SOCIAL ATTITUDES TO DELATORS

Delators were, as already mentioned, necessary to initiate proceedings before the ordo iudiciorum publicorum, the standing criminal courts estab­lished in the later second century and systematised by Sulla.

It is a useful thing that there should be a number of accusers in the state, so that audacity may be held in check by fear... This is the reason why we are all ready to allow that there should be as many accusers as possible, because an innocent man, if he is accused, can be acquitted, but one who is guilty, unless he is accused, cannot be condemned. For it is more expedient that an innocent man should be acquitted, than that a guilty man should not be brought to trial.¹⁰

Cicero nevertheless viewed with contempt those who made a profession of accusing. Erucius, apparently a freedman, was vilified for lacking personal enmity towards Roscius; he had simply been bought for his rhetorical skills.¹¹ A contrast can be drawn with Cicero's opponent in pro Cluentio.

“Enuptio gentis”, in A Watson (ed), Daube Noster: Essays in Legal Historyfor David Daube (1974) 331. Since her social status was low, it is less likely that her reward was double-edged. The right to marry a freeborn man must be aimed at Aebutius, but at this period it was certainly not illegal, however unbecoming, for an upper-class man to marry a freedwoman.

10 Cicero, Pro Roscio Amerino 20.55-20.56.

11 Cicero, Pro Roscio Amerino 19.55.

ship between him and young Oppianicus, the real instigator of the accusa­tion, which would justify his role.^[396]

Cicero unsurprisingly was rather more measured in a philosophical work of later years.^[397] Pleading in the courts was a path to glory, but there were only two choices, “defending or accusing. It is much more commendable to defend than to accuse, even though the latter has sometimes brought a considerable reputation.” Cicero then gave some examples. “Nevertheless, accusation should be done seldom, or even never, unless it be undertaken on behalf of the res publica,... or on account of some injury received.” Loyalty, of course, whether personal or to a province or city, could sometimes justify prosecution, as with Cicero's own prosecution of Verres. And it was not too deplorable for a young advocate at the start of his career, before anyone would ask him to act for the defence, to bring his name into prominence in this way: “once or so it is allowable enough, but by no means often”. Accusations must be made with moderation, not savagery, and should never put an innocent person at risk. It was permissible to speak on behalf of the undoubtedly guilty, as custom allowed and humanity suggested, and an advocate might even sometimes be economical with the truth. But best of all was to defend the innocent oppressed.

The Romans viewed prosecution very differently from us. For us it is something official, where personal interest diminishes credibility; a procu­rator fiscal or district attorney is pursuing an honourable career. For the Romans, however, personal enmity or desire for revenge were considered to be good moral grounds for prosecuting, whether the prosecutor was the victim of a crime or connected with the victim. This was because the Romans held that a degree of self-help was normal and proper in a citizen's life. To initiate violent action was wrong, and became more so as the Empire devel­oped, but they held that there should be a balance in society between the interests of state and of individual - perhaps not so very different from the culture of the American Wild West: “The ordinary Roman had to be his own policeman, but he would have needed a reasonably accessible procedure to deal with capital crimes.”^[398] There was, of course, no police force, as indeed there was not in modern Europe until the eighteenth century at the earliest; the Urban Cohorts existed to maintain order, not to pursue or repress crime.

Self-help was approved, not because the forces of law and order were inade­quate, but because it was in itself morally good,^[399] and this particularly applied to domestic offences such as rape and adultery.^[400]

Quintilian, a century and a half after Cicero, expressed, in not very different terms, what was doubtless a widespread senatorial attitude to accusers:

A good man will undoubtedly prefer defence to prosecution, but he will not have such a rooted objection to the task of accuser as to disregard his duty towards the state, or towards individuals, and refuse to call a man to render an account of his way of life. For the laws would be powerless without the assistance of advocates to support them; and to regard it as wrong to demand the punishment of crime is almost equivalent to sanctioning crime.... Our orator's conduct will be governed, not by a passion to secure the punishment of the guilty, but by the desire to correct vice and reform morals; for fear is the only means of restraining those who cannot be led to better ways by the voice of reason.

To prosecute for pay was shameful, or even criminal. Pliny, at the end of the first century AD, felt uncomfortable with prosecuting, even where he saw it as his duty; he too was much happier acting for the defence. He wrote that his having undertaken three prosecutions, of Baebius Massa, Marius Priscus and Classicus, might relieve him from any further duty of prosecution - still a problematic duty, even when the accusation was fully justified. For him, as he tells us, the worst feature of a successful prosecution was the downfall of a senator.^[402]

Criminal prosecution, even apart from the rewards, and the temptation of calumny, was thus morally dubious, rather than neutral. It could be justi­fied, but it needed justification. The picture painted by Tacitus has its focus particularly on what could be alleged to be unjustified; this was part of his description of the tensions between Senate and Emperor. His tirades against delators show that he saw such men largely as senators whose lack of character and wealth disgraced their order. The topos is not so different from Cicero's treatment of the senatorial indices who had accepted bribes in Oppianicus' trial. These delators are men playing politics; they are not concerned with daily crime.

D.