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CICERO’S TREATISE ON LAWS: BOOK III. - Marcus Tullius Cicero, Treatise on the Laws [51 BC]
The Political Works of Marcus Tullius Cicero: Comprising his Treatise on the Commonwealth; and his Treatise on the Laws. Translated from the original, with Dissertations and Notes in Two Volumes. By Francis Barham, Esq. (London: Edmund Spettigue, 1841-42). Vol. 2.
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CICERO’S TREATISE ON LAWS
—I shall, therefore, emulate that divine man who has inspired me with such admiration, that I eulogize him perhaps oftener than is necessary.
—You mean Plato.
—The very man, my Atticus.
—Indeed you do not exaggerate your compliments, nor bestow them too frequently, for even my Epicurean friends, who lavish all their praises on Epicurus, still allow me to love Plato as much as I like.
—They do well to grant you this indulgence, for what can be so suitable to the elegance of your taste as the writings of Plato?—who in his life and manners effected that most difficult combination of gravity and politeness.
—I am glad I interrupted you, since you have availed yourself of an opportunity of giving this splendid testimonial of your esteem; but let us pursue our subject.
—Let us begin, then, with praising our civil laws, with all the commendations they truly and appropriately deserve.
—It is but fair, since you paid the same preliminary compliment to our ecclesiastical jurisprudence.
—You are aware, then, that the proper characteristic and duty of magistrates, is to superintend and prescribe all the just and useful regulations of the law. For as the law is set over the magistrate, even so are the magistrates set over the people. And, therefore, it may be said “that the magistrate is a speaking law, and the law a silent magistrate.”
Now it is self–evident, that nothing can be more conformable to justice and natural conscience, which to me appear perfectly congenial, than that legal authority, without which, neither house, nor commonwealth, nor nation, nor mankind itself, nor the entire nature of things in this immeasurable universe, could consist. For this universe is obedient to God, and land and sea are submissive to the universe; and human life depends on the just administration of the laws of order.
But to come to considerations nearer home, and more familiar to us, all ancient nations have been under the dominion of kings (omnes antiquæ gentes regibus quondam paruerunt). Which kind of authority was at first conferred on the wisest and justest men. And this rule mainly prevailed in our own Commonwealth, as long as the regal power lasted. Afterward, the authority of kings was handed down to their descendants, which remains to this day, in those that reign over nations. And even among those to whom the regal domination was distasteful, though they desired to disclaim their submission to the laws of a monarch, they by no means sought to be emancipated from all laws.
For ourselves, then, as we propose laws for a free people, such as we approved in that best kind of Commonwealth, concerning which we wrote our Six Books, we shall now endeavour to accommodate our laws to that constitutional government we there set forth and illustrated.
It is clear, then, that magistrates are absolutely necessary to a state, since, without their prudence and diligence, there would be nothing but confusion and anarchy. Their lawful authority is therefore to be determined in the legislation of every Commonwealth. But it is not enough to prescribe them a rule of domination, unless we likewise prescribe the citizens a rule of obedience. For in order to command well, we should know how to submit; and he who submits with a good grace will some time become worthy of commanding. It is desirable therefore, that he who obeys may hope that some day he will be capacitated for command, and that he who commands should bear in mind that ere long he may be called to the duty of submission.
We would not, however, limit ourselves to requiring from the citizens submission and obedience towards their magistrates; we would also enjoin them by all means to honour and love their rulers, as Charondas prescribes in his code. Our Plato likewise declares that they are of the race of the apostate Titans, exiled from heaven for their seditions, who oppose their legitimate magistrates. These points being granted, we will, with your permission, advance to the examination of the magisterial laws.
—There cannot be a better arrangement of your topics.
—I will, therefore, cite a few of the legal maxims that bear on this branch of laws. “Let all authorities be just, and let them be honestly obeyed by the people without hesitation. Let the magistrate restrain disobedience and sedition in citizens, by fine, imprisonment, and corporal chastisement. If there be an equal or greater power, and the people think the adjudication unjust, let them lawfully appeal thereto. If the magistrate shall have decided, and past sentence illegally, let there be a public appeal in a higher Court respecting the penalty and fine imposed.
With respect to the army, and the generals that command it by martial law, there should be no appeal from their authority. For the will of the general should have the force of absolute law, at least in time of war.
As to the minor magistrates, let there be such a distribution of their legal duties, that each may more effectively superintend his own department of justice. In the army let some, as military tribunes, command those that are subject to them. In the city, let others be appointed as superintendents of the public treasury. Let some devote their attention to the prison discipline, and capital punishments. Let others supervise the public mintage of gold, and silver, and copper. Let others judge of suits and arbitrations; and let others carry the orders of the senate into execution.
Let there likewise be Ædiles, curators of the city, the provisions, and the public games, and let these offices be the first steps to higher promotions of honour.
Let the censors take a census of the people, according to age, race, family, and property. Let them have the inspection of the temples, the streets, the aqueducts, the rates, and the customs. Let them distribute the citizens, according to their tribes, fortunes, ages, and ranks. Let them keep a register of the equestrian and plebeian orders. Let them impose a tax on celibates. Let them guard the morals of the people. Let them permit no scandal in the senate. Let the number of such censors be two. Let their magistracy continue five years. Let the other magistrates be annual, but their offices themselves should be perpetual.
Let the prætor be judge of the law in private actions, with power of passing sentence—he is the proper guardian of civil jurisprudence. Let him have as many colleagues, of equal power, as the senate think necessary, and the commons allow him.
Let two magistrates be invested with sovereign authority, and be entitled prætors, judges, or consuls, in respect of presiding, judging, or counselling, according to the nature of the case. Let them have absolute authority over the army, for the safety of the people is the supreme law. This magistracy should not be determined in less than ten years—regulating the duration by the annual law.
When a considerable war is undertaken, and discord is likely to ensue among the citizens, let a single supreme magistrate be appointed, who shall unite in his own person the authority of both consuls, if the senate so decrees, for six months only. When such a magistrate has been proclaimed under favourable auspices, let him be as a prince of the people. Let him have for a colleague, a prætorial patrician, as a judge of the law. But when such dictators are created over the consuls, let not the other magistracies be suppressed or vacated.
Let the auspices be observed by the senate, and let those they authorize to elect the consuls in the comitia, proceed according to the established ceremonials.
Let the governors, generals, and lieutenants, leave the city whenever the senate or the people decree their retirement. Let all wars be just, and justly prosecuted. Let allies be spared, and our armies restrained from all unnecessary violence, that the glory of our country may be augmented. Then shall our soldiers return home with honour. Let ambassadors also direct their efforts to the service of the state, rather than their selfish interests.
Let ten tribunes be elected as magistrates of the people, to protect them against oppression; let their prohibitions and their adjudications be established, and their persons considered inviolable, so that tribunes may never be wanting to the people.
Let all magistrates possess their auspices and jurisdictions, and let the senate be composed of these legitimate authorities. Let its ordinances be absolute, and let its enactments be written and enrolled, unless an equal or greater authority disannul them. Let the order of the senators be free from reproach and scandal, and let them be an example of virtue to all.
In the creation of magistrates, the judgment of the accused, and the reception or rejection of laws, when suffrages are employed, let the suffrages be at once notorious to the nobles, and free to the people (optimatibus nota plebi libera sunto).
If any question occur out of the established jurisdiction of the magistrates, let another magistrate be appointed by the people, whose jurisdiction shall expressly extend thereto. Let the consul, the prætor, the censor, and he to whom the senate has committed the election of consuls, have full liberty to treat both with the senate and the people, and endeavour to reconcile the interests of all parties. Let the tribunes of the people likewise have free access to the senate, and advocate the interests of the people in all their deliberations. Let a just moderation predominate in the opinions and declarations of those who would thus act as mediators between the senate and the people. Let a senator who does not attend the senate, either shew cause of his non–attendance, or submit to an appropriate fine. Let a senator speak in his turn, with all moderation, and let him be thoroughly acquainted with the interests of the people (senatori qui nec aderit aut causa aut culpa esto—loco senator et modo orato, causas populi teneto.)
By all means avoid violence in politics. Let the greatest authority have the greatest weight in decisions. If any one shall disturb the public harmony, and foment party quarrels, let him be punished as a criminal. To act the intercessor in cases of offence, is the part of a good citizen. Let those who would prosper in their treaties and engagements, duly observe the offices of religion. Let all proclamations be exhibited in the treasury, and published as extensively as possible. Let the public consultations be concentrated in one point at a time, let the people be instructed in the nature of the question, and let all the magistrates and the people be permitted to advise on the subject.
Permit no monopolies, or unfair privileges of one class, at the expense of others. With respect to the capital punishment of any citizen, let it not take place, unless by the adjudication of the high courts of justice, and the ministry of those whom the censors have placed over the popular orders. Let no bribes be given or received, either in soliciting, discharging, or resigning an official situation (donum ne capiunto, neve danto, neve petenda, neve gerenda, neve gesta potestate).
If any one shall infringe any of these laws, let him bear the penalty. Let these regulations be committed to the charge of the censors. Let public officers, on their retiring from their posts, give these censors an account of their conduct, but let them not by this means escape from legal prosecution if they have been guilty of corruption.
My code of laws is finished; now, gentlemen, you may retire, and give your votes as you please.
—With what conciseness, my brother, have you delineated the duties and offices of magistrates! But I find the system of laws you would propose for your beau–ideal Commonwealth, very similar to those which prevail in our Roman constitution.
—Your observation is very just, my Quintus. It is the very system which Scipio eulogizes in our treatise on the Commonwealth, and which he mainly approves—and it is only by a successive order of magistrates, such as we have described, that the true discipline of the state can be maintained. For you may take for granted that it is the establishment of magistrates, that gives its form to a Commonwealth, and it is exactly by their distribution and subordination, that we must determine the nature of the constitution. Which establishment being very wisely and discreetly settled by our ancestors, I have little or nothing to do with innovation in the laws I propose.
—Will you be so obliging as to favour us, as you did at my request respecting the ecclesiastical laws, so also now in regard to these magisterial and civil laws,—with the reasons why you prefer the maxims you have stated.
—I will do as you desire, my Atticus, and I will explain how far the subject has been illustrated by the disputations of the Greek philosophers, and then prosecute our investigations in jurisprudence.
—I am impatient to hear your dissertation.
—I have already stated a large part of the doctrines relating to this enquiry, in the books which I composed respecting the best state of the Commonwealth. In this place, however, we may cite a few of the Greek politicians on the duties and offices of magistrates, which have been treated with considerable subtlety, first by Theophrastus, and next by Diogenes, the Stoic.
—A Stoic, say you; were such questions ever discussed by the Stoics?
—Certainly not, with the exception of the philosopher I have just cited, and after him Panætius, whom I take to have been a great man and singularly erudite. Indeed, the ancient Stoics were not so deficient in their speculative dissertations respecting politics and laws, as they were in the practical application of them to the service of the people. From the Platonic school, however, the greatest light was cast over politics and laws. Afterwards, Aristotle illustrated all matters of civil jurisprudence in his elaborate essays, as did also Heraclides of Pontus, another of Plato’s disciples. As for Theophrastus, who was instructed by Aristotle, he abounded, as you are aware, in disquisitions of this kind; and Dicæarchus, a disciple of the same master, was by no means deficient in jurisprudential science. After these, Demetrius Phalereus, before mentioned, drew legal learning by his admirable talents from the shades and sequestrations of the schools, into the open daylight of civil life, and gave it a practical point and efficacy, which are of the greatest service in all critical emergencies and conflicts. This combination of legal theory and practice is the more valuable, since we often find that men distinguished in politics are deficient in philosophy, and those celebrated for philosophy are remarkably ignorant in legal affairs. I hardly know where we could find another man of genius, who excels in the theory and practice of jurisprudence, so as to be at once a prince of learning and of political economy. (Qui vero utraque re excelleret, ut et doctrinæ studiis et regenda civitate princeps esset quis facile nunc inveniri protest?
—I think I could show you such a man, if I were to point to one of us three; but pray continue your discourse.
—These Greek philosophers make it a grand point of enquiry whether a monarch should be appointed in each commonwealth, that is, one chief magistrate, to whom all the rest should be subordinate. This monarchical system, I understand, was very agreeable to our ancestors, even after the expulsion of the Tarquins. But since the monarchy which was at first preferred was changed, not so much through any fault in the monarchy, as through the vices of a monarch, it should seem, that the monarchy itself should still subsist, if one magistrate commanded all the rest, and nothing but the name of king would be lost.
It was not without reason, therefore, that Theopompus in Lacedæmon, qualified the power of the Spartan kings by the Ephori, or that we Romans qualify the power of our consuls by tribunes. For our consuls are invested with such authority by law, that they command all the other magistrates, except the tribunes, who were created some time after, in order to hinder the abuse of tyranny from being again revived. For the first diminution of the power of the consuls, was the creation of a magistrate who did not hold under them. The next was, when this new magistrate gave his aid not only to other magistrates, but even to private citizens, against any unconstitutional edicts of the consuls.
—Ah, my brother, you speak of a great evil; for since the office of the tribunes of the people was established, the authority of the nobles has declined, and the rule of the mob gained strength.
—The case is not quite so bad as you think, my Quintus. For that consular power when unlimited, would not only appear despotic, but even violent to the people, whereas now by a wise and moderate limitation, it diffuses law and justice to all the citizens.
Let us now come to the exposition of our legal maxims, before stated; and to pass over that earlier portion whose propriety is almost self–evident, let us notice that maxim which declares, that soldiers should endeavour to return home with unblemished honour. For to good and innocent men, no prize so valuable as stainless reputation can be derived either from our enemies or our friends.
That maxim is also plainly just, that nothing can be baser than for a man to sue for an appointment as embassador, for any other interest than that of his country. I speak not merely of the conduct of those who would figure as ambassadors and legates and charges d’affairs, in order to sequester estates and inheritances in the provinces; for there exist men by no means unfamiliar with this kind of corruption; but I ask, if any thing can be more scandalous than to see senatorial commissioners without commissions, deputies without instructions, or any public business of a patriotic kind? This sort of legation I should have abolished when consul, with the approbation of a full senate, though apparently against the interest of many nobles, had not a certain blundering tribune of the people opposed me. I succeeded, however, in shortening the term of this official abomination, which was before unlimited, and made such appointments merely annual, and thus this scandal still remains, though it has lost its perpetuity.
But now, with your permission, we will wish the provinces good–bye, and once more return to Rome.
—With all my heart, though such a proposition would appear remarkably disagreeable to many gentlemen in the provinces, I could name if I would.
—But if these nameless gentlemen, my Atticus, were content to obey the just laws of their country, they would like nothing better than Rome and their Roman villas; and would hold nothing more laborious and troublesome than their provincial appointments.
The subsequent legal maxim confirms to the tribunes of the people, the power they possess in our commonwealth, on which I need not enlarge.
—I beg your pardon, my brother, but I particularly wish to know your opinion of this power of the tribunes. To me it appears extremely mischievous, at once the child and the parent of endless seditions. If we look back to the origin of the tribunate, we find that it originally sprung from a hubbub of civil disturbances, and that in process of time, a mutinous populace gave it the ascendancy over all magisterial authorities of Rome. After this, being stifled, as one of those monstrous abortions which, by a law of the Twelve Tables, are not suffered to live, it again recovered its existence in a very inexplicable manner, only to become baser and viler than ever. It then committed every kind of atrocity. Its first act was a piece of villainy well worthy of its impious violence, namely, the abrogation of the honours of the senate and patricians. By an infernal system of levelling, it reduced the highest dignities to an equality with the meanest degradations, agitating and confounding all things. When it had thus insulted and violated the gravity of our nobles, it was still as insane and insensate as before. Not to mention a Flaminius and others, which you may call antiquated instances, what laws or rights did the tribune Tiberius Gracchus leave to the best and worthiest citizens? And, five years before, did not the tribune Curatius, the basest and foulest of mortals, cast into prison with unheard–of insolence and barbarity, the consuls Brutus and Scipio, patriots of the most effulgent renown? And did not C. Gracchus, another tribune of the people, endeavour to overturn and revolutionize our Commonwealth, by throwing darts and daggers into the forum, in order to excite the citizens to mutual slaughter, as if they were so many gladiators. What shall I say of the crimes of Saturninus and others, whose violences the Commonwealth could scarcely repel without civil war? But why should we mention these antique and unfamiliar instances of evil tribunes, when so many occur within our own memory! Who was ever so audacious and so inimical to us, that he ever thought of destroying our state, except through the agency of the tribunes? For when infamous and profligate men found no other means of compassing their evil projects at home or abroad, they endeavoured to rouse the people by the secret instruments of sedition.
Therefore what does us infinite honour, and secures us immortal renown, is the fact, that none of the tribunes could be engaged to appear against us at any bribe, except Clodius, who used the tribunate as a cloak of villainy. As for this monster, what crimes did he not perpetrate—crimes which, without reason or plausible hope, he committed with the fury of some savage beast, maddened with the violence of the brutal mob. I therefore highly approve of the conduct of Scylla in this particular, inasmuch as by his law he rendered the tribunes of the people comparatively impotent for mischief, though he left them the power of doing as much good as they please. As for our friend Pompey, though in most respects I yield him the warmest commendation, I say nothing of his views relating to the power of the tribunes; for here I cannot praise him, and yet I would not censure him.
—You have very clearly unfolded, my Quintus, the defects and abuses of the tribunate; but it is rather unfair thus to state all its faults and omit its merits, and thus to make an enumeration of grievances, a catalogue of blemishes, without any allusion to the redeeming qualities. In this way, you might show up the consulate itself as a very culpable and objectionable institution, if you choose to reckon up all the sins of all the consuls, which I am willing to pass in silence. Even in this power, I confess there are many stains of abuse; but we can never obtain the good we derive from it without some particles of evil. That the authority of the tribunes of the people is too great, none will deny; but the power of the people themselves is much harsher and crueller. It is by having a leader therefore, such as a tribune, that the people behave more temperately than if they had no leader at all. For a leader remembers that he is advancing at his own risk, whereas the violence of the people has no consciousness of its own danger. Sometimes it is suddenly excited, and sometimes suddenly depressed. But what assembly of tribunes is so insane that not one in ten of its members preserves his senses? As to T. Gracchus, you ask, was it not through him that his colleague was dismissed and destroyed? Yes:—but was not this owing to his excessive ambition. What was his reason for this violence, if it were not to get rid of his colleague’s power of opposition? In this matter, however, you observe the wisdom of our ancestors. When this office of tribuneship was granted by the senate to the people, wars ceased, seditions were extinguished, and that wholesome liberty was secured, by which meritorious commoners may expect through their labours to rise into the patrician rank, which is one great principle of political welfare. But there were two Gracchi. Yes, and as many more as you will—for though ten tribunes were created, you will find none within our memory very mischievous, though you may discover many who were capricious and immoral. And you will allow me that this high rank is above envy, and that the people no longer enter into perilous contentions concerning their rights.
Therefore we must acknowledge either that the expulsion of our kings was unnecessary, or that liberty of the people must be guaranteed in fact as well as in profession—and as it is, their liberty is such that they have been obliged to sue the protection of many great patriots, for fear of being oppressed by the senate.
In regard to our private cause, my best and dearest brother, though it fell under the tribunitial power, we had no contention with the tribuneship. For it was not the indignant people that wished to injure us, but a pack of miscreants, whom they let out of prison on purpose to attack us, and reprobate slaves, who live on plunder. Besides this, the alarm which the approach of the troops occasioned, aggravated our disaster. And to confess the truth, we had less to struggle against our private enemies, than with the greivous disorders of the state; and if I had not yielded in some measure to the tempest, my country would not now enjoy the perpetual benefit of my services. And this the event testified,—for what freeman is there, or what bondman worthy of emancipation, to whom our escape is not a subject of congratulation?
If I was so unfortunate, that my efforts on behalf of the Commonwealth did not give universal satisfaction—if the rage of an infuriated mob drove me away by the hurricane of their evil passions; if the tribune Clodius stirred up the populace against me—as Gracchus against Lenas and Saturninus against Metellus,—we bore it, my Quintus, with fortitude, and the consolation of an honest heart. Nor were we less comforted by the counsel of the philosophers of Athens, whose reflections so much alleviate misfortune, than by the example of the illustrious men, who, expelled from their country, were more prompt to desert an ungrateful city, than to remain in a corrupt one.
As to the exception, which you just now made in your panegyric on Pompey, with regard to his treatment of ourselves, you scarcely seem to me sufficiently to recollect, that this great man did what he honestly believed was best in the circumstances of the case, and what he felt necessary at that particular crisis of politics. He knew that a certain share of civic authority must needs be granted to the citizens, which, as the people so ardently desired before they attained it, they would be especially loath to relinquish, when once acquired. It was therefore the part of a wise statesman not to refuse a privilege to the people, which was essentially patriotic, and so highly popular that its denial had been dangerous. If these remarks, my Quintus, shall have modified your opinion, tell me so—for you know, my brother, that in discourses of this kind, an acknowledgement of assent is the very main–spring of the dialogue. (Scis solere frater in hujus modi sermone, ut transiliri alio possit, admodum dici).
—I am sorry I can’t agree with you respecting Pompey; but this is no reason why you should not go on with our legal maxims.
—Then you still persist in your former opinion?
—Well, then, my Quintus, we must here agree to differ. But let us, by all means, hear more of your brother’s expositions of the maxims of law.
—The following maxim allots to all magistrates their auspices and jurisdictions. Their jurisdictions, I say, in such a manner that there should still be a supreme court of justice, to which appeals may be made by the people. And the auspices, because they furnish a plausible method of adjourning useless or mischievous assemblies. For in this way it has often happened that the gods have suppressed by means of auspices the unjust impetuosity of the mob.
Another legal maxim is this,—Let the senate be composed of those who have exercised magistracies. This provision is evidently popular, since it permits none to arrive at high authority without the approbation of the people, leaving the ipse dixit of the censors of little effect. But lest this should seem to favour democratic ascendancy, another provision immediately follows, by which the authority of the senate is confirmed.
It is thus expressed: Let the decrees of the senate have the force of laws. For if it so happen that the senate becomes master of public politics, and all men defend its decrees; and if the inferior orders agree that the Commonwealth shall be governed by this superior order, there will arise from this amalgamation of rights, namely, the authority of the senate and the power of the people, the modified and harmonic kind of constitution which I have so highly extolled.
This will be especially the case, if the following legal maxim be observed: “Let the senatorial order be free from corruption, and let it be a pattern to others.”
—This is an admirable maxim, my brother. It is of the utmost importance that this order be free from corruption; but a censor would have enough to do to enforce such a regulation.
—He would indeed, and although the senatorial order is devoted to your interests, my Marcus, and retains a most grateful memorial of your consulship, I would, with your permission, suggest, that not only all censors, but all judges might well grow weary of so painful a task.
—I am sadly afraid of it, my Atticus; but let us leave this question for the present, for our business is not so much with the senate of today, or our contemporary statesmen, as with future politicians, if any of them shall be complaisant enough to attend to our legal maxims. If such a law were carried, that the senator should be exempt from all corruption, the vicious candidate would not dare to present himself in parliamentary elections. An event, indeed most devoutly to be wished, but most difficultly to be realized, unless perhaps by a certain education and discipline, on which we might speak more at large, if time and occasion permitted.
—Why, you can’t have a better occasion than the present, since you are now laying down a system of laws. And as to time, the length of this summer holiday will ensure you a hearing. But if you choose to omit this topic now, I shall not forget to demand your views on education and discipline on the first opportunity.
—I cannot refuse, my Atticus, to grant any request that comes from you. I will therefore enlarge a little on this legal maxim before cited, let the senator be a pattern to others. If this is observed, all will go well. For as a whole city is infected by the licentious passions and vices of great men, so it is often reformed by their virtue and moderation. L. Lucullus, a man of the first rank, being rallied for the magnificence of his seat at Tusculum, is said to have made the following extremely suitable answer—that he had two neighbours, the greater of whom was only a Roman knight, and the other, the son of one who had been once a slave; and as each of them had magnificent villas, that could not be thought extravagance in himself, a consul, which was lawful for those of inferior rank. Alas! Lucullus; you little thought that it was you that gave rise to their ambition. Were it not for your example, such an action in them would have been looked on as criminal. Who could bear that people of this sort should have their villas crowded with statues and pictures, relating either to public, or what is more, to sacred and religious subjects? Who would not join in demolishing the monuments of their vanity and pride, if those who ought to exert themselves on such occasions were not guilty of the same extravagance? For the mischief immediately attending the vices of the great, though that must be allowed to be very considerable, is but small compared with the ill consequences which arise from the multitude of those who will certainly follow their example.
Would you but look into the history of former ages, you might plainly see that the manners of the people were always regulated by those of the leading men of a state; and that whatever change took place in the latter, the same always happened in the former. Now this observation is much more certain than that of Plato, who pretends that a change in the songs of musicians is able to alter the manners of a nation—whereas my opinion is, that the manners of mankind change with those of their superiors. Hence, great men of a vicious life are doubly pernicious to the state, as being not only guilty of immoral practices themselves, but likewise of spreading them far and wide among their fellow–citizens. The mischief they do, is owing not only to their being debauched themselves, but also to their debauching a crowd of their foolish imitators. In a word, they do more harm by their example than by the crimes they commit.
This maxim, though we would wish to extend its influence to the whole body of senators, would be of great service, even if it were observed by a few of them. For even a few noblemen, aye, even a very few, illustrious in fame and fortune, may correct the morals or manners of the state, or cast them into grievious corruptions. But we have said enough on this topic, which we discussed at large in our treatise on the Commonwealth. Let us therefore proceed.
The next legal maxim treats of suffrages and votes, which, as I have said, should be notorious to the nobles, and free to the people (nota optimatibus, populo libera).
—I have given much attention to this maxim, but I do not well understand its spirit or its sense.
—I confess, my Atticus, we have now to treat on a very difficult question, and one already much discussed,—that question is, whether, in case of suffrages at the election of magistrates, or in the formation of laws, or in the judgment of criminals, the votes should be given openly by poll, or secretly by ballot.
—Is it indeed a doubtful question? I fear we shall again differ in opinion.
—I do not think so, my Quintus, for here I hold that doctrine, which I know you always maintained, that in giving suffrages and votes, nothing can be better than an open vivâ voce declaration, (nihil ut fuerit in suffragiis voce melius).—But let us examine how far it is attainable.
—With your permission, my brother, I should say that the distinction you take between the propriety and the practicability of any measure, is fraught with mischief to the inexperienced. It is often hurtful to the state, when a regulation is said to be true and proper in itself, but at the same time, that it cannot be obtained, because it cannot be carried without opposing the people. Now, I say, the people are to be opposed whenever they act amiss, and it is better for patriotic lawyers to suffer in a good cause, than yield to a bad one. Now, who does not perceive that all authority is taken away from our nobility and gentry by the present Roman law of balloting. (Quis autem non sensit auctoritatem omnem optimatium tabellariam legem abstulisse). A law which the people, when free, never desired, but which they claimed when oppressed by the domination and power of certain aristocrats. It is no wonder, therefore, that the system of open polling and vivâ voce votes, presents us with more severe judgments against the grandees, than the present plan of ballots. Therefore it had been far better te restrain the excessive influence of the great for unjustifiable objects in elective suffrages, than to give the people a mask and veil, by which they may keep the more honourable citizens in ignorance of their individual sentiments, and thus make the ballot a mere cover for corrupt and hypocritical votes. (Quamobrem suffragandi nimia libido in non bonis causis eripienda fuit potentibus, non latebra dando populo in quâ bonis ignorantibus quid quisque sentiret tabella vitiorum occultaret suffragium.)
For this reason, it is that no good man was ever a proposer or supporter of the system of ballotting. (Itaque isti rationi neque lator quisquam est inventus neque auctor unquam bonus).
There are four laws of ballots: the first, concerning the election of magistrates, was proposed by a certain Gabinius, an unknown and sordid agitator. The second, respecting the adjudications of the people, was proposed two years afterwards by Cassius, who was a nobleman,—but with his family’s permission, I venture to say, a nobleman opposed to all goodness, driven to and fro by the idlest rumours of the populace. The third, regarding the ratification or nullification of laws, was carried by Carbo, a seditious and profligate citizen, whose return to the better classes of society never secured him the approbation of the aristocracy.
There remained only the crime of treason, which Cassius himself excepted, in the judgment of which, open vivâ voce votes were permitted. But Cælius soon after thought proper to give traitors also the chance of the ballot, and manifested as long as he lived, that, provided he could oppress Popilius, he cared little or nothing for the injury of the state.
Our grandfather, a man of singular virtue in this town Arpinum, as long as he lived opposed Gratidius, whose sister, our grandmother, he had married. And, therefore, when Gratidius wanted to introduce the law of ballot here, he roused as many waves in our family circle as his son Marius afterwards stirred up in the Ægean sea. To such a length did the quarrel proceed, that the consul Scaurus, informed of what past, made this remark to our grandfather: “Would to heaven, Cicero, that a man of your courage and honour, had better loved to live in the capital of our Commonwealth, than to retire into a country villa.”
Therefore, since our design is not so much to state the Roman laws now in force, but in order to form a more perfect code of jurisprudence, both to revive those good laws that have become obsolete, and to propose new regulations, suitable to the present conditions of society, I think we are by no means bound to limit ourselves by the caprice of the populace, who cry out for ballot. I conceive you are entitled to take higher ground; for in your treatise on the Commonwealth, your Scipio does not hesitate to condemn the law of Cassius as injudicious, whoever was its author. If you take away the law of ballot, you will do still better. For in truth I don’t like it at all, nor does our friend Atticus much admire it, if I may judge by his countenance.
—For me, I never admired any thing that pleases the mob, and I regard the best state of the Commonwealth, to be that which your brother, when consul, promoted, wherein the power of the aristocracy prevailed over that of the populace. (Mihi vero nihi lun quam populare placuit, eamque optimam Rempublicam esse duco, quam hic consul constituerat quæ sit in potestate optimorum.
—I see, gentlemen, you would repeal my law respecting suffrages, without any ballot whatsoever. For myself, though I have sufficiently justified in my Commonwealth the line of conduct assumed by Scipio, yet I would not practically go quite so far as he.
It is only under the authority of the nobles, which good men will obey, that I concede the right of voting to the people. For these are the very words of my law respecting elections. Let the votes be notorious to the nobles, and free to the people. (Optimatibus nota plebi libera sunto). Which legal maxim contains this doctrine, that all those laws should be abrogated which have been so contrived as in any way to mask or hide a suffrage; such as those which hinder full inspection of any ballot, or examination and appeal thereupon, and that law of Marius, which makes the passages to the ballotiug boxes so narrow, should be likewise abolished. (Quæ lex hanc sententiam continet ut omnes leges tollat quæ postea latæ sunt, quæ tegunt omni ratione suffragium ne quis inspiciat tabellam ne roget ne appellat. Pontes lex maria fecit angustos).
If these rules are opposed, as they generally are, to the ambitious, they are worthy our approval. If the laws indeed could but hinder intrigues, then the people might be allowed the ballot as a vindicator of liberty, provided it were so laid open and freely exposed to all honourable and worthy citizens, that their authority might be blended with this popular privilege, thus leaving the people the power of expressing their deference for the aristocracy.
But why is it, Quintus, as you just now observed, that there were more condemnations past by the open suffrages of the poll, than by the silent secret votes of the ballot? We should explain the anomoly thus. The people are extremely fond of licence; do but save appearances in this respect, and they will abandon their influence to authority or favour. As to the largesses and bribes which are given to obtain corrupt suffrages, do you not see if we could but get rid of bribery, the characters and counsels of the best men would carry the votes? By our legal maxim, therefore, the appearance of liberty is conceded, but as the superintendence of the aristocracy is still retained, the cause of contention is banished. (Note I.)
The following legal maxim relates to those magistrates, whose right it is to treat with the senate and the people, and to reconcile their interests as far as possible.
The next regulation appears to me very notable and important:—viz. that whenever there is any such compromise between the senate and the people, the utmost moderation should be observed, and the speeches on both sides be made with that modesty and fairness, which tend to allay passions and mitigate asperities. Every mob orator, modifies and moulds not merely the opinions and desires, but the very features of his audience. It is not so in the senate, however; for the senator should not permit himself to imitate the fashion of the mob orator, but will rather endeavour to speak with absolute decorum and propriety.
We therefore require three duties from the senator. First, that his attendance in the senate be regular; for the multitude of senators, lends weight to the arguments of policy.
Secondly.—That he should speak in his turn, that is, when his counsel is demanded.
Thirdly.—That he should speak concisely, lest he should become infinitely wearisome; for brevity in parliamentary oratory, and all kinds of oratory, is the best recommendation of a speech.
Lengthy speeches therefore are never seasonable, except when the senate is precipitating some rash measure, as it does far too often, through the ambition and corruption of its members. In such a case, it may be desirable for a speaker, not being duly seconded by another representative, to occupy a whole day. The same privilege may be allowed where the subject of debate is so important as to demand all the copiousness of the orator, both hortatory and explanatory, in which our own Cato is remarkably distinguished.
The ensuing legal maxim ordains that magistrates be very studious of the interests of the people. For it is necessary for a senator to be acquainted with politics in general, and this is a science of the greatest importance to the Commonwealth; since it comprehends its military affairs, its commercial statistics and revenue, its foreign alliances, its colonies and stipendiaries. He should be familiar with their regulations, their resources, and their engagements; their customs and modes of life. You therefore see that the science of politics taxes every power of intellect and memory, in order to acquire and maintain that elaborate information, without which no one can be called an accomplished senator.
Then follows a legal maxim, which relates to the public deliberations of the people, in which it is especially enjoined that all violence be avoided (vis abesto). For nothing is more destructive in states, nothing more contrary to law and right, nothing less civil and humane, than to carry any thing by violence and agitation in a sound and constitutional government.
The next maxim relates to the office of comptrollers,—which is an admirable institution, since it is better that a good measure be sometimes impeded than a bad one carried.
When I say, in all cases of fraud, it is necessary to go before a pleader, I follow the opinion of Crassus, one of our wisest men, whose counsel was adopted by the senate, which decreed when the consul Claudius reported Carbo’s sedition, that they could not take cognizance of sedition, except through the medium of an official pleader, who should lay the case before the people. Since it was allowable for him who made a proposition to abandon it as soon as it began to occasion disturbance; and if he persisted, when he could do no good, he would be held accessory to a breach of the peace, which we would punish severely.
Then follows that maxim, which states, that he who acts as a comptroller of civil abuses, shall be considered as a good citizen. And who would not promote the interests of the Commonwealth, with all his energy, when stimulated by the hope of acquiring a character so glorious?
Next, succeed certain regulations, which we likewise find in the public institutions and laws—that auspices be observed, and augurs obeyed. It is the duty of a good augur to show himself in the critical periods of the Commonwealth, as Jupiter’s minister and prophet; since those to whom he has entrusted the auspices are his instrumens of revelation; and he has revealed his celestial influences to them, in order that they may succour the state in her hour of danger and necessity.
Then follows a provision respecting the promulgation of laws, that they ought to be proposed distinctly in their successive counts and clauses, and that the remonstrances and objections not of the magistrates only, but of private individuals, should be duly weighed.
After this, we find two excellent laws selected from the Twelve Tables. One of these forbids unfair privileges and partialities: the other will not permit sentence of death to he past on any citizen except in the high courts of justice. You may think it odd that such decisions were not left to seditious tribunes of the people; but our ancestors provided for posterity, that laws should not be enacted in favour of particular individuals, for that is what we call privilege, than which nothing can be more inequitable. Since it is most important that every law should be equally published and enjoined to all, they refused to sanction any particular enactments which were not openly proposed in the assembled commons, (centuriatis comitiis). For when the people are summoned by rank, order, and age, they use much more consideration in giving their suffrages, than when they are promiscuously convoked by tribes.
It was therefore very truly observed in my own particular cause, by L. Cotta, a man of vast genius and consummate prudence, that no sentence was legally pronounced against us, since the only body of commons that prosecuted us was an armed mob of slaves. Such comitia tributa could neither pass capital sentence nor special adjudications (privilegia). There was therefore no need of a law for my recal, since the sentence of my banishment was wholly illegal. But it appeared to you and other illustrious men more proper, seeing these slaves and vagabonds persisted in declaring they had justly condemned me, to manifest as openly as possible what all Italy thought on the subject.
Next follow those laws which relate to pecuniary bribes and intrigues. And since these cannot be so well chastised by censures as by penalties, it is added, let all such abuses be visited with penalty and punishment, so that every one be duly punished for this disgraceful corruption: the avaricious by fines, and the ambitious by ignominy.
The last laws we have cited, are not in use among us, though very necessary to the state. We have no proper registration of laws (custodiam legum). Our laws, therefore, are such as the apparitors declare them to be, and we are forced to take the word of their copyists as our security. We want some public legal registry, in which our laws may lie open to the notice of the people. The Greeks are more careful than ourselves in this matter, as they have instituted legal registrars, whom they call νομοϕυλακες. Their office is not only to preserve the original copies of the laws, as was the custom among our ancestors, but also to declare the law, whenever the conduct of the citizens merited animadversion.
This case we might entrust to the censors, since we wish to maintain their function in the state. It is likewise to the censors, according to our legal maxim, that those who retire from magisterial offices should unfold and explain their proceedings when in office, in order to enable the censors to report them fairly.
There existed a very similar institution in Greece, where public examiners were directed to inspect official accounts. But these examiners could never have much weight unless their functions were voluntary and honorary. It is therefore better to state the case, and explain the accounts to the censors. And in case of error, leave the whole suit to the law, the plaintiff, and the judge.
But I presume we have sufficiently discussed the offices and duties of magistrates, unless you demand further information on any point.
—Why—if we held our peace, the very subject itself would admonish you what you ought further to say.
—On my honour, Atticus, I suppose you want me, since I have treated of judges, next to treat of judgments.
—What then, do you think nothing remains to be said on the rights of the Romans, which you proposed to investigate?
—What would you have me say on such a topic?
—I think you should treat of those regulations, which all who live in our Commonwealth ought to understand. For as you remarked just now, a knowledge of our laws is too much confined to their copyists; and I observe that many of our magistrates are so ignorant of their own laws, that they know no more about them than their clerks choose to tell them. Since therefore, when you had explained the laws of religion, you went on to treat of the observance of religious obligations; so as you have described the laws of our magistrates, you should elucidate their jurisdictions and their judgments.
—Well, my Atticus, I will endeavour to do so, as briefly as I can. For your father’s friend M. Junius, addressed to him an extensive treatise on this subject, which, in my opinion, is extremely well and ingeniously written. Of this book, we shall freely avail ourselves. When indeed we discussed the law of nature, we drew from our own souls, and delivered our own opinions; but if we go on to consider the civil rights of the Romans, we will accumulate all the authorities we can procure from the traditions and records of our predecessors.
—Such, indeed, appears to me the right method of proceeding, and I shall listen with pleasure to all you may choose to say on these topics.
end of the third book.
[*]As] Cicero has treated this question respecting the poll and the ballot, or open and secret voting, more at large than any other classical writer, it is worth while to explain his doctrine in its application to modern times. Cicero’s grand and simple maxim is, that suffrages should be at once notorious to the nobles, and free to the people, (optimatibus nota, plebi libera sunto.) He evidently wished to combine these two grand desiderata; the cognizance of the senators respecting the individual votes of the people; and the liberty of the people to give those votes according to their conscience, without hindrance, or prejudice, or fear. The syncretic or combinative doctrine, which Cicero applied to all his subjects, he applied here; he wished to unite and reconcile two disiderata equally important, and which less practised statesmen had often disjoined, as if the cognizance of the senators and the freedom of the people were incompatibles. It is necessary to bear this syncretic doctrine of Cicero in mind in this question of suffrages, as it explains his several dicta, which might otherwise appear contradictory. He seems, in fact, to have advocated that union of interests in elections, the dividing of which has occasioned so much idle contention in our own times.