CH. IV.] QUESTIONS OF LAW AND FACT. 103 not forget the difference between the tribunals in the two countries. The Roman judices were, as we have seen, much more like jurymen than judges, and therefore liable to be imposed upon by fallacies, which, if addressed to an English court, would render the counsel who propounded them merely ridiculous. The neglect of the distinction between the functions of the judge and those of the jury, was a capital defect in the ancient forms of legal procedure. The maxim of the English law, that ad quæstiones juris respondent judices, ad quæstiones facti juratores, was unknown to the tribunals of Greece and Rome; and yet it is hardly possible to overrate the advantages that arise from the recognition of this principle. Questions of law and fact are widely different in their nature, and their solution depends upon very different processes of reasoning. To determine the former requires merely natural intelligence and impartiality of judgment; but the latter demand a peculiar kind of knowledge which can only be acquired by previous reading. It may, however, be asserted, that it would be much more safe to allow a man whose mind has been trained and disciplined by legal studies, to determine matters of fact as well as law, than to entrust the latter to the verdict of a jury. The tendency of such a tribunal is to warp the law, and make it bend to what are conceived to be the merits and equity of a case. But the consequence of this must be an uncertain and varying system of decisions, which would confound all legal landmarks, and render it impossible to predicate beforehand what are the rights and liabilities of parties. Hoc enim si fieret, says Bacon, judex prorsus transiret in legislatorem, atque omnia ex arbitrio fluerent.1 1 De Augment. Scient. Aphor. 44. No such mischief can arise from perverse verdicts when they are confined to their proper sphere — the investigation of disputed facts. For although they may be erroneous and unjust, they do not furnish precedents for subsequent conclusions, and for this reason,—that no two cases are exactly alike in their circumstances; and therefore the decision arrived at in the one affords no guide to that which ought to be come to in the other. When we have connected together all the links of a chain of evidence, which lead to the result that we must pronounce A guilty of the crime of murder; this by no means assists us in determining whether B under different, or even under similar circumstances at another period, has been guilty of a similar crime. It would be a logical absurdity to suppose that contingent and empirical facts can depend upon fixed principles; and it is necessary, as each problem is presented to us for inquiry, to examine it upon its own independent evidence, without reference to what may be supposed to be analogous instances. But even in those cases where it was right to work upon the feelings, and invoke the sympathies of the tribunal they addressed, the Roman advocates availed themselves of expedients which would be condemned by our cold notions of correct propriety. The warm sun of the South quickened the sensibilities of both the speaker and his audience, to a degree that enabled him to venture upon the boldest and most startling appeals, without doing violence to decorum.' The Romans Climate is not without its effect upon the gravity of courts of justice. An amusing instance is mentioned in Ford's Hand-book of Spain. The jealous Toledo clergy wished to put down the Bolero (a favourite Spanish dance) on the pretence of immorality. The dancers were allowed, in their defence, to exhibit a specimen to the Court, When they began, the bench and the bar showed symptoms of restlessness, and, at last, CH. IV.] THE POETRY OF ACTION. 105 loved the poetry of action, and the strongest figures of rhetoric were often inadequate to express the intensity of their emotions. Some of the great events of their history are impressed with this character, and thereby invested with a kind of dramatic effect. Thus when Brutus wished to overthrow a dynasty, he bore the bleeding body of Lucretia to the forum, for he knew that the sad spectacle would more effectually rouse his countrymen to revolt, than all the burning eloquence of the tongue. And when, not long afterwards, the Com→ mons were bowed down to the dust beneath the load of debts which they owed to their patrician creditors, an old man, who had just escaped from prison into which his creditor had thrown him, in squalid rags, pale and famishing, with haggard beard and hair, appeared suddenly in the streets of Rome, and cried in agony to the citizens for help. A crowd collected round him; he showed them the bloody marks of his inhuman treatment; he told them that he had fought in eight-and-twenty battles; that his house and farmyard had been plundered and burnt by the enemy; he had been forced to borrow; usurious interest had increased the debt to many times its original amount; this he could not pay, and his creditor had, as the law allowed, seized him and his two sons, and put them in chains. The people recognized the features of a brave veteran; compassion and indignation caused an uproar through the city, and the excitement thus occasioned did not finally subside, until in the following year casting aside gowns and briefs, they joined, as if tarantula-bitten, in the irresistible capering. Verdict for the defendants, with costs. This reminds us of Moore's episcopal quadrille : Bishops to bishops, vis-à-vis, the secession of the Commons to the Sacred Hill, gained for them the relief which they had so long sought in vain. The bonds of the insolvent debtors were cancelled, and those who had become the slaves of their creditors were restored to freedom.1 Thus, too, Manlius, when impeached before the people, pointed to the Capitol which he had saved, and was with loud acclamations acquitted. I know not whether we ought to add, as another instance, the memorable deed of Virginius, who plunged a dagger into his daughter's heart, when Appius Claudius had adjudged her as a slave to one of his fawning clients, the perjured minister of his lust; for this was the only mode by which the father could save the maiden from dishonour. But the necessity for such a dreadful act excited the Commons to insurrection, and freed them for ever from the tyranny of the Decemvirs. And when Antony wished to excite the feelings of the Roman multitude to the highest pitch of horror and indignation against the murderers of Cæsar, he lifted up the bloody toga, as the body lay upon its bier in the Campus Martius, and pointed to the rents made in it by the daggers of the assassins.2 Who does not remember the passage in Shakspear, where the poet, with that intuitive knowledge which enabled him to live in past ages as though they were his own, has seized upon this historical incident, and embalmed it in his own immortal verse? You all do know this mantle: I remember The first time ever Cæsar put it on; 'Twas on a summer's evening in his tent; That day he overcame the Nervii : Niebuhr, i. 529. 540. 2 Quint. vi. 1. CH. IV.] DRAMATIC SCENES IN COURT. Look! in this place ran Cassius' dagger through; Mark how the blood of Cæsar followed it. 107 In like manner the advocates at Rome gave effect to their appeals by producing, on fit occasions, the living image of a client's misery, and his claims upon the compassion of the courts. Thus, when Antony was defending, against the charge of pecuniary corruption, Aquilius, who had successfully conducted the campaign in Sicily against the fugitive slaves, and was unable to disprove or refute the charge,—in the midst of his harangue, after appealing in impassioned tones to the services rendered to his country by the brave soldier who stood by his side, he suddenly unloosed the folds of his client's robe, and showed to his fellow-citizens, who sat upon his trial, the scars of the wounds which had been received in their behalf. They could not resist the effect of such a sight, and Aquilius was acquitted. A similar instance is recorded of Hyperides at Athens, who, when Phryne was accused of some act of sacrilege, bared the bosom of the culprit, and bade the judges remember that she was The artifice succeeded, and Phryne was pronounced not guilty. Thus, too, when Galba was impeached before the people for an act of base treachery towards the Lusitanians, and Cato had delivered against him one of his terrible harangues, feeling that the danger of conviction was imminent, he snatched into his arms the son of Sulpicius Gallus his relative, then recently dead, whose memory was endeared to his countrymen, and holding him before the assembled multitude, commended his own two sons to their pro a woman. 1 1 Cic. de Orat. ii. 28. Quint ii. 15. |