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    Achieving Justice by Twisting the Truth Cicero Legal truth Lies

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    Achieving Justice by Twisting the Truth Cicero Legal truth Lies

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    20 views14 pages

    Achieving Justice by Twisting The Truth

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    huzeyfetalhaalp
    Achieving Justice by Twisting the Truth Cicero Legal truth Lies

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    JAN WILLEM TELLEGEN - OLGA TELLEGEN COUPERUS. ACHIEVING JUSTICE BY TWISTING THE TRUTH BB i ete 2007 erat dl volun: STUDI PER GIOVANNI NICOSIA vit JAN WILLEM TELLEGEN and OLGA TELLEGEN.courenus ACHIEVING JUSTICE BY TWISTING THE TRUTH SOMMANIO: 1 Touodueton. 2 Quinn, it : 2440-4: the com tent —3.Fet or 1240-4 the content — The histor! back ‘round w Gers pr Mie — 5, Cher ia defer of Minti td ierta — 6. Quinn's comment om Cicero's fro Mie — Quinn, ist ort, AAO applied to Ccsos po Nice 1. Induction ‘Over the last ten years, we have the relationship betwee ‘There is one as- pect of this supposed antagonism which we have not yet dis- cussed, namely, the idea that orators wete ready to advance their clients’ causes One of the orations in which Cicero is sad to have used blatant les is his plea in defence of Milo. On that occasion, (0 Se fon ites FSU, Hl Romo St (Oaford 1946) rit was possible for a good orator to use falsehood and yer be a Ives rr, an honourable man. In the lst Dat of his iutitio ort, Quintian deals with this question, parculaly in 12.1.40-41. Unfortunately, the passage is rather ‘oocleas, We think, however, that we can explin the passage by connecting it to Cicero's ro Mibie. Throughout his work, ‘Quinlan refers to the po Mim, although not always explciay Fis accurate way of working makes it worthvhile 10 use these references in interpreting this famous oration, We think that, in this way, we can also beter explin Cicero's so-called lying (3) We will divide our paper into six sections. First, we will quote the relevant passage from Quintlan’s avs on 1214041 and discuss the content (2). Then, we wil esphin the context of the passage and examine the possible connection berween the origin of the passage and Cicero's pre Milo (63). This is necessary because, in this passage, Quintlian does not explic refer to this oration. In §4 we will eum to the pro Mil itselE and assess the celevant facts: what happened exactly before, ring and after the fatal even Milo and Clodius the Binding of (2 CE Q.Ascnie Patios. Commis o Fie Stub of ior Ed ‘sith Tamla by Sone Sars ae) Wasco 19) 7.88 Te wok this cenray AD aur eee gael see (3) Combining the wos of Gear an Quan Be pig we fa, aston shown by JW Tain, To Ray ae oe Ca Gono tn de Las Thee Pa a and ae, tion of Cicero’s plea (6). Finally in §7, we will wy to ascertain to what extent Quintiian’s isto endoria helps to explain the ‘essence of Cicero's pro Milne and, the other way round, to what ‘extent the cemain circumstances, t Ischood. He could do 50 and still be a bows wir 2 Quintin inst oF. 12. 140A: the content In inst or 12.1.40-41, Quintian writes the following: 40. Nii di lignans Stabs mars yan ‘ate obi re rune salsa eam mo i, guia ni ii tu, orator? Any si tundhon usc, on tam fais defend, gram gu dou indies mala cau near? 1. Quid i qu lane be fata damatras et ade, wii non si fat conve rina, nom vel ba mado ssi rat mom denoentom mod, sed ‘tia lndabilem ie? Quid ei quad ‘asta maar sed cond sion temporum ita stati sss, worne stoma arts dnd ona gui, sed mals rb sin? 40, ..But let us put the prcblem beyond all question ‘of doubt. Suppose a man to have plotted against a tyrant and to be accused of having dose so, Which of the two ‘will the orator, as defined by us, deste to save? “Again, suppose thar the judge acts which were righty anal ACIMEVING JUSTICR BY TWISTING THE TRUTH done, unless we can convince him that they were never done: Is this not another case, where the orator will not shrink even from lies, if so he may save one who is not ‘merely an innocent, ‘but even a praiseworthy citizen? Almost certain, the modeen eades will be unable to fol- low Quintilian’s argument inthis passage. Quintiian poses four questions, but he does not supply any answers. Moreover, the {questions themselves seem incomprehensible ‘The first question is: ‘Suppose a man to have plotted agains¢ a tyrant and to be accused of having done so. Which of the two will the orator, as defined by us, desie to save?" How are we to explain the fac that an orator has to choose which of the two he wil save, the pervon who planned the murder or the ‘grant? OF course, only the former stood wal, soit was only in connection with the person who planaed the murder that the ‘question about whether he should be saved could be atked, (6 Temson by ELE. Bue, Quien IV, books XI (Caner (ae Lond 190 199-189) 39. We wat ceament on to deh "he ie of 4, ear ad ame HL ROS ara Fa nes i ‘Aili Rear (Datmstat 1881995) T emt he wort eae irs ht jemand nes Anshag pom . Grats tiene De ‘hig mer (Groningen 2000) 8 ha ten singe epg Bs (nthe oer and hase he pl and Dik Ruy te fs One ‘Ede V (Cabs [Mi] Loon a0) 2 consi We ik the et fo ae coc ener Jct mop te tig, at ean Stance of he iting ‘The wot sre ao problematic Ro, does ot ‘ele dr words nr do Gea, 69 and Rave 21, Bse 35 eae ‘woe with ach af het! We dk th tao coset. Quah ‘ramones het tht he itr be chote tren Sew freon the ‘Bator he sani ‘The second question is ‘If he undertakes the defence of the accused, will he not employ ‘alschood with no less readiness than the advocate who is defending a bad case before a jury?” ‘The orator defending the accused wil have to employ falsehood in the same way as an advocate has to employ falsehood in & ‘case of dubious nature. Can we then say thatthe orator is telling: lies? But if he is, can we maintaia that such an advocate is living ‘up to Quintilian’s ideal ofthe boxe vr? In 12141, Quintlian poses the thied question: ‘Again, suppose that the judge is ikely to condema acts which were rightly done, unless we can conwince him that they were never done. Is this not another case where the orator will not shrink even from lis, if this enables him to save someone who is not merely an ineocent, but even a praiseworthy citizen” Why ‘would the defence of a tyrannicide consist solely of the denial ‘of a fact, namely the planning ofa murder? A simple defence of this kind would be very weak. The appearance of a few wit- nesses for the prosecution, for instance, would wndermine the defence immediately Lastly, Quinlan asks ‘Ain, suppose that we realise that certain acts are just in themseves, though prejudicial ro the state under existing circumstances. Shall we not then employ methods of speaking which, despite the excellence of thet in We can only begin to understand these questions if we fist rake the context into account. ae cme josh ay ewe ne 3. Inst or. 1214041: the comet In fast of 12:.33, Quintin mentions that certain per- sons ~ who would rather be eloquent than good ~ sometimes ask him about the possible value ofall this thetotial theory. ‘Why is thete so much talk about colours, the defence of dif. calt eases and even about cont ‘Quintiian evidently fels that this matter touches him per- sonally and he deals with it in detail. He begins by stating that in cernin circumstances an orator is obliged #0 defend gulty per- sons. According to Quintana times it is certainly not useless to defend falsehood and injustice because this makes it all the ‘easier for the orator to refute eroneous views. Quintian supports his contention initially by refering to the philosophers of the New Academy who were accustomed to solve a problem by defending evo opposing views alter ‘ately. Quintilian mentions the famous vist that a delegation of philosophers legation con- Ceitolaus of the Peripatetic School and Dio- genes of the Stoicdl School Dus Cato was so annoyed his that he suggesced thatthe delegation should be sent back to Athens ~ and the delegation was duly dispatched (3). Quint (©) ana ty potty comes rm Ci, fb 36 wih sot ‘ber wich isan eee oy Lactnoayi oS14 3-5 ah tno lian describes the philosophers’ strategies in the following, way in it 12.1.5: 35. Negueenim cade, cum in wrung der par em, wom secon aoa vat, ne: Carnad ile, qui Roma aide Censro Cates nox mnaribus vio contra iste di ‘itr dverise quae pric pro ita deat, nits oe vir ins Vera et vir gi it, adver 32 mati dei of aug ‘as fit ini omtemplations manson, +t lara cniranis probatar. Debent ego orator sic exe adsersarioram mot conta 1 haste inert 35. For the Academicians, although they will arpue ‘on either side of 2 question, do not thereby commit them selves to taking one ofthese views 28 their guide i life to the exclusion of the other, while the famous Carneades, who is said to have spoken at Rome in the presence of CCato the Censor, and to have argued against justice with no less vigour than he had argued for justice on the pre- of pa, Zeta tpg fm Lact fC, he Cee ‘a an ore La, Eel by amen EG Zl (Cbg 1999) 02 ore ‘ton of Ca’ amoynce shut Cael Ps Ca any 22 (6 Tanto by Ble Ge oe 4,573 In ove ew, oder ae ‘aor have mins th page. mt sen son mon he Be ‘of eon 35 by omen the word me CE Ras ewe 315 ha coding oot ale oa aba ene 9), 699 ne See, ac et ‘dna tr Leben cnc. The gore the wordt bec apart they te te ew it pose 0 defend oo opedng stands ns honorable wu We tik ta thyme te pat Quan ant To muhe Tn Er scam se ms Next, Quinlian writes tha, although it may be hard to believe in the fist instance, these can be good reason why an conceal the eruth Wve a moral dilerima if he has to defend a bad cause, because he does not know if it rally is a bad cause. For often good causes closely resemble bad causes and serious charges brought against innocent people seem the = point, Quintin gives (wo examples, one relating to a tyrannicide and the other to the election of a corrupt polite Clan, To illustrate the second example, he takes a case fom his- tory, but he does aot elaborate on the fist example. We ate go Jing to discuss the fst example here (9). Quintin does not make any reference to specific per sons concerned in the case described. At frst sight, sections 40- oar ew the tention by Geta ne ate) 618 the bee: let et {Erinn lve tm nie kee worn ra dete make ihc wot heey of ning ti ses of anon doe ot esa {Sep en hey dost nae cence nef he mo {ow te purer of con, Cla jul 3833 ges a i stein opt ds en apt pate, Poin Cnet Phi had © {Fics ew tn ote cannot Soeson well thot mors, bees {ns had to powe th pote For Cc opoa shou the Sepa, se GE Rein, Reo ort Cem, Re al Sapa sin, PRD. te (Pancron 163 1 Tha canbe dred fe Quinn nto 12.145 Row as hftoming ea esting tat 12138 “Theo ems sening for cas To ha so eating eens eno be (Siar sctnn, Quon gg explin har ere mar en uizers so. nma nan crenee we 41 seem to be a textbook example of thetoric. In Greck liters ture, there had long been great interest in tprannicide and par- ticularly in the legendary figures of Harmodios and Aristogeton who had conspired to murder and his younger bro ate ‘oman times, especially in che e pire, trannicide was a theme that was selected over and over again inthe schools of thetoric in order to give students prac tice inthe at of declamation (10), However, sections 40-41 also have a historical dimension Cicero's pre Milne was the classic exa jero and repeatedly to the fro Mibre in pat ticular, although he does not always mention Nilo by name (12). In init oratra 12.140-41, Quinlan does not refer specif cally to Cicero’s pro Mio, buc itis highly likely that he had this speech in mind when compiling this textbook example of ty annicide. Since this passage is not really sel-explanatory, we will ‘uy 10 answer the four questions posed in the text by referring lized t Cicero's fro Mile. 4. The historia backgruend Cier's pro Milne. Te was atthe beginaing of 52 BC that T. Annius Milo was (00) The mb then teed io the mot eased pe The can be ec roe Tacit dal 355 Lakin seve ges sates campy in tae, he quston wer whether the rane cul cn the sxe or 1s det) Acconing to 1G. ScnSGDN, Di Lab mr Tyme (Taking eg 0 1, wae iy ht ale rk Reman {Cito cs Cada atin feet teams. J ROGER DUNK! ‘The mat an Romo Pala Tf te at eas Ta. me Pio A989 18. (02 Sethe auc inde of Raa (e not 9,850. accused of murdering P. Clodius Pulcher (15). At the time, the Political situation in Rome was very unstable. The second tuiumvirate had come to an end: Crassus had waged a war a _gsinst che Parthians and had died in che bate of Carrhae; Cae sar was waging war in Gaul and kept Rome vellnfosmed of his successes; the all-powerful Pompey was ia Rome, but did not feel secure. ‘In 57 BC, Clodius had gained the approval of the srivwait to recruit armed gangs who would force Cic-ro to go into exile Particulaely since the Bona Des scandal, Cloius had wanted (© ren gangs and Milo and Clodius fought each other in the streets of Rome, After thece years of relative calm, the magisterial elections for 52 BC made hostilities fare up a fin, Milo wanted to become a consul and Clodius was keen to become @ practor. In Rome, tension rose 1 such heights that the elections had to be postponed until Jammy. ‘The course of events on that fatal day in January 52 BC ‘can be traced from the account given by Asconius (14). Milo and Clodis with thei respective followers had come to blows ina chance encounter on the Via Appia, ouside Rome. Clodius twas wounded by a gladiator belonging to Nilo's retinue, and he was taken to a tavern nearby. Because Milo feated the conse {quences the fight might have, he ordered Saufeius, one of his ‘Companions, o fetch Clodivs from the tavern and kil him. A. Senator who happened to be passing by had che body taken to Rome in hie liter. (3) For scosinton of th it). BEL, Th Tr 32 ‘AC: Sra ny in Tc A PRL 19 1979) 23120. (09 aac, 332 rename eo. matai Couns a ‘The following day, serious siots broke out in Rome. Clo- dius’ body was burnt on the steps of the Cusia along with the furninure of the Senate and then the whole building burned own, Clodius” supporters also tried to storm Milo's house, but they were deven off by archers. The Senate issued a seat com lune ulimon ia which the mosder on the Appian Way and the lnregulatities ip Rome were declaced to have been aoa rem pu ‘cam, Later, Pompey was appointed consul sine cles, He issued ‘Milo was charged with having killed Clodius after laying ‘an ambush for him, This accusation seems to lack foundation, ‘Everybody knew that both partes had met by chance. A possi- ‘ble explanation is that during the election campaigns, both Milo and Clodius had accused each other of lying ambushes. A ion i that Mio, in speech ‘Cicero appeared for the defendant because he felt it was his duy. The supporters of Clodius crowded round the atea on. the Forum Romanum where the tial was being held. The til would probably have ended with Iynching by the mob, had Pompey not been able to restore some kind of order with che help of a detachment of soldiers. Fearing the threats of Clodius’ supporters, Cicero found himself unable to argue convincingly. ‘Milo was convicted and went ito exile. Afier the til, Cicero published his speech (15). M. Brutus, who later was to be one (05) Aon 2 and Quinn io 4.25 tt 43.17 seer a8 a ‘wrmive venom, end a the serch Caso acy deere for 30 In ‘Rotem br, pinion de soa he (0 ich he ples hat a oe (we tow comerponde to he pe hat Chow actualy me. SOP Te Sl Me ce er Pe it Pn ch Ph (963) 29 ages {hat te cher pe hier wae egey te are ait sack te wok ‘Cee Weimar ht poem the nest seton of a pape. 22 scurwna psncravnwsnse META Of the assassins of Caesar, also wrote and published a plea ia defence of Milo, as ifhe had actually delivered it (16) Cir in done of Mil: weno and dispositio. ‘The task of defending Milo was very problematical, be cause Milo was definitely responsible for the death of Clodius What strtegy did Cicero adopt in this oration? In rhetorical terms, which starus did Cicero eb ‘opted for the stants sistant (17). Some modern authors te fad this defence as extremely weak and are astonished that Gero made this choice (18). We do not think that this qualf- cation or this amazement is justified Cicero's choice can easily be explined. Milo had been charged on the basis of the ise Popes de with lying an am: (40 CE Asconia, 4 and Quinta, nt 3.693 {19 This ero al the he ven ofthe prin enc ‘wih hie uni opener sso erent Eo thew mma he ‘Eat frnhing op tha Cho parted th queso een oe Tt ‘moms woe tbe sonnel Kd, bi seat of compaons betwen No “Cloister ne Yo prove rt Ms bt Caos wo 1S a ee amuse age A.C Bu, Dr a sa mee pec Gro ee Mil 18 So, or note Ano 14 (58 9 the ques ‘son more generlly: who laid an ambush for whom? and he sumed the charge around. In thetorical theory, such a counter charge ie “Accotding to Watts, Cicero ‘is throwing dustin the eyes ‘of the jury. He puts the possible alternatives as «wo» [1] M plot ted against C; [2] C plocted against MG and treats them as mutu: ally exclusive. But there are two others: [3} neither plotted against the other; [4 cach plotted against the other (20). We do nat agree with Watts’ view. We believe that Cicero mentioned only two possibilities, aot because he ‘wanted to mislead the judges but because, in the ght of the accusation, he had no other option. Although neither Milo nor Clodins had laid an ambush and the charge against Milo should have been based on possibilty 3 (ncither plotted against che other), the accusation was based on possbil wash at all would have had no effecr on the belligerent ‘mood of the public. Tt would not have been sensible for hin to select possibilty 4 (each plotted against the other) either, because that would have amounted to admitting chat his cli- ‘ent had laid an ambush. Cicero therefore opted for possibility 2 (Clodins plotted against Milo) “The next problem for Cicero was how to peove his argu ‘ment, since Clodius had not (09) CEL Las, Hance Rl (Mince 1979 9 (20). Wists, Chm One, SCV (Canbee fes Landon 198 $0 = — the se ona ‘move AC that point, Cicero dic not close his oration ~ as one tof his plea at ne gets he ime pression that this argument (the justification) was Cxero's real argument although he presente i as an argument ena cam, ‘whereas the frst part of his oraion (who plotted against whom) was only make-believe The invention in Cicero’ of a ; The bration consists ofa central argument about a would-be problem, ‘whereas an adel resented The second task of the orator, disposition, ie csely con- ‘nected to invention. The fact thatthe invention in Gcet0’s pre Mibee rested on two types of status, i, the status smituralir for the central question an 0s gualtatis for the addi- tional question, must ha According +0 2) nig one on 04 1 hn pa fe seh ‘nel nia ches Ca ed eh fara Sem DIC Riayat ag ad gf Ce Malas Boe {pei ir (09) 58 ene stn ene Goninon ne hein cee Ete ntraman ue Wesons ol spun ong rane toma) Co carat lites oy pica Sree type omen Timer arf ie Se rea bs aso ct Cs Pa 80 (95 ed pat oad inte om ga ec JW. YELEER ANA Tne cOURER 2s thetorial theors, an oration cf has been changed! onli proposito + parin ato’ pnpasio arrais repost ‘onfrmatio confit peonatio: ‘The question is whether there is a connection berween this particular order and the use of two types of stats, Let ut havea closer look at the putts ofthe otation. 1-5 Exner. Cicero emphasizes the fea for Pompey's reas lence. Ia other words, inthe tra. ing with oppos 6 Propose I and pariti: Cicero announces that he will concentrate on the question of who plotted against whom, opt- ing for the status consort. He then uses the igure of pain ‘in ie: he announces that he will not speak of Milo's services to the state and the influence ofthe gods. In fact, he will deal with both at gre confmation I, using the status gala In this section, Cicero deals with what he assertion ‘that the man who by his own admission has shin a fellow-creature has no right to look upon the light of day’. In the sexes of examples supporting the cel ton he mentions ina, tery ancpating ofa . Cicero rejects the view that the Senate considered the murder on the Appian Way to be soins rom publican. He con cludes thatthe Senate only wanted to assess that every fotrn of violence is detrimental to the state; it did not mean to declare peats the central question of his defence: who plotted against whom? 24.29 Namato: Cicero tells ina very suggestive way what hhappened on the day of che murder. Moreover, by drawing @ ‘comparison between the clothing of Milo and Clodivs he an- tcipates confirmation L 30:31 Pr 1 Canfimato I: Cicero fest puts the thetorical ques- tion of how it can be proved that Clos lid a plot for Mio. (OF course, he is unable to actually prove this, so he draws a large number of comparisons between Milo and Clodivs. Be- ‘cause they al tum out wo fivour Milo, Cicero makes it plassible that it was Clodius who laid the plot.'A cleat case of the status coinarai Rs sal argument. ms rever, he had not acted of his own accord ~ for Cicero had only just proved that Milo had not plotted against Clodis ~ but it was the pods themselves who had made him do so. As we std before, this justification of the deed was Cicero's real argument, he applied the satus alta 92-105 Pewrati Gieeto does not recapitulate his argu- ial angument (Milo freed the Roman state from a tyrant) justi- fied not only the musder but also the official argument Cicero had pat forward i defence of Mio 6. Quinn's comment on Ciam's pro Milne. inn rent the fo Mb any es in is tio ‘2 ena Appaterty, the craton was rea a one ofthe clas tat stants Of Hctore ought to be fie wth, For the purpose of tht paper, we have to concentrate on invention ted cipro, Quan dealt wih See bec ba Books 46 and 7 respectively. We have selected about ten pa sper in whch he wes ict’ mea an example fr his instoctions. Inout view, they democstate Oat, in hs orton, Gero made combination of two types of stats, te the sats ‘oneal for Ke ofa sgument andthe sas uta for tis unofi,e omta ngument, However, we wl bein ith to passages rom Bock 3 ofthe natin nto Tn it on 36, Quintin dace the seas concep, He angucs ll) ta 2 dimple eae has only One tans, but that a other cases there may be different kinds of status. Even then, the orator has to concentrate on one powerful argument. In ‘Milo’s case, Ciceto had to use all is powers to prove that Clo- dlins had laid an ambush and that therefore he was justifiably killed (ide 12), ‘Therefore the main status was coir Almost a the end of Chapter 36, Quinlan returns to the subject of causes with more than one starus (91-93). He argues that the orator can best choose the status with which he can achieve the greatest effect. Therefore, Cicero chose to argue that Clodius was justiGubly kiled as an ambusher but not by Milo’ design, whereas Brotus in his written speech opted for a diferent foam of reasoning: he boasted that Milo had killed a bad citizen; Cicero used the satu cmiaurals, but Brutus used the tur qualita Books 46 of Quintilian’s itt oraoria contain a syste matic discussion of the parts of a speech. With regard to the second part, narration, the author mentions 2 question that is often discussed, namely where the saratio should be placed: Some say it should always come next to the introduction, but Quinslian disagrees (4.22425). The circumstances of the case sometimes make it necessary 10 change the onder. Cicero, for instance, delayed the rarati by placing the rato relating 10 the three prejudices before it. By doing this, he gave che triple refutation the force of an introduction which helped to prepare the judges and make them see sight from the beginning of the tral that Milo was not guilty. Only then would they be receptive to Cicero's version of the facts 3b presented in the nama and inthe confmatio I, namely that Clodius had laid an ambush for Milo. In Chapter 42, Quintiian also discusses the credibility of the nara (52 EE). The orator ean enbance credibly by ma- king preparatory rematks, particule when he succeeds in ma- king them go unnoticed. Thus, Cicero tells his audience in common language how Milo walked home after th sitting of the senate, changed his shoes and clothes, and waited a litle aus an 0. ALGRN OUTED 20 time while his wife e women are. Ap- Tut or. 43 is about pari, dhe enumeration of what we are spealang about now and what we are going to speak about later on. According to Quintin, ic is sometimes better to omit the partition, for instance, when the orator wants 10 make wo defences which are mutually inconsistent (13-15). ‘Te was bel lant of Cicero in the ro Mil a continves his description of the pasts of the speech. He now comes to the rules of proof, che one invariably essential element in any cause. Proof can be technical or non-technical. We will un our atten- tion to the technical proofs, snd particularly to the arguments discussed by Quintlian in Chapter 10, because there he refers tice t0 Cicero's pro Milne. An important element of technical lanyuments is the dai or places where axguments are found. intilian groups them under cwo heads, things and persons an exampl ring an argument ‘namely, the fact that che meeting actualy took place in front of | Clodius’s manot on the Appian Way (pv Miloe 33). Because the place afforded Clodius a better postion for an ambush, Clodins ‘must have been the one who laid the ambush (idem 37). An- other fas is ‘means’. In forensic oratory, this comes down to the quectione of Did he want tacit Colt he have done it For the hope of success determines the intention to act Here, Quinslian summarises Cicero: ‘Clodius lay in wait for Milo, not Milo for Clodivs. Clodius had sturdy slaves with him, (25 Tesaon by Ral bons, ote 1305, 0 cmos yumce rman nt Milo had his womenfolk. Clodius was on horseback, Milo in a carriage. Clodius could move feds, Milo was entangled in his

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