obey the public augur; and carry into effect all proclamations, taking care that they are exhibited in the treasury, and generally known. Let the public consultations be concentrated in one point at a time, let them instruct the people in the nature of the question, and let all the magistrates and the people be permitted to advise on the subject. _. “Let them permit no monopolies, or privileges. With respect to the capital punishment of any citizen, let it not take place, unless by the adjudication of the high courts of justice, and the ministry of those whom the censors have placed over the _ popular orders. Let no bribes be given or received, either in soliciting, discharging, or resigning an official situation. . “If any one shall infringe any of these laws, let him be liable to a penalty. Let these regulations be committed to the charge of the-censors. Let public officers, on their retiring from their posts, give these censors an account.of their conduct, but let them not by this means escape from legal prosecution if they have been guilty of corruption.” ‘I have here recited the whole law; now, consider the question, and give your votes. V. Quintus:—With what conciseness, my brother, have you brought before our eyes the duties and offices of all magistrates! But your system of laws is almost that of our own commonwealth, although a little that is new has also been added by you..
_. Marcus.—Your observation is very just, my Quintus, for this is the very system of a commonwealth which Scipio eulogises in my treatise, and which he mainly approves—and which cannot be kept in operation but by a successive order of magistrates, such as we have described. For you may take it for granted that it is the establishment of magistrates that gives its form to a commonwealth, and it is exactly by their distribution and subordination that we must determine the nature of the constitution. Which establishment being very wisely and discreetly settled by our ancestors, there is nothing, or at all events very little alteration that 1 think ‘necessary in the laws., 7 _ Atticus.—Tell us, then, as you did at my request. respecting the ecclesiastical. laws, so also now in regard to these magisterial and civil laws, the reasons why you prefer the maxims you have stated. | Bsr 7 s Marcus.—I will do as you desire, my Atticus, and I will explain how much of this topic has been, investigated and illustrated by the disputations of the most learned philosophers of Greece, and then, as I proposed at first, I will touch on your own laws.
Atticus.—I am impatient to hear this dissertation of yours, Marcus.—And indeed, I have already stated a large part of the doctrines relating to this inquiry, in the books which 1 composed respecting the best sort of Commonwealth. On this topic, however, there have been some peculiar questions with respect to the duties and offices of magistrates, treated with considerable subtlety, first by Theophrastus, and next by Dion the Stoic.
VI. Atticus.—A Stoic, say you? were such questions ever discussed by the Stoics?
Marcus.—Certainly not, with the exception of the philosopher I have just cited; and, after him, of Paneetius, a great man and one of singular erudition. Indeed, the ancient Stoics were not so deficient in their speculative dissertations respecting politics and laws, as they were in the practical application of them to the service of the people. The greatest light was shed on this part of the subject by this School under the guidance of Plato. Afterwards, Aristotle illustrated all matters of civil jurisprudence in his elaborate essays, as did also Heraclides of Pontus, another of Plato’s disciples. And Theophrastus, who was instructed by; ‘Aristotle, was wholly devoted, as you are aware, to disquisitions of this kind; and Diczearchuus, a disciple of the same ‘master, was by no means deficient in the principles of this science. After these, Demetrius Phalereus, before mentioned, -drew legal learning by his admirable talents from the shade and inactivity of the Schools, into the open daylight of civil life, and gave it a practical point and efficacy, which are of the greatest service in all critical emergencies and confiicts, Hor we often find that men of the greatest weight in the republic are-deficient in philosophy, and that those who are very learned in philosophy are remarkably ignorant in legal affairs. And I hardly know where we could find any besides him, who has excelled both in the theory and practice of jurisprudence, so as to be at once a prince of learning and of political economy, HH 2 VII. Atticus.—I think I could show you such a man, and one of us three too; but pray continue your discourse, as you have begun, Marcus.—These Greek philosophers made it a grand point of inquiry whether one magistrate should be appointed in each commonwealth, to whom all the rest should be subordinate; which system, as I understand, was what was decided on by our ancestors, after the expulsion of the kings. But since the monarchical constitution which was at first preferred was changed, not so much through any fault in the monarchy, as through the vices of a monarch, it should seem that the monarchy itself still subsists, and that nothing but the name of king has been repudiated, if one magistrate is still to have authority over all the rest.
It was not without reason, therefore, that Theopompus in Lacedzemon qualified the power of the Spartan kings by the ephori, or that we Romans qualify the power of our consuls by tribunes. For our consuls are invested with such authority by law, that they command all the other magistrates, except the tribunes, who were created some time after, in order to hinder those events from recurring which had taken place before. For the first diminution of the power of the consuls was the creation of a magistrate who was not subject to it, The next was, when this new magistrate gave his aid not only to other magistrates, but even to private citizens, who refused obedience to the consuls. - Quintus,—You speak of a great evil; for since the office of the tribunes of the people was established, the authority of the nobles has declined, and the rule of the mob has gained strength, Marcus.—The case is not quite so bad as you think, my Quintus; for that power of the consuls inevitably appeared to the people not only something too arrogant, but also too violent. But since wise and moderate limitation has been imposed upon it, it diffuses law and justice to alt the citizens’ VIII. [Let us now come tothe exposition of our legal maxims, before stated; and, to pass over that earlier portion whose propriety is almost self-evident, let us notice that maxim ™ There is a great hiatus here in the Latin text, I do not know whence Mr, Barham has derived the sentence within brackets.
ON THE LAWS. 469.
which declares that soldiers should endeavour to return] home with unblemished honour. For to good and innocent men, no prize so valuable as honour can be derived either from our enemies or our friends., That maxim is also plainly just, that nothing can be baser than for a man to sue for an appointment as a legate, for any other interest than that of his country. I say nothing of how those men conduct and have conducted themselves, who, in their office of legate, pursue inheritances for themselves, and bonds, and deeds. This is a fault which must, perhaps, exist in mankind; but I ask if anything can be more scandalous than to see senators without commissions, and legates without instructions, or any public business of a patriotic kind? This sort of legation I should have abolished when consul, with the approbation of a full senate, though apparently its continuance would have been for the interest of the senate, had not a certain capricious tribune of the people opposed me, I succeeded, however, in shortening the duration of such, and, what was of great importance, made such appointments merely annual; and thus, though the scandal still remains, it has lost its perpetuity. 7 But now, if you please, we will quit the provinces, and once more return to Rome.
Atticus.—It pleases me, certainly; but it would not at all please those who are in the provinces.
Marcus.—But if they, my Atticus, were content to obey the just laws of their country, they would like nothing better than Rome, and their Roman villas; and would hold nothing more laborious and troublesome than their provincial appointments.
A law follows, which confirms to the tribunes of the people the power they possess in our commonwealth, on which I need not enlarge.
Quintus.—I beg your pardon, my brother, but I particularly wish to know your opinion of this power of the tribunes. To me it appears extremely mischievous, at once the child and parent of endless seditions. If we look back to the origin of the tribunate, we find that it originally sprang up at a time of civil disturbances, when all the chief places of. the city were either occupied or besieged. After this, being soon stifled, as one of those monstrous abortions which, by a.
470: ON THE LAWS.
law of the Twelve Tables, are not suffered to live, it again recovered its existence, only to become baser and viler than ever.
IX. For what kind of atrocity did it leave undone? Its first act was a piece of villany well worthy of its impious character, namely, the abrogation of the honours of the senate and patricians. It reduced the highest ranks to an equality with the meanest, agitating and confounding all things. When it had thus insulted and violated the gravity of our nobles, it was still as insane and insensate as before. Not to mention a Flaminius and others; which you may call antiquated instances, what laws or rights did the tribune Tiberius Gracchus leave to the best and worthiest citizens? And, five years before, did not the tribune Caius Curiatius, the basest and foulest of mortals, cast into prison the consuls Decimus Brutus and Publius Scipio, men of the greatest eminence!—a thing which was wholly unprecedented. And did not C. Gracchus endeavour to overturn and revolutionize our whole commonwealth, by throwing darts and daggers into the forum, as he himself avowed, in order to excite the citizens ‘to mutual slaughter, as if they were so many gladiators?
Why need I speak of the crimes of Saturninus and others, whose violences the commonwealth could scarcely repel without civil war? But why should we mention these antique instances, belonging to other ages, when so many have occurred within our own memory? Who was ever so audacious and so inithical to us, as to nourish a thought of destroying our state, without he had first sharpened some sword of a tribune against us? And when infamous and profligate men could not find, not only in any house, but not even in any nation, any such instrument, they endeavoured to create disturbances among the people in the darkest places of the republic, | And what does us infinite honour, and secures us immortal renown, is the fact, that no tribune could be engaged to appear against us by any bribe whatever, except that one who could not legally be a tribune at all, who used the tribunate as a cloak of villany. As for this monster, what crimes did he - 1 He means Clodius, who as he was a patrician, could only appear to be eligible by procuring his adoption into a plebeian family; all the circumstances of which adoption were such as to make if wholly illegal.: ON THE LAWS. 471: not. perpetrate—crimes which, without reason or plausible’ hope, he committed with the fury of some savage beast, maddened with the violence of the brutal mob. JI therefore highly approve of the conduct of Sylla in this particular, inasmuch as by his law he rendered the tribunes of the people comparatively impotent for mischief, though he left them the’ power of giving assistance. As for our friend Pompey, in all other respects I extol him with the amplest and warmest praises,—I say nothing of his views relating to the power of the tribunes; for here I cannot. praise him, and yet 1 would not censure him.: - X. Marcus.—You have very clearly unfolded, my Quintus, the defects and abuses of the tribunate; but it is unfair, with respect to any matter which one is impeaching, to state all its faults, dwell upon. all its: evils, and omit its merits. For in this way you might. make out the consulate itself to be a very culpable and: objectionable institution, if you were to reckon up all the sins of some consuls, whom I am willing to pass in silence. For even in this power, I confess there are some stains of evil; but we can never obtain the good which we aimed at in its establishment without those particles of evil. That the authority of the tribunes of the people is too great, none will deny; but the power of the people themselves: is much more cruel, and much more violent; and by having a leader,. therefore, such asa tribune, they often behave: more temperately than if they had no one at all. For a leader remembers that he is advancing at his own risk, whereas the: violence of the people has no consideration for its own danger; sometimes it is suddenly excited, and again it is. often tranquillized. For what body of men can be so insane, that not one in ten of its members preserves his senses? And. ° as. to T. Gracchus himself, his power was. destroyed by preventing his colleague from acting, and then deposing him; for what else was it that ruined him but the fact of his having deprived’ his colleague of the power of interposing his veto? In this matter, however, observe the wisdom of our ancestors..-When this office of tribuneship was granted by the senate to. the people, wars ceased, seditions were extinguished, and that wholesome liberty was secured by which meritorious com-.
-} This was Marcus Octavius Coecina; who opposed the designs) of Gracchus, and on his motion was deposed by a vote of the tribes, 472. ON THE LAWS.: moners think themselves placed on a level with the chief men of the state, which is one great principle of the welfare of the state. But there were two Gracchi. Yes; and, besides them, ' whatever number you may choose to enumerate. You will find it to be the case, as ten are created, that at all times some have been mischievous, and still more capricious, and: far from virtuous. The highest order of the state is, indeed, far above envy, and the people never enter into perilous con-: tentions concerning their rights. | Therefore we must acknowledge, either that the expulsion of our kings was unnecessary, or that liberty of the people: must be guaranteed in fact as well as in profession. And as it is, their liberty is such that they have been obliged to sue for the protection of many most illustrious men, and com-: pelled to yield to the authority of the senate.
XI. In regard to our private cause, my best and dearest brother, though it fell under the tribunitial power, we had no» contention with the tribuneship. For it was not the people who had been stirred up to wish to injure us, but a pack of | miscreants, whom they let out of prison on purpose to attack: us, and reprobate slaves; and the terror of the soldiery, too,: was added. And, to confess the truth, we had less to struggle’ against in our private enemies than in the grievous disorders of the state; and if I had not yielded in some measure to the tempest, my country would not now enjoy the continued benefit of my services. And this the event testified,—for what freeman is there, or what slave worthy of emancipation, to whom our escape was not a subject of congratulation 4 But if all the labours which I underwent on behalf of the: safety of the commonwealth had been so unfortunate as not: to give universal satisfaction—if the rage of an infuriated mob had driven me away by the hurricane of their evil passions— ° if some tribune had stirred up the populace against me, as Gracchus did against Leenas,’ and Saturninus against Metellus, —I should still have borne it, my Quintus, with fortitude,. and have been comforted not less by the counsel of the philosophers of Athens, who ought to have this power, than by the 1 Publius Popilius Lenas, who was consul the year after the death of Tiberius Gracchus, in which capacity he was charged with the prosecution of Gracchus’ partisans, for which Caius Gracchus persecuted him afterwards, th, ON THE LAWS,. 473.
example of the illustrious men who, having been expelled from their country, have preferred losing an ungrateful city than remaining in a wicked one, But when you say that in this one point you do not greatly approve of the conduct of Pompey, you scarcely seem to me. sufficiently to recollect that he had to consider, not only what was best, but also what was necessary. For he knew that a certain share of civic authority must needs be granted to the. citizens, which, as the people so ardently desired before they attained it, they would be especially loth to relinquish when once acquired. It was, therefore, the part of a wise statesman not to refuse a privilege to the people, which was not essentially mischievous, and which also was so highly popular that. it could not be denied. You know, my brother, that in discourses of this kind, it is customary to express your assent, in order that the speaker may pass on to another branch of the, subject.
XII. Atticus.—Exactly so.
Quintus—1 do not entirely agree with you respecting. Pompey; but still I should like you to go on to the re-. mainder of the subject.
Marcus.—Do you then still persist in and abide by your, former opinion?
Quintus.—I do at present.
Atticus—I however disagree with my friend Quintus. But let us by all means hear what remains more to be said.
Marcus.—The following maxim allots to all magistrates their auspices and jurisdictions. Their jurisdictions, in such a manner that there should still be a supreme court of justice, to which appeals may be made by the people. And the aus-. pices, in order that there may be furnished a plausible method of adjourning useless or mischievous assemblies. For in this way it has often happened that the Gods have suppressed by means of auspices the unjust impetuosity of the mob.
Again, the law that the senate shall be composed of those who have exercised magistracies, is undoubtedly one for the interest of the people, since it permits none to arrive at high, authority without the approbation of the people, taking away the power of appointment from the censors, But by way. of moderating this effect, which might be a pernicious one, AT4 ON THE LAWS: another provision immediately follows, by which the authority of the senate is confirmed.
For the words are these,—Let the decrees of the senate be ratified as laws. For the while result is, that if it so happen that the senate becomes the master of public politics, and. if zl men defend whatever it decrees; and if all the other orders agree that the commonwealth: shall be governed by this superior order; there will arise from this amalgamation of rights, when the power is in the people, and the authority in the senate, that modified and harmonious kind of constitution which I have so highly extolled.
Especially, if the following law be also observed. For the next law is,—“ Let the senatorial order be free from corruption, and let it be a pattern to others.”
~ Quintus.—An admirable law that is, my brother, and one of extensive application, to the end that this order be free from corruption, and have a censor for its interpreter.
Atticus.—But although the senatorial order is wholly devoted to your interests, my Marcus, and retains a most grateful recollection of your consulship, I would say, if you will give me leave, that it would be enongh to weary not only the censors, but all the judges also.
XIII. Marcus.—But let us leave this question for the present, my Atticus; for our present business is not so much with the senate of to-day, nor with the statesmen who exist at this moment, as with future generations, if any of them are willing to obey these laws. For as the law enjoins that the senatorial order shall be exempt from all corruption, no one who is tainted with any vice will even seek to enter that order. And that is an event most difficult to be realized, except by a certain education and discipline, on which we may perhaps say something if there should arise a suitable place and opportunity.
Atticus.—A_ suitable place will certainly not be wanting, since you are now laying down a system of laws: And as to time, the length of the days at present will give you that. But even if you omit this topic now, I shall at a future time demand your views on education and discipline.
- Marcus.—You shall have them, my Atticus, on that topic, and on any other which I may have omitted. I will therefore enlarge a little on this legal maxim before cited, “ Let the ae Pee ee ton ON THE LAWS. ATS senator be a pattern to others.” If this is observed, all will go well. For as a whole city is infected by the licentious passions and vices of great men, so it is often reformed by their virtue and moderation. L. Lucullus, a great man, and a great friend of all of us, being rallied: for the magnificence of his seat at Tusculum, is said to have made the following extremely suit-~ able answer—that he had two neighbours, the greater of whom was only a Roman knight, and the other a freedman; and as) each of them had magnificent villas, that could not be thought extravagance in himself, a consul, which was lawful for those of inferior rank. But do not you see, Lucullus, that it was owing to you that they had these desires? Had it not been for your example, such an action in them would have been looked on as criminal. For who would have borne people of this: sort, when he saw their villas crowded with statues and pictures, relating either to public, or what is more, to sacred. and religious subjects? Who would not have joined i in demolishing the monuments of their vanity and pride, if those who ought to exert themselves on such occasions were not guilty of the same extravagance 4 XIV. For it is not so great an evil that the chiefs of the city should do wrong, though that must be allowed to be very considerable of itself, as the fact that there are a great many imitators of those chiefs.
Would you but look into the history of former ages, you might plainly see that such as the chief men of the state have Been, such has also been the state in general; and that whatever change of manners took place in the former, the same always followed it in the latter. Now, this observation is much more certain than that of Plato, who pretends that a change in the songs of musicians is able to alter the manners of a nation; whereas my opinion is, that the manners of the people in general change with the manners and fashions of the nobles. On which account, great men of a vicious life are doubly pernicious to the state, as being not only guilty of immoral practices themselves, but likewise of spreading them» far and wide among their fellow-citizens. Nor are they mischievous to it inasmuch as they cherish vices themselves, but also because they corrupt others; and they do more harm by their example than by the crimes which they commit.
_ And this maxim, though we would wish to extend its influence to the whole body of senators, may also be contracted. For even a few, aye, even a very few men, illustrious in fame and fortune, may either corrupt or correct the manners of the state. But we have said enough on this topic, not only now, but also in those other books of ours. Let us therefore proceed to what follows.
The next law relates to suffrages and votes, which, as I have said, should be notorious to the nobles, and free to the people.
Atticus.—I have given much attention to this maxim, but I do not well understand its spirit or its exact meaning.
XV. Marcus.—I will tell you, my Atticus, and we shall have now to treat on a very difficult question, and one which has already been much and repeatedly discussed,—the question, namely, whether, in case of suffrages at the election of magistrates, or in the trial of criminals, or in the enacting of laws, it is better that the votes should be given openly by poll, or secretly by ballot?
Atticus.—Is it indeed a doubtful question?
Quintus.—I fear we shall again differ in opinion. | Marcus.—I do not think so, my Quintus; for here I hold that doctrine, which I know you always maintained, that in giving suffrages and votes, nothing can be better than an open vivd voce declaration. But whether that can be obtained is a question to be examined.
Quintus.—If you will excuse me, my brother, I should say that that opinion which you here imply is one which greatly misleads the inexperienced, and which is also often hurtful to the state. I mean that which pronounces a regulation true and proper in itself, but at the same time asserts that it cannot be obtained, because it cannot be carried without opposing the people. For I say, in the first place, that the people ought to be opposed whenever strict propriety requires it; and, secondly, that it is better to be oppressed by violence in a good cause, than to yield to a bad one. Now, who does not perceive that all authority has been taken away from the nobility by the present law of balloting!—a law which the people, when free, never desired, but which they claimed when oppressed by the domination and power of the chief men of the state; therefore, those judgments which are passed upon the most powerful men of the state by viva voce votes, are more frequent ON THE LAWS, ATT ON THE LAWS, ATT than those which are given by ballot. Therefore, it had been far better to have restrained the excessive influence of the great for unjustifiable objects in elective suffrages, than to have given the people a mask and veil by which, while the more honourable citizens were kept in ignorance of their individual sentiments, they might thus make the ballot a mere cover for corrupt and hypocritical votes.
XVI. For this reason it is that no good man was ever a proposer or supporter of the system of balloting.
For there are four laws of ballots; the first of which, concerning the election of magistrates, was proposed by a certain Gabinius, an unknown and sordid agitator. The second, respecting the adjudications of the people, was proposed two years afterwards by Cassius, who wasa nobleman; but without meaning any offence to his family, 1 venture to say, a nobleman at variance with all good men, and one who was driven to and fro by the idlest rumours of the populace. The third, regarding the ratification and nullification of laws, was carried by Carbo, a seditious and profligate citizen, whose return to the better classes of society never secured him the approbation of those better classes.
There remained only the crime of treason, which Cassius himself excepted, in the judgment of which, open vivd voce votes were permitted. But Ccelius soon after thought proper to give traitors also the chance of the ballot; but as long as he lived he repented of having injured the republic, for the purpose of oppressing Caius Popilius, Our grandfather, a man of singular virtue in this town of Arpinum, as long as he lived opposed Gratidius, whose sister, our grandmother, he had married, when he wanted to introduce the law of ballot. For Gratidius was raising a storm in a ladle, as the proverb is, as his son Marius afterwards did in the Aigean sea. To such a length did the quarrel proceed, that the consul Scaurus, when he was informed of what had happened, made this remark to our grandfather: “ Would to heaven, Cicero, that a man of your courage and honour had better loved to live in the capital of our commonwealth, than to bury yourself in a municipal town!”
Therefore, since our design is not so much to give a regular list of the Roman laws, but rather to revive those good laws that have become obsolete, and to propose new regulations, I do not think that we ought here to discuss what can be obtained by our people, but what is the best; for your friend Scipio ‘bears all the responsibility of the Cassian Jaw; and, indeed, he is said to have been its original promoter, And if you pass a law of ballot, you will incur a similar responsibility. For am truth I do not like it at all, nor does our friend Atticus either, if I may judge by his countenance.
. XVIL. Atticus——For me, I never admired anything that pleased the mob, and I regard that as the best state of the commonwealth which our friend here, when consul, promoted, when the chief power in the hands of the aristocracy prevailed over that of the populace.: Marcus.—I see that you would repeal my law respecting suffrages, without any ballot whatsoever. But for myself, though in those books of mine Scipio has said quite enough in his own behalf,.am nevertheless willing to grant so much liberty to the people as will leave virtuous citizens in possession of, and at liberty to exert, their due influence. For these are the very words of my law respecting elections: “‘ Let the votes be notorious to the nobles, and free to the people.” Which law was meant to have the effect of abrogating all those laws which were passed subsequently, and which in any way mask or conceal the vote; such as those which hinder full imspection of any ballot, or examination and appeal thereupon, and that law of Marius, which makes the passages to the hustings narrow. | If these rules are opposed, as they generally are, to the ‘ambitious, I do not find fault with them. And indeed, if they could but hinder canvassing and imtrigue, then the people might be‘allowed the ballot as a vindicator of liberty, provided it were so laid open and freely exposed to all honourable and worthy citizens, that their authority might be blended’ with this popular privilege, thus leaving the people the power of expressing their deference for the aristocracy. | _ But why is it, Quintus, as you just now observed, that ‘there were more condemnations passed by the open suffrages of the poll, than by the silent, secret votes of the ballot? It is because the people are contented with having the ‘power; and if ‘this be preserved to them, then they give up everything else to influence or popularity. And, therefore, ‘to pass over those votes which are corruptly given for bribes, o z eS ea tiokiwtiticas ih G28 xa, A>: » ON THE LAWS. ATO do you not see if we could but get rid of canvassing, the question in giving votes would be, what are the wishes i opinions of the best men? By our law, therefore, the appearance of liberty is conceded, the influence of the aristocracy is retained, and the cause of contention banished.
XVIII. The next law is one which relates to those magistrates, whose right it is to treat with the senate and the people. It is an important, and, as I think, an admirable regulation, that in every transaction with the people or with the senate, the utmost moderation should be observed. For the advocate of any measure regulates and moulds to his will, not merely the opinions ‘and inclination, but I may almost say the very features, of his audience. And this is not difficult in the senate, however; for the senator is not a man. whose attention is wholly fixed upon his hearers, but me rather desires to be considered on his own account.
We therefore require three duties from the senator. First, that his attendance in the senate be regular; for the multitude of senators lends weight to the arguments of policy.
Secondly, that he should speak in his turn, that is, when his counsel is demanded.
Thirdly, that he should speak concisely, lest he should become infinitely wearisome; for brevity is the best recommendation of a speech, not only i in the case of @ senator, boul in that too of an orator.