THE POETRY OF ACTION. 39 It would be a logical absurdity to suppose that contingent and empirical facts can depend upon fixed principles; and it is necessary, as each problem is presented to us for inquiry, to examine it upon its own independent evidence, without reference to what may be supposed to be analogous instances. But even in those cases where it was right to work upon the feelings, and invoke the sympathies of the tribunal they addressed, the Roman advocates availed. themselves of expedients which would be condemned by our cold notions of correct propriety. The warm sun of the South quickened the sensibilities of both the speaker and his audience, to a degree that enabled him to venture upon the boldest and most startling appeals, without doing violence to decorum.' The Romans loved the poetry of action, and the strongest figures of rhetoric were often inadequate to express the intensity of their emotions. Some of the great events of their history are impressed with this character, and thereby invested with a kind of dramatic effect. Thus when Brutus wished to overthrow a dynasty, he bore the bleeding body of Lucretia to the forum, for he knew that the sad spectacle would more effectually rouse his countrymen to revolt, than all the burning eloquence of the tongue. And when, not long afterwards, the Commons were bowed down to the dust beneath the load of debts which they owed their patrician creditors, an old man, who had just escaped from prison into which his creditor had thrown him, in squalid rags, pale and famishing, with haggard beard and hair, appeared sud 1 Climate is not without its effect upon the gravity of courts of justice. An amusing instance is mentioned in Ford's Handbook of Spain. The jealous Toledo clergy wished to put down the Bolero (a favorite Spanish dance) on the pretense of immorality. The dancers were allowed, in their defense, to exhibit a specimen to the court. When they began, the bench and the bar showed symptoms of restlessness, and, at last, casting aside gowns and briefs, they joined, as if tarantula-bitten, in the irresistible caper. ing. Verdict for the defendants, with costs. denly in the streets of Rome, and cried in agony to the citizens for help. A crowd collected round him; he showed them the bloody marks of his inhuman treatment; he told them that he had fought in eight-andtwenty battles; that his house and farm-yard had been plundered and burnt by the enemy; he had been forced to borrow; usurious interest had increased the debt to many times its original amount; this he could not pay, and his creditor had, as the law allowed, seized him and his two sons, and put them in chains. The people recognized the features of a brave veteran; compassion and indignation caused an uproar through the city, and the excitement thus occasioned did not finally subside, until in the following year the secession of the Commons to the Sacred Hill gained for them the relief which they had so long sought in vain. The bonds of the insolvent debtors were canceled, and those who had become the slaves of their creditors were restored to freedom (Niebuhr, i. 529, 540). Thus, too, Manlius, when impeached before the people, pointed to the Capitol which he had saved, and was with loud acclamations acquitted. I know not whether we ought to add, as another instance, the memorable deed of Virginius, who plunged a dagger into his daughter's heart, when Appius Claudius had adjudged her as a slave to one of his fawning clients, the perjured minister of his lust; for this was the only mode by which the father could save the maiden from dishonor. But the necessity for such a dreadful act excited the Commons to insurrection, and freed them forever from the tyranny of the Decemvirs. And when Antony wished to excite the feelings of the Roman multitude to the highest pitch of horror and indignation against the murderers of Cæsar, he lifted up the bloody toga, as the body lay upon its bier in the Campus. Martius, and pointed to the rents made in it by the daggers of the assassins. Who does not remember the DRAMATIC SCENES IN COURT. 91 passage in Shakespeare, where the poet, with that intuitive knowledge which enabled him to live in past ages as though they were his own, has seized upon this historical incident, and embalmed it in his own immortal verse? "You all do know this mantle: I remember The first time ever Caesar put it on: Look! in this place ran Cassius' dagger through; Mark how the blood of Cæsar followed it." In like manner the advocates at Rome gave effect to their appeals by producing, on fit occasions, the living image of a client's misery, and his claims upon the compassion of the courts. Thus, when Antony was defending against the charge of pecuniary corruption Aquilius, who had successfully conducted the campaign in Sicily against the fugitive slaves, and was unable to disprove or refute the charge, in the midst of his harangue, after appealing in impassioned tones to the services rendered to his country by the brave soldier who stood by his side, he suddenly unloosed the folds of his client's robe and showed to his fellow-citizens, who sat upon his trial, the scars of the wounds which had been received in their behalf. They could not resist the effect of such a sight, and Aquilius was acquitted. A similiar instance is recorded of Hyperides at Athens, who, when Phryne was accused of some act of sacrilege, bared the bosom of the culprit and bade the judges remember that she was a woman. The artifice succeeded, and Phryne was pronounced not guilty. Thus, too, when Galba was impeached before the people for an act of base treachery towards the Lusitanians, and Cato had delivered against him one of his most terrible harangues, feeling that the danger of conviction was imininent, he snatched into his arms the son of Sulpicius Gallus, his relative, then recently dead, whose memory was endeared to his countrymen, and holding him before the assembled multitude commended his own two sons to their protection, as though he were making a hasty will. At the same time he exclaimed, in tears, that he appointed the Roman people guardians of his orphan children. This saved. him from destruction, for a verdict of acquittal followed the piteous appeal. And when Cicero defended Fonteius against the accusations of Induciomarus and the other Gauls, who had come to Rome to impeach him of corrupt conduct during his prætorian government, he pointed to the mother and sister of his client clinging to him in passionate embrace, and reminded the judges that that sister was a Vestal virgin whose chief tie to earth was her brother's existence. "Let it not be said hereafter," he exclaimed, as the affecting scene was acted before their eyes, "that the eternal fire which was preserved by the midnight care and watching of Fonteia was extinguished by the tears of your priestess. A Vestal virgin extends towards you in suppliant prayer those hands, which she has been used to lift up to the immortal gods in your behalf. Beware of the danger and the sin you may incur by rejecting the entreaty of her, whose prayers if the gods were to despise, Rome itself would be in ruins" (Pro Fonteio, 17). It is, however, needless to multiply instances, for such was the ordinary and recognized mode of working upon the feelings of the court.' Nor was it confined to defenses only, for similar displays were used on the part of 1 Quintilian, vi. I, mentions one or two cases where this attempt at dramatic effect resulted in ludicrous failure. For instance, when Glyco Spiri lion, in the midst of an impassioned appeal, had a boy brought into court all in tears, as though he wept for the loss of his parent, and asked him why he cried so piteously, the urchin, being badly tutored in his part, answered "Because I have just been birched," ex pædagogo se vellicari respondit. PREROGATIVE OF MERCY. 93 the prosecution to excite horror and indignation against crime. Sometimes, if a murder had been committed, a picture representing the foul deed was openly exhibited during the trial, that the eyes of the judges might rest upon the hideous scene, while their ears were listening to the cry for vengeance against the assassin. This appears to our notions of the functions of a judge most reprehensible, but we must remember that there was at Rome no ulterior party, as with us, who could exercise the prerogative of mercy. The court sat not. only as both judge and jury, but it considered itself at liberty to pardon as well as to convict. This may explain what otherwise would seem to be a grevious dereliction of duty in the Roman tribunals. For if they had merely to try the simple question of guilt or innocence, that is, if their duty was confined solely to the investigation of the facts alleged to have been commited, it would have been most improper to admit artifices, the object of which was to disable them from coming to a calm and dispassionate conclusion. But this was not so. The judges represented the state against which the offense had been committed, and as such were entitled to remit the punishment awarded by the law. But this being the case, it was thought unnecessary to go through the form of a conviction and a subsequent pardon by the same tribunal, and the shorter process was adopted of bringing in a verdict of acquittal, which by no means necessarily implied what "not guilty" does with us, namely, the innocence of the accused. Unless we adopt some such theory as this, it seems impossible to understand the appeals to the compassion of judges, who were bound by a solemn oath to adjudicate uprightly and truly, for it would have been an insult to ask them to acquit in cases where the charge could not be denied. It would have been tantamount to beseeching them to affirm a lie. Let me, however, fortify this view by quoting the opinion of Niebuhr on the subject. It |