Abstract
One of Cicero’s most famous cases, the defence of T. Annius Milo, allows us to study a very interesting situation where Cicero wrote a model speech after he lost the actual case. Milo was accused of murdering his political arch-enemy, P. Clodius Pulcher, in what seemed to be an accidental meeting of their travelling parties on a road outside Rome. The death of Clodius led to a crisis in the capital with public unrest, so Cicero’s argument had to take into account evidence highly damaging to the defendant, several volatile circumstances and the generally hostile atmosphere in which the delivery took place. The first part of Cicero’s strategy creates a framework which provides reasons for acquittal based on legal self-defence, a pre-emptive move to secure a positive outcome of the trial in case the refutation of counter-evidence failed. The second part of the strategy makes an elaborate, yet manipulative contrast of the facts and probabilities on both sides to show that it was originally Clodius who intended to lay a trap for Milo.
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Notes
- 1.
Asc. 42. ‘scripsit … ita perfecte, ut iure prima haberi possit’. The problems relating to the delivered speech and the one we read today (an Ausarbeitung as Neumeister says) are too complicated and must be left unresolved, as we simply do not know either what Cicero said or what he wanted to say, had he not been paralysed by the inimical atmosphere of the Forum, as Plutarch says. The expression ita perfecte ut … can be interpreted in different ways, but it seems that perfecte refers not to the perfection with which Cicero adheres to the rules, but to the likeness of the present speech to a hypothetical original one which the orator could have spoken.
- 2.
Asc. 31. Occurrit ei (sc. Miloni) circa horam nonam Clodius paulo ultra Bovillas…. Someone could however object that Asconius deliberately used the neutral verb occurrit to avoid giving his judgement in a question which he himself could not decide. To defend Asconius, we may answer that he possessed such detailed information on other aspects of the murder (the place, the time, the participants, and other witnesses) that we can trust him in his verdict.
- 3.
Appian in B.C. 2. 21. says that ‘they merely exchanged hostile scowls and passed along’, but his account contains several mistakes concerning the time, so we had better remain cautious towards him.
- 4.
Cf. Asc. 42. …nam forte illa rixa commissa fuerat… cf. also Quint. Inst. Or. 6.5.10. If we accept this assertion as being true, it shows that Milo was at least indirectly responsible for the outbreak of the clash. He should have warned his slaves to avoid any direct provocation, had he been so considerate as Cicero makes out in 38–41. For Cicero’s version see Mil. 29, and the Scholia Bobiensia ad loc. To judge the probability of an event, it is usually held to be important to see the amount of details each version provides. But how do we judge their quality?
- 5.
Cf. Asc. 34 Dicebant uterque (sc. M. Caelius et Milo) Miloni a Clodi factas esse insidias. The event is the contio Caeli, which happened a few days after the 19th of January, when the Curia was burned down.
- 6.
See Sch. Bob. Argumentum: quem (sc. Clodium) secuti non sua sponte…sed iussu domini…servi Milonis interemerint. Although the details are narrated in a different way, both later historians, Appian (B. C. 2. 21.) and Dio Cassius 40.48 agree that Milo gave the deadly command, which may be true, but we cannot, of course, be certain that their evidence is reliable.
- 7.
Cf. Quint. Inst. Or. 6. 5. 9–10. Quid pro Milone? quod non ante narravit quam praeiudiciis omnibus reum liberaret? Comparing this remark with 5.2.1 from the same work, it appears somewhat puzzling what Quintilian (and, following him, Clark in LI), means by praeiudicia. Cf. also Lausberg, (1990, §353) or Martin (1974, p. 98). If Cicero is right in his argument, we cannot in the strict sense talk about the prosecution’s claims as something decided or confirmed by a legal authority before the Milo trial. Neumeister (1964, p. 89) was therefore right when he did not regard the section as something prescribed by contemporary rhetorical theory.
- 8.
The curious reader might ask Cicero on what grounds he judges that the three propositions do not in any sense belong to quae veniat in iudicium, that is the question to be decided. The answer is probably given in the clause (7) …quae et in senatu ab inimicis saepe iactata sunt et in contione ab improbis…. The propositions should not be considered as part of the argument on Milo, because they appeared in the scandalmongering campaign and were therefore discreditable in an objective inquiry.
- 9.
Neumeister (1964, p. 87) assumes that in 7–11 Cicero is preparing secretly for his ‘unsachliche Argumentation’, which he presents only at the end of the speech in full form. That would be a plausible assumption, if his initial propositions were tenable, but they are not. His opinion seems to us gravely mistaken (and widely accepted), so we need to quote him more extensively. He says that ‘die Schuld Milos galt also in der öffentlichen Meinung als ziemlich ausgemacht…eine sachliche Verteidigung war deshalb verhältnismäßig aussichtlos; wenn irgendeine Hoffnung bestand, dann lag sie in der unsachlichen, auf die Vorurteile und das Gefühl der Richter berechneten Überredung.’ That opinion decreases the value of the logical argument conducted in 32–56 and suggests that only a so-called ethical and pathetical argument could work for the jury in our case. But no one, especially not Cicero, said that a rational defence is hopeless, just because the majority of the populace does not believe in the innocence of the defendant. The best counter- examples could be the speeches Sex. Rosc. or Clu. Also, the painstakingly elaborate argument in 32–71 speaks against Neumeister’s suggestion.
- 10.
The expression recte et iure should, in our opinion, not be understood as synonyms, but as two separate concepts. Iure can refer to the act of legal self-defence, recte to the service Milo rendered to the Republic by killing a public enemy.
- 11.
But Cicero never says that the responsibility of the murderers cannot be contested. Even P. Africanus says that 8 ‘(sc. Ti. Gracchum) iure caesum videri’. The argumentum ex auctoritate works behind the examples. But one has to assign the same importance to the death of Clodius as to Ti. Gracchus.
- 12.
For the exact wording of the decree, see Asc. 44. It is important that the decree referred only to particular events, and does not deal with all the rioting that followed the murder of Clodius. Milo’s name was also left out from the text, which helped Cicero apply the condemnation to both parties.
- 13.
Cicero avoids the assumption that Pompey had any role in the refusal of Hortensius’ proposal. However, it is plausible to think that Pompey encouraged or at least silently approved the divisio sententiae. Cf. Clark XXIV-XXV, Mil. 67–71. and Asc. 50–1. One has to bear in mind that it was Pompey who summoned the senate on the 27th of February and both the rejection of Hortensius and the proposal of Pompey happened on the same day.
- 14.
One may include the opinion of the masses, which was most probably unbecoming for the orator. What he could do in this case was to identify those who have an adverse popular opinion with the Clodiani (cf. 3 unum genus est adversum infestumques nobis…) and reject it out of hand as not worthy of refutation. He can support his rejection with Pompey’s choice to the head of the quaestio, L. Domitius Ahenobarbus.
- 15.
Cf. the statement in the neat comparative argument of probabilities in 52: mortem ab illo (sc. Clodio) Miloni denuntiatam et praedicatam palam…. We may perhaps say that the statement must have been understood as a threat, which few would have taken very seriously. However, that particular threat may provide an additional argument for the defence in case the jury does not believe Cicero’s version and finds Milo responsible.
- 16.
Cf. Asc. ad loc., Rosc. Am. 84, and Clu. 107. Cicero cleverly assumes that motives of political gain work similarly in criminal situations as in, let us say, the motives of material gain or the avoidance of getting prosecuted. That is another example of how Cicero includes otherwise irrelevant, and rather distorted, political considerations in a strictly speaking criminal reasoning.
- 17.
Cf. the definition of Quintilian given in Inst. Or. 4.2.31; also Lausberg, (1990, §§294–296). Cicero tried to keep himself to all the three virtutes narrandi, but the difficult task of attaining verisimilitudo meant the sacrifice of perspicuitas. cf. the Sch. Bob. ad 29.
- 18.
Interestingly, Cicero advances the same argument, that made Clodius’ murder plan unlikely, in favour of the defendant in 34: Non modo igitur nihil prodest, sed obest etiam Clodi mors Miloni.
- 19.
The conclusion was most probably drawn from the ‘revolutionary’ measures of Clodius as tribunus plebis from the year 58. On the leges Clodiani see Cicero Sest. 34, 55; Pis. 9 (with Asc. ad. loc.), Velleius Paterculus 2. 45. See also: Benner (1987).
- 20.
As Quintilian says in Inst. Or. 4.4.1 omnis confirmationis initium. Cf. Lausberg (1990, §§346–347).
- 21.
Note that it must also have been more difficult for the prosecution to prove that Milo set a trap to ambush Clodius than the supposedly real case, that after the accidental quarrel Milo chased the wounded Clodius and hunted him down.
- 22.
Clark’s solution to the problem of status in the speech is utterly confused and confusing. He says (1895, p. lii) that ‘although the status of the case is iuridicialis, the constitutio causae is coniecturalis.’ Clark seems to suggest here that status and constitutio are two independent concepts, whereas they are one. Cf. Lausberg, (1990, §§ 80–81). If one still wants to cling to the status of the Pro Milone, we can say that Cicero pretends as if no status existed between the coniecturalis and the qualitatis. In fact, he should have asked the question quid fecerit Milo, an issue which could then have been categorised as status finitionis. Cf. Lausberg, (1990, §§166–170). See also the magnificent claim in 31 …Pompeius de iure non de facto quaestionem tulit.
- 23.
If we can attribute the assertion Obstabat in spe consulatus Miloni Clodius to the prosecution, that would suggest that they also deduced Milo’s motives from political expediency, and Cicero followed that pattern also.
- 24.
The weakness of the argument becomes clear from its presupposition that had Clodius remained alive, both politicians could still have reached the positions they intended to get. Also, the argument suggests throughout that it was only Milo who could thwart Clodius’ popularis aims, which is yet another sign of extreme polarization in the argument. Cf. 34 eum Milonem unum esse….
- 25.
Clark (30) cites Victorinus’ summary of Cicero’s argument …si, inquit, doceo causas fuisse Clodio ut occideret Milonem, probo insidiatorem…. That may be the syllogistic form, but the suspected lacuna before …fuerit occidi conjectured by Peyron (1824) conceals some of Cicero’s arguments on the intention of Clodius. However, in the projected 4 or 5 missing lines Cicero must have elaborated what he had already postulated in 32.
- 26.
Cf. Asc. 46, Rosc. 84, 86, Clu. 107. However, the order of arguments is again not absolutely clear. Does Cicero search for the motives (causa) which had induced Clodius to commit the crime, or, rather, balance the advantages to both parties? Does he view these two arguments as essentially the same? The question is which line of argument can bring the greater persuasive force. In my view it is the latter that provided firmer and more substantial evidence for the guilt of Clodius.
- 27.
- 28.
- 29.
Despite Cicero’s claim in 38 that quantae quotiens occasiones, quam praeclarae fuerunt!, which naturally presupposes that the members of the jury acknowledged the opportunities as Cicero did. A detailed argument on the events had to be avoided, as it could have destroyed the persuasive effect created by the smokescreen of virtuous self-restraint.
- 30.
The devil’s advocate can ask a further question. Why is it that Milo did not behave extremely cautiously and prohibit his servants from killing Clodius during an armed conflict in order to avoid unnecessary litigation that could hinder his prospects for the consulship?
- 31.
45 nisi ad cogitatum facinus approperaret, numquam reliquisset. The question is, of course, what was that grave reason why Clodius had to stay after the meeting? It is because he was the rabble-rouser? But that is a vicious circle.
- 32.
Although we cannot certainly know which were those ‘facts’.
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Tahin, G. (2014). Pro Milone. In: Heuristic Strategies in the Speeches of Cicero. Argumentation Library, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-01799-0_9
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