by Cicero
28
‘Be sure to employ it in the best kinds of activity. Now the best concerns are for the safety of one’s country. When the mind has been engaged in and exercised by those concerns it will fly more quickly to this, its dwelling-place and home. And it will do so the more readily if, when still enclosed in the body, it already ventures abroad and, by contemplating what lies beyond, detaches itself as much as possible from the body. As for the souls of those who devote themselves to bodily pleasures and become, so to speak, their willing slaves, and are impelled by the lusts that serve pleasure to violate the laws of gods and men—those souls, on escaping from their bodies, swirl around, close to the earth itself, and they do not return to this place until they have been buffeted about for many ages.’
He departed, and I awoke from sleep.*
UNPLACED FRAGMENTS OF THE REPUBLIC
1. [Loeb, frag. 2] It is a difficult matter to praise a boy, Fannius; for then one has to praise promise, not achievement (Servius on Virgil, Aeneid 6. 877).
2. [Loeb, frag. 3] ‘If it be granted to any man to mount to the regions of the gods, for me alone the huge gate of heaven stands open’ … That is true, Africanus, for that same gate opened for Hercules also (Lactantius, Divinae Institutiones 1. 18).
THE LAWS
THE LAWS
BOOK 1
1–15. Poetic and historical truth. The dearth of Latin historians. The scene is set
ATTICUS: I recognize that clump of trees and also this oak* which belongs to the people of Arpinum; I have often read about it in Marius. It that oak still survives, this must be it; and indeed it’s a very old tree.
1
QUINTUS: It does survive, my dear Atticus, and it always will; for it was sown by the imagination. No stem tended by a farmer can last as long as one planted by a ‘poet’s verses.
ATTICUS: And how, may I ask, is that, Quintus? What kind of a thing is it that poets plant? I suspect you are flattering your brother to solicit support for yourself!*
QUINTUS: No doubt you’re right. But as long as Latin literature has a voice, this place will have an oak-tree called after Marius; and, as Scaevola* says about my brother’s poem, ‘it will grow grey o’er countless centuries’. Or perhaps the Athens you love has managed to keep the olive-tree* on the Acropolis alive for ever? Or the tall young palm which they point out today on Delos is the very one that Homer’s Ulysses* said he had seen there? Many other things in many places have survived longer by virtue of tradition than they could possibly have lasted in the course of nature. So let this now be that ‘acorn-laden oak’* from which ‘the tawny messenger of Jove in wondrous form’ once flew. But when weather or old age has destroyed it, there will still be a tree in this place which they can call Marius’ oak.
2
ATTICUS: I’ve no doubt about that. But here’s a question I want to put—not to you, Quintus, but to the poet himself. Was it your verses that planted this oak, or were you told that this episode was witnessed by Marius as you describe it?
3
MARCUS: I’ll answer that, Atticus; but first you must answer this for me: is it a fact that after his death Romulus walked up and down not far from your house* and informed Julius Proculus that he himself was a god, Quirinus by name, and ordered a temple to be dedicated to him in that place? And is it true that in Athens (again not far from your old house) Aquilo carried off Orithyia?* For that’s what they say.
ATTICUS: What on earth is the point of that question, and why do you ask it?
4
MARCUS: For no reason at all, except to warn you against inquiring too closely into things that are handed down in that way.
ATTICUS: Still, there are many points in Marius which raise the question whether they are fact or fiction; and some people expect you to tell the truth, because you are dealing with the recent past and with a local personality.
MARCUS: I certainly don’t wish to be thought a liar. But, my dear Titus, the people you mention are being naive; they are demanding in this case the kind of truth expected of a witness rather than a poet. I suppose the same folk believe that Numa conversed with Egeria and that an eagle placed a crown on Tarquin’s head.
QUINTUS: I take it, Marcus, that in your view one set of rules must be followed in a work of history, another in a poem.
5
MARCUS: Yes, because in the former everything is measured by the standard of truth,* Quintus, whereas in the latter the main purpose is to entertain. And yet there are countless yarns in Herodotus, the father of history, and in Theopompus.
ATTICUS: This gives me an opportunity which I’ve been waiting for, and I shan’t let it slip.
MARCUS: And what’s that, Titus?
ATTICUS: You have often been asked, indeed pressed, to write a work of history. People think that if you took it on we would succeed in rivalling the Greeks in that genre too. And if you want my own opinion, I think you owe this as a duty not only to the enthusiastic people who enjoy your writings but also to your country, which you once saved and now have the chance to glorify. For, as I myself recognize and have often heard you say, our literature is lacking in the field of history. You above all people could supply this need, since, as you often maintain, this kind of writing is so closely akin to oratory.*
So do, please, take on this work, and devote some time to an activity which is still unknown or ignored by our own writers. For after the Annals of the Pontifex Maximus* (the most meagre source imaginable), if one comes to Fabius or Cato, whom you are always quoting, or to Piso or Fannius or Vennonius, then, although one of these has more vitality than another, what could be more insipid than the entire group? Coelius Antipater, who was close in time to Fannius, had a bit more spirit in his writing. Though his power was uncouth and primitive, without any polish or finesse, he could have stimulated his successors to write with greater care. But in fact he was succeeded by Gellius,* Clodius, and Asellio, who cannot stand comparison with him but hark back, rather, to the older writers with their slackness and incompetence.
6
I doubt if Macer is worth counting. His verbosity has a certain shrewdness, but it does not come from the learned storehouse of Greek rhetoric but from Latin hacks;* his speeches, moreover, contain a good deal of ill-judged elevation and show a total lack of propriety.* His friend Sisenna easily surpasses all our writers to date, except, perhaps, those who have not yet published their work,* in which case we can have no opinion about them. But he has never been put in your class as an orator; in his history he has a childish ambition: he wants to give the impression that he has read Cleitarchus alone among Greek writers and that he merely aspires to imitate him. If he had managed to equal him he would still have been some way from the best. So this is your task, and yours alone, and people expect it of you—unless Quintus disagrees.
7
QUINTUS: Not at all; in fact we have often talked about that. But there is a minor difference of opinion between us.
8
ATTICUS: And what is that?
QUINTUS: From what period should he begin his narrative? I think he should start from the earliest times, since those events are recorded in such a style that they are not even read about. But he himself claims the right to handle the history of his own period in order to include the events in which he himself took part.
ATTICUS: I’m inclined to agree with him. For things of enormous moment have happened in the memory of our generation. In addition, he will glorify the achievements of his great friend, Gnaeus Pompeius, and will also reach the glorious and unforgettable year* of his own consulship. I would sooner he recounted these events than, as they say, ‘the story of Romulus and Remus’.
MARCUS: I am aware, Atticus, that this work has long been expected of me. I would not shirk it if I had any free time available. But one cannot embark on a thing of such importance when one’s programme of work is full and one’s mind is already occupied. Two things are needed: freedom from work and freedom from worry.
ATTI
CUS: What about the other things you have written— works more voluminous than any of our countrymen have produced? What time, pray, did you have available for them}
9
MARCUS: Oh, bits of spare time crop up which I don’t allow to go to waste. When I am given a short break in the country, my writing has to be fitted into that number of days. But you cannot start a history without setting free time aside; and it cannot be finished in a short period. Moreover, I tend to become confused if, after starting a project, I have to turn to something else. And it’s not so easy to pick up the threads again after breaking off as to take a thing through from start to finish.
ATTICUS: What you have just described evidently calls for a diplomatic mission* or a leisurely carefree holiday of that sort!
10
MARCUS: 1 was counting rather on the holiday that comes with old age. I would be quite willing to sit on a chair in the good old style advising clients on points of law and carrying out the pleasant and respected function of a reasonably active old age. In that way I would be able to give as much attention as I wished to the project which you desire and to many larger and more rewarding matters.
ATTICUS: Ah, but I’m afraid no one will accept that excuse. You will always have to plead in court, especially now that you have changed and adopted a new style of speaking. Just as your friend Roscius in his old age employed a more relaxed delivery in the sung passages* and had the pipes play more slowly, you are gradually modifying those strenuous efforts which you used to make. As a result your delivery is now more akin to a calm philosophical discourse.* Since this style can apparently be maintained even in advanced old age, I don’t see you getting any respite from court work.
11
QUINTUS: I was rather thinking that our people might well approve of it if you spent your time giving advice on points of law. So when you feel inclined I think you should try it.
12
MARCUS: That would be fine, Quintus, if there were no risk in trying it. But I suspect that in attempting to cut down my work I would actually increase it, and that on top of the court work (which I never undertake without preparation and rehearsal) I would be faced with this business of interpreting the law. That would be a problem, not so much because of the effort involved as because it would prevent me from giving thought to my speeches. Without that, I have never dared to undertake any major case.
ATTICUS: Why don’t you explain these matters to us in those ‘bits of spare time’, as you call them, and put together a more thorough account of civil law than others have done? You have always been interested in law from those far-off years when we attended Scaevola’s consultations* together, and you have never seemed to be so totally committed to speaking as to neglect the study of civil law.
13
MARCUS: You are luring me into a lengthy disquisition, Atticus! Still I will undertake it, unless Quintus would sooner we did something else. Since our time is our own, I’m happy to state my views.
QUINTUS: And I’m happy to hear them. There’s nothing I’d sooner do; and how could I better spend the day?
MARCUS: Why don’t we follow our usual path, where the seats are? When we’ve had enough walking we can take a rest; and we’ll certainly not be short of entertainment as we discuss the various questions.
14
ATTICUS: Count me in. If you like we can go down here by the Liris—along the bank where there’s shade. So now—make a start, please, and tell us your opinions about civil law.
MARCUS: Shall I? Well, there have been able men, I think, in our country who have regularly expounded civil law and answered people’s questions about it. But although they have promised great things they have dealt with small details. What is so majestic as the law of the land? Yet what is more petty than the function of those who answer queries? It is, of course, necessary for the public, and I don’t mean that the men who performed that task were ignorant of law in general; but they practised what is called civil law only with the intention of making it available to the people. That, though practically necessary, is intellectually undemanding. So what do you want me to do? What are your instructions? That I should write little handbooks about the regulations for party-walls* and gutters?* Or list the rules for contracts or court procedure? Such things have been diligently compiled by many writers, and they are less significant, I fancy, than what you expect from me.
ATTICUS: If you want to know what / expect, it seems logical that since you have written about the best constitution you should also write about its laws. For that, I notice, is what Plato did— your idol and favourite, whom you revere above all others.
15
MARCUS: Well, shall we do what he did? With the Cretan Cleinias and the Spartan Megillus, he discussed political institutions and the ideal legal code on a summer’s day, as he describes it,* among the cypress trees and wooded paths of Cnossus, often pausing and sometimes resting. So shall we, as we walk by these tall poplar-trees on the green and shady river-bank and occasionally sit down, discuss these same issues rather more fully than the courts require for their purposes?
16–35. The nature of law must be sought in the nature of man. Man is a single species which has a share in divine reason and is bound together by a partnership in justice
ATTICUS: I would certainly like to hear about such things.
16
MARCUS: And what does Quintus say?
QUINTUS: There’s nothing that I’d sooner hear about.
MARCUS: Quite right too; for you may be sure that there is no topic which brings out so clearly* what nature has bestowed on man, how many excellent things the human mind contains, what task we were born and brought into the light to address and accomplish, what sort of factor unites human beings and what natural fellowship exists between them. For these matters must all be clarified before the source of law and justice can be identified.
ATTICUS: Does this mean that you consider the science of law to be derived, not from the praetor’s edict* (as most authorities hold today), nor from the Twelve Tables* (as our forefathers believed), but from the deepest recesses of philosophy?
MARCUS: That’s right, Pomponius. For in this discussion, we are not asking how to frame legally binding conditions or how to answer this and that question for our clients. Let’s suppose such problems are important, as indeed they are. They have been handled by many distinguished men in the past, and are now being dealt with by a person* of the greatest expertise and authority. But in our present analysis we have to encompass the entire issue of universal justice and law; what we call civil law will be confined to a small, narrow, corner of it. We must clarify the nature of justice, and that has to be deduced from the nature of man. Then we must consider the laws by which states ought to be governed, and finally deal with the laws and enactments which peoples have compiled and written down. There the so-called civil law of our own people too will not be overlooked.
QUINTUS: You certainly are going far back, Marcus! Quite 18 rightly, you are tracing the object of our search back to its source. Those who present civil law in a different way are presenting modes of litigation rather than justice.
MARCUS: Not so, Quintus. Ignorance rather than knowledge of the law leads to litigation. But that can wait till later; now let’s inspect the first principles of justice.
Well then, the most learned men* have chosen to take law as their starting point. I’m inclined to think they are right, if indeed (as they define it) law is the highest reason, inherent in nature, which enjoins what ought to be done and forbids the opposite. When that reason is fully formed and completed in the human mind, it, too, is law. So they think that law, whose function is to enjoin right action and to forbid wrong-doing, is wisdom. And they believe it received its Greek name* from giving each his own. I think its Latin name* comes from choosing. As they stress the element of fairness in law, we stress that of choice; but in fact each of these is an essential property of law. If this assertion is correct, as on the whole I think it is, the or
igin of justice must be derived from law. For law is a force of nature, the intelligence and reason of a wise man, and the criterion of justice and injustice. At the same time, as our whole discourse has to do with ordinary ways of thinking, we shall sometimes have to use ordinary language, applying the word ‘law’ to that which lays down in writing what it wishes to enjoin or forbid. For that’s what the man in the street calls law. But in establishing what justice is let us take as our point of departure that highest law which came into being countless centuries before any law was written down or any state was even founded.
19
QUINTUS: Yes, that’s more fitting and sensible in view of the method we have chosen for our discussion.
20
MARCUS: Shall we, then, look for the origin of justice at its source? Once we have found that, we will have a reliable standard for testing our investigations.
