3

Vetera repetenti

if De oratore offers, particularly in the prefaces, an emotional and impressionistic re-creation of Cicero’s youth and of a happier moment in Roman history, it also contains both in the prefaces and within the dialogue itself a large amount of very precise and accurate historical information, particularly about the history of Roman oratory as seen from the perspective of 91 bce. It is filled with names, events, speeches, and trials that give it a historical depth and texture far greater than any Platonic dialogue or straightforward textbook of rhetoric. The figures discussing oratory and enjoying otium at Tusculum in September 91 describe their own earlier lives, including trials in which they have taken part, speeches they have given or heard, and official travels to eastern provinces. We also learn, through Cicero’s account in the preface to Book 3, of the painfully brief lives of most of these men after they returned to Rome a few days after the conversation reported in the dialogue. There is, in short, a great deal of history in De oratore, and it needs to be examined in some detail.

Three aspects of the history in De oratore are central. In the first place, and closely related to the discussion in Chapter 2 of Cicero’s construction of the setting of the dialogue, is the nature of the connections that Cicero creates between himself and the world of De oratore. That includes not only the references to Cicero’s personal links to Crassus and his friends, but also discussions of particular speeches and trials that can be connected to Cicero’s own rhetorical education and practice. Second is the way Cicero and his characters construct the background to the dialogue. In the course of the conversation, Crassus and his friends refer to more than fifty earlier trials and speeches, and those events are not randomly chosen: we know of about 120 more speeches and trials from the same period (149–91) that are not mentioned in De oratore, and nearly half of those not referred to in De oratore are cited by Cicero elsewhere.¹ The choice of speeches in De oratore, in other words, is selective, and one needs to consider the kind of past that selection creates and the interpretation of Roman history that it implies. And third and finally, there is the fundamental question of the historicity of the dialogue itself: are the speakers portrayed in a manner consistent with our knowledge of their actual careers and lives? These issues are not entirely separable from one another; they are also an important element of the discussion of rhetoric, philosophy, and law that contains them, precisely because De oratore is not a theoretical treatise on rhetoric like De inventione or Cicero’s later Orator. Comparison with De inventione is relevant: in that treatise, there are very few Roman names and very few references to identifiable speeches or moments in Roman history; it is, with relatively few departures, a Greek rhetorical treatise written in Latin. De oratore, on the other hand, is a distinctly Roman account of how the three related disciplines of rhetoric, philosophy, and law took root and took shape in Rome and how they are, and ought to be, employed in the Roman world. But while De oratore is a work displaying great scholarship and considerable research, it is not, and was almost certainly not intended to be understood as, an objective account of Roman political and intellectual life: it is a selective portrait and a constructed history, for which Cicero made very deliberate choices about what to include—and what to omit.

De oratore is simultaneously historical and normative, and the speakers in the dialogue play more than one role. From one perspective they are Cicero’s mouthpieces, the vehicle for his own account of oratory and of the orator’s role in society and in the forum; from another perspective, they represent a (perhaps genuine) historical stage in the development of oratory in Rome; and from yet a third, they are narrators and shapers of the history of which (from the reader’s point of view) they themselves are a part. The setting of De oratore and the historical details which the dialogue provides through one voice or another are shaped by Cicero as author, but at the same time the speakers themselves are portrayed as shaping their own narratives of Roman cultural and moral development. Cicero is willing to present people and events with more flexibility than strict historical truth would permit; to start from some small but significant examples concerning the participants in the dialogue, it is important to recognize that to make the didactic situation more apparent, Cotta and Sulpicius—already candidates for the tribunate—are repeatedly referred to as adulescentes, and Scaevola is made to have heard Carneades as an adulescens (3.68) in 155 when he was in fact probably no older than ten.² The transmission of knowledge from one generation to another is, as noted in the previous chapter, an important element of the didactic structure of the dialogue, and Cicero was not averse to manipulating chronology to make it work.³

The same creative flexibility is apparent in the choice of trials and speeches to which the characters within De oratore refer. Of the datable speeches referred to in De oratore more were delivered in the decade of the 90s (sixteen) than in any other period; it is not surprising that speeches by the participants in the dialogue are also frequently cited (eight apiece by Crassus and Antonius), and more will be said shortly about the representation of various periods and various types of speech in the dialogue. Most of these speeches and trials are referred to only once; but two trials stand out for the frequency with which they are mentioned. The so-called causa Curiana (#9), a lawsuit that took place before the centumviral court probably in 93, in which Crassus opposed his former consular colleague Q. Mucius Scaevola Pontifex, is referred to six times; the trial of C. Norbanus for maiestas that took place in 95 and in which Antonius and Sulpicius Rufus were the opposing advocates (#21), is mentioned seven times.⁴ These two trials are very different one from the other, and they also play different roles within De oratore.

The causa Curiana was a civil lawsuit over an inheritance: a certain M. Coponius had written a will naming an unborn son as his heir and adding a further clause of pupillary substitution, that if the son were born and died before coming of age, then M’. Curius should be his heir.⁵ In the event, no son was born at all, and Curius claimed the estate; his right to inherit was challenged by the nearest agnate of the decedent, another M. Coponius. In the litigation that followed, Crassus represented Curius; his approach was to argue that the late Coponius had clearly intended Curius to inherit if there was no son even though there was no clause formally naming him as heir. Scaevola, representing the agnate Coponius, argued that the will should be interpreted literally, and that as no son had been born (and therefore no son had been born and had died) the will was invalid in the absence of a clause naming Curius as heir, and that therefore the nearest agnate should inherit. The case was interpreted as an argument of scriptum against voluntas—a standard rhetorical category of argument in cases involving the interpretation of documents—and Crassus, representing intention over strict literalism, won.

In De oratore the causa Curiana is first cited by Crassus himself (1.180) in his list of civil cases apparently small but entailing much larger legal issues (see below, Chapter 6), and Antonius in his response points out that it is a poor example of a case where the orator really needs to know the civil law well in order to do his job as an advocate (1.238): Crassus’ victory depended on his wit and charm, and neither advocate had actually needed to cite any legal texts at all (1.242–44). In Book 2 Crassus gives a verbatim quotation from his own speech, a mocking suggestion that if everyone were to consult Scaevola for legal advice about wills, then he would never have any peace, although, in Crassus’ opinion, a certain amount of otium and relaxation is a necessary part of life (2.24). Antonius later cites the causa Curiana to demonstrate that the particulars of a case matter less than the broader issue it incorporates (2.140–41), and Caesar Strabo then uses it as an illustration of Crassus’ wit (2.220). All told, it is discussed in De oratore by three different speakers and in the service of several different arguments.

Cicero makes so much use of the causa Curiana for several reasons. One is that, at the dramatic date of De oratore, it was a recent case conducted to great acclaim by Crassus. It serves simultaneously both as an argument for Crassus’ case that an orator needs to know the ius civile and as a very clear demonstration that even cases that ought to involve technical law do not, in fact, require much legal argument at all: the case itself can be used as evidence in either direction. It was also one of the most famous cases of the period and was cited (albeit without names and details) by Cicero as early as De inventione (2.122); he also used it as part of an argument for following the intention rather than the letter of a law in Pro Caecina—and it was further used by his opponent in the same case to disparage the opinions of iurisconsulti about the interpretation of law (Caec. 51, 67–70). Cicero knew the case well, and presumably many of his readers did too; its mention serves to corroborate the accuracy of Cicero’s depiction of Crassus in De oratore because it was a famous case in which Crassus was successful.

The other case, the trial of Norbanus for maiestas, was politically more significant and much more controversial.⁶ In 103 bce the tribune L. Appuleius Saturninus had proposed and passed a new maiestas law under which to prosecute malfeasance in the war against the Gauls. In the disturbances aroused by Saturninus’ proposed legislation, two tribunes (L. Aurelius Cotta and T. Didius) attempted to veto the legislation but were violently driven off by a mob under the leadership of their fellow-tribune C. Norbanus. In the event, Saturninus’ proposal became law, and two ex-consuls, Q. Servilius Caepio (consul 106) and Cn. Mallius Maximus (consul 105) were tried and exiled under it—Mallius apparently defended by Antonius. But several years later, probably in 95, well after the disturbances caused by Saturninus’ second tribunate in 100 had subsided, Norbanus himself was prosecuted under the law of maiestas for his behavior in the riots of 103. Sulpicius Rufus, one of the junior participants in the conversation of De oratore, brought the charge; Antonius defended Norbanus, who had been his quaestor in the pirate war after being tribune. It was much to Sulpicius’ surprise and chagrin, at least according to De oratore, that Norbanus was acquitted.

The trial of Norbanus first appears in De oratore when Antonius is explaining the value of practice and training in order to refine natural talent and exuberance: when he first encountered the young Sulpicius, he was wildly energetic and overflowing with words and enthusiasm (2.88). Sulpicius then asked Antonius for advice about his oratorical development, and Antonius suggested that he seek out Crassus. The trial of Norbanus was one year later, and Antonius reports how much Sulpicius had learned from Crassus in such a short time. Not much later in Book 2, in ridiculing the rhetoricians’ instruction that one should give a clear and brief definition of whatever term might be under dispute, Antonius uses his defense of Norbanus to demonstrate that the meaning of maiestas minuta was treated at length, and highly rhetorically, by both himself and Sulpicius (2.107–9; he returns to the same theme in giving his version of topica at 2.164–65 and 2.167). Between those passages, Crassus also refers to the trial, in one of the conversational interruptions to Antonius’ long account of inventio, in expressing admiration for Antonius’ trial tactics, mentioning in particular his justification of Norbanus’ seditio as in the public interest (2.124–25); Antonius briefly refers back to that comment at 2.188.

The last and fullest discussion of the trial of Norbanus involves both advocates in the case, Sulpicius and Antonius, and they review it in considerable detail (2.197–204); it is in fact the last specific case discussed in Antonius’ account of inventio as well as the longest discussion devoted to any speech in De oratore.⁷ It is used as an example of the importance of pathos, specifically to show that the orator must experience as well as express the emotions he wants to arouse in his audience. Antonius starts by praising the power of Sulpicius’ prosecution speech in the trial of Norbanus, how he was able to stir emotion through his account of the riots in which Aemilius Scaurus was hit by a rock, the violence, the misfortunes of Caepio and of the tribunes Cotta and Didius, how Sulpicius’ speech ended with the jury entirely ready to convict Norbanus and sympathetic to Sulpicius’ case—that he was speaking pro re publica, while it was somehow disgraceful (vix satis honeste, 2.198) for Antonius, a former censor, to be speaking on behalf of the seditious Norbanus. Antonius describes his own strategy in detail: he began on a very humble note, by saying that he was defending Norbanus because he had an obligation to defend his former quaestor, then gradually making a case for the necessity of sedition in some cases—as when the kings were expelled—and turning the subject to the disgrace to Rome caused by Caepio’s defeat by the Gauls and to the natural dislike the re-empowered equestrian jury judging this case felt toward Caepio, who had proposed the law returning the juries from the equites to the senate. And finally, having reversed the animus of the jury from hatred of Norbanus to hatred of Caepio, Antonius returned to the initial theme of his relationship to his ex-quaestor and asked for support for himself as much as for Norbanus. At the end of this account Sulpicius describes how he felt in watching the victory he thought he had achieved slip away under the brilliance of Antonius’ defense.

De oratore, it should be emphasized, is our only significant source for the trial of Norbanus: Cicero refers to the case twice later rather briefly and Valerius Maximus mentions it once, but nothing in any of the later references is independent of De oratore.⁸ Thus, as is not the case for the causa Curiana, we have no means of assessing the accuracy of Cicero’s account, although it is reasonable to assume that the trial took place as described, and that Antonius was successful: Norbanus was certainly acquitted, as he went on to become one of the final pair of consuls in the anti-Sullan government of Marius and Cinna (in 83, after the death of Cinna); after defeat by Sulla he escaped to Rhodes and committed suicide there. But it is significant not only that the discussion of Antonius’ speech is the longest such discussion in De oratore, but that it is placed at almost the exact center of the dialogue. One reason for its prominence may be that it is the only criminal trial in De oratore where both plaintiff and defendant were represented by participants in the dialogue itself; it is also an encounter between the older and younger generations of the dialogue and is used, in Antonius’ first reference to it, as an example of how an aspiring orator can improve with time and education.

The account of the trial, moreover, is unusual in that it is discussed not just as a problem of rhetorical strategy but as presenting a political problem, at least for Antonius. Norbanus, in his tribunate in 103 and in the disturbances of 100 bce that resulted in Saturninus’ death, was a political supporter of Saturninus and of Marius; his trial was on a charge of maiestas for his attacks on the elder Caepio, a pillar of the aristocracy, and the man prosecuting him was the young Sulpicius Rufus, at the time a pupil and admirer of Crassus. The opposition of Sulpicius and Antonius in the trial of Norbanus has been variously interpreted within the context of politics in the 90s; there is in fact too little evidence outside De oratore to draw any firm conclusions, and my description of the circumstances gives more detail about Norbanus’ career than does Cicero. But the gathering of men in De oratore is explicitly described as a meeting of political allies of Livius Drusus (1.24–26), and the trial of Norbanus is one of very few clear indications in the dialogue of any political discord among them. What is striking about Cicero’s account of the trial is that although some of the political content of the speeches is reported, there is no exploration at all of how it might have reflected the politics of the group in De oratore. That reticence is the reason that modern interpretations of the trial are themselves so uncertain.⁹

Cicero draws our attention to the trial of Norbanus and to the roles in it of Sulpicius and Antonius; he draws no conclusions from it.¹⁰ He may emphasize it simply because Antonius’ performance really was extraordinary, a display of his astonishing ability to use speech to change people’s minds. On the other hand, there is also evidence that Antonius’ defense of Norbanus was very important to Cicero; not just because Antonius gave a brilliant and apparently memorable speech leading to the acquittal of a seditious tribune, but because Cicero himself, thirty years after the trial of Norbanus, gave a similarly brilliant speech leading to the acquittal of another seditious tribune, and he made use of Antonius’ strategy in his own speech. As tribune of the plebs in 67, C. Cornelius proposed several laws, and at one point in the debate another tribune interposed a veto to the reading of his bill in public; Cornelius kept on reading after the veto, although he then terminated the contio when more violent disturbances began. He was prosecuted for maiestas under the Sullan law. Much tribunician agitation took place in 67 and 66, and as a result Cornelius’ trial did not take place until 65; the trial took four days, and involved two hearings and thus two speeches by Cicero. We do not, unfortunately, possess the whole text; we have Asconius’ fragmentary commentary on the speeches and a number of other quotations, but Pro Cornelio is probably the most famous speech by Cicero which we do not possess in reasonably complete form.¹¹

Even so, enough of the speech survives, together with Asconius’ introduction and commentary, to make it clear how close it and the occasion were to the trial of Norbanus. In the first place, there is the defense of a tribune on the charge of maiestas. That is not something to which Cicero was accustomed, and it clearly made him uncomfortable, both at the time and in retrospect:¹² Pro Cornelio, along with the contio speech on behalf of the Manilian law delivered at the beginning of his praetorship in 66, are Cicero’s most popularis endeavors, and in that respect the attitude toward his own defense of Norbanus that Cicero ascribes to Antonius (vix satis honeste) is closely comparable. More important is that the content and the structure of the speeches are quite similar. It appears (from Cicero’s summary) that Antonius began very tentatively, explaining that he felt compelled to act as advocate for Norbanus because Norbanus had been his quaestor; he then moved to questioning the nature and meaning of maiestas. He included a defense of sedition at necessary junctures, and he ended the speech by asking for support for himself as Norbanus’ advocate as well as for Norbanus himself.

All these features are Ciceronian, and the first three definitely are to be found in the fragments of Pro Cornelio. Cicero began humbly, praying to the gods and observing that he spoke for Cornelius tempore infestissimo (F1-2). According to Asconius’ summary, he asked for sympathy for Cornelius because Cornelius had been Pompey’s quaestor (not his own, as in Antonius’ defense of Norbanus). And Cicero then turned to the question of maiestas itself; his treatment is close enough to the speech of Antonius that they may have a fragment in common.¹³ Most famous is the turn from defining maiestas to suggesting that sedition is not necessarily contrary to the public interest. As Antonius describes it in De oratore (2.199):

Then I made the arguments Crassus just mentioned: that kings could not have been driven out of the state nor tribunes of the people created nor the power of the consuls so often diminished through popular vote nor the right of appeal . . . given to the Roman people without dissension among the nobles.

So too in Pro Cornelio: fragments 48 and 49 describe the secession of the plebs and the creation of the tribunes, and fragment 50 refers to the lex Porcia and lex Cassia supporting popular rights. We do not know how Cicero ended Pro Cornelio, but there is no doubt that the end of Antonius’ speech, with its appeal for acquittal based not on Norbanus but on himself, is remarkably similar to Cicero’s tactic in many speeches: by linking his own merits to those of his client, he attempted to gain sympathy for the latter.

The similarity between Cicero’s defense of Cornelius and Antonius’ defense of Norbanus offers one explanation of the centrality in De oratore of the trial of Norbanus, but it inevitably raises questions about the relationship between the two speeches: Antonius never circulated written texts of his speeches, and Cicero was only eleven years old when the trial took place. He did indeed know Antonius fairly well, and he might have learned about the strategy and structure of Antonius’ speech from the orator himself—perhaps while they were both in Rome in 90, after Cicero had received the toga virilis early in that year. On the other hand, the detail with which Antonius describes the speech in De oratore is striking, and while there is no reason to doubt that the account of the trial and the arguments made by Sulpicius and Antonius is broadly accurate, it is hard not to suspect that the closeness in detail between Antonius’ Pro Norbano and Cicero’s Pro Cornelio is because Cicero borrowed from his own speech to make Antonius’ defense more vivid: it is worth considering the possibility that in Pro Norbano Cicero retroactively constructed a model of his own oratorical inheritance. We cannot know if Cicero expected the readers of De oratore to recognize Cicero himself in Antonius’ great speech, but it seems likely, and that is relevant to the interpretation of De oratore as a whole. While it is customary to see Crassus as the sole or at least the primary vehicle for Cicero’s ideas about oratory and Crassus’ ideal of the complete orator as Cicero’s own ideal, that is not the whole truth: Cicero takes great pains in De oratore to emphasize his close ties to both men, and in many respects (as will be argued in this and subsequent chapters) Antonius is at least as important a representative of Cicero as is Crassus.

Even before the first mention of the trial of Norbanus, Cicero, in the preface to Book 2, drew attention to his personal connections to both Crassus and Antonius as part of his demonstration that his portrait of them is accurate. Even when young, Cicero says (2.2), he used to refute people’s false ideas about Crassus and Antonius domesticis testibus: Cicero’s father, his mother’s sister’s husband C. Visellius Aculeo, and his paternal uncle L. Cicero.¹⁴ The ties between Cicero’s family and the two orators were multiple and apparently quite close: L. Cicero had accompanied Antonius to Cilicia; Aculeo was close to Crassus (“whom Crassus loved most of all,” 2.2); and the education of Cicero, his brother, and his cousins (the sons of Aculeo) was apparently directed by Crassus himself.¹⁵ We learn more about these ties elsewhere; in Book 1, before Cicero has identified Aculeo as his uncle, he makes Crassus praise him (1.191):

Aren’t you aware of Gaius Aculeo, a Roman knight who is the smartest man of all [sc. in law] but not at all educated in other areas, who is and always has been my constant companion: he commands the civil law so well that when you leave him you wouldn’t put any of the great experts ahead of him?

The extravagant language here is meant as a compliment to Cicero’s relative, and putting it in Crassus’ mouth adds to that; but it almost certainly contains an element of truth, that Aculeo was in fact close to Crassus personally.

There is more to the connection than that; Aculeo may have been Crassus’ private legal expert (which, to the cynical eye, might suggest that Crassus himself knew less of the ius civile that in this same passage he claims is so easy to learn), but he also benefited from Crassus’ advocacy in a lawsuit. Included in Caesar Strabo’s lecture on jokes is an anecdote drawn from a civil lawsuit in which Crassus represented Aculeo; his opponent was M. Marius Gratidianus, represented by L. Aelius Lamia (2.262, #36). We do not know what that suit was about, but Crassus mentions, in his discussion of the importance of civil law, another suit in which Gratidianus was involved and in which Crassus again opposed him. This time, C. Sergius Orata brought a suit against Gratidianus because the latter had sold Orata a property without including the existence of a servitude in the deed (1.178, #7); this time, Gratidianus was represented not by Lamia, but by Antonius himself, the only known case in which Crassus and Antonius were opposing counsel.¹⁶ The case was a complicated one about which we know from other sources (including Cicero’s own later account at Off. 3.67), and Crassus here oversimplifies it considerably; it is unclear who won, nor can the date of the trial be determined.¹⁷

What Cicero does not mention when discussing the suit between Marius Gratidianus and C. Aculeo is that Gratidianus too was one of Cicero’s relatives, propinquus noster, as he says in De officiis. Cicero’s paternal grandmother was named Gratidia; her brother M. Gratidius was married to the sister of the great C. Marius. M. Gratidius’ son was adopted by Marius’ brother M. Marius, and became, adoptively, M. Marius Gratidianus. On the other side, Cicero’s mother’s sister Helvia was married to C. Visellius Aculeo.¹⁸ Hence the first lawsuit mentioned above was between Cicero’s uncle on one side and one of his cousins on the other. What is more, the connections between Cicero and the orators do not end there: both Cicero’s uncle L. Cicero and his great-uncle Gratidius served with Antonius in Cilicia; Gratidius was killed there. That came some years after a dispute between Cicero’s grandfather and his brother-in-law Gratidius: Gratidius had supported a voting law at Arpinum in favor of secret ballots, and the elder Cicero had resisted it, thus earning the praise of Aemilius Scaurus, the princeps senatus.¹⁹

The evidence about local politics at Arpinum and the political relationships between leading Arpinates and leading Romans is not clear enough to draw any precise conclusions. There were evidently close connections, not only among three important families at Arpinum (Tullii, Gratidii, Marii), but between the Arpinate families and Antonius and Crassus in particular.²⁰ Cicero mentions those connections more than once, but they are markedly visible in De oratore. There is at least one matter connecting his family to the group of participants in De oratore that Cicero does not mention, however: in describing the aftermath of the death of Crassus in the preface to Book 3, he starts with the suicide of Catulus, who killed himself rather than endure the disgrace and exile that would have come with conviction on the charge of perduellio; he does not reveal that it was Cicero’s own cousin Gratidianus who brought the charge against Catulus.²¹ And that unmentioned fact leads us back to what Cicero does and does not say about the participants in the dialogue.

Within De oratore, the participants in the conversation are presented as a singularly harmonious group, allies in politics and friends in private; however, Cicero’s picture is in some respects quite distorted, and it is hard to imagine that his readers would not recognize that. In the preface to Book 3, in describing the horrors that Crassus did not live to see, Cicero narrates the grim deaths of Crassus’ companions in the dialogue.²² Catulus committed suicide rather than be convicted and exiled (although, as noted above, Cicero does not mention the role of Marius Gratidianus); Antonius was decapitated and his head placed on the rostra (a passage appropriately imitated by Livy in his description of Cicero’s own death at the instigation of a later Antonius). So too Caesar Strabo was killed, and Cotta sent into exile. The last person mentioned in this list is Sulpicius: in his tribunate he turned against his closest friends and began to ruin them: quibuscum privatus coniunctissime vixerat, hos in tribunatu spoliare instituit omni dignitate (3.11). He was killed, and his punishment entailed great damage to the public good, poena . . . non sine magno rei publicae malo constituta; the language used of him here assimilates him to the Gracchi.

What is said here is true as far as it goes, but as so often in De oratore it only goes so far. Caesar Strabo was aedile in 90, but after that attempted to stand for the consulate (probably in 89, for the consulate of 88) without having held the praetorship. Whether the senate gave him a dispensation from the lex annalis to do so, as it did in some other cases, is unclear. His attempt to violate law and custom was opposed by Sulpicius Rufus as tribune; and to gain Marius’ support for his position, Sulpicius subsequently passed a law transferring the command of the Mithradatic War from Sulla to Marius, which led to Sulla’s first march on Rome—as well as to the violent death of Sulpicius himself.²³ Cicero obviously did not want to go into detail about the events of the 80s, and in De oratore he mentions Marius only in passing and Sulla never; in that respect, it was quite enough simply to make clear that things went rapidly downhill after Crassus’ death. On the other hand, it is disingenuous at best to suggest—as his description of Sulpicius’ fate does suggest—that Sulpicius’ change of sides (if it was that) was an act of personal betrayal with no obvious political context, and it might seem to be at least worth mentioning that Sulpicius’ actions were the result of the dubious actions of one of the other participants in the dialogue.²⁴

Cicero’s choices in De oratore about what to say and what not to say about the historical circumstances of the dialogue are not always easy to disentangle. But the smooth surface of harmonious conversation under the plane tree in Tusculum, with its elegant and courteous banter, is disturbed by the undercurrents of political discord and violent death: the trial of Norbanus, with Sulpicius and Antonius on opposite sides of a highly political event; the discord between Sulpicius and Strabo (which Cicero hints at, but passes over in the preface to Book 3 in loud silence); the role of a member of Cicero’s own family in the death of Catulus; the courtroom opposition between Crassus and Marius Gratidianus (not once, but twice), and the clear connections between the latter and Antonius. De oratore places an unrealistic gloss on an occasion which, if it ever happened, brought together ambitious and not always amicable politicians who within a very short time were all too literally at each others’ throats and behaving with serious disregard for acceptable political behavior.²⁵ Cicero’s vision of an age of comity and concord is nostalgic; what is equally important, he offers enough detail to make it obvious to anyone old enough to remember the Social War and the Sullan era that it is highly unrealistic. It is a translucent (if not altogether transparent) fiction.

The unreality of Cicero’s group portrait of Crassus and his friends is not limited to their artificial political collegiality but applies also to the rhetorical world that Cicero creates in the dialogue. As mentioned above, fifty-one speeches or legal cases are mentioned in De oratore, all but one brought up by Crassus, Antonius, or Caesar Strabo;²⁶ five more (one contio and four senate speeches) are referred to by Cicero himself in the preface to Book 3.²⁷ Of those fifty-one, no speaker is given for seven (six of them civil trials where the legal issue is the focus, the seventh a speech in support of the recall of Metellus Numidicus, the speaker of which is not named).²⁸ That leaves forty-four specific occasions for which at least one speaker is named, and again, the contrast with the absence of identifiable Roman speeches in Cicero’s own earlier De inventione is worth bearing in mind. Cicero meant the political and legal background to De oratore to be highly visible: the particular speeches and speakers he chose to mention and the trials and types of trial he chose to emphasize are part of his construction of the dialogue. So too, what he omits: we can form some judgment about the world he wanted to construct by those parts of the historical record he chose to ignore or minimize.

As an indication of Cicero’s choices in shaping the world of De oratore, some crude comparisons with what is known about the oratorical world outside De oratore are useful. While fifty-one speeches and trials from the period 149–91 are referred to in the dialogue, we know of at least 168 speeches and trials (including those cited in De oratore) that took place during the same period, and the sample preserved by De oratore differs significantly from the larger body of speeches. In Table 3.1 I have divided the possible sources for our knowledge of speeches and trials into three categories: those attested in De oratore; those attested in other works of Cicero (demonstrating, as will be useful later, that he knew of certain speeches but did not refer to them in De oratore), and those attested in sources other than Cicero.²⁹ There are seven possible permutations of these sources, noted in the left-hand column, and I have divided the possible occasions for speeches and trials into five categories; both contiones and iudicia populi are grouped as public speeches, while the category of quaestio includes both quaestiones perpetuae and quaestiones extraordinariae. I include senatorial speeches and those given in other venues as the last two categories in the chart for the sake of completeness, although they are not particularly informative.

Table 3.1 Sources for speeches and trials, 149–91

	public	quaestio	civil trial	senate	other
in DO only	6	9	11	1	0
DO + other Cic.	1	4	2	0	0
DO + other	1	2	1	0	0
other Cic.	6	7	0	0	0
other Cic. + other	13	25	1	1	1
DO + other Cic. + other	7	6	0	0	0
other sources only	39	12	3	5	4
total	73	65	18	7	5

Criminal trials (quaestio) are widely attested: all but twelve are found somewhere in Cicero, forty-five of the sixty-five are attested outside of Cicero, and only 14% are found in De oratore only. But there is a huge divergence between the attestation of civil trials and of public speeches: a majority of the public speeches are not attested in Cicero at all, and only fifteen of them are found in De oratore, while a majority of the civil trials are attested in De oratore alone, and only three of them are not found in Cicero at all.³⁰

Of the trials and speeches mentioned in De oratore (setting aside those from September 91 described by Cicero in the preface to Book 3), thirty-eight are datable more or less precisely within the fifty-nine years 149–91 (another thirteen, while clearly delivered at some point within this period, are not datable). These speeches are not, however, equally distributed over the period, either in terms of the types of speech referred to or in comparison with the total numbers of speeches known to have been delivered in the same period. In Tables 3.2 and 3.3, the period is divided into five roughly equal sections (the last, which is one year shorter, is in fact represented by more speeches than any of the others).

Table 3.2 Speeches and trials referred to in De oratore

	public	quaestio	civil trial	senate	other	total
149–138	3	0	0	0	0	3
137–126	2	1	2	0	0	5
125–114	3	6	0	0	0	9
113–102	3	2	0	0	0	5
101–91	3	9	3	1	0	16
undated	1	3	9	0	0	13
total	15	21	14	1	0	51

Table 3.3 All known speeches and trials

	public	quaestio	civil trial	senate	other	total
149–138	15	5	0	0	1	21
137–126	11	4	3	5	0	23
125–114	17	10	1	0	4	32
113–102	15	20	1	0	0	36
101–91	7	20	4	2	0	33
undated	8	5	9	0	1	23
total	73	64	18	7	6	168

These tables are not statistically significant, but they give some indication of the differences between the sample of speeches Cicero chose to use in De oratore and the whole body of speeches from the same period. It is striking, for instance, that while relatively few senate speeches are known from any source, De oratore includes only a single one, and that in the very last paragraph of the whole dialogue: a reference to Hortensius’ senate speech in support of the province of Africa (3.229, #56) which has very little to do with the remainder of the dialogue. De oratore in fact refers to four additional senatorial speeches—but they are the speeches reported by Cicero in the preface to Book 3, delivered after the dramatic date of the dialogue (3.2–6, #50–53). It may also be significant that the proportion of public speeches in the larger collection (43%) is significantly higher than the proportion in De oratore (29%), while the proportion of civil trials in the larger collection (11%) is significantly lower (27%). The speeches and trials that Cicero had his characters talk about in De oratore are not a random selection.

Nor, for that matter, is the distribution of types of speeches over time in De oratore random. Over this period of fifty-nine years, public speeches are more or less evenly distributed, but the trials (combining quaestio trials and civil trials) are much less regular: none in the first twelve years, three between 137 and 126, six between 125 and 114, two between 113 and 102, and twelve in the decade before the dramatic date of the dialogue, more than the total of the trial speeches in the earlier periods. The increase in the last period is not surprising: twenty-five of the fifty-one speeches or trials mentioned by the participants in De oratore involve one or more of the participants themselves, and (unsurprisingly) many of them were very recent events in 91.

For the moment, two other features of the distribution of types of speech in De oratore in comparison with the full list are worth mentioning. One is the high proportion of civil trials referred to in De oratore: of the eighteen known civil cases from the period 149–91, fourteen are cited in De oratore, and eleven of them are known only from De oratore. The other is the relatively high number of quaestio speeches cited from the period 125–114 (or, conversely, the relatively low number cited from the immediately earlier and later periods relative to the numbers of such speeches known). Only three trials mentioned more than once in De oratore took place before the decade of the 90s: the civil trial of Hostilius Mancinus in 136 before the centumviral court over the issue of postliminium, the prosecution of Opimius by Decius Subulo for the murder of Gaius Gracchus in 120, and the prosecution of Carbo by Crassus himself in 119. Two of these took place in the period in question, and all three concern the Gracchi, the last two directly.³¹

The figures given above, of course, are not really significant, but (as I hope will become clear) they help to show the importance of the Gracchi in De oratore relative to other major figures and events of the period between 149 and 91. Despite the fact that Gaius Gracchus had been killed thirty years before the dramatic date of De oratore, both brothers play an important role in the dialogue, and indeed they provide a frame for the conversation. The first historical example in the whole work comes in Scaevola’s reply to Crassus’ first speech in praise of oratory (1.38): his illustration of the difference between good oratory and good statesmanship is the contrast between the elder Tiberius Gracchus, who was no orator but was a great statesman, and his sons, who were great speakers but did immense damage to Rome.³² At the end of Book 3, the very last speech that Crassus refers to in his discussion of actio is Gaius Gracchus’ last speech (not including the final reference to speeches given by the up-and-coming Hortensius), and the discussion ends with a request from Catulus that Crassus not speak about the harm the Gracchi had done (3.225–26).

One explanation for the presence of the Gracchi is precisely the point that Scaevola makes at the outset: the two tribunes, particularly Gaius, provide the clearest and best example of the dangers of great oratorical skill without the right political opinions. That is a standard theme (the dangers posed by an immoral orator and the need for the orator to be a good man), on which Cicero dwells in the preface to De inventione and which goes back to Plato’s Phaedrus and Gorgias; in De oratore, however, while it is occasionally mentioned, it receives far less explicit attention.³³ The other reason is that emphasizing the Gracchi—thirty and forty years in the past—allows Cicero not only to stress his broad moral condemnation of their activities rather than their particular policies, but also to pass in relative silence over some of the other significant events and people of the period between the era of the Gracchi and September 91. In that connection, the trials not mentioned in De oratore gain in significance. For the period between 113 and 102, De oratore refers to only two criminal trials, one of them Caesar Strabo’s rapid mention in his discourse on humor of Memmius’ prosecution of Calpurnius Bestia under the Mamilian law in 109 (2.283, #44), and the other a reference by Crassus to Antonius’ commiseratio of Mallius Maximus in 103 (2.125, #26).³⁴

But while De oratore has only these two brief references to quaestio trials in this period, eighteen more are attested, and Cicero clearly knew of many of them as well. Four concerned alleged misbehavior of the Vestal Virgins: Crassus himself spoke on behalf of his relative Licinia, Antonius defended himself de incestu, and the prosecution of Fulvius Flaccus de incestu in 113 is one of the very few speeches mentioned by name in De inventione; the fourth was the prosecution of the vestal Marcia.³⁵ The first three of these are referred to elsewhere by Cicero—but despite the fact that his two protagonists were involved (and one was accused), there is not a word about them in De oratore. Memmius’ prosecution of Bestia receives a passing mention by Caesar Strabo, but we know of at least four more trials under the Mamilian Law (against the corrupt conduct of the war against Jugurtha), all of them attested in other works of Cicero.³⁶ Stories of the aristocracy under attack because of immoral behavior play a remarkably small role in De oratore, and when speeches or trials that might complicate the picture are mentioned, they are stripped of whatever larger significance they might have: Antonius was prosecuted for ambitus in (or perhaps just before) his censorship (2.274, #41), but all we hear about the case is a joke that Caesar Strabo reports.

In this connection, one political trial in which Antonius took part is perhaps indicative. As an illustration of types of utterance about which rhetoricians do not teach—and for which specialized rhetorical instruction is in fact unnecessary—Antonius adduces the importance of giving evidence properly (2.48, #19):³⁷

One often has to give evidence, and frequently it has to be done with some care, as was the case for me giving evidence against Sextus Titius, a rebellious and violent citizen. In giving my testimony I laid out the entire rationale of my consulate, according to which I had stood against that tribune of the plebs on behalf of the res publica, and I also set out the things which I thought that he had done against the res publica.

This does indeed describe a political trial, but as with the trial of Norbanus, it avoids any substantive political content: Antonius is a solid and patriotic citizen, resisting a violent and revolutionary tribune. In this, one could easily substitute either of the Gracchi for Titius, and we would know just as little about what they tried to do: from the point of view of Antonius—and of De oratore as a whole—the simple accusation of sedition and violence is enough.

The trial of Titius does have a context, but it is one from which, as in the case of the trials of the Vestals and the trials under the Mamilian Law, De oratore studiously averts its gaze. Titius was a follower of Saturninus, whose violent and disastrous tribunates are a very significant part of the background to the political situation in 91 in which De oratore takes place. But in De oratore, Saturninus is never named, and even Marius, who was forced to take military action against Saturninus, is scarcely mentioned: other than in Cicero’s own account of the aftermath of Crassus’ death in the preface to Book 3 (where Marius’ exile and return are mentioned rapidly and Sulla is passed over in complete silence) the great Marius appears only as a potential expert on military affairs whom an orator might consult (1.66),³⁸ as weeping at the trial of Aquillius (2.196), and as the source of a Cimbrian shield showing a Gaul making a funny face (2.266). De oratore is probably our most important source for the politics of the 90s, and that is why we know so little about the decade: Cicero quite deliberately chose to make the decade unpolitical. At the same time, however, Cicero makes enough references to the genuine political discord of the 90s to make it clear to the reader that he is aware, and that the reader should be aware, that the bland version of politics in De oratore is not completely truthful. De oratore refers to the prosecution of Titius, a trial mentioned in no other source; it provides considerable detail about the prosecution of Norbanus, again, a trial scarcely mentioned elsewhere; and, as will be discussed later, Antonius has a great deal to say about the prosecution of Rutilius Rufus. But events such as these, while they are not hidden, are never given a political context that might explain their significance; we are given a world in which the sharper conflicts among the participants in De oratore are smoothed over.³⁹ It is a picture of the end of a golden age whose only existence lies in Cicero’s construction of De oratore.

This self-conscious doubleness applies to the intellectual portraits of Crassus and Antonius just as much as to the political world they inhabit: they are true and false at the same time, and Cicero makes us aware of that. As with the account of Crassus’ death in Book 3, where Cicero carefully blends documentary narrative with emotional and personal reactions to events, so too in his account of Crassus and Antonius as orators in the preface to Book 2 he relies both on generally accepted knowledge about the two men and on his own experience, and he presents two quite different justifications for his belief in their oratorical excellence.⁴⁰ He begins by reminding Quintus that when he and Quintus were young, many people seemed to think that the amount of effort Cicero’s father was putting into young Marcus’ education was a waste of money and time, as Crassus and Antonius had become great orators although the former had only an elementary education and the latter none at all (2.1). This view of Crassus and Antonius matches fairly closely what the Crassus and Antonius of Book 1 say about themselves: in the course of the discussion in Book 1, Crassus emphasizes the limits of his education and knowledge some seven times, and Antonius speaks of his own lack of education three times, in addition to his more specific claims to know nothing about philosophy or law.⁴¹

Even as a boy, however, Cicero knew differently, because of the close connections (discussed above) between his family and Crassus and Antonius. Cicero himself, along with his Aculeo cousins, received part of his education under Crassus’ guidance and knew that Crassus spoke Greek like a native and was immensely learned: he could converse with our teachers, he says, in such a way “that nothing seemed new or unfamiliar to him” (2.2), while Antonius seemed to be able to answer any questions Cicero might put to him (3). The reason for the divergence between common opinion and reality was that Crassus did not mind being thought to know something, but he wanted to be thought to despise Greek learning in comparison to Roman prudentia, while Antonius thought that he would be more convincing as an orator if he seemed never to have studied at all: “and so each thought he would be taken more seriously, the one if he seemed to despise, the other if he seemed not even to know, the Greeks” (4).

In any case, Cicero goes on to assert, it is a fundamental tenet of the work he is now writing that nobody is capable of eloquence without education and indeed great wisdom (5: non modo sine dicendi doctrina, sed ne sine omni quidem sapientia), since the truly eloquent speaker must be able to talk about anything, and although there have been a great many successful speakers in both Greece and Rome who did not attain that level of sapientia, it is simply impossible that the paramount eloquence of Crassus and Antonius was not based on profound learning (5–6). He is therefore delighted to be able to preserve in this work the memory of their eloquence and to remove the false opinion that one was not very learned, the other plane indoctus; and preserving the memory of them is all the more necessary as they left very little in writing. The proof of their genuine eloquence, moreover, is that he is writing about men whom others still living had heard, and that they can therefore confirm Cicero’s account (7–9).

The arguments about the doctrina of Crassus and Antonius given here are not really compatible with one another. Cicero begins by conceding that most people think the two orators were of limited doctrina, but he uses his private acquaintance and that of his family to refute the general opinion. In other words, personal knowledge and his own memory of them guarantee the accuracy of his account of their learning. That is consistent with the third argument he gives, namely, that he is writing about men whom others also heard, and thus if he were not telling the truth he would be caught out. That is the argument that Sallustius, as Cicero reports his views in the letter to Quintus, clearly appreciates and remembers. But between the first and third arguments, Cicero offers a totally different argument based not on truth and personal knowledge but on the requirements of his own dialogue: he is trying to show that nobody can be truly eloquent without broad doctrina and sapientia, and therefore, for the purposes of De oratore, Crassus and Antonius had that qualification. In other words, while the framing arguments rely on historical truth, the central argument relies on rhetorical necessity: even if they were not as learned as Cicero makes them appear, it would be necessary for them to have been so for the sake of the argument. It is not, therefore, surprising that Cicero’s statement about the necessary range of knowledge of the orator here is basically the same as that made by Crassus in Book 1, or that Crassus and Antonius go on to demonstrate the kind of learning in philosophy, technical rhetoric, and a great deal more that Cicero tells us in this preface that they had—or at least that, for the purposes of De oratore, they must have had.

There can be no doubt that members of the Roman aristocracy had access to considerable amounts of Greek learning and literature by the middle of the second century; we do not know how widespread knowledge of Greek culture really was, and we certainly do not have specific knowledge about how well educated Crassus and Antonius really were in Greek rhetorical theory or philosophy. Each of them reports an encounter with philosophers in Athens in Book 1 (to be discussed in Chapter 5); Antonius reveals a detailed knowledge of rhetorical theory, including Aristotle, in Book 2, and Crassus gives a detailed history of the relationship between philosophy and rhetoric in Book 3. But Cicero can only justify such erudition through his claim that the two were well educated but chose, to one degree or another, to dissimulate that education. The Crassus and Antonius of De oratore are Cicero’s inventions, and how much truth underlies what they say in De oratore is unlikely ever to be discovered.

What does need to be kept in mind, however, is that both men are Cicero’s inventions, and each of them presents a coherent and cogent view of the orator’s training and obligations, and just as there is a certain dissonance between Cicero’s depiction of the relationship between Crassus and Antonius and the historical reality, so too, within De oratore, more than one image of them is offered. Crassus seems to be Cicero’s main representative, the person who exemplifies and delineates the perfectus orator with whom Cicero clearly, at least to some degree, identifies. At the same time, it is Antonius who is much more willing to teach and advise the young: Sulpicius goes to Antonius first for advice, and Antonius sends him to Crassus; Cicero himself has his education supervised by Crassus, but it is Antonius to whom he directs questions. Crassus is extremely reluctant to lecture about rhetoric to his young friends; it is only after intervention by Scaevola, polite pressure from all parties, and a degree of grudging embarrassment in the face of Antonius’ willingness to speak that finally forces Crassus to discourse on his ideas about oratory. Before he finally embarks on his discussion of elocutio in Book 3, he has been pushed toward speaking, and generally avoided doing so, nine times in the first two books.⁴² In Book 1, when he does give in to pressure, his account of rhetorical theory is so rapid, so cursory, and so abrupt that his hearers are dissatisfied; that happens twice, after his summary of the ars and after his list of other kinds of knowledge needed by the successful orator (1.148, 1.160–65). Some of that is part of Cicero’s portrait of the social manners of the Roman aristocracy, as Jon Hall has shown; but some of it is Crassus’ simple reluctance to educate the men he claims to want to educate. Crassus may be the great orator, but he is not an easy person to learn from. Antonius is.⁴³

In some respects, Antonius and Crassus are complementary characters and have complementary views of oratory and rhetoric; but in others, they seem more antithetical.⁴⁴ Not only do they behave very differently from one another in their relationship to their acolytes, but the speeches they cite show very different ways of looking at oratory. Crassus refers to some eighteen speeches with identifiable venues; of those eleven are civil cases and only three are public speeches.⁴⁵ Antonius, in contrast, brings up only one civil case on his own initiative (two other passages refer back to cases already mentioned by Crassus) but eight public speeches. Several of Crassus’ own speeches in public and in the senate are mentioned—his speech on the lex Servilia is quoted by Antonius (1.225–27, #13); his altercation with his censorial colleague Domitius Ahenobarbus is quoted by Antonius (2.45, #18) and mentioned again by Antonius (2.230) and by Caesar Strabo (2.242); his last two speeches in the senate are mentioned and quoted by Cicero in the preface to Book 3 (3.3, 3.5–6)—but Crassus himself never refers to them.⁴⁶ Indeed, although we know of sixteen speeches by Crassus, and eleven of them are cited in De oratore, he himself refers only to his first speech, the prosecution of Carbo, and to his speech in the causa Curiana.⁴⁷ That is not just modesty; most of Crassus’ references to forensic speeches occur in his discussion of the importance of the ius civile in Book 1, where twelve cases are mentioned; aside from that, he refers only to his prosecution of Carbo, and, in one short passage, to four of Antonius’ speeches, in the trial of Norbanus (2.124–25, #21) and in the repetundae trial of Aquilius (2.124, #25), and his two speeches of commiseratio for Mallius and Marcius Rex (2.125, #26 and #27). For the Crassus of De oratore, public speaking is simply much less important than it is for Antonius.

Crassus’ idea of oratory, to judge by his illustrations, is heavily weighted toward cases under the ius civile rather than the criminal law of the quaestiones or public oratory. By contrast, of the eighteen speeches to which Antonius refers, seven were delivered in public or in the senate and eight were in quaestiones. One can look at the contrast in another way: Antonius takes his illustrations of rhetorical theory from speeches, with very occasional citations of poetry; but when Crassus discusses elocutio, he cites six words from the historian Coelius, four words from an oration by Fannius, but twenty-one illustrations from poetry;⁴⁸ on actio he cites the one famous passage of Gaius Gracchus but seven examples from poetry.⁴⁹

All this is completely consistent with the topics they speak about, but it also reflects the broader picture of the two orators throughout De oratore: Crassus’ focus is on what the orator needs to learn, with great attention to the civil law in Book 1 and equal attention to philosophical training in Book 3. His ideal orator (on whom see below, Chapter 4) is a master both of rhetorical method and of the substantive content about which he speaks; Crassus repeatedly refers to the need for good oratory to contain both res and verba. Antonius, on the other hand, constantly emphasizes the strategies of argument and arrangement that result in a convincing speech. Antonius is interested in the working advocate in Rome; Crassus’ more abstract concern is the ideal orator. Crassus looks at the orator in terms of knowledge and aesthetics, the internal qualities of mind and man; Antonius’ orator has to function in the real world of Rome, delivering speeches that can sway a popular audience or a criminal jury. Knowledge matters to Crassus, while effect matters to Antonius.

Cicero knew Crassus and Antonius; they assisted in his education, they were closely associated with members of his family, he heard them speak, and he experienced their sudden deaths. In the preface to Book 2, Cicero calls upon still-living witnesses to attest to the veracity of his account of the two great orators, but at the same time, he repeatedly draws the reader’s attention to the complexity and ambiguity of that account, that it is based on memory as well as report, on emotion as well as evidence, on the requirements of his argument as well as on historical truth. In any case, although he certainly knew and heard them, he knew them only as well as a fifteen-year-old can know someone at least thirty years older than himself. Both the framework of the dialogue and the wisdom and knowledge ascribed to its speakers are partially truthful and partially imagined. Crassus and Antonius appear in hindsight to be just as wise and learned as Cicero himself—as they should, because he has created them. But it is important to remember, in examining the argument of De oratore concerning the place of rhetoric not only in the structure of knowledge but in Roman public life (as will be done in the next three chapters), that Cicero created both Crassus and Antonius and gave each of them a complete and complex understanding of what it means to be an orator. Despite Cicero’s obvious identification with Crassus, he did not necessarily mean us to accept Crassus’ orator as the only possibility. Antonius was, after all, a much better teacher than Crassus—and probably a better advocate as well.

1. For detailed lists of speeches and trials in the period from 149 bce to September 5, 91 bce that are (a) mentioned in De oratore or (b) known from any source, see Appendix. References to speeches in De oratore in this chapter are given by number, according to the list. I note here that although there are in fact fifty-seven speeches or trials mentioned in De oratore, I exclude from the present discussion six of them: the five speeches given after the dramatic date of De oratore described by Cicero himself in the preface to Book 3, and the elder Scipio Africanus’ encounter with M. Naevius (in a contio or iudicium populi) in 187 bce which is more than thirty years earlier than the next mentioned speech.

2. On the problem of Scaevola’s age, see Sumner 1973: 55–57; noted also by Perrin-Saminadayar 2017: 115.

3. He was also willing to manipulate the facts of his own life to construct a satisfactory narrative of his education in the Brutus; see Badian 1969: 454–58 and now van den Berg 2021. It is not unlikely that he did so in the prefaces of De oratore as well.

4. Thirteen of the fifty-one speeches and trials mentioned in De oratore appear more than once, but only five appear more than three times. Carbo’s defense of Opimius (#23) appears five times; Crassus’ prosecution of Carbo (#1) appears four times, as does Catulus’ response to an interrogation by Philippus in a quaestio (#31). It is no accident that in ten of these thirteen instances at least one of the participants in De oratore is involved in the event referred to.

5. The causa Curiana is still much discussed. See the clear and succinct account of its legal importance in Frier 1985: 135–37; different aspects of the case are also treated by Vaughn 1985, Könczöl 2008, and Negri 2009.

6. A brief summary of the background to the case in Badian 1964: 35–36.

7. In addition to the trial of Norbanus, the other three speeches or trials that receive extended discussion are Crassus’ speech in favor of the lex Servilia Caepionis in 106 (1.225–27, #13), the trial of Rutilius Rufus for repetundae in 93 (1.229–33, #16); and M. Brutus’ prosecution of Planc(i)us (2.220–26, #30). All four involved one of the participants in De oratore. On Antonius’ treatment of Crassus’ speech for the lex Servilia and the trial of Rutilius Rufus, see below, Chapter 6.

8. Valerius Maximus 8.5.2 offers the information that Aemilius Scaurus was a witness at the trial, but that is derived from De orat. 2.203.

9. A great deal has been written about this trial in the context of the politics of the 90s; the most influential account (with which I generally agree) is that of Badian 1964: 34–70 (originally published 1957); Gruen 1966: 43–47 takes the evidence of De oratore as objective fact. It should be emphasized that I make no attempt to explain the actual politics of the 90s; I am interested in Cicero’s representation of the period.

10. Arweiler 2003: 213–14 is wrong to say that Cicero thought that Norbanus was wrongly acquitted; he notices, but is unable to explain, the amount of attention given to Antonius’ speech.

11. For a text of the fragments, see Crawford 1994: 72–96.

12. According to TLRR, nine possible maiestas trials are known from the period of Cicero’s forensic activity. Cicero is associated with four, but a proposed prosecution of Verres (TLRR 179) did not take place; he is no longer believed to have defended the tribune Manilius (TLRR 210); and the charge against Cicero’s consular colleague C. Antonius (TLRR 241) may have been either maiestas or vis. That leaves the defense of Cornelius (TLRR 209) as the only maiestas trial in which Cicero definitely took part.

13. F5 of Pro Cornelio, Maiestas est in imperi atque in nominis populi Romani dignitate, quam minuit is qui per vim multitudinis rem ad seditionem vocavit, is quoted by Cicero himself (Part. orat. 105) as a paraphrase of an argument from Norbanus’ speech, but it is associated with Pro Cornelio by Quintilian 7.3.35. It is generally taken to be a fragment of Cicero, but the problem of its relationship to the trial of Norbanus has never been thoroughly examined, and Crawford’s edition includes too little of a complicated text.

14. A convenient stemma of Cicero’s family at LPW 2: 189.

15. With the obvious limitation that Crassus died when Cicero was fifteen.

16. Dyck 1998: 158 refers to “the famous rivalry of Crassus and Antonius in the courts.” Rivals perhaps, but not (so far as we know) opponents.

17. For discussion, see Dyck 1996 on Off. 3.67. He believes that Antonius won, but not everyone agrees: Cicero could have been much clearer about the outcome had he wished.

18. A clear explanation of the family in Dyck 1996 on Off. 3.80; see also Rawson 1975: 1–11 on the background and connections.

19. On Gratidius, see Brut. 168, Leg. 3.36.

20. Notably, the younger M. Marius (the great Marius’ son) was married to Crassus’ daughter.

21. Cf. TLRR 115.

22. The one participant whose end is not mentioned in the preface to Book 3 is Scaevola Augur, who seems to have died without assistance in 88 or 87. Cotta was merely exiled and came back to become consul in 75.

23. For a recent account, citing earlier bibliography, of Sulpicius’ role in 88 (and in De oratore), see Hodgson 2017b: 165–68. For more detail on the events of 88, see Mitchell 1975, and on the chronology and Sulpicius’ alliance with Marius, see Badian 1969: 481–90. Some of Badian’s interpretation of the politics is fairly speculative, but his reconstruction of the basic facts and chronology is convincing, and more recent studies have added little.

24. Hall 1994: 219–20 sees a connection between Sulpicius’ violent actions after 91 and his apparent rudeness to Crassus at 3.147 in rejecting philosophical training as important for the orator. That link is unlikely, and Crassus’ response to Sulpicius at 3.148 is fairly rude and dismissive itself.

25. It should be pointed out that while modern scholars disagree over whether Sulpicius or Strabo behaved improperly, all agree that at least one of them did.

26. The one exception is that Scaevola at 1.40 is the first person to mention Crassus’ prosecution of Carbo (#1), but it is subsequently cited by both Crassus (1.121, 3.74) and Antonius (2.170).

27. The five speeches referred to by Cicero at De or. 3.2–6 (#49–53) are Philippus’ public attack on the program of Livius Drusus; Drusus’ speech in the senate against Philippus; Crassus’ first speech in the senate on Sept. 13, 91; Philippus’ reply; and Crassus’ final speech. I note again that I am also omitting the anecdote about the elder Africanus from 187 bce (#33).

28. No speaker: #3, 4, 5, 6, 11, 12; supporter of Metellus Numidicus: #29.

29. It should, however, be noted that of the fifty-four speeches not mentioned in De oratore but attested in other works of Cicero, thirty-three are attested before the civil war, twenty-one only later (ten of them in the Brutus). It is therefore not necessarily true that Cicero knew those twenty-one at the time he wrote De oratore.

30. A significant portion of the public speeches not found in Cicero consists of speeches of Gaius Gracchus largely reported in historical sources: some twenty speeches (all but one public) are known, but only six are mentioned by Cicero at all and only one in De oratore. Likewise, it is perhaps not surprising that civil cases are not reported in historical sources.

31. It may also be significant for Cicero’s choice of trials in De oratore that in the later rhetorical work Partitiones oratoriae, Cicero (104–5) referred to the trial of Opimius and the trial of Norbanus together as examples of two of the basic staseis; they were very famous trials. On the case of Mancinus, see below, Chapter 6.

32. The most useful discussion of Cicero’s attitudes toward the Gracchi is Gaillard 1975; on this passage Gaillard 1975: 512–14. It is perhaps also worth noting that Scaevola then (1.40) refers to Crassus’ prosecution of Carbo, a not unrelated trial.

33. On the lack of emphasis on the morality of the orator, see further below, Chapter 7.

34. On the nature of the trial (quaestio, not iudicium populi), see Appendix #26. It has been suggested (but I do not think it likely) that this was actually a part of the defense of Norbanus in 95.

35. Inv. 1.80 (TLRR #44), also quoted without naming the occasion in Ad Her. 2.33. The shared example probably comes from the common source of Inv. and Ad Her; see Matthes 1958: 90n. The other two are not referred to until the Brutus.

36. Two are attested in speeches before the civil war, two only in the Brutus.

37. Caesar Strabo later (2.253, 265) cites two jokes from the same incident.

38. Hodgson 2017b: 174 rightly points out the dramatic irony of Sulpicius being advised to consult Marius as a military expert.

39. Since De oratore is often used as evidence for the politics of the 90s, it is important to recognize that the uncertainties of modern reconstructions of the decade are at least in part the result of Cicero’s quite deliberate obfuscation of the personal and political relationships of the men portrayed in De oratore. For a sensible and cautious analysis of what we do in fact know, see Kallet-Marx 1990.

40. For a good analysis of the mixture of wit and seriousness in the preface to Book 2, see LPW 2: 186–89. Stull 2011: 253–57 offers a somewhat different interpretation.

41. Crassus: 1.71, 78–79, 99, 101, 111, 130, 159; Antonius: 1.82, 98, 208.

42. The passages (collected by Hall 1996: 96) are 1.96–107, 1.133–34, 1.160–65, 1.205–7, 2.13–27, 2.121–28, 2.233–34, 2.350–51, 2.361–67.

43. Hall 1996: 104 n. 22 adduces Brutus 207, that Antonius was facilis in causis recipiendis, while Crassus was fastidiosior.

44. Arweiler 2003: 277–83 rightly rejects the view that Cicero’s ideal is a synthesis of Crassus and Antonius, but he is wrong to see Antonius as a representative of a “prescientific” rhetoric that is (politely) rejected and defeated by Crassus on Cicero’s behalf. It is hard to imagine why Cicero would devote so much attention to a view of oratory he meant to reject.

45. Crassus refers to C. Fannius’ speech de sociis et nomine Latino against Gaius Gracchus (3.183, #54); to Gaius Gracchus’ last speech (3.214, #55); and to Hortensius’ speech pro Bithyniae rege (3.229, #57). All are at the very end of the dialogue, and two of the three concern the Gracchi.

46. He obviously could not have referred to the speeches delivered after the dramatic date of De oratore.

47. Crassus mentions his prosecution of Carbo twice (1.212, 3.74, #1) and the causa Curiana twice (1.180, 2.24, #9). ORF itemizes fifteen speeches, but includes only one delivered in his last Senate appearance (so too Manuwald 2019); Cicero’s account makes it clear that he spoke twice, both before and after Philippus spoke, with his second (quoted) speech being fatal.

48. Coelius: FRHist 15 F47; Fannius: ORF 32.2 (#54); poetry: in 3.154–83, Ennius’ tragedies are quoted five times, his Annales three times, and his Scipio twice; Pacuvius and Lucilius are each quoted twice, and tragic fragments of unknown origin seven times.

49. Gracchus: ORF 48.61 (#55) at 3.217; in 3.217–19 he quotes from tragedy only: Accius three times, Ennius twice (although one of the quotations is in fact three different excerpts from the Andromacha), Pacuvius once, and one fragment of unknown origin.