Front Page Titles (by Subject) LXXXIX: To Aristo - Letters of Marcus Tullius Cicero
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LXXXIX: To Aristo - Marcus Tullius Cicero, Letters of Marcus Tullius Cicero 
Letters of Marcus Tullius Cicero: with his Treatises on Friendship and Old Age, trans. E.S. Shuckburgh. And Letters of Gaius Plinius Caecilius Secundus, trans. William Melmoth, revised by F.C.T. Bosanquet (New York: P.F. Collier, 1909).
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As you are no less acquainted with the political laws of your country (which include the customs and usages of the senate) than with the civil, I am particularly desirous to have your opinion whether I was mistaken in an affair which lately came before the house, or not. This I request, not with a view of being directed in my judgment as to what is passed (for that is now too late), but in order to know how to act in any possible future case of the kind. You will, ask, perhaps, “Why do you apply for information concerning a point on which you ought to be well instructed?” Because the tyranny of former reigns,1 as it introduced a neglect and ignorance of all other parts of useful knowledge, so particularly of what relates to the customs of the senate; for who is there so tamely industrious as to desire to learn what he can never have an opportunity of putting in practice? Besides, it is not very easy to retain even the knowledge one has acquired where no opportunity of employing it occurs. Hence it was that Liberty, on her return2 found us totally ignorant and inexperienced; and thus in the warmth of our eagerness to taste her sweets, we are sometimes hurried on to action, ere we are well instructed how we ought to act. But by the institution of our ancestors, it was wisely provided that the young should learn from the old, not only by precept, but by their own observation, how to behave in that sphere in which they were one day themselves to move; while these, again, in their turn, transmitted the same mode of instruction to their children. Upon this principle it was that the youth were sent early into the army, that by being taught to obey they might learn to command, and, whilst they followed others, might be trained by degrees to become leaders themselves. On the same principle, when they were candidates for any office, they were obliged to stand at the door of the senate-house, and were spectators of the public council before they became members of it. The father of each youth was his instructor upon these occasions, or if he had none, some person of years and dignity supplied the place of a father. Thus they were taught by that surest method of discipline, Example; how far the right of proposing any law to the senate extended; what privileges a senator had in delivering his opinion in the house; the power of the magistrates in that assembly, and the rights of the rest of the members; where it is proper to yield, and where to insist; when and how long to speak, and when to be silent; how to make necessary distinctions between contrary opinions, and how to improve upon a former motion: in a word, they learnt by this means every senatorial usage. As for myself, it is true indeed, I served in the army when I was a youth; but it was at a time when courage was suspected, and want of spirit rewarded; when generals were without authority, and soldiers without modesty; when there was neither discipline nor obedience, but all was riot, disorder, and confusion; in short, when it was happier to forget than to remember what one learnt. I attended likewise in my youth the senate, but a senate shrinking and speechless; where it was dangerous to utter one’s opinion, and mean and pitiable to be silent. What pleasure was there in learning, or indeed what could be learnt, when the senate was convened either to do nothing whatever or to give their sanction to some consummate infamy! when they were assembled either for cruel or ridiculous purposes, and when their deliberations were never serious, though often sad! But I was not only a witness to this scene of wretchedness, as a spectator; I bore my share of it too as a senator, and both saw and suffered under it for many years; which so broke and damped my spirits that they have not even yet been able fully to recover themselves. It is within quite recently (for all time seems short in proportion to its happiness) that we could take any pleasure in knowing what relates to or in setting about the duties of our station. Upon these considerations, therefore, I may the more reasonably entreat you, in the first place, to pardon my error (if I have been guilty of one), and, in the next, to lead me out of it by your superior knowledge: for you have always been diligent to examine into the constitution of your country, both with respect to its public and private, its ancient and modern, its general and special laws. I am persuaded indeed the point upon which I am going to consult you is such an unusual one that even those whose great experience in public business must have made them, one would have naturally supposed, acquainted with everything were either doubtful or absolutely ignorant upon it. I shall be more excusable, therefore, if I happen to have been mistaken; as you will earn the higher praise if you can set me right in an affair which it is not clear has ever yet fallen within your observation. The enquiry then before the house was concerning the freedmen of Afranius Dexter, who being found murdered, it was uncertain whether he fell by his own hands, or by those of his household; and if the latter, whether they committed the fact in obedience to the commands of Afranius, or were prompted to it by their own villainy. After they had been put to the question, a certain senator (it is of no importance to mention his name, but if you are desirous to know, it was myself) was for acquitting them; another proposed that they should be banished for a limited time; and a third that they should suffer death. These several opinions were so extremely different that it was impossible either of them could stand with the other. For what have death and banishment in common with one another? Why, no more than banishment and acquittal have together. Though an acquittal approaches rather nearer a sentence of exile than a sentence of death does: for both the former agrec at least in this that they spare life, whereas the latter takes it away. In the meanwhile, those senators who were for punishing with death, and those who proposed banishment, sate together on the same side of the house: and thus by a present appearance of unanimity suspended their real disagreement. I moved, therefore, that the votes for each of the three opinions should be separately taken, and that two of them should not, under favour of a short truce between themselves, join against the third. I insisted that such of the members who were for capital punishment should divide from the others who voted for banishment; and that these two distinct parties should not be permitted to form themselves into a body, in opposition to those who declared for acquittal, when they would immediately after disunite again: for it was not material that they agreed in disliking one proposal, since they differed with respect to the other two. It seemed very extraordinary that he who moved the freedmen should be banished, and the slaves suffer death, should not be allowed to join these two in one motion, but that each question should be ordered to be put to the house separately; and yet that the votes of one who was for inflicting capital punishment upon the freedmen should be taken together with that of one who was for banishing them. For if, in the former instance, it was reasonable that the motion should be divided, because it comprehended two distinct propositions, I could not see why, in the latter case, suffrages so extremely different should be thrown into the same scale. Permit me, then, notwithstanding the point is already settled, to go over it again as if it were still undecided, and to lay before you those reasons at my ease, which I offered to the house in the midst of much interruption and clamour. Let us suppose there had been only three judges appointed to hear this cause, one of whom was of opinion that the parties in question deserved death; the other that they should only be banished; and the third that they ought to be acquitted: should the two former unite their weight to overpower the latter, or should each be separately balanced? For the first and second are no more compatible than the second and third. They ought therefore in the same manner to be counted in the senate as contrary opinions, since they were delivered as different ones. Suppose the same person had moved that they should both have been banished and put to death, could they possibly, in pursuance of this opinion, have suffered both punishments? Or could it have been looked upon as one consistent motion when it united two such different decisions? Why then should the same opinion, when delivered by distinct persons, be considered as one and entire, which would not be deemed so if it were proposed by a single man? Does not the law manifestly imply that a distinction is to be made between those who are for a capital conviction, and those who are for banishment, in the very form of words made use of when the house is ordered to divide? You who are of such an opinion, come to this side; you who are of any other, go over to the side of him whose opinion you follow. Let us examine this form, and weigh every sentence: You who are of this opinion: that is, for instance, you who are for banishment, come on this side; namely, on the side of him who moved for banishment. From whence it is clear he cannot remain on this side of those who are for death. You who are for any other: observe, the law is not content with barely saying another, but it adds any. Now can there be a doubt as to whether they who declare for a capital conviction are of any other opinion than those who propose exile! Go over to the side of him whose opinion you follow: does not the law seem, as it were, to call, compel, drive over, those who are of different opinions, to contrary sides? Does not the consul himself point out, not only by this solemn form of words, but by his hand and gesture, the place in which every man is to remain, or to which he is to go over? “But,” it is objected, “if this separation is made between those who vote for inflicting death, and those who are on the side of exile, the opinion for acquitting the prisoners must necessarily prevail.” But how does that affect the parties who vote? Certainly it does not become them to contend by every art, and urge every expediment, that the milder sentence may not take place. “Still,” say they, “those who are for condemning the accused either capitally or to banishment should be first set in opposition to those who are for acquitting them, and afterwards weighed against each other.” Thus, as, in certain public games, some particular combatant is set apart by lot and kept to engage with the conqueror; so, it seems, in the senate there is a first and second combat, and of two different opinions, the prevailing one has still a third to contend with. What? when any particular opinion is received, do not all the rest fall of course? Is it reasonable, then, that one should be thrown into the scale merely to weigh down another? To express my meaning more plainly: unless the two parties who are respectively for capital punishment and exile immediately separate upon the first division of the house it would be to no purpose afterwards to dissent from those with whom they joined before. But I am dictating instead of receiving instruction.—Tell me then whether you think these votes should have been taken separately? My motion, it is true, prevailed; nevertheless I am desirous to know whether you think I ought to have insisted upon this point, or have yielded as that member did who declared for capital punishment? For convinced, I will not say of the legality, but at least of the equity of my proposal, he receded from his opinion, and went over to the party for exile: fearing perhaps, if the votes were taken separately (which he saw would be the case), the freedmen would be acquitted: for the numbers were far greater on that side than on either of the other two, separately counted. The consequence was that those who had been influenced by his authority, when they saw themselves forsaken by his going over to the other party, gave up a motion which they found abandoned by the first proposer, and deserted, as it were, with their leader. Thus the three opinions were resolved at length into two; and of those two, one prevailed, and the other was rejected; while the third, as it was not powerful enough to conquer both the others, had only to choose to which of the two it would yield. Farewell.
[1 ]Those of Nero and Domitian. M.
[2 ]When Nerva and Trajan received the empire. M.