Legal Strategies When You Can’t Deny Or Defend

Quintilian, Orator’s Education, 5.13 7-9

“Hence, what cannot be denied or put off must eventually be defended, whatever kind of case it is, or else just surrendered. We have demonstrated that there are two types of denial: either to say “this was not done” or to claim “what was done was not this.” Issues that cannot be defended or avoided must ultimately be denied and not only if there is some “redefinition” which might come to our aid, but also if there is nothing else but simple denial.

If there are witnesses, it is permitted to say much against them. If there is written proof, we can discredit the authenticity of the letter. Whatever the matter, there is nothing worse than a confession. The final option, when there is no room for defending or denying, is attacking the legality of the proceeding.”

Ergo quae neque negari neque transferri possunt utique defendenda sunt, qualiacumque sunt, aut causa cedendum. Negandi duplicem ostendimus formam, aut non esse factum aut non hoc esse quod factum sit. Quae neque defendi neque transferri possunt, utique neganda, nec solum si finitio potest esse pro nobis, sed etiam si nuda infitiatio superest. Testes erunt: multa in eos dicere licet; chirographum: de similitudine litterarum disserendum. Utique nihil erit peius quam confessio. Ultima est actionis controversia, cum defendendi negandive non est locus

Emotions in the Courtroom

nitial N: King James I of Aragon Overseeing a Court of Law, unknown illuminator c. 1290 – 1310. Courtesy of Getty Images

Athens: Sometimes You Want to Go Where Nobody Knows Your Name

Valerius Maximus, 8 ext 5: Democritus Unknown in Athens

“Democritus could have been esteemed for his wealth which was so immense that his father was able to provide a feast to all of Xerxes’ army with ease. In order that he might focus a free mind on the study of literature, he donated his wealth to his country keeping only a very small part for himself.

Even though he stayed in Athens for many years and dedicated himself to gathering and using knowledge, he lived unknown in the city, which he attests too in a certain book. My mind is awestruck with admiration of such a work ethic. And now it moves to something else.”

Democritus, cum divitiis censeri posset, quae tantae fuerunt ut pater eius Xerxis exercitui epulum dare ex facili potuerit, quo magis vacuo animo studiis litterarum esset operatus, parva admodum summa retenta patrimonium suum patriae donavit. Athenis autem compluribus annis moratus, omnia temporum momenta ad percipiendam et exercendam doctrinam conferens, ignotus illi urbi vixit, quod ipse quodam volumine testatur. stupet mens admiratione tantae industriae et iam transit alio.

Image result for Democritus in  Athens

Roman Britain: Maybe Not Worth the Trouble?

In honor of the World Cup Semi-final Match today between the former Roman Provinces of Britannia and Dalmatia, we wrote a slightly farcical post for the SCS blog. Here are some passages that did not make it into the post.

Appian Roman History Preface, 5

“When you cross the Northern ocean you come to the island of Britain which is bigger than a continent [The Romans] possess the greatest half of it and aren’t really missing the rest. For even the part they do hold doesn’t bring them a good profit.”

καὶ τὸν βόρειον ὠκεανὸν ἐς τὴν Βρεττανίδα νῆσον περάσαντες, ἠπείρου μεγάλης μείζονα, τὸ κράτιστον αὐτῆς ἔχουσιν ὑπὲρ ἥμισυ, οὐδὲν τῆς ἄλλης δεόμενοι· οὐ γὰρ εὔφορος αὐτοῖς ἐστὶν οὐδ᾿ ἣν ἔχουσιν.

Suetonius, Divus Julius 47

 

“They say that [Julius Caesar] attacked Britain because of a hope for pearls and that in comparing their mass he used to check their weight with his own hand. For he was extremely eager to collect gems, carvings, statues, and images by ancient artists. He was also fond of rather good looking slaves with better training for a huge price—this also caused him enough shame that he did not allow them to be entered into his expenditures.”

 

XLVII. Britanniam petisse spe margaritarum, quarum amplitudinem conferentem interdum sua manu exegisse pondus; gemmas, toreumata, signa, tabulas operis antiqui semper animosissime comparasse; servitia rectiora politioraque inmenso pretio, et cuius ipsum etiam puderet, sic ut rationibus vetaret inferri.

 

Tacitus, Agricola, 13

 

“The people of Britain themselves respond eagerly to drafts, tributes, and obligations set by the government, if abuses are absent. They endure these poorly since, although they are conquered enough to obey, they are not yet slaves [to us].  

As a matter of fact, the divine Julius of all the Romans first attacked Britain with an army, and, although he terrified the inhabitants with a hasty battle and was master of the coast, he seems to have exposed Britain for his successors rather than handed it down. The Civil Wars followed soon after and while the arms of Rome’s first men were turned against the state, there was a prolonged forgetfulness of Britain, which the divine Augustus used to call a “plan” and Tiberius called a “precedent”.

 

13. Ipsi Britanni dilectum ac tributa et iniuncta imperii munera impigre obeunt, si iniuriae absint: has aegre tolerant, iam domiti ut pareant, nondum ut serviant. igitur primus omnium Romanorum divus Iulius cum exercitu Britanniam ingressus, quamquam prospera pugna terruerit incolas ac litore potitus sit, potest videri ostendisse posteris, non tradidisse; mox bella civilia et in rem publicam versa principum arma, ac longa oblivio Britanniae etiam in pace: consilium id divus Augustus vocabat, Tiberius praeceptum.

 

Some words;

σφαιριστής: “ball-player”

σφαιριστικός: “skilled at ball-playing”

σφαιρομαχία: “ball-match”

σφαιροπαίκτης: “ball-player”

Roman Dalmatia: Where Generals Go to Play

In honor of the World Cup Semi-final Match today between the former Roman Provinces of Britannia and Dalmatia, we wrote a slightly farcical post for the SCS blog. Here are some passages that did not make it into the post.

Vatinius to Cicero, Letters 5.10c c. November 45 CE

Caesar is hurting my feelings right now. He has not yet introduced anything about my Supplications and my Dalmatian victories, as if I had not actually accomplished deeds worthy of the best Triumph! Must this not be expected until I complete the whole campaign? Dalmatia has twenty ancient towns and in addition there are more tan sixty admitted at a later time. If no Supplications are allotted to  me unless the fighting is over, then I am in a very different state that the rest of the generals.

Caesar adhuc mi iniuriam facit. de meis supplicationibus et rebus gestis Dalmaticis adhuc non refert, quasi vero non iustissimi triumphi in Dalmatia res gesserim. nam si hoc exspectandum est, dum totum bellum conficiam, viginti oppida sunt Dalmatiae antiqua, quae ipsi sibi adsciverunt amplius sexaginta. haec nisi omnia expugno si mihi supplicationes non decernuntur, longe alia condicione ego sum ac ceteri imperatores.

Suetonius, Divus Augustus 22

“[Augustus] closed the temple of Janus Quirinius which since the founding of the city had been close only twice, and he did it three times in a shorter period of time once he made peace on the sea and land. He he entered the city in an Ovation twice after the war at Phillippi and again after the Sicilian War. He also held Triumphs for his conquests in Dalmatia, Actium, and Alexandria on three days in a row!”

XXII. Ianum Quirinum semel atque iterum a condita urbe ante memoriam suam clausum in multo breviore temporis spatio terra marique pace parta ter clusit. Bis ovans ingressus est urbem, post Philippense et rursus post Siculum bellum. Curulis triumphos tris egit, Delmaticum, Actiacum, Alexandrinum continuo triduo omnes.

Velleius Paterculus, History of Rome 2.78

“During this Period, [Tiberius] Caesar, in order that the great foe of discipline—leisure—not ruin his army, was trying to keep his army hard through facing danger and experience of war by leading frequent expeditions into Illyricum and Dalmatia.”

Caesar per haec tempora, ne res disciplinae inimicissima, otium, corrumperet militem, crebris in Illyrico Delmatiaque expeditionibus patientia periculorum bellique experientia durabat exercitum

 

 

Some words:

ποδαλγής: “foot-pain”

ποδαρκής: “swift-footed”

ποδοκάκη: “foot plague”

ποδόκοιλον: “hollow of the foot”

ποδοκρουστία: “stomping of feet”

ποδοστράβη: “a snare to catch feet”

ποδοσφαλέω: “to stumble”

ποδόψηστρον: “foot-wiper”

ποδώκης: “swift-footed”

Charlatans With Unjustified Confidence and Unmeasured Words

M. Cornelius Fronto to Marcus Aurelius (c. 139 CE)

“I believe that a lack of experience and learning is completely preferable in all arts to partial experience and incomplete education. For one who knows that he has no experience in an art tries less and fails less thanks to that. In fact, such hesitation limits arrogance. But whenever anyone uses knowing something lightly as expertise he makes many mistakes because of false confidence.

So, people claim that it is better to never taste Philosophy than to sample it lightly, as it is said, with just the lips. Those men turn out to be the most malicious kind, who travel to a discipline’s entrance and turn away rather than going completely inside. It is still possible in other arts that you can play a part for a while and seem experienced in what you do not know. But in how to choose and arrange words, one shines through immediately when he cannot provide any words but those that show his ignorance of them, that he judges them poorly, provides them rashly, and cannot know either their usage or their strength.”

1. Omnium artium, ut ego arbitror, imperitum et indoctum omnino esse praestat quam semiperitum ac semidoctum. Nam qui sibi conscius est artis expertem esse minus adtemptat, eoque minus praecipitat; diffidentia profecto audaciam prohibet. At ubi quis leviter quid cognitum pro comperto | ostentat, falsa fiducia multifariam labitur. Philosophiae quoque disciplinas aiunt satius esse numquam adtigisse quam leviter et primoribus, ut dicitur, labiis delibasse, eosque provenire malitiosissimos, qui in vestibulo artis obversati prius inde averterint quam penetraverint. Tamen est in aliis artibus ubi interdum delitescas et peritus paulisper habeare quod nescias. In verbis vero eligendis conlocandisque ilico dilucet, nec verba dare diu quis1 potest, quin se ipse indicet verborum ignarum esse, eaque male probare et temere existimare et inscie contrectare, neque modum neque pondus verbi internosse.

 

Image result for Head of Mercury Pompeii wall painting

Fresco, Mercury (Pompeii)

 

“Beware the many, if you do not fear the one”

From the Historia Augusta, on the two Maximini, IX

“In order to hide his low birth, he had everyone who knew about it killed—not a few of them were friends who had often given him much because of his pitiable poverty. And there was never a crueler animal on the earth, placing all in his strength as if he could not be killed. Finally, when he believed that he was nearly immortal because of the magnitude of his body and bravery, there was a certain actor whom they report recited some Greek lines when he was present in the theater which had this Latin translation:

Even he who cannot be killed by one is killed by many
The elephant is large and he is killed.
The lion is brave and he is killed
The tiger is brave and he is killed.
Beware the many if you do not fear the one.

And these words were recited while the emperor was there. But when he asked his friends what the little clown had said, they claimed he was singing some old lines written against mean men. And, since he was Thracian and barbarian, believed this.”

IX. nam ignobilitatis tegendae causa omnes conscios generis sui interemit, nonnullos etiam amicos, qui ei saepe misericordiae paupertatis causa pleraque donaverant. neque enim fuit crudelius animal in terris, omnia sic in viribus suis ponens quasi non posset occidi. denique cum immortalem se prope crederet ob magnitudinem corporis virtutisque, mimus quidam in theatro praesente illo dicitur versus Graecos dixisse, quorum haec erat Latina sententia:

“Et qui ab uno non potest occidi, a multis occiditur.

elephans grandis est et occiditur,
leo fortis est et occiditur,
tigris fortis est et occiditur;
cave multos, si singulos non times.”

et haec imperatore ipso praesente iam dicta sunt. sed cum interrogaret amicos, quid mimicus scurra dixisset, dictum est ei quod antiquos versus cantaret contra homines asperos scriptos; et ille, ut erat Thrax et barbarus, credidit.

 

Image result for maximinus thrax

I am big. Really big. Everyone is saying that, not me. I mean, look how big I am.

A Failure of Education: Commodus’ Cruelty

From the Historia Augusta on Commodus, 1

“Therefore, when his brother had passed, Marcus tried to educate Commodus with his own writings and those of famous and prominent men. As teachers he had Onesicrates for Greek literature, Antistius Capella for Latin and Ateius Sanctus for rhetoric.

But teachers of so many disciplines were useless in his case—such was the power of his native character or of those who were kept as instructors in the palace. For from his early childhood, Commodus was nasty, dishonest, cruel, desirous, foul-mouthed, and corrupted. For he was already a craftsman in those things which were not proper to the imperial class, such as making chalices, dancing, singing, whistling, playing a fool, and acting the perfect gladiator.

When he was twelve years old, he provided an omen of his cruelty at Centumcellae. For, when his bath was accidentally too cool, he ordered that the bath-slave be thrown into the furnace. Then, the slave who was ordered this, burned a sheep’s skin into the furnace, so that he might convince the punishment was performed through the foulness of the smell.”

mortuo igitur fratre Commodum Marcus et suis praeceptis et magnorum atque optimorum virorum erudire conatus est. habuit litteratorem Graecum Onesicratem, Latinum Capellam Antistium; orator ei Ateius Sanctus fuit.

Sed tot disciplinarum magistri nihil ei profuerunt. tantum valet aut ingenii vis aut eorum qui in aula institutores habentur. nam a prima statim pueritia turpis, improbus, crudelis, libidinosus, ore quoque pollutus et constupratus fuit. iam in his artifex, quae stationis imperatoriae non erant, ut calices fingeret, saltaret, cantaret, sibilaret, scurram denique et gladiatorem perfectum ostenderet. auspicium crudelitatis apud Centumcellas dedit anno aetatis duodecimo. nam cum tepidius forte lautus esset, balneatorem in fornacem conici iussit; quando a paedagogo, cui hoc iussum fuerat, vervecina pellis in fornace consumpta est, ut fidem poenae de foetore nidoris impleret.

 

Image result for Commodus

Retreat or Resist? Seneca and Plutarch Disagree on Peace of Mind

How do we maintain equanimity in the midst of chaos? It is probably not at all coincidental that I keep turning to authors from the Roman Imperial period for answers….

Seneca, Moral Epistle 94.68-69

“Don’t believe it is possible for anyone to be happy because of someone else’s unhappiness. The these examples placed before our ears and ears, must be taken apart—we have to empty our hearts of the corrupting tales that fill them. Virtue must be introduced into the place they held—a virtue which can uproot these lies and contrafactual ideologies; a virtue which may separate us from the people whom we have trusted too much, to return us to sane beliefs. This is wisdom, truly: to be returned to a prior state and to that place from where public sickness dislodged us. A great part of health is to have rejected the champions of madness and to have abandoned that union which was destructive for everyone involved.”

Non est quod credas quemquam fieri aliena infelicitate felicem. Omnia ista exempla, quae oculis atque auribus nostris ingeruntur, retexenda sunt et plenum malis sermonibus pectus exhauriendum. Inducenda in occupatum locum virtus, quae mendacia et contra verum placentia exstirpet, quae nos a populo, cui nimis credimus, separet ac sinceris opinionibus reddat. Hoc est enim sapientia, in naturam converti et eo restitui,unde publicus error expulerit. Magna pars sanitatis est hortatores insaniae reliquisse et ex isto coitu invicem noxio procul abisse.

Seneca seems to be unfamiliar with schadenfreude (probably because it was a Greek word). Or, perhaps he refuses to acknowledge it as real tranquility. Plutarch may have agreed that Seneca’s prescription was good for attaining ataraxia, but Plutarch does not see it as a efficacious for mental health. 

Plutarch, On the Tranquility of the Mind 465c-d

“The one who said that “it is necessary that someone who would be tranquil avoid doing much both in private and public” makes tranquility extremely pricey for us since its price is doing nothing. This would be like advising a sick man “Wretch, stay unmoving in your sheets” [Eur. Orestes 258.].

And certainly, depriving the body of experience is bad medicine for mental illness. The doctor of the mind is no better who would relieve it of trouble and pain through laziness, softness and the betrayal of friends, relatives and country. Therefore, it is also a lie that tranquility comes to those who don’t do much. For it would be necessary for women to be more tranquil than men since they do most everything at home….”

Ὁ μὲν οὖν εἰπὼν ὅτι “δεῖ τὸν εὐθυμεῖσθαι μέλλοντα μὴ πολλὰ πρήσσειν μήτε ἰδίῃ μήτε ξυνῇ,” πρῶτον μὲν ἡμῖν πολυτελῆ τὴν εὐθυμίαν καθίστησι, γινομένην ὤνιον ἀπραξίας· οἷον ἀρρώστῳ παραινῶν ἑκάστῳ
μέν᾿, ὦ ταλαίπωρ᾿, ἀτρέμα σοῖς ἐν δεμνίοις.
καίτοι κακὸν μὲν ἀναισθησία σώματος φάρμακον ἀπονοίας· οὐδὲν δὲ βελτίων ψυχῆς ἰατρὸς ὁ ῥᾳθυμίᾳ καὶ μαλακίᾳ καὶ προδοσίᾳ φίλων καὶ οἰκείων καὶ πατρίδος ἐξαιρῶν τὸ ταραχῶδες αὐτῆς καὶ λυπηρόν.
Ἔπειτα καὶ ψεῦδός ἐστι τὸ εὐθυμεῖν τοὺς μὴ πολλὰ πράσσοντας. ἔδει γὰρ εὐθυμοτέρας εἶναι γυναῖκας ἀνδρῶν οἰκουρίᾳ τὰ πολλὰ συνούσας·

Image result for Ancient Greek insanity

Polemon The Sophist Was Rather Impolite (Philostratus, Lives of the Sophists 535)

“Once when an actor of tragedy from the Olympian games in Asia presided over by Polemon, promised to sue him because he had kicked him out at the beginning of his play, the Emperor [Marcus Aurelius] asked the actor what time it was when this happed. When the actor said that it occurred around midday, the Emperor responded wittily: “Well he kicked me out of his house in the middle of the night and I didn’t sue him.”

Let these details be a clear sign of both a mild emperor and an arrogant man. Polemon was so conceited that he talked to cities as if they were beneath him, to rulers as if they were not above him and to gods as if an equal.

When he gave a performance of improvised speeches to the Athenians upon his first visit to the city, he did not deign to offer praise for the city even though there are many things which one might say on Athens’ behalf. Nor did he expatiate on his own fame, even though this approach often benefitted sophists in their performances. No, because he knew well that it was natural for Athenians to need to be restrained rather than be encouraged, he spoke as follows: “They say that you, Athenians, are wise audiences of speeches. I will test this.”

And when a man, who ruled the Bosporus and was outfitted with all types of Greek learning, came to Smyrna to learn about Ionia, Polemon not only failed to take his place among the attendants, but he put the man off frequently even when he requested an audience until he forced the lord to come to his own house carrying a payment of ten talents.

When he arrived in Pergamon, because he was sick in his joints, he convalesced in a temple. When Asclepius appeared to him and advised him to refrain from cold drinks, Polemon said, “Dear man, what if you were tending to a cow?”

ὑποκριτοῦ δὲ τραγῳδίας ἀπὸ τῶν κατὰ τὴν ᾿Ασίαν ᾿Ολυμπίων, οἷς ἐπεστάτει ὁ Πολέμων, ἐφιέναι φήσαντος, ἐξελαθῆναι γὰρ παρ’ αὐτοῦ κατ’ ἀρχὰς τοῦ δράματος, ἤρετο ὁ αὐτοκράτωρ τὸν ὑποκριτήν, πηνίκα εἴη, ὅτε τῆς σκηνῆς ἠλάθη, τοῦ δὲ εἰπόντος, ὡς μεσημβρία τυγχάνοι οὖσα, μάλα ἀστείως ὁ αὐτοκράτωρ „ἐμὲ δὲ” εἶπεν „ἀμφὶ μέσας νύκτας ἐξήλασε τῆς οἰκίας, καὶ οὐκ ἐφῆκα.”

᾿Εχέτω μοι [καὶ] ταῦτα δήλωσιν βασιλέως τε πρᾴου καὶ ἀνδρὸς ὑπέρφρονος. ὑπέρφρων γὰρ δὴ οὕτω τι ὁ Πολέμων, ὡς πόλεσι μὲν ἀπὸ τοῦ προὔχοντος, δυνασταῖς δὲ ἀπὸ τοῦ μὴ ὑφειμένου, θεοῖς δὲ ἀπὸ τοῦ ἴσου διαλέγεσθαι. ᾿Αθηναίοις μὲν γὰρ ἐπιδεικνύμενος αὐτοσχεδίους λόγους, ὅτε καὶ πρῶτον ᾿Αθήναζε ἀφίκετο, οὐκ ἐς ἐγκώμια κατέστησεν ἑαυτὸν τοῦ ἄστεος, τοσούτων ὄντων, ἅ τις ὑπὲρ ᾿Αθηναίων ἂν εἴποι, οὐδ’ ὑπὲρ τῆς ἑαυτοῦ δόξης ἐμακρηγόρησε, καίτοι καὶ τῆς τοιᾶσδε ἰδέας ὠφελούσης τοὺς σοφιστὰς ἐν ταῖς ἐπιδείξεσιν, ἀλλ’ εὖ γιγνώσκων, ὅτι τὰς ᾿Αθηναίων φύσεις ἐπικόπτειν χρὴ μᾶλλον ἢ ἐπαίρειν διελέχθη ὧδε· „φασὶν ὑμᾶς, ὦ ᾿Αθηναῖοι, σοφοὺς εἶναι ἀκροατὰς λόγων· εἴσομαι.” ἀνδρὸς δέ, ὃς ἦρχε μὲν Βοσπόρου, πᾶσαν δὲ ῾Ελληνικὴν παίδευσιν ἥρμοστο, καθ’ ἱστορίαν τῆς ᾿Ιωνίας ἐς τὴν Σμύρναν ἥκοντος οὐ μόνον οὐκ ἔταξεν ἑαυτὸν ἐν τοῖς θεραπεύουσιν, ἀλλὰ καὶ δεομένου ξυνεῖναί οἱ θαμὰ ἀνεβάλλετο, ἕως ἠνάγκασε τὸν βασιλέα ἐπὶ θύρας ἀφικέσθαι ἀπάγοντα μισθοῦ δέκα τάλαντα. ἥκων δὲ ἐς τὸ Πέργαμον, ὅτε δὴ τὰ ἄρθρα ἐνόσει, κατέδαρθε μὲν ἐν τῷ ἱερῷ, ἐπιστάντος δὲ αὐτῷ τοῦ ᾿Ασκληπιοῦ καὶ προειπόντος ἀπέχεσθαι ψυχροῦ ποτοῦ ὁ Πολέμων „βέλτιστε,” εἶπεν „εἰ δὲ βοῦν ἐθεράπευες;”

I must confess that I couldn’t convey Polemo’s nastiness to the Athenians well enough in the translation. In addition, I really don’t know what is going on with his comments to Asclepius.

He Did Not Finish His Father’s Projects! Commodus’ Sudden and Unfruitful End

Historia Augusta: Commodus Antoninus 17.1-8

“Compelled by these things, but still too late, the prefect of the guard, Quintus Aemilius Laetus, and his concubine, Marcia initiated a conspiracy for killing [Commodus]. First, they poisoned him. When this did not work out, they had him strangled to death by an athlete he used to exercise with.

Commodus had a decent body with a vacant expression, as is often the case for drunkards. His speech was not sophisticated, his hair was always dyed and shining thanks to gold dust—and thanks to a fear of the barber, he used to shorten his hair by singeing it.

The senate and the people requested that his body be dragged by hook and then put into the Tiber. But, later, thanks to the command of Pertinax, it was installed in Hadrian’s Mausoleum.

No public buildings remain from his time apart from the bath which Cleander built in his name. And the senate erased the name he had inscribed on the works of others. He did not even complete his father’s projects.”

His incitati, licet nimis sero, Quintus Aemilius Laetus praef.et Marcia concubina eius inierunt coniurationem ad occidendum eum. 2 Primumque ei venenum dederunt; quod cum minus operaretur, per athletam, cum quo exerceri solebat, eum strangularunt. 3 Fuit forma quidem corporis iusta, vultu insubido, ut ebriosi solent, et sermone incondito, capillo semper fucato et auri ramentis inluminato, adurens comam et barbam timore tonsoris. 4 Corpus eius ut unco traheretur atque in Tiberim mitteretur, senatus et populus postulavit, sed postea iussu Pertinacis in monumentum Hadriani translatum est. 5 Opera eius praeter Iavacrum, quod Cleander nomine ipsius fecerat, nulla exstant. 6 Sed nomen eius alienis operibus incisum senatus erasit. 7 Nec patris autem sui opera perfecit.

Commodus, the son of Marcus Aurelius and inspiration for the mad emperor in Gladiator, was actually a roman emperor who reigned from 180-191 CE.

Here’s a statue made during his lifetime depicting him as Herakles:

Commodus

%d bloggers like this: