tate was amassed by a plebeian lawyer at a time when the law of Rome prevented an advocate from charging a client for his services, we can hardly conceive what Hortensius might have accumulated if a lawyer had been allowed to make charges to his clients.

It is reported that, a few months before his death, he defended his nephew, Messala, who was charged with illegal canvassing, and secured his acquittal, more because of the brilliant defense of his advocate than the lack of evidence of his guilt.81

That the Roman lawyers maintained the time-honored spirit of "professional courtesy" and removed from their personal relations all the acrimony and personal conflicts of their clients is evidenced by the oftquoted, but beautiful and touching, tribute which Cicero paid to the memory of Hortensius after his death:

"When I received the news of the death of Hortensius, it was obvious to all how deeply I was afflicted. * * My sorrow was increased by the reflection that, at a time when so few wise and good citizens were left, we had to mourn the loss of the authority and good sense of so distinguished a man, who had been intimately associated with me through life, and who died at a period when the State most needed him; and I grieve because there was taken from me, not, as many thought, a rival, who stood in the way of my reputation, but a partner and companion in a glorious calling; for, if we are told that, in a lighter species of art, noble-minded poets have mourned for the death of poets, who were their contemporaries, with what feelings ought I to have borne his loss with whom it was more honorable to contend than to be without a competitor at all, especially as his career was never embarrassed by me nor mine by him, but, on the contrary, each was assisted by the other, with mutual help, advice and encouragement."

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(31) Cic. Ep. ad Fam. 8, 2. (32) Cic. de Claris Oratoribus.

Marcus Tullius Cicero was, by far, the greatest legal luminary of the Republic, and the magnitude of his labors as orator, advocate, consul, author, teacher, philosopher and commentator, was so prodigious that he stands without a rival, and, in spite of his vacillations and conceits, even after two thousand years, the profession must bow in awe and reverence to this great name, which heads the list of Roman lawyers, the most eloquent of the sons of Romulus!

His first important case was the defense of Roscius Americus, accused of parricide. His prosecution of Verres, who was defended by Hortensius and the Metelli, resulted in the exile of Verres. He signified his consulship by crushing the conspiracy of Cataline, and was then hailed as "The Father and Deliverer of his Country." Claudius finally accomplished his exile. He was welcomed home by the Senate at the city gates but Milo finally killed Claudius, and Cicero unsuccessfully defended him for his murder.33 Long and vain struggles for the Republic with both Pompey and Caesar; of his phillipics against Antony; his divorce of his imperious and violent-tempered wife, Torrentia, at sixty-two, and his marriage to his ward, Publilia; his distraction over the death of his beloved daughter, Tullia; his disappointment over his wayward son; and the loyalty of his freedman, Tiro, who became his amanuensis and his editor are familiar to all students of Roman history.

Who of his period could reproduce for us the life and events of Rome like Cicero? Does he not actually introduce you to the trader, Cheria, "with his eyebrows shaved, and that head which smells of tricks, and in which malignity breathes" 234 Can you not see the praetor, Verres, taking an airing in a litter, with eight slaves, like a king of Bithynia, softly lying on Malta roses?35 Or Vatinius, suddenly starting

forth, "with eyes glaring, his neck swollen, his muscles streched" ?36 Do you not almost feel that you have brushed against the Gallic witnesses who walk about the Forum with an air of triumph and head erect!87 Or the Or the Greek witnesses, who chatter without ceasing and gesticulate with their shoulders ?38 Clearly his powerful mind embalmed them in history for all time.

Cicero preferred to defend rather than to prosecute, "as more in accordance with the promptings of his nature and his usual feelings," as he explains in the defense of Muraena, and, in his twenty-four orations now extant, he appeared as prosecutor in only three, not including his orations against Cataline and Antony, which were delivered as a statesman in the Senate, and not as an advocate.40

After so fondly craving for his dear Rome, a Republic based on liberty and law, "with a supreme and royal power, another part reserved for the authority of the chief citizen, and certain things left to the judgment and will of the people" what a disappointment he must have felt to actually have to contemplate the rivalry of the conspirator, Cataline; to find himself the victim of the cruel and dissolute Claudius, and, instead of a free, proud Roman, to become the vassal subject of a Caesar!

While all of Cicero's orations in defense of his clients or for the prosecution are most interesting and instructive, his defense of Licinius Muraena, who defeated Servius Sulpicius, after a severe contest, for the Consulship, and was then accused of bribery and corruption to carry his election, is perhaps the most adroit. Muraena was a soldier, while Sulpicius was a lawyer. Sulpicius was assisted in the prosecution by Marcus Cato, Postumius, and a son of Sul

picius; while Crassus, Hortensius and Cicero appeared for the defense. Cicero had supported Sulpicius in the election, and he complained that he violated their ancient friendship in appearing for Muraena. Hortensius and Crassus preceded Cicero in the argument for the defense, but their orations have not been preserved. Cato accused Cicero of bad faith in having, as Consul, helped to secure the law against corrupt practices and elections, and then appearing to defeat such a law. Cicero compared himself to a mariner, who had returned from a perilous voyage, and should point out, to one about to sail, the rocks and shoals to be avoided, and "What," he asks; "is more natural than that a Consul should be defended by a Consul?" He admitted that he would assume an inconsistent position, after having procured a law against bribery, if he afterwards denied that bribery were an offense under such law, but that was a far different thing than to merely deny that his client had committed acts forbidden by the law. He denied the principle that a lawyer can not defend even his enemy against the false accusation of his friend, for, if this were true, it would apply equally to Crassus, Hortensius and others, and, hence, a consulelect would be denied counsel, although the wisdom of their ancestors had provided that the lowest citizen should not be denied an advocate.

Sulpicius was a patrician, and Muraena was of the plebeian order. Cato had called him a "dancer" and Sulpicius had said he came from an "upstart family." Cicero tells Cato that a man of his authority "ought not to pick up nicknames in the street or use the scurrilous language of buffoons;" and advises Sulpicius that his lineage, though noble, is known only to bookworms, while his father was only a knight, and his grandfather had no particular eminence. "I little thought," he said, "that, when a consul-elect, born of an old and distingushed race, was defended by the son of a mere Roman knight, himself

a consul, his accusers would venture to speak of 'upstart families'." He contrasts the services of Sulpicius, as a consulting or chamber lawyer, to the distinguished military service of Muraena, as the Lieutenant of Lucullus, in Asia Minor.

Cato had complained of many dinners, and because crowds had followed Muraena on the streets, and Cicero asks him: "Prove that they were bribed to do it, and I admit that it was an offense. Without this, what have you to find fault with? Do you ask me what need there is for that which has always been a custom among us? The lower classes have only this one opportunity in our election contests for showing gratitude or conferring obligations; do not, therefore, Cato, deprive them of the power to do this service."

Muraena was acquitted.

Cicero's defense of Cluentius, accused of murder of his stepfather by poison, was one of his most elaborate and successful

efforts, and his admonition regarding the duty of a trial jury in a criminal case is like the charge of a modern court; he says:

"I can not doubt, gentlemen, that, if you were to sit on the trial of a man who was beyond the reach of the statute under which he was indicted, although his character might be odious, and himself personally obnoxious to you, and you might feel very reluctant to pronounce a verdict of acquittal, you would, notwithstanding, acquit him, and respect your oath, rather than gratify your dislike, for it is the duty of every intelligent juryman to consider that the functions with which he is invested by the State are limited to the extent of his commission, and he must remember that, not mererly power has been delegated to him, but trust reposed in him. It may be his duty to acquit one whom he detests, or to convict another against whom he has no feeling of enmity. He ought ever to consider, not his own wishes, but the obligaHe should carefully attend to the particular tion which the law and his oath imposes. statute on which the indictment is framed, the kind of person accused, and the nature of the offense charged, and, in addition to all this, a wise and honest citizen, when he enters the jury box, ought to remember that

Another interesting case that Cicero defended was that for the talented soldierlawyer, Caelius, who studied under Cicero and developed into quite an erratic, though eloquent, orator, as well as a kind of Roman Don Juan and Beau Brummel. He was accused by the patrician courtezan, Clodia, the sister of the dashing and reckless libertine, Claudius, widow of Metellus Celer, and also a descendant of the noble Appius Claudius, of an attempt to poison her. Because of the high standing of the parties involved, all Rome was, no doubt, set agog with this case, and it became "the talk of the town."

After his election as quaestor, Caelius quit his father's home and rented a fashionable house from the former Tribune, Appius Claudius, on the Palatine, and it was here that he met the charming Clodia. Clodia, at this time, was a young widow and an educated, attractive and popular female, with many admirers. It is said she wrote verses and danced better than it was honest woman thought a proper or an could do.43 She had many male friends, and not a few lovers, and, feeling that her patrician blood would excuse all excesses, continuously shocked the more exacting citizens of Rome by her defiance of custom and the rules of decorum, for which this ancient, classic city was renowned.

Caelius also danced well, was of good physique and handsome appearance; spent his money lavishly, and dressed with such taste that the beauty and breadth of the purple band that bordered his toga made of him at once a strking and attractive perThe poet, Caius Valerius Catullus, was also a lover of Clodia and a rival of

son.

Caelius," and his poem to Lesbia is said to have been addressed to Clodia, whom he compared to the Lesbian Sappho.

Caelius tired of Clodia before she was willing for him to leave her side, and all her love and passion, from the day that she realized she was a woman scorned, turned to hatred and she determined to destroy Caelius. On advising with his enemies, she concluded to accuse him of several crimes, and, among them, of an attempt to poison her.

Caelius was defended by his friends, the wealthy Crassus and Cicero. Cicero commenced his argument by observing that he was "not the enemy of women, and, still less, of a woman who was the friend of all men," but he proceeded to portray Clodia in her true colors, as the degenerate descendant of the noble Appius Claudius. He promised that Caelius would mend his ways, and he was acquitted, but, from the racy and gossipy letters which Caelius wrote Cicero after his departure to the camp of Pompey, it may be doubted whether he really reformed or not. At thirtyfour, he was killed by soldiers of Caesar at Thurium, and the sage, Quintilian observes of him: "He was a man who deserved to have had a juster sense of conduct and a longer life."45

That the lawyers of ancient Rome adhered truly to the time-honored rule requiring adversaries at law to "strive mightily but eat and drink as friends,"46 is abundantly sustained in the chronicles of "Cicero and His Friends."47

It is most interesting to study the friendly relations existing between the great lawyers of the time of Caesar and Cicero and to follow up the influences that led to the conspiracy which ended in the death of Caesar; of the noble part played by Cato the younger, and the noble Marcus Brutus, of whom Caesar said: "All that he wills, Ovid Trist, II, 427; Apul. de. Mag. 10. (45) Inst. Orat. X, 1.

(44)

1748

he means. slavery is advantageous enough to make one abandon the resolution to be free," and that it was "better to command no one than to be a slave."50

Brutus believed that "no

While, according to the judgment of society. Brutus was guilty of murder and treason, we can but agree with Shakespeare that he was the most altruistic, idealistic criminal of antiquity, for he regarded Caesar as a usurper, and reasoned himself into believing that he had a right to kill him for the general good of Rome.

All of the leading lawyers of that fighting age were soldiers, and many of the soldiers were lawyers.

Cicero, in the defense of Ligarius, before Caesar, refers to the fact that "I have pleaded many causes, Caesar, and some even with you as my coadjutor, while you paved the way to your future honors by practice in the Forum."51 Tacitus also observes that "Caesar, the Dictator, was on a par with the greatest orators."

1752

While none of Caesar's orations have preserved, his contemporaries mention three speeches he made against Dolabella, who was accused of pecuniary corruption, and who was successfully defended by Cotta and Hortensius, and three against Domitius and Memmius. He also represented some of the Roman dependencies, and appeared for Greece on one occasion, when he was said to have spoken with remarkable eloquence and propriety of expression.53

It is as true now as in the days of Lord Coke that "out of the old fields cometh the new corn." Like ourselves, these ancient lawyers of Rome were but shadows, moving swiftly in the sun, and yet such men as Cicero, Cato and Brutus gave to those shadows a certain reality of setting the example of associating with the law and letters an eloquence and nobility and upright

ness of purpose, which has made through the centuries for the straightforwardness, purity and elevation of humanity.

From the point of view of the solar system, the greatest incidents of their lives. were no more than the little happenings of the ants that hurry to and fro upon their little hills, and yet, to the family of the ants, their happenings are all important.

The memory of these men should remain forever bound in an aroma in the minds and hearts of the lawyers of successive ages.

For five hundred years following the overthrow of the Republic of Rome, aside from Aemilius Papinianus, or until the age of Justinian, Trebonius and a few lawyers of distinction of that epoch, there appeared but a few great lawyers in Rome. On this subject, we have the credible evidence of Tacitus, who, a little more than a century after the death of Cicero, wrote:

"Often, you have asked me, Justus Fabius, why, when former ages were so distinguished by the genius and renown of orators, our own age, destitute and bereft of glory, scarce retains the very name, for we style none such now, except the ancients; but the speakers of the present day are called pleaders, advocates and barristers, and anything rather than orators."54

Our time resembles that in which the lawyers of the Roman Republic lived. The lawyers of that time knew, even as we know, that contempt for the Constitution and the traditions of the fathers, with the growing discontent for the present, will inevitably bring to a precipitous end the tranquil enjoyment of personal and property rights, guaranteed by established law. We see ourselves in them, and this is what at tracts us to them, and this is why we should be benefitted from a short visit with these Roman lawyers who, in spite of the centuries, seem to be almost of our own generation.

St. Louis, Mo.

EDWARD J. WHITE.

(54) Tacitus de Causis Sorruptae Eloquentiae.

FELLOWS, J. Plaintiff corporation was in the business of selling trucks on installment contracts. It entered into a contract of insurance with defendant insurance company, insuring it, among other things, from loss and damage occasioned by collision. Collision insurance, as we understand the record and briefs, is usually accomplished by attaching a rider to the policy. The record does not contain a copy of the rider, so we have not its specific language before us, the case having been submitted on an agreed statement of facts, from which it appears that there was "full coverage collision" insurance. Plaintiff corporation had sold to plaintiff partnership a truck on installment, and had an insurable interest in it. The accident and the question presented is thus fairly stated by defendant's counsel in their brief:

"The truck was loaded by means of a steam shovel; that is, by a scoop connected with and swinging from the arm of a derrick. The scoop was filled with crushed stone, lifted by the derrick arm, swung over the truck, lowered to the proper position, and open to allow the stone to fall into the truck body. At the time of the accident, the loaded scoop, while over and above the truck, fell from some unexplained reason upon the truck, causing damage to the truck in the agreed sum of $483.45.

"The intent of the parties, in entering into this stipulation of facts, was to submit to the court the question of law whether the accident above described was a 'collision' within the meaning of the insurable contract, and within the contemplation and intent of the parties when said contract was made, and such question is the only question before this court."

We, therefore, address ourselves directly to the one question here involved: Does the fact that the truck was struck by an object coming from above it, instead of on a level with it, remove the accident from the field of "collision," and relieve the defendant from liabil ity? Until the advent of the automobile insurance against collision was practically, if not wholly, confined to maritime insurance. Many authorities will be found in this field of the law determining when vessels are "in colli