neque homo occisus sit" ('who has not only weapons but also anything else
which can be harmful . . . [or] who after having called men together has commited violence, whereby
someone is flogged or beaten, even if nobody is killed')
l5 "omnia, ex quibus singuli homines nocere possunt" ('everything from which separate men can cause
injury'); this weapon is also defined more specifically in the law De vi et de vi armata, which claims that
"arma sunt omnia tela, hoc est et fustes et lapides, non solum gladii hastae frameae" ('weapons are all
objects that includes both spears and stones, not only the spears of gladiators') (Digest XXXXIII.xvi.3)
The other law, Ad legem Iuliam de vi privata, outlawed anyone who "ex
naufmgio dolo malo quid rapuerit" ('has stolen something from a shipwreck with
xlix 'C
malicious intent ) , convocatis hominibus vim fecerit, quo quis verberetur pulsaretur,
neque homo occisus erit" ('after having called men together, has committed violence
, 1 6'
resulting in anyone's being flogged or beaten, [even if] nobody is killed ) , coetum . . . et
concursurn fecisse diciturquo minus quis in ius produceretur" ('is said to have raised a
, li 'C
mob or gathering to prevent someone's being brought to court ) , deiecit ex agro suo
hominibus congregatis sine armis" ('has expelled a man off his own farm with an
unarmed mob')"', or "ex condemnatione in rem ipsius redactum fuerit, inter ens
communicaretur" ('has shared out among themselves what was recovered after his
[opponent's] ~ondemnation' )"~~, as well as anyone who commits creditor fraud"". So,
acts of violence that are, on the whole, related to issues of private property fell under the
competence of this law. It, like the other lex Iulia de vi, is very specific in its definition
of the crimes that it bans. The only charge against Caelius that could have been
applicable to the Ad legem Iuliam de vi privata clause in the Digest would possibly have
been the theft from Palla.
Again, as it was initially shown in Chapter IV, another section of the Digest, the
Ad legem Corneliam de sicariis et ueneficis ('lex Cornelia on murders and poisoners')
(48.8), which refers to Sulla's law, seems to fit almost flawlessly with the charges
against Caelius. It covered anyone
. . . qui hominem occiderit . . . dolo malo . . . quive lzominis occidendi
furtive faciendi causa cum telo ambulaverit . . . qui hominis necandi
causa venenum confecerit dederit . . . qui hominem occiderit . . . qui
hominem non occidit, sed vulneravit . .. qui venenum necandi hominis
causa fecerit vel vendiderit vel hab~er i t ' ~ .. . apiscendae reciyerandae
possessionis causa arma sumpserit . . . qui auctor seditionis fuerit
l6 Cicero quotes this line in his Pro Caelio.
('who has killed a man . . . by malicious intent . . . or who has gone
about with a weapon for the purpose of killing or stealing . . . [or] who
has made up [or who] has given poison for the purpose of killing a man
. . . who has killed a man . . . [or] who has not killed a man but has
wounded him . . . [or] who has made or sold or possessed poison for the
purpose of killing a man . . . [or] who has taken up arms for the purpose
of acquiring [or] recovering possessions . . . [or] who been the author of
sedition')'".
Basically all of these clauses apply to crimes of which Caelius was accused, in a very
specific manner - Caelius was accused of attempting murder and poison, of stealing, of
instigating sedition (at Naples), and of taking up arms (against the ~l exandri ans)' ~. In
addition, this law covered the illegal acceptance of a bribe or presentation of false
evidence such that a criminal defendant was found guilty, the concealment of a
shipwreck, arson, castration, and abortion1". The only overlap that this law appears to
have with the Digest's legislation de vi is the minor part aimed at sedition. The Ad legem
Iuliam de vi publica edict mentions sedition a couple of times, though in more specific
instances than the Ad legem Corneliam de sicaviis et veneficis. Thus if Caelius had faced
charges during Justinian's emperorship, the Digest indicates that he should have been
indicted under a lex de sicaviis et veneficis. Because the contents of the Digest are
derived from earlier legal codes (and especially because its clauses on vis and sicavii et
venefici come directly from Late Republican law codes), a comparison of the Digest's
material on vis and of $48.8 shows that Caelius' indictment for vis was not the most
appropriate - an indictment de sicaviis et veneficis was, as suggested earlier18.
17
However' this law does not seem to apply to the minor charge of theft from Palla.
l8 see Chapter IV
The neat, separate divisions of legal categories recorded in the Digest, which
enable this analysis of Caelius' indictment, were sought c o n s c i ~u s l ~' ~. Kunkel notes
that,
. . .in the composition of the Digest many individual questions had been
met with which had been disputed among the classical jurists, and also
legal provisions and points of view which were felt to be obsolete or
unjust. Many of these offending elements were got out of the way by
the compilers by simple exclusions, additions, or other changes'"".
These abridgements, substitutions and alterations, which have been under scrutiny for
almost a century, are known as interpolations" (which is a misleading word, Nicholas
points out, because it should refer to more than just the addition of new material)'""'.
However, Buckland warns that this clarity is somewhat deceptive and artificial when the
Digest is approached as the authority on ancient law:
for the yr pose, however9 of arriving at the classical law, it must be
used with caution. The compilers were to alter the original tests so as
to make them state current law. It follows that, in determining from a
text of Julian in the Digest, what was the law of his time, we have
several difficulties to contend with. The literature was already old and
no doubt many corruptions and glosses had crept into it.. . . The
intentional alterations ["interpolations"] of the text are a more serious
matter. Much legal history has been concealed by the compilers and is
to be found, if at all, by reading between the lines of the ~igest]' ".
Thus, when considering Caelius' "inappropriate" or "nonsensical" indictment, it is
understandable that what seems like such a clear-cut issue to us by looking at the Digest
was probably more ambiguous in the mid first century B.C.
Since it has been studied and digested for thousands of years, one would think
that Late Republican legislation, especially that concerning so basic a human sin as
l 9 ow ever, despite the clarity in the laws related to vis and sicarius, the Digest was not free of error
entirely. The Digest was meant to be, as stated in a provision of the 530 A.D. constitution, a clear and
concise collection (Jolowicz 1932, 487). However, Justinian himself admits that not all repetitions were
avoided: Justinian states, "si quid autem in tanta legem compositione, quae ab immense librorum numero
collecta est, simile forsitan raro, inveniatur, nemo hoc uituperandum existimet" ("if, however, in so great a
collection of laws, which was collected from an immense number of books, perhaps a few repetitions
should be discovered, let no one think that it should be censured") (Digest De Confirmatione Digestorum
1 ~ . 13.24-26).
20 formerly known as "Tribonianism" (Jolowicz 1932,492); see Jolowicz pp. 492-498 for further reading
violence, would be overly analyzed and supremely understood by now. However, this is
not the case; its extremely dynamic and complex nature has enabled it to remain
persistently elusive to this day. Examining the Pro Caelio provides only a jumping off
point for considering this substantial legal organism that still awaits better
characterization.
Kunkel 1966, 153
" Kunkel 1966, 158; Kolbert 1979, 37
"' Nicholas 1962,42, Jolowicz 1932,485
'" Buckland 1975,41
"Nicholas 1962,40; Kolbert 1979, 39
"' Kunkel 1966,158
vii
Digest De Conceptione Digestorurn, xlvii.5.17
""' Kunkel 1966, 153
'" Jolowicz 1932, 484
" Digest De Conceptione Digestorurn, xlvi. 1.12-14
xi
Digest De Conceptione Digestorurn, xlvii.3.28-29
"" Kunkel 1966,153
""' Uunke! 1966, 155
"'" Nicholas 1962, 40
"" Nicholas 1962,43
XVI
Digest De Conceptione Digestorum, xlvii.4.6
xvii
Digest De Conceptione Digestorurn, xlvi. 1.14-18
"""' Kunkel 1966, 155
Metzger 1998,218
Xx Kunkel 1966, 155
""' Jolowicz 1932,487
Kunkel 1966, 155
"""' Nicholas 1962, 40
""'" Jolowicz 1932,484
""" Digest De Confirrnatione Digestorurn, lv.20-22
XXVi Digest De Confirrnatione Digestorum, lviii.9.17
xxvii
Digest De Confirrnatione Digestorum, lxi. 17.26
Xxviii Kunkel 1966, 153; Kolbert 1979, 37-38
Kunkel 1966, 153
""" Nicholas 1962, 40
Kunkel 1966, 154
xxXii Kunkel 1966, 154
xxxiii Jolowicz 1932, 486
xxxiv Kunkel 1966, 155-156
'""" Mommsen et al. 1985, xii
xXxvi Digest De Conceptione Digestorurn, xlvii.3.23
xxxvii Nicholas 1962, 43
Xxxviii Buckland 1975, 41
Xxxix Jolowicz 1932, 489
"' Kunkel 1966, 155
Jolowicz 1932,488
'Iii Nicholas 1962,40
'Iiii Robinson 1995, 8, 12
-- --
"Iiv Riggsby 1999,79
"Iv Digest XLVIII.vi.3,5
"Ivi Digest XLVIII.vi. 1-2
"Ivii Digest XLVIII.vi.9-10
"'""' Digest XLVIII.vi. 1 1
"Iix Digest XLVIII.vii. 1
I
Digest XLVIII.vii.2
Ii Digest XLVIII.vii.4
Iii Digest XLVIII.vii.5
Iiii Digest XLVIII.vii.6
liV Digest XLVIII.vii.7
I" Digest XLVIII.viii. 1, 3
I"' Digest XLVIII.viii.1, 3, and 8
Ivii Kunkel 1966, 156
Iviii Nicholas 1962, 40
"" Buckland 1975,42-43
Appendix A. Trials of Murder and Violence from 149 to 50 B.c.'
Advocate
(Patronus)
C. Laelius
Sapiens and later
Ser. Sulpicius
Galba
Judge
(Quaesitor)
P. Cornelius
Scipio Nasica
Serapio
P. Popillius
Laenas and P.
Rupilius
Trial
murders of noti
hornines in forest of
Sila
Defendant
(Petitor)
Slaves and
free workers
of Publicani
Prosecutor
(Accusator)
Verdict
Acquittal
parricidium (murder of
132 1 father of associatiou
with Ti. Gracchus)
Conviction
C. Villius
P. Cornelius
Scipio
Nasica
Serapio
Q. Fabius
Maximus
Eburnus
senatorial quaestio
l32 murder of Ti.
Gracchus)
M. Fulvius
Flaccus
incomplete
Cn. Pompeius
Strabo
104 1
iudiciumpopuli (abuse
of power)
Conviction
101
parricidium (murder of
mother)
Publicius
Malleolus
Conviction
none
lex Cornelia de sicariis
M. Aurius)
A. Aurius
Melinus
Cicero M. Fannins
lex Cornelia de sicariis
et veneficis (murder of
early
his father, Sex.
1 "RosCins:
C. Erucius and
T. Roscius
Ma-gnus
Sex. Roscius
Acquittal
C. Ancharius
Rufus and C.
Erucius?
lex Cornelia de sicariis
early
70s
et veneficis (murders)
Conviction
L. Varenus Cicero
Q. Manlius 77? 1 murder of Asuvius
case
dropped
Avillius
Statius
Albius
Oppicanicus
7 murder of Asuvius Q. Manlius Acquittal
Conviction
lex Cornelia de sicariis
74 et venef'icis (attempt to
poison Cluentius)
lex Cornerlia de
sicariis et veneficis
74
(attempt to poison
Cluentius)
lex Cornelia de sicariis
74 et vrnej?cis (poison
attempts)
P. Cannutius and
A. Cluentius
Habitus
P. Cannutius and
A. Cluentius
Habitus
Scamander Cicero C. Iunnius
C. Fabricius
of Alatrium
C. and L.
Caepasius
Conviclion
Conviction
C. Iunnius
P. Cannutius and
A. Cluentius
Habitus
Statius Albius
Oppianicus and
T. Attius
L. Quinctius
lex Corrzelia de sicariis
et venqficis (murder
A. Cluentius
Habitus
Cicero Acquittal
lex Cornelia de sicariis
et venqficis (murder of L. Bellienus C. Iulius Caesar
C. Iulius Caesar
Conviction
64 I
lex Cornelia de sicariis
et veneficis (murders)
Conviction L. Luscius
Defendant
(Petitor)
Prosecutor Advocate
(Accusator) (Patronus)
Trial
fGdge uaesitor) 1 Date Charge ( Verdict
I
L. Lucceius
lex Cornelia de sicariis
Acquittal
et ven<ficis (murder)
L. Sergius
Catilina
L. Sergius
Catilina
C. Iulius Caesar
I 64
incomplete
L. Aernilius
Lepidus Paullus
lex Plautia de vl
lex Plautia de vi
(participation in Conviction
Catilinarian conspiracy)
lex Plautia de vi Conviction
followers of
Catiline
Novius Niger
---I-
C. Cornelius
I
lex Plautia de vi
P. Autronius
Paetus
(Catilinarian
Conviction
conspiracy, attempted
murder)
Catilinarian conspiracy)
M. Porcius
Laeca
L.
Vargunteius
lex Plautia de vi
lex Plautia de vz
(Catilinarian Acquittal
conspi ~xi es j I
P. Cornelius
Sulla
Cornelius and L.
Manlius
Torquatus
Q. Hortensius
Hortalus and
Cicero
late 60s
to early lex Plautia de vi Conviction
C.
Caesernius
M.
Camurtius
late 60s
to early lex Plautia de vi Conviction
lex Plautia de vi
(participation in a plot none
against Pompey)
M. Crassus
I j9
L. Vettius P. Vatinius
T. Annius Milo
early
5 7
lex Plautia de vi
1 none
(violence against Milo)
P. Clodius
Pulcher
P. Clodius
Pulcher
T. Annius Milo I late 57
lex Plautia de vi
(violence) dropped
early
5 6
lex Plautia de vi
(muder of Alexandrian Acquittal
ambassador)
C. Licinius
Macer Calvus
P. Asicius Cicero
P. Albinovanus,
Cicero, and T.
Claudius
Hortalus,
Crassus, Calvus,
and Cicero
Himself, M.
Crassus, and
Cicero
M. ~emi l i us 1 ll early
Scaurus
Cn. Dornitius
lex Plautia de vi
(political violence in Acquittal
57)
P. Sestius
-
lex Lutatia/Plautia de
Acquittal
vi
L. Atratinus, P.
Clodius, and L.
Balbus
M. Caelius
Procilius
P. Clodius
Pulcher
Q. Hortensius
Hortalus
lex Cornelia de sirariis
et veneficis (muder of Conviction
paterfamilias)
Defendant
(Petitor)
T. Annius
Milo
T. Annius
Milo
Prosecutor Advocate
(Patronus)
M. Claudius
Marcellus and
Cicero
Judge
(Quaesitor)
Trial
Date Charge Verdict
(Accusator)
M. Antonius,
Ap. Claudius
Pulcher, and P.
Valerius Nepos
April lex Pompeia de vi
Conviction
4-7, 52 (murder of Clodius)
L. Domitius
Ahenobarbus
verdict I I
reached I I
L. Cornificius
and Q. Patulcius
lex Plautia de vi
Conviction
11 or
L. Fabius
12, 52
on or
lex Pompeia de vi
after
(participation in murder Acquittal
April
12, 52
of P. Clodius Pulcher)
on or
lex Plautia de vi
after
(participation in murder Acquittal
of Clodius)
18, 52
after lex Pompeia de vi
April (movement of Clodius' Conviction
22, 52 body into curia)
L. Cassius
Longinus, L.
Fulcinius, and C.
Valerius
Cn. Aponius, C.
Fidius, and M.
Seius
M. Alfidius and
C. Caesennius
Philo
Caelius and
Cicero
M. Saufeius
M. Terentius
Varro Gibba and
Cicero
Cinsidius
(Longus or
Nonianus)
M. Saufeius
-
T. Flacconius Sex. Cloelius
P. Cornelius
Dolabella
527
1
1exPompeia de vi? Acquittal Cicero
T. Munatius
Plancus
Bursa
-
Q. Pompeius
Rufus
Dec. lex Pompeia de vi
52-Jan. (burning of senate Conviction
5 1 house)
Cicero
lex Pompeia de vi
(burning of senate Conviction
house)
I
Caelius
C.
Sempronius
Rufus
M. Tuccius
51 1
lex Plautia de vi or lex
Conviction
Cornelia de iniuriis
M. Tuccius
Caelius?
C. Sempronius
Rufus
5 1 1 l a ~ l a u t i a de vi Acquittal
Ap. Claudius
Pulcher
friends of C.
Scribonius
Curio
lex Pompeia de vi
I
I
lex Pompeia Y de vi
Alexander 1990,3-182; Gsuen 1968,304-310; Lintott 1968,209-220
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