DR. THOMPSON'S ADDRESS1

I am admonished, by the number of papers listed for this session of the Classical Association, to be brief. But I must not fail to point out the felicity of your assembling here at this time. The principles suggested by your name never and nowhere called more loudly for affirmation and illustration than here and to-day. I may say that you have met to sell the ground on which Hannibal is encamping, and to see that it sells for its full value in the land-market.

We are living in a time which threatens to banish the word 'liberal' from the vocabulary of education, and to stamp the dollar-mark on everything in School and College. I think I see, in this, one phase of the Socialist tendency to reduce the problems of society to the supply of food, clothing and lodging for the multitudes. Instead of meaning training for a larger humanity, a braver outlook toward the future, and a more joyful entrance upon our great heritage from the past, education, in Governor Russell's phrase, is to be preparation for earning a living rather than preparation for Life. The formative years are to be spent in acquiring deftness in the practice of some definite trade. Although Mr. Ford has shown how a man taken from the street can be trained to be worth a high wage in less than a year's time, year upon year is to be spent in imparting a similar training. For the sake of this the man is to forfeit the chance to learn his own human possibilities in mental development, and to become as Mr. Lowell puts it-good company to himself.

We decline to accept an education limited to the environment in which a child finds himself, even though that should be made so large as to include the criminal courts and the Zoo. We decline to accept the daily newspaper and its 'current events' as a substitute for the great record called History, in which the heir of all the ages may read the story of the heroic self-sacrifice and the priceless wisdom with which our fathers built up a Christian civilization. We think he should have some acquaintance with such 'useless facts' as Thermopylae and Salamis, Clontarf and Morgarten, Waterloo and Gettysburg, that his

These remarks were delivered, extemporaneously, as an Address of Welcome, at the Tenth Anniversary Meeting of The Classical Association of the Atlantic States, held in the Central High School, Philadelphia, on April 14, 1916. They were afterward reproduced from memory by Dr. Thompson. This version came too late for insertion in Volume 9..

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No. 4

heart may beat quicker at the vision of what does honor to humanity. And we want him awake to the fact that there have been not only Peabodies and Carnegies, Edisons and Fords, but Socrates, Cato, Aelfred, Dante, Saint Louis, Schiller and Hugo. In fine, instead of growing up the ephemeral creature of his little day, his parish or his ward, we want him served heir to all the great memories, and the greater hopes of the future.

In proposing this we are acting upon the cherished and wholesome traditions of this and other Commonwealths, which laid their educational foundations in classical studies. It was indeed the Christian Church and its need of a learned clergy which brought the Classics to this new world, and supported liberal education until its fruits commended it to Commonwealths and to millionaires. As I sat beside the representative of the City of Glasgow in the Moseley Commission, at the public reception in this city, I asked him what British College he supposed to have exercised the greatest influence on the educational development of America. He replied that it must have been Emanuel College, Cambridge, which had trained the Puritan ministry of New England, and had made Harvard and Yale possible. I told him, "No, it was your University of Glasgow, which trained the Ulster ministers, who emigrated to this and the adjacent States. These men planted the Academy beside the Church wherever they found a home in America. In the States from the Delaware to the Mississippi we can trace to their direct or indirect influence the creation of higher Schools, Colleges and Universities; and it was to them that our Friends' Academy and our University of Pennsylvania owed their best teachers".

My attention was called to this by my revered teacher, Dr. George Allen, of our University, himself a native of Vermont and a graduate of its State University. He said, "We Yankees have had far too much credit as the schoolmasters of America. The indebtedness of the central colonies, and of the States which grew out of them, to what we call the ScotchIrish settlers was very great. When I came here as a professor of Latin and Greek, it was with a sort of feeling that I was a foreign missionary on pagan ground. But I soon discovered that there was here a tradition of classical scholarship as vigorous and as sound as New England could show, and that my business was to adapt my teaching to its methods, and perhaps to improve upon them, but not ignore or destroy them".

Out of that immigration into these colonies from my native province the country derived a whole series of schoolmasters of the old sort, who familiarized successive generations with the felicities of Greek and Latin literature, and with that enthusiasm for the classic world which created the modern world of thought and of art. They were stern men, who believed in no royal road to learning, who held that it was good for a youth to apply himself to work which tasked his strength; and, when need was, they gave him bad marks, not on paper, for that was dear, but on his cuticle. Charles Thomson, afterwards Secretary of the Continental Congress, represents the first generation of those Ulster schoolmasters, and my very dear master, Dr. John Wylie Faires, may be said to have closed the succession.

So was it with us in those early decades of scanty resources and rude living, when the fathers of the Republic were struggling with

Rude Nature's thwarting mights,

in the initiation of the great conquest of this continent to human use and service. Shall we renounce their high educational ideals in this time of our prosperity, and turn aside to plans whose finest results can be but a greater accumulation of wealth and diffusion of comfort? If so, we need to heed Dr. Bushnell's warning in his notable discourse, Barbarism the First Danger (1847), against the gravitation of America to the level of the Boer Republics, with a culture limited to the spelling-book and the newspaper.

The penalty for the crime of sodalicium seems to have been interdiction. It certainly involved expulsion from Rome, and apparently for life. This must be regarded as somewhat inferential, but it is shown to be almost a certainty, from two facts. In the first place, the penalty was heavier than that for bribery. This is seen by Cicero's argument that Laterensis chose to prosecute Plancius under the law of Crassus rather than under the law of bribery because the penalty was more severe. The law of Cicero on bribery, which was the law now in force, imposed upon conviction banishment for ten years8%. A heavier penalty must have meant either a longer term of banishment, or banishment for the same length of time, combined with some other punishment. Mommsen at one time thought that the punishment inflicted was banishment for ten years, and that a fine was coupled with it87, 86 Cicero, Mur. 3, 5, 47, 89; Planc. 83; Dio Cassius, 37.29. 87Coll. 70.

but later he came to the conclusion adopted by most scholars, that exile for life was the penalty prescribed 88. Exile is the necessary inference from Cicero's words early in the speech for Plancius89, and the loss of property is included among the things that Plancius would endure if convicted. But this should not be interpreted to mean that a fine would be inflicted, but rather that confiscation would follow exile as a matter of course. In the second place, and still more conclusive, are the statements already cited to the effect that the penalty was the same as that for vis. This means only vis publica, somewhat equivalent to the term 'rioting' as used in modern law, for vis privata, or assault and battery, was a private offense. It was against the charge of vis publica that Cicero defended Sulla in 62, and Caelius and Sestius in 56. The penalty for this crime is clearly stated to have been interdiction, which meant banishment for life, with the confiscation of property1.

The law of Crassus was a consular law, and therefore must have been preceded by a senatorial decree on the subject. If we knew the contents of the senatorial decree, or if we knew even the nature of the discussion by the Senate, we could form a more accurate estimate of the terms of the law of Crassus. Unfortunately this is not possible, for, although Cicero often mentions the discussion of the topic by the Senate, he speaks of but two points in the debate, namely, the penalty proposed and the manner in which the jury was to be selected. During the year of this joint consulship, Pompey secured the enactment of a new law on the composition of juries, which was a kind of amendment to the Aurelian law, to the effect that, while juries should continue to be chosen from the three orders in accordance with the practice since the year 70, the panel for each case should be formed according to census rating, and it is very probable that it included a provision that the album should be published with the names of the members of each tribe arranged together, so that a jury could be made up on a partially tribal basis. But the law of Pompey is subsequent to that of Crassus, and some scholars think that the discussion of sodalicia, which took place in the Senate in February, 56, must have preceded any thought on Pompey's part of a reconstruction of the jury lists. However, the whole matter must have been in the air, and it is very unnatural to suppose that the various discussions arose independently of one another, or that the proposals of Pompey and

58Strafrecht, 874; Greenidge, 425, with n. 5. Rein, 716, is in doubt whether the penalty in itself was heavier, or whether the severity consisted merely in the stricter rules of procedure.

698: Tum enim magistratum non gerebat is, qui ceperat, si patres auctores non erant facti; nunc postulatur a vobis, ut eius exitio, qui creatus est, iudicium populi Romani reprehendatis. 9079: agitur Cn. Planci salus, patria, fortunae.

91Cicero, Sulla 89: vita erepta est superiore iudicio, nunc, ne corpus eiciatur, laboramus; ibid. 91: Quid enim erat mali, quod huic spoliato fama, honore, fortunis deesse videretur?; Phil. 1.23: Quid, quod obrogatur legibus Caesaris, quae iubent ei, qui de vi, itemque ei, qui maiestatis damnatus sit, aqua et igni interdici? Compare Sest. 146; Digest 48.6.10.2.

Planc. 36. 37. 39. 41, 44, 45; Ad Q. Fr. 2.3.6.
Zumpt, Criminalrecht, 11.2.352 ff.

those of Crassus, with their somewhat close resemblance, should have arisen without a mutual understanding. So it is now generally assumed that they were all linked together, and that what is known of the senatus consultum of 56, of the judiciary law of Pompey, and of the law of Crassus, may be considered as a related group, which helps to give an idea of the intent of the legislation against the political clubs.

The terms of the law of Crassus, so far as they can be discovered, are the following. An essential feature of it was the prohibition of the formation of organizations. There is no statement made, nor any indication, that the law forbade the continued existence of clubs which were already formed on the objectionable lines that were aimed at in the law, but it did forbid the creation of new ones. And yet there can be little doubt that it forbade the continuance of the old ones, or at least forbade them to use their influence in a political way. It is just possible that the prosecution of Messius was based upon the use of organizations created prior to the enactment of this law. But the important point in this connection is that the organization must be one formed in a tribe. It has been explained already that this was the natural method to pursue, if a person wished to create a machine of any kind. But it is necessary to mention it again, in order to distinguish between the illegal and the legal kinds of political clubs. Laterensis claimed that Plancius had formed a coitio with Plotius, in order that they might combine forces and win the election. Such combinations of two candidates against a third had been known since the very beginning of the Republic95, but there is no intimation that this was regarded as illegal, or wrong in any way. Nor was the mere fact of the existence of a coitio the thing of which Laterensis complained; he complained rather that they had formed their coitio after each had promised support to another candidate. Plotius had first entered into a coitio with Pedius, and Plancius had formed one with Laterensis, but in the end neither of them lived up to his promises, but they themselves made a new conbination". Laterensis thinks that he has sufficient proof of his charge, but he uses it only as evidence that Plancius had a strong organization, and had won tribes which he traded with Plotius by means of bribery. He makes no charge that a coitio in itself was illegal.

A second point in the provisions of the law of Crassus was one forbidding a person to act as sequester, that is to say, one who performed the functions of a sequester in a political club could be prosecuted under this law. Laterensis claimed that Plancius was the sequester of the tribe Teretina". This does not at all imply that the person who formed the organization neces

Planc. 53: 'dubitatis' inquit 'quin coitio facta sit, cum tribus plerasque cum Plotio tulerit Plancius?'

sarily acted also the part of sequester, or even at all commonly did so. In fact, if one had to judge of the activity of Plancius by this passage alone, it would be a natural inference that Plancius was not accused of being responsible for the formation of the club, but of being an active member of one. It does, however, dispose of a statement made by a scholiast, that only candidates for office could be prosecuted for sodalicium 98. That would have been a most unreasonable provision, in view of the fact that even under the bribery law of Calpurnius, and undoubtedly also under the later law of Cicero, the distributors of money could be prosecuted99. The law of Crassus was certainly not more lenient in this respect.

A third feature of the law was the defining of certain acts that would prove the existence of an organization. Cicero taunted Laterensis with having devoted his attention to showing that Plancius was guilty of bribery, and of failing utterly to prove the things against which the law of Crassus was specifically directed. He challenged Laterensis to prove that Plancius had made an enrollment of the members of a tribe, had divided them into decuries, had been sequester, had promised money, or had distributed money100. And he claimed that, unless Laterensis could prove these things, he was not arguing on the law of Crassus at all. Such a statement can mean only that all these acts were forbidden. It has already been shown that the enrollment and division of tribesmen into decuries were probably done by the magister collegii, and that the other three acts were performed by the sequestres and the divisores. And yet there can be no doubt that Plancius was prosecuted as the head of the organization, so that the law must have provided for the prosecution of the head of the organization as being responsible for the acts of his subordinates. In other words, one who procured the criminal acts was held as a principal, and not as an accessory. This conforms to the principles of English and American law on corrupt practices and several other criminal offenses. But further implication contained in the words of Cicero is that, since these acts were criminal in themselves, those who actually performed them were criminally guilty. Thus it follows that the subordinates also could be prosecuted. But this is only inferential from Cicero's statement, for there is no evidence that the prosecution of any subordinate officer in one of the organizations actually occurred. This may be because our information is incomplete, or it may be that the law was in operation for such a

a

nature arose.

But the most striking feature of the law of Crassus was the remarkable method prescribed for the selection of jurors. The law of Aurelius Cotta of 70 B. C. stipulated that jurors were to be composed of the three orders, senators, equites, and tribuni aerarii. Pompey's law, of 55 B. C., did not change this, but prescribed a new system whereby the jurors for each case should be impaneled from the album of that year. In order to make Pompey's regulations effective, it was necessary that the jurors should be listed according to their tribes, a thing which possibly was done under the Aurelian Law. Of course a selection of jurors for a particular case, if made by tribes, must have been restricted to the two classes, equites and tribuni aerarii, for the number of senators in each tribe would not normally be even approximately the same. would undoubtedly frequently happen that there was not a sufficient number of senators in a tribe to form a third part of one jury. There were probably about four hundred senators available for jury duty each year, and it is natural to assume that the same number of equites and tribuni aerarii would be selected, thus making an annual panel of about twelve hundred101. These, if selected tribally, would number about twelve of each class from each tribe.

It

The law of Pompey was passed perhaps a little later in the year than that of Crassus, but it shows what the situation in Rome was with reference to the jury system. One of the signs of the times in criminal procedure was the desire to secure juries that would be more severe, that is, more likely to bring in a verdict of guilty. The tendency toward strictness in this matter had been growing for three quarters of a century. The Acilian Law had permitted the defense to reject one-half the jurors proposed for the hearing of the case. Probably the Servilian Law on extortion allowed the rejection of seventy-five out of a total of one hundred and twenty-five102. But that was altogether too severe upon the defendant, for the reason that the prosecution chose the original total number, and, even after the large number of rejections, a jury might still be composed of those prejudiced against the defense. In the year 59 the tribune Vatinius introduced a different system, whereby the album of jurors was divided into sections, and three of these were chosen by the praetor, or by lot, after which each of the parties to the suit rejected one whole section, leaving the third to try the case103.

But Cicero complains that the law of Crassus was more severe than any of these, for in the case of Plancius

101So Strachan-Davidson, 2.75 ff., agreeing practically with Mommsen and Greenidge.

102 The view of Strachan-Davidson, 2.103 ff., is here adopted in preference to that of Mommsen, Coll. 63 ff. As the topic is only indirectly connected with the present main subject, the evidence is omitted.

103 Cicero, In Vat. 27: et quoniam crebro usurpas legem te de alternis consiliis reiciendis tulisse, This very brief and unsatisfactory statement is interpreted as in the text by Zumpt, Criminalrecht, II .2.291; Strachan-Davidson, 2.110; Mommsen, Strafrecht, 216; etc.

defense of a single member of the jury 104. The method of selection was of such a character that the jury chosen to hear a case might well be called executioners rather than jurors105. Cicero makes this remark while actually pleading a case; so he qualifies it by showing that the jury in that case was not actually inspired by feelings hostile to the defense, although the prosecutor had intended it to be so. The great point of contrast between the law of Crassus and the earlier laws was that the prosecution had the privilege of naming four tribes out of which the jury was to be chosen, and the defense could reject one of these tribes in toto, but must submit to be tried by the jurors of the other three tribes 106. The men of the four tribes nominated (edere) by the prosecution were called editicii iudices, the name given to jurors chosen, or nominated, in a special way107. The jurymen whose names appeared in the annual album iudicum (iudices selecti) were normally divided into decuries, composed of those chosen to hear each type of case during the year. From the names in each decury (iudices delecti) 108 those who were to hear a particular case were chosen. Cicero insists, several times, upon the great difference between iudices delecti and iudices editicii, such as were prescribed by the law of Crassus. The difference consisted in three things. First, the Licinian jury was chosen from four tribes rather than from the whole album. Second, the right of challenge did not exist. Third, the jurors were selected ex omni populo, and not in the ordinary way.

The four tribes selected by the prosecution were to be those in which activity for the defendant, or activity by him, was most noticeable. So Laterensis, in the case of Plancius, chose the Lemonia, the Oufentina, the Clustumina, and the Maecia. Cicero criticizes him sharply for his choice, for it could not be proved that there was any activity whatever for Plancius in the first three of them 109. But there were two tribes which were closely associated with Plancius, and these

104 Planc. 41: an vero nuper clarissimi cives nomen editicii iudicis non tulerunt, cum ex CXXV iudicibus, principibus equestris ordinis, V et LXX reus reiceret, L referret, omniaque potius permiscuerunt, quam ei legi condicionique parerent: nos neque ex delectis iudicibus, sed ex omni populo, neque editos ad reiciendum, sed ab accusatore constitutos iudices ita feremus, ut neminem reiciamus?

105 Planc. 41: non enim, si aut Plancius ita vixit, ut offenderet sciens neminem, aut tu ita errasti, ut eos ederes imprudens, ut nos invito te tamen ad iudices, non ad carnifices veniremus, idcirco ista editio per se non acerba est.

106 Planc. 36: neque enim quicquam aliud in hac lege nisi editicios iudices es secutus; quod genus iudiciorum si est aequum ulla in re nisi in hac tribuaria, non intellego quam ob rem senatus hoc uno in genere tribus edi voluerit ab accusatore neque eandem editionem transtulerit in ceteras causas. Compare Att. 4.15.9.

107Servius ad Verg. Ecl. 3.50: editicius est iudex quem una pars eligit. This definition may be too narrow, but it illustrates the probability of bias or prejudice.

108Strachan-Davidson, 2.109. This seems to fit the evidence better than the explanation of Mommsen, Coll. 65, Strafrecht, 215, that iudices delecti are those who actually tried a particular case, 'left unchallenged by the prosecution'. Compare Cicero, Rosc. Amer. 8, 151; Verr., Act. Pr. 52; Mur. 83; Sull. 92; Vat. 28. Zumpt, Criminalrecht, 11.2.399, agrees with Mommsen.

109Planc. 38: quid Plancio cum Lemonia? quid cum Oufentina? quid cum Clustumina? nam Maeciam, non quae iudicaret, sed quae reiceretur esse voluisti.

should have been chosen 110. Therefore Laterensis broke the spirit of the law, if not its letter, in choosing the other three rather than these111. Plancius rejected the tribe called Maecia, as Laterensis expected. Why this was so cannot be told, but the only reason that can readily be assigned is that it was not friendly to Plancius. It may have been the tribe to which Laterensis belonged, or possibly it had given Plancius a very small vote at the election 112.

The analysis made above of the provisions of the judiciary law of Pompey showed that, on the average, about ten names in each tribe would appear in the album of those of each class available for jury duty during the year. This would make a total of about thirty of each class in the three tribes, or a grand total of ninety. Whether the law of Crassus made provision for the reduction of this number is not stated. Cicero declared that in the case of Plancius he had no opportunity of rejection by challenge. But at the same time he said that in his last case he had challenged five, no doubt meaning five of each order, and they were rejected 113. A scholiast says that the case tried immediately before that of Plancius was the case of Vatinius, and interprets the words of Cicero to mean that in some manner Laterensis had contrived to prevent the defense from exercising the privilege of challenge 114. But it is not clear just what Laterensis did to deprive the defense of the privilege of challenge. Cicero says that in the case of Vatinius the challenge took place only de consilii sententia, that is, the praetor consulted with his consilium, and then allowed the challenge. The most natural inference is that for some reason the number of jurymen available in the three tribes sitting in that trial was unusually large, and a special ruling was made to reduce the jury to the normal size. Of course the defense would seize upon such an opportunity with eagerness, and an attorney might feel disposed to complain, in his next case, that his difficulties were greater now than in the former case. So there seems no reason for assuming that the right of challenge existed, and this accords with the general tendency toward severity in cases arising under the law of Crassus.

In addition to the hardship entailed upon the defendant through the choice of four tribes instead of jurymen

110 Planc. 38: tu autem, Laterensis, quas tribus edidisti? Teretinam, credo. Fuit certe id aequum et certe exspectatum est et fuit dignum constantia tua .At Voltiniam: libet enim tibi nescio quid etiam de illa tribu criminari; 43: Voltinia tribus ab hoc corrupta; Teretinam habuerat venalem.

Planc. 39: dubitatis igitur, iudices, quin vos M. Laterensis suo iudicio, non ad sententiam legis, sed ad suam spem aliquam de civitate delegerit?

from the whole album, and the loss of the former right of challenge, Cicero points to a third hardship. This was that the jury was taken ex omni populo, and not merely ex delectis iudicibus, as in other courts. This can have a meaning only if the delecti iudices, the decury of one court, is contrasted with a larger, possibly different, set of men. But it can hardly be contrasted with the list in the album, for Cicero would have used the phrase ex selectis iudicibus in that case115. Nor can Cicero mean that from the whole list of the citizens of the four tribes the jury was selected at haphazard, for that would be thoroughly repugnant to all the principles of criminal procedure in Rome. The intermediate ground is left, that a list was made of all the citizens in the thirty-five tribes who were eligible for jury duty during that year, that is, those whose census rating was above the minimum required for ranking among the equites. The prosecutor could look over this list, and select four tribes containing the names of those he would choose to have act as jurymen in his case116. Provided the number in these tribes was larger than the average, a process of rejection would follow, as in the case of Vatinius; otherwise there was no opportunity for rejection, which happened to Plancius. Nor is there any reason to suppose that the senators were exempt from special choice, or that a third of the jury was composed of senators, irrespective of the manner of choosing the others. The juries in these cases could rarely be composed of the three classes in equal numbers.

There is no evidence whatever for the statement sometimes made, that the choice of a presiding officer rested with the prosecution, or that the two parties to the suit could choose by mutual agreement any praetor they wished. It has been said that, if the choice rested with Laterensis, he would never have chosen C. Alfius Flavus to preside, for he was friendly to Cicero and Plancius118. But the same reasoning would apply if the presiding officer were to be chosen by both parties, for Laterensis would not have consented to allow Alfius to act, and the matter would have ended in a deadlock. Who appointed Alfius we have no means of knowing, but it can be said with certainty that Crassus in his law, or the Senate in making the law effective, provided some regular system for the selection of a president. The old days of irregularities and special commissions were over, and the Romans were in these very years

115 That the starting point was the annual jury-list is the opinion of Zumpt, Criminalrecht, 11.2.399; Mommsen, Coll. 66, Strafrecht, 215-217; Greenidge, 455.

1161 think, but am not quite sure, that this is the opinion of Strachan-Davidson, 2.109, "What, then, is the meaning of ex omni populo? I believe it to be simply this, that under the lex Aurelia the whole of what the State had to show in the way of jurors for the year was published by the praetor urbanus in a single announcement. A section of this document (such as was each tribal list) might well be described as a haphazard slice of the Roman People,

E. g. by Holden, in his edition of Pro Plancio, Introduction, page xliv, $32.

118 Planc. 43: et, si quaesitor huic edendus fuisset, quem tandem potius quam hunc C. Alfium, quem habet, cui notissimus esse debet, vicinum, tribulem, gravissimum hominem iustissimumque edidisset?; Ad Q. Fr. 3.3: quaesitor gravis et firmus Alfius.