6
by the end of the first part of Book 1 of De oratore, the issues have narrowed to a discussion of oratory itself: Antonius has quoted (and implicitly disowned) his own earlier statement contrasting the many diserti with the not-yet-existing eloquens (1.94) and he has suggested that if there actually is one, it is Crassus. At that point, the group prevails on Crassus actually to talk about the orator and his training; he responds with the rapid-fire sketch of rhetoric discussed above in Chapter 4. Crassus’ treatment of rhetorical theory and training ends with his list of the kinds of exercises that budding orators should use (exercitatio), but he then adds what appears to be an appendix to the account of rhetoric: he gives a list of subjects that the orator must master, delivered in a remarkable series of seventeen gerundives (1.158–59), including everything from poetry and history to public documents and introducing the major topic of his last speech in Book 1, the ius civile.
Crassus’ list of required readings is the end of his explanation of rhetorical education, and it is daunting to his young friends. Homeric silence ensues: Haec cum Crassus dixisset, silentium est consecutum (1.160; cf. Odyssey 13.1). Only after that does Scaevola prompt Cotta to ask for a little more detail. Cotta, indeed, is so stunned that he turns to Scaevola to make the request: “Make Crassus expand and open up the things he compressed and squeezed tight in his speech” (1.163). And after a little more coaxing, Crassus agrees to illustrate what he meant by showing how necessary knowledge of the ius civile, Scaevola’s own field of expertise, is for the orator.
What follows is in fact a matched pair of speeches. Crassus explains the importance of law to the orator, but at the end of his speech he enlarges that to encompass a wider range of learning. The ensuing discussion provokes Antonius into responding not only to Crassus’ entire account of rhetorical training and the associated requisite areas of expertise but also quite specifically to Crassus’ claims about the orator’s need to know the ius civile. The speeches of Crassus and Antonius are extraordinarily important within De oratore: not only are they the only place in De oratore where the two protagonists set out their opposing views of oratorical education, but they are also the only representation in De oratore of the kind of debate in utramque partem characteristic of the New Academy of Arcesilaus and Carneades, the school of which Cicero himself was an adherent.
These two speeches of Crassus and Antonius, individually and as a pair, raise questions far more pointed than the broad discussion of rhetoric and philosophy at the beginning of the book. What is the relationship between all the Greek learning that has been explored so far and the Roman context in which it is to be used? More broadly, how do Greek borrowings fit into the construction of Roman intellectual life? More narrowly, what kind of model is Socrates for a Roman statesman? The pair of speeches is the first significant introduction of Rome itself into the argument. Scaevola, in his rebuttal of Crassus’ initial grandiose claims for oratory, used a few Roman examples to show that statesmanship and oratory were not the same thing (1.37–40); Crassus similarly mentioned a few Roman statesmen and the authors of the Twelve Tables as parallels to Greek sages and orators (1.58); and there are a few other references to Romans or Roman institutions in his treatment of rhetorical theory. In that respect, the last part of the book is very different: it brings oratory home.
The relative absence of Rome earlier in Book 1 also means that, even though standard (Hermagorean) rhetorical theory dealt almost exclusively with courtroom oratory, Crassus’ argument that a lawyer must know the ius civile is the first time in De oratore that there is any discussion of actual lawsuits. That is itself of some importance: the argument about the sufficiency of rhetorical theory depends not only on the role of thesis and ethical argument, but on the context in which oratory is in fact used: to what extent are particular trials isolated from broader social or ethical issues? In that connection, it is necessary to look fairly closely at some of the cases that Crassus and Antonius discuss.
Crassus’ speech falls into two parts, framed by a short introduction (1.166–72) and a slightly longer conclusion (1.198–203): the two central arguments are first, that orators need to know civil law because not to know it is a sign of impudentia and a failure to help one’s friends and clients (1.172–84); and second, that because civil law is not that difficult to learn, not to do so is a sign of inertia (1.185–97).1 The speech begins with a pair of legal anecdotes showing orators embarrassing themselves and their friends through procedural ignorance; the argument against impudentia that follows consists of a set of ten anecdotes about legal cases, intended to show that because apparently minor cases frequently involve issues of larger import, someone interested in larger legal and ethical issues needs to understand the small cases from which they arise. The argument against inertia and the conclusion significantly extend the argument to explore the aesthetic and moral importance of the ius civile.
From the outset, Crassus’ speech shows that he places the bar of necessary legal knowledge very high. He begins by reminding Scaevola of a case that had taken place long before, at least thirty years before the dramatic date of De oratore, probably in 127 or 126 (1.166–67, #2).2 The case itself seems straightforward. M. Plautius Hypsaeus (consul 125) appeared before the praetor M. Licinius Crassus, representing an unnamed minor bringing an actio tutelae against the (also unnamed) guardian of the child; the guardian was represented by M. Octavius (consul 128). The procedure to be followed in the subsequent apud iudicem proceedings would be a legis actio in accordance with the Twelve Tables. Also in accordance with the Twelve Tables, the maximum penalty that could legally be demanded for the mismanagement of tutela was double the amount of the alleged loss;3 but in this case Hypsaeus ignorantly asked the praetor to set a higher figure. Octavius in response argued (quite correctly) that the penalty Hypsaeus had proposed was excessive. But in fact, in this exchange both advocates failed their clients and demonstrated their own incompetence: Hypsaeus, for the plaintiff, did not realize that if the praetor accepted his proposal, then his client would automatically lose the legis actio because the penalty proposed did not conform to the law; Octavius, for the defense, did not realize that if he let Hypsaeus’ excessive penalty stand, then he would automatically win the legis actio for the same reason.
All this is complicated enough, and it can be inferred from the explanation that Crassus ultimately provides at the end of the anecdote. But his initial account is a riddle, not a lawyerly exposition of the issue (1.166):
Can you think of those men as orators whom Publius Scaevola waited for hours, laughing and grousing, when he was rushing off to the Campus, when Hypsaeus used a loud voice and a great many words to demand from Marcus Crassus the praetor permission for his client to lose his case, while Gnaeus Octavius, an ex-consul, took just as long to disagree, so that his opponent would not lose his case and so that his own client would not be released from a judgment of mismanaging the property of his ward and be freed from all that trouble by the stupidity of his opponent?
Scaevola’s reply shows that he remembered the case, but anyone unfamiliar with it (including not only the participants in the conversation but most readers of De oratore ever since), would find this description close to impenetrable, and it is only clarified by the exegesis Crassus offers after Scaevola’s reply. The procedures of the law, while fairly technical, are lucid in comparison with Crassus’ exposition of them.
Crassus’ second illustration of legal ignorance is less antiquarian, and seems to be a case that had arisen earlier in 91 (1.168–69, #3). Neither the advocates nor the plaintiff and defendant are named, but this time Crassus himself had been present in the consilium of the urban praetor. The plaintiff appears to have demanded repayment of a loan, and the advocate for the defendant asked that the exceptio known as cuius pecuniae dies fuisset (“the money due that day”) be added to the judicial formula. The difficulty here, as Crassus explains, is that the exceptio in question was a limitation on behalf of the plaintiff: if somebody should sue for repayment of part of a debt when another portion of it was not yet due, then this clause, intended to limit the claim made in the suit to the amount of money due at that particular time, would block the defendant from either claiming that the plaintiff was demanding repayment of a larger amount than was due or, at a later date (if the plaintiff sued the defendant again for the balance of the debt), claiming that he had already been sued for the same debt. For the defendant to use it would be doing the plaintiff’s work for him.
While these two cases certainly mattered to the individuals involved (if the defendant in the tutela case lost, he would incur infamia), they are not of great significance and give little scope for oratorical display. In the first case, to be sure, both advocates are described as being long-winded (plurimis verbis and non minus longa oratione, 1.166) and in the second the legal ignoramus is described as homo ex numero disertorum (1.168), but both cases only concern a procedural motion at a preliminary hearing, not an argument about the merits of the case itself. It is just the kind of pettifogging legal formalism that Cicero had so effectively derided in Pro Murena in 63 bce.
For Crassus to begin his lecture on the importance of law for the orator with these two minor cases deserves explanation. In context, it seems to be intended as a compliment to Scaevola, an expert on the ius civile who would appreciate the finer points of procedure. The first case is one that Scaevola could remember, from a time when Crassus and Antonius were too young to have been involved in court cases but Scaevola was himself very active. The two cases taken together also display a certain comprehensiveness: one involves the old procedure of legis actio, by Cicero’s time largely obsolete, while the other is part of the later formulary system, dominant in Cicero’s time. The discussion of a failure to understand legis actio procedure seems like an antiquarian exercise, although as noted, it may be a gesture to Scaevola. But the moral of these two anecdotes is clear: any competent advocate needs to know both kinds of procedure.
Even in this light, however, these cases are puzzling. Not only are they unimportant, particularly in comparison with other cases discussed in De oratore, but they have very little to do with oratory. Crassus himself seems to recognize that: the conclusion he draws from these cases is that such incompetent advocates are violating their duty of trust to their clients and friends (1.169):
What can possibly be done or said more disgraceful than for a man who has undertaken the role of protecting his friends in their quarrels and lawsuits, of helping those who are in trouble, of caring for the sick, lifting up the downtrodden—for that man to make such slips in tiny matters that he seem pitiable to some people and ludicrous to others?
Both legal advice and forensic oratory may need to be deployed at times to aid one’s friends, but that does not mean that legal and rhetorical expertise are the same thing, or that one entails the other; Cicero himself ridiculed that kind of argument in Pro Murena. What is more, Crassus’ own rhetoric here is characteristically hyperbolic (and that it is characteristic of him, Antonius will make clear in his response): caring for the sick and raising the downtrodden are certainly friendly acts, but they have no more to do with oratorical skill than does detailed knowledge of legis actio procedure. Crassus is describing not the requirements for being a good orator but the requirements for being a good friend or patron in the aristocratic society of Rome, the obligation to maintain fides and help those whom you are supposed to help. That is a fine thing in itself, and it sometimes involves speaking for one’s client in court, but it is not part of rhetoric; rather, being willing and able to speak competently for a friend or client was among the normal social obligations of a Roman senator.
In this argument about the social or moral obligation to know the law, Crassus makes an exception (possibly ironic) for Antonius: he is so smart that he can defend his friends without it; for others, however, not to know law is a sign of inertia and impudentia (1.172). He elaborates: for someone to take part in public life requires knowledge of law, and to do so without legal knowledge is plain impudentia (1.173). But his description of the kinds of things a person has to know goes in two directions: on the one hand, he claims, rightly, that many private cases concern not arguments about facts, but about aequitas and ius, and hence that it is more important to know the law than it would seem at first glance. On the other hand, the list of the kinds of cases that come before the centumviral court and which one might have to know something about in order to make an argument is truly odd. Crassus lists twelve kinds of case (all given as nouns in the generalizing genitive plural). Of these, six (usucapionum, tutelarum, agnationum, nexorum, mancipiorum, testamentorum ruptorum aut ratorum) have to do with inheritance and property ownership, things about which most wealthy Romans would probably know something. Others, however, are fairly specialized: five involve property servitudes (adluvionum, circumluvionum, parietum, luminum, stillicidiorum)4 and one involves a relatively obscure aspect of inheritance rights (gentilitatum). Stillicidia and parietes, in fact, are among the trivial legal concerns that Cicero mocks in De legibus 1.14. Of the twelve words (the morphological forms themselves) in this list, fully half—usucapionum, gentilitatum, agnationum, adluvionum, circumluvionum, and (testamentorum) ratorum—are attested nowhere else in Latin literature, not even in Gaius or the Digest. Usucapio, aside from one other passage in Cicero and one in Porphyrio’s commentary on Horace, is found otherwise only in legal texts; circumluvio is found only here; even familiar words such as lumina are relatively uncommon in the technical sense used here, referring to an urban servitude guaranteeing that light to the dominant property will not be cut off by a servient property.
Furthermore, even in the first two, procedural cases described by Crassus, there is a degree of lexical eccentricity: Crassus uses the word defendere to refer to Hypsaeus’ representation of his client even though he was the plaintiff’s advocate,5 and he describes the motion by the defendant in the second case as a vetus atque usitata exceptio even though exceptio normally refers to additions to the formula by the plaintiff, not the defendant, and in the one other reference to this particular clause, Gaius calls it a praescriptio.6 Both usages are certainly possible in Cicero’s time: Cicero has Crassus again use defendere to mean “represent the plaintiff” at 1.178, and in several passages he uses exceptio to mean any modification to a standard legal formula. Nevertheless, such unusual usage hardly improves the comprehensibility of the examples. Crassus likes lists (witness the seventeen gerundives not much earlier), and he likes to show off his knowledge. But there is a distinct possibility that his showing off sometimes goes beyond the limits of his knowledge. He is, after all, a successful orator, and display is itself an effective oratorical technique.
Crassus justifies his list of legal problems in two ways: in the first place, he says, they contain large issues, involving quid suum, quid alienum and whether someone is citizen or foreign, slave or free (1.173). That is true for some of the items, but there is some distance from the rules governing water dripping from one person’s roof onto another’s property (stillicidium) to the distinction between what is mine and what is yours, and making that leap is a matter of rhetorical sleight of hand, not legal learning. Crassus’ second argument is by analogy: one would no more trust a major case to someone who makes a mistake in writing a will than one would trust someone to steer a warship if he has no experience in a rowboat, duorum scalmorum navigium (1.174). That argument is obviously specious; he then reverts to the more convincing one, that small cases do indeed contain large issues. That too is not really germane: it shows that minor cases have room for grand oratory, but not that orators need to take minor cases (and master the legal details) to find an occasion to speak. Legal knowledge, indeed knowledge of any kind, is no doubt useful to the orator; but as Antonius will argue in response, that does not mean that legal expertise is a necessary element of oratorical competence.
Crassus illustrates his argument that private cases involve large issues by rapidly reviewing ten legal problems.7 They are grouped, but not altogether systematically. The first three (1.175–77, ##4–6) concern matters of inheritance: an anonymous case in which a soldier is falsely reported to have died, leading his father to omit him from his will; one in which the patrician and plebeian Claudii quarrel over whether the right to inherit from a freedman’s son belongs to the gens or the particular branch of a family; and one concerning a patron’s right to the inheritance of a foreigner who was in Rome as an exile from his original home.8 These three cases are not anchored to particular people or dates, and together they occupy only nineteen lines of text. The next two (1.178–79, ##7–8) concern defects in the sale of houses, both involving servitudes; they are minor cases, but closer to home: in the first, the advocates were Antonius and Crassus himself, and in the second, Crassus describes one of the parties as a familiaris.9 They are again brief, a total of sixteen lines.
At this point, the grouping by subject breaks down, and the two cases that follow are given the most space (16 and 13 ½ lines respectively). The first of these (1.180, #9) is the causa Curiana, discussed earlier: it was probably the most famous civil lawsuit of the age, and at least in De oratore Crassus was clearly proud of having defeated in court the greatest jurisconsult of his generation.10 The other (1.181–82, #10) is very different. C. Hostilius Mancinus as consul in 137 was defeated by the Numantines and then made a treaty in order to preserve his army. When he returned to Rome, the senate repudiated the treaty and sent him back to the Numantines as a prisoner; the Numantines unsurprisingly found him an insufficient substitute for the army they had captured and the advantageous treaty they had made, and they sent him back to Rome. The next year the tribune P. Rutilius stopped Mancinus from entering the senate on the grounds that he had lost his citizenship in being surrendered to the Numantines and had no right of postliminium.11 Although Crassus does not say so here explicitly, there was subsequently a trial before the centumviral court, at which Mancinus’ claim of citizenship was supported by the jurisconsult M. Brutus and opposed by the jurisconsult P. Scaevola; Mancinus apparently lost, but his citizenship was restored by a special law.12 The legal issue of postliminium is significant for ransomed prisoners of war, although the specific issue of generals being turned over to the enemy by the fetiales was obviously not an everyday occurrence. In this case, however, the personalities involved matter more than the narrow legal issue: the person who actually negotiated the treaty with the Numantines on behalf of Mancinus was his quaestor, Tiberius Gracchus, and there was serious consideration of sending him back to the Numantines along with Mancinus; some accounts suggest that it was this sequence of events that turned Tiberius against the senatorial oligarchy, and whether or not that is true, the Numantine treaty and the case of Mancinus are certainly part of the immediate background to the tribunate of Tiberius Gracchus only three years later.13
The final problems (1.182–83, #11–12) mentioned by Crassus are much less significant. The case of Mancinus reminds Crassus of another instance of postliminium;14 the next case concerns the precise moment (when freed, or when enrolled by the censor in the next lustrum) at which a freedman becomes free; and the final case is about the testamentary problems posed by a man with two wives, one in a province and one in Rome. The three together occupy only as much space as the causa Curiana; none of them is attached to a name or a date. Crassus ends this portion of his speech by reiterating the shamefulness of failing one’s friends and clients through not knowing the law. As Antonius’ response (discussed below) will show, however, ignorance of the law is not at issue in such matters: the social obligations involved are significant, but the legal questions, by and large, are not.
The second half of Crassus’ speech, when he moves from impudentia to inertia, is equally unsuccessful in showing that legal knowledge is necessary for successful oratory. The attack on impudentia consisted of specifics: two cases of procedural error followed by a list of types of civil cases and a set of ten illustrations. The attack on inertia (1.185–203) is much more general: Crassus first emphasizes how easy law is to learn—or rather, how easy it would be if it had the logical organization that now exists for other disciplines such as grammar. He then moves from the ease of learning the ius civile to the pleasures that arise from knowing it before concluding his speech by drawing attention to the honors brought by legal expertise and the importance of knowing public law for anyone undertaking a public career (1.201–3).
Both parts of this argument (from ease and from pleasure) are significant within De oratore as a whole. Crassus begins from the potential logical simplicity of Roman civil law. He starts from a historical explanation of the disorganization of the ius civile: long ago, the veteres who knew the law did not want its forms made public, but then after Cn. Flavius made the actiones public, nobody tried to set it out as an ars. The reason for that, according to Crassus, is simply that they did not yet have any model for creating an ars: in other words, there is an ars for writing an ars. He illustrates this (1.187) with examples from music, geometry, astronomy, grammar, and rhetoric itself: each of these, at one point, consisted merely of unorganized and disparate elements (rhythms, notes, and modes in music; studying poetry and history, the meanings of words, and pronunciation in grammar; the usual five officia in rhetoric) but each was turned into an ars by the analytic method drawn from philosophy. Turning to law, Crassus first defines it according to its purpose, “the preservation of legal and customary equity with regard to the property and lawsuits of citizens” (188), and describes what an ars of ius civile would look like, divided into genera and partes and then supplied with examples (188–90). Crassus would do this if he had time, but it will probably fall to someone else. Meanwhile, however, until that is done, law is still not difficult to learn; you can pick it up from various books, it’s all obvious and out in the open in public life, and the books about it all say the same things anyway (191–92).
The purpose of this digression is uncertain. It serves to characterize Crassus as a logical, even philosophical thinker, capable of rationalizing law; it may point to Cicero’s own lost De iure civili in artem redigendo; it may be a compliment or encouragement to Cicero’s friend and contemporary Ser. Sulpicius Rufus, whose ability to apply dialectical reasoning to the organization of law he praises in the Brutus.15 Within the dialogue, it is consistent with Crassus’ contemptuous dismissal of lawyers ignorant of civil procedure by suggesting that this material is not particularly demanding. It is also consistent with Crassus’ first speech in praise of eloquence: he inevitably raises the particular to a plane of high generality; he looks for abstract structures to define and order the specific rules and facts of the intellectual world. But while Crassus’ approach is lofty and in many ways admirable (and is admired by his interlocutors, with the notable exception of Antonius), it shows only that knowledge of the ius civile is feasible for an orator, not why it might be essential to him. Crassus’ understanding of oratory, here and even more so in Book 3, is far more aesthetic than it is practical.
Indeed, as his speech in favor of the law moves toward its climax, it is increasingly the aesthetic and intellectual pleasure of the law that he emphasizes. After pointing out, at the end of his excursus on the ordering of a legal ars, that there is not really that much to read and that legal writers are repetitive (1.192), he adds one more reason that law is easy to learn: “There is one more thing (although most people don’t think so) that makes the civil law easier to learn and understand: there is an amazing pleasure and delight in learning it” (193). It is hard to imagine many struggling advocates, then or now, taking aesthetic delight in the rules of civil procedure, which Cicero himself ridicules more than once: Crassus again shows himself to be operating on a different plane from most people.
According to Crassus, three types of delight derive from study of the civil law, carefully articulated in a tricolon crescendo with anaphora of sive quem (1.193). The first source of pleasure is antiquarian curiosity: Sive quem haec Aeliana studia delectant. . . . The ancient laws and religious books (texts studied by Cicero’s and Varro’s teacher L. Aelius Stilo, hence Aeliana studia) preserve the image of antiquity (antiquitatis effigies) through ancient words and old legal formulae which reveal the lives and habits of our ancestors.16 The second source of pleasure is civilis scientia; this rather vague description presumably refers to the legal and institutional structure of civic life as revealed in the Twelve Tables, as opposed to the antiquarian knowledge of ancient customs that Stilo studied, also found in the Twelve Tables.
The third source of pleasure, which receives considerably more space than the other two combined, is a surprise: the Twelve Tables as a source for philosophical knowledge. Here, for the first time in De oratore, there is a clear and deliberate syncrisis between Roman and Greek culture, in two parts. The first concerns the Twelve Tables themselves (1.193–95):17
. . . or if someone takes pleasure in philosophy, that powerful and boastful thing—I will speak boldly—he has here the sources of all their lectures, bound up in the civil law and the statutes. From them we see that honor is the thing most to be sought, since true virtue and honorable toil are rewarded with offices, prizes, and glory while men’s vices and crimes are punished by fines, disgrace, chains, whips, exile, and death. And we are taught this not by endless lectures filled with disputes, but by the authority and will of the laws: to control our desires, to put limits on all greed, to protect what is ours, to keep our minds, eyes, and hands off what belongs to other people. Everyone can snarl as much as they like, but I will say what I feel: if you look to the springs and sources of the laws, that one little booklet of the Twelve Tables surpasses the libraries of all the philosophers both in the weight of its authority and the richness of its utility.
The law code embodied in the Twelve Tables represents the appropriate distribution of rewards and punishments for proper and improper behavior; it thus, according to Crassus, allows one to infer a code of ethics that is just as valid as that of any philosophical school. What is more, it is both more useful and a great deal briefer. Crassus knows, and says twice, that he is saying something both new and shocking. Not, perhaps, in saying that law is the embodiment of a philosophical system of ethics—that is, in fact, the implication of the first sentence of Chrysippus’ book on law, which Cicero knew very well and quotes in De re publica and De legibus—but in ascribing specifically to the Twelve Tables the merits of Greek philosophy. It is perhaps fair to say that nobody reading the extant fragments of the Twelve Tables now would suspect their philosophical importance, and one doubts whether any of Crassus’ or Cicero’s contemporaries did either.
It is this comparison of the Twelve Tables to Greek philosophy that Crassus then explores more broadly (1.196–97):
And if, as is completely appropriate, our country delights us—something that has such natural power that the wisest of all men (sapientissimus vir) placed Ithaca, stuck on its small and rough rocks like a bird’s nest, ahead of immortality—how great should be the love that inflames us of such a country, one that is the only home in the world for virtue, power, and honor? In the first place, we should be familiar with its mentality, customs, and order, either because our country is the parent of all of us or because its wisdom in setting up laws should be considered as great as it was in gathering together such great resources of empire. Then you should feel great happiness and pleasure from knowledge of the law, because you will then very easily understand how far ahead our ancestors were in wisdom of all other nations, if you wish to compare our laws with their Lycurgus and Draco and Solon. It is amazing how crude and almost ridiculous all civil law is in comparison with ours. I talk a lot about that in everyday conversation, where I put our people’s wisdom ahead of that of everyone else—particularly the Greeks. That’s why, Scaevola, I think that men who want to be complete orators have to know the civil law.
Crassus moves from comparing the Twelve Tables to philosophical ethics to an argument based on love of country. First, he makes an a fortiori argument through comparison of Rome to Odysseus’ Ithaca: if Odysseus preferred humble and rocky Ithaca to immortality, then how great should be our love of Rome? The epithet he gives Odysseus, sapientissimus, is drawn from Plato, Resp. 3.390a8 where τὸν σοφώτατον is used ironically in the context of Odysseus’ love of food, not of home; but here it is completely serious, and Cicero repeats the same comparison at Leg. 2.3 in the discussion of patria. From that, he proceeds to sheer jingoism: Rome as the only home of virtus in the world; Roman wisdom as the source of both law and empire; and finally early Roman lawgivers as the wisest people in the world—and in particular, wiser than all those famous Greek lawgivers. Ultimately, orators need to know the civil law not just as a practical necessity but because knowledge of the best law code that has ever existed should be a source of pride, happiness, and pleasure. The ius civile is the best of Rome; Rome is the best in the world; by knowing the ius civile, we participate in that greatness.
The concluding portion of Crassus’ speech has slightly less flag-waving. Turning from the pride that should inspire us to study law, he speaks of its advantages and the status of jurisconsults (1.198–200): law brings office and honor; lawyers, unlike the lower-class pragmatici in Greece, have a high status; and in old age, lawyers are still cultivated, respected, and treated almost like oracles. Finally, he moves from the advantages of knowing civil law to the advantages of knowing public law, particularly for those orators qui versantur in re publica (201). His subject, he concludes, is not someone of small ambition and minor cases, but the best possible orator, one whose skills seem supplied by a god (202)
so that what belongs to us as humans seems not to have sprung from our own efforts but to have been brought down to us by the gods; the man who can move safely even among the weapons of the enemy, accompanied not so much by Mercury’s wand as by the name orator; who can through speech subject the crime and deceit of the criminal to the hatred of citizens and to bind him in punishment, and who can likewise with the squadrons of his genius liberate innocence from the punishment of the courts, and who can either rouse a sluggish and failing populace to glory or lead them away from error or inflame them against the wicked or calm them if they have been incited against respectable citizens; who can, in sum, either arouse or calm whatever emotion in human minds the circumstances or the case requires.
After all this grandeur there is one last disclaimer: this is only an indication of what a great orator should be; Crassus himself does not know it all and is just pointing the way (1.203).
Crassus’ peroration is (not surprisingly) rhetorical: he moves from the not unusual hyperbole of describing great gifts (of talent, virtue, or beauty) as being from the gods to the much more particular example of Mercury, presumably alluding to the scene of Hermes leading Priam to Achilles in the Iliad, which he can only introduce through employing the archaic meaning of orator as ambassador. After that is the image of the great orator who can provide a voice to the downtrodden or to the people, a description of rhetorical power that looks back to Crassus’ first speech in praise of oratory at the very beginning of the book. In the course of this speech, the initial argument that it is a matter of self-respect for an orator to know the details of the ius civile is completely eclipsed by a vision of Roman law as philosophically profound, inspired and inspiring, of the jurisconsult as a figure of reverence and respect, and of the sublime and perfect orator, the divinely inspired savior and guide of his people.
Crassus’ performance is indeed magnificent; in response, Scaevola compares him to Socrates: just as Socrates had said that if he made his hearers want to be virtuous, he had done his job, as the rest was easy, so Crassus has done the same in opening the way to great oratory (1.204). But just as Cotta had expressed a certain dissatisfaction with Crassus’ high-velocity account of rhetoric earlier in Book 1, so here Sulpicius applauds Crassus’ speech but again tries to get him to talk about specifics: “we know what we have to study, and that’s pretty huge; but we still want to know how to get there” (205). And Crassus, ever reluctant to be forced into giving real instruction, hands the subject over to Antonius.
Crassus has transported the orator from the courtroom to the skies; Antonius’ job is to bring him back down to earth, and he does so very effectively, responding to both the specific argument about the necessity of knowing the ius civile and the broad argument about the social role of the orator. He begins by limiting the orator to oratory itself, dispensing with the larger social role and significance that Crassus had given him, and he does so strategically, by using Crassus’ own techniques against him. Crassus had begun the second part of his speech by describing the prospective ars iuris civilis and explaining what an ars is, giving definitions and divisions into genera. Antonius begins by talking about definitions, explaining what they are and giving examples. His point about the need for definitions is drawn (although he does not say so) from Plato’s Phaedrus; but his examples are largely taken from Roman history. His first example is the definition of imperator, using examples such as Scipio, Epaminondas, and Hannibal (1.210); the second is the statesman and public leader, and the specific examples include the elder Ti. Gracchus, Scipio, and Laelius (211);18 and the third, obviously consisting only of Romans, is jurisconsults (212). Then follow what Antonius calls leviora artium studia: musicians, grammarians, poets. He simply lists them as people whose role is capable of definition, giving no definition or examples. But the last element in this category of definable professions is philosophers, and although he gives no examples, Antonius does define the philosopher (212):
This is the description: that the person who desires to know the meaning, nature, and causes of all things divine and human and to grasp and investigate the entire system of living well should be called by this name.
At this point, Antonius has implicitly narrowed the definition of an orator: not only has he carved off military leadership, political leadership, legal knowledge, and philosophy, assigning them to other areas of expertise, but he has also obliquely demonstrated, by taking two of his three lesser areas (music and grammar) from the sample descriptions of artes given by Crassus earlier (1.187), that he is using Crassus’ own speech against him. And hence Antonius’ orator, even before he defines him, has been reduced from the broad and philosophic statesman that Crassus had envisaged to what a normal person might understand by the word orator (1.213):
I think that an orator is a person who can use words pleasant to hear and ideas aiming to convince in legal cases and public debate. I call this person an orator, and I want him, in addition, to be equipped with a good voice and delivery and a certain amount of wit.
In this, clearly, Antonius is echoing standard definitions of rhetoric, making gestures not only to the normal five officia (here to elocutio, probably to inventio and dispositio in verbis . . . et sententiis, and actio) but to Crassus’ own description of what an orator needs to know, which included quidam lepos (1.159).
Having limited the orator to the basic demands of rhetorical theory, Antonius then dissects Crassus’ logic: just because the same person may have more than one expertise does not mean that those fields of expertise are the same thing or even mutually entailing: because P. Mucius was good at both games and law does not mean that playing duodecim scripta is an essential skill for the jurisconsult,19 and the fact that Plato did geometry as well as philosophy does not mean that geometry is part of philosophy. Instead, the good orator should be intelligent and should listen and watch, picking up bits and pieces that are useful (1.214–18).
Antonius’ demolition of Crassus’ lofty definition of oratory works by using Crassus’ own methods against him; the same is true of the two divisions of his speech, the rejection of the need for deep philosophical knowledge (1.219–33) and the rejection of the need for legal expertise (1.234–56). The rejection of philosophy is at the heart of the speech and the portion which has the greatest resonance in the rest of the dialogue. Antonius starts by rejecting the argument Crassus had made against Scaevola (1.53), that the orator needed to know ethics in order to understand the psychology of his hearers so as to affect them.20 That is in the first place unnecessary, because one does not need to know the nature of ira in order to arouse anger in one’s hearers (1.220); besides, the philosophers themselves do not agree—allowing Antonius to offer a set of parodies of the various philosophical schools (220–22). What we need, he says, is not philosophic knowledge, but sharp wits: acuto homine nobis opus est et natura usuque callido (223), thus emphasizing, as he does throughout, that natura and usus, not ars and book-learning, are the basis of oratorical skill. He reinforces this by two metaphors: comparing the good orator first to a hunting dog who can sniff out what will persuade his audience, and then to a doctor who can take the pulse of his audience (teneat oportet venas, 223). It is no accident that both images are Platonic: the canine metaphor is used of the guardians in Republic 2 (375d–376b) and rhetoric is compared to medicine in the Phaedrus (270b).21
These allusions to Plato are probably meant to be seen as Antonius’ own, not simply Ciceronian ornament: in either case, they lead directly to a much more open attack on Plato, and that in turn leads to an even broader attack on the role of philosophy in oratory. We need cleverness and experience in the courtroom, not books; those belong in Tusculum (1.224):
. . . but he should keep books of philosophy at a Tusculan villa like this for holiday reading and he should avoid borrowing from Plato if he ever has to speak about justice and good faith. Plato, when he thought he had to put such things into words, invented a new city in his books: the things he thought he had to say about justice were so foreign to normal life and civic customs.
And Antonius then brilliantly shows how Crassus’ own oratory is inconsistent with philosophical integrity by quoting from Crassus’ speech in favor of Caepio’s judiciary law:22
Save us from our wretchedness, save us from the jaws of men whose cruelty can never have enough of our blood; do not allow us to be slaves to anyone except all of you, to whom we both can and should be enslaved.
This is not, as Antonius shows in detail, the philosophical detachment that Crassus’ lofty goals for the orator’s education would entail.23 It is powerful, emotional, successful, and—at least to a philosophic soul like the Stoic P. Rutilius Rufus—despicable, in the same way that Sulpicius Galba’s pathetic display of his nephew as well as his sons in court managed to get him acquitted of the crimes he had committed against the Lusitanians (1.225–28, #14).24
The mention of Rutilius Rufus’ scorn for the emotionality of Galba’s defense leads Antonius directly to Rutilius’ own trial (#16) and the contrast between the two defenses. Galba was guilty of mistreating the Lusitanians; Rutilius was, by all accounts, innocent of the provincial extortion in Asia for which he was prosecuted. Galba was emotional; Rutilius was cold and logical. Galba was a great, instinctive orator; Rutilius was a serious Stoic. And of course, Galba was acquitted, while Rutilius was convicted—and went into exile in Smyrna in the province which he had allegedly mistreated.25
For Antonius, the trial of Rutilius is powerful evidence that serious philosophical commitment has no place in a courtroom. He describes Rutilius as a Roman Socrates, both speaking as if he were in illa commenticia Platonis civitate (“Plato’s imaginary republic,” 1.230) and imitating the Socrates of the Apology, in a way that Antonius summarizes in some detail (231): each of them behaved as if he were the lord and master of the jury, not a suppliant defendant. Antonius’ final verdict on the trial of Socrates, which clearly also applies to the trial of Rutilius, is devastating (233):
And if he had been acquitted—and even if it makes no difference to us, still I wish he had been because of his great ability—then how could we ever endure those philosophers? As it is, he was convicted and had nothing to blame but his own ignorance about speaking, but even so they say that we should get instruction in speaking from them! I’m not going to fight with them about which is better or more true; I’ll just say that this [oratory] is one thing and that [philosophy] is something else, and that this can reach its highest level without that.
Crassus had talked about the orator’s need for philosophy; Antonius shows the damage that philosophy can do to oratory. To do that he has gradually moved from showing how unphilosophical Crassus’ own oratorical performance actually is, to philosophers’ contempt for the arousal of irrational emotions in the courtroom, to the devastating effect of philosophic oratory on its practitioners, culminating in the pointless death of Socrates. If that is the best that the best of philosophers can do when his life is at stake, we are better off without philosophy.26
And what about law? That is much less difficult to demolish. Antonius begins by suggesting that Crassus praised knowledge of the ius civile so highly because of Scaevola, and immediately twists the argument: if great oratory entails knowledge of the law, that inevitably diminishes the status of jurisconsults who are not also orators and trivializes their expertise; surely Crassus does not want to do that (1.234–36). The charge of impudentia takes slightly longer, but is equally easy to demolish: the fact that someone doesn’t know the details of legal formulae does not mean that he is incapable of representing someone in a dispute, and the very cases that Crassus cited in arguing for legal knowledge, such as the causa Curiana and the case of Mancinus, are precisely those in which the jurists themselves disagreed: they were resolved by eloquence, not by legal details. Antonius ends this section by imagining how Crassus himself would have handled the case of the returning soldier whom his father had thought dead and left out of his will (245):
If you were defending the will, you would make it seem that the entire legal status of wills was at issue in that trial; if you were acting for the soldier, you would do as usual and you would have summoned up his father from the dead in your speech; you would have stood him in front of people’s eyes; he would have embraced his son and in tears would have entrusted him to the centumviri. You would have made all the stones weep and wail so that all that “As the tongue shall have spoken” (uti lingua nuncupassit) stuff would seem not to have been written in the Twelve Tables—which you value more than all those libraries—but in some schoolteacher’s sing-song recitation.
The speech Antonius imagines—high emotion, summoning up the dead, extreme pathos—is a brilliant parody of the style of Crassus’ speech for the Lex Servilia which he had quoted only a few minutes earlier (1.225); it is also reminiscent of Cicero’s own use of this kind of emotionality in the peroration of speeches like Pro Murena or Pro Caelio. What is more, by ending with a recollection of Crassus’ praise of the Twelve Tables he ridicules Crassus’ idea of law as philosophy just as much as he rejects Crassus’ claim that knowledge of the ius civile is essential.
Having dealt with Crassus’ charge of impudentia in this fashion, Antonius turns to the charge of inertia and rebuts Crassus’ arguments in order with ease and slightly briefer rhetorical flourishes. In the first place, ius civile is not yet an ars and therefore not yet easy to learn. As for the pleasures brought by knowledge of ancient law, the texts themselves are dull compared with early tragedy; the old laws are often obsolete; and ethical behavior should be learned, not enforced by the threat of punishment (1.246–47). His broader point follows: it is perfectly possible to use something and enjoy it without being a scholarly expert; we can enjoy and profit from our estates without studying agriculture ourselves, and equally we can acquire the knowledge of law and public affairs that we need simply by paying attention to what goes on in the forum. When we need experts, we can consult them; as in other aspects of oratory, we need to reach a certain level of ability, but we need not achieve true expertise. Any knowledge, including that of history or law or anything else, may be useful to the orator; but just because he may need specialized knowledge at some point does not mean that he must master it all in advance (1.248–59).
Antonius ends his critique of Crassus by quoting Crassus himself (260):
To get back to the beginning: let’s define the orator as the person who, as Crassus described him, can speak in a manner calculated to be persuasive. He should be limited to those things which are a part of the common public life of cities and should keep all the other areas of learning away: they may be grand and glorious, but he should press on by night and by day, so to speak, in this one task.
He then goes on to suggest as a model Demosthenes, who toiled successfully to get rid of his stammer and to develop his ability. Both parts of this conclusion are tendentious. The definition of the orator he here ascribes to Crassus is not the one that Crassus had developed himself but the one that he used at the outset of his ars rhetorica (1.138) to begin his summary of the contrita praecepta of the schools. Antonius had himself mentioned Demosthenes before (1.88–89); but there, in Antonius’ story of his visit to Athens, Menedemus had quoted samples of Demosthenes to prove that he was eloquent without philosophy, while Charmadas in response had claimed that Demosthenes’ oratorical skill was derived from his having studied with Plato. Antonius, by emphasizing Demosthenes’ practical exercises, returns the orator to his basic task: speaking clearly. This is just as reductive as the definition of oratory he falsely ascribes to Crassus: instead of talking about clarity of language (plane, one of the four virtues named by Crassus at 3.37 as constituents of elocutio), he refers to Demosthenes’ efforts simply to enunciate clearly and get rid of his stammer. Pebbles replace lucidity of thought.
The response to Antonius’ demolition of Crassus’ argument is not the silence that had met Crassus’ earlier speech, but doubt: Sulpicius and Cotta are unsure which of them to believe. Crassus’ response is firmer: he thinks Antonius has made the orator some kind of operarius while he himself is aiming at something much higher. But he also suggests that Antonius does not really believe what he has said (1.263):
I’m not sure you don’t hold a different opinion and are using your amazing ability to refute people; nobody has ever done that better than you. That capacity belongs to orators, but it already is a habit of philosophers, particularly the ones who speak very eloquently on any topic on both sides.
The hesitation of Sulpicius and Cotta about whether Crassus or Antonius is right is the proper result of a successful Academic debate: suspension of judgment. What Crassus is suggesting reinforces that: Antonius’ refutation of the importance of philosophy is itself a product of the philosophical schools.
At the end of the debate and the book, both the internal audience and the reader are left in suspension: two very different ideas of what an orator is have been produced, and both of them are plausible. Crassus’ orator is an eloquent person of wide knowledge and, perhaps more important, a strong sense of both diachronic and synchronic responsibility—an attachment and indebtedness to Rome’s history, and a sense of social obligation to the society of which he is a part. Antonius’ orator is equally eloquent, a brilliant tactician, quick to pick up clues and opponents’ weaknesses, and smart enough to know what he needs to learn and to master it quickly. In theory, the two are not incompatible; in practice, they are the products of very different minds—except, of course, that both of them are products of Cicero’s mind.
The tactical differences of the two speeches, as discussed here, are important as examples of oratorical method and style; even more important in De oratore, however, are some of the issues raised. Crassus raises the almost factual question of what an orator actually does: while throughout his speech he insists on the necessity of viewing large ethical and jurisprudential issues as a part of oratory, in the first part he sticks to cases of civil law, the kind of courtroom work for which standard rhetorical theory was designed, but in the second part he seems to view the orator as equivalent to the statesman, the wise and experienced leader of public affairs. There is a sharp divide between the rhetorical training he somewhat contemptuously summarized in the middle of Book 1 and both kinds of oratory described in his last speech; it raises the particular question of the relevance of rhetorical theory to the real world of Roman oratory.
The other, much broader issue is raised by the most famous elements of each of the two speeches, Crassus’ comparison of the Twelve Tables to Greek philosophy and Antonius’ comparison of Rutilius Rufus to Socrates. While earlier parts of Book 1 record the Hellenistic debate over the relative status of philosophy and rhetoric, the debate between Crassus and Antonius moves it from a squabble over academic turf in Athens to a far more significant question about the place of philosophy in Rome. Part of that, adumbrated in Crassus’ speech, is the relationship between native Roman prudence and Greek book-learning; it is also found in the contrast between Antonius’ idea of what the orator needs to know, ea de moribus hominum et scire et dicere, quae non abhorrent ab hominum moribus (1.219), and Plato’s ideas of justice, quae . . . a vitae consuetudine et a civitatum moribus abhorrebant (1.224).27 Antonius’ speech also explicitly raises what is in fact the central issue of De oratore, the value of Socrates or Plato in Rome. Not just as Antonius describes the trial of Rutilius Rufus, but in the very fact of De oratore itself: if Plato’s books do not belong in Rome, what is the point of a dialogue based on Plato?
1. A convenient outline of the speech at LPW 2: 21.
2. Numbers refer to the appendix. The case is attested only here; the date is uncertain, but likely; see TLRR #22.
3. XII Tab. VIII, 9 Crawford. See also Crawford ad loc. and LPW on this passage.
4. A servitude (servitus) is an easement. Roman law divided servitudes into urban—generally those that involved one property owner’s right to prohibit an action by another—and rustic—those that involved one property owner’s right to use the property of another. All the servitudes described here appear to be urban. For the law of servitudes, see Buckland 1963: 259–68.
5. Neither Wilkins nor LPW comment on this, and ThLL s.v. defendo makes it clear that this usage is very uncommon; the word is far more frequently used to describe representation of the defendant and is often the antonym of accusare.
6. See LPW ad loc., but see also the discussion of this passage by Wlassak 1912: 144. The only full account of this phrase (as praescriptio) is in Gaius, Inst. 4.131.
7. ##4–12 in Appendix. One of the ten, a question of postliminium appended to #10 (the case of Publicius Menander in the third or second century) was resolved by legislation, and there was no trial. It is therefore not included separately in the list. For a helpful discussion of the cases, see LPW 2: 46–48; a summary also in Fantham 2004: 116–20.
8. The first of these cases is also described in Valerius Maximus 7.7.1 but is not included in TLRR; the other two are, respectively, TLRR #364 and #363.
9. TLRR #362 and 361, respectively.
10. TLRR #93; for bibliography, see above, Chapter 3 n. 5.
11. This is not the same person as P. Rutilius Rufus, Cotta’s uncle. Postliminium was the right accorded to Romans who had been prisoners of war to regain their civic status on returning to Rome.
12. The trial is not included in TLRR; Dig. 50.7.18 (Pomponius) and 49.15.4 (Modestinus) provide evidence for the trial and the law. For Mancinus’ career, see MRR 3: 103–4; according to Pomponius, Mancinus was said to have been elected to a (second) praetorship after regaining his citizenship, but there is no other indication of that.
13. Cicero, Har. resp. 43 speaks of invidia Numantini foederis. On the importance of the event for Ti. Gracchus, see, for instance, Earl 1963: 69–71 and Briscoe 1974: 125–27.
14. Not a trial, but a legislative problem; see above, n. 7.
15. Crassus’ discussion of the possibility of an ars of law and Cicero’s own praise of Ser. Sulpicius’ use of dialectic in analyzing law in the Brutus (152–53) are closely linked and provide the basis for many modern discussions of legal rationalism in the first century bce; see, for instance, Schulz 1946: 62–69; Frier 1985: 170; Harries 2006: 23, 131; Schiavone 2012: 186–95; Moatti 2015: 197–201; Ferrary et al. 2019: 36–38. Two fragments of Cicero’s treatise survive, but the work cannot be dated; Ser. Sulpicius apparently never wrote a comparable work.
16. That it is Aelius Stilo rather than Sex. Aelius Catus whom Crassus means is certain; see LPW ad loc.
17. On this passage, see also Zetzel 2003: 130–31, Görler 2017: 222, 227.
18. On this passage, see below, Chapter 8, and Gaillard 1975: 510 (on Cicero’s use of the elder Gracchus as a stick to beat his sons).
19. Antonius is here presumably playing a game himself by comparing duodecim scripta to the Twelve Tables.
20. See LPW 2: 142–43.
21. On the canine imagery in sagaciter pervestiget, see LPW ad loc. Plato uses the metaphor of hunting (not mentioning dogs) also at Resp. 4.432b–d. Note also that Antonius repeats these two metaphors in reverse order in his discussion of dispositio at 2.186.
22. ORF 66 F24, #13. Malcovati cites in her apparatus Doederlein’s addition of nisi before sanguine nostro, and it is worth considering, i.e., “whose cruelty cannot be sated except by our blood.” The conjecture is not reported in Manuwald 2019.
23. On this speech, see Morstein-Marx 2004: 235–37. Hodgson 2017b: 170–72 rightly emphasizes Antonius’ description of Crassus’ speech as unphilosophical but is wrong to think that Antonius finds that objectionable.
24. Galba’s use of his nephew, the recently orphaned son of C. Sulpicius Galus, was famous; cf. Cicero, Brut. 90; Val. Max. 8.1(absol.).2. Quintilian 2.15.8 speaks of Galba’s picking up Galus’ son and carrying him around, ipse manibus circumtulerat. On Rutilius’ Stoicism and its effects, see Garbarino 1973: 440–45.
25. The importance of the (genuine) trial of Rutilius has been exaggerated, and the image of Rutilius as martyr has too often been accepted uncritically. For a salutary and careful analysis of the place of Rutilius and his trial in the politics of the 90s, see Kallet-Marx 1990.
26. McConnell 2019 offers a gentler interpretation of Antonius’ account of the trial of Socrates.
27. Abhorreo is used again of Plato’s Republic at Rep. 2.21; see below Chapter 11. On Cicero’s use of abhorreo for things (notably philosophy) that are foreign to normal human existence, compare also 1.12 in which a consuetudine communis sensus abhorrere is the greatest failing in oratory. Cf. also Arch. 3 and Parad. 1, with Baraz 2012: 132.