Ancient Rome and the lawyer

At several points in the school curriculum reference is made to the impact of ancient Greece and Rome on our own modern legal and political ideas, and on western civilization generally. This is even more the case in those provinces emphasizing history, and especially traditional history, as a point of departure in lesson planning. In a recent issue of Law Now, we touched on the trial of Socrates as the most common item likely to arise in a discussion of ancient Greece. In this issue, we use an example from ancient Rome as a backdrop for discussing some issues that arise for a defence lawyer. 

Pre-modern Roman history is a vast topic, both in terms of its living legacy in modern systems and in its own evolution over long periods. School curriculums, however, seem most likely to visit the first century BC, and to mention Justinian's Code from the mid-sixth century AD. The first century BC is important because it features the transition from a republican form of government, one which has been much studied as an example for modern republics like the United States, to a period of imperial rule. It is the period made famous by Shakespeare, the period of Julius Caesar, Brutus, Mark Anthony, Cleopatra, and the Roman empire as it was at the birth of Christ. Discussions touching legal items in first century BC Rome usually include some reference to the career of Cicero (106-43BC). Cicero served in many capacities during his public career, including that of judge and legislator, but his reputation in law arises from his being an lawyer for the defence in several high profile murder trials. Indeed, there is a sense in which Cicero is the prototypical lawyer for the defence as that character arises from time to time in our own systems, for example a Clarence Darrow, a Gerry Spence, or, in Canada, perhaps a Clayton Ruby. Justinian's Code might be the most common touchstone in brief historical treatments of the Roman legacy in the west. In a later issue of LawNow, we will provide teachers with more information about the Code, and some consideration of the phenomenon of codification. In this issue, we use Cicero to raise problems associated with being a lawyer for the defence. 

In our LawNow treatment of the trial of Socrates, we referred to the Autumn 1997 issue of Heritage Post. In that publication, there was a discussion of the problem of making history come alive for students. The problem is one of assisting them to become more engaged with an historical topic, and the implicit issues in the topic which, sooner or later, will be relevant in their own lives. Kieran Egan, a professor of education at Simon Fraser University claims: "You can't just tell young children a bunch of facts. It has to be within a story context. Now the story doesn't have to be once upon a time or fictional, but it has to have a beginning, set up some kind of conflict, and be engaging emotionally. Nearly any historical content can be put into this context." (p. 21 and 22 of the autumn Heritage Post.) The following treatment of Cicero is presented in that spirit. 

Cicero's Dilemma 

In ancient Rome, there lived a man called Cicero. He was born about 106 BC and lived for 63 years. In his time, Rome was the centre of a growing empire. As the empire grew, so did the ambitions and desires of its leading families. These families formed powerful groups which competed for control of public offices. Public offices and institutions were not only a source of political power, they became used for financial gain. Taking bribes or selling access to public services was common. 

The means used to gain control of these valuable public offices were not always legitimate. The intrigue of first century Rome could compare with a science fiction plot like Star Wars. Indeed, the Roman empire of that time has probably been a source for many fictional evil empires. Violent campaigns against public figures occurred frequently. Important figures were sometimes murdered by those in other factions or even by ambitious people within their own groups. Cicero himself was murdered on the orders of Mark Anthony, a leader of an opposing group. 

Sometimes, when one group had control of certain political and judicial functions, trials and official executions were little more than a means of murdering one's opponents. Now, if a powerful figure wanted to use the courts to get rid of an opponent, it was a dangerous job to be the lawyer for the defence. Yet Cicero made a career for himself from defending important figures who were charged with important offences, like murder. In these cases, conviction might mean losing one's property to the prosecutor, or it might mean the death penalty. And sometimes, winning an acquittal for a client could mean making enemies among powerful people willing to kill people they did not like. 

Cicero first became well-known for defending, and winning the acquittal, of an innocent man, Roscius, charged with murder. The ruthless dictator governing Rome at the time wanted Roscius dead, and so everyone else was afraid to defend him. After the trial, Cicero feared for his own life and left Rome. When the dictator died, Cicero returned and began a long career during which he was, at various times, a lawyer for the defence, a prosecutor, a judge, a senator and a consul, the most important political office in Rome. 

Soon after beginning his career in earnest, Cicero was confronted with a dilemma: he was asked to defend someone he thought had probably committed murder. Should he work for the benefit of someone who probably should be found guilty of the charge for which he or she was being tried? Supposing he did and this murderer went free? Now, in addition to being an lawyer, Cicero was an letter writer. So Cicero may have written a letter to a wiser friend asking for advice about representing people who have done the deeds for which they have been charged. 

Cicero's letter: To Atticus: 

Greetings and good health old friend. I wish I could join you next month at your villa in Pompeii. The breeze from Mount Vesuvius is always so refreshing this time of year. Here in Rome, the atmosphere is stifling as usual. The recent death of Oppianicus by poisoning has not made the air any lighter. Cluentius, the eldest son and heir of Oppianicus, has now been charged with his father's murder. It is on this matter that I would like your advice. 

Cluentius visited me yesterday and asked me to represent him at his trial for the murder of his father. While in my office, after securing my promise that what he said would not be repeated in any legal proceeding (and I must ask the same of you before you read on), he hinted at things which led me to think he had directed a slave to place poison in his father's lunch. Indeed, I got the impression that he may have done the same thing twice last year to kill people opposed to his election to a minor political office. Cluentius hopes I can convince the court that he should go free, or at worst be exiled for a time, rather than suffer the penalty for this crime, which is death. 

Anyone defending Cluentius will have several arguments at his disposal. Most important is that the state may not be able to present a convincing case. The state is not an infallible deity. It should concern itself with punishing only those it can absolutely prove committed a prohibited action. It is not good policy for a state to be obsessed with punishing all whom it believes deserve punishment whether it can prove this or not.. This is an impossibility. The state should be more concerned with making sure it has all the right facts and no doubt in those important cases where it does deliver punishment. 

In this case, the only witness, Cluentius' slave, is now dead himself as the result of eating the same kind of poison. I could argue that the slave perhaps acted alone and then committed suicide in remorse. The slave had access to the poison, and was the one who procured it in the market. Cluentius has an alibi. He was at a party in a popular restaurant elsewhere in the city. Although known to be ambitious, and having a reputation as a lout and a bully, Cluentius has never been convicted of any crime. His record is good whatever his reputation. A person's reputation should make no difference in the court's pursuit of the facts in any case. 

Then there is the surviving family. Cluentius' sister and mother are devoted to him. Who else but a family member would care the same for the welfare of the sister, the widow, and the whole vast estate created by the father? Why should this innocent family now risk a slow decline into poverty after the unfortunate death of the father and husband? Should I not at least help Cluentius to bargain for a lesser punishment so he can look after the family? 

I know that as a lawyer my main duty is to ensure that the law is well-applied. As lawyer for the defence, my task is to make sure the defendant gets a fair trial. I should not allow myself to become emotionally involved in the outcome of any case. However, I am also a citizen. As a citizen, I would not want to see Cluentius go unpunished, free to poison again. Should the public safety be put at risk merely because the prosecution is poor, because of lack of evidence, or lack of the resources to gather evidence? Suppose people deserving punishment go free simply because the prosecution is incompetent? Won't that soon lead to a lack of respect for public institutions? How long will it be before people fear for their safety and begin locking themselves in their homes, prisoners of a city that will not take away the freedom of those who have proven themselves incapable of civility? Yet if innocent people are convicted because of an inadequate defence, isn't there equal reason for fear for our safety? 

Should I withdraw and let Cluentius find some lesser lawyer, someone who might be less skilled than the average prosecutor? Or should I represent him, knowing any accused deserves a proper defence, and hope the system performs well enough to convict those who should be convicted regardless of the skill of the defence lawyer? And, if Cluentius happens to go free, is that the price our society is willing to pay because we would rather have a system that lets a few guilty go free than a system that risks punishing anyone innocent? 

My friend, at the same time these thoughts race through my mind, I confess I also think of my own career. The greatest renown is won by speeches defending people. A single person against the whole power of the state makes even the worst person an underdog. This case will be widely watched and people will talk of it everywhere. If Cluentius goes free because of my skill in showing the weaknesses in the prosecution's case, I will become famous and my career will benefit immeasurably. Nor will my career be harmed if Cluentius is convicted. The prosecution's case will be incontrovertible and, in any case, he deserves the penalty. I will gain renown as someone who did a public service by providing the best defence possible in an unpopular and hopeless case. That someone would do this distasteful service helps to show our society is committed to the principle of justice for all. 

Yet Cluentius is ruthless and without remorse. He will almost certainly continue to kill anyone who stands in his way. If I am instrumental in securing his freedom, then I might just as well be sprinkling poison on bread in the market. It is only a matter of time before someone else dies. And it will not be our society that risks many future sleepless nights from a disturbed conscience, but myself. I may even be his next victim, suspecting what I do about his father's death and his other activities. 

Atticus, please help me weigh all these concerns and decide what to do. 

Student Exercise 

You are Atticus. Write a letter to Cicero giving your advice. Should he represent Cluentius or not? Explain why. You can draw your ideas from Cicero's letter, and also feel free to add ideas of your own. Explain which of Cicero's worries he should consider the most important, and why you think the other things he worries about are less important. 

What actually happened 

In 66 BC, Cicero defended Aulus Cluentius Habitus who was charged with murdering his stepfather Oppianicus and two others. The poison, if the victim's sudden death was from poison rather than from a heart attack, was administered to Oppianicus not by a slave but by a mutual acquaintance. The prosecution was begun by Cluentius' stepbrother at the urging of Cluentius' mother. There is no record of Cluentius admitting the crime. The Roman writer Pliny described Cicero's speech in this trial as his longest and best ever. The defendant went free. 

Several writers have remarked on the weakness of the defence's case, and supposed that Cluentius was guilty. However, this may not have troubled Cicero. As far as we know, Cicero was the first lawyer to write down his thoughts on the problem of representing people who have done the deed with which they are accused. He makes the case in favour of their defence in his essay "On Duties." (Cicero, On the Good Life, Penguin Classics, 1971, pp. 146-7.) Cicero does suggest some caution with respect to the representation of depraved and wicked characters. He also makes the point that settling on the truth of a matter is the concern of those sitting in judgment, not the concern of an lawyer interpreting the facts. He says it is okay for a defence lawyer to make things seem different than a straight-forward reading of the facts would lead one to conclude. 

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