PRO MILONE: THE PURPOSES OF CICERO’S PUBLISHED DEFENSE OF

T. ANNIUS MILO

by

ROBERT CHRISTIAN RUTLEDGE

(Under the Direction of James C. Anderson, Jr.)

ABSTRACT

This thesis explores the trial of T. Annius Milo for the murder of P. Clodius Pulcher,

which occurred in Rome in 52 BC, and the events leading up to it, as well as Marcus Tullius

Cicero’s defense of Milo and his later published version of that defense. The thesis examines the

purposes for Cicero’s publication of the speech because Cicero failed to acquit his client, and yet

still published his defense. Before specifically examining Cicero’s goals for his publication, this

thesis considers relationships between the parties involved in the trial, as well as the conflicting

accounts of the murder; it then observes the volatile events and novel procedure surrounding the

trial; and it also surveys the unusual topographic setting of the trial. Finally, this thesis considers

the differences between the published speech and the speech delivered at trial, the timing of its

publication, and possible political and philosophical purposes.

INDEX WORDS: Marcus Tullius Cicero, Pro Milone, Titus Annius Milo, Publius Clodius

Pulcher, Pompey, Gnaeus Pompeius Magnus, Quintus Asconius Pedianus, Roman Courts, Roman Trials, Roman Criminal Procedure, Ancient Criminal Procedure, Roman Rhetoric, Latin Rhetoric, Ancient Rhetoric, Roman Speeches, Roman Defense Speeches, Roman Topography, Roman Forum, Roman Philosophy, Roman Stoicism, Roman Natural Law, Roman Politics

PRO MILONE: THE PURPOSES OF CICERO’S PUBLISHED DEFENSE OF

T. ANNIUS MILO

by

ROBERT CHRISTIAN RUTLEDGE

B.A. Philosophy, Georgia State University, 1995

J.D., University of Georgia, 2005

A Thesis Submitted to the Graduate Faculty of the University of Georgia in Partial Fulfillment of

the Requirements for the Degree

MASTER OF ARTS

ATHENS, GEORGIA

2006

© 2006

Robert Christian Rutledge

All Rights Reserved

PRO MILONE: THE PURPOSES OF CICERO’S PUBLISHED DEFENSE OF

T. ANNIUS MILO

by

ROBERT CHRISTIAN RUTLEDGE

Major Professor: James C. Anderson, Jr.

Committee: Mario Erasmo Richard A. LaFleur

Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia May 2006

DEDICATION

VITAE MARIAE MEAE: OMNEM AMOREM MEUM SEMPER TIBI DABO!

iv

ACKNOWLEDGMENTS

I would like to acknowledge my wife, Vita Maria Rutledge, whose patience, care,

support, and encouragement allowed me to complete this work; my parents, Drs. Arthur and Kay

Ellen Rutledge, who have encouraged me throughout this process; my brothers, Brandon and

Jonathan Rutledge, who have demonstrated to me the kind dedication I need to complete tasks as

daunting as this one; and my grandmother, Helen Rutledge, who always provides wisdom and

love. Magnas gratias vobis!

Further, I would like to acknowledge Dr. James Anderson, Jr., who nurtured my interest

in pro Milone, Cicero, Asconius, Topography, Roma Aeterna, and many other classical wonders.

Magnas gratias tibi! I would also like to acknowledge Dr. Mario Erasmo, who helped me

understand many Latin genres, while encouraging new perspectives on these ancient works.

Magnas gratias tibi! In addition, I would like to acknowledge both Dr. Anderson and Dr.

Erasmo for the wonderful education and insight they provided in my first journey to Rome.

Magnas gratias vobis! Finally, I would like to acknowledge Dr. Richard A. LaFleur, who kindly

took on the task of reading and editing this thesis with Drs. Anderson and Erasmo, and whose

enthusiasm for Latin encourages many students and many teachers. Magnas gratias tibi!

Beyond these acknowledgements, I would finally like to acknowledge Dr. Marion

Leathers Kuntz, from Georgia State University, who first introduced me to Cicero, via de

Amicitia, and sparked my interest in this wonderful language. Magnas gratias tibi et vobis

omnibus gratias maximas semper!

v

TABLE OF CONTENTS

Page

ACKNOWLEDGMENTS ...............................................................................................................v

LIST OF FIGURES ..................................................................................................................... viii

CHAPTER

1 INTRODUCTION .........................................................................................................1

2 THE HOMICIDE AND ITS AFTERMATH.................................................................5

Relationships among Those Involved in Events Leading to the Trial of Milo .........5

The Homicide of Clodius ........................................................................................13

Events between the Homicide and the Trial of Milo...............................................23

3 ORGANIZATION AND PROCEDURES OF THE TRIAL.......................................28

Pompey’s Consulship and His New Legislation .....................................................28

Examination of Pompey’s New Procedure de Vi and Prior Procedure de Vi..........31

Preliminary Procedure under Existing Law ............................................................33

Procedural Wrangling in the Senate ........................................................................38

Final Throes of Lex Plautia de Vi ...........................................................................45

Pretrial and Trial Procedure under Pompey’s Laws................................................46

4 THE PHYSICAL TOPOGRAPHY OF THE TRIAL..................................................55

Topographical Features Surrounding the Trial of Milo ..........................................56

Specific Layout of the Trial.....................................................................................63

Pompey’s Use of the Trial Setting ..........................................................................66

vi

Cicero’s Use of the Trial Setting.............................................................................67

5 THE PUBLISHED SPEECH AND ITS PURPOSES .................................................76

Cicero’s Performance at Trial and Other Possible Versions of pro Milone............76

Timing of Publication..............................................................................................85

The Purposes of Cicero’s Published pro Milone.....................................................89

6 CONCLUSION..........................................................................................................104

BIBLIOGRAPHY........................................................................................................................107

vii

LIST OF FIGURES

Page

Figure 1: The Forum during the Republic .....................................................................................75

viii

CHAPTER 1

INTRODUCTION

On April 7, 52 BC, in front of the jury, a frenetic audience, and soldiers stationed on all

sides, Marcus Tullius Cicero delivered the concluding speech in the defense of his associate

Titus Annius Milo, who was charged with the murder of Cicero’s enemy, Publius Clodius

Pulcher.1 Although historians’ assessments of Cicero’s performance vary, one thing is certain:

Cicero failed.2 Milo was convicted and subsequently exiled. Such a defeat, and such a

judgment, must have weighed heavily on Cicero, since he had previously faced exile himself.

Nevertheless, sometime after this signal failure, he published a version of the speech that has

been praised for its power, composition, and strategy (Quint. Inst. 4.2.25).3 In this thesis, I

propose to examine the historical context of Milo’s trial, the murder of Clodius, the specific legal

procedure leading up to the trial, and the topography surrounding the delivery of the speech.

Ultimately, I shall attempt to analyze portions of the published pro Milone and draw conclusions

about its purposes.

1 See James S. Ruebel, “The Trial of Milo in 52 B.C.: A Chronological Study,” TAPhA 109 (1979): 245. Ruebel indicates that the speech may have been delivered on the 7th or 8th of April, but prefers the 7th. 2 The primary ancient historians include: Quintus Asconius Pedianus, “In Milonianam,” in Orationum Ciceronis Quinque Enarratio, ed. Albert Curtis Clark (Oxford: Oxford University Press, 1907); Cassius Dio Cocceianus, Dio’s Roman History, vol. 3, trans. Earnest Cary (Cambridge: Harvard University Press, 1916); and Plutarch, “Cicero,” in Plutarch’s Lives, vol. 7, trans. Bernadotte Perrin (Cambridge: Harvard University Press, 1949). All parenthetical citations to Asconius refer to Clark’s edition of the text (the citations refer to the numbered sections of the manuscript itself, rather than the pages of Clark’s book; since there are several methods for citing Asconius, hopefully this explanation will be helpful); I have provided the English translations unless otherwise noted. All parenthetical citations and translations of Plutarch and Cassius Dio are drawn from the texts cited above. 3 E.g., Marcus Fabius Quintilian, The Institutio Oratoria of Quintilian, vol. 2, trans. H.E. Butler (Cambridge: Harvard University Press, 1921); all parenthetical citations to Quintilian refer to this text (or volume 3); I have provided the English translations unless otherwise noted. Quintilian describes the speech as oratione pulcherrima ([Cicero’s] most beautiful speech).

1

In Chapter Two, “The Homicide and Its Aftermath,” I will address the historical context

of the trial. First, I intend to investigate the relationships between the significant parties involved

in the matter. I shall briefly consider the interrelationships among Cicero, Milo, Clodius, and

Pompey. Second, I will examine the events surrounding Clodius’ death. While doing so, I will

consider the viability of Cicero’s argument about the facts relevant to the homicide, as compared

to Asconius’ account, which is generally considered more reliable. Finally, I will continue

examination of events that led up to the trial, including the consequences of Clodius’ murder,

which led to the rioting of the Clodian faction and a stalemate that prevented elections from

being held (Asc. Mil. 28-29). In examining the events preceding the trial, I shall observe the

various accounts of these events reported by the ancient historians (Asc. Mil. 26-35; Cass. Dio

40.45-53; Plut. Cic. 34-35).

In Chapter Three, “Organization and Procedures of the Trial,” I will focus more closely

on the novel procedural elements that Pompey had forcibly installed for the murder trial (Asc.

Mil. 33), and I will use these new elements to consider how such a trial may have been

conducted under previous Roman law. I also hope to assess the tactical advantages for various

parties under these new rules. First, I will examine how Pompey was able to implement his new

law, which called for faster procedure and harsher penalties (Asc. Mil. 31). I will then attempt to

compare Pompey’s new procedure with that extant prior to the murder and the civil unrest by

closely analyzing Asconius’ account of the stages leading up to the trial (Asc. Mil. 29-35) and

Cicero’s brief mention of the new procedure (Cic. Mil. 13-15).4 This examination will consider

the pretrial course of action (Asc. Mil. 29-35), the procedural posturing by both sides (for

example, Asc. Mil. 29-30; Cic. Mil. 13-15), the involvement of the political bodies in the pretrial

4 Marcus Tullius Cicero, “Pro Milone,” in M. Tulli Ciceronis Orationes, vol. 2, ed. Albert Curtis Clark (Oxford: Oxford University Press, 1901); all parenthetical citations to pro Milone refer to this text; I have provided the English translations unless otherwise noted.

2

events (Asc. Mil. 29-35), and political debates regarding the indictment of parties (Asc. Mil. 38-

39). Finally, after examining the procedural difficulties leading up to the trial, I will describe the

trial itself (Asc. Mil. 35-36), ending at Cicero’s speech.

In Chapter Four, “The Physical Topography of the Trial,” I will examine how Cicero and

other parties attempted to utilize the trial’s location (in front of the Temple of Saturn at the west

end of the Roman Forum) in their rhetorical strategy, as well as their tactical efforts to explain

and exploit the armed soldiers stationed above and around the court, and the charred remains of

the Curia Hostilia and the Basilica Porcia, which were burnt down by rioting Clodians during

Clodius’ chaotic funeral. Initially, I will survey the structures surrounding the locus of the trial

and their features at the time of the trial. Then I will attempt to place the parties involved in the

trial at probable locations based on the topography and the historical accounts of the event (Asc.

Mil. 35-36; Cass. Dio 40.54-40.55; Plut. Cic. 35). Following that discussion, I shall then

consider how the prosecution, Pompey, and Cicero tried to use the topographic features to their

own legal and political advantage. I will particularly focus on portions of Cicero’s speech in

which he attempts to convert the court’s view of the destruction that resulted from Clodius’ death

into a view more favorable to Milo (for example, Cic. Mil. 33).

In Chapter Five, “The Published Speech and Its Purposes,” I shall focus closely upon

several portions of the speech as Cicero presented it to the public sometime after Milo’s

conviction, in order to discover his purposes in publishing it. First, however, I will consider the

varying descriptions of the speech that Cicero delivered at the trial as set forth by ancient

historians (Asc. Mil. 36; Cass. Dio 40.54; Plut. Cic. 35). Then I shall examine scholarly debate

that has ensued regarding any differences between the speech Cicero delivered and the speech

Cicero published. Following that examination, I will then address scholars’ theories regarding

3

when Cicero published the extant speech and what those theories are based upon: specifically,

what they allege as Cicero’s purpose and when they assert that Cicero would have sought that

end.

Finally, I will consider the reasons why Cicero may have chosen to publish his defense of

Milo, i.e., why Cicero published a speech that had already failed his client and may have also

damaged his reputation as an advocate. In doing so, I will briefly examine Cicero’s support for

Milo on prior occasions, particularly his support at the beginning of Milo’s consular campaign,

and Cicero’s praises for Milo manifest in a previous speech, pro Sestio. Having assessed

Cicero’s affinity for Milo in these sources, I shall then examine how Cicero characterized him

and his rival Clodius within the published pro Milone. During this examination, I will

specifically discuss the heroic portrait of Milo (for example, Cic. Mil. 79-80), the bestial images

employed in describing Clodius (for example, Cic. Mil. 79-80), Cicero’s philosophical

underpinnings for his theory of defense (for example, Cic. Mil. 10), and the voice that Cicero

provides for Milo in the speech (for example, Cic. Mil. 93). Based on these observations, I will

propose a purpose for Cicero’s published pro Milone more potent and more adversarial than

those espoused by other scholars.

4

CHAPTER 2

THE HOMICIDE AND ITS AFTERMATH

Relationships among Those Involved in Events Leading to the Trial of Milo

Cicero had distinct relationships with the two primary parties involved in the homicide,

Titus Annius Milo and Publius Clodius Pulcher,1 and with the sole consul responsible for the

procedure and execution of the trial, Gnaeus Pompeius Magnus. In short, Milo and Cicero were

associates, if not closer. They opposed Clodius for reasons both personal and political. Cicero

and Pompey had a relationship that grew distant as Pompey probed political parties during the

disintegration of the first triumvirate and in the aftermath of Marcus Licinius Crassus’ death in

53 BC (Cass. Dio 40.44). Each of these relationships needs closer examination as they directly

influenced both the trial and Cicero’s speech.2

Milo was from Lanuvium, as were several of Cicero’s friends.3 While this provides a

tenuous initial link between Milo and Cicero, the relationship was strengthened by a series of

events several years before Milo’s trial, starting with Cicero’s return from exile in 57 BC.

Clodius had instigated Cicero’s exile;4 Milo provided assistance in Cicero’s subsequent recall

(Asc. Mil. 26). Cicero’s return was the culmination of efforts by Quintus Fabricius, Pompey, and 1 W. Jeffrey Tatum, The Patrician Tribune: Publius Clodius Pulcher (University of North Carolina Press: Chapel Hill, 1999), 247-48, discusses the names ‘Clodius’ and ‘Claudius’ and refutes the assertion that the use of ‘Clodius’ instead of ‘Claudius’ was an attempt to relate to the Populares. 2 For an intensive study of these relationships as they relate to Clodius see generally Tatum, Patrician Tribune. See also Erich S. Gruen, “P. Clodius: Instrument or Independent Agent?” Phoenix 20, no. 2 (1966): 120-30, for discussion of whether or not the dynasts had control over Clodius in the late sixties and early fifties BC. 3 A.W. Lintott, “Cicero and Milo,” JRS 64 (1974): 62, lists C. Velleius, L. Thorius Balbus, Q. Roscius, and L. Aelius Stilo. Marcus Tullius Cicero, Pro T. Annio Milone: ad Iudices Oratio, ed. Albert Curtis Clark (Amsterdam: Adolf M. Hakkert, 1967), xviii. Erich S. Gruen, The Last Generation of the Roman Republic (University of California Press: Berkeley, 1974), 108, further characterizes Milo as morbid and “addicted to violence” and good food. 4 Tatum, Patrician Tribune, 152-63, expounds upon Clodius’ legislative actions in office that resulted in Cicero’s exile, as well as his sale of Cicero’s properties.

5

Milo. First, Fabricius sought a vote on a bill for Cicero’s return before the plebeian council.

Clodius broke up the meeting with his thugs before the bill could be passed (Cic. Sest. 75-78.

Plut. Cic. 33),5 but as a result of his actions, Clodius may have begun to lose favor with the

Senate (Plut. Cic. 33). Under Lentulus’ consulship in 57 BC,6 Milo began prosecuting Clodius

for acts of violence.7 With charges against Clodius pending, Pompey joined Milo’s efforts

against Clodius, and also demanded a vote for Cicero’s return after he drove Clodius from the

Forum (Plut. Cic. 33, Cic. Mil. 68).8 The Senate not only voted for Cicero’s return, but also

eventually restored his house and villas, which had been ransacked by Clodius after Cicero’s

departure into exile (Plut. Cic. 33).

After his return in 57 BC, Cicero began to support Milo as a result of Milo’s efforts

against Clodius, Milo’s assistance in Cicero’s return, and Milo’s political positions. In 56 BC,

Clodius was elected aedile despite Milo’s attempted obstruction.9 Clodius then started

retaliatory prosecution against Milo, while Clodius’ own charges were still pending. Cicero,

along with Pompey, may have helped represent Milo against these new charges (Cic. Mil. 68).10

It is unclear whether these charges against Milo were ever resolved.11 Following the

5 Lintott, “Cicero and Milo,” 63. Marcus Tullius Cicero, “Pro Sestio,” in M. Tulli Ciceronis Orationes, vol. 5, ed. Gulielmus Peterson (London: Oxford University Press, 1911); all parenthetical citations to pro Sestio refer to this text; I have provided the translations unless otherwise noted. 6 Perrin, Plutarch’s Lives, 167, n. 2. 7 Tatum, Patrician Tribune, 178-80, explains the situation surrounding this prosecution, as well as Clodius’ violent actions seeking to prevent Cicero’s recall; at 196-97, he describes the finagling by Clodius’ supporters, the lack of necessary elected officials, and the political vacillation that defused this prosecution. Gruen, Last Generation, 295, 298, asserts that his candidacy for aedile provided immunity from this prosecution. 8 Lintott, “Cicero and Milo,” 63. See also Tatum, Patrician Tribune, 170-188, who provides a very detailed account of the efforts for, and obstructions to, Cicero’s recall, as well as his return to Rome. 9 Lintott, “Cicero and Milo,” 63. 10 Ibid. Lintott interprets the legal terminology here to refer to Pompey’s representation of Milo. For a narrative description of this trial, see Tatum, Patrician Tribune, 201-04, who describes the trial, and attributes the incompletion of the trial to a renewed friendship between Clodius and Pompey, though Pompey had initially supported Milo during the trial. See also Gruen, Last Generation, 108. 11 Lintott, “Cicero and Milo,” 64.

6

proceedings, Milo augmented his own crew of thugs to oppose Clodius’.12 Cicero appreciated

and approved of this, as seen in his justification of violence and praise for Milo in the speech

written pro Sestio (Cic. Sest. 86-87, 90-92). Milo then may have acknowledged Cicero’s

political endorsement by providing Cicero security—out of his own private force—against the

continuing attacks from Clodius (Cass. Dio 39.20-21, Cic. Att. 4.7.3).13

Over the next few years, Cicero and Milo’s association grew closer. In 55 BC,

approximately two years after Cicero’s return from exile, Milo was elected praetor with the help

of Pompey (Cic. Mil. 68).14 During the turmoil of this election, Pompey was declared interrex

together with Crassus, who had not set off yet for his disastrous campaign in Mesopotamia

(Cass. Dio 39.30-31). Cicero may have attended a hearing in support of Milo shortly after these

elections (Cic. Att. 4.12). He definitely planned on attending Milo’s wedding (Cic. Att. 4.13.1).

This wedding was another step toward Milo’s consulship, an office for which he would be

eligible in 52 BC.15

The consular campaign prior to Milo’s own year of eligibility put pressure on Cicero’s

loyalty to Milo. A rift between Milo and Pompey began to grow,16 but Cicero was hesitant to

oppose Pompey. Milo had married the half-sister of a consular candidate, Marcus Aemilius

Scaurus, in 53 BC (Asc. Scaur. 25, Mil. 27; Cic. Att. 4.13.1).17 If Scaurus had been elected, he

12 Tatum, Patrician Tribune, 180-81, points to another increase in Milo’s gang for similar purposes around the time of Cicero’s recall from exile. 13 Lintott, “Cicero and Milo,” 64. Marcus Tullius Cicero, Epistulae ad Atticum, vol. 1, ed. D. R. Shackleton (Stuttgart: B.G. Tuebner, 1987); all parenthetical citations to Epistulae ad Atticum refer to this text; I have provided the English translations unless otherwise noted. See also Tatum, Patrician Tribune, 193, who describes an instance of Clodius attacking Cicero’s property and person shortly after his recall and restoration of property. 14 Lintott, “Cicero and Milo,” 64; Clark, ad Iudices Oratio, xix. 15 Lintott, “Cicero and Milo,” 65. 16 Clark, ad Iudices Oratio, xix. 17 Lintott, “Cicero and Milo,” 65. Quintus Asconius Pedianus, “In Scaurianam,” in Orationum Ciceronis Quinque Enarratio, ed. Albert Curtis Clark (Oxford: Oxford University Press, 1907); all parenthetical citations to in Scaurianam refer to this text; I have provided the English translations unless otherwise noted (I will cite this work in the same manner as Clark’s edition of in Milonianam).

7

could then have ushered in Milo’s own consular candidacy in the following year.18 Scaurus, in

turn, was courting Pompey’s favor. This entreaty was supported by several relationships linking

Scaurus to Pompey (Asc. Scaur. 17, Mil. 28).19 Pompey, however, did not favor Scaurus (Cic. Q

Fr. 3.2.3, 3.8.3).20

Bribery corrupted the ensuing campaign (Cic. Q Fr. 3.2.3).21 Proceedings against

Scaurus and the other candidates for extortion resulted from the corruption, and the elections

were postponed due to bad omens (Cic. Att. 4.17.4, Q Fr. 3.2.3, 3.3.2).22 Some Romans felt that

Pompey—though he was not present in Rome—would provide a solution to the electoral

quagmire if he were made dictator (Cass. Dio 40.45). Pompey had already been empowered to

take legal action against people like Scaurus involved in corrupt campaigning (Cass. Dio 40.45,

Cic. Q Fr. 3.3.3). Pompey’s animosity toward Scaurus may have extended also to Milo.23 Milo

saw the disadvantages of Pompey’s potential dictatorship and was prepared to veto it, even with

force. At this impasse, Cicero’s loyalty to Milo threatened to jeopardize his relationship with

Pompey (Cic. Q Fr. 3.2.2, 3.8.6, 3.9.2).24 None of the potential conflicts occurred, however,

because Pompey refused dictatorship and because two other candidates, Gnaeus Domitius

Calvinus and Marcus Valerius Messalla, were appointed consuls (Cass. Dio 40.45-46).25 The

entire situation must have caused Cicero to weigh the advantages and disadvantages of

18 Lintott, “Cicero and Milo,” 65. 19 Lintott, “Cicero and Milo,” 64, n. 36, points out that Pompey was Scaurus’ former commander; that Scaurus had married Pompey’s ex-wife Mucia Tertia; that his half-sister Fausta’s brother, Faustus Sulla, was married to Pompey’s daughter, Pompeia; and that Pompey had once been married to Scaurus’ sister. 20 Ibid., 64. Marcus Tullius Cicero, The Letters to His Brother Quintus, trans. W. Glynn Williams, vol. 28, Cicero, ed. E.H. Warmington (London: William Heinemann, 1972); all parenthetical citations to Cicero’s letters to Quintus refer to this text; I have provided the English translations unless otherwise noted. Here and in the following parenthetical citations to Cicero’s letters at Q Fr. 3.8.3, 3.8.4, 3.8.6, and 3.9.2, the citations are arranged based on the Loeb edition; in other editions, such as the Oxford edition, the letters cited are numbered Q Fr. 3.6.3, 3.6.4, 3.6.6, and 3.7.2 respectively. 21 Lintott, “Cicero and Milo,” 64. 22 Ibid., 65. 23 Ibid. 24 Ibid. 25 Cary, Dio’s Roman History, 475, translates Dio as saying Pompey “took measures to have the consuls named.”

8

supporting Milo against Pompey, even if Milo resorted to violence (Cic. Q Fr. 3.8.4, 3.8.6; Att.

4.18.3, 4.19.1).26

In his decisions prior to his own consular campaign, Milo also made loyalty a little

difficult for Cicero in light of Cicero’s social sensibilities. While serving in the position he held

prior to his own consular candidacy, Milo put on a dramatic festival. This festival was in

addition to gladiatorial games that he had produced in a previous office, possibly that of praetor

(Asc. Mil. 27, Cic. Q Fr. 3.8.6).27 Cicero saw this drama festival as excessive and criticized

Milo’s improper indulgence in the duties of an aedile, an office for which Milo was ineligible at

the time (Cic. Q Fr. 3.8.6).28 In light of Cicero’s support for Milo in his subsequent campaign

for consul, his criticism of Milo’s social sensibilities appears to be more an issue of political

grooming.

Cicero’s support for Milo’s consulship intensified as the year of Milo’s eligibility, 52 BC,

approached. Cicero expressed his zeal and strategic involvement in Milo’s campaign in a letter

to a friend. Cicero states,

[e]go omnia mea studia, omnem operam, curam, industriam, cogitationem, mentem denique omnem in Milonis consulatu fixi et locavi, statuique in eo me non officii solum fructum, sed etiam pietatis laudem debere quaerere.

26 Lintott, “Cicero and Milo,” 65. In Cicero’s letters to Atticus he expresses his disdain for Pompey as a potential interrex and for Pompey’s successful defense of Gabinus, whom Cicero disapproved. Cicero had refrained from prosecuting Gabinus in order to put off conflict with Pompey until Milo’s campaign. See Cic. Q Fr. 3.2.2. 27 Lintott, “Cicero and Milo,” 65, enters into discussion about what office Milo held while putting on this second civic event. Since Milo’s subsequent consular campaign is more relevant to the events surrounding the homicide that brought about pro Milone, the issue is not addressed here. Based on Cicero’s disapproval, it is sufficient to say that it was not within the accepted duties of Milo’s office, which Cicero describes vaguely as magister. Clark, ad Iudices Oratio, xxi, describes Milo’s growing support from the Optimates and parts of the populace, pointing out his allegiances to prominent leaders, as well as his generosity in providing games. 28 Lintott, “Cicero and Milo,” 65. The premise of Milo’s ineligibility for office depends on the presumption that he continued to observe the prescribed two-year gap between offices in the cursus honorum.

9

I have completely placed all my zeal, effort, care, ingenuity, insight, and, in essence, my entire mind on Milo’s consulship, and I have decided to seek in him not only the reward for my service, but also the praise earned for my piety (Cic. Fam. 2.6.3).29

Cicero believed his involvement in Milo’s campaign would further renew and fortify his own

stature, both in his execution of duties as an elder statesman and in his dedication to the

Republic.30 While explaining his own efforts in his letter, Cicero praises Milo continuously

while seeking his friend’s help with Milo’s campaign (Cic. Fam. 2.6.4-5). If Milo won, Cicero

would have fine-tuned a candidate who could function more adeptly in the increasingly

impulsive and chaotic political environment of Rome. Cicero would have also fortified his

position against Clodius and his supporters.

Further details of Cicero’s involvement with Milo during the events surrounding Clodius’

death and Milo’s trial will be examined along with the chronology of those things shortly.

Before that examination, however, the relationships between Cicero and Clodius and between

Cicero and Pompey need to be explored a little further, followed by brief observations about the

rivalry between Milo and Clodius.

Clodius clashed with Cicero personally. Clodius had participated in Cicero’s exile and

had destroyed or sold off several of Cicero’s properties (Plut. Cic. 33).31 As a result, Cicero

despised Clodius. Their political positions conflicted: Clodius courted the plebs and Populares,32

in contrast to Cicero’s association with the Optimates.33 Cicero and Clodius were thus

29 Marcus Tullius Cicero, The Letters to His Friends, vol. 1, trans. W. Glynn Williams, (Cambridge: Harvard University Press, 1958); all parenthetical citations to The Letters to His Friends refer to this text; I have provided the English translations unless otherwise noted. 30 Lintott, “Cicero and Milo,” 66. 31 Tatum, Patrician Tribune, 152-63. 32 Admittedly, for the purposes of this paper, this summary of complex political positioning is brief; see Tatum, Patrician Tribune, for a biography of Clodius and his political career; see 166-68 for a description of Clodius’ challenges as he first became tribune, which provides a glimpse at the complexity of Clodius’ position. 33 For in-depth discussion of the relationship between these two groups, see Tatum, Patrician Tribune, 1-31; such complex discussion is beyond the scope of this paper; the summary here is sufficient to provide one basis for the rivalry between Cicero and Clodius.

10

juxtaposed: Cicero, an equestrian novus homo, had climbed above his class and sought

acceptance among the patricians, while Clodius had stepped down to the plebs from his patrician

lineage—first by adoption into a plebeian family and then by pursuing the office of tribune.34

Sometime after Cicero’s return from exile, he contested Clodius’ efforts in office. He

argued that, as a patrician, Clodius had not been eligible for the office of tribune in the first

place.35 He also attempted to invalidate all of Clodius’ legislative work on this premise,

particularly the law that exiled Cicero, either through political action, or through physical

destruction or conversion of Clodius’ legislative records (Plut. Cic. 34).36 Clodius continued to

incite Cicero’s anger with gang attacks on the consuls elected in 53 BC, Messalla and Calvinus,

during a melee on the Via Sacra between Publius Plautius Hypsaeus and Milo—an ominous

encounter in light of the later clash between Clodius and Milo (Asc. Mil. 42). Cicero had

supported Messalla in his consular campaign (Cic. Att. 4.16.6, 4.17.3; Q Fr. 3.3.2, 3.8.3).37

Other events furthered Cicero’s disgust for Clodius. In his invective against Clodius in pro

Milone, Cicero also mentions that Clodius had destroyed lands in Etruria and public forests at

34 Perrin, Plutarch’s Lives, 169, n. 4. Tatum, Patrician Tribune, 90-113, thoroughly examines the transitio ad plebem (transition to plebe) that Clodius sought here, which apparently was a recognized political maneuver, as well as Clodius’ repeated efforts in seeking it; at 104, Tatum explains that adoption was the least preferred method for attaining this transition; another possible method was an obscure ceremony known as sacrorum detestatio (renouncement of sacred rites), according to Tatum, Patrician Tribune, 101. See also Gruen, “Instrument or Independent Agent,” 120-30, and Gruen, Last Generation, 289. 35 Tatum, Patrician Tribune, 39, explains that, though Clodius was ineligible for the tribunate due to his patrician lineage, he nonetheless sought it because it provided opportunity to obtain popular support from both the Senate and the people and led to “plebian aedileships.” 36 Plutarch first describes Cicero’s actions to include his destruction of records followed by his defense against Clodius’ charges for destroying them, in which he declared Clodius’ eligibility for the office of tribune illegal. Later in Plutarch’s description of Cato’s reaction against Cicero on these allegations, however, Plutarch describes the Senate’s vote for the abrogation of Clodius’ acts as extreme; he does not refer to Cicero’s physical destruction of documents. Perhaps the first mention of Cicero’s destruction of the records was a more metaphorical description of political action Cicero took. Tatum, Patrician Tribune, 219-20, unfolds Plutarch’s account of these events, characterizing Cicero’s actions as hateful violence; he also distinguishes between a ceremonial destruction of the tablets bearing the law that ordered Cicero’s exile, and the literal, vengeful destruction or theft of Clodius’ other legislative records. 37 Lintott, “Cicero and Milo,” 65-66.

11

some point before his death (Cic. Mil. 26). Clodius’ offensive acts toward Cicero continued into

the events immediately preceding his demise on the Via Appia.

The relationship between Cicero and Pompey fluctuated. As mentioned before, Pompey

had helped in bringing Cicero back from exile; he also initially defended Milo against Clodius’

charges, possibly with the help of Cicero (Plut. Mil. 33; Cic. Mil. 68, Q Fr. 2.3.1).38 This

indicates a continuing association between the two. Like Cicero, Pompey might also have been

the target of Clodius’ treachery. While Cicero was in exile, Pompey heard that Clodius had sent

a servant to assassinate Pompey, and as a result, he retreated from the public to his private

residence (Asc. Mil. 41).39 This was apparently part of ongoing difficulties between Pompey and

Clodius (Asc. Mil. 41-42).40 Thus Cicero and Pompey were both angry at Clodius at some point.

Nevertheless, Cicero and Pompey began to drift apart. This may have begun when

Pompey made amends with Caesar and, as a result, with Clodius (Cic. Har. resp. 51).41 The

separation continued when Pompey began to oppose Scaurus and Milo (Cic. Q Fr. 3.8.3, 3.8.6).42

Cicero must have been concerned about Pompey’s sway over both the Senate and the people,

which intensified over the years prior to the trial, as Caesar campaigned abroad and Crassus was

defeated at Carrhae. Although the people were more and more willing to empower Pompey as a

dictator in the face of flawed elections and gang clashes (Cass. Dio 40.45-46), Pompey did not

accept the position of dictator in Scaurus’ election. Nonetheless, the possibility of a Pompeian

38 Ibid., 63. In his letter to Quintus, Cicero states that after he asked Marcellus to speak for Milo, “[h]oneste discessimus” (we departed honorably). He appears to be commending everyone’s efforts, including his own. See ibid., 63, n. 24. Tatum, Patrician Tribune, 102, describes Pompey’s affinity for Cicero coupled with his advances toward Clodius around 60 BC. 39 Asconius is commenting on Cicero’s reference to Clodius threatening Pompey at Cic. Mil. 37. 40 Asconius again commenting on Cic. Mil. 37. 41 Lintott, “Cicero and Milo,” 64. Marcus Tullius Cicero, “De Haruspicum Responso,” in M. Tulli Ciceronis Orationes, vol. 5, ed. Gulielmus Peterson (London: Oxford University Press, 1911); all citations to de Haruspicum Responso refer to this text; I have provided the English translations unless otherwise noted. Gruen, Last Generation, 150-51, describes Pompey’s waning support for Milo, as well Milo’s support from Cicero and others, such as M. Cato. 42 Lintott, “Cicero and Milo,” 65-66.

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dictatorship probably raised concerns for Cicero that were later justified when Pompey accepted

the position of sole consul during the ensuing chaos in Rome after Clodius’ death (Asc. Mil. 31,

Plut. Cic. 35, Cass. Dio 40.50). Immediately preceding the homicide, Cicero and Pompey’s

relationship had become neutral at best.

Finally, the relationship between Milo and Clodius was one of enmity pure and simple.

They viciously attacked one another in court, in political campaigns, and through gang warfare

(Plut. Cic. 33, Asc. Mil. 26).43 Like the enmity between Clodius and Cicero, the enmity between

Clodius and Milo sprang from their contrary political positions. However, unlike Cicero, Milo

openly employed the same gang tactics that Clodius did. On the 18th of January in 52 BC, Milo

and Clodius met one another on the road near Bovillae, and Mars provoked them both (Cic. Mil.

56).44

The Homicide of Clodius

Clodius’ homicide occurred during a delay in Milo’s campaign for consul in 52 BC,

simultaneous with Clodius’ campaign for the praetorship. Clodius was outraged because he had

moved his candidacy from the previous year, due to the delayed elections that would have

shortened his term in office (Cic. Mil. 24),45 but now found himself colliding with Milo’s

candidacy for the superior office of consul. Publius Plautius Hypsaeus and Quintus Metellus

Scipio were competing directly with Milo for the consulate (Asc. Mil. 26). Clodius, of course,

“summe studebat Hypsaeo et Scipioni” (was extremely zealous for Hypsaeus and Scipio) (Asc.

43 Ibid., 63. James N. Settle, “The Trial of Milo and the Other Pro Milone,” TAPhA 94 (1963): 269. 44 Ruebel, “Trial of Milo,” 233; Ruebel’s thorough chronological summary of events will be utilized throughout in determining sequence of the events and their dates unless otherwise noted. 45 Tatum, Patrician Tribune, 226-27, explains that Cicero might have been attempting to portray this as a result of Clodius’ conniving, in contrast to valid political strategy; at 236-37, he explores Clodius’ platform for attaining praetorship.

13

Mil. 26). He rightly understood that “praeturam…debilem futuram consule Milone” (his future

praetorship would be crippled with Milo as consul) (Asc. Mil. 26).

Milo’s chances for winning the consulship were strong due to his opulent gifts to the

people through the theater and gladiatorial games (Asc. Mil. 27).46 However, like the previous

election that may have driven Clodius to transfer his candidacy—and like many other elections

around this time47—the election stalled due to civil instability and procedural obstacles (Asc.

Mil. 27, Cass. Dio 40.48). Clodius himself had interfered with the election and had declared that

Milo should be killed, according to Cicero (Cic. Mil. 25). As a result, no consuls or praetors had

been elected as 52 BC began. The Senate and the Tribal Assembly were trying to determine

whether or not to appoint an interrex and, if so, whom to appoint (Asc. Mil. 27).48

During this delay in the election, Clodius set out for Aricia on the 17th of January (Cic.

Mil. 27).49 In his speech, Cicero alleged that Clodius had left abruptly from an important

meeting in Rome because he knew that Milo was leaving Rome on the next day, and he wanted

to set up an ambush (Cic. Mil. 27, 45). Between Clodius’ departure and the conflict that led to

his death, Clodius apparently addressed the members of the municipal senate in Aricia (Asc. Mil.

27) and then went to his Alban villa (Cic. Mil. 51).50 On January 18th, Milo left for Lanuvium,

where he was dictator, in order to appoint a priest (Asc. Mil. 27).51 Sometime on the 18th,

Clodius may have learned of a friend’s death and sought to return to Rome (Cic. Mil. 46). Milo

46 Ruebel, “Trial of Milo,” 234-39, discusses the political dynamics surrounding this election. 47 Tatum, Patrician Tribune, 231, describes the previous elections of 53 BC as “one of the most corrupted races the Romans had ever seen.” See also Gruen, Last Generation, 152. 48 For other summaries of the political situation immediately before the encounter, see Clark, ad Iudices Oratio, xxi-xxii; Tatum, Patrician Tribune, 234-39; Gruen, Last Generation, 292-305, 337-38; Marcus Tullius Cicero, Pro Milone, ed. F.H. Colson, (London: MacMillian & Co., 1964), ix-xi; Summer Haskins Stevens, “Political Program and Autobiography in Cicero’s Pro Milone,” (Ph.D. diss., Ohio State University, 1995), 16; Marcus Tullius Cicero, Defense Speeches, trans. and ed. D.H. Berry(Oxford: Oxford University Press, 2000), 163. 49 Ruebel, “Trial of Milo,” 232. 50 Lintott, “Cicero and Milo,” 68. 51 Ruebel, “Trial of Milo,” 233.

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and Clodius crossed paths on the Via Appia “paulo ultra Bovillas…prope eum locum in quo

Bonae Deae sacellum est” (a little beyond Bovillae near the location of the Good Goddess’

shrine), a place near Clodius’ villa (Asc. Mil. 27).52

The specific events surrounding the homicide itself deserve close attention because the

account of the events that Cicero published in his speech conflicts with Asconius’ later summary.

Cicero’s account also does not incorporate every event after the homicide because it was focused

upon Milo’s defense. Asconius’ version is usually accepted, since he probably had no interest in

portraying the events in a light favorable to either the accused or the victim.53 Due to Asconius’

skill as a “literal historian” and his access to the daily records of the Senate (later known as Acta

Diurna) and other sources no longer extant, he has supplied the contextual historical facts that

Cicero did not.54 Cicero either did not use these facts because they did not help in the trial, or

only alluded to them because the audience was already familiar with the allegations and had

experienced the unrest in Rome preceding the trial. Cassius Dio and Plutarch both condense the

events and so provide less detailed information (Cass. Dio 40.48-9, Plut. Cic. 35). For these

reasons, Asconius’ account and Cicero’s account must be compared closely, seconded by the

other parallel versions.

When the fight took place, according to Asconius, Clodius was traveling with thirty

armed servants, one Roman eques (knight), and two other prominent plebes. Milo was traveling

with a far larger entourage. He rode in a carriage with his wife, Fausta, and a relative of his,

Marcus Fufius (Asc. Mil. 27). However, they were accompanied by “magnum servorum agmen, 52 For modern summaries of the fight and/or the events immediately preceding it, see Tatum, Patrician Tribune, 239-40; Clark, ad Iudices Oratio, xxii; Lintott, “Cicero and Milo,” 68-69; Colson, Pro Milone, xi-xii; Bruce A. Marshall, A Historical Commentary on Asconius (Columbia: University of Missouri Press, 1985), 164-66; A.H.J. Greenidge, The Legal Procedure of Cicero’s Time (New York: Augustus M. Kelly, 1971), 389-90; Stevens, “Political Program,” 16-17; Berry, Defense Speeches, 164; Settle, “Other Pro Milone,” 269; A.R. Dyck, “Narrative Obfuscation, Philosophical Topoi, and Tragic Patterning in Cicero’s pro Milone,” HSPh 98 (1998): 222-27. 53 See, e.g., Clark, ad Iudices Oratio, xxii. 54 Ruebel, “Trial of Milo,” 231-32.

15

inter quos gladiatores quoque erant” (a huge throng of servants among whom there were also

gladiators) (Asc. Mil. 28). Among the gladiators were two famous ones, Eudamus and Birria.

Asconius explains that, when the two groups met on the road, they first passed by one another

without conflict. The servants in the slowest parts of Milo’s group, however, started an

argument with some of Clodius’ servants. When Clodius turned around and looked at the quarrel

in a threatening manner (ad quem tumultum cum respexisset Clodius minitabundus), Birria

stabbed him in the shoulder with his long sword (Asc. Mil. 28, Cass. Dio 40.48). Harsh combat

erupted immediately (Asc. Mil. 28). The rest of Milo’s men charged into battle with Clodius’

men. Clodius himself managed to take refuge in a country inn (Asc. Mil. 28).

Milo’s men prevailed. According to Asconius, Milo then considered what to do about

Clodius, weighing the advantage of a future without Clodius against the inevitable retaliation,

should Clodius survive (Asc. Mil. 28, Cass. Dio 40.48). Having decided to do away with

Clodius, even if he would be charged with the crime, Milo ordered his servants, under the

command of Marcus Saufeius, to attack the inn. Clodius, incapacitated by his wound, was

dragged out, mutilated, and killed. His body was left in the road. It lay there until another

traveler, the senator Sextus Teidius, found it, commanded servants to put it in his own litter, and

took it into Rome. All of Clodius’ servants had been wounded or killed, or had fled (Asc. Mil.

28).

Cicero’s version of events differs from this since he needed to portray the event in a way

that justified the actions of Milo’s men.55 Discrepancies between Asconius’ and Cicero’s alleged

facts should be noted at this point. In the published version of his speech, Cicero first

emphasizes how Clodius’ departure from Rome, in the midst of an important campaign meeting

55 Stevens, “Political Program,” 76, oultines the strategy behind Cicero’s later manipulation of these alleged events (Cic. Mil. 44-55).

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on the 17th of January, was against his interest unless he was plotting to eliminate an adverse

competitor, Milo. On the other hand, in Cicero’s view, Milo’s departure for Lanuvium on the

following day was for a normal pre-scheduled engagement. Cicero then describes the entourages

of both Clodius and Milo in a passage that can be profitably compared to Asconius (Cic. Mil. 27-

28). Both explain that Clodius was traveling lightly, while Milo was in a carriage with his wife

(Cic. Mil. 28, Asc. Mil. 27). Cicero does not initially mention the number of armed men

accompanying either, whereas Asconius points out that Clodius was accompanied by thirty

armed men and that Milo’s throng was a much larger group including some gladiators. Cicero

emphasizes other members of Milo’s group, especially the women and children, avoiding any

mention of armed men until Clodius’ alleged attack occurs (Asc. Mil. 27, Cic. Mil. 28-29).

Cicero does not mention any argument breaking out as the groups passed one another.

Instead, he characterizes the event as an attack instigated by Clodius. After emphasizing the

event’s proximity to Clodius’ estate, Cicero states: “statim complures cum telis in hunc faciunt

de loco superiore impetum” (suddenly many men armed with spears attack Milo from a place

uphill) (Cic. Mil. 29). This group was distinct from those accompanying Clodius, who were

armed with swords; the clear implication is that this was a premeditated ambush by men hiding

on the grounds of Clodius’ estate, lying in wait for Milo and his crew. According to Cicero,

Milo immediately jumped out of the carriage and started fighting. Clodius’ comrades drew

swords and split into two groups: one group engaged in the fight at Milo’s carriage; the other

attacked the rest Milo’s servants, killing several them. The servants who survived believed that

Milo was dead, based upon what they could see of the damaged carriage, and what they heard

from Clodius himself. They then killed Clodius because they believed that their master, who

they thought was dead, would have desired it (Cic. Mil. 29). Cicero, however, ignores the

17

alleged attack on the country inn possibly because the prosecution had already discussed it, or

because he had previously asserted that it never occurred and did not want to bring attention to it

again. In later passages in his speech, Cicero continues to emphasize Clodius’ alleged advantage

in location, and the alleged involvement of Clodians not accounted for in the entourage as

described by Asconius (Cic. Mil. 53-59, 85-86; Asc. Mil. 27). After everything settled down

near Bovillae, Milo freed his slaves, either as reward for protection or to keep them from being

witnesses at trial (where the law may have required that they be examined under torture), or both

(Cic. Mil. 56-7, Cass. Dio 40.48).

The time frames that Asconius and Cicero assign to the fracas also differ. Considering

the time required to travel from Bovillae to Rome, where, according to Asconius, Clodius’ body

was presented shortly after dark on the evening of January 18th, Asconius’ assertion that the

conflict occurred around the ninth hour of the day (circa 4 PM) appears quite reasonable (Asc.

Mil. 28).56 The assertion that a senator on his way back to Rome found the body reinforces

Asconius’ chronology (Asc. Mil. 28). Asconius implies that the battle was over before the end of

normal daylight travel. Given the brevity of daylight at that time of year, the trip back to Rome

must have only lasted 1.5 to 2 hours at most, assuming the fight was brief. Cicero, on the other

hand, states that the conflict began at the eleventh hour (circa 6 PM) (Cic. Mil. 23).57 He goes on

to emphasize this late hour, using it as evidence of Clodius’ intent to ambush Milo. He insists

that it would have been much more advantageous for Clodius to wait until the next morning to

leave if he were simply returning to Rome. He argues that Clodius’ alleged motive for travel—

tending to a friend’s death—was invalid, and that a nocturnal arrival at Rome would not be

56 Ruebel, “Trial of Milo,” 233. 57 Ruebel, “Trial of Milo,” 233, n. 5, points out that, in light of Asconius’ language, Clodius’ body must have arrived within the first hour of night, rather than before nightfall; in light of this, he points out that the trip from Bovillae to Rome must have taken around three hours by litter and that Teidius must have found the body earlier than the 10th hour in order to get it to Rome in this time frame, which still puts the combat before Cicero’s time.

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advantageous for this purpose, or any other. (Cic. Mil. 49-50). From this premise, Cicero tries to

persuade his audience that Clodius was simply waiting to ambush Milo, with armed men hidden

on the grounds of his estate for that purpose. Nevertheless, Cicero’s alleged time of the conflict

would have put the recovery of the body very close to nightfall and its arrival at Rome a few

hours later than the first hour of the night.

In light of these conflicting stories, certain elements emphasized by their authors require

investigation. These include Milo’s and Clodius’ degree of personal involvement in the battle,

the advantages of each, and the timing of the conflict.

Asconius finds that the cause of the conflict was a squabble between servants that erupted

into the battle, not an attack engineered by Clodius, and that Clodius was wounded shortly after

the battle began. It is not clear, however, how long it took Clodius to leave the battle.

According to Asconius’ account of a speech by Scipio, Clodius may have been wounded further

before he escaped to the inn (Asc. Mil. 28-9). Asconius also acknowledges that Clodius’

involvement, however brief, was threatening. Beyond that, unfortunately, Asconius finds a

single sentence sufficient to describe the entire conflict that involved many people on both sides:

“[i]nde cum orta esset pugna, plures Miloniani accurrerunt” (from that point, since battle had

begun, many of Milo’s men charged) (Asc. Mil. 28). Thus the time frame between Clodius’

injury and his retreat to the inn is not clear. He may have stayed in the battle long enough to

declare mistakenly that Milo was dead, as Cicero alleges, or longer (Cic. Mil. 29).

Milo was also involved in the fight. According to Cicero, he jumped out of the carriage

and began fighting from the beginning (Cic. Mil. 29). Asconius asserts that later he was present

long enough to debate a course of action and command his servants to attack the inn at the very

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least (Asc. Mil. 28). Cicero’s account, however, implies that Milo was not around to command

his servants to kill Clodius, whether Clodius was in the inn or elsewhere (Cic. Mil. 29).

Thus two different scenarios describe the involvement of each man in the fight and the

homicide. The prosecution would argue that Clodius was injured immediately and escaped to

the inn quickly; that Milo handily defeated all of Clodius’ other fighters; and that Milo stopped,

contemplated his choices, and commanded that Clodius be executed. The defense would argue,

and Cicero did assert, that Clodius purposefully attacked Milo with the assistance of other

troops; that Milo was separated from part of his group; that the separated part of Milo’s group

believed that he was dead based on Clodius’ statements; and that they, in turn, killed Clodius

without Milo’s orders at whatever location they found him.

This brings up the question of who had the advantage, because, in order for Milo to

contemplate his options and then command his men to kill Clodius, he needed to have some

control of the situation; otherwise there would have been little time for considering the benefits

and detriments as Asconius alleges. The number of combatants available within each man’s

entourage does not conflict significantly in the two accounts (Asc. Mil. 27, Cic. Mil. 28).

Though Asconius finds some professional fighters in Milo’s entourage he also acknowledges that

Milo was in a carriage with his wife, and that his followers included other servants as well. As

noted before, Cicero does not mention armed members of Milo’s entourage until the fight breaks

out (Cic. Mil. 29). Both Cicero and Asconius recognize that Clodius was accompanied solely by

armed men (Asc. Mil. 27, Cic. Mil. 28). Asconius attributes this to the custom of the times (Asc.

Mil. 27). Such a group, however, was presumably capable of offensive as well as defensive

action.

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Were these the only facts alleged, it might be feasible to believe that Clodius had the

advantage in a focused attack on Milo. On top of these facts, however, Cicero also asserts that

there were other Clodians attacking from a slope within the grounds of Clodius’ estate (Cic. Mil.

28). Whether this allegation was true or not, Cicero presumably used it to fortify his assertion

that Clodius had plotted to ambush Milo. As a result, however, he was forced to attribute Milo’s

ultimate victory against so many men and such a strategic advantage to the uncertainty of war

and the involvement of Mars (Cic. Mil. 56). Given the outcome of the battle, unless the

underdog did indeed win, the presence of these “extra” Clodians appears questionable.

Nevertheless, even without them, Clodius might have had the advantage in a lightning assault.

As Clodius’ death proved, however, he could not overwhelm Milo’s men, whether they were

under Milo’s immediate command or not.

Finally, while Asconius’ time frame for the events strengthens the believability of his

account, it is not as airtight as it first appears. Asconius describes Milo contemplating what to do

with Clodius and eventually ordering his servant to kill him at some point after the initial

fighting (Asc. Mil. 28). This implies a pause of indefinite length within the course of events after

the initial encounter, if Milo had time to find Clodius and contemplate his fate while Milo’s

servants stood awaiting orders.58 Such an indefinite hiatus could have extended the duration of

the battle and may have postponed the recovery of Clodius’ body, as well as either shortening the

travel-time to Rome (upon which arguments for the accuracy of Asconius’ chronology rely), or

making Asconius’ hour for the arrival approximate. This uncertainty may lend a little credibility

to Cicero’s much maligned chronology. Cicero’s battle time is only approximately two hours

58 This length of time could have been found to be extremely short, further reinforcing Asconius’ version of events. Since there is some ambiguity regarding the length of time, the possible extension of time would have been a matter to be resolved by the fact-finders in Milo’s trial, who would have been able to consider the credibility and consistency of the witnesses who proffered this testimony.

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later than Asconius’ (Cic. Mil. 29) and so is the arrival of Clodius’ body in Rome. Cicero does

not mention a lull in which Milo deliberated about Clodius’ fate, so the subsequent abandonment

and discovery of Clodius’ body could well have occurred within a shorter period of time by

Cicero’s chronology.

Asconius’ strongest point for making the time of the conflict earlier than Cicero’s time is

the recovery of the body by Sextus Teidius (Asc. Mil. 28). Presumably the senator would have

testified as to the time when the body was recovered, and the length of time it took to transport it

to Rome. Nevertheless, uncertainty over the end of the conflict and the discovery of the body

must leave this point unsettled. Furthermore, several factors could have made the senator’s

arrival in Rome later than first hour of the night. These include the length of the battle; the lull,

if one existed, between Milo’s control of the area and the death of Clodius; the departure of

Milo’s people from the scene; the subsequent arrival of the senator; and his investigation,

collection, and transport of the body. Asconius also relies on an assumption that the senator was

abiding by normal time of travel. In light of these considerations, Asconius’ chronology may

have been about as approximate as the chronology Cicero supplied in his speech.

Beyond Asconius’ account of the time of the events, assertions of his credibility rely on

the argument that he had no interest in presenting biased facts.59 Asconius himself stated that the

homicide occurred by chance, i.e., that the parties happened to meet and a quarrel erupted into

deadly combat (Asc. Mil. 36). It must be noted, however, that the argument for Asconius’

objectivity does not address possible bias in his sources. In contrast to Asconius, however, it is

clear that Cicero presented the “facts” only as they might favor his client. Not only was he

compelled to represent Milo zealously, but he also had to frame the issue according to the

59 E.g., Ruebel, “Trial of Milo,” 231.

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charges brought and the strategy necessary to defend against the charge of homicide. Cicero’s

bias was open and apparent.

Events between the Homicide and the Trial of Milo

Unlike the events immediately surrounding the homicide of Clodius, the events that

occurred between it and Milo’s trial were not the focus of much dispute. Cicero primarily

alluded to them as part of his argument about the instability that Clodius and the Clodians had

caused in Rome.60 His allusions to the pretrial events after the homicide are largely consistent

with Asconius’ account, and it is generally agreed that Asconius’ account provides the essential

details about events leading to trial, supplemented by Plutarch and Cassius Dio.61

When Clodius’ body arrived in Rome on the night of January 18th, it was placed in the

atrium of his home on the Palatine. A crowd of servants and plebs gathered around in mourning.

Clodius’ wife, Fulvia, sobbed as she pointed out the wounds on his body, increasing the lament

of the crowd.62 The next morning a multitude of common people gathered at Clodius’ house,

along with some more notable men (Asc. Mil. 28). Seeing their opportunity to encourage pity

and anger, two tribunes of the plebs, Titus Munatius Plancus and Quintus Pompeius Rufus, urged

the mob to take Clodius’ body, naked and trampled, and put it onto a couch for transport to the

Forum. As a result, Clodius’ wounds were visible as they carried the corpse into the Forum and

placed it on the Rostra (Asc. Mil. 28, Cass. Dio 40.49).63 Then, with Sextus Cloelius,64 an

60 Tatum, Patrician Tribune, 142-48, theorizes about the demographic composition of the Clodians. 61 For other summaries of the events occurring immediately after Clodius’ death, see Tatum, Patrician Tribune, 241; Gruen, Last Generation, 233; Colson, Pro Milone, xii; Marshall, Commentary on Asconius, 166-69; Greenidge, Legal Procedure, 390; Berry, Defense Speeches, 164. 62 Ruebel, “Trial of Milo,” 233; Clark, ad Iudices Oratio, xxiii. 63 Ruebel, “Trial of Milo,” 233-34; Clark, ad Iudices Oratio, xxiii. 64 This name appears as S. Clodius in Clark’s manuscript, but later scholars assert that the name was Cloelius; see Tatum, Patrician Tribune, 115, who discusses Cloelius’ possible background; see also Marshall, Commentary on Asconius, 95, 168-69. But see Clark, ad Iudices Oratio, 79-80, n. 11, who keeps S. Clodius (which becomes S. Cloelius under the other theory) instead of P. Clodius in order to distinguish this person from P. Clodius Pulcher

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official scribe, as the instigator, the mob took Clodius’ body into the Curia Hostilia (Senate

House) and cremated it, using furniture and public records as fuel. This kindled the entire

structure and the Curia burned down. The Basilica Porcia was also destroyed (Asc. Mil. 29,

Cass. Dio 40.49). This event, however, was not all mob frenzy. Some of the people stayed or

regrouped in front of the burnt Curia for a somber funeral feast at the ninth hour (circa 4 PM)

(Cass. Dio 40.49).

After these occurrences, a large group of Clodians attacked the home of the recently

appointed interrex, Marcus Aemilius Lepidus, and attempted to burn Milo’s house that evening

(Asc. Mil. 29, Cass. Dio 40.49). They were driven away by Milo’s archers. The Clodian mob

then grabbed the fasces (ceremonial axes wrapped in bundles of sticks) from the grove of

Libitina and took them to the homes of Q. Metellus Scipio and P. Plautius Hypsaeus, Milo’s

opponents for consul. They then took the fasces to Pompey’s gardens, demanding that someone,

probably Pompey, be made sole consul or dictator (Asc. Mil. 29).

Upon first learning of Clodius’ homicide, many of the Roman people were angry at Milo.

Even though some did not support Clodius, and perhaps even hated him, they were aggrieved

that Milo had stirred up such chaos. They believed, and probably hoped, that Milo had left

Rome to go into voluntary exile (Asc. Mil. 29, Cass. Dio 40.48-49). Milo, however, had

returned on the same night of the attacks on his house, hoping to take advantage of a change in

opinion after such outrageous reactions from the Clodians (Asc. Mil. 29, Cass. Dio 40.49).

Indeed, many Romans became incensed at the Clodians for the damage done to the Curia (Asc.

Mil. 29).

himself and avoid the image of the Clodians bearing the dead body as its leader as it rushed the Curia Hostilia, or some weird scene involving the ghost of Clodius.

24

Milo began campaigning for consul again over the next few days, from January 19th to

the January 23rd.65 Marcus Caelius, another tribune, held a hearing for Milo around this time or

shortly thereafter, at which Milo’s advocates claimed that he had been attacked by Clodius.66

Cicero assisted in promulgating this theory (Asc. Mil. 29). Meanwhile the Clodians kept

pressing for quick elections to keep Milo from regaining any further support. Sometime within

the first few days after Clodius’ death,67 Milo’s consular competitors, P. Plauteus Hypsaeus and

Q. Metellus Scipio, tried to further pressure the interrex, Lepidus, to restart the election process.

When he refused, Hypsaeus’ and Scipio’s supporters besieged his house throughout the

remainder of his five-day term as interrex. At the end of this period of time, they ransacked his

house and destroyed his imagines (sacred images of his ancestors) among other things (Asc. Mil.

37-8, Cic. Mil. 13).68

As the days progressed, the two tribunes mentioned above, Q. Pompeius Rufus and T.

Munatius Plancus, and a third, Gaius Sallustius Crispus, continued to excite the people about the

death of Clodius. At one particular meeting on January 23rd, Rufus, who was closest to Clodius,

tried to force Pompey into taking action against Milo by warning that Pompey might be Milo’s

next victim (Asc. Mil. 45).69 He stated that “Milo dedit quem in curia cremaretis: dabit quem in

Capitolio sepeliatis” (Milo gave you someone to burn in the Curia: he will give you someone to

bury on the Capitoline) (Asc. Mil. 45). While this civil unrest continued, Milo also attempted to

approach Pompey, perhaps to offer withdrawal of his candidacy for consul (Asc. Mil. 31, 45).

65 Ruebel, “Trial of Milo,” 234. 66 Ruebel, “Trial of Milo,” 236, puts the hearing sometime around January 27th based on his placement of Milo’s renewed consular campaign and his interpretation of “post aliquot dies” (after some number of days) from Asc. Mil. 29. 67 Ibid., 235-36. Scholarly quarrel has arisen over the phrase “post biduum medium.” Ruebel argues that it means in the middle of a biduum (two-day period), whereas Lintott argues that it means two days later like the phrase biduo post. The statement, “within the first few days,” is used here without taking sides. 68 Ibid., 235. 69 Ibid., 236.

25

Scipio, one of the consular candidates, alleged this purpose for Milo’s visit as part of a debate

about the murder of Clodius, so Milo’s actual purpose was not clear (Asc. Mil. 30-31).70

Whatever Milo’s purpose in visiting, Pompey did not accept his company and refused to become

more involved (Asc. Mil. 31, 45).71 In light of later events, Pompey was probably more

concerned with timing his own acceptance of the consulship so that it might appear necessary

rather than ambitious.

Subsequently several interreges were appointed as the murder of Clodius and the

continued reactions of his supporters further exacerbated the electoral difficulties (Asc. Mil. 29).

The Senate sought stability to deal with the elections and the demands for Milo’s prosecution.

Pompey’s strategy of hesitation worked in making the need for his power more and more

apparent to the Senate. In early February, as a result of this social climate, the Senate gave the

interrex and the tribunes unlimited power to control and protect Rome under S.C.U. (senatus

consultum ultimum: sovereign decree of the Senate).72 The Senate also empowered Pompey as

proconsul to start drafting soldiers in order to control the civil strife in Rome (Asc. Mil. 29, Cass.

Dio 40.49-50, Plut. Cic. 35). This appointment of Pompey or his later appointment as consul

also empowered him to regulate the activities of the courts (Plut. Cic. 35).73

Throughout February, Milo’s allies and the Clodians began setting up legal teams for the

inevitable conflict in court. A contest in witness production ensued, which will be addressed

more closely in the next chapter. In short, when the Clodian team summoned Milo’s slaves and

his wife Fausta’s slaves, Milo’s team summoned Clodius’ slaves and Hypsaeus’ slaves. Neither

team complied with producing any slaves. Quintus Hortensius, one of Milo’s advocates at this

70 Ibid. 71 Ibid. 72 Ruebel, “Trial of Milo,” 236, n. 16, puts the actions of the Senate in early February, based on multiple interreges and the unlikelihood of delay. 73 Ibid., 238-39.

26

proceeding, explained that Milo had manumitted his slaves in return for avenging him (Asc. Mil.

29-30).74 Apparently these legal efforts either stalled, or merged with later proceedings.

Meanwhile, the electoral problems continued and the people grew restless for a leader.

74 Ibid., 239.

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CHAPTER 3

ORGANIZATION AND PROCEDURES OF THE TRIAL

Pompey’s Consulship and His New Legislation

The demand for leadership continued to increase during the end of February and into the

Interkalarius (a month inserted on the calendar between February and March in order to reset the

calendar to the seasonal cycle).1 Some continued to suggest that Pompey take on the role of

dictator or consul, others suggested Caesar (Asc. Mil. 31, Cass. Dio 40.50). Finally, Marcus

Calpurnius Bibulus pursuaded the Senate, and Servius Sulpicius, as interrex at the time, made

Pompey sole consul (Asc. Mil. 31, Cass Dio 40.50).2 The Senate probably chose to make

Pompey consul instead of dictator in order to maintain some control over him, and chose to make

him sole consul in order to keep Caesar out of the picture (Cass. Dio 49.50). With this new

power, Pompey proposed legislation that instituted new legal procedure and penalties for the

events that had occurred in relation to Clodius’ murder (Asc. Mil. 31, Cass. Dio 40.52-53, Plut.

Cic. 35).3 At the end of the Interkalarius, he proposed two acts: one addressing the violence, de

vi, and another addressing corrupt electoral practice, de ambitu.4 Both of these new laws

targeted the murder of Clodius, the arson at the Curia, and the attack and plunder of Lepidus’

1 See Marshall, Commentary on Asconius, 177, for a discussion of how long the Interkalarius of 52 BC was. For more discussion regarding discrepancies among scholars, compare Ruebel, “Trial of Milo,” 232, n. 4, and 246, n. 37, with Lintott, “Cicero and Milo,” 72, n. 112. For other summaries of the procedures up to the trial, see Clark, ad Iudices Oratio, xxiii-xxiv; Gruen, 152-55, 233-34, 338; Lintott, “Cicero and Milo,” 69-73; Colson, Pro Milone, xiii-xv; Greenidge, Legal Procedure, 390-92; Berry, Defense Speeches, 164-66; A.M. Stone, “Pro Milone: Cicero’s Second Thoughts,” Antichthon 14 (1980), 92-95. 2 Stone, “Second Thoughts,” 90. 3 Cassius Dio does not refer to the political process that instituted these proceedings. Instead, he credits Pompey more generally with the laws and their administration. Similarly, Plutarch only mentions Pompey’s control of security before and during the trial, and his control of legal proceedings. 4 Greenidge, Legal Procedure, 391.

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house. These laws established a shorter procedure and harsher penalties.5 Marcus Caelius, the

tribune most supportive of Milo, objected to these new laws, declaring that they “privilegium…in

Milonem ferri et iudicia praecipitari” (targeted Milo personally and rushed the legal procedure)

(Asc. Mil. 31).6 Pompey became incensed and told M. Caelius that, if he persisted in his zealous

opposition to the new law, he (Pompey) would personally defend the Republic with force (Asc.

Mil. 32). This was a very thinly-veiled threat. Pompey’s laws were subsequently passed and

promulgated at the beginning of March.7 Pompey’s laws, however, did not abrogate the existing

law de vi, but provided an additional alternate procedure: the prosecution could use either law, or

both laws, to prosecute. For example, Marcus Saufeius, one of Milo’s men, was tried under both

the new lex Pompeia de vi and the lex Plautia de vi after Milo’s trial (Asc. Mil. 48-49).8 The

proceedings executed under these laws would begin toward the end of March.

With the trials under Pompey’s new law looming in the future, political attacks on Milo

continued from mid- to late March.9 Pompey retreated from public view, expressing concern

that Milo was a direct threat to him. At a meeting of the Senate, he suddenly dismissed

everyone, claiming to fear Milo’s arrival. It is not clear whether Pompey truly feared Milo or

whether he did this to support the more aggressive laws that he had sponsored regarding the

5 Ibid. 6 Ibid., 329. For the definition of privilegium used here, see Brian A. Garner, ed., Black’s Law Dictionary, 7th ed. (St. Paul: West Group, 1999), s.v. “privilegium.” 7 Ruebel, “Trial of Milo,” 240-41, says that the privilegium refers to the Senate permitting Caesar to stand for consul in absentia. In Asconius’ account, there’s no mention of Caesar’s whereabouts or involvement at this point in time. The use of privilegium falls immediately within descriptions of the new criminal laws addressing civil unrest. Therefore, privilegium makes more sense as a prejudicial focus on Milo’s charges. Clark, ad Iudices Oratio, 101, n. 11, agrees and explains that this term means that the proposed procedure violated the Twelve Tables, which prohibited such actions against private citizens, but he also points out that such an argument was weak because precedent for that procedure already existed. 8 Ruebel, “Trial of Milo,” 242-43. See John N. Hough, “The Lex Lutatia and the Lex Plautia de Vi,” AJPh 51, no. 2 (1930): 135, regarding the theory that the Plautian law was the law preceding Pompey’s new law. For the sake of this work, based on Asconius’ mention of the law in M. Saufius’ trial and Hough’s observations, the title of the law governing the procedure prior to Pompey’s new law will be lex Plautia de vi. For further support of this argument, see, e.g., A.H.M. Jones, The Criminal Courts of the Roman Republic and Principate (New Jersey: Rowman and Littlefield, 1972), 57. 9 Ruebel, “Trial of Milo,” 242.

29

recent violence. Cicero and Milo apparently attended meetings around this time as well. At one

meeting of the Senate, Publius Cornificius accused Milo of carrying a weapon. When Milo

disrobed and proved him wrong, Cicero claimed that the charges against Milo were similarly

flawed (Asc. Mil. 32).10

Preliminary proceedings, including those set forth under Pompey’s new laws, began near

the end of March.11 During the initial legal proceedings and the subpoenas of potential

witnesses, the Clodians continued to organize rallies against Milo, which, as will be seen below,

were also part of the legal procedure existing prior to the lex Pompeia de vi. Asconius describes

details of these proceedings as follows:

Inter primos et Q. Pompeius et C. Sallustius et T. Munatius Plancus tribuni plebis inimicissimas contiones de Milone habebant, invidiosas etiam de Cicerone, quod Milonem tanto studio defenderet. Eratque maxima pars multitudinis infensa non solum Miloni sed etiam propter invisum patrocinium Ciceroni. Postea Pompeius et Sallustius in suspicione fuerunt redisse in gratiam cum Milone ac Cicerone; Plancus autem infestissime perstitit, atque in Ciceronem quoque multitudinem instigavit. Pompeio autem suspectum faciebat Milonem, ad perniciem eius comparari vim vociferatus: Pompeiusque ob ea saepius querebatur sibi quoque fieri insidias et id palam, ac maiore manu se armabat. At first, the tribunes Q. Pompeius Rufus, C. Sallustius [Crispus], and T. Munatius Plancus were holding meetings hostile toward Milo and disdainful toward Cicero for representing Milo with so much zeal. The greater part of their audience was angry not only at Milo, but at Cicero as well for his defense of Milo. Later, Pompeius [Rufus] and Sallustius [Crispus], in distrust [of the contiones], reconciled themselves with Milo and Cicero; Plancus, however, persisted very fervently and even incited the crowd against Cicero. He further made Milo appear suspicious to Pompey, claiming that Milo’s persistence equaled his violence: and, due to these things, Pompey was also openly inquiring more often about unfolding plots, and he protected himself with a band of guards (Asc. Mil. 33).

Although Pompey appears fearful here, Asconius’ account previously cast doubt on Pompey’s

concern over the threat of Milo (Asc. Mil. 32). Given the uncertainty about Pompey’s fear,

10 Ibid. 11 Ibid., 242-45.

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Pompey may have been further posturing in order to retain the momentum of his new procedure

and the prosecution of Milo.12

Examination of Pompey’s New Procedure de Vi and Prior Procedure de Vi

According to Asconius, Pompey’s new legal proceedings differed from the earlier

proceedings de vi. It is difficult, however, to distinguish Pompey’s new procedure from those

under the earlier law for several reasons. First, Pompey’s new procedure did not completely

replace the existing procedure, which was probably governed by the lex Plautia de vi, but created

an additional alternative procedure atop the existing procedure (Asc. Mil. 48-49).13 The

proceedings against Milo were initially guided by the earlier law, but were later altered to

comply with Pompey’s new law. A comparison of Asconius’ reports on the outcome of Milo’s

trials and the outcome of Marcus Saufeius’ subsequent trial confirms that the new and the old

procedures were both in effect (Asc. Mil. 48-49).14 Milo himself was tried and convicted under

the Pompeian laws on the charges de vi and de ambitu, and under another law, not specifically

named, de sodaliciis (about conspiracy) (Asc. Mil. 47-48). In comparison, M. Saufeius, the

leader of the alleged assault on the inn where Clodius had hidden, was tried under both the lex

Pompeia de vi and the lex Plautia de vi. According to Asconius:

[p]ost Milonem eadem lege Pompeia primus est accusatus M. Saufeius M. f. qui dux fuerat in expugnanda taberna Bovillis et Clodio occidendo….defenderunt M. Cicero, M.

12 Gruen, Last Generation, 338, provides a similar view, asserting that Pompey may have acted fearful in order to maintain the momentum of his laws targeting Milo. But Stone, “Second Thoughts,” 93-94, asserts that Pompey was truly in fear for his life. 13 Asconius only mentions the lex Plautia de vi when discussing Marcus Saufeius’ later trial. Cicero mentions the law when discussing a prior trial against Clodius (Cic. Mil. 35). Several trials de vi before and after Milo’s trial could have been conducted under this procedure. Since the alternate charge de vi against Marcus Saufeius was conducted under the lex Plautia de vi, it is reasonable to assert that this law governed all the proceedings de vi initially and was then superseded, but not replaced, when Pompey’s law was ratified. See Hough, “Lex Plautia de Vi,”135, for more specific discussion and ancient sources. But see Jones, Criminal Courts of the Roman Republic, 57, 79, where he indicates that a third law de vi was also in effect, the lex Lutatia, under which Milo was also charged; Hough,“Lex Plautia De Vi,”135-47, addresses this issue. 14 Saufeius was tried after the conclusion of Milo’s trial under Pompey’s law (Asc. Mil. 48); see Clark, ad Iudices Oratio, 117, n. 13, and Marshall, Commentary on Asconius, 209-10, for discussions of Saufeius’ identity. See also Gruen, Last Generation, 343-44.

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Caelius, obtinuerunt ut una sententia absolveretur….Repetitus deinde post paucos dies…est lege Plautia de vi, subscriptione ea quod loca edita occupasset et cum telo fuisset; nam dux fuerat operarum Milonis….Absolutus est sententiis plenius quam prius. After Milo, the first accused under the same Pompeian law was M. Saufeius, Milo’s famulus (attendant) who was the leader in attacking the inn near Bovillae and killing Clodius….Cicero and Marcus Caelius defended him, and they prevailed, so that he was acquitted of one charge….He was then tried again after a few days under the Plautian law de vi, under the charge that he had attacked the designated place [the inn] with a weapon; for he was the leader of Milo’s attacks. He was acquitted with even more votes than before (Asc Mil. 48-49).15

Since both laws were in force throughout the trials arising from the murder of Clodius and

destruction of the Curia, the distinction between procedure under the lex Pompeia de vi and the

preceding lex Plautia de vi is difficult to make.

The second difficulty arises because, although Asconius lays out Pompey’s new trial

procedure in detail, he does not specifically explain how that differed from the prior procedure

de vi. Rather, as mentioned before, Asconius says only that it was shorter and called for harsher

penalties (Asc. Mil. 31). Cassius Dio does provide a description of one specific feature that

would have expedited the procedure, i.e., the lack of character witnesses (Cass. Dio 40.52). In

addition, Asconius does not explicitly explain all of the preliminary procedure that must have

taken place before the pretrial hearings and before the trial conducted under Pompey’s new law.

Instead, Asconius tersely reports several procedural events, focusing mainly on the facts they

revealed, rather than their administration. Asconius must have assumed that his audience would

understand his summary description of the earlier procedure and how trials de vi had been

conducted prior to the implementation of Pompey’s legislation.

In order to understand the proceedings and ascertain the distinctions between Pompey’s

law and the existing law, it is necessary, first, to lay out all of the legal proceedings mentioned

15 The phrase “loca edita occupasset et cum telo fuisset” was probably a specific clause within the lex Plautia de vi, according to Marshall, Commentary on Asconius, 211.

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by Asconius leading up to the ratification of Pompey’s new procedure first, and then to consider

the execution of Pompey’s new law in contrast to the procedure attempted under the preceding

law. Other ancient historians will also be considered where relevant. Although, at first glance,

the proceedings of Milo’s trial appear chaotic due to Asconius’ description of general unrest in

Rome, the two overlapping procedural courses in Asconius’ account can be observed. The first

represents the existing procedure, probably governed by the lex Plautia de vi, which was

frustrated by the stalled elections and the unrest in the city. 16 The second, as Asconius points

out (Asc. Mil. 33), was governed by the lex Pompeia de vi. These procedural courses overlap

because those who initially prosecuted Milo continued on the first course until the new

legislation was ratified and the new proceedings began. As Pompey’s new procedure was

implemented, the original course of action diminished from substantive legal procedure to

political rallies against Milo. Comparing Pompey’s successful proceedings with these earlier

proceedings should help clarify when Pompey’s law altered the proceedings and how it altered

them. Further, through retrospective analysis of the initial procedure in light of Pompey’s new

law, the earlier legal apparatus can be better understood. Perhaps then Asconius’ terse summary

of the laws as “poena graviore et forma iudiciorum breviore” will become clearer (Asc. Mil.

31).17

Preliminary Procedure under Existing Law

In contrast to later pretrial and trial proceedings held under the lex Pompeia de vi, the

preliminary procedure was not conducted before quaesitores (officers in charge of supervising

evidentiary examination) or iudices (jurors), but at contiones (informal hearings before

16 See Hough,“Lex Plautia De Vi,” 135-47, who discusses the legislative origin of the Plautian law in light of the lex Lutatia; see also Marshall, Commentary on Asconius, 210, and Gruen, Last Generation, 225-27, for other theories. 17 See Marshall, Commentary on Asconius, 177-78, who concurs with Greenidge, Legal Procedure, 391, and summarily finds that poena graviore meant that the convicted were denied fire and water in addition to their exile; he further summarizes Pompey’s proceedings discussed below to explain forma iudiciorum breviore.

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gatherings of people), actiones ad exhibendum (motions to produce, i.e., discovery),18 and other

less formal meetings. The first attempted legal action seeking to indict Milo may have occurred

immediately before the mob burned the Curia (Asc. Mil. 28-29). Milo’s prosecutors either

genuinely attempted to start the indictment of Milo, or used existing legal procedure as a ruse to

disguise their instigation of a riot.

After Asconius describes the procession carrying Clodius’ body in a litter and placing it

on the Rostra, all of which occurred on January 19th,19 he mentions that “[i]bi pro contione

Plancus et Pompeius qui competitoribus Milonis studebant invidiam Miloni fecerunt” (there

Plancus and Pompeius, who were supporting Milo’s competitors, invoked ill will against Milo

for the hearing) (Asc. Mil. 29). T. Munatius Plancus and Q. Pompeius Rufus were both tribunes

whose powers included bringing indictments before the plebes through a contio.20 The mob that

had accompanied the procession was aroused for this contio, but maybe a little more than

Plancus and Rufus intended. As Asconius explains, with Sextus Cloelius as leader,21 the people

proceeded to pile up benches and documents from the Curia’s library and burned Clodius’

corpse, as well as the Curia and other buildings (Asc. Mil. 29). Although, in hindsight, the

outcome of this event appears predictable at the time, Plancus and Rufus might have truly

intended to start the indictment of Milo with an appropriate—though emotionally charged—

contio, only to have it disrupted by the riot instigated by Sextus Cloelius. Dio’s account also

18 Michael C. Alexander, Trials in the Late Republic, 149 BC to 50 BC (Toronto: University of Toronto Press, 1990), 149-50. 19 Ruebel, “Trial of Milo,” 233-34. 20 Greenidge, Legal Procedure, 327-31, describes the jurisdiction of the tribunes and the plebes from around 461 BC up to the acquittal of Lucius Opimius on charges related to Gaius Gracchus. The manner in which the tribunes held contiones before the plebes before prior to ratification of Pompey’s law appears to continue this kind of jurisdiction. 21 See Chapter 2, n. 64, for discussion of this name and further references.

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suggests the original purpose of the contio was to rouse great anger, but not necessarily to cause

the destruction that followed (Cass. Dio 40.49).22

Shortly after the chaotic failure to indict at this first contio, Milo returned and began

campaigning again, and the tribune Marcus Caelius held a counter-contio to bring Milo’s side of

the story to the people, around January 27th (Cicero and Milo may have been present at this

contio).23 Here Milo’s advocates first set forth the factual issue of “uterque Miloni a Clodio

factas esse insidias” (whether the scheme had been plotted against Milo by Clodius) (Asc. Mil.

29). Although Milo’s advocates were not initiating proceedings against the dead Clodius, they

apparently thought that the proceedings attempted by T. Munatius Plancus and Q. Pompeius

Rufus needed to be countered with similar proceedings in order to defuse the charges against

Milo (Asc. Mil. 36).

While Pompey began levying security forces as proconsul under the senatus consultum

ultimum (solemn decree of the Senate), those charging Milo continued the preliminary

proceedings (Asc. Mil. 29).24 Had elections succeeded prior to this point, a procedural option

would have been to hold comitia consularia (consular meetings), according to Asconius (Asc.

Mil. 29). At such meetings, the participants probably would have addressed the matter, issued

indictments from the comitia, and assigned the cases to quaestores, elected officials to whom the

consuls’ criminal jurisdiction was delegated.25 As Asconius observes, however, there were no

22 But see Clark, ad Iudices Oratio, xxiii, who characterized Plancus and Rufus as “ring-leaders in the riot.” 23 Ruebel, “Trial of Milo,” 236, argues that the emendation executed by Clark in the manuscript converted “aci ipse” into “ac Cicero ipse” arbitrarily, and that the location of the passage in relation to mention of Milo, as well as Milo’s campaign efforts, support Milo’s presence at the contio rather than Cicero’s. After discussing these inconsistencies, Marshall, Commentary on Asconius, 171, asserts that, though Cicero should not be inserted here, the ipse refers to Caelius, not Milo. 24 But see Fergus Millar, The Crowd in Rome in the Late Republic (University of Michigan Press: Ann Arbor, 1998), 183, who, without explanation, says this was not senatus consultum ultimum; see also Marshall, Commentary on Asconius, 171, for a summary of the arguments surrounding this s.c.u. 25 Greenidge, Legal Procedure, 308-09. Distinguish quaestores, who were elected for a term in that office, from quaesitores, who were elected at an ad hoc election for the administration of a particular trial.

35

consuls to govern such a meeting. According to him, the frenzy of continued consular

campaigning, along with the presence of armed gangs, obstructed any consular meetings (Asc.

Mil. 29). Therefore, those prosecuting Milo continued the preliminary proceedings they had

attempted before the burning of the Curia.

The next step in the preliminary proceedings involved the production of slaves through

actiones ad exhibendum (discovery),26 a procedural step that would be repeated later under

Pompey’s new law (Asc. Mil. 30, 34). These actiones ad exhibendum probably occurred in late

February or early in the Interkalarius.27 Though Asconius does not mention whether these

motions were made at a contio, they apparently occurred at some sort of meeting: according to

Asconius, Milo’s advocates “[a]dfuerunt” (were present) as these actiones ad exhibendum were

made by several parties. It is also not clear from Asconius’ account whether these first motions

were made in order to gather evidence for the actual trials or for future contiones seeking to

indict Milo and others. These motions could have been the first formal step leading to actions

against the owners of the slaves,28 since the slaves might provide evidence against their masters

if faced with the threat of torture (Cic. Mil. 56-57).29

At the meeting, the two sets of actiones ad exhibendum addressed two issues: the events

on the Via Appia and the burning of the Curia. Clodius’ nephews, both named Appius Clodius,

initiated the first actio ad exhibendum against Milo. In their actio ad exhibendum, the Appii

demanded production of Milo’s and his wife Fausta’s familiae (slaves) (Asc. Mil. 30). Nepos

and Leo Valerius also brought an action seeking these slaves. In response, Lucius Herennius

26 Alexander, Trials in the Late Republic, 149-50. Asconius uses the term exhibendam while describing the process, reinforcing Alexander’s terminology (Asc. Mil. 29). 27 Ruebel, “Trial of Milo,” 239. 28 Alexander, Trials in the Late Republic, 150. 29 Although there is debate as to whether or not slaves could be forced to testify against their own masters through torture, there may have existed exceptions, such as testimony against a master for treason. See Ruebel, “Trial of Milo,” 239, n. 20, for discussion and further references.

36

Balbus made an actio ad exhibendum demanding Clodius’ familiam and comitum,30 probably to

stall the production of Milo’s slaves by generating a quid pro quo conflict, and to build on

Cicero’s theory that Clodius had set the ambush for Milo. In the second set of actiones ad

exhibendum, M. Caelius the tribune demanded the slaves of P. Plautius Hypsaeus, the consular

candidate, and those of Q. Pompeius Rufus the tribune, both of whom were implicated in the

destruction of the Curia, as mentioned above. According to Asconius’ account, formal charges

for this arson had not yet been brought, so this might have also been the first procedure seeking

to indict P. Plautius Hypsaeus and Q. Pompeius Rufus.31

In response to the actiones ad exhibendum against Milo, his legal team—which now

consisted of Quintus Hortensius, Cicero, Marcus Marcellus, Marcus Calidius, and Marcus

Cato—gave no ground. Q. Hortensius explained that Milo had freed his slaves “sub hoc titulo

quod caput suum ulti essent” (under the pretext that they had avenged his death) (Asc. Mil. 29-

30). Though Asconius may appear to be skeptical in his phrase “sub hoc titulo,” he was

probably referring to a particular legal ground upon which Milo could free his slaves.32

Apparently this explanation sufficed, because Asconius mentions no production of slaves at this

point, and because the slaves were demanded again later under Pompey’s new procedure (Asc.

Mil. 34).

30 Marshall, Commentary on Asconius, 173, explains that, due to Balbus’ prior allegiance with the Claudian family, it does not make sense that he would have demanded Clodius’ slaves; he solves this problem by attaching Balbus to the Valerii mentioned immediately before him in the text. Also, it is unclear what comitum means hear. It appears to be genitive plural of comes which can be translated as “attendant” or “tutor,” both of which fit here. Since it is functioning like “familiam” in the sentence, however, it is unclear why it is in the genitive form. Perhaps it is a misspelled accusative and indicates that a particular attendant or tutor was summoned. According to Marshall, one manuscript left it out, the Laurentianus LIV.5. 31 Alexander, Trials in the Late Republic, 150. According to Cassius Dio, P. Plauteus Hypsaeus, T. Munatius Plancus, and Q. Pompeius Rufus were all convicted on charges related to these affairs. The latter two were convicted in the arson of the Curia, but apparently enjoyed immunity until they left office because they were not tried until then (Cass. Dio 40.53-55). 32 Clark, ad Iudices Oratio, 99, n. 12, cross-references a section from the Justinian Digest which established saving a master’s life as a ground for manumission.

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It should be noted here that Asconius specifically points out that the Appii were the sons

of Clodius’ brother, Gaius Claudius, and that “ob id illi patrui sui mortem velut auctore patre

persequebantur” (on account of this [familial relationship] they were litigating the death of their

uncle [Clodius] as if by paternal authority) (Asc. Mil. 30). Although Asconius might simply be

explaining the zeal with which the Appii pursued the prosecution, he could also be describing the

standing needed if the Appii were to prosecute Milo and move for discovery, since Asconius

chose a causal statement showing the familial relationship as a reason that the Appii were able to

carry out the prosecution, i.e., “ob id...persequebantur” (Asc. Mil. 30). This statement, coupled

with the absence of the Valerii at the later proceedings under Pompey’s new law, might further

indicate that one of the charges against Milo was a private action for which Clodius’ nephews

had standing as family members, while the other was an offense contra rem publicam (against

the Republic) for which the Valerii had standing as citizens of the Republic.33

Procedural Wrangling in the Senate

Several debates or hearings occurred in the Senate while the parties continued to

prosecute Milo under the lex Plautia at the same time Pompey proposed, passed, and

implemented his new law. Sometime around February 18th, the Senate argued about the facts

surrounding Clodius’ death.34 Asconius explains that Quintus Metellus Scipio, one of Milo’s

opponents for consul, challenged (conquestus est) Quintus Caepio, who apparently supported the

version of events propagated by M. Caelius (and possibly Cicero and Milo) at the first contio

held on behalf of Milo (Asc. Mil. 30). Scipio argued that the theory of self-defense was false.

He asserted that Clodius had set out for a charitable speaking engagement in Aricia with twenty-

six slaves and that “Milonem subito post horam quartam, senatu misso, cum servis amplius CCC

33 But see Greenidge, Legal Procedure, 10, who asserts that, in general, any citizens could bring criminal charges, not just those with personal interests. 34 Ruebel, “Trial of Milo,” 238.

38

armatis obviam ei contendisse et supra Bovillas inopinantem in itinere aggressum” (after the 4th

hour, after the Senate dispersed, Milo had suddenly set out against [Clodius] with over 300

armed men, and attacked him unaware above Bovillae) (Asc. Mil. 30). Scipio went on to discuss

the event, describing Clodius’ flight to the inn, his death outside of the inn, an alleged theft of

Clodius’ ring, Milo’s alleged attempt at kidnapping Clodius’ son, and the subsequent execution

of several of Clodius’ slaves (Asc. Mil. 30). He further described how Milo had killed twelve of

Clodius’ slaves while only two of his own were injured, and how Milo then freed the slaves

involved and paid out a thousand bronze coins to spread the rumor that he had acted in self-

defense (Asc. Mil. 31).

During the weeks after this meeting of the Senate, Pompey proceeded to pass and

implement the new laws between Interkalarius 27th and March 26th.35 At the beginning of the

campaign for Pompey’s new laws, on Interkalarius 27th, advocates from both sides apparently

struggled to frame the existing charges under Pompey’s law. A debate occurred in the Senate

concerning the severance of the charges related to the burning of the Curia, the attack on Marcus

Lepidus’ house, and Clodius’ death (Asc. Mil. 38-39; Cic. Mil. 13-14).36 The details of this

debate are difficult to decipher because Cicero only mentions them in passing as he builds his

argument that, even under Pompey’s new law, Milo’s act was not contra rem publicam (against

the Republic) (Cic. Mil. 13-14). Further, as Asconius explains, there was no mention of this

debate in the legislative records for that date; rather, they only reported that all of the incidents

35 Ruebel, “Trial of Milo,” 240. 36 Ibid.

39

were considered contra rem publicam, and addressed a report that referred back to the debate,

which was issued on the day after the debate (Asc. Mil. 39).37

According to Asconius, on the first of March, tribune T. Munatius Plancus explained the

debate from the previous day as follows:

[c]um Hortensius dixisset ut extra ordinem quaereretur apud quaesitorem; existimaret futurum ut, cum pusillum dedisset dulcedinis, largiter acerbitatis devorarent: adversus hominem ingeniosum nostro ingenio usi sumus; invenimus Fufium, qui diceret ‘Divide’; reliquae parti sententiae ego et Sallustius intercessimus. when Hortensius had said that he would move for a special investigation with a quaesitor, he was thinking that it would turn out that, since he had given them a little taste of sweetness, they could stomach more bitterness. We used our own ingenuity against this ingenious man; we found Fufius, who would argue “Sever the charges;” Sallustius and I vetoed the remaining part of the charge (Asc. Mil. 39).

Apparently, Quintus Hortensius, Milo’s advocate, sought to characterize Milo’s charge as a

private allegation of homicide—rather than a crime against the state—in order to deal with it as a

simple question of who plotted against whom.38 Q. Hortensius framed this as a concession:

instead of contesting all procedures regarding charges against Milo, he and his comrades were

willing to allow the allegations to be addressed under the existing procedure for exceptional

alleged violence between private parties. He may have hoped that this would lead to a closer

examination of the personal hostilities between Milo and Clodius, and support a finding that

Clodius had plotted against Milo, not vice versa.39 The prosecutors, however, saw a problem

37 Clark, ad Iudices Oratio, 95, n. 11, explains that these legislative records, instituted by Julius Caesar in his first consulship, were probably the predecessor of the Acta Diurna (Daily Deeds of the Senate), which were implemented later. 38 Lintott, “Cicero and Milo,” 72, explains that a contra rem publicam declaration started the legal mechanism by which the Republic prosecuted violence against the state’s interest; at 72, n. 119, he further explains that such violence could still be dealt with privately at this time. 39 Ibid., 72. Lintott argues, however, that Hortensius conceded that the offense was contra rem publicam. If this indeed were the case, which this paper argues against, it may have been a mere technical concession to gain the audience of the quaesitor, an objective which some of Milo’s prosecutors apparently sought and to which Hortensius conceded. Marshall, Commentary on Asconius, 193, points out that the Senate’s declaration that all the acts were contra rem publicam cut both ways: it put Milo, as well as the tribunes responsible for the destruction, in jeopardy. In light of this observation, it does not make sense that any of Milo’s advocates would want him lumped in with others charged for acts contra rem publicam.

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with this and, through their friend Quintus Fufius Calenus, they severed the charges against

Milo, most likely under the premise that the alleged murder could then be appropriately

examined via a quaestio extra ordinem (special investigation) and as an act contra rem

publicam.40 Once the charges were divided, however, Plancus and Crispus made their final

move and dropped the charge that would have been guided by the established procedure as a

quaestio extra ordinem (Asc. Mil. 39). As a result, Pompey’s new law would be the only law

governing charges against Milo as offenses contra rem publicam.

Asconius’ description of this situation and Cicero’s terse reference to it cause confusion.

It may at first appear that Q. Hortensius sought to have the charge framed as contra rem

publicam,41 or that Q. Fufius Calenus’ motion was completely vetoed by T. Munatius Plancus

and C. Sallustius Crispus.42 The first of these observations does not make sense. As Asconius

points out, Hortensius sought something distinct from charges contra rem publicam, namely a

hearing extra ordinem…apud quaesitorem (a special hearing before a quaesitor).43 Therefore, it

makes sense that he did not concede that the charges against Milo were contra rem publicam, but

wanted Milo’s charges handled differently than the charges against others, charges which could 40 There exists much discussion regarding exactly what the two resulting charges were after Calenus demanded division. Clark, ad Iudices Oratio, 13-14, n. 8, agrees that the motion was divided into two inquiries: 1) whether the act was contra rem publicam and 2) whether the procedure should be governed as extra ordinem under the current law; he argues that an old assertion—that the two motions were 1) whether the inquiry would be conducted as extra ordinem and 2) whether they should be governed by old law—is incorrect because the overall outcome of the meeting rendered all of the crimes at issue contra rem publicam, an impossible result if neither prong of the split motion sought such a declaration. Berry, Defense Speeches, 261, n. 14, agrees with Clark, as does Colson, Pro Milone, 57. Marshall, Commentary on Asconius, 194, observes that the debate still continues, explaining that Gruen, Last Generation, 234-35, revives the argument that Clark rejects; Marshall demonstrates that the Scholia Bobiensia acknowledges that the Senate declared the acts contra rem publicam [Thomas Stangl, Ciceronis Orationum Scholiastiae (Hildesheim: Georg Olms Verlagsbuchhandlung, 1964), 112], while he also points out that another section may appear to imply that both prongs of the split motion dealt with extra ordinem, one under the old law and one under new law (Stangl 117). Marshall, however, uses the same logic as Clark in questioning Gruen and decides that, whatever the two motions were, the veto of one of them allowed Pompey to implement the new procedure. Marshall, Commentary on Asconius, 178, also describes the interplay between the tribunes and Calenus in a way similar to this paper. 41 Lintott, “Cicero and Milo,” 72; Ruebel, “Trial of Milo,” 240. See also Stone, “Second Thoughts,” 94-95, who distinguishes between proceedings where vis and insidiae must be proven and those where only vis must be proven. 42 Ruebel, “Trial of Milo,” 240. 43 Ironically, he got exactly what he wanted under Pompey’s new law.

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hardly be framed as anything other than contra rem publicam. The best argument in support of

this interpretation is that Hortensius, while conceding the act was contra rem publicam, may

have been petitioning only that the trial occur before a quaesitor under existing procedure.44

Since the trial indeed occurred before a quaesitor, however, it is unclear how the strategy of

Plancus and Crispus defeated Hortensius’ petition. Hortensius must have been seeking

something distinct from a charge framed as contra rem publicam.

The second assertion regarding Plancus’ and Crispus’ complete veto of Fufius Calenus’

motion also does not make sense. First, according to Asconius, Plancus explained that he and

Crispus sought out Calenus, who was willing to make the motion to divide the charges. Plancus

further explained that he and Crispus then vetoed “relinquae parti sententiae” (the remaining

part of the charge), which, logically, would be the part that Hortensius sought—a quaestio extra

ordinem (Asc. Mil. 39).45 Thus, as explained above, it makes more sense that Calenus’ motion

split the charge against Milo, based on allegations supporting both a quaestio extra ordinem

under extant procedure and a new action regarding acts contra rem publicam, and that the two

tribunes then vetoed only the quaestio extra ordinem. Moreover, it is illogical that Plancus and

Crispus would seek out Calenus, have him move for a severance of charges, and then veto his

entire motion.46

Cicero’s reference to this procedural debate also confuses the positions of the prosecutors

and the defense, and causes the difficulties in understanding the debate addressed above. In his

published speech, Cicero refers to this procedural posturing when he questions why Milo’s

charge was associated with the other charges as contra rem publicam. As Cicero explains:

44 See, e.g., Ruebel, “Trial of Milo,” n. 24; Lintott, “Cicero and Milo,” 72. 45 Marshall, Commentary on Asconius, 178, agrees. 46 But see O.F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 2, 85, where Robinson believes that Pompey’s new law de vi implemented a quaestio extra ordinem against Milo, rather than setting forth a new contra rem publicam proceeding for all the charges surrounding Clodius’ death and the public destruction.

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[i]taque ego ipse decrevi, cum caedem in via Appia factam esse constaret, non eum qui se defendisset contra rem publicam fecisse, sed, cum inesset in re vis et insidiae, crimen iudicio reseravi, rem notavi. Quod si per furiosum illum tr. pl. senatui quod sentiebat perficere licuisset, novam quaestionem nullam haberemus. Decernebat enim ut veteribus legibus, tantum modo extra ordinem, quaereretur. Divisa sententia est postulante nescio quo…sic reliqua auctoritas senatus empta intercessione sublata est. therefore I myself determined, when it was established that the murder had been committed on the Via Appia, that the man who had defended himself had not done so against the Republic; however, since both violence and plotting were involved, I reserved my judgment for court and took notice of the matter. Indeed, we would have had no new procedure if the Senate had been allowed to carry out what it was considering from that furious tribune of the plebes. For he understood that, under existing laws, the Senate should prosecute the matter only as a [quaestio] extra ordinem. The charge was divided at the demand of someone I do not know…thus the remaining authority of the senate was destroyed by a purchased veto (Cic. Mil. 14).

This passage, though ambiguous in places, supports the explanation of the debate offered above.

First, it is evident that, at the time of debate, Cicero did not support the position that Milo’s act

was contra rem publicam; rather, he withheld his judgment after learning about the facts

surrounding the homicide. For this reason, assertions that Cicero and Hortensius conceded to a

contra rem publicam charge are not supported.47

Further, though at first confusing, Cicero’s statement regarding a tribune of the plebs

supports the assertion that Hortensius was seeking to avoid contra rem publicam proceedings.

What causes the confusion is Cicero’s ambiguous reference to the tribune of the plebes. Since

Asconius only mentions Plancus and Crispus in his description of the debate, one might be

tempted to think that Cicero is referring to one of them, or to their agent, Calenus, when he

mentions “furiosum illum tr. pl.” (that furious tribune of the plebes) (Asc. Mil. 39; Cic. Mil.

14).48 This misdirected reasoning leads to the conclusion that, since the tribune mentioned here

opposed new procedure, Calenus and his principals sought to retain the old quaestio extra

47 Compare this position to that of Ruebel, “Trial of Milo,” 240, and Lintott, “Cicero and Milo,” 72, who argue that Cicero and Hortensius conceded that the charge was contra rem publicam. 48 Clark, ad Iudices Oratio, 13, n. 5; Colson, Pro Milone, 57; Berry, Defense Speeches, 261, n.14.

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ordinem as well as the new procedure, or that somehow Calenus, at the prompting of Plancus and

Crispus, made the motion for severance of charges only to be vetoed by them.49

Such an analysis overlooks two things which help clarify the matter: Cicero’s truncated

description of the complex campaigning that addressed intricate legal issues, and the zealous,

even furious, opposition against Pompey’s new law led by another tribune, Marcus Caelius (Asc.

Mil. 31). In light of these two factors, Cicero’s comment does not support an assertion that any

of Milo’s advocates conceded that the act was contra rem publicam. Instead, the passage laid

out above better explains the debate and is further supported by the observation that Cicero was

most likely referring to M. Caelius’ later challenge against Pompey’s new law, which framed

Milo’s charges as contra rem publicam (Asc. Mil. 31); or perhaps he was referring to opposition

from Caelius at the debate itself, which Asconius fails to mention, or even to the first contio held

on Milo’s behalf, in which Caelius participated (Asc. Mil. 29). Based on this and the foregoing

arguments, the most reasonable analysis finds that Milo’s advocates sought to have Milo’s

charges completely distinguished from the acts that were obviously contra rem publicam—the

burning of the Curia, an essential public building, and a blatant attack against the interrex

Marcus Lepidus, a public officer—and dealt with as a crime between two private citizens, while

their opponents sought for the opposite. The above discussion that addressed legal standing to

prosecute reinforces this analysis. Asconius points out that Clodius’ nephews had standing to

prosecute Milo because he was their uncle (Asc. Mil. 30). Asconius appears to be distinguishing

between them and the Valerii, who apparently had standing as Roman citizens to prosecute Milo

for a crime contra rem publicam. As will be seen later, once proceedings started under

Pompey’s new law, Clodius’ nephews were chosen to prosecute the contra rem publicam charge

49 For this assertion, see Ruebel, “Trial of Milo,” 240; see also Lintott, “Cicero and Milo,” 72.

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(Asc. Mil. 34), probably because they had standing both as Clodius’ nephews and as Roman

citizens. The Valerii probably politely stepped aside.

Final Throes of Lex Plautia de Vi

Subsequent to this wrangling in the Senate, procedure under Pompey’s new laws began to

gain substance and, in the case against Milo, the former procedure under the lex Plautia de vi

began to dwindle into political rallies.50 Shortly after explaining how Pompey’s bill became law,

Asconius describes what appears to be the first successful contio against Milo under the lex

Plautia. This contio probably occurred sometime between the introduction of the lex Pompeia

de vi and its ratification, between March 15th and March 25th.51 At this contio, Plancus presented

a witness, Marcus Aemilius Philemon, a well-known freedman of Marcus Lepidus. Philemon

testified that he and a few other men were traveling and came upon the conflict between Clodius

and Milo. According to Philemon, as a result of reporting the events that they had witnessed, he

and the other men were imprisoned at Milo’s villa for two months.52 This testimony successfully

affected popular opinion and evoked extreme ill will against Milo (Asc. Mil. 32).

Asconius’ account reveals one other step in the proceedings under the law preceding the

lex Pompeia de vi when he describes a proceeding carried out by Plancus and Q. Pompeius

Rufus. This event appears to be a continuation of the failed actiones ad exhibendum seeking to

produce Milo’s slaves and occurred around the same time as the examination of Philemon.53 The

tribunes subpoenaed a triumvir capitalis—a magistrate in charge of holding defendants prior to

50 As mentioned above, the lex Plautia de vi was nevertheless still available should the procedure under the lex Pompeia de vi fail. 51 Ruebel, “Trial of Milo,” 242. 52 For summary of the witnesses’ testimony prior to implementation of Pompey’s law, see Clark, ad Iudices Oratio, xxii. 53 Ruebel, “Trial of Milo,” 242.

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trial, supervising convicted prisoners, and carrying out executions54—who testified as to the

treatment of one of Milo’s slaves. Plancus and Rufus inquired about the condition of Milo’s

slave, Galata. At the time of his testimony, the triumvir capitalis explained that the slave had

been brought to him after he was caught sleeping at an inn. Perhaps he had not been freed with

all of Milo’s other slaves. The tribunes criticized the triumvir capitalis, commanding him not to

return the slave to Milo. The tribunes probably would have questioned the slave had it not been

for Caelius, the tribune favoring Milo, and his associate Manilius Cumanus, who seized the slave

from the home of the triumvir capitalis and returned him to Milo (Asc. Mil. 32). Apparently,

this action prevented any examination of the slave at this point.

Pretrial and Trial Procedure under Pompey’s Laws

At the end of March, the pretrial procedure under lex Pompeia de vi began and continued

into April.55 Compared to the proceedings under the lex Plautia de vi, proceedings under

Pompey’s law immediately made some progress, but they also repeated some of the steps

attempted under the former law. Examination of Pompey’s new law, and the actions

successfully executed under it, provides some insight into how the procedure would have worked

under the prior law had there not been such turmoil. The distinction observed by Asconius—that

the new proceedings were shorter and harsher—should become clearer while examining the

procedures under Pompey’s new law (Asc. Mil. 31).

The initial step under Pompey’s new law was the election of quaesitores (officers in

charge of supervising evidentiary examination) by vote of the people, which probably occurred

54 Greenidge, Legal Procedure, 343; compare this definition with Clark, ad Iudices Oratio, 102, n. 12, which focuses on other duties of the triumvir capitalis, including night patrol and capture of runaway slaves. 55 Ruebel, “Trial of Milo,” 243. For other summaries of the procedure under Pompey’s law, see Clark, ad Iudices Oratio, xxv-xviii; Gruen, Last Generation, 234-39, 337-44; Colson, Pro Milone, xv; Berry, Defense Speeches, 166; Lintott, “Cicero and Milo,” 73-75; Settle, “Other Pro Milone,” 271-72.

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on March 26th.56 Out of the candidates, who were all former consuls, the people elected Lucius

Domitius Ahenobarbus (Asc. Mil. 33) and Aulus Manlius Torquatus (Asc. Mil. 34). Pompey

then proposed a list of iudices (jurors) who were well known and greatly respected (Asc. Mil. 34;

Cass. Dio 40.52). With these judicial positions filled, the pretrial proceedings began in a more

orderly fashion than those under the lex Plautia. The ad hoc election of quaesitores under

Pompey’s new law most likely parallels the assignment of cases to quaestores, which would

have occurred at the comitia consularia under the lex Plautia. As mentioned before, comitia

consularia had been impossible previously due to the lack of consuls (Asc. Mil. 29).

Various parties brought charges against Milo again under Pompey’s new law, probably

on the same day that the quaesitores were elected.57 First, the nephews of Clodius, both named

Appius Claudius (Asc. Mil. 29-30), brought charges under Pompey’s laws, both de vi and de

ambitu. Two other people, Gaius Ateius Capito and Lucius Cornificius, also brought a charge de

ambitu, and yet another person, Publius Fulvius Neratus, brought a charge de sodaliciis (Asc.

Mil. 34).58 The proponents of the charges de ambitu and de sodaliciis believed that once Milo

was convicted under the charges de vi, they would be able to successfully convict him on these

other lesser charges (Asc. Mil. 34).59 This stage repeated the indictments that occurred under the

prior law, along with actiones ad exhibendum, both of which were previously ineffective. Note

also that only the nephews of Clodius sought indictments de vi at this point, reinforcing the 56 Greenidge, Legal Procedure, 392; Ruebel, “Trial of Milo,” 242-43. 57 Ruebel, “Trial of Milo,” 243. At the time of these proceedings, Roman Criminal Law only provided the forum for charges that were brought and prosecuted by private parties. Compare this with modern American Criminal Law, under which the state brings charges, including those initiated by private parties. For further discussion of this, see Erich S. Gruen, Roman Politics and the Criminal Courts, 149-78 BC (Cambridge: Harvard University Press, 1968), 248-78. 58 Greenidge, Legal Procedure, 393. Clark, ad Iudices Oratio, 103-04, n. 23, also points out that the name C. Ateio may not be correct, due to an unfamiliar name in the manuscripts, i.e., c. ceteio. Clark identifies this person as C. Ateius Capito, who was tribune in 55 BC. He also notes that another subsidiary de vi charge has been postulated, but that this involves insertion of the phrase “de vi” in a place without a lacuna, among other things. See his note for further discussion regarding the “surgery” other scholars have performed at this place in the text. See also Gruen, Last Generation, 342-43, for description of this part of the procedure. 59 Clark, ad Iudices Oratio, xxvi.

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assertion that, when the private action was vetoed by Munatius Plancus and Sallustius Crispus,

the quaesitor probably allowed the family members to take over the public charge out of

recognition of their dual standing—both private and public—and out of respect for the nephews’

loss.60

The cases de vi and de ambitu were assigned to the courts of two different quaesitores.

The quaesitor Manlius Torquatus, who would govern the proceedings de ambitu, held a divinatio

to determine who among the parties accusing Milo de ambitu would carry out the prosecution.61

In the meantime, the quaesitor Domitius Ahenobarbus was preparing to hold proceedings de vi.

Both of the quaesitores summoned Milo to appear in their courts on the same day, April 4th.

Since Milo could not be two places at once, he personally appeared before Ahenobarbus and sent

representatives to Torquatus. In the court addressing the charges de ambitu, Milo’s

representative, Marcus Marcellus, successfully petitioned Torquatus to grant a continuance so

that the cases de ambitu would be heard after the case de vi (Asc. Mil. 34).62 Note that this stage

of the proceeding was completely lacking under the prior proceedings, perhaps because those

proceedings did not include or had not reached such a stage, or because the disorder prior to

Pompey’s emergency consulship and levies prevented it.

After Milo’s team had reconciled the courts’ dockets, the proceedings de vi started in

Ahenobarbus’ court. These proceedings would occupy the final days leading up to the speeches

for and against Milo, April 4th through April 6th. The older of the Appii Claudii summoned

Milo’s slaves, but ran into the same problem that had occurred in earlier proceedings prior to

Pompey’s appointment as consul, in which neither Milo nor his accusers had succeeded in such

60 Also note that the charges de ambitu and de sodaliciis were probably both contra rem publicam, allowing all citizens standing to prosecute. Gruen, Last Generation, 342, thinks that the Appii simply won the divinatio. 61 Ruebel, “Trial of Milo,” 243-44; Greenidge, Legal Procedure, 393. 62 Ruebel, “Trial of Milo,” 244; Clark, ad Iudices Oratio, xxvi.

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actiones ad exhibendum (Asc. Mil. 29-30, 34).63 Milo declared that he no longer had command

of his former slaves because he had freed them. To resolve this conflict Ahenobarbus consulted

the iudices and, based on their advice, ordered Milo to provide as many slaves as Appius

Claudius wished (Asc. Mil. 34).64 It is unclear whether this actio ad exhibendum produced any

slaves. If Milo had not freed any, then it probably succeeded. If he had truly freed them,

however, it is unclear whether they would have been subject to this actio ad exhibendum. As

mentioned before, at least one, Galata, had been held by the triumvir capitalis, which prevented

Milo from freeing him with the others. Perhaps Galata was subject to enforcement of

Ahenobarbus’ holding—unless Milo had freed him after Caelius and Manilius Cumanus returned

him (Asc. Mil. 32). On the other hand, perhaps some of Milo’s slaves were found in similar

situations and were brought in for interrogation.

After the witnesses were summoned, under Pompey’s procedure, both the accusator

(prosecutor) and the reus (defendant) examined them in front of all the iudices that Pompey had

appointed. This examination preceded the formal trial and lasted for three days (Asc. Mil. 34).

Pompey’s law directed that, during the examination, “dicta eorum iudices consignarent” (the

jurors must weigh the testimony of these [witnesses]) (Asc. Mil. 34).65 Here again exists a

procedure parallel to what might have occurred had actiones ad exhibendum under the lex

Plautia de vi succeeded. 63 Alexander, Trials in the Late Republic, 149-51. 64 Ruebel, “Trial of Milo,” 244; Greenidge, Legal Procedure, 394, asserts that no torture was involved; see Ruebel, “Trial of Milo,” 239, n. 20, for further references in his discussion on whether or not torture would have been allowed in the first set of actiones ad exhibendum. 65 Greenidge, Legal Procedure, 394. I have translated consigno here as “weigh.” However, closer definitions range from the literal “seal” or “record in a sealed document” to the figurative “establish” or “attest,” according to P.G.W. Glare, ed., Oxford Latin Dictionary (Oxford: Clarendon Press, 1982) s.v. “consigno.” Since the situation involved iudices hearing testimony, a more figurative translation, showing that they considered the credibility of the witnesses and made personal note of it for the closing argument, is more fitting. But compare Greenidge, Legal Procedure, 394, who translates this as a literal transcription of witness testimony that was then read to a new, different jury at the final proceeding. Marshall, Commentary on Asconius, 187, points out that one of the manuscripts of the speech contained confirmarent instead of consignarent; however, along with Clark, he accepts the emendation executed by Munatius.

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The examination conducted by the advocates on Apri 4th, 5th, and 6th included the

testimony of several witnesses which revealed further facts surrounding Clodius’ homicide.66 As

Asconius explains, on the first day of examination, Gaius Causinius Schola, a witness for the

prosecution, claimed that he was with Clodius when he died, and magnified the violence

accompanying Clodius’ death. When M. Marcellus began to cross-examine Schola, the Clodians

in the audience broke into an uproar (Asc. Mil. 35).67 This outbreak stopped the proceedings.

Marcellus and Milo both demanded that Ahenobarbus provide security forces. Pompey, who

was also watching, was annoyed by the noise and agreed to provide security.68 As witnesses

were examined on the following two days, the Clodians were terrified and allowed the

questioning to proceed (Asc. Mil. 35-6).

With the Clodians subdued, both sides properly examined the witnesses. The testimony

of people living around Bovillae revealed more details, including the murder of the innkeeper,

the attack on the tavern, and the harsh handling of Clodius’ body (Asc. Mil. 35).69 Some young

Alban women testified that an unknown woman had approached them and made a plea for

Milo’s freedom because Clodius had died (Asc. Mil. 35), a death portrayed by the defense team

as the outcome of Milo’s desperate self-defense. Clodius’ wife, Fulvia, and Sempronia, her

mother, provided the final grievous testimony, evoking empathy from those observing their tears

(Asc. Mil. 35). There is no mention of witnesses testifying as to the character of either Milo or

Clodius. Asconius’ account here lends credibility to Cassius Dio’s description of Pompey’s

reformed law, in which he explains that the law eliminated character witnesses from the

procedure (Cass. Dio 40.52). This measure would expedite the hearings, and it is probably one

66 Ruebel, “Trial of Milo,” 244. 67 Clark, ad Iudices Oratio, 105, n. 12, defines interrogare as cross-examination, interrogation, and rebuttal. 68 Ibid., xxvi-xxvii. 69 See Clark, ad Iudices Oratio, xxii, for a summary of this and other testimony against Milo.

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of the ways that Pompey’s laws made the proceedings shorter.70 After the examination of

witnesses concluded, Munatius Plancus held a final contio and urged that everyone attend the

last day of the trial and express their grief over Clodius’ death (Asc. Mil. 35).71 This final contio

may represent the last remnant of the proceedings started under the lex Plautia de vi.

On the fourth day, April 7th (or at the end of the third day after the examination of

witnesses) the first step in narrowing the pool of iudices occurred.72 Earlier in his work,

Asconius initially describes this as a step that would occur on the fourth day of the trial, followed

by a fifth day for oral arguments (Asc. Mil. 34). His later description, however, leaves the extra

day out and describes the oral arguments as starting on the day immediately after the

examination of the witnesses (Asc. Mil. 35). Therefore this step in the procedure may have

occurred after examination of witnesses on April 6th or as the sole proceeding on April 7th,

followed by oral argument on April 8th.73

Regardless of the exact date of its execution, the way in which the process for reducing

the number of iudices was carried out under lex Pompeia de vi probably represents another

manner in which Pompey’s law made the trial shorter. The selection process involved drawing

names of iudices to hear the trial from the names of all iudices involved up to this point in the

proceedings. In front of everyone involved in the proceedings, both the accusator and the reus

verified that the number of pilae (lots) upon which the names of the iudices had been inscribed

70 Clark, ad Iudices Oratio, xxv, embellishes upon what would have occurred had character witnesses been allowed to give laudationes (speeches praising Milo’s character). 71 Ruebel, “Trial of Milo,” 244. Asconius states that, on the same day, M. Munatius Plancus told everyone to come on the following day to Milo’s actual trial, which would have been April 7th. In a previous passage, Mil. 34, Asconius states that there was a day between the days of witness examination and the day of seating the jury and arguing the case, on which iudices were selected by lot to narrow the pool under Pompey’s procedure. There has been scholarly debate about the exact length of the trial and whether the selection occurred on the day of the trial or on a day between the examination of the witnesses and the day of trial trial. This paper takes the position that these proceedings and the trial occurred on the day following the examination of witnesses. Several arguments support this position; for example, see Ruebel, “Trial of Milo,” 245-46. 72 See note 71 regarding discrepancy in dates. 73 See note 71 regarding discrepancy in dates.

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matched the actual number of iudices (coram accusatore ac reo pilae in quibus nomina iudicum

inscripta essent aequarentur) (Asc. Mil. 34).74 Pompey’s procedure probably incorporated this

step so that neither side could remove the names of unfavorable iudices before the names of

those who would hear the formal causa were drawn by lot later that day (or on the following

day), and in order to circumvent any voir dire of the iudices themselves. On the fourth (or fifth)

day, eighty-one iudices were then selected by this process.75 Since these iudices were selected

by lot, and not by another more adversarial process, they could proceed directly to the sessum

(sitting) (Asc. Mil. 34).

74 Greenidge, Legal Procedure, 395, n. 2, and Marshall, Commentary on Asconius, 188, agree with this reading; but Clark, ad Iudices Oratio, 12, n. 3, states that choosing iudices by lot was a common practice under the lex Fufia. 75 But see Greenidge, Legal Procedure, 394-95, who asserts that an entirely new jury convened, heard the record of prior witness examination, and then delivered the verdict after closing arguments. He bases this assertion on a passage from Caes. B. Civ. 3.1 [Gaius Julius Caesar, “De Bello Civili: Liber Tertius,” in Commentariorum, ed. Renatus Du Pontet (Oxford: Oxford Univerity Press, 1958)] in which Julius Caesar explains that, after he and Publius Servilius were made consuls, the praetors and tribunes were holding referenda before the people regarding those condemned de ambitu (electoral corruption) under Pompey’s law. Though the passage does refer to one of the kinds of proceedings associated with trials surrounding the murder of Clodius, the reference does not mention Milo or trials de vi. The specific phrase describes Pompey’s legal proceedings as follows: “non nullos Pompeia lege damnatos temporibus illis quibus in urbe praesidia legionum Pompeius habuerat, quae iudicia aliis audientibus iudicibus, aliis sententiam ferentibus singulis diebus erant perfecta” ([referenda were heard regarding] some who had been condemned under Pompey’s law during those times when Pompey stationed security forces in the city; decisions were reached [under Pompey’s law] with some jurors hearing evidence and others returning verdicts on the same day). Greenidge’s interpretation of this assertion is not sound for several reasons. First, its author, Julius Caesar, would benefit from pointing out the chaos that he ended by eventually defeating Pompey (which is a focus in B. Civ. 3) and thus might have exaggerated the rushed proceedings. Second, Greenidge has to assume that Caesar is only describing the last day of Milo’s trial, since the evidence was presented to jurors over several prior days, regardless of whether it was read from the record on the last day or not. Third, the description does not necessarily address a single trial; it could just as easily describe proceedings from various trials that normally take several days, which were instead condensed and completed in a single day under Pompey’s law. In contrast to Greenidge’s description of the proceedings, Asconius supports a less procedurally descriptive reading of Caesar’s statement, since Asconius describes how many other trials occurred around the time of Milo’s trial, and because he does not indicate that new iudices were chosen for the final proceeding. Asconius rather suggests the description in the text above. Coupled with Asconius’ description, which states that, after eighty-one jurors heard the closing arguments, the number was reduced to fifty-one, Caesar’s description also could be interpreted as illustrating a set of jurors hearing the final arguments and a subset thereof casting votes as to the verdict (Asc. Mil. 34). Clark, ad Iudices Oratio, 104-05, n. 17, supports this view and, in addition to pointing out Caesar’s motive behind his description of trials under Pompey, Clark also adds that this refers to trials de ambitu because he rightly doubts that any other proceeding occurred during Milo’s trial. Marshall, Commentary on Asconius, 187, sides with Gruen, Last Generation, 238, n. 116, and observes that the precise relationship between the final set of iudices present on the last day to those present on the prior days cannot be ascertained; Marshall and Gruen also suspect that the use of lots in selecting the jury prevented anyone from knowing which iudices to bribe or coerce before the last day of the trial. Further, see Jones, Criminal Courts of the Roman Republic, 70, for an interpretation of the selection of iudices in accord with this paper. Ruebel, “Trial of Milo,” 245.

52

At the formal trial, which followed the seating of the iudices, the prosecution would have

two hours to present its argument, incorporating evidence discovered in the examinations. The

defendant would then have one hour to present his defense and rebut the prosecution, also using

evidence from the examinations.76 After both sides presented their cases, each would be allowed

to strike five iudices from each caste: five senatores, five equites (knights), and five tribuni

aerarii (magistrates’ assistants who represented the plebes) (Asc. Mil. 34, 47).77 As a result,

fifty-one jurors would remain who would vote on the verdict (Asc. Mil. 34-35).

On April 7th (or 8th), Rome was shut down.78 Pompey had disbursed additional troops

into the Forum and all around it (Asc. Mil. 36, Cass. Dio 40.53, Plut. Cic. 35). He sat at the

aerarium as he had at the previous proceedings (Asc. Mil. 36, Cass. Dio 40.53).79 The

prosecution presented its case over the prescribed time of two hours. The older of the Appii

Claudii, Marcus Antonius, and Publius Valerius Nepos argued the case. Under the security

provided by Pompey, the Clodians maintained their silence throughout the prosecution’s case.

Finally, the defense began. Cicero alone stood in defense of Milo. As he started his speech,

however, the Clodians were unable to restrain themselves, even with the ominous threat of

security forces. They shouted menacingly at Cicero and Cicero lost his nerve (Asc. Mil. 36).

The resulting speech, or non-speech, has been the subject of much debate ever since (Cass. Dio

40.54; Plut. Cic. 35). At the end of the trial, however, there was not much debate over Milo’s

guilt. Despite being defended by the most reputable lawyer in Rome, Milo was convicted and

sent into exile.80 The jury’s decision was based on the allegation that Milo had taken time to

76 Cassius Dio makes note of the time allotments, indicating that they were shorter than before, and comments on the smaller number of lawyers involved (Cass. Dio 40.52). 77 Ruebel, “Trial of Milo,” 245. 78 Ibid. See note 71 above about the discrepancy between dates. 79 Cassius Dio does not give the specific location, but says that Pompey was present at the trial. 80 For summaries of the outcome of Milo’s trial and other trials related to it, see Clark, ad Iudices Oratio, xxviii-xxix

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consider his options after the initial fight at Bovillae, and had then ordered his slaves to kill

Clodius (Asc. Mil. 47).81

81 Ruebel, “Trial of Milo,” 245.

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CHAPTER 4

THE PHYSICAL TOPOGRAPHY OF THE TRIAL

Along with the unusual procedure and calamitous events preceding Milo’s trial, the

physical setting of the trial seems to have influenced the strategies of all parties involved. For

the prosecution, the charred remains of the Curia and other structures easily visible from the

Forum served as evidentiary exhibits showing the unrest and violence inspired by Milo’s alleged

murder of Clodius. Inevitably, Cicero felt obligated to attempt to turn these topographical

exhibits around to benefit Milo and place blame on the dead Clodius and his supporters. Cicero

failed to do so. In addition, Pompey also used the setting to convey an image of an evenhanded,

powerful, peacekeeping consul presiding wisely over an unstable Forum. The presence of

Pompey and his armed guards at the closing arguments demanded interpretation from both

prosecution and defense. Given the importance of such topographic features, the various parties’

use of them should be examined.

Since the prosecution’s strategy for using the topographical features and the presence of

soldiers to show the result of Milo’s violence should be fairly obvious—i.e., pointing to the

charred Curia, emphasizing the need for police power due to Milo’s act, etc.—this examination

will focus on Cicero’s attempts at using the topographical elements around the site of the trial to

benefit Milo, and Pompey’s use of the topography to convey his political message. Specifically,

the location of the trial as described in ancient accounts of the trial (Asc. Mil. 35-36; Cass. Dio

40.54-40.55; Plut. Cic. 35) and related archaeological sources will be consulted first, in order to

determine the topographical features proximate to the proceedings. Then, Pompey’s presence at

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the site of the trial will be summarily examined, and his political purposes will be considered.

Finally, Cicero’s use of the topography surrounding the trial will be considered as portrayed in

the published version of his pro Milone. For the following discussion, please also refer to the

map provided at the end of this chapter for further clarity regarding the locations of these

structures.1

Topographical Features Surrounding the Trial of Milo

The Temple of Saturn provided a place for Pompey and the quaesitores to manage

security and administer Milo’s trial. The version of the temple extant during the trial most likely

stood on a lower slope of the Capitoline on the west side of the open Forum, and faced toward

the Curia Hostilia, the Temple of Concord, and other structures that will be discussed later. The

original version of the temple may have been built by king Tullus Hostilius or another Tarquin

king, or by one of the first magistrates of the Republic around 501 to 493 BC.2 It is unclear, and

unlikely, that the Temple of Saturn extant at the time of Milo’s trial was the same as the one built

at the beginning of the Republic. The temple may have been burnt by invading Gauls in the 4th

century BC and repaired, though there is no clear record of such an event.3 It may have also

been refurbished under a general improvement plan starting in 174 BC and continuing until 42

BC.4 Although little of the temple extant at Milo’s trial currently remains, some features present

in later reconstructions of the Temple of Saturn were probably also present in the original

1 Giuseppe Lugli, Roma antica, il centro monumentale (Rome: G. Bardi, 1946), tav. III. 2 Eva Margareta Steinby, Lexicon Topographicum Urbis Romae, vols. 1-5 (Rome: Severino Tognon, 1999) (hereinafter LTUR), s.v. Saturnus, Aedes, 4:234-36; Samuel Ball Platner and Thomas Ashby, A Topographical Dictionary of Ancient Rome (Oxford: Oxford University Press, 1929) (hereinafter Platner-Ashby), s.v. Saturnus, Aedes, 463-65; Lawrence Richardson, Jr., A New Topographical Dictionary of Ancient Rome (Maryland: Johns Hopkins University Press, 1992), s.v. Saturnus, Aedes, 343; Lawrence Richardson, Jr., “The Approach to the Temple of Saturn in Rome,” AJA 84, no. 1 (1980): 55; Lugli, Roma antica, s.v. Tempio di Saturno, 149-150; Filippo Coarelli, Roma, 5th ed. (Rome: Laterza 1995), s.v. il Tempio di Saturno, 75-76. 3 Compare Richardson, Topog. Dict. Ancient Rome, s.v. Saturnus, Aedes, 343, and Richardson, “Approach to the Temple,” 55, where he points out that there is no record of this reconstruction, with LTUR, s.v. Saturnus, Aedes, 4:234, and Platner-Ashby, s.v. Saturnus, Aedes, 454, which appear confident about said event. 4 LTUR, s.v. Saturnus, Aedes, 4:234.

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structure due to its location on the Capitoline: the unique stair structure and a very tall

foundational wall on the eastern front corner of the temple.5 The towering structure, along with

some other topographical features near the temple, would have allowed Pompey and his guard to

loom menacingly above the Forum. Furthermore, the quaesitor probably also presided from

somewhere near the Temple of Saturn, standing in place of an elected quaestor—whose office

was located in the Temple of Saturn—in order to conduct Milo’s trial in the wake of failed

elections.6

At the Temple of Saturn was located the Aerarium Saturni, the treasury managed by the

quaestores during the Republic.7 Asconius uses the term aerarium as a point of reference when

describing where Pompey sat during the trial, explaining that he sat “pro aerario” (before the

aerarium) (Asc. Mil. 35-36). Thus, the location of the Aerarium Saturni at the temple may be

determined in relation to Pompey’s presence and role at the trial. In order for Pompey to oversee

the proceedings and the spectators, as well as monitor the guard he set forth, he probably utilized

a high vantage point. Thus the entrance to the aerarium may have been somewhere abutted to

the cella of the temple, or in the pronaos; however, its most favored location is behind the stairs

leading up to the pronaos with its own separate entrance.8 Pompey could see and be seen from

any of these locations at the Temple of Saturn due to its height and sheer looming wall, and he

and his guards could easily protect the aerarium from a potentially riotous crowd. 5 LTUR, s.v. Saturnus, Aedes, 4:235; Platner-Ashby, s.v. Saturnus Aedes, 465; Richardson, Topog. Dict. Ancient Rome, s.v. Saturnus, Aedes, 343-44; Richardson, “Approach to the Temple,” 56-60. 6 See Lawrence Richardson, Jr., “The Tribunals of the Praetors of Rome,” MDAI(R) 80 (1973): 220, who asserts that the quaesitor sat on a temporary tribunal platform like those that elected tribunes constructed to preside over their court during their term in office; he further points out that M. Marcellus took refuge in D. Ahenobarbus’ tribunal when the Clodians first disrupted the cross-examination of witnesses, according to Asconius (Asc. Mil. 35). 7 LTUR, s.v. Saturnus, Aedes, 4:234-36; Platner-Ashby, s.v. Saturnus, Aedes, 464; Richardson, Topog. Dict. Ancient Rome, s.v. Saturnus, Aedes, 343; Richardson, “Approach to the Temple,” 55-56; Lugli, Roma antica, s.v. Tempio di Saturno, 150; Coarelli, Roma, s.v. il Tempio di Saturno, 76. 8 Richardson, “Approach to the Temple,” 55-57; see also Amanda Claridge, Rome: An Oxford Archaeological Guide (Oxford: Oxford University Press, 1998), 80-81, who also places the aerarium in one of the vaults below the temple steps; Coarelli, Roma, s.v. il Tempio di Saturno, 76, and Lugli, Roma antica, s.v. Tempio di Saturno, 150, indicate that the aerarium was located somewhere in front of the podium that Plancus later reconstructed.

57

Before considering the location of the iudices, the advocates, and the parties in the trial,

some structures near the Temple of Saturn and surrounding the Forum should be examined along

with the possible location of Pompey’s soldiers. Such an examination will also later assist in

considering Cicero’s use of surrounding topographical features in his speech, as well as

Pompey’s own message to the Romans at Milo’s trial.

As mentioned before, the Temple of Saturn was located on the lowest part of the

southeastern slope of the Capitoline, which rose to the north, northwest and west of the temple.

Across the northwestern end of the Forum from the Temple of Saturn, the charred remains of the

Curia Hostilia and the Basilica Porcia stood alongside the Comitium and between two streets,

now referred to as the Clivus Argentarius and the Argiletum. Each of these structures will be

described briefly in turn. The Rostra, which stood near this area at the end of the Argiletum

between the Forum and the Comitium, will be addressed after those structures.

The fire started by those outraged over Clodius’ death marked the end of the Curia

Hostilia, the original Senate house, whose construction was attributed to Tullus Hostilius, one of

the kings that ruled Rome prior to the establishment of the Republic. Before this fire, the Curia

Hostilia had most recently been restored and expanded by the dictator Sulla in 80 BC.9 The

entrance of the Curia Hostilia faced south toward the Comitium and its steps descended into it,

so that the Comitium served as a sort of vestibule to the Curia Hostilia (Liv. 45.24.12).10 The

Comitium’s proximity to the burnt remains of the Curia Hostilia and the Basilica Porcia, and any

possible damage or debris it bore, barred it as a venue for the trial.

9 LTUR, s.v. Curia Hostilia, 1:331; Platner-Ashby, s.v. Curia Hostilia, 142-43; Lugli, Roma antica, s.v. Curia Hostilia, 85. 10 LTUR, s.v. Curia Hostilia, 1:331; Richardson, Topog. Dict. Ancient Rome, s.v. Curia Hostilia, 102-03. See also LTUR, s.v. Comitium, 1:310. Titus Livius, Livy, vol. 13, trans. by Alfred C. Schlesinger (Cambridge: Harvard University Press, 1961).

58

The fire had also ravaged the Basilica Porcia which stood southwest of the Curia Hostilia.

The structure existing at the time of the fire had been constructed by Cato in 184 BC. It appears

to have been completely destroyed by the fire, as indicated by the absence of any later mention

of it.11 Asconius explains that “quo igne et ipsa quoque curia flagravit, et item Porcia basilica

quae erat ei iuncta ambusta est” (in this fire, the [Curia Hostilia] also burned and the Basilica

Porcia, which was adjoined to it, was likewise consumed) (Asc. Mil. 29). In light of this

description, the Basilica Porcia and the Curia Hostilia may have been adjoined by a wall or some

other structure that served as a fuse enabling the fire to reach from the Curia to the Basilica.12

The Comitium was located somewhere south of the Curia Hostilia. There is no mention

of damage to the Comitium, probably because, although it was a templum (dedicated plot) at one

time, it contained no structure to burn at the time of Milo’s trial. Several decades before, the

Comitium had consisted of a small amphitheater where legislative assemblies and hearings

occurred. By the time Milo was tried, however, it may have deteriorated into little more than a

flat surface which would soon be paved over during imperial reconstruction.13

The Clivus Argentarius served as the western boundary for the area containing the Curia

Hostilia, Basilica Porcia and Comitium, with another road, the Argiletum, serving as the eastern

boundary to this area. The Clivus Argentarius was a road from north to south that ran between

the aforementioned structures and the prison and along the northeastern slope of the Capitoline.

It served as a connector between the Forum and the Campus Martius at the time of Milo’s trial.14

11 LTUR, s.v. Basilica Porcia, 1:187; Platner-Ashby, s.v. Basilica Porcia, 82; Richardson, Topog. Dict. Ancient Rome, s.v. Basilica Porcia, 56; Lugli, Roma antica, s.v. Basilica Porcia, 94. 12 LTUR, s.v. Basilica Porcia, 1:187; Platner-Ashby, s.v. Basilica Porcia, 82; Richardson, Topog. Dict. Ancient Rome, s.v. Basilica Porcia, 56. 13 Claridge, Rome, 73; LTUR, s.v. Comitium, 1:311-12; Platner-Ashby, s.v. Comitium, 134-35; Richardson, Topog. Dict. Ancient Rome, s.v. Comitium, 97-98; Lugli, Roma antica, s.v. Comitium, 115-16. 14 LTUR, s.v. Clivus Argentarius, 1:280; Platner-Ashby, s.v. Clivus Argentarius, 121-22; Richardson, Topog. Dict. Ancient Rome, s.v Clivus Argentarius, 88. According to Platner-Ashby and Richardson, it was not called the Clivus

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The Agiletum was located east of the Curia Hostilia, Basilica Porcia and Comitium, running

from northeast to southwest and entering the Forum immediately southeast of the Comitium. It

connected the Subura with the open area of the Forum.15 The Rostra may have sat at this

intersection.

The Rostra stood as a consecrated temple somewhere near the Curia Hostilia. The

structure probably consisted of a raised platform alongside the Comitium decorated with the

beaks (rostra) of ships defeated by Rome, among other things. The Rostra extant at the time of

Milo’s trial allowed speakers to address audiences both in the Comitium and in the open

Forum.16 For several reasons, however, the Rostra may not have been utilized for the speech.

First, it probably suffered from damage and debris from the fire that destroyed the Curia Hostilia

and other structures. Second, since the office of those overseeing the procedure under Pompey’s

new law, the quaesitores, was located in the Temple of Saturn, the proceedings may have

occurred within closer proximity of the temple. Finally, the security forces disbursed by Pompey

could have guarded the proceedings and the advocates more effectively if the trial occurred

within a smaller area with surrounding structures acting as barriers against the mob of Clodians.

The area near the staircase of the Temple of Saturn, the Basilica Opimia, and the Temple of

Concordia provides such a location for the trial.17

Argentarius at the time of the trial; its name at that time may have been Lautumae, but, according to Richardson, that is not likely. 15 LTUR, s.v. Argiletum, 1:125-26; Platner-Ashby, s.v. Argiletum, 53-54; Richardson, Topog. Dict. Ancient Rome, s.v. Argiletum, 39. LTUR addresses conflicting accounts in ancient literature regarding the name of this road as well. 16 LTUR, s.v. Rostra, 4:212-13; Platner-Ashby, s.v. Rostra, 450-51; Richardson, Topog. Dict. Ancient Rome, s.v. Rostra, 334-35. 17 Compare Marshall, Commentary on Asconius, 188, who argues that, since Pompey would have had no trouble seeing or hearing the trial conducted at the Rostra from the Temple of Saturn, his location does not conflict with use of the Rostra for the trial, with Richardson, Tribunals, 225, who asserts that the trial was within “earshot” of the temple, possibly held where quaestiones de vi were normally held, and places it a little closer than the Rostra.

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Before further discussing the Temple of Saturn and the possible locations of those

involved in Milo’s trial, it is important to consider several other topographic features extant at

the time of the trial, since Pompey, Cicero, or both utilized them. Immediately west from the

remains of the Curia Hostilia towered the Arx, and further southwest beyond that stood the

Tabularium. The Arx was the fortified northeastern height of the Capitoline located across the

saddle of the hill from the Capitoline proper. Pompey probably stationed guards as far as the

Arx, since it was a place used to station sentinels during comitia (meetings of the Senate) and to

coordinate defensive military action previously.18 Guards probably also stood in the Tabularium,

a record-storage building which occupied the saddle of the Capitoline, southwest of the Arx.

The Tabularium spanned the saddle between the Arx and the Capitoline proper. The version

standing during Milo’s trial had probably been built by Quintus Lutatius Catullus in 78 BC. At

that time, an arcade was located on the first story of the Tabularium. The arcade, which

included eleven arches and engaged Doric columns, stood on a foundational substructure

reaching up from the slopes of the Capitoline behind the Temple of Concordia. Behind the

arcade were complex storage areas for public records. A second level probably stood above the

arcade, and possibly a third.19 Since the arcade overlooked the Forum and the proceedings in

Milo’s trial, Pompey might have stationed soldiers there so that they could watch over the whole

Forum and clearly be seen doing so, although they would not have been able to intervene rapidly

in any sort of disturbance that might have taken place in the trial far below their position.

18 LTUR, s.v. Arx, 1:127-28; Platner-Ashby, s.v. Arx, 54-55; Richardson, Topog. Dict. Ancient Rome, s.v. Arx, 40; Lugli, Roma antica, s.v. Arx, 36. 19 Peter J. Aicher, Rome Alive: A Source-Guide to the Ancient City, vol. 1 (Wauconda: Bolchazy-Carducci Publishers, Inc., 2004), 65; Claridge, Rome, 239-40; LTUR, s.v. Tabularium, 5:17-18; Platner-Ashby, s.v. Tabularium, 506-08; Richardson, Topog. Dict. Ancient Rome, s.v. Tabularium, 376-77; Lugli, Roma antica, s.v. il Tabularium, 42-46; Coarelli, Roma, s.v. il Tabularium, 44-45.

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Above the northwestern end of the Forum rises the Capitoline proper. At the base of the

Capitoline, along the edge of the Forum and southwest of the Basilica Porcia, stood the Temple

of Concordia and the Basilica Opimia at the time of Milo’s trial. The Temple of Concordia

extant at that time was the version that Lucius Opimius had restored under an order of the Senate

issued in 121 BC.20 Opimius constructed the Basilica Opimia around the same time.21 After this

restoration, the Senate reportedly used the temple for assemblies,22 especially those addressing

issues of civil unrest.23 This might have been one location where the Senate met for proceedings

prior to Milo’s trial.

In addition to these structures, one other possible structure may have affected the

dynamics of the trial: a porticus, running from the Temple of Saturn toward the Basilica Porcia.

If this porticus existed, Pompey would have used it as yet another place to station his security

forces and reveal his power. This possible porticus, running from the Temple of Saturn northeast

along the base of the Capitoline, may have provided a paved walkway and roof for senators to

walk between the Temple of Saturn and the Curia Hostilia.24 The exact structure and path of the

porticus, however, is unclear. According to Livy, the porticus connected to the Temple of Saturn

was built in 174 BC and ran “in Capitolium, ad senaculum, ac super id curiam” (against the

Capitoline, toward the senaculum, and above it toward the curia) (Livy 41.27.7).25 This porticus

20 LTUR, s.v. Concordia, Aedes, 1:317; Platner-Ashby, s.v. Concordia, Aedes, 138-39; Richardson, Topog. Dict. Ancient Rome, s.v. Concordia, Aedes, 98; Lugli, Roma antica, s.v. Tempio della Concordia, 111-12; Coarelli, Roma, s.v. il Tempio della Concordia, 78. 21 LTUR, s.v. Basilica Opimia, 1:183; Platner-Ashby, s.v. Basilica Opimia, 81-82; Richardson, Topog. Dict. Ancient Rome, s.v. Basilica Opimia, 54; Lugli, Roma antica, s.v. Basilica Opimia, 95. 22 LTUR, s.v. Concordia, Aedes, 1:317; Platner-Ashby, s.v. Concordia, Aedes, 138-39. 23 Richardson, Topog. Dict. Ancient Rome, s.v. Concordia, Aedes, 98. Given the size of the Temple of Concord extant at the time, it is unlikely that they used the temple itself for meetings; instead, as will be discussed below, they may have used the temple steps and the area in front of the temple for such meetings. See also Aicher, Rome Alive, 94-95, who suggests that Tiberius’ later expansion of the temple made it large enough for such meetings; and see Claridge, Rome, 77, for discussion in accord with Aicher. 24 Richardson, “Approach to the Temple,” 61-62. 25 Titus Livius, Livy, vol. 12, trans. Evan T. Sage and Alfred C. Schlesinger (Cambridge: Harvard University Press, 1964); I have provided the translation here.

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and its route, however, have been mistaken for the porticus mentioned by Tacitus in his account

of the battle of the Flavians and Vitellians on the Capitoline during 69 AD, the year of four

emperors (Tac. Hist. 3.71).26 The porticus mentioned by Tacitus was most likely the porticus

built by Publius Cornelius Scipio Nasica in 159 BC, which led up the Capitoline, became an

enclosed porticus encircling the temples atop the hill, and reached the “Curia Calabra,” possibly

on the southwest side of the Area Capitolina.27 This is not the same structure to which Livy

refers. Livy’s three descriptors more clearly establish a simple porticus running along the foot of

the Capitoline, possibly enclosing the Basilica Opimia and the Temple of Concord, touching

senacula (informal meeting places for senators), and reaching into the area around the Curia

Hostilia. This porticus would provide a backdrop for these temples, as well as a convenient

walkway at the foot of the Capitoline and at the northwestern end of the Forum.28 Since it was

probably located behind these structures on the Capitoline, it would have been up higher on the

slope than the open Forum and the areas in front of the Temples. As will be discussed below, it

probably also provided another place for Pompey to station his troops during Milo’s trial.

Specific Layout of the Trial

Although the exact location at which Cicero and the other advocates stood while

delivering their speeches is not specifically mentioned, Pompey’s location serves as a fixed point

that assists in considering the location of the other parties. As discussed before, Pompey sat near

the aerarium (treasury), which was probably located in the steps of the Temple of Saturn,

throughout the proceedings (Asc. Mil. 35-36). According to Cassius Dio, who does not

26 Cornelius Tacitus, Cornelii Taciti Historiarum Libri, ed. C.D. Fisher (Oxford: Clarendon Press, 1959). 27 Ibid. LTUR, s.v. Curia Calabra, 1:331; Platner-Ashby, s.v. Curia Calabra, 142; Richardson, Topog. Dict. Ancient Rome, s.v. Curia Calabra,102. Regarding the porticus: LTUR, s.v. Area Capitolina, 1:114-17, places a porticus built in 2nd century BC and mentioned by Tacitus within that area; Platner-Ashby, s.v. Area Capitolina, 48, mention a porticus on the Capitoline constructed in 159 BC. 28 Richardson, “Approach to the Temple,” 61-62.

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designate exactly where court was held, Pompey was within the court itself with his soldiers, and

his guards forcefully repressed any outbreaks (Cass. Dio 40.54-40.55). This supports Asconius’

description of Pompey’s presence at the trial, since Asconius mentions that, on the day of final

arguments, Pompey sat “pro aerario, ut pridie…saeptus delecta manu militum” (in front of the

aerarium, as on the previous day, surrounded by a select guard of soldiers) (Asc. Mil. 36),

though Cassius Dio does not mention exactly where Pompey and his personal guard were

located. Cassius Dio’s description and Asconius’ description together support the proposition

that Pompey and his entourage abutted the group involved in the proceedings. Plutarch is the

vaguest in his placement of Pompey; he explains that, when Cicero saw Pompey above him, as

well as other soldiers stationed around the Forum, he lost his nerve (Plut. Cic. 35). Although this

description does not specifically place Pompey at the aerarium, it puts him at a higher level than

Cicero, and Pompey’s placement at the Temple of Saturn harmonizes with this height difference.

The lawyers’ location in relation to Pompey and the iudices is not completely clear, but

they probably stood on the steps of the Temple of Concord facing the Temple of Saturn or on

some other raised structure between the Temple of Saturn and the area surrounding the Curia

Hostilia, such as the Volcanal.29 The iudices probably sat on the edge of the Forum, in the area

near the Temple of Saturn and the Temple of Concord, or the other structure where the lawyers

were located, while Pompey, his personal guard, and the quaesitor were located behind them

somewhere on the steps of the Temple of Saturn. The crowd of spectators probably filled the

space between the foot of the Capitoline and the seats of the iudices, as well as the open Forum

on the other side. Admittedly, any placement within the area before the Temple of Saturn is

29 Although the Volcanal was probably located at the foot of the Capitoline near the structures involved in Milo’s trial, its exact location is unclear: LTUR, s.v. Volcanal, 5:209-10; Platner-Ashby, s.v. Volcanal 583-84; Richardson, Topog. Dict. Ancient Rome, s.v. Volcanal, 432; Lugli, Roma antica, s.v. Volcanal, 147-48; and Coarelli, Roma, s.v. Niger Lapis, 66-67, point out the difficulty in locating the specific dedicated templum within the area of the Volcanal.

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speculative. Another possible location for the lawyers and the accused could be the staircase of

the Temple of Saturn itself, somewhere above the eyelevel of the iudices. This location would

focus attention on the parties, the accused, the quaesitor, and Pompey; however, it would also

turn the gaze of the iudices away from the ruins. If the prosecution had any say in the location, it

would have objected to this placement. Further, if Cicero’s speech reflects how he delivered it—

or a fraction of it—at trial, it is easier to envision him boldly gesturing toward Pompey from

another structure, rather than awkwardly pointing to Pompey, who sat above and behind him at

the top of the stairs, while also trying to face his audience.

Before specifically discussing how Pompey and Cicero attempted to utilize this

topography, a summary description of the trial’s probable setting and the topography

surrounding it is in order. On the afternoon of Milo’s trial, hundreds of civilians fill the open

Forum completely, up to the northwestern end of the open Forum where a line of soldiers stands

guarding the boundary of the open court before the Temple of Saturn and other structures at the

foot of the Capitoline (Cic. Mil. 1-3). At the Temple of Saturn sits Pompey, perhaps

immediately in front of the entrance of the aerarium—an inset opening high in the middle of the

stairway providing enough room for Pompey’s chair—or on the edge of the pronaos. Pompey’s

own personal guards surround him as he watches the proceedings and protects the aerarium; L.

Domitius Ahenobarbus, the quaesitor, sits somewhere nearby. Both of these figures and their

entourages occupy the high stairs and platform, well above the iudices, the lawyers and the

accused, and the vast crowd of spectators. Behind these men stand silent guards whose line

extends across the front of the Temple of Saturn, down its steps, toward the Temple of Concord

and onward (Cic. Mil. 1-2).

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At the bottom of the steps of the Temple of Saturn sit 81 iudices facing the prosecutors,

who stand on the Temple of Concord, or another structure nearby. The closing prosecutor raises

his voice and points his finger at Milo, who sits with his lawyers close by, while emphatically

gesturing toward the blackened, broken walls of the Curia Hostilia and the Basilica Porcia, which

are guarded by another line of Pompey’s men. Near the iudices sits a crowd of more prominent

citizens close to the structures at the bottom of the Capitoline. Additional bands of Pompey’s

soldiers guard each of these structures (Cic. Mil. 1-2). At the foot of the Capitoline, Pompey’s

men stand at attention under each arch of the porticus that stretches from behind the Temple of

Saturn, across the lowest slopes of the Capitoline, and toward the burnt remains of the Basilica

Porcia. Further up on the Capitoline, beneath each arch of Tabularium, even more of Pompey’s

men overlook the Forum, and a line of soldiers reaches from there to the Arx, which bristles with

Pompey’s men.

Pompey’s Use of the Trial Setting

Pompey’s use of soldiers, his presence and location at the trial, and the location of the

trial itself served several purposes for Pompey. To the Roman citizens, he clearly hoped to

display protection, power, and fairness by guarding the proceedings with his soldiers and

punishing disorderly members of the audience (Cass. Dio 40.54-40.55). Through his presence

above the iudices and near the quaesitor, he probably also sought to demonstrate that, in reality,

he was in control of Rome, and, in his clemency, he allowed the Republic to hold the trial, but

not without help from his forces and his new law. Thus, Rome needed to employ people as

benevolent and powerful as Pompey, since the political processes upon which the state depended

were no longer functioning properly. Finally, though it is unclear whether Pompey controlled

the location of the trial in front of the Temple of Saturn, he definitely used the Capitoline and

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structures located nearby to demonstrate his might. He reclined there on the most ancient

temple in the Forum, erected in honor of the father of Jupiter, while he safeguarded the

sustenance of the Republic—both its treasury and its court. This display of strength

communicated dual messages to the Senate and other governing bodies of Rome: Pompey was

willing to allow them to carry out proceedings in order to maintain some integrity, but they

would have been unable to do so without him. Whether or not Pompey chose the location, he

could not have asked for a better place to put his strength on display. The charred remains of the

Curia Hostilia and the Basilica Porcia further exclaimed the need for Pompey.

Cicero’s Use of the Trial Setting

As will be discussed in the next chapter, there has been debate concerning how accurately

the published version of pro Milone reflected the speech actually delivered by Cicero before the

iudices. That issue, however, does not impact how Cicero chose to use the topography

surrounding Milo’s trial in his published speech. Cicero’s initial topographic strategy in the

published speech, and presumably at the trial, was first to redirect attention away from the

destroyed structures and toward the presence of Pompey, his guard, and the proceedings of the

court.30 Having done that, he then used the burnt structures to emphasize Clodius’ violence in

his argument that Clodius more likely set an ambush for Milo, and that this ambush was but a

smaller example of Clodius’ violent nature, which Milo conveniently dealt with while also

defending his own life. Later he used other structures nearby to direct attention away from the

charred remains, and then to refocus attention on the burnt buildings in a way more favorable to

Milo. Unfortunately for Milo, Cicero was unable to utilize the topographic strategy effectively;

30 Another theory has been set forth that complements the assertions within this paper: Jerzy Axer, “Tribunal-Stage-Arena: Modeling of the Communications Situation in M. Tullius Cicero’s Judicial Speeches,” Rhetorica 7, no. 4 (1989): 308-09, discusses how Cicero sought to invoke an image of gladiatorial games for his audience, so that the audience might determine whether to free Milo, the victorious combatant. See also Jerzy Axer, “Smierc Glatiatora O Pewnych Apektach Techniki Retorycznej W Mowie Cycerona ‘Pro Milone,’” Eos 77 (1989): 31-43.

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it should be noted, however, that it is questionable whether the iudices even considered the

destroyed structures in their deliberations concerning the events that occurred outside of Rome

on the Via Appia. Regardless of which side was trying to incorporate the surrounding

topography, it was actually irrelevant regarding the issue of whether or not Milo had ordered the

execution of Clodius miles away from the Forum or whether he had justifiably defended himself.

Cicero’s first effort to redirect the iudices’ attention from the burnt structures to the trial

itself occurs in the opening sections of his published speech. After expressing his discomfort

with the new proceedings, which alter the atmosphere to which Cicero is accustomed, Cicero

directs attention to Pompey’s guards and then to Pompey, who sits above the iudices at the

Temple of Saturn (Cic. Mil. 1-2). He is attempting to turn the gaze of the iudices away from the

burnt buildings that the prosecution just finished repeatedly emphasizing. Cicero then draws

their attention to the huge crowd standing in every visible part of the open Forum outside the line

of guards surrounding the court, while also reminding them of the problems that Clodius’

supporters caused on a prior day (Cic. Mil. 3). With this reminder, he assures the iudices that

they should put away their fear and attend to the trial (Cic. Mil. 4). If he was successful, Cicero

called the iudices’ attention away from the charred remains of the Curia Hostilia and other

buildings, and redirected it to the reason for Pompey’s presence and the true cause of the civil

destruction: the Clodians who had also caused an uproar on a previous day of the trial. After re-

contextualizing the setting of the trial, Cicero moves on to refute arguments proffered by the

prosecution (Cic. Mil. 7).

Once Cicero is satisfied that attention has been diverted long enough from the wreckage

around the Curia Hostilia, he then attempts to reframe the destruction and the accompanying

atrocities. He does this intermittently, however, probably because he was not confident that such

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an argument was strong enough to divert blame from Milo for his causal role in the overall event.

Cicero first attempts to reframe the destruction after commenting on how Clodius’ death did not

warrant the new proceedings propagated by Pompey, especially in comparison to the other

charges declared contra rem publicam: the burning of the Curia Hostilia and an attack on the

interrex’s house. At this moment, Cicero purposefully draws attention back to the ruins of the

Curia Hostilia, perhaps even gesturing toward it from wherever he spoke (Cic. Mil. 13). He does

not yet feel comfortable dwelling on it, however, and uses a diversionary discussion about

Pompey to redirect his audience’s attention.

Cicero employs several other topographical references in order first to divert the iudices’

attention away from the burnt structures and then redirect their attention back to them in order

emphasize Clodius’ destructiveness. Beyond his constant mention of Pompey at the Temple of

Saturn, Cicero’s topographical tactics include reference to: the Temple of Castor and Pollux, the

Temple of Vesta and the Palladium within, and the Capitoline itself.

Cicero first utilizes the Temple of Castor and Pollux when discussing how Clodius had

attempted many assassinations, including an alleged attempt on Pompey’s life. Cicero reminds

the iudices of an occasion when “[c]omprehensus est in templo Castoris servus P. Clodi, quem

ille ad Cn. Pompeium interficiendum conlocarat” (a slave of Clodius was caught in the Temple

of Castor [and Pollux] whom he had placed there to assassinate Pompey)(Cic. Mil. 18). Cicero

probably hoped to divert attention from the charred remains nearby, toward the Temple of Castor

and Pollux, and then toward Pompey (Cic. Mil. 18-19). Only after mentioning this alleged

assassination attempt does Cicero then remind the iudices of when “[i]nsidiator erat in foro

conlocatus atque in vestibulo ipso senatus” (an assassin had been located in the Forum, even in

the vestibule of the Senate) preparing to assassinate Pompey (Cic. Mil. 19). Again, Cicero has

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sought to redirect attention to the area damaged by the fire, to the Comitium in particular, in the

context of Clodius’ ill repute and harm to the Republic.

Later in his published speech, Cicero also utilizes the Temple of Vesta—particularly the

Palladium within—to divert attention away from the burnt buildings, and then to redirect

attention toward those buildings while blaming Clodius and the Clodians for their destruction.

After setting out another method for determining who plotted against whom, namely “cui bono

fuerit” (to whose advantage was it) (Cic. Mil. 32), Cicero directs his audience’s attention to the

Temple of Vesta while describing an instance in which Sextus Cloelius allegedly stole books

from someone’s house at night, hoping to use them to bribe a candidate for tribune.31 Cicero

makes a mocking simile with the books, describing them as “librarium illud legum vestrarum

quod te aiunt eripuisse e domo et ex mediis armis turbaque nocturna tamquam Palladium

sustulisse” (that collection of [the people’s] laws which they say [S. Cloelius] snatched away

from the house, the soldiers, and the nocturnal mob as if he were carrying away the

Palladium)(Cic. Mil. 33).

Having directed the attention of his audience to the Temple of Vesta, Cicero once again

redirects his audience to the burnt Curia and Basilica, this time describing the cremation of

Clodius’ corpse along with the destruction caused by the Clodians. Cicero asks why S. Cloelius

has become angry at Cicero for bringing up allegations against him when he was personally

responsible for the destructive, careless cremation that shamed even the shameless Clodius. As

Cicero explains, gesturing again to the Curia Hostilia,

[m]ovet me quippe lumen curiae….[t]u P. Clodi cruentum cadaver eiecisti domo, tu in publicum abiecisti, tu spoliatum imaginibus, exsequiis, pompa, laudatione, infelicissimis lignis semiustilatum nocturnis canibus dilaniandum reliquisti

31 See Chapter 2, n. 64, for discussion of the name Cloelius.

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the light of the Curia indeed inspires me…you threw Clodius’ bloody corpse out of his home, you threw him out before the public, you left him deprived of his imagines, his procession, his rites, and his dirge, half-burnt among the most grievous embers, so that he might be devoured that night by prowling stray dogs (Cic. Mil. 33).

Although, in actuality, Cicero’s strategy here was probably ineffective in reframing the events

leading to Clodius’ death near Bovillae, he certainly has a strong point against Clodius’

followers.32 In any case, he has again attempted to divert his audience’s attention away from the

charred remains, toward the Temple of Vesta, and then back to the remains.

Cicero repeats this pattern in one more instance, this time turning his audience’s attention

away from the area surrounding the Curia Hostilia toward structures on the Capitoline itself.

Envision Cicero gesturing toward the Capitoline as he prayerfully petitions Jupiter on his edito

monte Latiari (lofty Latin mountain) to open the eyes of the iudices (Cic. Mil. 85). After his

pastoral prayer further describing Jupiter’s groves and lake, Cicero turns his audience’s eyes

gradually back toward the burnt remains of the Curia and Basilica, while castigating the

Clodians. After mentioning Clodius’ escape from charges revolving around the Bona Dea

scandal, in which Clodius dressed as a woman to take part in a private ceremony for priestesses

only, Cicero explained that Jupiter had reserved a most atrocious punishment for Clodius (Cic.

Mil. 85).33 Imagine Cicero’s emphatic gestures toward the burnt remains as he describes what

the Clodians did to their deceased leader:

[n]ec vero non eadem ira deorum hanc eius satellitibus iniecit amentiam ut sine imaginibus, sine cantu atque ludis, sine exsequiis, sine lamentis, sine laudationibus, sine funere, oblitus cruore et luto, spoliatus illius supremi diei celebritate cui cedere inimici etiam solent ambureretur abiectus.” the same anger of the gods indeed cast this madness on his followers so that he lay burnt, caked with blood and mud, without imagines, without song and games, without any

32 If Cicero actually delivered this portion of the speech, perhaps he was even attempting to prepare the iudices and the greater audience for the upcoming trials regarding the crimes of the Clodians. 33 For an introduction to Clodius’ sexual propensities and other features, see Tatum, Patrician Tribune, 41-43; see 62-86 for in-depth discussion of the Bona Dea scandal.

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procession, lament, praises, or a funeral, deprived of the honor of his final day, which even his enemies would have permitted him (Cic. Mil. 86). Cicero’s use of the burnt buildings culminates in his final argument that the state itself is

better off with Clodius dead than it would have been if he had succeeded in his plans. Cicero’s

basic argument points to the events surrounding Clodius’ death and postulates that a living

Clodius would have caused even harsher damage to Rome. In his argument, Cicero poses a

rhetorical question, followed by a description of what the dead Clodius was capable of doing:

ille…vivus mali nihil fecisset cui mortuo unus ex suis satelletibus curiam incenderit? Quo quid miserius, quid acerbius, quid luctuosius vidimus? templum sanctitatis, amplitudinis, mentis, consili publici, caput urbis, aram sociorum, portum omnium gentium, sedem ab universo populo concessam uni ordini, inflammari, exscindi, funestari, neque id fieri a multitudine imperita, quamquam esset miserum id ipsum, sed ab uno? would that man, for whom one of his followers burnt the Curia Hostilia when he was dead, have done nothing bad while still alive? Have we seen anything more miserable, more harsh, more grievous than this—the temple of sanctity, power, thought, public discourse, the head of this city, the shrine of citizens, the gate of all nations, the seat granted to one order by the entire people, burnt out, gutted, buried—and this not done by an ignorant crowd (though that itself would have been grievous) but by one man (Cic. Mil. 90)?

While delivering this, Cicero most likely emphatically gestured to the ruins of the Curia Hostilia

with each descriptor, while his voice took on a tone both mournful and incredulous. He followed

his dirge for the Curia with invective against those who, according to his argument, would prefer

Clodius to be brought back to life. Envision Cicero further pointing to the Curia Hostilia while

continuing his rhetorical questions:

[e]t sunt qui de via Appia querantur, taceant de curia, et qui ab eo spirante forum putent potuisse defendi, cuius non restiterit cadaveri curia? Excitate, excitate ipsum, si potestis, a mortuis: frangetis impetum vivi cuius non sustinetis furias insepulti? and are there those who inquire about the Via Appia, so that they might hush the matter concerning the Curia Hostilia, and who think that the Forum could have been defended against a breathing [Clodius], whose cadaver the Curia could not withstand? Wake him

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up! Wake that man up from the dead if you can: will you break the assault of a living [Clodius], though you cannot endure his fury dead (Cic. Mil. 91)?

Cicero ends his use of the charred remains and broadens his audience’s focus as he closes

the main part of his speech and moves into the extra causam. While reading this passage,

imagine Cicero starting with his left hand still pointing toward the Curia Hostilia and raising his

right hand to point toward the Temple of Castor and Pollux, and then raising them both even

higher as he refers to the entire Forum: “[n]isi vero sustinuistis eos qui cum fascibus ad curiam

concurrent, cum fascibus ad Castoris, cum gladiis in toto foro volitaverunt”(unless, of course,

you withstood those who charged to the Curia Hostilia with the fasces, to the Temple of Castor

[and Pollux] with the fasces, and flitted about the entire Forum with swords)(Cic. Mil. 91). After

this sweeping gesture, Cicero finally returns the attention to Milo, the person who spared Rome

from things far worse than the destruction nearby, according to Cicero (Cic. Mil. 91).

In one other instance, Cicero refers to specific topography while defending Milo. While

discussing how he, Pompey, and now Milo have endured assassination attempts, he refers to an

attempt on his own life near the Regia. Although it does not fit the pattern described above,

Cicero might have been using reference to the house of the pontifices in order to bring solemnity

to Milo’s vulnerability to assassination, a plight endured by good men like Cicero. Cicero might

well have gestured across the open Forum before him while briefly describing the attempt on his

life (Cic. Mil. 37).

Whether or not Cicero delivered a speech entailing this topographic strategy, he failed to

exonerate Milo. As mentioned before, the iudices, if they were as wise as Cicero said they were,

probably did not even consider the topography surrounding the trial when convicting Milo.

Their thoughts would have been directed toward the encounter on the Via Appia. Indeed, as

Asconius points out, many iudices were convinced that Milo had time to determine whether or

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not to kill the wounded Clodius and that he chose to do so (Asc. Mil. 47). This observation

leaves open the questions to be addressed in the next chapter: to what degree did Cicero’s

published speech adhere to the one he delivered, and why did he publish any version of the

speech that failed to acquit Milo.

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Figure 1: The Roman Forum during the Republic34

34 Lugli, Roma antica, tav. III.

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CHAPTER 5

THE PUBLISHED SPEECH AND ITS PURPOSES

Cicero’s Performance at Trial and Other Possible Versions of pro Milone

Cicero’s actual delivery of the speech at the trial has been the subject of debate ever since

antiquity. This debate, in turn, leads to dispute over how much the published version of pro

Milone reflects the speech Cicero actually delivered. In order to address these two questions, the

reports from the ancient authors about Cicero’s performance will be considered first. This

consideration of the ancient authors will then lead to an examination of some contemporary

scholars’ theories about the delivery itself and the subsequent publication. The initial discussion

will consider some of the speech’s content, but only in order to answer the immediate questions

about Cicero’s performance at trial and the publication of the extant pro Milone.

Asconius points out that, as soon as Cicero started his speech, the Clodians interrupted

him with an outburst. He specifically states that “exceptus est acclamatione Clodianorum” (he

was taken aback by the exclamation of the Clodians) (Asc. Mil. 36). As a result, “non ea qua

solitus erat constantia dixit” (he did not speak with the fearlessness with which he was

accustomed to speak) (Asc. Mil. 36). Asconius goes on to explain that “manet autem illa quoque

excepta eius oratio: scripsit vero hanc quam legimus ita perfecte ut iure prima haberi possit”

(the speech that was received, however, also remains: but he wrote this speech that we read so

perfectly that, as a result, the first can be understood correctly) (Asc. Mil. 36).1 Scholars have

translated and interpreted this statement differently, as will be seen in later discussion. Some

1 See Marshall, Commentary on Asconius, 190-91, for a brief summary of several modern interpretations of these statements and references thereto.

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argue that it indicates that two separate and distinct versions existed which were available to

readers after the trial.2 Others argue that it simply indicates that Cicero published an edited,

enhanced version that included the original speech.3

Plutarch’s (Cic. 35) and Cassius Dio’s (40.54) accounts of the trial and Cicero’s speech

at first appear to strengthen the theory that Asconius was describing two separate, distinct

speeches. If their description of the delivered speech were correct, the excepta oratio and the

extant speech would have been complete opposites. Plutarch only comments briefly on Cicero’s

speech. First, Plutarch describes Cicero’s arrival at the trial: Milo brought Cicero to the trial in a

litter in which he sat until his turn to speak, sheltered somehow from the sight of the masses and

the soldiers. In his description of the event, Plutarch makes a negative comment about Cicero’s

performance at other trials, explaining that, at previous trials, when Cicero had been as

frightened as he was at Milo’s trial, his voice had become shrill and shaky. At Milo’s trial,

according to Plutarch, when Cicero came out of the litter, he saw Pompey’s soldiers and the

audience, and had trouble even starting his speech. He trembled and his voice failed (Plut. Cic.

35). Cassius Dio portrays the event in a similar manner. He adds that Cicero did not deliver his

prepared speech, but uttered a few words and stopped. Cassius Dio goes on to point out the

difference between the speech delivered at trial and the speech Cicero published. According to

him, when Cicero had regained his nerve, he wrote the extant speech as if it were the one he had

delivered (Cass. Dio 40.54).

Clearly, Plutarch’s and Cassius Dio’s accounts are both derogatory of Cicero. This

description of the speech reflects the tone of their depictions of Cicero on other occasions.

Before his account of Cicero’s speech for Milo, Plutarch ridicules Cicero for exaggerating the

2 B.A. Marshall, “Excepta Oratio, the Other Pro Milone and the Question of Shorthand,” Latomus 46 (1987): 732. 3 Stone “Second Thoughts,” 101-02.

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joyous reception that he received upon his return from exile (Plut. Cic. 33). In his description of

Milo’s trial, he relates another trial, pro Murena, and depicts Cicero as a nerve-wracked, sleep-

deprived, weak advocate (Plut. Cic. 35). This description of pro Murena is inaccurate, according

to other sources.4 Cassius Dio derides Cicero by pointing out how useless the subsequent

publication of his speech was (Cass. Dio 40.55). He also misreports Cicero’s prosecution of

Plancus, which occurred after Milo’s trial, as an unsuccessful attempt (Cass. Dio 40.56).5 Cicero

actually won Plancus’ conviction. Furthermore, the majority of those convicted after Milo’s trial

were Clodians (Asc. Mil. 49).6

These inconsistencies and invectives show that the accounts are heavily biased against

Cicero. Neither Plutarch nor Cassius Dio could refrain from the temptation to exaggerate what

Asconius had said years earlier. Rather than strengthening the theory that Asconius’ description

of the trial refers to two separate speeches, the accounts of Plutarch and Cassius Dio demonstrate

how much they probably relied on Asconius and exaggerated what he had said.7

Modern scholars have tried to determine how many versions of pro Milone actually

existed based on these inconsistencies and other evidence. Aside from Asconius, Plutarch, and

Cassius Dio, a few other sources mention the speech. These serve some scholars as evidence for

a second version of the speech distinct from the extant version. These sources include: two

mentions of a version of pro Milone by Quintilian (Quint. Inst. 4.2.25, 4.3.17); comment on pro

Milone by a scholiast in Scholia Bobiensia (Stangl 111-12);8 and parallel quotes by both

4 Settle, “Other Pro Milone,” 272. 5 Stone, “Second Thoughts,” 88, n. 2. 6 Ibid.; Settle, “Other Pro Milone,” 272-73. 7 Settle, “Other Pro Milone,” 271-73. See also Stevens, “Political Program,” 18-20, who believes Cicero delivered his speech, although he was startled by the Clodians at first. 8 Ibid., 276.

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Quintilian (Quint. Inst. 9.2.54) and a scholiast (Stangl 173), which refer to a speech mentioning

Milo.9 This evidence should be examined more closely.

In his work on rhetoric, Quintilian first refers to Cicero’s work as oratione pulcherrima

(his most beautiful work) and later refers to it diminutively as oratiuncula (short speech) (Quint.

Inst. 4.2.25, 4.3.17). Between these two terms, there appears to be an inconsistency—one is a

superlative reference to Cicero’s speech, the other a possible comment on its brevity. In Scholia

Bobiensia, the scholiast states that “[e]t exstat alius praeterea liber actorum pro Milone: in quo

omnia interrupta et inpolita et rudia, plena denique maxime terroris agnoscas” (moreover, there

exists another record of the actions on behalf of Milo: in this record you will recognize all of the

interruptions, which were offensive, impolite, and, in short, completely full of terror!) (Stangl

112).10 As will be seen, this reference is used to support theories of another, less eloquent

version.

The remainder of the evidence is uncertain. In another fragment,11 the scholiast states

that “legis mentio fit in oratione habita est pro Milone atque per [lacuna]” (mention of the law

occurs in the speech which was held on behalf of Milo and also through…) (Stangl 173).12 This

fragment falls within a commentary about a speech known as de aere alieno Milonis (Regarding

Milo’s Campaign Financing). After that phrase, the scholiast uses an ambiguous phrase parallel

to one Quintilian employs in his commentary on Cicero’s speech: “de nostrum omnium-non

audeo totum dicere” (about all of us- I dare not say it all) (Quint. Inst. 9.2.54; Stangl 173);13 both

9 Marshall, “Excepta Oratio,” 732; Clark, Orationes, 14, refers to the fragment from Quintilian that might fit in at Cic. Mil. 33 and the parallel phrase from the Scholia Bobiensia. 10 Settle, “Other Pro Milone,” 276. 11 Ibid., 275. 12 Ibid. 13 Marcus Fabius Quintilianus, The Institutio Oratoria of Quintilian, trans. H.E. Butler, vol. 3 (Cambridge: Harvard University Press, 1959), 406-07. All parenthetical references Quintilian refer to this volume or volume 2, as noted in Chapter 1; I have provided the English translations unless otherwise noted. Perhaps there is an implied object of

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phrases have tenuous association with pro Milone, if any.14 In Quintilian’s work, the rest of the

sentence mentions Milo and Clodius. It could fit into a version of pro Milone or into some other

speech about Milo and Clodius, as scholars have suggested. The sentence in the Scholia

Bobiensia that falls within fragmented commentary on de aere alieno Milonis may likewise

tenuously link to pro Milone through its structural similarity to the phrase in Quintilian’s

reference to Milo and Clodius. Were it not for the commentary of Asconius, Cassius Dio, and

Plutarch, however, there would be little more reason to associate these phrases with the

published pro Milone than with other speeches regarding the ongoing conflicts between Clodius

and Milo.

In light of this evidence and the works of Asconius, Cassius Dio, and Plutarch, at least

three theories have arisen about the number of speeches that existed besides the extant version.

The first asserts that an actual version of the speech given at the trial existed, distinct from the

published speech, and it is that version to which Quintilian and the scholiast refer.15 The second

theory asserts that Cicero simply added parts to the published speech which he could not use at

trial, and that the published version contains the essential trial speech with extras.16 The third

theory asserts that the extant speech and the speech delivered at trial are essentially the same, and

that investigation of any other version is ultimately fruitless.17

Advancing the first theory, B.A. Marshall finds that all of the evidence points to a

separate speech aside from Cicero’s published version. His theory relies on the inconsistency

de that calls for the unusual use of the genitive plural in the phrase de nostrum omnium. The surrounding text the Scholia Bobiensia and in Quintilian’s work do not provide much insight. 14 Clark, ed., Orationes, 14; according to Clark, the scholiast’s version uses nostrorum instead of nostrum. 15 Marshall, “Excepta Oratio,” 730-36. 16 Stone, “Second Thoughts,” 88-111. 17 Settle, “Other Pro Milone,” 268-80. See Stevens, Political Progam, 21-26, who also discusses conflicting views of the published speech in relation to the speech delivered; at 32-33, she explains that, under her theory, the relationship between the published speech and the speech delivered is irrelevant to Cicero’s literary and political objectives in the publication.

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between Quintilian’s mention of the speech as pulcherrima (very beautiful) and, later, as

oratiuncula (brief) (Quint. Inst. 4.2.25, 4.3.17). Marshall asserts that these terms must point to

two separate speeches because they appear contradictory. Upon this premise, he then finds that

the fragmentary line found elsewhere in Quintilian (Quint. Inst. 9.2.54) and in the Scholia

Bobiensia (Stangl 173) is evidence of the actual speech’s content.18

Marshall then constructs a theory about methods for summarizing, recording, and

distributing speeches quickly, which were developing at the time of pro Milone. He stops short

of claiming that something similar to later imperial shorthand had been developed at that time,

though this assertion has been made by other scholars. According to those scholars, Roman

shorthand had been introduced sometime during Cicero’s era.19 The proponents of the theory

assert that Cicero himself may have developed shorthand, or that his secretary, the freedman

Tiro, had mastered shorthand skills. Marshall postulates, however, that Roman shorthand did not

develop until imperial times.20 As an alternate explanation for the source of a possible second

version of the speech, Marshall mentions the swift circulation of Senate speeches and speeches

delivered at contiones, as well as the predecessor of the Acta Diurna (publication of daily

events).21 After this discussion of circulation methods, he returns to discuss Asconius’ phrase

excepta oratio. He finally points out that, though excepta can mean “taken down in shorthand,”

he believes Asconius simply repeated the participle he had used in the previous sentence

describing Cicero’s reaction to the Clodians (Asc. Mil. 36).22 Apparently this analysis of excepta

does not overcome Marshall’s belief in the existence of a separate speech to which other

historians refer.

18 Marshall, “Excepta Oratio,” 732. 19 See, e.g., Clark, ad Iudices Oratio, 107, n. 11, who plainly defines excepta as shorthand. 20 Marshall, “Excepta Oratio,” 735. 21 Ibid., 732-34. 22 Ibid., 735.

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The second theory asserts that Cicero edited and amended his trial speech, and then

published the composite work which is now the extant text of pro Milone. It casts doubt on

whether there was a separate publication. A.M. Stone finds that the parts of the speech that are

derived from the trial speech can be distinguished from those added to the published speech. He

does so by examining both Cicero’s incorporation of a trial strategy that Asconius claimed he did

not use at trial,23 and Cicero’s treatment of Pompey.24

Stone’s observations may be considered summarily for the purpose of understanding his

assertions about the number of speeches composed. Stone explains that, due to procedure,

Cicero could not employ an argument that Milo acted pro re publica (on behalf of the state) at

the trial because Milo’s deed had already been declared contra rem publicam (against the state)

(Asc. Mil. 39). Cicero rejected the suggestion of a pro re publica argument from Marcus Brutus,

who had composed his own version of Milo’s defense, according to Asconius (Asc. Mil. 36).25

Nevertheless, the published version of the speech incorporates this defense in the extra causam,

along with other, more philosophical ideas.26 Similarly, as Stone points out, Cicero addressed

Pompey in a flattering manner in several places in his speech, such as his praise for Pompey at

the outset of his speech (Cic. Mil. 2);27 yet, within the extra causam Cicero becomes

confrontational toward Pompey.28

Stone asserts that these contradictions indicate that Cicero inserted new material into his

trial speech. According to Stone, Cicero used those parts of the speech more aligned with the

prescribed procedure and those less offensive toward Pompey in the actual defense of Milo, and

23 Stone, “Second Thoughts,” 89, 91-92; M.E. Clark and J.S. Ruebel, “Philosophy and Rhetoric in Cicero’s pro Milone,” RhM 128 (1985): 68-69, agree with Stone’s conclusions. 24 Stone, “Second Thoughts,” 101-02. 25 Gruen, Last Generation, 341. 26 Stone, “Second Thoughts,” 90-91, 95-97. The extra causam encompasses Cic. Mil. 92-105. 27 Stone, “Second Thoughts,” 98-99. 28 Ibid., 96-97.

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later inserted the contrary parts into the published version. Stone believes that the extant speech

accurately reflects what went on at trial even though it includes later additions, and that it

eclipsed any oratiuncula (brief speech).29

Finally, the third theory draws the relevance of Quintilian and the Scholia Bobiensia into

question. It asserts that the allegations about a separate, distinct version of the speech are

overemphasized. It also asserts that the extant speech was probably subject only to minor editing

similar to that of other published speeches. James Settle makes short work of Cassius Dio and

Plutarch, pointing out their bias and inaccuracies, and favors Asconius’ account instead.30 He

then points to the lack of evidence available to these three authors regarding whether Cicero

completed his speech at trial or not, and whether or not the extant version of pro Milone is

anything other than a polished version of the speech he delivered.31

Settle addresses the Scholia Bobiensia account of the proceeding that suffers from a

lacuna. As mentioned before, he points out that this phrase is part of a commentary on de aere

alieno Milonis.32 This speech came from an alleged proceeding that took place in 53 BC, in

which Clodius accused Milo of insolvency; the fragmented commentary written by scholiasts is

the only evidence of this proceeding (Stangl 169-74). According to Settle, Cicero might have

later republished Milo’s response to this accusation as Milo’s consular campaign ensued.33

Settle notes that the modern insertion of the word excepta, which is interpreted by some to refer

to shorthand, into the lacuna is the only other evidence for that particular use of the word aside

from Asconius’ statements. According to Settle, this faulty link is the only thing that associates

this part of the Scholia Bobiensia to the trial of Milo and not another proceeding like de aere

29 Ibid., 102. 30 Settle, “Other Pro Milone,” 271-73. 31 Ibid., 272. 32 Ibid., 275. 33 Ibid., 270.

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alieno Milonis.34 After dealing with that fragment, Settle then points out that the only remaining

comment on pro Milone in the Scholia Bobiensia describes another version that recounts the

speech as a frightening, unstable event.35

In conclusion, Settle points to other factors supportive of his theory, such as the lack of

evidence for the use of stenographers, which Marshall also observed, and the unlikelihood that

anyone would be interested in an unofficial version of the speech. He also observes that several

decades passed before anyone asserted that more than one version existed. After showing that

the only distinction between Quintilian’s praise of Cicero’s speech and his later comment was his

strange use of oratiuncula,36 Settle makes his concluding argument: he demonstrates how little is

known about any other version of pro Milone besides the extant one. Nothing reliable is known

about its alterations, its style, its author, or its composition date. Therefore, according to Settle,

it should be of little significance in analyzing Cicero’s published speech and its relation to

Cicero’s performance at trial.37

Out of these theories, the notion that Cicero inserted new parts into his original trial

speech and then published what is now the only extant pro Milone seems the most reasonable.

Given the situation in which Cicero delivered the speech, it is unlikely that he verbally

challenged Pompey with as much zeal as is evident in the extra causam and elsewhere in the

published version. Cicero’s contradictory characterizations of Pompey also support this

assertion. Cicero’s mention of a pro re publica argument in the published speech helps this

34 Ibid., 276. 35 Ibid. 36 There is little help in determining any meaning for oratiuncula other than the Oxford Latin Dictionary’s sole definition: “[a] (short) speech,” Oxford Latin Dictionary, s.v. orantiuncula, 1263. The few references therein provide sparse insight as to whether this was a term of endearment better translated as “a precious speech,” which would not conflict so much with the superlative adjective pulcherrima. See the dictionary entry for further investigation. 37 Settle, “Other Pro Milone,” 277-80. In accord with Settle, Stevens, “Political Program,” 31-32, discards the questions regarding which part of the published speech was delivered at trial, and finds it more important to examine the literary purpose of its publication.

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theory, but is inconclusive in and of itself. Although it might not have been effective legal

argument at trial, that reason alone would not stop Cicero from alluding to a pro re publica

theory in the delivered speech.38

Although he probably did not intend it, Asconius’ mention of Cicero’s nervousness at the

beginning of his speech was the seed of a poison tree. The theory that Cicero delivered a speech

and simply amended it before publication does not conflict with Asconius’ mention of Cicero’s

problems at trial. As he states, “manet autem illa quoque excepta eius oratio: scripsit vero hanc

quam legimus ita perfecte ut iure prima haberi possit” (the speech that was received, however,

also remains: but he wrote this speech that we read so perfectly that, as a result, the first may be

understood correctly) (Asc. Mil. 36). Asconius very well could mean that the speech, as

delivered, remains in the publication with certain parts added strategically by Cicero. Thus

Cicero could demonstrate in publication what he would have argued had it not been for the

procedural problems and circumstances surrounding the trial.39 Unfortunately, when Cassius

Dio and Plutarch saw this opportunity for declaring that Cicero’s publication was a measure

intended to repair his interrupted failure of a speech, the tree sprouted from the poisonous seed.

Since then it has continued to blossom as scholars have sought to explain the alleged polarity

between Cicero’s published version and a phantom version that inspired Cassius Dio’s and

Plutarch’s ridicule.

Timing of Publication

Under any theory that Cicero edited and later published his speech—whether the

publication was a verbatim record or an embellished ruse—inquiry regarding the time of its

38 In addition to Stone, “Second Thoughts,” see Lintott, “Cicero and Milo,” 74, for a capsule argument supporting this theory. Stevens, “Political Program,” 53-85, convincingly observes how Cicero purposefully intertwined the pro re publica argument with the self-defense argument throughout his speech. 39 Stone, “Second Thoughts,” 102.

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publication arises. As will be addressed at the conclusion of this chapter, the timing of the

publication and the purpose of the speech are interwoven subjects. First, however, scholars’

theories regarding the time at which Cicero published the speech will be addressed in this

section, as well as their proposed purposes for the speech. The final section will examine the

purposes of the published speech while proposing further investigation into alternative times of

publication.

A.M. Stone and D.H. Berry argue that, based on Stone’s theory that contradictory

depictions of Pompey in the main argument and extra causam support a later publication of the

speech with extra parts, Cicero published his speech in January of 51 BC, after the convictions of

many Clodians, which outnumbered the convictions of Milo’s associates (Asc. Mil. 49).40 As

will be seen, however, this placement of publication is rather speculative. Nonetheless, the

mechanism both scholars use for placing the speech—the purpose of the speech and the most

profitable time to publish it for that purpose—may prove to be helpful in determining other times

at which it may have been published.

Stone explores the tide of public sentiment and political connections to find a possible

date of publication, after ruling out the possibility that Cicero would have delivered the parts

more offensive to Pompey in the speech he gave at trial, by examining three very persuasive

parts of the extra causam for support. Essentially, Stone seeks to find a time soon after the

speech when Cicero might have felt more comfortable publicly criticizing Pompey’s treatment of

Milo and his failure to adhere to his own laws. Marcus Saufeius’ acquittal under the lex

Pompeia de vi and the lex Plautia de vi may have been the first indication of a shift in public

opinion in favor of Milo’s associates, but Cicero still awaited more assurances that he would be

40 Stone, “Second Thoughts,” 108-11; D.H. Berry, “Pompey’s Legal Knowledge—or Lack of It: Cic. Mil. 70 and the Date of Pro Milone,” Historia 42, no. 4 (1993): 502-04.

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supported in criticizing Pompey, according to Stone (Asc. Mil. 48-49).41 Under Stone’s theory,

Pompey had fared rather well up to this point, satisfying the Clodians with Milo’s prosecution

while balancing his clout with Milo’s supporters by refraining from dispatching Milo outright for

violence against the state, and by declaring the vandalism of the Clodians contra rem publicam.

After Milo’s conviction and M. Saufeius’ acquittal, however, Pompey began meddling in his

own procedure as those close to him became the subject to prosecution, particularly when T.

Munatius Plancus was tried for his offenses, possibly by Cicero. Pompey violated his own rule

on character witnesses and submitted testimony on Plancus’ behalf. Pompey did not affect the

iudices’ decision and Plancus was convicted (Cass. Dio 40.55).42

Stone theorizes that the Romans might have reconsidered Milo’s actions at this point, and

that the conviction of Plancus further affirmed a shift in public opinion toward Milo and against

Pompey, who appeared to waver between his commitment to protecting the Republic and his

desire to protect his friends.43 Under Stone’s theory, it was at this point that the stage was set for

Cicero to edit and publish his speech, complete with his criticism of Pompey. Stone postulates

that, through the trials of Plancus and other Clodians, the Romans may have begun to see how

Milo’s actions averted consequences even more dire than what had occurred upon Clodius’

death, while Pompey was so biased for his friends that he was willing to break his own rules to

assist them. This encouraged Cicero to publish his speech, with invective against Pompey

added, in order to criticize Pompey on his treatment of Milo and to resurrect Milo’s image.44

Within the published speech, Cicero’s continued emphasis on the frightening hypotheses

regarding what would have occurred had Clodius lived supports this observation.

41 Stone, “Second Thoughts,” 103. 42 Ibid., 106-08. For a summary of Pompey’s situation after his friends became subject to his law, see Gruen, Last Generation, 345-47. 43 Stone, “Second Thoughts,” 109. 44 Ibid. See also Stevens, “Political Program,” 96, who observes this purpose as well.

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Stone dates the publication of pro Milone to sometime in January following the trial of

Plancus. He places the publication here because this time represents the point of furthest

distance between Pompey and Cicero following Milo’s trial. He points to several instances in

mid- to late 51 BC when Cicero began to bring Pompey over to his political side again.

According to Stone, the publication of pro Milone at that point would have been

counterproductive in forming this allegiance.45

Berry attempts to further this theory by isolating a passage within pro Milone that

reinforces Stone’s assertion regarding the trial of Plancus. Berry focuses on a passage from pro

Milone where Cicero at first appears to praise Pompey’s jurisprudence, describing him as “iuris

publici, moris maiorum, rei denique publicae peritissimum” (very skilled in law, tradition, and

government) (Cic. Mil. 70). Berry then draws such comment into question based on several

ancient authors’ observations regarding Pompey’s lack of political and legal expertise. Finally,

as his reason for joining with Stone’s date for the speech, Berry asserts that, since Pompey was

indeed legally incompetent, this compliment must have been Cicero’s jibe at Pompey for

violating his own rule of procedure in Plancus’ trial. Therefore, according to Berry, this passage

also supports two versions of the speech: one flattering Pompey while defending Milo, the other

balancing this initial flattery with criticism in the added portions.46

Both of these scholars have made diligent efforts at timing the publication of Cicero’s

speech; the theory, however, relies on three premises: first, a narrow purpose for the speech,

namely to scold Pompey and relish the fact that Cicero and his associates successfully defended

Milo’s heroic comrades and convicted more despicable Clodians; second, a small window of

45 Stone, “Second Thoughts,” 110-11; for other theories, see Clark and Ruebel, “Philosophy and Rhetoric,” 71, who assert that Cicero must have published the speech in September of 52 BC, right after an alleged summer vacation; and Clark, ad Iudices Oratio, xxx, who puts it between August of 52 BC and May of 51 BC. Clark explains that Cicero wanted to try out some Stoic theories in his speech. 46 Berry, “Pompey’s Legal Knowledge,” 503-04.

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opportunity to publish a speech that criticized Pompey, since Cicero was reconciled with

Pompey soon thereafter;47 and, third, an undervaluation of Cicero’s political strategy and

boldness. The following examination of a possible purpose for Cicero’s publication will show

that Cicero may very well have published this speech with a bolder motive and at a more dire

time. Examining a purpose greater than that asserted by Stone and Berry will also provide

criteria for determining a possible time of publication for Cicero’s pro Milone.

The Purposes of Cicero’s Published pro Milone

Cicero very well may have published pro Milone for reasons greater than ridiculing

Pompey and boasting about his subsequent legal victories in trials surrounding the murder of

Clodius and related events. Cicero might have been suggesting to Milo and his audience that

Milo should return to Rome and renew his effort at sustaining the failing Republic, even with

violence, or he may have been using the heroic depiction of Milo in the published speech to

encourage others to take up the cause that Milo’s character in the speech came to represent: the

preservation of the Republic in the face of tyrannical individuals. As will be elaborated upon

below, evidence for this view includes: Cicero’s strong support for Milo in years preceding the

trial, as evident in at least one of his letters and in pro Sestio; his heroic depiction of Milo within

pro Milone; Milo’s continued potency reflected in Caesar’s refusal to recall him along with

others exiled under Pompey; and Milo’s continued ambition, which he demonstrated in his

efforts at starting a rebellion that ended in his death. The totality of this evidence supports this

greater objective at least as much as the evidence supporting other views of the speech’s

47 Stone, “Second Thoughts,” 110-11.

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purposes; furthermore, Cicero’s possible goals of challenging Pompey’s position during the trial

and celebrating later legal victories only complements this other, greater purpose.48

Before examining the purposes for Cicero’s speech espoused by this work, another

scholar’s theory regarding additional purposes should be summarily addressed. In her

dissertation, Summer Stevens has set forth the idea that Cicero polished his defense of Milo and

published it in order to provide a model forensic speech for his reading audience and for

posterity; to elaborate upon his political position and provide an autobiography; and to console

Milo for his loss.49 Stevens points out that, in carefully refining this speech, Cicero hoped to

provide an example for students of rhetoric in his time and in the future, thus fortifying his

reputation.50 Toward this goal, Cicero deftly utilized rhetorical strategies, as exemplified by his

subtle, two-pronged justification of Milo’s crime, which employed arguments of self-defense and

pro re publica, according to Stevens.51 She also observes that, after setting out the political

relationship between Pompey, Milo, and himself, Cicero compares their ethos and ultimately

criticizes Pompey while indirectly praising himself through his laudatory characterization of

Milo and his actions.52 Although, on the surface, Cicero may appear to praise Milo more than

himself, Stevens shows how Cicero likens Milo’s acts against Clodius to his own prior acts

against Catiline and thus creates complementary images of protectors of the state for himself and

Milo, master and pupil; by ridding Rome of Clodius, Milo has carried out the actions of his role

48 But see Dyck, “Narrative Obfuscation,” 221, who asserts that Cicero only sought to use the published speech to build his reputation; Clark and Ruebel, “Philosophy and Rhetoric,” 57, consider it more of a fledgling philosophical exercise, or, at 70-71, a consolation to Milo for ineffective defense; Colson, Pro Milone, xviii-xx, asserts that Cicero was willing to sacrifice Milo for his relationship with Pompey, but used the speech to criticize Pompey and his involvement in the remnant of the first Triumvir. 49 Stevens, “Political Program,” 186. 50 Ibid., 35, 39, 44-45. 51 Ibid., 53-85. 52 Ibid., 86-140.

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model, Cicero.53 Finally, according to Stevens, Cicero utilized his speech as both an explanation

for his original performance at the trial and as a consolation to Milo.54 Stevens illustrates how

Cicero used the pathos of the speech to show how he himself once had to use violent means for

purposes as just as those he ascribes to Milo. In doing so, Cicero both praises himself and

attempts to support Milo. This effort, in turn, also serves to console Milo through demonstrating

sympathy for a plight that Cicero himself had endured before.55

Stevens’ theories about Cicero’s publication provide strong explanation for some of

Cicero’s purposes by examining how Cicero sought to use his published speech ultimately to

sustain and fortify his own image as an orator and a statesman. Her explanation thoroughly

examines the purposes for the published speech in the context of Cicero’s writings and political

career, and provides an explanation greater than those tendered by the other scholars mentioned

earlier. The purpose asserted by this thesis parallels the literary and political purposes explained

by Stevens. In contrast to Stevens, however, this thesis asserts that Cicero might have hoped to

affect his immediate political situation, rather than his students and his future reputation, by

encouraging Milo and setting the stage for him to return to Rome, either to reenter the political

arena, or to protect Rome with force.

As mentioned in the first chapter of this thesis, Cicero was growing ever more supportive

of Milo as his campaign for consul began. According to Cicero,

[e]go omnia mea studia, omnem operam, curam, industriam, cogitationem, mentem denique omnem in Milonis consulatu fixi et locavi, statuique in eo me non officii solum fructum, sed etiam pietatis laudem debere quaerere. I have completely placed all my zeal, effort, care, ingenuity, insight, and, in essence, my entire mind on Milo’s consulship, and I have decided to seek in him not only the reward for my service, but also the praise earned for my piety (Cic. Fam. 2.6.3).

53 Ibid., 137-40. 54 Ibid., 146-47. 55 Ibid., 147-78.

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Although it may be argued that Cicero was advocating Milo’s consulship overzealously to the

recipient of this letter, it is just as reasonable—if not more reasonable—to assert that this letter to

his friend reflects genuine hope Cicero placed in Milo’s future consulship. His selfish motive

expressed in the last clause of the passage only emphasizes Cicero’s strong interest in Milo.

The support for Milo expressed in this passage is augmented by Cicero’s praise of Milo

within his earlier speech pro Sestio. Several passages in this speech show the growing political

support that Cicero provided for Milo. For instance, Cicero praises Milo in a comparison of

Clodius and Milo, similar to those in pro Milone, after lambasting Clodius’ violence:

[e]t tu hoc loco laudas Milonem et iure laudas. Quem enim umquam virum tam immortali virtute vidimus? qui nullo praemio proposito praeter hoc, quod iam contritum et contemptum putatur, iudicium bonorum omnia pericula, summos labores, gravissimas contentiones inimicitiasque suscepit, qui mihi unus ex omnibus civibus videtur re docuisse, non verbis, et quid oporteret a praesentibus viris in re publica fieri et quid necesse esset, oportere hominum audacium, eversorum rei publicae, sceleri legibus et iudiciis resistere; si leges non valerent, iudicia non essent, si res publica vi consensuque audacium armis oppressa teneretur, praesidio et copiis defendi vitam et libertatem necesse esse. and here you praise Milo and you praise him rightly. Have we ever seen a man with such immortal virtue? A man who takes on all the dangers, the hardest labors, the most serious issues and enmity for these good iudices, for no other prize besides one that is considered worthless and insignificant; a man who to me appears to be the one out of all citizens who has asserted through his actions, not through his words, that anything important and anything of necessity must be done by men present in the Republic; that it is imperative to resist the wickedness of audacious men, corruptors of the Republic, with laws and judgments; and that if laws do not prevail, if there are no judgments, if the Republic is held hostage, oppressed by the force and conspiracy of audacious men, life and liberty must be defended with security forces (Cic. Sest. 86).56

In the passages following this, Cicero continues to praise Milo and the way in which he has dealt

with Clodius and his allies, while trying to elevate Sestius to the same level. Further, Cicero’s

56 Clark and Ruebel, “Philosophy and Rhetoric,” 68, cite this as a precursor to Cicero’s argument for the justifiable use of violence in pro Milone.

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comparison between Milo and Clodius, which pejoratively describes Clodius as a gladiator while

it explains Milo’s honorable reaction to Clodius’ violence, provides another example:

[n]on movit hominem summa gravitate summaque constantia; sed quamquam dolor animi, innata libertas, prompta excellensque virtus fortissimum virum hortabatur vi vim, oblatam praesertim saepius, ut frangeret et refutaret, tanta moderatio fuit hominis, tantum consilium, ut contineret dolorem neque eadem se re ulcisceretur qua esset lacessitus....Descendit ad accusandum. [Clodius] did not upset this man of highest resolve and confidence: although the grief of [Milo’s] spirit, his inborn boldness, and his excellent, ever-ready virtue was urging this most brave man [to combat] violence with violence (a method that is certainly used more often) so that he might break and refute him, [Milo’s] moderation and consistency were so great that he contained his grief and did not avenge himself in the same manner as he was injured…. He stooped to prosecute [Clodius] (Cic. Sest. 88).57

Cicero concludes this laudation of Milo with further argument praising Milo’s action

against Clodius. After setting up his political theory concerning the necessity of force and law as

alternative means for supporting civilization, Cicero describes Milo’s wise use of each:

[a]tque inter hanc vitam perpolitam humanitate et illam immanem nihil tam interest quam ius atque vis. Horum utro uti nolumus, altero est utendum. Vim volumus extingui, ius valeat necesse est, id est iudicia, quibus omne ius continetur; iudicia displicent aut nulla sunt, vis dominetur necesse est. Hoc vident omnes: Milo et vidit et fecit, ut ius experiretur, vim depelleret. Altero uti voluit, ut virtus audaciam vinceret; altero usus necessario est, ne virtus ab audacia vinceretur. and so, between this life perfected by civility and that other savage life, there is nothing as integral as law and force. If we do not wish to use one of these, the other must be utilized. We desire that violence be extinguished, so law must prevail, that is legal decisions, through which all law is manifest; legal decisions are displeasing or [otherwise] they are ineffective, so force must govern. Everyone sees this: Milo has both seen this and taken action, so that law may endure; he diverts violence. He wished to use [law], so that virtue might conquer audacity; it was necessary to use [force], lest virtue be conquered by ambition (Cic. Sest. 92).

These examples, along with many others in the speech that Cicero gave in defense of Sestius,

demonstrate a high level of support for Milo that is later echoed in pro Milone. They provide

57 Dyck, “Narrative Obfuscation,” 232, observes how Cicero emphasized Milo’s restraint from reacting to Clodius’ violence.

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sketches for the portrait of a heroic Milo that Cicero painted in pro Milone.58 As will be seen,

passages from pro Milone continue this boisterous support for Milo and for his use of force

against Clodius and his comrades. To reduce the culmination of Cicero’s support and praise of

Milo in pro Milone to a mere jab at Pompey overlooks their growth.

Within pro Milone, Cicero portrays Milo as a solemn hero, capable of using force when

necessary, but also very wise in applying that force.59 Cicero’s purpose for creating this portrait

of Milo, which contrasts even the most favorable interpretation of the actual events on the Via

Appia, will be considered after briefly exploring some of Cicero’s images of Milo. In pro

Milone, Cicero starts by invoking ratio naturae (natural law), a basic Stoic concept,60 and then

enhances Milo’s image by framing Milo’s actions within the bounds of ratio naturae, while

depicting Clodius as an irrational, yet conniving animal.61 Cicero completes Milo’s heroic

portrait by lending this image of Milo its own powerful voice, which resonates with Milo’s

unconventional demeanor and attire at the trial (unconventional because Milo appeared well-

dressed and confident before the court, not disheveled and depressed)62 and affirms Milo’s

justifiable homicide defense.

Early in the published speech, Cicero begins to craft the Stoic framework for Milo’s

portrait. After laying out some fundamental concepts of self-defense and citing the Twelve

Tables regarding the matter (Cic. Mil. 8-9), Cicero invokes the concept of ratio naturae:

[e]st igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti

58 Dyck, “Narrative Obfuscation,” 241, uses the portrait metaphor utilized here and throughout this paper, as do Clark and Reubel, “Philosophy and Rhetoric,” 67. 59 Dyck, “Narrative Obfuscation,” 224, explains how imbalanced this image was, observing that both Milo and Clodius were equally violent; see also 227-33 for discussion of the philosophical Milo. 60 Clark and Reubel, “Philosophy and Rhetoric,” 60-61, define the Stoic concept of ratio naturae. 61 Clark and Ruebel, “Philosophy and Rhetoric,” passim, discuss this beastly image of Clodius in comparison to Milo. 62 Dyck, “Narrative Obfuscation,” 228-29, places this within Cicero’s strategy of attributing the Stoic quality of magnitudo animi (greatness of mind) to Milo.

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sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. therefore, judges, there exists this law, not written, but inborn, which we have not learned, received, or read, but indeed we have seized it from nature itself, imbibed it, and expressed it; we are not taught about it, but created with it, we are not instructed, but imbued, so that, if our life falls among various plots, against the forceful weapons of thieves or enemies, our entire honest reason commands preservation of our safety (Cic. Mil. 10).

According to Cicero, this natural law subsumes the law of the state and justifies self-defense

while the laws of the state tacitly concur: “[s]ilent enim leges inter arma nec se expectari iubent,

cum ei qui expectare velit ante iniusta poena luenda sit quam iusta repetenda” (for the laws are

silent in combat and do not demand that they themselves be observed, since one who chooses to

hesitate must suffer an unjust penalty before just retribution) (Cic. Mil. 11).63

Cicero applies this tenet of ratio naturae in greater strokes as the speech unfolds. For

example, after describing Clodius’ death, Cicero forces the iudices to choose between combating

a brigand like Clodius and punishing reasonable self-defense. As he explains how Milo’s

violence was justified self-defense, Cicero elaborates:

[s]in hoc et ratio doctis et necessitas barbaris et mos gentibus et feris natura ipsa praescripsit ut omnem semper vim quacumque ope possent a corpore, a capite, a vita sua propulsaret, non potestis hoc facinus improbum iudicare quin simul iudicetis omnibus qui in latrones inciderint aut illorum telis aut vestris sententiis esse pereundum however, because reason has prescribed this [violent response] to the learned, because necessity has prescribed it to the uncivilized, because custom has prescribed it to the nations, and because nature itself has prescribed it to wild animals, so that one may always repel any forceful act, by whatever means, away from the body, away from the head, away from one’s own life, you cannot declare this act a malicious crime, since, at the same time, you would be declaring that anyone who has fallen among thieves should perish, either by the weapons of those (thieves) or by your rulings (Cic. Mil. 30).64

63 Clark and Ruebel, “Philosophy and Rhetoric,” 60, 64-65, explain the role of natural law in combating oppressors. 64 See Clark, ad Iudices Oratio, 26, n.8, who discusses the use of belua versus the use of feris here, and attempts to distinguish which word indicates a creature more likely to use force.

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Through such argument, Cicero fortifies his depiction of Milo as a reasonable person reacting in

accord with ratio naturae.65 However, as Cicero approaches the extra causam, he elevates

Milo’s heroic image to match his more universal concepts.66

Along with this plea for support for Milo’s justifiable homicide under the guidance of

ratio naturae, Cicero consistently portrays Clodius as violent, lewd, irrational, and capricious in

comparison to Milo.67 One particular image displays Clodius as a beastly amoral tyrant in

contrast to Milo, the tyrant-killer.68 An example of the bestial imagery occurs in Cicero’s

account of Clodius’ savagery that happened during prior elections and involved Marcus Antonius

and Milo: “illam beluam, iudicii laqueos declinantem iam inretitam teneret…cum se ille fugiens

in scalarum tenebras abdidisset…cum in saepta inrupisset,…dein subito voltu Milonis

perterritus fugeret ad Tiberim” ([Marcus Antonius] held that beast, already caught escaping the

snares of the court…since he had thrown himself into the shadows of the stairs fleeing…when he

had burst into the fold…then suddenly he fled to the Tiber, terrified by the face of Milo) (Cic.

Mil. 40-41).69 As such a beast, Clodius has no place in society; yet, had it not been for Milo’s act,

he would have corralled his comrades and attained political control, so that he might ravage

Rome, according to Cicero (for example, Cic. Mil. 77-78), thus becoming a tyrant.

Fortunately, according to Cicero, Milo provided the solution and played the part of

tyrant-killer. Milo therefore warranted praise, not punishment. As Cicero explains:

65 Clark and Ruebel, “Philosophy and Rhetoric,” 65, discuss this passage. 66 Dyck, “Narrative Obfuscation,” 232-39, explores this attempt at universalizing Milo’s character; Clark and Ruebel, “Philosophy and Rhetoric,” 60, similarly observe ratio naturae as the driving force in the conflict between a tyrant and his slayer, discussed below; at 65-66, they further observe the crescendo in imagery from personal attributes of Milo to universal heroic features. 67 Dyck, “Narrative Obfuscation,” 230-32, describes how Cicero fails to acknowledge the same vengeful qualities in Milo. 68 Clark and Ruebel, “Philosophy and Rhetoric,” 58-59; see also 61-63 for closer discussion of the images of belua, tyrant, and tyrant-killer in Stoicism and other Greek philosophy. 69 Clark and Ruebel, “Philosophy and Rhetoric,” 63, point these phrases out; Clark, ad Iudices Oratio, 37, n. 6, notes that this event occurred in 53 BC during Marcus Antonius’ campaign for quaestor.

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[h]uius ergo interfector si esset, in confitendo ab eisne poenam timeret quos liberavisset? Graeci homines deorum honores tribuunt eis viris qui tyrannos necaverunt—quae ego vidi Athenis, quae in aliis urbibus Graeciae! quas res divinas talibus institutas viris, quos cantus, quae carmina! prope ad immortalitatis et religionem et memoriam consecrantur—vos tanti conservatorem populi, tanti sceleris ultorem non modo honoribus nullis adficietis sed etiam ad supplicium rapi patiemini? therefore, if he is [Clodius’] slayer, should he have feared punishment for his confession from those whom he had freed? To these men who have killed tyrants, the Greek people attribute the honor of the gods—which I saw in Athens, which I saw other cities of Greece! What divine things established for such men, what songs, what poetry! Those men were nearly lifted to the sanctity and memory of immortality—will you not only affix no honors on the defender of so great a nation, on the avenger of such wickedness, but even allow him to be rushed away to punishment (Cic. Mil. 79-80)?70

From this point in the speech forward, Cicero enhances his image of Milo without the restraints

of his argument for self-defense. Cicero creates a definitive persona with deft strokes of heroic

philosophy, depicting Milo as a champion for situations occurring in Rome as a result of the civil

unrest, for which Cicero blames Clodius and the Clodians.71

In detailing this persona, Cicero further utilizes Stoic concepts to reinforce his depiction

of Milo. For example, after hearkening to other Roman heroes (Cic. Mil. 83), Cicero points out

how the force of ratio naturae, which drives reality to an ultimate just purpose, orchestrated

events and entities so that Milo would carry out its will. According to Cicero, ratio naturae not

only empowered Milo, but also drove Clodius to incite Milo’s just reaction.72 First, Cicero

describes the power of ratio naturae:

[n]ec vero quisquam aliter arbitrari potest, nisi qui nullam vim esse ducit numenque divinum, quem neque imperi nostri magnitudo nec sol ille nec caeli signorumque motus nec vicissitudines rerum atque ordines movent neque, id quod maximum est, maiorum nostrorum sapientia, qui sacra, qui caerimonias, qui auspicia et ipsi sanctissime coluerunt et nobis suis posteris prodiderunt.

70 Clark, ad Iudices Oratio, 71, n. 10, discusses the terminology, “cantus…carmina.” 71 See Dyck, “Narrative Obfuscation,” 241, for similar observations. 72 Dyck, “Narrative Obfuscation,” 235, addresses this passage, likening the concepts therein to a Greek motif where the divine force not only uses the solemn hero to rid itself of evil, but also drives the hero’s opponent into madness, in order to incite the conflict that results in the opponent’s death; Clark and Ruebel, “Philosophy and Rhetoric,” 67, observe that, according to Cicero, the vis guided by providence (or ratio naturae) arranged this meeting.

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nor can anyone assert otherwise [than the assertion that Clodius’ death served a greater purpose], except one who holds that there is no force and no divine presence, and who is not inspired by the greatness of our power, or by the sun, or by the movements of the sky and stars, or by the order and interdependence of things, or by what is most important: the wisdom of our ancestors, who themselves cultivated our rites, our ceremonies, our auspices and handed them down to us, their descendants (Cic. Mil. 83).73

He then explains how ratio naturae utilized Milo to rid Rome of Clodius as part of its ultimate

purpose:

[e]a vis igitur ipsa quae saepe incredibilis huic urbi felicitates atque opes attulit illam perniciem extinxit ac sustulit, cui primum mentem iniecit ut vi inritare ferroque lacessere fortissimum virum auderet vincereturque ab eo quem si vicisset habiturus esset impunitatem et licentiam sempiternam. Non est humano consilio, ne mediocri quidem, iudices, deorum immortalium cura res illa perfecta. therefore, this force itself, which often brings wonderful blessings and works to this city, crushed and destroyed that pest [Clodius]; it prodded his mind first, so that he would dare to incite that very brave man [Milo] with violence and harm him with his sword, and so that he would be defeated by him; had he beaten Milo, he would have obtained endless immunity and freedom. This matter was not completed by a human plan, indeed not by a modest agenda, iudices, but by the care of the immoral gods (Cic. Mil. 84-85).74

Thus Cicero has created an image of Milo as an actor guided by the Stoic force that cured Rome

of its ailment manifest in Clodius.75

In his extra causam, Cicero puts the finishing touches on his heroic portrait by providing

Milo’s character with a voice. After interweaving philosophical concepts and images to bolster

his argument for self-defense, Cicero composes a solemn Stoic voice for his client. Initially,

Cicero must explain Milo’s unusual demeanor at trial; he beseeches the judges, “[n]olite, si in

nostro omnium fletu nullam lacrimam aspexistis Milonis, si voltum semper eundem, si vocem, si

73 Clark, ad Iudices Oratio, 73-74, n. 18, discusses the term maiorum nostrorum and points out that, according to diction, these terms either focus on Roman ancestors (maiores nostri) or contrast them with other nations’ ancestors (nostri maiores). 74 Dyck, “Narrative Obfuscation,” 238, expands upon the greater cosmic weight lent to the events, associating Clodius’ behavior with ira deorum (madness of the gods), which Cicero also connected with the burning of the Curia; Clark and Ruebel, “Philosophy and Rhetoric,” 67, observe how Milo acted in harmony with the will of ratio naturae, though, at first, he may appear passive. 75 Dyck, “Narrative Obfuscation,” 234, discusses this philosophic passage and its features.

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orationem stabilem ac non mutatam videtis, hoc minus ei parcere: haud scio an multo etiam sit

adiuvandus magis” (if, through all of our crying, you saw no tear from Milo, if you saw the same

facial expression, the same voice, and the same stable, consistent speech, do not spare him any

less: I do not know of anything that could help him more) (Cic. Mil. 92).76 After this

acknowledgement of Milo’s unusual behavior and attire at trial, Cicero characterizes him as the

confident combatant, who should not be grieving over his victory, and then lends him a voice

(Cic. Mil. 92).77

With the image of Milo as the victorious gladiator in place, Cicero speaks for Milo in a

strong tone. While contrasting his own sadness and grief with Milo’s calmness, Cicero shares

what he characterizes as intimate conversations between himself and Milo about the homicide

and ensuing events. He first shares Milo’s selfless concern for Rome and her citizens:

valeant cives mei; sint incolumnes, sint florentes, sint beati; stet haec urbs praeclara mihique patria carissima, quoquo modo erit merita de me; tranquilla re publica mei cives, quoniam mihi cum illis non licet, sine me ipsi sed propter me tamen perfruantur. Ego cedam et abibo. Si mihi bona re publica frui non licuerit, at carebo mala, et quam primum tetigero bene moratam et liberam civitatem, in ea conquiescam.

may my fellow citizens live well; may they be unharmed, may they flourish, may they be blessed; may this brilliant city stand and [also] this country, so dear to me; in this way it will also be credited to me; through this tranquil republic, may my fellow citizens prosper without me, nevertheless because of me, since I am not permitted to be with them. I concede and I will depart. If I am not allowed to prosper with this good republic, but will avert a bad republic, and will immediately foster this established free state, I will be content in this (Cic. Mil. 93).78

76 Clark, ad Iudices Oratio, 82, n. 11, points out that the primary objective of this part of the speech, the epilogus, is to incite tears. 77 Clark and Ruebel, “Philosophy and Rhetoric,” 59, assert that this was the first time Cicero recognized a justifiable use of political homicide; also, according to Clark and Ruebel, “Philosophy and Rhetoric,” 67, Cicero makes Milo a more active agent of ratio naturae within the extra causam; see also Axer, “Tribunal-Stage-Arena,” 308-09, where he observes that Cicero utilized the topography of the Forum as the foundation for gladiatorial images in the speech in order to represent Milo as a victorious gladiator. 78 Clark and Ruebel, “Philosophy and Rhetoric,” 66, also observe Cicero’s use of Milo’s voice in this passage. Cicero has Milo’s character speak once before this, proudly taking the credit and blame for Clodius’ death (Cic. Mil. 77).

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After expressing this care for Rome, Milo’s character goes on to converse with Cicero, pointing

out how ironic and unexpected it was that, after helping Cicero return from exile, he himself now

stands subject to such punishment while Cicero defends him (Cic. Mil. 94). Perhaps Cicero

hoped to plant the thought that, if Milo were exiled, the iudices and citizens might very well seek

to have him recalled, as Milo and others did when Cicero was exiled; thus, it follows, they

should not be exiling him in the first place. Milo then desperately inquires: “ubi nunc senatus est

quem secuti sumus, ubi equites Romani…ubi studia municipiorum, ubi Italiae voces, ubi denique

tua, M. Tulli, quae plurimis fuit auxilio, vox atque defensio?” (where is the Senate now, which

we have supported, where are the Roman knights…where is the zeal of the magistrates, where

are the Italian voices, and, finally, where is your voice and your defense, [Cicero], which has

defended many others?) (Cic. Mil. 94).79 Cicero then reinforces Milo’s solemn, confident image

at the trial by assuring the iudices that Milo spoke to Cicero about these matters with the same

demeanor that he maintained at trial (Cic. Mil. 95). Through the voice of Milo’s character,

Cicero sought to reinforce the image of a selfless, benevolent Roman who acted for the greater

good,80 while he also attempted to revive prior support of Milo.

After establishing Milo’s voice within the speech, Cicero augments Milo’s image. Cicero

provides a final speech for Milo before earnestly petitioning the iudices in closing. Cicero

prefaces this final speech by first discussing how Milo valued the safety and prosperity of Rome

over his own life and riches (Cic. Mil. 95-96). He then renews the idea that Milo, who esteemed

the virtue of his act over any other benefit, would ascend to the stars as a champion of the greater

good (Cic. Mil. 97). With that stage set, Milo’s character delivers his final speech with

confidence:

79 Clark, ad Iudices Oratio, 84, n. 11, points out that secuti sumus is a buzzword for Optimates. 80 Clark and Ruebel, “Philosophy and Rhetoric,” 67.

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[d]e me…semper populus Romanus, semper omnes gentes loquentur, nulla umquam obmutescet vetustas. Quin hoc tempore ipso, cum omnes a meis inimicis faces invidiae meae subiciantur, tamen omni in hominum coetu gratiis agendis et gratulationibus habendis et omni sermone celebramur. Omitto Etruriae festos et actos et institutos dies. Centesima lux est haec ab interitu P. Clodi et, opinor, altera. Qua fines imperi populi Romani sunt, ea non solum fama iam de illo sed etiam laetitia peragravit. Quam ob rem ubi corpus hoc sit non…laboro, quoniam omnibus in terris et iam versatur et semper hic habitabit nominis mei gloria. the Roman people will always speak about me, all nations will always speak about me, not a single age will ever be silent. Although now all my hostile allegations are heaped [upon me] by my enemies, nevertheless, in each generation of people, I will be celebrated in thanksgivings, laudations, and in every speech, not to mention the festivals, events, and holidays in Etruria.81 This is the hundred and first day since the burial of Clodius, I believe.82 Whatever the bounds of Roman power and Roman people, the rumor of that burial and, moreover, its celebration have traveled beyond them. Therefore, I do not concern myself regarding where my body will be because already the glory of my name is known in all the earth and it will live forever right here (Cic. Mil. 98).

In the speech, these final words evoke consolation and assurances from Cicero that, if Milo

should be found guilty and exiled, Rome will suffer from his loss (Cic. Mil. 99). From that

point, Cicero then sadly entreats the iudices for mercy.

Cicero’s construction and fortification of Milo’s character within the speech, culminating

in his accounts of alleged conversations with Milo, support the proposition that Cicero had a

purpose for the speech greater than simply ridiculing Pompey and savoring his later legal

victories over the Clodians. This speech may very well represent Cicero’s attempt at restoring

Milo’s image so that Milo could return from exile. Although, in contrast to other scholars’

assertions, such a theory may appear far-fetched to some, consider the fact that Milo and Pompey

did the exact same thing successfully for Cicero when they won his recall (Plut. Cic. 33, Cic.

81 Clark, ad Iudices Oratio, 88, n. 2, points out that the festivals in Etruria honored Milo as governor, and would have been called Annia or Miloniana. 82 Or the one hundred and second day, according to Clark’s reading, see Clark, ad Iudices Oratio, 88, n. 3; Clark further observes in this comment that Cicero used the term opinor when addressing artistic, scientific, geographic, or chronological minutiae.

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Mil. 68, Asc. Mil. 26).83 In light of both the precedent and the indebtedness that resulted from

Milo’s efforts for Cicero, it is reasonable to assert that Cicero might have been exercising the

same effort toward similar ends. The examples from Cicero’s letter, his speech pro Sestio, and

his published defense of Milo cumulatively support this assertion. The publication of the speech

might have been the first step in resuscitating Milo’s image so that the Senate might support

Milo’s return. Or, through his justification of violence, Cicero might have sought to inspire Milo

to return to Rome on his own terms.

Events in the years following Milo’s trial and exile provide leads for considering when

Cicero may have published his revised speech to encourage Milo to return. Apparently, after

Caesar had defeated Pompey, there was speculation in 49 BC concerning the recall of those

exiled under Pompey (Cic. Att. 10.4.8).84 Perhaps Cicero saw this as a window of opportunity

for Milo to come back into the political landscape (after all, Caesar had marched on Rome).

Milo, however, was not recalled; Caesar later defeated him and his friend, Marcus Caelius Rufus,

during the continuing civil war (Caes. B. Civ. 3.22).85 At some point before his defeat, if Cassius

Dio should be believed, Milo received a copy of the published speech while in exile (Cass. Dio

40.54). Perhaps sometime after Caesar failed to recall Milo and before Milo returned violently

from exile, Cicero published the speech and sent Milo a copy.

While, on first reading, Milo’s return and defeat might appear to be minor details in the

greater civil strife in Rome at this time, such a reading does not diminish the possibility that

Cicero could have hoped that Milo, after receiving the published speech, would return and take

part in maintaining the Republic. Moreover, whether inspired by Cicero’s revised speech or not,

83 Lintott, “Cicero and Milo,” 63. 84 Marcus Tullius Cicero, Epistulae ad Atticum, vol. 2, ed. D.R. Shackleton (Stuttgart: B.G. Tuebner, 1987). 85 Clark, ad Iudices Oratio, xxxi. Julius Caesar places this event before the ultimate defeat of Pompey in “de Bello Civili: Liber Tertius.” Clark refers to another work that apparently resolves this discrepancy in the time and place of Milo’s defeat at xxxi, n. 3.

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Milo took up arms and attempted to do just that (Caes. B. Civ. 3.22). Perhaps Cicero’s heroic

portrait in the published pro Milone motivated Milo to try and use justifiable force to rid Rome

of yet another monster, once aligned with Clodius, his nemesis Caesar. Like Cicero’s efforts in

the original speech, however, Milo’s efforts failed.

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CHAPTER 6

CONCLUSION

According to Cassius Dio, upon receipt of the published version of pro Milone, Milo

jokingly responded that he was fortunate Cicero had not delivered the published speech at trial;

otherwise, without his exile, he would not have been able to enjoy the tasty mullets of Massilia

(Cass. Dio 40.54). Whether or not this report is anything more than a running joke concerning

how Cicero’s polished publication did not reflect his performance at trial is uncertain.

Regardless of Cassius Dio’s view, Cicero’s published pro Milone along with Asconius’ account

of the events surrounding Milo’s trial remain a thorough, intriguing record of a Roman criminal

trial, involving one of Rome’s most brazen street fighters defended by its most famous advocate.

This thesis has closely examined the crime Milo committed, the criminal procedure of Milo’s

trial, Cicero’s use of topography in his published speech, and the themes Cicero included therein.

As observed in Chapter Two and concluded in Chapter Five, the relationship between

Cicero and Milo was genuinely positive. Though one might not want to bring Cicero down to

the same level as Milo, in Cicero’s own letters and speeches, he raises Milo to a position higher

than that of a mere thug. As Chapter Two pointed out, Milo and Cicero had long been friends

prior to his trial. This friendship was greatly augmented by their common enmity toward

Clodius.

Chapter Two also demonstrated that, although the odds were stacked against Cicero,

there was room for fact-finding by the iudices regarding the events on the Via Appia.

Admittedly, Asconius’ account appears more trustworthy than Cicero’s biased defense. Aside

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from the trustworthiness of each side’s account (assuming that the prosecution presented facts

similar to those set forth by Asconius), the advantage that Milo’s prosecutors enjoyed was the

plethora of witnesses they produced. Thus, regardless of the truth of the facts presented, the

prosecutors were able to present a preponderance of witnesses, whereas Milo had freed all of his

favorable witnesses so that they could not be forced to testify, correctly or incorrectly, against

him. In summary, this chapter reminded readers that, although Asconius’ account of the events

is generally perceived as the most reliable, the iudices were required to weigh the facts for and

against Milo as they were presented and reach a verdict, which, indeed, was not unanimous.

This observation led to Chapter Three, in which the procedure for the trial was addressed.

While this chapter was not a broad comparative study of Roman criminal procedure, it should

assist others in understanding what Asconius and Cassius Dio assessed rather tersely. It will also

help clarify the complex debate over procedural posturing in Milo’s trial, which is a large part of

legal practice. Although in antiquity—and in modern times—the popular understanding of law

apparently focuses on the trial itself and its audience, there are many legal maneuvers prior to

trial that frame the issues to be contested before the jurors. In addition to providing a better

understanding of the unique procedure for this trial under Pompey’s new law, Chapter Three

pointed out how the ancient Roman trial was conducted much more politically than most modern

criminal trials and resembled something more like presidential impeachment proceedings.

Finally, this chapter provided insight into the political fragility of the Late Republic and

recognized, through the example of Pompey’s forced legislation, how charismatic, militaristic

executives could utilize this instability to coerce the legislative and judicial bodies.

Chapter Four recreated an image of Cicero (as Cicero imagined himself) wrestling

rhetorically with his topographic surroundings, and successfully turning them to Milo’s

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advantage. Through what limited information is available about the buildings in the Late

Republican Forum, Chapter Four also reconstructed the setting of Milo’s trial and illustrated how

both Cicero and Pompey attempted to utilize the topography to their own ends. Ultimately, this

Chapter provided a glimpse of the trial’s magnitude by considering the topographic features,

Pompey’s security forces, and the size of the crowds present at the event.

Finally, Chapter Five evaluated the probable distinctions between the speech Cicero

delivered and the speech Cicero published. Although there are most likely substantive

differences between what Cicero said at trial and what he wrote in his publication, they were

probably not as radical as Plutarch and Cassius Dio—and, as the result, modern scholars—

purport. Further, along with other purposes asserted by other scholars, which include Cicero’s

celebration of later legal victories, his criticism of Pompey, and his consolation to Milo, Chapter

Five also tendered evidence supporting another objective of Cicero’s publication. Through his

philosophical and rhetorical treatment of Milo’s character in the published speech, Cicero might

very well have sought to bring Milo back from exile, as Milo and Pompey did for Cicero, either

as a resurrected political player, or as an avenger for the wounded Republic.

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