From Part Four: Terror 'Cocceius Nerva Reads Cicero'
Cocceius Nerva was a jurist employed by Tiberius to write a new "Code of Laws for Rome" (a new constitution). He lived with Tiberius on Capri, enjoying the Emperor's friendship and protection, while all around him blazed infernal terror, informers had a field day, and bodies piled up on the Gemonian Stairs. Later on, we will witness his death by starvation, when the project became unbearable to him. But for now, we read about him reading Cicero's dialogue and imagining himself in those better days, when Republicans met for artsy discussions on the theory of government.
There will be an island within the island. There is the island of Kapreai in the sea, the real thing, the abode of Tiberius and his guest-resident, Cocceius Nerva, the lawyer. The guest, invited and consulted from time to time on legal matters, left to himself for months, feels the emptiness around him, especially in winter, on a high rock among the fog. He saves himself by reading. Or he dreams. However, there could be another tiny island, unreal on a real island, totally imaginary, on the Fibrenus River in Lacium. An they would probably say instead of “Fibrenus”—our “Fibrenetto.” A clump of greenery surrounded by fresh water. One would walk over a wooden bridge from the Arpinatio Forest. From under the tall poplars into the alder. And there it would be, over the bridge: the island. There would be decorations there, of course, in the Platonic convention. But nature would remain in the Arpinatian style, the little fatherland of Cicero. Poplars. The shade of these trees. The chirping of birds. Hot summer. There will be stage direction—there is nothing more pleasant. At this point, Fribrenetto, split as if by the prow of a ship, divides into two equal streams, which flow around the islet on both sides, and then quickly merge into one current again, and thus surround enough ground sufficient for a small palestra. Having formed this island, the river, as if it had only this one purpose—to provide us with a suitable ground for discussion—flows immediately into the Lyris River, where it exchanges its unfamous name for a better one, like an upstart adopted into a patrician family. Would there be a small palestra? For exercise, bathing, lectures, and conversations? Or an orchestra? For theatrical performances? And there would be people there: Marcus (Tulius Cicero), an intellectual, politician, and a Stoic by conviction. He was murdered when Tiberius was two years old. Author of On the Laws. Atticus (Titus Pomponius), known mainly as the addressee of letters written by Cicero, a political observer, financier, sponsor of art, Epicurean. He committed suicide when Tiberius was fourteen. Quintus (Tulius Cicero), younger brother and admirer of Marcus and a high-ranking officer with Julius Caesar in Gaul, temporarily visiting with his brother. After the murder of the Divine Julius, he too was killed, the first of the Cicero brothers, long before Marcus. Tiberius was then one year old. And now it is time for a performance before Cocceius Nerva. A show or a radio play? The curtain rises. Marcus (then still alive) begins another lecture: “So, as I was saying, I will follow in the footsteps of the divine thinker, whom, perhaps through an excess of admiration, I praise more often than necessary.” Atticus: “You’re talking about Plato, of course.” Marcus: “Indeed, Atticus.” Atticus: “But you don’t praise him too much or too often. Even my Epicureans, who never praise anyone but their own, nevertheless allow me to adore him.” Marcus: “And, thank goodness, they do right. For what is more worthy of your refined intellect? In my opinion, your whole life, style and message, have made you a very rare combination of authority and nobility.” Atticus: “I’m glad to take your word for it since you offer such extraordinary witness of me. But now, please continue what you started.” Marcus: “Would you, then, praise the existence of civil law as such?” Atticus: “Of course. Just as you praised the existence of the laws of religion.” Marcus: “Well, then, look here: the power of an office consists in that someone is required to direct something by issuing just and practical decisions or regulations in accordance with the laws. As laws are above the officials, so officials are above the society, and it may be really said that the official is the law speaking, and the law is a mute official. Now, nothing is more necessary for law and order (and when I say this, please understand that I mean legislation) than power. For without power, no house, no state, no nation, not even the human race, no entity of any sort, not even the world itself can function”. The cry of a seagull, more similar to the barking of a dog than to the chirping of the birds of the forest in the Arpinatus thickets, reminds Cocceius Nerva that he is with Tiberius in Kapreai, looking through Cicero’s On the Laws and not at the family estate of the great classic of eighty years before, participating in the creation of the canons of Roman law. However, he wishes he were. He feels called upon to play a similar role now. There was a reason why he was invited by the First Citizen to Kapreai. By the way, that’s the correct title: the First Citizen. It should be enshrined in legislation. Let us be don with the divinities. Fortunately, Tiberius does not intend to become divine like the other Caesars before him—Julius and Augustus. (If Cocceius Nerva understands him well, which is not easy). Tiberius wants to justify his power only by the tradition established by his predecessors and the law. Cocceius Nerva has to help him. Because no one seems to understand this desire of the First Citizen. Quintus: “In your presentation, brother, you gave us a very concise description of all the Roman offices and, indeed, of the whole state apparatus, although you added some new elements of your own.” Marus: “How right you are, Quintus.” What is hard to take in Cicero, thinks Cocceius, is this constant agreement of everyone with everyone and the constant approval of all of the lecturer’s statements. But, of course, this style does not come out of nowhere. It comes from Plato, and people familiar with his philosophical literature are well acquainted with this type of dialectic. Cocceius does not like Plato very much, just as he does not share many of Cicero’s outdated ideas. It is clear that the legal theories of the old republic have to be updated, adapted to the new political reality. The world has changed. However, some ideas of Cicero, and especially their Platonic sources, must be enshrined in the new legal theory which the resident Cocceius is instructed to create under the benevolent patronage of the First Citizen. As for Plato, no reasonable person thinks to question the authority of the Greek philosopher. Especially in Kapreai, given the influence of that other resident here, Thrasyllus. Where is that thought of Cicero concerning the equal legal incompetence of the people and the tyrants? Cocceius remembers it. Oh, yes, that passage was earlier: Marcus: “Indeed, the notion that all laws, either customary or passed by various assemblies of the people, are just is a height of folly. What about tyrants’ ordinances? If the famous “thirty” of Athens wanted to give the city a constitution, and even if all the Athenians accepted such a tyrannical constitution, should those laws have been considered just?” No one raises objections to the speaker’s theses, notes Cocceius. Cicero’s criticism of the irresponsible conduct of the people was praised by Quintus, a strong opponent of the anarchic follies of the commoners. In turn, the financial potentate, a long-time happy resident of Athens and a genius of political opportunism, the Epicurean Atticus, who elegantly passed over Cicero’s successive conclusions in silence—a sign of consent—was undoubtedly captivated by his defense of Athenian democracy. No wonder. This concerns certain fundamental principles, still valid today, recognizes Cocceius. They sound good. He will be able to refer to this in his memorandum for the First Citizen. Naturally, with all the extended context. Only in the section concerning tyrants is it necessary to define certain ideas more clearly. Cicero was, of course, a republican: he paid for the republican overthrow of Julius Caesar with his own life. Yes, but there is no Roman legal doctrine without Cicero. Tiberius will understand this. If, according to the vision of the First Citizen, the new system is to be based on the tradition of the ancestors, Cicero, though a supporter of the republic, but a wise man nevertheless and aware of the shortcomings of democracy, is indispensable in the matter of legal theory. What do they go on to say on that island of theirs? Marcus: “If the decisions of the people, the ordinances of rulers, or the opinions of individual judges were to constitute law, robbery, adultery, and the forgery of wills would easily become legal. As long as some decisions are decreed, adopted by a majority of votes, or passed at public rallies. But if so, then the opinions and decisions of fools matter, and their will can overturn the order of nature. Why, one might as well legislate that everything that is unjust and dishonest is legal and proper! And if it is possible by such a statute to make a right out of wrong, why should it not likewise make alleged good out of all evil?” (They’ve gone too far. The great Cicero was too much of a philosopher than is proper for a lawyer. His syllogisms lead to the absurd. Philosophy cannot be made into law. The law must be practical.) Marcus: “One should bear in mind the highest good and do everything to achieve it, although as to what it is, there is no agreement among scholars, but rather a lot of contradictory opinions. However, sometimes a decision has to be made despite the lack of clarity.” Atticus: “But how to do it, since Lucius Gellius is dead?” Marcus: “I’m sorry, what’s he got to do with it?” Atticus: “Because you see, I remember hearing from my friend Phaedrus in Athens how Gellius, a man you know, came to Greece as a proconsul after the end of his consulate, found himself in Athens, and summoned to his palace all the philosophers who were there at that time. And then he fervently urged them that perhaps for once, they might come to an agreement on something. If only they decided, he said, that they would prefer not to waste their lives in polemics and quarrels, he was ready to contribute to the settling of their differences. He promised to spare no effort if he could somehow mediate between them.” Marcus: “That is a funny story, Pomponius, and it has made many laugh. But, personally, I would like to be appointed as just such a mediator between the schools of philosophy.” And, of course, the brilliant Cicero would! And how! He would even be eager to do it, this Stoic, who yet knew no measure in conceit. The question is whether an anecdote as delicious as this can be related to Tiberius at the table. Perhaps it can. Although… on the other hand... Tiberius, when he was still in Rhodes, was said to have had an unpleasant clash with some philosopher. He behaved then a bit like this Gellius in Athens. Perhaps it would be better not to raise the question of the relationship between power and philosophy at all? If anything, Tiberius will probably declare that the state will not rule philosophers, nor will philosophers, each of whom has a different view, regulate the law. But Thrasyllus will chime in and say that, according to Plato, philosophers are more fit to exercise power than anyone else, and Tiberius is a philosopher, after all, he has proven it sufficiently on various occasions, AND this qualification has also been confirmed astrologically, which he, a mathematician and also a philosopher (however poor) is qualified to judge, THEREFORE no one else should legislate in Rome, only the most appropriate authority—the philosopher Tiberius with the possible help of the practitioner Sejanus and the help of heaven, that is, perhaps with the modest participation of his, Thrasylus’s, insignificant person. Or at least, he’s always at his service. Tiberius will summarize the discussion somehow, he always does. But whatever he says, it will be impossible to know what he really thinks because he will conceal his own opinion deliberately or just out of habit. That’s how it is. For this reason, the law expert, Cocceius Nerva, does not really have any guidelines on what he should stick to when preparing his memorandum. He decides to draw on the classics and trust his common sense. But look! Here is an exchange of views between the Cicero brothers on how to vote! Should votes be secret or open? Cast your vote anonymously on tablets or by a roll call? Quintus: “Does that raise any doubts? I’m afraid we’ll disagree again.” Again? After all, the brothers have agreed on every point so far. But, as it turns out, not quite. Quintus considers the law which granted special prerogatives to the tribunes of the people as a way for the mob to attack the senatorial aristocracy, i.e., the best people, the Optimates, among whose supporters the Ciceros are. Despite this, Marcus defends the democratic rights of the people. Cocceius Nerva, excited by the topic, joins the actors in the play, but he utters his thoughts on open or secret voting in an undertone: “How would Tiberius view the matter? What would he wish for? What are his intentions? He hates the Senate, that I know for sure. He has contempt for it, although he treats it politely and respects the rules of order. And the common people do not bother him. Yet, he took away the right of the people to elect officials in commissions and gave it to the Senate. Why?” Marcus: “There will be no disagreement between us, Quintus. For I share your view, which I know you have always held, that nothing serves any election better than to vote openly by roll call. The question, however, is whether this can be done in practice.” Quintus: “But with your permission, brother, I would say that this way of putting the matter is confusing for the people who are politically unsophisticated and often hurts the state. One often hears: yes, something is true and right, but it cannot be voted through because the people will be against it. And yet, the people will only oppose it once the thing is put into practice. And second, it is better to use violence for a good purpose than to yield to evil. And probably everyone will admit that the introduction of voting on tablets abolished all influence of Optimates on government.” Tiberius (who is not yet born but who, accompanied by lictors, will appear in the middle of the dialogue in the mind of Cocceus Nerva): “Has anyone here mentioned Gellius in Athens? Or rather—me in Rhodes? Let me summarize all the preceding discussion, Cocceius. Do you think anyone should be arrested?” Cocceius (in a whisper, aside): “Has someone reported on me? He knows what I’m reading?” But as it stands in the dialogue, Tiberius does not summarize the discussion. Someone else will sum it up. Atticus: “I have never liked populism. I maintain that the best organization of public life is that which this man established during his consulship (he points to Marcus), to make the state subject to the rule of the best men.” He ended up committing suicide. He was said to be terminally ill. He starved himself to death, this Epicurean. Curtain. Or: Cocceius wakes up.  The following section is a paraphrase of a fragment of a dialogue by Cicero, On The Laws, which, Bocheński imagines, Cocceius Nerva is readingon Capri while trying to work on a new code of laws ordered by Tiberius.  “Little fatherland” became a fashionable topic in the 2000’s in Europe, the idea that we are not so much attached to our big fatherland (Germany, France, Poland) but to our little fatherland: Masovia, Auvergne, Thuringen.  The famously predatory oligarchic regime imposed on Athens by Sparta in the wake of the Peloponesian War.  Lucius Gellius (136 BC–54BC) was a Roman politician and general who was one of two Consuls of the Republic in 72 BC. A supporter of Pompey, he led Roman legions against the slave armies of Spartacus in the Third Servile War.  The tribuni plebis, known in English as tribunes of the plebs, tribunes of the people, or plebeian tribunes, were instituted in 494 BC, after the first secession of the plebs, in order to protect the interests of the plebeians against the actions of the Senate and the annual magistrates, who were all patrician.  Legislative powers in Rome were divided between the Senate (always in session, composed of Senators for life) and the Public Assembly (of the whole population of Rome).