Between Rhetoric, Social Norms, and Law: Liberty of Speech in Republican Rome

Although modern Republicanism, which highly values the right of freedom of speech, finds its inspiration in the historical reality of the Roman Republic, it seems that in the course of the Republican period citizens shared a recognised ability to speak freely in public, but did not enjoy equal status with one another in the domain of speech as protected by law. Of course, Republican Rome knew laws regulating free speech and perhaps even later provisions had been passed concerning iniuria . However, in these cases, as later on under Augustus, these measures acted as means of restraint and inhibition and did not directly address the right of the individual to speak freely. The fundamental question this paper addresses is why, in the course of the Republic, the right to speak freely was not protected by law and never came to be recognised as a formalised subjective right in Republican Rome. The answer, I argue, lies in the fact that in Rome speaking freely was conceived as the positive moral quality that characterised a natural ability of human beings, and thereby it could not have provided a field of legislation. It follows that the Roman Republic would not have passed the ‘straight talk test’ that modern Republicanism requires for the establishment of a free and just society. However, Republican Rome invites us to think about liberty of speech as belonging to the realm of ethics: as a moral quality sustained by contemporary social norms, not subject to legislation, which inevitably ends up protecting the interests of a group or groups and their specific speech regimes.


Introduction
The importance of liberty of speech appears to take centre stage in the current powerful revival of Neo-Republicanism as one of the fundamental basic liberties of our modern societies.1 Although the extent to which such liberty is limited to certain domains, or is conditioned upon certain requisites, will be ultimately dependent on the historical and social context in which it is elaborated, it remains essential that in every civic community that values liberty as a status of non-domination (i.e. of not being subjected to the power of arbitrary interference), each member must enjoy free access to those choices, which that society regards as basic liberties. In our modern society, as Phillip Pettit argues, one of these basic liberties is indeed freedom of speech.2 Thus, although there might be differences in what sort of speech is protected in any given society (so that, for example, one can speak one's mind at all times, except when this threatens public order or amounts to hate speech -variables that can be differently interpreted), it is essential that there are public laws and norms that secure liberty of speech in those domains. To live in a political system that empowers its citizens to enjoy the central value of liberty from domination and thereby ultimately achieves justice, the citizens, Pettit argues, have to pass three tests: the 'eyeball test' , according to which every citizen should be able to look their fellow citizen in the eyes without fear or deference; the 'tough luck test' , according to which citizens should be prepared to accept and embrace the notion that if certain policies of which they disapprove are implemented, it is a matter of tough luck and thereby they must be accepted; and finally 'the straight talk test' , according to which citizens should feel empowered to express their own opinion without fear of repercussions or deference.3 To be passed successfully, this latter test first requires that no one is in the position of possibly being obstructed, penalised or coerced in the domain of speech because he is effectively protected by law and customs; and second, that it is common knowledge amongst the members of the community that these protections are in place.4 Although this political philosophy finds its inspiration in the historical reality of the Roman Republic, it seems that in the course of the Republican period citizens shared a recognised ability to speak freely in public, but did not enjoy equal status with one another in the domain of speech as protected by law.
Nowhere in our sources concerning the Republic is there any attestation of liberty of speech as a legally guaranteed right of Roman citizens, which, equally recognised to every member of the civic community, protects the individual from the power of interference in the domain of speech. Although, as Brunt reminds us, 'we simply do not know that humble people would themselves never have claimed [this] right' ,5 it remains a rather interesting fact that, in the preserved accounts of the struggles for the establishment of the plebeians' political and civic rights, we do not find any reference to call for its establishment. This fact is even more striking when we consider that, as a collective, ordinary people expressed their opinions in public on various occasions, such as, for example, in theatrical performances and mimes. 6 The fundamental question I would like to address here is why, in the course of the Republic, the right to speak freely was not protected by law and never came to be recognised as a formalised subjective right in Republican Rome.7 4 P. Pettit, 'Enfranchising Silence: An Argument for Freedom of Speech' , in T. Campbell  Modern accounts of liberty of speech in Rome often do not make a clear analytical distinction between the right to speak one's own mind and the actual practice of doing so. As a result, given that, on the whole, the custom of speaking freely was pervasive in the Republic,8 general scholarly consensus gathers around the idea of the existence of liberty of speech in Rome, which often is not fully distinguished from the existence of a legally protected right to speak freely.9 There are, of course, some very notable exceptions to this trend. Arnoldo Momigliano, for example, discussing the difference between Roman libertas and Greek eleutheria, stated that 'Rome never knew equality and liberty of speech' , despite a number of democratic rights afforded to Roman citizens.10 'As a whole' , he argues, 'as [Hans] Kloesel acutely observed, freedom of speech belonged to the sphere of "auctoritas" rather than to that of "libertas"'11 as the right of free speech was well protected only for men of high rank.12 This view was also propounded by Wirszbuski, who maintained that in Rome 'the citizen had a vote, but he had no right to make his voice heard: freedom of speech, in the sense that any citizen had the right to speak, did not exist in the Roman Assemblies' . his view, was a right to defend or to bestow upon a citizen, Giuseppe Scarpat claims that the Roman Republic, and even less so the Empire, never knew the right of free speech.14 According to these scholars, the reasons for such an absence in Rome lies in the intrinsically aristocratic nature of the Roman political system, which never approximated, in Scarpat's opinion, to the model of Athenian democracy nor wished to emulate it. For liberty of speech to be configured as a field that needed legal protection, it required not only an aspiration to political equality, which, these scholars argue, Romans never experienced as they were deprived of any meaningful political autonomy, but also the development of the rights of individual conscience, which the Republic did not know. For this to be developed, as Momigliano argues following Benjamin Constant, it required the opposition of an individual religious conscience to the authority of the commonwealth, which, first exercised by the Christian church, established an alternative focus of true, legitimate power in the commonwealth of God.
Even those scholars who, like Peter Brunt, argue in favour of the existence of an ancient right to freedom of speech in Republican Rome, find themselves conceding that in contiones, the assemblies where public affairs were debated, Roman citizens did not have a right to speak.15 As Francisco Pina Polo notes, addressing the people at a contio was a prerogative of a magistrate, but never a citizen's right.16 Since only the magistrate, who called the assembly and presided over it, had the right to address it, ancient sources talk about potestas contionandi as a prerogative of the magistrates, but never about a ius contionandi as entitlement of Roman citizens, which in Rome speak, in what order, and for how long.18 With few exceptions, these were usually distinguished people, members of the elite, either magistrates in office or ex-magistrates, and indeed many of them were consulares. In theoretical terms, the right to speak freely before an assembly was an expression either of the potestas of the magistracy held by the orator or of his auctoritas, the high social status recognised by the rest of the civic community, but was not one of the rights inherent in Roman citizenship.19 Most recently, developing an argument put forward by Martin Jehne in a novel direction, Andrea Angius has mounted a powerful counteroffensive to this contention.20 Discussing the case of P. Scaptius (on old plebeian man who, according to the narratives of Livy and Dionysius of Halicarnassus, intervened in a debate between the Arcians and Ardeans over a neighbouring territory in 446 BC), both Jehne and Angius note that the appeal to the tribunes by Scaptius against the consuls, who made orders for him to be removed from the assembly, is an attestation of the citizen's right to speak.21 Polo, 'Ius contionandi y contiones en las colonias romanas de Asia Menor acerca de CIL III 392' , Gerión 7 (1989), pp. 95-106. 18 In an interesting passage, which seems affected by a certain degree of misunderstanding, Dio Cassius (39.35.1-2) discusses the opposition of Favonius and Cato to the proposal about provincial arrangements: 'that day was used up in such wise that the tribunes could not speak at all. For in all the meetings of the people in which they deliberated, the right to speak was given to the private citizens ahead of the magistrates, to the end apparently that none of them, captivated beforehand by the opinion of a superior, should conceal any of his own ideas, but should speak out his mind with entire frankness' (trans. E. Cary Responding to Scaptius' request to talk in the interest of the commonwealth (de re publica dicere), the consuls declared he was untrustworthy (vanus) and ought not to be listened to and indeed removed from the assembly. In response, Scaptius appealed to the tribunes of the plebs, who, Livy tells us, provided him with the possibility to say what he wished and, Livy adds, the plebs wished to hear.
However, although at first sight the intervention of the tribunes of the plebs appears to be very strong evidence in support of freedom of speech as a right, the recourse to the auxilium of the tribunes of the plebs does not signify that speaking freely in the political arena was a Roman civic right. The so-called ius auxilii enabled the tribunes to provide assistance to any citizen against any form of arbitrary punishment by a magistrate (that is, a punishment perceived to be unjust), but it was not exclusively limited to provide assistance against the violation of existing rights.22 Nor do the following cases that Angius adduces attest the existence of a right to speak freely in public, shared equally by all citizens, but rather indicate that the ability to do so existed and that expectation of speaking freely in assembly was prevalent, regardless of whether either were ever transformed into actuality. Seneca the Elder, in his Contraversiae, discusses two cases where being barred from speaking freely in contione functioned as a punishment: the first was a case of inappropriate behaviour, the second, a case of theft. Discussing the instance of the man who was raped when wearing women's clothes (raptus in veste muliebri), Seneca states that: An unchaste man shall be barred from speaking in public. A handsome youth betted he would go out in public in women's clothes. He did so, and got raped by ten youths. He accused them of violence, and had them convicted. Forbidden by a magistrate to speak to the people, he accuses the magistrate of injuring him.23 In the second case, Seneca notes: A thief shall be barred from public meetings. A man who had accused a rich man of treason dug through his wall at night and took a writing-case containing letters from the enemy. The rich man was convicted. When his accuser wanted to speak at a public meeting, he was barred by the magistrate. He sues him for injury.24 Quintilian too discusses two cases where the barring from public speaking in contione functioned as punishment for two distinct groups, those who have exhausted their patrimony and the male children of a prostitute. 25 It seems that all these cases make a very important point: speaking freely in public was recognised as an ability that all Roman citizens expected to share, and, as such, could be subject to limitations and even oppression. It is not a coincidence that, as Ineke Sluiter and Ralph Rosen point out, in Rome the phenomenon of veiled speech was thematised much more than the practical political aspects of free speech.26 However, nowhere in the sources does the right of a Roman citizen to speak one's mind appear to be legally protected.
Of course, Republican Rome knew laws regulating free speech and perhaps even later provisions had passed concerning iniuria. However, in these cases, as later on under Augustus, these measures acted as means of restraint and inhibition and did not directly address the right of the individual to speak freely. There is an essential difference between the individual right of free speech and the right not to be slandered. The line of demarcation may well be the same, but one reaches it from opposite perspectives. The altercation between Clodius and Cicero, for example, that took place in the senate in 61 BC, or the heated exchange between Piso and Cicero that culminated in Cicero's in Pisonem and Piso's rejoinder, show the extent to which one could go to deprecate one's opponent: belua (beast), carnifex (murderer), and maialis (pig) were only some of the terms that one could adopt to win one's case and cast one's opponent as an outsider.28 Nor was this sort of abuse confined to public oratory. The poet Catullus famously portrayed Egnatius as 'son of rabbity Celtiberia, made a gentleman by a bushy beard and teeth brushed with Spanish urine' ,29 and Horace did not spare from ridicule a tremendously annoying chatterbox, with whom he desperately tried to dispense.30 Nor was this exercise of free speech the exclusive preserve of members of the elite. Even the theatre and mimes provided occasions for speaking freely on the part of actors and authors, as well as the opportunity for endorsement or rejection by the wider audience as a collective. During a performance at the Apollinarian games of 59 BC the actor Diphilus, probably a freedman as his name suggests, declaimed the verse 'to our misfortune art thou great' , pointing at Pompey who was in the audience. In the midst of general approval, with people recalling it several times, and, without any hesitation, he, certainly not a man of high rank, accused Pompey of his excessive power again by gesture.31 Pompey was indeed, at the time, a target of public attack, against whom, so it seems, anyone who wished to do so could launch his assaults. According to Valerius Maximus: [Even] a country townsman, smelling of his father's slavery, unbridled in his temerity, intolerable in his presumption, was allowed to recall with impunity the gaping wounds of the civil wars, now overlaid with shrivelled scars. So, at that time it was at once very brave and very safe to insult Cn. Pompeius. But the considerably lowlier lot of the following individual does not permit me to deplore this at greater length.32 However, Pompey was not the only prominent politician of the late Republic to be subjected to open criticism. Laberius, an eques of fiercely free speech (eques asperae libertatis), as Macrobius describes him, famously challenged Caesar's power, professing 'the need for him whom many fear to fear many'; moreover, in his mimes Publius Syrus, an ex-slave from Syria, commented on current political circumstances that so greatly worried the main political protagonists of the time that they kept each other informed about them. 33 These examples, abundant in our sources, are not refuted by the famous episode concerning the return of Scipio Africanus from Numantia. Instigated by Cn. Carbo to comment on the death of Tiberius Gracchus, Scipio stated that Ti. Gracchus had been rightly killed. Responding to the uproar of the enraged people, Scipio contemptuously replied: "Let people to whom Italy is a stepmother hold their tongues" … Then as shouts went up, "You won't make me afraid of those I brought in chains now that they are loose." The whole people had been a second time insultingly chided by a single man and (such is the honour paid to virtue) held their peace.34 Confronted by these contemptuous and trenchant words of one of the leading members of the community, the people held quiet, but not because they were subdued by his auctoritas and thereby unable to exercise their liberty of speech. Their 'silence' , Valerius Maximus explains: [W]as not a tribute to fear (nec timori datum est silentium) … because many anxieties of Rome and Italy had been brought to an end thanks to the Aemilian and Cornelian clans, the Roman populace was not freespoken to Scipio's free speech ( Free to express their own mind without fear of those in power, as they have done on other occasions, the Roman people chose deliberately not to do so, as a sign of grateful respect for all the accomplishments that the gentes Aemilia and Cornelia had achieved on behalf of Rome.
In a world where private citizens could, at least in theory, speak up in the assembly, where an auctioneer could address Publius Nasica and other magistrates in office with sarcastic openness and witticism, and where knights could attack members of the highest nobility, it could be legitimately said that liberty of speech was indeed a reality.36 As often repeated in scholarship, it was an idea that was included in the overarching notion of libertas, and in most cases the correspondence between libertas and liberty of speech is made patent by the context.37

The Nature of Speaking One's Own Mind
It is important to note that a public statement of one's own mind could be described as either an expression of libertas or an act of licentia, depending on the application of the wider socio-cultural and ethical framework to the specific context. On the whole, in the case of satires, for example, libertas, when applied to describe a speech act, always had a positive value, while licentia often implied going beyond the acceptable norm, indicating a form of free speech that could be legitimately perceived as threatening or that incited disapproval. 'The threat of licentia, and the way it could confront the audience with unpleasant truths, is always lurking behind the satirists' use of their libertas. And satire's critics will see licentia only' . [L]ocated between virtue and vice, [the liberty of a passionate spirit (libertas autem vehementis spiritus)] deserves praise (laus) if it has tempered itself beneficially, blame (reprehensio) if it has launched out where it should not. It is rather pleasant to the ears of the vulgar than approved in the minds of the wisest, being more often protected by the indulgence of others (aliena venia) than by its own good sense (sua providentia). But since it is my purpose to go through the parts of human life, let it be recounted with good faith on my side and judgment as itself (propria aestimatio) deserves.39 Liberty of speech, Valerius Maximus tells us, is placed between virtue and vice. If operating within its perceived legitimate limits, it is conceived of as an ability of positive moral force; if, on the other hand, it oversteps its recognised boundaries, it is rather thought of as a faculty of morally deplorable descriptive power. These boundaries are, in part, established, enforced and regulated by the audience. Rather than an intrinsic sense of self-regulation (propria aestimatio), it is the audience's indulgence (venia) that transforms utterances into either free expression of one's mind, which thereby describe a virtuous situation, or into insulting slanders, which damage somebody's reputation and shed a negative moral light on the described act.40 The parameters that in this context establish the distinction between libertas and licentia are determined by the understanding of the mos maiorum, the customs of the ancestors and their related values, on the part of the audience, understood as the wider community at large. This set of social, cultural, and political norms that regulate both the public and the private spheres was based, the ancient theorists tell us, on consensus multorum, which transformed an individual disposition, personal judgment or choice (mos) into a consuetudo, a common usage shared by the whole community.41 As these norms and values were in constant flux, the establishment of one specific model of ancestral behaviour and its related values depended on the auctoritas of the individual or group who proposed it as well as on the people, that is, the largest section of society, who gave their On the other hand, if men of all sorts, and in particular those of low birth, attacked men of great auctoritas, their mockery is qualified as licentia.44 Although Pompey tolerated even the attacks of people of low birth, his forbearance exposed him to further criticisms (maledicere). In his altercation with L. Libo before the censors, as mentioned above, Helvius Mancia of Formiae, son of a freedman and a very old man, launched his attacks against Pompey with an intolerable attitude (intolerabilis spiritus); moreover, at the Apollinarian games on at least two occasions, as discussed earlier on, Diphilus accused Pompey of excessive power, displaying an attitude that Valerius Maximus describes as effrontery (petulantia), a far cry from the positive exercise of libertas of speech exercised by men of auctoritas.
During the course of the Roman Republic, the regulation of the regimen morum was guaranteed by the censors, magistrates in charge of the cura morum, whose remit was the preservation and control of traditional Roman values.45 They were in charge of the mores of the whole community, and their sphere of intervention was so extensive that, alongside military discipline and magisterial abuse, it also included interference in private life; as Dionysius of Halicarnassus famously said, the censors seemed to exercise their authority even in the bedroom of Roman citizens.46 Although the censors did not operate according to an established list of prescribed acts, they intervened against any deed that seemed contrary to 'the advantage of the state' and the wellbeing of the whole community, as also attested by the oath they took at the beginning of their mandate.47 Those acts that fell under this category were, of course, open to interpretation and included those utterances that, perceived as inappropriate, were indeed conceived as acts of licentia rather than of libertas. The censors, Gellius tells us, reduced a man to the rank of an aerarius, no longer registered in his own century, but liable to pay the tribute, because in response to his question of whether he had a wife, he joked that he indeed had a wife, but not the one he wanted. 'The censor, then' , Gellius tells us, 'reduced him to a commoner (aerarius) for his untimely quip, and added that the reason for this action was a scurrilous joke made in his presence (causamque hanc ioci scurrilis apud se dicti subscripsit)' .48 The classification of this speech act as an act of license that needed to be punished was determined by the personal judgment of the censor, according to whom this joke was not befitting of the gravitas and auctoritas of his high magistracy. In a similar vein, citing a passage from Book 7 of the Memoirs of Sabinus Masurius, Gellius reports the episode that took place under the censorship of Scipio Nasica and Marcus Popilius. When, in response to the question of why he took better care of himself than of his animal, the knight replied 'I take care of myself, but Statius, a worthless slave, takes care of the horse' . This answer, Sabinus Masurius seems to report, 'did not seem sufficiently respectful (visum est parum esse reverens rensponsum), and the man was reduced to a commoner, according to custom (ut mos est) '  According to the mos, as interpreted by the censors, the utterance performed by the knight was judged disrespectful towards the censors and as an act of licence that earned the perpetrator of excessive free speech a harsh punishment. It is important to observe that the nota censoria did not procure any permanent damage to a politician's career, as an individual could be reinstated to his previous status by the next censors, nor was it a legal sanction. Its effects were rather based on the consensus of the wider community: if the community at large had not acknowledged the complexity of civic norms applied by the censors as core values of the society, the censors' action would have been devoid of any value.50 Nor did the general edict of the praetor seem to alter this framework. The praetor, who was responsible for bringing suits against anyone who committed or instigated convicium (originally understood as the concerted shouting of insults and later as chanting or bawling in public), did so if he judged that the insults had acted adversos bonos mores.51 Far from being a matter of subjective right, the ability to speak one's own mind was a moral quality, which was positioned between two opposites, liberty of speech and licence. Although, as Rebecca Langlands splendidly shows, these exemplary episodes preserved in Valerius Maximus, to which one can add those attested in Gellius, functioned as moral tools whose purpose was to mediate between universal moral rules and the particulars of a specific historical context, the issue of liberty of speech highlights more specifically the rhetorical nature of Roman values.52 While Roman exemplarity acknowledged the proximity between virtues and vices and invited learners to reflect on the boundaries between them, functioning as 'situation ethics' , the neighbouring nature of these moral qualities also had a function in rhetorical arguments as it could be exploited, as rhetorical treatises show, to persuade the audience of the validity of one's own cause. the remarks of Claudia, the daughter of Appius Claudius Caecus, at the end of the plays at which she had been a spectator. The plebeian aediles Gaius Fundanius and Tiberius Sempronius imposed a fine upon her because of her arrogant language against the people, which they perceived as damaging 'the dignity of Roman conduct' . It is probable that the aediles could exercise this form of censorship as the magistrates responsible of ludi and their public order. As attested by these texts of the late Republic and early empire, this technique, called distinctio, or, in Greek, paradiastole, describes an action anew by adopting the opposite evaluative term so as to shed a different moral light on the action under discussion and win the audience over.53 Discussing the genus deliberativum, the author of the Rhetorica ad Herennium states that one has to show that the virtues wielded by one's opponent consist of qualities contrary to those adopted, so: [I]f it is at all possible we shall show that what our opponent calls justice is cowardice, and sloth, and perverse generosity; what he has called wisdom we shall term impertinent, babbling, and offensive cleverness (quam prudentiam appellarit, ineptam et garrulam et odiosam scientiam esse dicemus); what he declares to be temperance we shall declare to be inaction and lax indifference; what he has named courage we shall term the reckless temerity of a gladiator.54 A very similar list of examples of corresponding virtues and vices to which, as Cicero warns in the Partitiones Oratoriae, we should pay attention so as not to be deceived by our adversaries, includes precisely a certain way of speaking: as for the author of the Rhetorica ad Herennium, prudentia, 'wisdom' , could be passed for an inepta, garrula et odiosa scientia, a 'foolish, chatty and offensive knowledge'; so, for Cicero, prudentia disputandi, 'wise ability to discuss' , could be passed for concertatio captatioque verborum, a 'controversy and feint of words' and vis oratoria, the 'powerful force of oratory' , for inanis quaedam profluentia loquendi, a 'certain empty flux of speaking' .55 In his rhetorical treatise, discussing the peculiar traits of the unskilled orator, Quintilian states that such an orator tends frequently to be rude, and prefaces this point as a way of explanation by observing that: [M]oreover, there is a close connection between virtues and vices, which enables rudeness to pass for frankness, rashness for courage, and extravagance for abundance. Now the unskilled speaker is more openly and more frequently rude, even endangering his clients, and often also himself. But 53 The importance of this classical rhetorical figure for early modern authors has been brought to the fore by Q. This is also applicable, Quintilian continues in Book 5, in the case of judicial oratory: The point here is that, if he [our opponent, in this case the accuser] has spoken ineffectively, his actual words should be quoted; if he has used energetic and vigorous language, we should restate the facts in our own milder terms. (Cicero does this in Pro Cornelio: "He touched the document".) This can be combined with a defence move; for example, if we have to defend a debauchee, we can say "He has been charged with having a somewhat liberal life-style". Similarly, a mean man can be called "thrifty", a slanderer "outspoken".57 As attested by these examples, among the standard instances of paradiastole that recur in Roman rhetorical texts, the other instance that is often repeated is that of the slanderous utterances that can be described anew as frank statements, an expression of free speech. As Quintilian himself points out, this technique, emphasised almost excessively by Cornelius Celsus, found full elaboration in Aristotle. Quintilian tells us: Aristotle makes another point, which Cornelius Celsus later stressed almost too much, namely that, as virtues and vices are, in a way, next door to each other, we should be prepared to replace words by their nearest neighbours, calling a foolhardy man brave, a prodigal generous, a miser thrifty. The procedure also works the other way. It is true that the real orator, the good man, will never do this, unless led into it by the public interest.58 As Quintilian explains in Book 8 when rationalising the theory of the paradiastole, no-one in Rome truly thought that liberty of speech signified the same thing as the liberty of slander, but rather that a certain action in a certain context could be described by one as the exercise of free speech and by another as sheer slander.59 Whether the orator who applies this re-description is successful will depend on the audience and their moral and social norms.
Since in the late Republic, liberty of speech was understood as a quality with a positive descriptive force, it could be adopted in rhetorical arguments to win the audience over to one's cause in two fashions: first, as discussed above, to place the action under dispute in a different moral light; second, to enhance the audience's emotions towards the concerned action, which, as a result of a successful re-description, should inspire either newly-acquired sympathy or newfound outrage.
Thus, the author of the Rhetorica ad Herennium refers to frankness of speech (licentia) (that is, 'when talking before those to whom we owe reverence or fear, we yet exercise our right to speak out') as a figure of speech (exornatio) that can be handled with pungency, which, if too severe, could be mitigated by praise, or with pretence to render it more agreeable to the audience.60 The aim of this figure, as Quintilian explains, is to intensify emotions and some people, he tells us, call this figure exclamatio.61 If an utterance is described as an exercise of liberty of speech, not only will it be evaluated in positive terms, but it will also solicit a positive emotional response towards it and the whole affair involved.
From the above discussion, it follows that an utterance is an action that can have a positive moral quality, thereby being described as an exercise of liberty of speech, or rather a negative moral quality, thereby being described as an act of slander. Because of its very nature, therefore, liberty of speech in Rome could not have been the subject of legal protection. In the late Republic, according to an account informed by Stoic philosophy, the formulation of an utterance was conceptualised as the ability that distinguishes human beings from the wild beasts. This ability, as Cicero clearly states, fulfils two essential functions in society: first, it unites human beings in society; second, it allows men to learn from one another. According to this account, Nature provides human beings with ratio, which manifests itself in the faculty of speech. It follows that speech is the rational ability that distinguishes human beings from animals and that enables a 'life of sociable rationality or rational sociability' . 62 As Cicero argues in the De Re Publica, it was the vinclum sermonis that brought society together: [Reason] likewise, when it found men uttering unformed and confused sounds with unpractised voices, separated these sounds into distinct classes, imprinting names upon things just as distinguishing marks are sometimes placed upon them, thus uniting the race of men, solitary before, by the pleasant bond of communication by speech.63 Developing this point in the De Officiis, he then states that: [I]t seems we must trace back to their ultimate sources the principles of fellowship and society that Nature has established among men. The first principle is that which is found in the connection subsisting between all the members of the human race; and that bond of connection is reason and speech (eius autem vinculum est ratio et oratio), which by the processes of teaching and learning, of communicating, discussing, and reasoning associate men together and unite them in a sort of natural fraternity. In no other particular are we farther removed from the nature of beasts; for we admit that they may have courage (horses and lions, for example); but we do not admit that they have justice, equity, and goodness; for they are not endowed with reason or speech (sunt enim rationis et orationis expertes). This, then, is the most comprehensive bond that unites together men as men and all to all; and under it the common right to all things that Nature has produced for the common use of man is to be maintained.64 However, not only has the faculty of speech enabled the formation of society and allowed its functioning by persuading people and curbing excessive, potentially destructive, passions, but also, as Cicero makes Balbus argue in the De Natura Deorum, it facilitated the learning and teaching that empowered a community to operate properly: [T]hen take the gift of speech, the queen of arts as you are fond of calling it -what a glorious, what a divine faculty it is! In the first place it enables us both to learn things we do not know and to teach things we do know to others; secondly it is our instrument for exhortation and persuasion, for consoling the afflicted and assuaging the fears of the terrified, for curbing passion and quenching appetite and anger; it is this that has united us in the bonds of justice, law and civil order, this that has separated us from savagery and barbarism.65 Speaking was, therefore, considered a distinctive ability of human nature, which could gain a positive or a negative moral quality according to how its use was judged in relation to the context. 66 The important insight that these texts show is that in Rome liberty of speech was understood as a virtuous quality, closely bordering its corresponding vice, rather than an action or field of actions that should be protected by law. One does not legislate on a human quality of speaking freely no more than one does not legislate on the quality of being courageous.

Conclusion
In conclusion, in the course of the Republic it is possible to observe the implementation of laws and legal proceedings that in both private and public spheres protected the individual or the community (although the latter is rather controversial) against slander. These legal means, which should be rightly understood as limiting the liberty of speech in Rome, aimed at protecting the receiver of the attacks, as opposed to the right of an individual to express freely his opinion. The XII Tables, the actio de iniuria, or the lex Cornelia de iniuria et maiestate, despite their varying degrees of historical reliability, all potentially show an attempt to protect citizens against slanderous attacks, which, in the case of criminal proceedings such as the quaestio pro publica utilitate, could be constructed as a defence of those in power. 67 However, although the existence of legal means that limit the liberty of speech is certainly intrinsically related to the issue of the actual exercise of free speech, it should not be confused with the existence of a right to speak freely.
The fact that liberty of speech could easily be interpreted as irreverent licentia makes it clear that freedom of speech was not conceived of as a right, since speaking up could not otherwise have been considered a sign of impertinence. As David Konstan argues in his study on the Greek notion of parrhesia, 'the exercise of a right cannot be considered an abuse of the right. Parrhesia in the democracy ought to be wholly positive' . 68 It appears evident that citizens of the Roman Republic could indeed speak freely and, at least in theory, that not only men of auctoritas were entitled to do so. Although speaking freely appears to be conceived of as a quality that is more appropriate to the latter, it does not follow that, as Kloesel and Momigliano suggest, liberty of speech was mainly a matter of auctoritas. As the historical reconstruction above shows, although unprotected by law, the people of Rome were endowed with the ability to speak their own mind. This could indeed have been frowned upon, but not forbidden -as a punishment, the thief or the squanderer were deprived of their right to address the assembly.
However, this power to speak freely was not a matter of right, but rather the exercise of a personal ability, constitutive of human nature, that was regulated by contemporary social norms.
It follows that the question concerning the possibility of private citizens addressing a contio, in terms of either the exercise of a civic and political right belonging to Roman citizens or a discretional concession to them by the presiding magistrate, is ill posed. Roman citizens, I have argued, did not have a right to speak freely; they had an ability to do so, which, on the whole, they exercised, albeit, of course, within the legal and social limitations of the period. The exercise of this ability was considered an act of free expression or, rather, of impudent slander according to circumstances judged by contemporary social norms. In other words, speaking freely was not a matter of right, because it was the positive moral quality of a natural ability of human beings, and thereby it could not have provided a field of legislation. It belonged to a different realm from that of the 'straight talk test' that modern Republicanism requires for the establishment of a free and just society.
This article is an analysis that attempts to solve a historical problem posed by the reality of the Roman Republic: the reasons why the Romans of the Republic did not develop a right to free speech. It does not aim to find in ancient Rome solutions that could directly be applied to solve contemporary problems.69 It does, however, aim at identifying, with the greatest historical accuracy possible, a past conceptualisation of and attitude towards the issue of liberty of speech, an intercultural value that takes different forms in different societies at different times.
By doing so, it shows that in the Republic the Romans did indeed hold a way of thinking about liberty of speech, which is distinctively different from our current, almost intuitive, way of conceptualising it. By stripping this ancient notion of its historical specificities and considering its inherent logical propositions,