Front Page Titles (by Subject) THE SPEECH OF M. T. CICERO IN DEFENCE OF AULUS CLUENTIUS AVITUS. - Orations vol. 2: Three Orations on the Agrarian Law, the four against Cataline, the Orations for Rabirius Murena, Sylla, Archias, Flaccus, Scaurus, etc
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THE SPEECH OF M. T. CICERO IN DEFENCE OF AULUS CLUENTIUS AVITUS. - Marcus Tullius Cicero, Orations vol. 2: Three Orations on the Agrarian Law, the four against Cataline, the Orations for Rabirius Murena, Sylla, Archias, Flaccus, Scaurus, etc 
The Orations of Marcus Tullius Cicero, trans. C.D. Yonge (London: G. Bell and Sons, 1913-21). Vol. 2.
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THE SPEECH OF M. T. CICERO IN DEFENCE OF AULUS CLUENTIUS AVITUS.
Aulus Cluentius, a Roman knight of great riches, was accused before the prætor of having poisoned his father-in-law, Oppianicus, who a few years previously had been tried and banished for an attempt to poison Cluentius. For Oppianicus had murdered Melinus, the former husband of Sassia, the mother of Cluentius, and married her, and finding that if Cluentius were dead his property would all come to his mother, endeavoured to poison him, but was detected and convicted. After his conviction, Lucius Quintius, a tribune of the people, who had defended him on his trial, endeavoured at all times to excite odium against Cluentius, saying that he had procured the conviction of Oppianicus’ by bribery, though in point of fact Oppianicus himself had employed large sums in endeavours to bribe his judges, and Stalenus and others had been convicted of being parties to the corruption. In the fifth year of his exile Oppianicus died, and a prosecution was instituted against Cluentius by Sassia, his own mother; saying that he had poisoned Oppianicus by the agency of a man of the name of Marcus Asellius. Cluentius was acquitted. This happened three years before this present trial. But now Sassia, having married her daughter to the young Oppianicus, urged him to institute fresh proceedings against Cluentius. So he prosecuted him afresh. His counsel was Lucius Attius, and the cause was tried before Quintus Vocontius Naso, in the consulship of Marcus Æmilius Lepidus and Lucius Volcatius Tullus, a.u.c. 688.1 Cluentius was acquitted.
I. I have observed, O judges, that the whole speech of the accuser is divided into two parts, one of which appeared to me to rely upon, and to put its main trust in, the inveterate unpopularity of the trial before Junius;2 the other, just for the sake of usage, to touch very lightly and diffidently on the method pursued in cases of accusations of poisoning; concerning which matter this form of trial is appointed by law. And, therefore, I have determined to preserve the same division of the subject in my defence, speaking separately to the question of unpopularity and to that of the accusation, in order that every one may understand that I neither wish to evade any point by being silent with respect to it, nor to make anything obscure by speaking of it. But when I consider how much pains I must take with each branch of the question, one division—that, namely, which is the proper subject of your inquiry, the question of the fact of the poisoning—appears to me a very short one, and one which is not likely to give occasion to any great dispute. But with the other division, which, properly, is almost entirely unconnected with the case, and which is better adapted to assemblies in a state of seditious excitement, than to tranquil and orderly courts of justice, I shall, I can easily see, have a great deal of difficulty in dealing, and a great deal of trouble. But in all this embarrassment, O judges, this thing still consoles me,—that you have been accustomed to hear accusations under the idea that you will afterwards hear their refutation from the advocate; that you are bound not to give the defendant more advantages towards ensuring his acquittal, than his counsel can procure for him by clearing him of the charges brought against him, and by proving his innocence in his speech. But as regards the odium into which they seek to bring him, you ought to deliberate together, considering not what is said by us, but what ought to be said. For while we are dealing with the accusations, it is only the safety of Aulus Cluentius that is at stake; but by the odium sought to be excited against him, the common safety of all men is imperilled. Accordingly, we will treat one division of the case as men who are giving you information, and the other division, as men who are addressing entreaties to you. In the first division we must beg of you to give us your diligent attention; in the second, we must implore the protection of your good faith. There is no one who can withstand the popular feeling when excited against him without the assistance of you and of men like you. As far as I myself am concerned, I hardly know which way to turn. Shall I deny that there is any ground for the disgraceful accusation,—that the judges were corrupted at the previous trial? Shall I deny that that matter has been agitated at assemblies of the people? that it has been brought before the courts of justice? that it has been mentioned in the senate? Can I eradicate that belief from men’s minds? a belief so deeply implanted in them—so long established. It is out of the power of my abilities to do so. It is a matter requiring your aid, O judges; it becomes you to come to the assistance of the innocence of this man attacked by such a ruinous calumny, as you would in the case of a destructive fire or of a general conflagration.
II. Indeed, as in some places truth appears to have but little foundation to rest upon, and but little vigour, so in this place unpopularity arising on false grounds ought to be powerless. Let it have sway in assemblies, but let it be overthrown in courts of justice; let it influence the opinions and conversation of ignorant men, but let it be rejected by the dispositions of the wise; let it make sudden and violent attacks, but when time for examination is given, and when the facts are ascertained, let it die away. Lastly, let that definition of impartial tribunals which has been handed down to us from our ancestors be still retained; that in them crimes are punished without any regard being had to the popularity or unpopularity of the accused party; and unpopularity is got rid of without any crime being supposed to have been ever attached to it. And, therefore, O judges, I beg this of you before I begin to speak of the cause itself; in the first place, as is most reasonable, that you will bring no prejudice into court with you. In truth, we shall lose not only the authority, but even the name of judges, unless we judge from the facts which appear in the actual trials, and if we bring into court with us minds already made up on the subject at home. In the second place, I beg of you, if you have already adopted any opinion in your minds, that if reason shall eradicate it,—if my speech shall shake it,—if, in short, truth shall wrest it from you, you will not resist, but will dismiss it from your minds, if not willingly, at all events, impartially. I beg you, also, when I am speaking to each particular point, and effacing any impression my adversary may have made, not silently to let your thoughts dwell on the contrary statement to mine, but to wait to the end, and allow me to maintain the order of my arguments which I propose to myself; and when I have summed up, then to consider in your minds whether I have passed over anything.
III. I, O judges, am thoroughly aware that I am undertaking a cause which has now for eight years together been constantly discussed in a spirit opposed to the interests of my client, and which has been almost convicted and condemned by the silent opinion of men; but if any god will only incline your good-will to listen to me patiently, I will show you that there is nothing which a man has so much reason to dread as envy,—that when he has incurred envy, there is nothing so much to be desired by an innocent man as an impartial tribunal, because in this alone can any end and termination be found at last to undeserved disgrace. Wherefore, I am in very great hope, if I am able fully to unravel all the circumstances of this case, and to effect all that I wish by my speech, that this place, and this bench of judges before whom I am pleading, which the other side has expected to be most terrible and formidable to Aulus Cluentius, will be to him a harbour at last, and a refuge for the hitherto miserable and tempest-tost bark of his fortunes. Although there are many things which seem to me necessary to be mentioned respecting the common dangers to which all men are exposed by unpopularity, before I speak about the cause itself; still, that I may not keep your expectations too long in suspense by my speech, I will come to the charge itself, only begging you, O judges, as I am aware I must frequently do in the course of this trial, to listen to me, as if this cause were now being this day pleaded for the first time,—as, in fact, it is; and not as if it had already been often discussed and proved. For on this day opportunity is given us for the first time of effacing that old accusation; up to this time mistake and odium have had the principal influence in the whole cause. Wherefore, while I reply with brevity and clearness to the accusation of many years standing, I entreat you, O judges, to listen to me, as I know that you are predetermined to do, with kindness and attention.
IV. Aulus Cluentius is said to have corrupted a tribunal with money, in order to procure the condemnation of his innocent enemy, Statius Albius. I will prove, O judges, in the first place, (since that is the principal wickedness charged against him, and the chief pretext for casting odium upon him, that an innocent man was condemned through the influence of money,) that no one was ever brought before a court on heavier charges, or with more unimpeachable witnesses against him to prove them. In the second place, that a previous examination into the matter had been made by the very same judges who afterwards condemned him, with such a result that he could not possibly have been acquitted, not only by them, but by any other imaginable tribunal. When I have demonstrated this, then I will prove that point which I am aware is particularly indispensable, that that tribunal was indeed tampered with, not by Cluentius, but by the party hostile to Cluentius; and I will enable you to see clearly in the whole of that cause what the facts really were—what mistake gave rise to—and what had its origin in the unpopularity undeservedly stirred up against Cluentius.
The first point is this, from which it may be clearly seen that Cluentius had the greatest reason to confide in the justice of his cause, because he came down to accuse Albius relying on the most certain facts and unimpeachable witnesses. While on this topic, it is necessary for me, O judges, briefly to explain the accusations of which Albius was convicted. I demand of you, O Oppianicus, to believe that I speak unwillingly of the affair in which your father was implicated, because I am compelled by considerations of good faith, and of my duty as counsel for the defence. And, if I am unable at the present moment to satisfy you of this, yet I shall have many other opportunities of satisfying you at some future time; but unless I do justice to Cluentius now, I shall have no subsequent opportunity of doing justice to him. At the same time who is there who can possibly hesitate to speak against a man who has been condemned and is dead, on behalf of one unconvicted and living, when in the case of him who is being so spoken against conviction has taken away all danger of further disgrace, and death all fear of any further pain? and when, on the other hand, no disaster can happen to that man on behalf of whom one is speaking, without causing him the most acute feeling and pain of mind, and without branding his future life with the greatest disgrace and ignominy? And that you may understand that Cluentius was not induced to prosecute Oppianicus by a disposition fond of bringing accusations, or by any fondness for display or covetousness of glory, but by nefarious injuries, by daily plots against him, by hazard of his life, which has been every day set before his eyes, I must go back a little further to the very beginning of the business; and I entreat you, O judges, not to be weary or indignant at my doing so—for when you know the beginning, you will much more easily understand the end.
V. Aulus Cluentius Avitus, this man’s father, O judges, was a man by far the most distinguished for valour, for reputation and for nobleness of birth, not only of the municipality of Larinum, of which he was a native, but also of all that district and neighbourhood. When he died, in the consulship of Sylla and Pompeius,1 he left this son, a boy fifteen years old, and a daughter grown up and of marriageable age, who a short time after her father’s death married Aulus Aurius Melinus, her own cousin, a youth of the fairest possible reputation, as was then supposed, among his countrymen, for honour and nobleness. This marriage subsisted with all respectability and all concord; when on a sudden there arose the nefarious lust of an abandoned woman, united not only with infamy but even with impiety. For Sassia, the mother of this Avitus, (for she shall be called his mother by me, just for the name’s sake, although she behaves towards him with the hatred and cruelty of an enemy,)—she shall, I say, be called his mother; nor will I even so speak of her wickedness and barbarity as to forget the name to which nature entitles her; (for the more loveable and amiable the name of mother is, the more will you think the extraordinary wickedness of that mother, who for these many years has been wishing her son dead, and who wishes it now more than ever, worthy of all possible hatred.) She, then, the mother of Avitus, being charmed in a most impious matter with love for that young man, Melinus, her own son-in-law, at first restrained her desires as she could, but she did not do that long. Presently, she began to get so furious in her insane passion, she began to be so hurried away by her lust, that neither modesty, nor chastity, nor piety, nor the disgrace to her family, nor the opinion of men, nor the indignation of her son, nor the grief of her daughter, could recal her from her desires. She seduced the mind of the young man, not yet matured by wisdom and reason, with all those temptations with which that early age can be charmed and allured. Her daughter, who was tormented not only with the common indignation which all women feel at injuries of that sort from their husbands, but who also was unable to endure the infamous prostitution of her mother, of which she did not think that she could even complain to any one without committing a sin herself, wished the rest of the world to remain in ignorance of this her terrible misfortune, and wasted away in grief and tears in the arms and on the bosom of Cluentius, her most affectionate brother. However, there is a sudden divorce, which appeared likely to be a consolation for all her misfortunes. Cluentia departs from Melinus; not unwilling to be released from the infliction of such injuries, yet not willing to lose her husband. But then that admirable and illustrious mother of hers began openly to exult with joy, to triumph in her delight, victorious over her daughter, not over her lust. Therefore she did not choose her reputation to be attacked any longer by uncertain suspicions; she orders that genial bed, which two years before she had decked for her daughter on her marriage, to be decked and prepared for herself in the very same house, having driven and forced her daughter out of it. The mother-in-law marries the son-in-law, no one looking favourably on the deed, no one approving it, all foreboding a dismal end to it.
VI. Oh, the incredible wickedness of the woman, and, with the exception of this one single instance, unheard of since the world began! Oh, the unbridled and unrestrained lust! Oh, the extraordinary audacity of her conduct! To think that she did not fear (even if she disregarded the anger of the gods and the scorn of men) that nuptial night and those bridal torches! that she did not dread the threshold of that chamber! nor the bed of her daughter! nor those very walls, the witnesses of the former wedding! She broke down and overthrew everything in her passion and her madness; lust got the better of shame, audacity subdued fear, mad passion conquered reason. Her son was indignant at this common disgrace of his family, of his blood, and of his name. His misery was increased by the daily complaints and incessant weeping of his sister; still he resolved that he ought to do nothing more himself with reference to his grievous injuries and the terrible wickedness of his mother, beyond ceasing to consider her as his mother; lest, if he did continue to behave to her as if she were his mother, he might be thought not only to see, but in his heart to approve of, those things which he could not behold with out the greatest anguish of mind.
You have heard what was the origin of the bad feeling between him and his mother; when you know the rest, you will perceive that I feared this with reference to our cause; for, I am not ignorant that, whatever sort of woman a mother may be, still in a trial in which her son is concerned, it is scarcely fitting that any mention should be made of the infamy of his mother. I should not, O judges, be fit to conduct any cause, if, when I was employed in warding off danger from a friend, I were to fail to see this which is implanted and deeply rooted in the common feelings of all men, and in their very nature. I am quite aware, that it is right for men not only to be silent about the injuries which they suffer from their parents, but even to bear them with equanimity; but I think that those things which can be borne ought to be borne, that those things which can be buried in silence ought to be buried in silence. Aulus Cluentius has seen no calamity in his whole life, has encountered no peril of death, has feared no evil, which has not been contrived against, and brought to bear upon him, from beginning to end, by his mother. But all these things he would say nothing of at the present moment, and would allow them to be buried, if possible, in oblivion, and if not, at all events in silence as far as he is concerned, but she does these things in such a manner that he is totally unable to be silent about them; for this very trial, this danger in which he now is, this accusation which is brought against him, all the multitude of witnesses which is to appear, has all been provided originally by his mother; is marshalled by his mother at this present time; and is furthered with all her wealth and all her influence. She herself has lately hastened from Larinum to Rome for the sake of destroying this her son. The woman is at hand, bold, wealthy and cruel. She has provided accusers; she has trained witnesses; she rejoices in the mourning garments and miserable appearance of Cluentius; she longs for his destruction; she would be willing to shed her own blood to the last drop, if she can only see his blood shed first. Unless you have all these circumstances proved to you in the course of this trial, I give you leave to think that she is unjustly brought before the court by me now; but if all these things are made as plain as they are abominable, then you ought to pardon Cluentius for allowing these things to be said by me; and you ought not to pardon me if I were silent under such circumstances.
VII. Now I will just briefly relate to you on what charges Oppianicus was convicted; that you may be able to see clearly both the constancy of Aulus Cluentius and the cause of this accusation. And first of all I will show you what was the cause of the prosecution of Oppianicus; so that you may see that Aulus Cluentius only instituted it because he was compelled by force and absolute necessity.
When he had evidently taken poison, which Oppianicus, the husband of his mother, had prepared for him; and as this fact was proved, not by conjecture, but by eye-sight,—by his being caught in the fact; and as there could be no possible doubt in the case, he prosecuted Oppianicus. With what constancy, with what diligence he did so, I will state hereafter; at present I wish you to be aware that he had no other reason for accusing him, except that this was the only method by which he could escape the danger manifestly intended to his life, and the daily plots laid against his existence. And that you may understand that Oppianicus was accused of charges from which a prosecutor had nothing to fear, and a defendant nothing to hope, I will relate to you a few of the items of accusation which were brought forward at that trial; and when you have heard them, none of you will wonder that he should have distrusted his case, and betaken himself to Stalenus and to bribery.
There was a woman of Larinum, named Dinea, the mother-in-law of Oppianicus, who had three sons, Marcus Aurius, Numerius Aurius, and Cnæus Magius, and one daughter, Magia, who was married to Oppianicus. Marcus Aurius, quite a young man, having been taken prisoner in the social war at Asculum, fell into the hands of Quintus Sergius, a senator, who was convicted of assassination, and was put by him in his slaves’ prison. But Numerius Aurius, his brother, died, and left Cnæus Magius, his brother, his heir. Afterwards, Magia, the wife of Oppianicus, died; and last of all, that one who was the last of the sons of Dinea, Cnæus Magius, also died. He left as his heir that young Oppianicus, the son of his sister, and enjoined that he should share the inheritance with his mother Dinea. In the meantime an informant comes to Dinea, (a man neither of obscure rank, nor uncertain as to the truth of his news,) to tell her that her son Marcus Aurius is alive, and is in the territory of Gaul, in slavery. The woman, having lost her children, when the hope of recovering one of her sons was held out to her, summoned all her relations, and all the intimate friends of her son, and with tears entreated them to undertake the business, to seek out the youth, and to restore to her that son whom fortune had willed should be the only one remaining to her out of many. Just when she had begun to adopt these measures, she was taken ill. Therefore she made a will in these terms: she left to that son four hundred thousand sesterces; and she made that Oppianicus who has been already mentioned, her grandson, her heir. And a few days after, she died. However, these relations, as they had undertaken to do while Dinea was alive, when she was dead, went into the Gallic territory to search out Aurius, with the same man who had brought Dinea the information.
VIII. In the meantime, Oppianicus being, as you will have proved to you by many circumstances, a man of singular wickedness and audacity, by means of some Gaul, his intimate friend, first of all corrupted that informer with a bribe, and after that, at no great expense, managed to have Aurius himself got out of the way and murdered. But they who had gone to seek out and recover their relation, send letters to Larinum, to the Aurii, the relations of that young man, and their own intimate friends, to say that the investigation was very difficult for them, because they understood that the man who had given the information had been since bribed by Oppianicus. And these letters Aulus Aurius, a brave and experienced man, and one of high rank in his own city, the near relation of the missing Marcus Aurius, read openly in the forum, in the hearing of plenty of people, in the presence of Oppianicus himself, and with a loud voice declared that he would prosecute Oppianicus if he found that Marcus Aurius had been murdered. The feelings, not only of his relations, but also of all the citizens of Larinum, are moved by hatred of Oppianicus, and pity for that young man. Therefore, when Aulus Aurius, he who had previously made this declaration, began to follow the man with loud cries and with threats, he fled from Larinum, and betook himself to the camp of that most illustrious man, Quintus Metellus. After that flight, the witness of his crime, and of his consciousness of it, he never ventured to commit himself to the protection of a court of justice, or of the laws,—he never dared to trust himself unarmed among his enemies; but at the time when violence was stalking abroad, after the victory of Lucius Sylla, he came to Larinum with a body of armed men, to the great alarm of all the citizens; he carried off the quatuorviri,1 whom the citizens of that municipality had elected; he said that he and three others had been appointed by Sylla; and he said that he received orders from him to take care that that Aurius who had threatened him with prosecution and with danger to his life, and the other Aurius, and Caius Aurius his son, and Sextus Vibius, whom he was said to have employed as his agent in corrupting the man who had given the information, were proscribed and put to death. Accordingly, when they had been most cruelly murdered, the rest were all thrown into no slight fear of proscription and death by that circumstance. When these things had been made manifest at the trial, who is there who can think it possible that he should have been acquitted?
IX. And these things are trifles. Listen to what follows, and you will wonder, not that Oppianicus was at last condemned, but that he remained for some time in safety.
In the first place, remark the audacity of the man. He was anxious to marry Sassia, the mother of Avitus, her whose husband, Aulus Aurius, he had murdered. It is hard to say whether he who wished such a thing was the more impudent, or she who consented was the more heartless. However, remark the humanity and virtue of both of them. Oppianicus asks, and most earnestly entreats Sassia to marry him. But she does not marvel at his audacity,—does not scorn and reject his impudence, she is not even alarmed at the idea of the house of Oppianicus, red with her husband’s blood; but she says that she has a repugnance to this marriage, because he has three sons. Oppianicus, who coveted Sassia’s money, thought that he must seek at home for a remedy for that obstacle which was opposed to his marriage. For as he had an infant son by Novia, and as a second son of his, whom he had had by Papia, was being brought up under his mother’s eye at Teanum in Apulia, which is about eighteen miles from Larinum, on a sudden, without alleging any reason, he sends for the boy from Teanum, which he had previously never been accustomed to do, except at the time of the public games, or on days of festival. His miserable mother, suspecting no evil, sends him. He pretended to set out himself to Tarentum; and on that very day the boy, though at the eleventh hour he had been seen in public in good health, died before night, and the next day was burnt before daybreak. And common report brought this miserable news to his mother before any one of Oppianicus’s household brought her news of it. She, when she had heard at one and the same time, that she was deprived not only of her son, but even of the sad office of celebrating his funeral rites, came instantly, half dead with grief, to Larinum, and there performs funeral obsequies over again for her already buried son. Ten days had not elapsed when his other infant son is also murdered; and then Sassia immediately marries Oppianicus, rejoicing in his mind, and feeling confident of the attainment of his hopes. No wonder she married him, when she saw him so eager to propitiate her, not with ordinary nuptial gifts, but with the deaths of his sons. So that other men are often covetous of money for the sake of their children, but that man thought it more agreeable to lose his children for the sake of money.
X. I see, O judges, that you, as becomes your feelings of humanity, are violently moved at these enormous crimes now briefly related by me. What do you think must have been their feelings who had not only to hear of these wicked deeds, but also to sit in judgment on them? You are hearing of a man, in whose case you are not the judges,—of a man whom you do not see,—of a man whom you now can no longer hate,—of a man who has made atonement to nature and to the laws whom the laws have punished with banishment, nature with death. You are hearing of these actions, not from any enemy, you are hearing of them without any witnesses being produced; you are hearing of them when those things which might be enlarged upon at the greatest length are stated by me in a brief and summary manner. They were hearing of the actions of a man with reference to whom they were bound to deliver their judgment on oath,—of a man who was present, whose infamous and hardened countenance they were looking upon,—of a man whom they hated on account of his audacity,—of him whom they thought worthy of every possible punishment. They were hearing the relation of these crimes from his accusers; they were hearing the statements of many witnesses; they were hearing a serious and long oration on each separate particular from Publius Canutius, a most eloquent man. And is there any man who, when he has become acquainted with these things, can suspect that Oppianicus was taken unfair advantage of, and crushed at his trial, though he was innocent? I will now mention all the other things in a lump, O judges, in order to come to those things which are nearer to, and more immediately connected with, this cause.
I entreat you to recollect that it was no part of my original intention to bring any accusation against Oppianicus, now that he is dead; but that as I wish to persuade you that the tribunal was not bribed by my client, I use this as the beginning and foundation of my defence,—that Oppianicus was condemned, being a most guilty and wicked man. He himself gave a cup to his own wife Cluentia, who was the aunt of that man Avitus, and she while drinking it cried out that she was dying in the greatest agony; and she lived no longer than she was speaking, for she died in the middle of this speech and exclamation. And besides the suddenness of this death, and the exclamation of the dying woman, everything which is considered a sign and proof of poison was discovered in her body after she was dead.
XI. And by the same poison he killed Caius Oppianicus his brother,—and even this was not enough. Although in the murder of his brother no wickedness seems to have been omitted, still he prepared beforehand the road by which he was to arrive at his abominable crime by other acts of wickedness. For, as Auria, his brother’s wife, was in the family way, and appeared to be near the time of her confinement, he murdered her also with poison, so that she and his own brother’s child, whom she bore within her, perished at the same time. After that he attacked his brother; who, when it was too late, after he had drank that cup of death, and when he was uttering loud exclamations about his own and his wife’s death, and was desirous to alter his will, died during the actual expression of this intention. So he murdered the woman, that he might not be cut off from his brother’s inheritance by her confinement; and he deprived his brother’s children of life before they were able to receive from nature the light which was intended for them; so as to give every one to understand that nothing could be protected against him, that nothing was too holy for him, from whose audacity even the protection of their mother’s body had been unable to preserve his own brother’s children.
I recollect that a certain Milesian woman, when I was in Asia, because she had by medicines brought on abortion, having been bribed to do so by the heirs in reversion, was convicted of a capital crime; and rightly, inasmuch as she had destroyed the hope of the father, the memory of his name, the supply of his race, the heir of his family, a citizen intended for the use of the republic. How much severer punishment does Oppianicus deserve for the same crime? For she, by doing this violence to her person, tortured her own body; but he effected this same crime through the torture and death of another. Other men do not appear to be able to commit many atrocious murders on one individual, but Oppianicus has been found clever enough to destroy many lives in one body.
XII. Therefore when Cnæus Magius, the uncle of that young Oppianicus, had become acquainted with the habits and audacity of this man, and, being stricken with a sore disease, had made him, his sister’s son, his heir, summoning his friends, in the presence of his mother Dinea, he asked his wife whether she was in the family way; and when she said that she was, he begged of her after his death to live with Dinea, who was her mother-in-law, till she was confined, and to take great care to preserve and to bring forth alive the child that she had conceived. Accordingly, he leaves her in his will a large sum, which she was to receive from his child if a child was born, but leaves her nothing from the reversionary heir. You see what he suspected of Oppianicus; what his opinion of him was is plain enough. For though he left his son his heir, he did not leave him guardian to his children. Now, learn what Oppianicus did; and you will see that Magius, when dying, had an accurate foresight of what was to happen. The money which had been left to her from her child if any was born, that Oppianicus paid to her at once, though it was not due; if, indeed, it is to be called a payment of a legacy, and not wages for procuring abortion; and she, having received that sum, and many other presents besides, which were read out of the codicils of Oppianicus’s will, being subdued by avarice, sold to the wickedness of Oppianicus that hope which she had in her womb, and which had been so commended to her care by her husband. It would seem now that nothing could possibly be added to this wickedness: listen to the end.—The woman who, according to the solemn request of her husband, ought not for ten months to have ever entered any house but that of her mother-in-law; five months after her husband’s death married Oppianicus himself. But that marriage did not last long, for it was entered into, not with any regard to the dignity of wedlock, but from a partnership in wickedness.
XIII. What more shall I say? How notorious, while the fact was recent, was the murder of Asinius of Larinum, a wealthy young man! how much talked about in every one’s conversation! There was a man of Larinum of the name of Avilius, a man of abandoned character and great poverty, but exceedingly skilful in rousing and gratifying the passions of young men; and as by his attentions and obsequiousness he had wormed himself into the acquaintance of Asinius, Oppianicus began forthwith to hope, that by means of this Avilius, as if he were an instrument applied for the purpose, he might catch the youth of Asinius, and take his father’s wealth from him by storm. The plan was devised at Larinum; the accomplishment of it was transferred to Rome. For they thought that they could lay the foundations of that design more easily in solitude, but that they could accomplish a deed of the sort more conveniently in a crowd. Asinius went to Rome with Avilius; Oppianicus followed on their footsteps. How they spent their time at Rome, in what revels, in what scenes of debauchery, in what immense and extravagant expenses, not only with the knowledge, but even with the company and assistance of Oppianicus, would take me a long while to tell, especially as I am hurrying on to other topics. Listen to the end of this pretended friendship. When the young man was in some woman’s house, and passing the night there, and staying there also the next day, Avilius, as had been arranged, pretends that he is taken ill, and wishes to make his will—Oppianicus brings witnesses to sign it, who knew neither Asinius nor Avilius, and calls him Asinius; and he himself departs, after the will has been signed and sealed in the name of Asinius. Avilius gets well immediately. But Asinius in a very short time is slain, being tempted out to some sandpits outside he Esquiline gate, by the idea that he was being taken to some villa And after he had been missed a day or two, and could not be found in those places in which he was usually to be sought for, and as Oppianicus was constantly saying in the forum at Larinum that he and his friends had lately witnessed his will, the freedmen of Asinius and some of his friends, because it was notorious that on the last day that Asinius had been seen, Avilius had been with him, and had been seen with him by many people, proceed against him, and bring him before Quintius Manilius, who at that time was a triumvir.1 And Avilius at once, without any witness or any informer appearing against him, being agitated by the consciousness of his recent wickedness, relates everything as I have now stated it, and confesses that Asinius had been murdered by him according to the plan of Oppianicus. Oppianicus, while lying concealed in his own house, is dragged out by Manilius; Avilius the informer is produced on the other side to face him. Why need you inquire what followed? Most of you are acquainted with Manilius; he had never, from the time he was a child, had any thoughts of honour, or of the pursuit of virtue, or even of the advantage of a good character; but from having been a wanton and profligate buffoon, he had, in the dissensions of the state, arrived through the suffrages of the people at that office, to the seat of which he had often been conducted by the reproaches of the bystanders. Accordingly he arranges the business with Oppianicus; he receives a bribe from him; he abandons the cause after it was commenced, and when it was fully proved. And in this trial of Oppianicus the crime committed on Asinius was proved by many witnesses, and also by the information of Avilius; in which, it was notorious that Oppianicus’s name was mentioned first among the agents; and yet you say that he was an unfortunate and an innocent man, convicted by a corrupt tribunal.
XIV. What more? Did not your father, O Oppianicus, beyond all question, murder your grandmother Dinea, whose heir you are? who, when he had brought to her his own physician, a well-tried man and often victorious, (by whose means indeed he had slain many of his enemies,) exclaimed that she positively would not be attended by that man, through whose attention she had lost all her friends. Then immediately he goes to a man of Ancona, Lucius Clodius, a travelling quack, who had come by accident at that time to Larinum, and arranges with him for four hundred sesterces, as was shown at the time by his account-books. Lucius Clodius, being a man in a hurry, as he had many more market towns to visit, did the business off-hand, as soon as he was introduced; he took the woman off with the first draught he gave her, and did not stay at Larinum a moment afterwards. When this Dinea was making her will, Oppianicus, who was her son-in-law, having taken the papers, effaced the legacies she bequeathed in it with his finger; and as he had done this in many places, after her death, being afraid of being detected by all those erasures, he had the will copied over again, and had it signed and sealed with forged seals. I pass over many things on purpose. And indeed I fear lest I may appear to have said too much as it is. But you must suppose that he has been consistent with himself in every other transaction of his life. All the senators1 of Larinum decided that he had tampered with the public registers of the censors of that city. No one would have any account with him; no one would transact any business with him. Of all the connexions and relations that he had, no one ever left him guardian to his children. No one thought him fit to call on, or to meet in the street, or to talk to, or to dine with. All men shunned him with contempt and hatred,—all men avoided him as some inhuman and mischievous beast or pestilence. Still, audacious, infamous, guilty as he was, Avitus, O judges, would never have accused him, if he had been able to avoid doing so without danger to his own life. Oppianicus was his enemy; still he was his step-father: his mother was cruel to him and hated him; still she was his mother. Lastly, no one was ever so disinclined to prosecutions as Cluentius was by nature, by disposition, and by the constant habits of his life. But as he had this alternative set before him, either to accuse him, as he was bound to do by justice and piety, or else to be miserably and wickedly murdered himself, he preferred accusing him any way he could, to dying in that miserable manner.
And that you may have this thoroughly proved to you, I will relate to you the crime of Oppianicus, as it was clearly detected and proved, from which you will see both things, both that my client could not avoid prosecuting him, and that he could not possibly escape being convicted.
XV. There were some officers at Larinum called Martiales, the public ministers of Mars, and consecrated to that god by the old institutions and religious ceremonies of the people of Larinum. And as there was a great number of them, and as, just as there were many slaves of Venus in Sicily, these also at Larinum were reckoned part of the household of Mars, on a sudden Oppianicus began to urge on their behalf, that they were all free men, and Roman citizens. The senators of Larinum and all the citizens of that municipality were very indignant at this. Accordingly they requested Avitus to undertake the cause and to maintain the public rights of the city. Avitus, although he had entirely retired from public life, still, out of regard to the place and the antiquity of his family, and because he thought that he was born not for his own advantage only, but also for that of his fellow-citizens, and of his other friends, he was unwilling to refuse the eager importunity of all the Larinatians. Having undertaken the business, when the cause had been transferred to Rome, great contentions arose every day between Avitus and Oppianicus from the zeal of each for the side which he espoused. Oppianicus himself was a man of a bitter and savage disposition; and Avitus’s own mother, being hostile to and furious against her son, inflamed his insane hatred. But they thought it exceedingly desirable for them to get rid of him, and to disconnect him from the cause of the Martiales. There was also another more influential reason which had great weight with Oppianicus, being a most avaricious and audacious man. For, up to the time of that trial, Avitus had never made any will. For he could not make up his mind to bequeath any thing to such a mother as his, nor, on the other hand, to leave his parent’s name entirely out of his will. And as Oppianicus was aware of that, for it was no secret, he plainly saw, that, if Avitus were dead, all his property would come to his mother; and she might afterwards, when she had become richer, and had lost her son, be put out of the way by him, with more profit, and with less danger. So now see in what manner he, being urged on by these desires, endeavoured to take off Avitus by poison.
XVI. There were two twin brothers of the municipality of Aletrinum, by name Caius and Lucius Fabricius, men very like one another in appearance and disposition, but very unlike the rest of their fellow-citizens; among whom what uniform respectability of character, and what consistent and moderate habits of life prevail, there is not one of you, I imagine, who is ignorant. Oppianicus was always exceedingly intimate with these Fabricii. You are all pretty well aware what great power in causing friendship a similarity of pursuits and disposition has. As these two men lived in such a way as to think no gain discreditable; as every sort of fraud, and treachery, and cheating of young men was practised by them; as they were notorious for every sort of vice and dishonesty, Oppianicus, as I have said, had cultivated their intimacy for many years. And accordingly he now resolved to prepare destruction for Avitus by the agency of Caius Fabricius, for Lucius had died. Avitus was at that time in delicate health; and he was employing a physician of no great reputation, but a man of tried skill and honesty, by name Cleophantus, whose slave, Diogenes, Fabricius began to tamper with, and to induce by promises and bribes to give poison to Avitus. The slave, being a cunning fellow, but, as the affair proved, a virtuous and upright man, did not refuse to listen to Fabricius’s discourse; he reported the matter to his master, and Cleophantus had a conference with Avitus. Avitus immediately communicated the business to Marcus Bebrius, a senator, his most intimate friend; and I imagine you all recollect what a loyal, and prudent, and worthy man he was. His advice was that Avitus should buy Diogenes of Cleophantus, in order that the matter might be more easily proved by his information, or else be discovered to be false. Not to make a long story of it, Diogenes is bought in a few days, (when many virtuous men had secretly been made aware of it,) the poison, and the money sealed up, which was given for that purpose, is seized in the hands of Scamander, a freedman of the Fabricii. O ye immortal gods! will any one, when he has heard all these facts, say that Oppianicus was falsely convicted?
XVII. Who was ever more audacious? who was ever more guilty? who was ever brought before a court more manifestly detected in his guilt? What genius, what eloquence could there be, what plea in defence could possibly be devised, which could stand against this single accusation? And at the same time, who is there that can doubt that, in such a case as this, so clearly detected and proved, Cluentius was forced either to die himself, or to undertake the prosecution?
I think, O judges, that it is proved plainly enough, that Oppianicus was prosecuted on such accusations that it was absolutely impossible for him to be honestly acquitted. Now I will show you that he was brought before the courts as a criminal, in such a way that he came before them already condemned, as there had been more than one or even two previous investigations of his case. For Cluentius, O judges, in the first instance, accused that man in whose hands he had seized the poison. That was Scamander, the freedman of the Fabricii. The Bench was honest. There was no suspicion of the judges having been bribed. A plain case, a well-proved fact, an undeniable charge was brought before the court. So then this Fabricius, the man whom I have mentioned already, seeing that, if his freedman were condemned, he himself would be in danger, because he knew that I lived in the neighbourhood of Aletrinum, and was very intimate with many of the citizens of that place, brought a number of them to me: who, although they had that opinion of the man which they could not help having, still, because he was of the same municipality as themselves, thought it concerned their dignity to defend him by what means they could; and they begged of me that I would do so, and that I would undertake the cause of Scamander; and on his cause all the safety of his master depended. I, as I was unable to refuse anything to men who were so respectable, and so much attached to me,—and as I was not aware that the accusation was one involving crimes of such enormity and so undeniably proved—as indeed they too, who were then recommending the cause to me, were not aware either,—promised to do all that they asked of me.
XVIII. The cause began to be pleaded; Scamander the defendant was cited before the court. Publius Canutius was the counsel for the prosecution, a man of the greatest ability and a very accomplished speaker; and he accused Scamander in plain words, saying “that the poison had been discovered on him.” All the force of his accusation was directed against Oppianicus. The cause of his designs against Cluentius was revealed; his intimacy with the Fabricii was mentioned; the way of life and audacity of the man was revealed; in short, the whole accusation was stated with great firmness and with varied eloquence, and at last was summed up by the proved discovery of the poison. Then I rose to reply, with what anxiety, O ye immortal gods! with what solicitude of mind! with what fear! Indeed, I am always very nervous when I begin to speak. As often as I rise to speak, so often do I think that I am myself on my trial, not only as to my ability, but also as to my virtue and as to the discharge of my duty; lest I should either seem to have undertaken what I am incapable of performing, which is an impudent act, or not to perform it as well as I can, which is either a perfidious action or a careless one. But that time I was so agitated, that I was afraid of everything. I was afraid, if I said nothing, of being thought utterly devoid of eloquence, and, if I said much in such a case, of being considered the most shameless of men.
XIX. I recollected myself after a time, and adopted this resolution, that I must needs act boldly; that the age which I was of at that time generally had much allowance made for it, even if I were to stand by men in danger, though their cause had but little justice in it. And so I acted. I strove and contended by every possible means, I had recourse to every possible expedient, to every imaginable excuse in the case, which I could think of; so as, at all events, (though I am almost ashamed to say it,) no one could think that the cause had been left without an advocate. But, whatever excuse I tried to put forth, the prosecutor immediately wrested out of my hands. If I asked what enmity there was between Scamander and Avitus, he admitted that there was none. But he said that Oppianicus, whose agent he had been, had always been and still was most hostile to Avitus. If again I urged that no advantage would accrue to Scamander by the death of Avitus; he admitted that, but he said that all the property of Avitus would come to the wife of Oppianicus, a man who had had plenty of practice in killing his wives. When I employed this argument in the defence, which has always been considered a most honourable one to use in the causes of freedmen, that Scamander was highly esteemed by his patron; he admitted that, but asked, Who had any opinion of that patron himself? When I urged at some length the argument, that a plot might have been laid against Scamander by Diogenes, and that it might have been arranged between them on some other account that Diogenes should bring him medicine, not poison; that this might happen to any one; he asked why he came into such a place as that, into so secret a place, why he came by himself, why he came with a sum of money sealed up. And lastly, at this point, our cause was weighed down by witnesses, most honourable men. Marcus Bebrius said that Diogenes had been bought by his advice, and that he was present when Scamander was seized with the poison and the money in his possession. Publius Quintilius Varus, a man of the most scrupulous honour, and of the greatest authority, said that Cleophantus had conversed with him about the plots which were being laid against Avitus, and about the tampering with Diogenes, while the matter was fresh. And all through that trial, though we appeared to be defending Scamander, he was the defendant only in name, but in reality, it was Oppianicus who was in peril, and who was the object of the whole prosecution. Nor, indeed, was there any doubt about it, nor could he disguise that that was the case. He was constantly present in court, constantly interfering in the case; he was exerting all his zeal and all his influence. And lastly, which was of great injury to our cause, he was sitting in that very place as if he were the defendant. The eyes of all the judges were directed, not towards Scamander, but towards Oppianicus; his fear, his agitation, his countenance betraying suspense and uncertainty, his constant change of colour, made all those things, which were previously very suspicious, palpable and evident.
XX. When the judges were about to come to their decision, Caius Junius, the president, asked the defendant, according to the provisions of the Cornelian law which then existed, whether he wished the decision to be come to in his case secretly or openly. He replied by the advice of Oppianicus, because he said that Junius was an intimate friend of Avitus, that he wished the decision to be come to secretly. The judges deliberate. Scamander on the first trial was convicted by every vote except one, which Stalenus said was his. Who in the whole city was there at that time, who when Scamander was condemned, did not think that sentence had been passed on Oppianicus? What point was decided by that conviction, except that that poison had been procured for the purpose of being given to Avitus? Moreover, what suspicion of the very slightest nature attached, or could attach to Scamander, so that he should be thought to have desired of his own accord to kill Avitus?
And, now that this trial had taken place, now that Oppianicus was convicted in fact, and in the general opinion of every one, though he was not yet condemned by any sentence having been legally passed upon him, still Avitus did not at once proceed criminally against Oppianicus. He wished to know whether the judges were severe against those men only whom they had ascertained to have poison in their own possession, or whether they judged the intention and complicity of others in such crimes worthy of the same punishment. Therefore, he immediately proceeded against Caius Fabricius, who, on account of his intimacy with Oppianicus, he thought must have been privy to that crime; and, on account of the connexion of the two causes, he obtained leave to have that cause taken first. Then this Fabricius not only did not bring to me my neighbours and friends the citizens of Aletrinum, but he was not able himself any longer to employ them as men eager in his defence, or as witnesses to his character. For they and I thought it suitable to our humanity to uphold the cause of a man not entirely a stranger to us, while it was undecided, though suspicious; but to endeavour to upset the decision which had been come to, we should have thought a deed of great impudence. Accordingly he, being compelled by his desolate condition and necessity, fled for aid to the brothers Cepasii, industrious men, and of such a disposition as to think it an honour and a kindness to have any opportunity of speaking afforded them.
XXI. Now this is a very shameful thing, that in diseases of the body, the more serious the complaint is, the more carefully is a physician of great eminence and skill sought for; but in capital trials, the worse the case is, the more obscure and unprincipled is the practitioner to whom men have recourse. The defendant is brought before the court; the cause is pleaded; Canutius says but little in support of the accusation, it being a case, in fact, already decided. The elder Cepasius begins to reply, in a long exordium, tracing the facts a long way back. At first his speech is listened to with attention. Oppianicus began to recover his spirits, having been before downcast and dejected. Fabricius himself was delighted. He was not aware that the attention of the judges was awakened, not by the eloquence of the man, but by the impudence of the defence. After he began to discuss the immediate facts of the case, he himself aggravated considerably the unfavourable circumstances that already existed. Although he pleaded with great diligence, yet at times he seemed not to be defending the man, but only quibbling with the accusation. And while he was thinking that he was speaking with great art, and when he had made up this form of words with his utmost skill, “Look, O judges, at the fortunes of the men, look at the uncertainty and variety of the events that have befallen them, look at the old age of Fabricius;”—when he had frequently repeated this “Look,” for the sake of adorning his speech, he himself did look, but Caius Fabricius had slunk away from his seat with his head down. On this the judges began to laugh; the counsel began to get in a rage, and to be very indignant that his cause was taken out of his mouth, and that he could not go on saying “Look, O judges,” from that place; nor was anything nearer happening, than his pursuing him and seizing him by the throat, and bringing him back to his seat, in order that he might be able to finish his summing up. And so Fabricius was condemned, in the first place by his own judgment, which is the severest condemnation of all, and in the second place by the authority of the law, and by the sentences of the judges.
XXII. Why, now, need we say any more of this cause of Oppianicus? He was brought as a defendant before those very judges by whom he had already been condemned in ten previous examinations. By the same judges, who, by the condemnation of Fabricius, had in reality passed sentence on Oppianicus, his trial was appointed to come on first. He was accused of the gravest crimes, both of those which have already been briefly mentioned by me, and of many others besides, all of which I now pass over. He was accused before those men who had already condemned both Scamander the agent of Oppianicus, and Fabricius his accomplice in crime. Which, O ye immortal gods! is most to be wondered at, that he was condemned, or that he dared to make any reply? For what could those judges do? If they had condemned the Fabricii when innocent, still in the case of Oppianicus they ought to have been consistent with themselves, and to have made their present decision harmonize with their previous ones. Could they themselves of their own accord rescind their own judgments, when other men, when giving judgment, are accustomed most especially to take care that their decisions be not at variance with those of other judges? And could those who had condemned the freedman of Fabricius, because he had been an agent in the crime, and his patron, because he had been privy to it, acquit the principal and original contriver of the whole wickedness? Could those who, without any previous examination, had condemned the other men from what appeared in the cause itself, acquit this man whom they knew to have been already convicted twice over? Then indeed those decisions of the senatorial body, branded with no imaginary odium, but with real and conspicuous infamy, covered with disgrace and ignominy, would have left no room for any defence of them. For what answer could these judges make if any one asked of them, “You have condemned Scamander; of what crime? Because, forsooth, he attempted to murder Avitus by poison, by the agency of the slave of the doctor. What was Scamander to gain by the death of Avitus? Nothing; but he was the agent of Oppianicus. You have condemned Caius Fabricius; why so? Because, as he himself was exceedingly intimate with Oppianicus, and as his freedman had been detected in the very act, it was not proved that he was entirely ignorant of his design.” If, then, they had acquitted Oppianicus himself, after he had been twice condemned by their own decisions, who could have endured such infamy on the part of the tribunals, such inconsistency in judicial decisions, and such caprice on the part of the judges?
But if you now clearly see this, which has been long ago proved by the whole of my speech, that the defendant must inevitably be condemned by that decision, especially when brought before the same judges who had made two previous investigations into the matter, you must at the same time see this, that the accuser could have had no imaginable reason for wishing to bribe the bench of judges.
XXIII. For I ask you, O Titus Altius, leaving out of the question all other arguments, whether you think that the Fabricii who were condemned were innocent? whether you say that those decisions also were corruptly procured by bribes? though in one of those decisions one of the defendants was acquitted by Stalenus alone; in the other, the defendant, of his own accord, condemned himself. Come, now, if they were guilty, of what crime were they guilty? Was there any crime imputed to them except the seeking for poison with which to murder Avitus? Was there any other point mooted at those trials, except these plots which were laid against Avitus by Oppianicus, through the instrumentality of the Fabricii? Nothing else, you will find; I say, O judges, nothing else. It is fresh in people’s memories. There are public records of the trial. Correct me if I am speaking falsely. Read the statements of the witnesses. Tell me, in those trials, what was objected to them, I will not say as an accusation, but even as a reproach, except this poison of Oppianicus. Many reasons can be alleged why it was necessary that this decision should be given; but I will meet your expectation half-way, O judges. For although I am listened to by you in such a way, that I am persuaded no one was ever listened to more kindly or more attentively, still your silent expectation has been for some time calling me in another direction, and seeming to chide me thus:—“What then? Do you deny that that sentence was procured by corruption?” I do not deny that, but I say that the corruption was not practised by my client. By whom, then, was it practised? I think, in the first place, if it had been uncertain what was likely to be the result of that trial, that still it would have been more probable that he would have recourse to corruption, who was afraid of being himself convicted, than he who was only afraid of another man being acquitted. In the second place, as it was doubtful to no one what decision must inevitably be given, that he would employ such means, who for any reason distrusted his case, rather than he who had every possible reason to feel confidence in his. Lastly, that at all events, he who had twice failed before those judges must have been the corrupter, rather than he who had twice established his case to their satisfaction. One thing is quite certain. No one will be so unjust to Cluentius, as not to grant to me, if it be proved that that tribunal was bribed, that it was bribed either by Avitus or by Oppianicus. If I prove that it was not bribed by Avitus, I prove that it was by Oppianicus,—I clear Avitus. Wherefore, although I have already established plainly enough that the one had no reason whatever for having recourse to bribery, (and from this alone it follows that the bribery must have been committed by Oppianicus,) still you shall have separate proofs of this particular point.
XXIV. And I will adduce those facts as arguments, which, however, are very weighty ones—namely, that he was the briber, who was in danger,—that he was the briber, who was afraid,—that he was the briber, who had no hope of safety by any other means; he who was always a man of extraordinary audacity. There are many such arguments. But when I have a case which is not doubtful, but open and evident, the enumeration of every separate argument is superfluous. I say that Statius Albius gave Caius Ælius Stalenus the judge a large sum of money to influence his decision. Does any one deny it? I appeal to you, O Oppianicus; to you, O Titus Attius; the one of whom deplores that conviction with his eloquence, the other with silent piety. Dare to deny it, if you can, that money was given by Oppianicus to Stalenus the judge. Deny it—deny it, I say, where you stand. Why are you silent? But you cannot deny it, for you sought to recover what had been paid. You have admitted it,—you have recovered it. With what face now do you dare to mention a decision given through corruption, when you confess that money was given by the opposite side to the judge before trial, and recovered from him after the trial? How, then, were all these things managed? I will go back a little way, O judges, and I will explain everything which has lain hid in long obscurity, so that you shall appear almost to see it with your eyes. I entreat you, as you have listened to me attentively up to this time, so to listen to what is to come. In truth, nothing shall be said by me which shall not seem to be worthy of this assembly and this silence which is maintained in the court,—worthy of your attention and of your ears.
For when first Oppianicus began to suspect, from the fact of a prosecution having been instituted against Scamander, what danger he himself was threatened with, he immediately set himself to work to become intimate with a man, needy, audacious, a practised agent in the corruption of tribunals, but at that time himself a judge, Stalenus. And first of all, when Scamander was the defendant, he made such an impression on him by his gifts, and presents, and liberality, that he showed himself a more eager assistant than the credit of a judge could stand. But afterwards, when Scamander had been acquitted by the single vote of Stalenus, but when the patron of Scamander had not been acquitted even by his own judgment, he found that he must provide for his safety by stronger measures. Then he began to request of Stalenus, as from a man most acute in contriving, most impudent in daring, and most intrepid in executing, (for all these qualities he had in a great degree, and he pretended to have them in a still greater degree,) assistance to save his credit and his fortunes.
XXV. You are not ignorant, O judges, that even beasts, when warned by hunger, usually return to that place where they have once been fed. That Stalenus, two years before, when he had undertaken the cause of the property of Safinius at Atella, had said that he would bribe the tribunal with six hundred thousand sesterces. But when he had received this sum from the youth, he embezzled it, and when the trial was over, he did not restore it either to Safinius or to the purchasers of the property. But when he had spent all that money, and had nothing left, not only nothing to gratify his desires, but nothing even to supply his necessities, he made up his mind that he must return to the same system of plunder and judicial embezzlement. And, therefore, as he saw that Oppianicus was in a desperate way, and overwhelmed by two previous investigations adverse to him, he raised him up from his depression with his promises, and bade him not despair of safety. Oppianicus began to entreat the man to show him some method of corrupting the tribunal. But he, as was afterwards heard from Oppianicus himself, said that there was no one in the city except himself who could do this. But at first he began to make objections, because he said that he was a candidate for the ædileship with men of the highest rank, and that he was afraid of incurring unpopularity and of giving offence. Afterwards, being prevailed on, he required at first a large sum of money. At last, he came down to what could be managed, and desired six hundred and forty thousand sesterces to be sent to his house. And as soon as this money was brought to him, that most worthless man immediately began to form and adopt the following idea,—that nothing could be more advantageous for his interests than for Oppianicus to be condemned; because, if he were acquitted, he must either distribute the money among the judges, or else restore it to him: but if he were condemned, there would be no one to reclaim it. Therefore, he contrives a singular plan. And you will the more easily, O judges, believe the things which are said by us, if you will direct your minds back a considerable space, so as to recollect the way of life and disposition of Caius Stalenus. For according to the opinion that is formed of a man’s habits do people conjecture what has or has not been done by him.
XXVI. As he was a man needy, expensive, audacious, cunning, perfidious, and as he saw so vast a sum of money laid up in his house, a most miserable and unfurnished receptacle for it, he began to revolve in his mind every sort of cunning and fraud. “Must I give it to the judges? In that case, what shall I get myself, except danger and infamy? Can I contrive no means by which Oppianicus must be condemned? Why not? There is nothing in the world that cannot be managed somehow. If any chance delivers him from danger, must I not return the money? Let us, then, drive him on headlong, and crush him in utter ruin.” He adopts this plan,—he promises some of the most insignificant of the judges some money; then he keeps it back, hoping by this means (as he thought that the respectable men would, of their own accord, judge with impartiality) to make those who were less esteemed furious against Oppianicus on account of their disappointment. Therefore, as he had always been a blundering and a perverse fellow, he begins with Bulbus, and finding him sulky and yawning because he had got nothing for a long time, he gives him a gentle spur. “What will you do,” says he, “will you help me, O Bulbus, so that we need not serve the republic for nothing?” But he, as soon as he heard this—“For nothing,” said he, “I will follow whenever you like. But what have you got?” Then he promises him forty thousand sesterces if Oppianicus is acquitted. And he begs him to summon the rest of those with whom he is accustomed to converse, and he, the contriver of the whole business, adds Gutta1 to Bulbus. Therefore, he did not seem at all bitter after the taste he had had of his discourse. One or two days passed, when the matter appeared somewhat doubtful. He wanted the agent and some security for the money. Then Bulbus addresses the man with a cheerful countenance, as caressingly as he can. “What will you do,” says he, “O Pætus?” (For Stalenus had chosen this surname for himself from the images of the Ælii, lest if he called himself Ligur, he should seem to be using the name of his nation rather than that of his family.) “Men are asking me where the money is about which you talked to me.” On this that most manifest rogue, fed on gains acquired by tampering with the courts of justice, as he had now all his hopes and all his heart set upon that sum of money which he had got in his house, begins to frown. (Recollect his face, and the expression that you have seen him put on.) He complains that he has been thrown out by Oppianicus; and he, a man wholly made up of fraud and lies, and who had even improved those vices which he had by nature, by careful study, and by a regular sort of system of wickedness, declares positively that he has been cheated by Oppianicus; and he adds this assertion,—that he will be condemned by the vote which in his case every one was to give openly.
XXVII. The report had reached the bench, that there was mention made of corruption being practised among the judges;—the matter had not been kept as secret as it ought to have been, and yet was not so thoroughly detected as it was desirable that it should be for the sake of the republic. While the matter was so obscure, and every one in such doubt, on a sudden Canutius, a very clever man, and who had got some suspicion that Stalenus had been tampered with, but who thought that the business was not definitively settled, determined to get sentence pronounced. The judges said that they were willing. And at that time Oppianicus himself was in no great alarm. He thought that the whole business had been settled by Stalenus. The judges who were to deliberate on the case were thirty-two in number: an acquittal would be obtained by the votes of sixteen of them. Forty thousand sesterces given to each judge ought to make up that number of votes, and then the vote of Stalenus himself, who would be induced by the hope of a greater reward still, would crown the whole, making the seventeenth. And it happened by chance, because the matter was concluded in this way on a sudden, that Stalenus himself was not present. He was acting as counsel for the defence in some cause or other before a judge. Avitus did not mind that, nor did Canutius. But Oppianicus and his patron Lucius Quintius were not so well pleased; and as Lucius Quintius was at that time a tribune of the people, he reproached Caius Junius the judge most bitterly, and insisted upon it that they should not deliberate on their decision without the presence of Stalenus; and as they appeared to be purposely rather careless in communicating with him on the subject by means of the lictors, he himself went out of the criminal court into the civil court, where Stalenus was engaged, and, as he had the power to do, adjourned that court, and himself brought Stalenus back to the bench. The judges rise to give decisions, when Oppianicus said, as he had at that time a right to do, that he wished the votes to be given openly, his object being that Stalenus might know what was to be paid to each judge. There were different kinds of judges, a few were bribed, but all were unfavorable. As men who are accustomed to receive bribes in the Campus Martius are usually exceedingly hostile to those candidates whose money they think is kept back, so the judges of the same sort were then very indignant against this defendant. The others considered him very guilty, but they waited for the votes of those who they thought had been bribed, that by seeing their votes they might judge who it was that they had been bribed by.
XXVIII. Behold now—the lots were drawn with such a result that Bulbus, Stalenus, and Gutta were the first who were to deliver their opinions. There was the greatest anxiety on the part of every one to see what vote would be given by these worthless and corrupt judges. And they all condemn him without the slightest hesitation. On this, great scruples arose in men’s minds, and some doubt as to what had really been done. Then some of the judges, wise men, trained in the old-fashioned principles of the ancient tribunals, as they could not acquit a most guilty man, and yet, as they did not like at once to condemn a man, in whose case there appeared reason to suspect that bribery had been employed against him, before they were able to ascertain the truth of this suspicion, gave as their decision, “Not proven.” But some severe men, who made up their minds that regard ought to be had to the intention with which a thing was done by any one, although they believed that others had only given a correct decision through the influence of bribery, nevertheless thought that it behoved them to decide consistently with their previous decisions. Accordingly, they condemned him. There were five in all, who, whether they did so out of ignorance, or out of pity, or from being influenced by some secret suspicion, or by some latent ambition, acquitted that innocent Oppianicus of yours altogether.
After Oppianicus had been condemned, immediately Lucius Quintius, an excessive seeker after popularity, who was accustomed to catch at every wind of report, and at every word uttered in the assemblies, thought that he had an opportunity of rising himself, by exciting odium against the senators; because he thought that the decisions of that body were already falling into disfavour in the eyes of the people. One or two assemblies are held, very violent and stormy: a tribune of the people kept loudly asserting that the judges had taken money to condemn an innocent prisoner: he kept saying, that the fortunes of all men were at stake; that there were no courts of justice; that no one could be safe who had a wealthy enemy. Men ignorant of the whole business, who had never even seen Oppianicus, and who thought that a most virtuous citizen, that a most modest man had been crushed by money, being exasperated by this suspicion, began to demand that the whole matter should be brought forward and inquired into, and in fact, to require an investigation of the whole business; and at that very time Stalenus, having been sent for by Oppianicus, came by night to the house of Titus Annius, a most honourable man, and a most intimate friend of my own. By this time the whole business is known to every one;—what Oppianicus said to him about the money; how he said that he would restore the money; how respectable men heard the whole of their conversation, having been placed in a secret place with that view; how the whole matter was laid open, and mentioned publicly in the forum, and how all the money was extorted from and compelled to be restored by Stalenus.
XXIX. The character of this Stalenus, already known to and thoroughly ascertained by the people, was such as to make no suspicion unnatural; still, those who were present in the assembly did not understand that the money which he had promised to pay on behalf of the defendant, had been kept back by him.—For this they were not told. They were aware that reports of bribery had been at work in the court of justice; they heard that a defendant had been condemned who was innocent; they saw that he had been condemned by Stalenus’s vote. They judged, because they knew the man, that it had not been done for nothing. A similar suspicion existed with respect to Bulbus, and Gutta, and some others. Therefore, I confess, (for I may now make the confession with impunity, especially in this place,) that not only the habits of life of Oppianicus, but that even his name was unknown to the people before that trial. Moreover that, as it did seem a most scandalous thing for an innocent man to have been crushed by the influence of money; and as the general profligacy of Stalenus, and the baseness of some others of the judges who resembled him, increased this suspicion; and as Lucius Quintius pleaded his cause, a man not only of the greatest influence, but also of exceeding skill in arousing the feelings of the multitude; by these circumstances a very great degree of suspicion was excited against, and a very great degree of odium attached to that tribunal. And I recollect, that Caius Junius, who had presided over that trial, was thrown, as it were, into the fresh fire; and that he, a man of ædilitian rank, who was already prætor in the universal opinion of all men, was driven out of the forum and even out of the city, not by any regular discussion, but by the outcry raised against him by all men.
And I am not sorry that I am defending the cause of Aulus Cluentius at this time rather than at that time. For the cause remains the same, and cannot by any means be altered; the violence of the times, and the unpopularity then stirred up, has passed away; so that the evil that existed in the time is now no injury to us, the good which there was in the cause is still advantageous to us. And, therefore, I perceive now how attentively I am listened to, not only by those to whom the judgment and the power of deciding belongs, but even by those whose influence is confined to their mere opinion. But if at that time I had been speaking, I should not have been listened to: not that the circumstances were different; they are exactly the same; but because the time was different—and of that you may feel quite sure.
XXX. Who at that time could have dared to say that Oppianicus had been condemned because he was guilty? who now ventures to deny it? Who at that time could have ventured to assert that Oppianicus had endeavoured to corrupt the bench of judges with money? at the present time who is there who can deny it? Who, at that time, would have been suffered to mention that Oppianicus was prosecuted, after having been already condemned by two previous investigations? who is there at the present time who can attempt to invalidate this statement? Wherefore, all party feeling being now out of the question, for time has removed that, my oration has begged you to dismiss it from your minds, and your good faith and justice has discarded it from an inquiry into truth; what is there besides in the cause that remains in doubt?
It is perfectly notorious that bribery was practised or attempted at that trial. The question is, By whom was it practised; by the prosecutor, or by the defendant? The prosecutor says, “In the first place, I was prosecuting him on the most serious charges, so that I had no need of bribery; in the second place, I was prosecuting a man who was already condemned, so that he could not have been saved even by bribery; and lastly, even if he had been acquitted, my position and my fortune would have been uninjured by his acquittal.” What does the defendant say, on the other hand? “In the first place, I was alarmed at the very number and atrocity of the charges; in the second place, I felt that, after the Fabricii had been condemned on account of their privity to my wickedness, I was condemned myself; lastly, I was in such a condition that my whole position and all my fortunes depended entirely on that one trial, from which I was in danger.”
Come now, since the one had many and grave reasons for bribing the judges, and the other had none, let us try to trace the course of the money itself. Cluentius has kept his accounts with the greatest accuracy; and this system has this in it, that by that means nothing can possibly be added to or taken from the income without its being known. It is eight years after that cause occupied men’s attention that you are now handling, stirring up, and inquiring into everything which relates to it, both in his accounts and in the papers of others; and in the meantime you find no trace of any money of Cluentius’s in the whole business. What then? Can we trace the money of Albius by the scent, or can you guide us, so that we may be able to enter into his very chamber, and find it there? There are in one place six hundred and forty thousand sesterces; they are in the possession of one most audacious man; they are in the possession of a judge. What would you have more? Oh, but Stalenus was not commissioned to corrupt the judges by Oppianicus, but by Cluentius. Why, when the judges were retiring to deliberate, did Cluentius and Canutius allow him to go away? Why, when they were going to give their votes, did they not require the presence of Stalenus the judge, to whom they had given the money? Oppianicus did act for him; Quintius did demand his presence. The tribunitian power was interposed to prevent a decision being come to without Stalenus. But he condemned him. To be sure, for he had given this condemnatory vote as a sort of pledge to Bulbus and the rest to prove that he had been cheated by Oppianicus. If, therefore, on one side, there is a reason for corrupting the tribunal; on one side, money; on one side, Stalenus; on one side, every description of fraud and audacity: and on the other side, modesty, an honourable life, and no suspicion of corruption, and no object in corrupting the tribunal; allow, now that the truth is made clear and all error dispelled, the discredit of that baseness to adhere to that side to which all the other wickednesses are attached; and allow the odium of it to depart at last from that man, whom you do not perceive to have ever been connected with any fault.
XXXI. Oh, but Oppianicus gave Stalenus money, not to corrupt the judges, but to conciliate their favour. Can you, O Attius, can a man endued with your prudence, to say nothing of your knowledge of the world, and practice in pleading, say such a thing as this? For they say that he is the wisest man to whom everything which is necessary is sure to occur of his own accord; and that he is next best to him, who is guided by the clever experience of another.1 But in folly it is just the contrary; for he is less foolish to whom no folly occurs spontaneously, than he who approves of the folly which occurs to another. That idea of conciliating favour Stalenus thought of, while the case was fresh, when he was held by the throat as it were; or rather, as people said at the time, he took the hint from Publius Cethegus, when he published that fable about conciliation and favour. For you can recollect that this was what men said at the time; that Cethegus, because he hated the man, and because he wished to get rid of such rascality out of the republic, and because he saw that he who had confessed that, while a judge, he had secretly and irregularly taken money from a defendant, could not possibly get off, had given him treacherous advice. If Cethegus behaved dishonestly in this matter, he appears to me to have wished to get rid of an adversary; but if the case was such that Stalenus could not possibly deny that he had received the money, (and nothing could be more dangerous or more disgraceful than to confess for what purpose he had received it,) the advice of Cethegus is not to be blamed. But the case of Stalenus then was very different from what your case is now, O Attius. He, being pressed by the facts, could not possibly say anything which was not more creditable than confessing what had really happened. But I do marvel that you should have now brought up again the very same plea which was then hooted out of court and rejected; for how could Cluentius possibly become friends with Oppianicus, when he was at enmity with his mother? The names of the defendant and prosecutor were recorded in the public documents; the Fabricii had been condemned; Albius could not possibly escape if there were any other prosecutor, nor could Cluentius abandon the prosecution without rendering himself liable to the imputation of having trumped up a false accusation.
XXXII. Was the money given to procure any collusion? That, too, has a direct reference to corrupting the judges. But what was the necessity for employing a judge as an agent in such a business? And above all things, what need was there for transacting the whole business through the agency of Stalenus, a man perfectly unconnected with either party,—a most sordid and infamous man—rather than through the intervention of some respectable person, some common friend or connexion of both parties? But why need I discuss this matter at length, as if there were any obscurity in the business? when the very money which was given to Stalenus, proves by its amount and by its sum total, not only how much it was, but for what purpose it was given? I say that it was necessary to bribe sixteen judges, in order to procure the acquittal of Oppianicus; I say that six hundred and forty thousand sesterces were taken to Stalenus’s house. If, as you say, this was for the purpose of conciliating good-will, what is the meaning of that addition of forty thousand sesterces? but if, as we say, it was in order that forty thousand sesterces might be given to each judge, then Archimedes himself could not calculate more accurately.
But a great many decisions have been come to, tending to prove that the tribunal was corrupted by Cluentius. I say, on the other hand, that before this time, that matter has never been brought before the court at all on its own merits. The matter has been so very much canvassed, and has been so long the subject of discussion, that this is the very first day that a word has been said in defence of Cluentius; this is the very first day that truth, relying on these judges, has ventured to lift up her voice against the popular feeling. However, what are all those numerous decisions? for I have prepared myself to encounter everything, and I am ready to show that the decisions which were said to have been come to afterwards, bearing on that decision, were, as to some of them, more like an earthquake or a tempest, than an orderly judgment or a regular decision; that, as to some of them, they had no weight against Avitus at all; that some of them even told in his favour; and that some were such that they were never called judicial decisions at all, and never even thought so. Here I, rather for the sake of adhering to the usual custom, than from any fear that you would not do so of your own accord, will beg of you to listen to me with attention, while I discuss each of these decisions.
XXXIII. Caius Junius, who presided over that trial, has been condemned; add that also, if you please,—he was condemned at the time that he was a criminal judge. No relaxation of the prosecution or mitigation of the law was procured by the means of any one of the tribunes of the people. At a time that it was contrary to law for him to be taken away from the investigation of the case before him to discharge any duty to the republic whatever;—at that very time, I say, he was hurried off to the investigation. But to what investigation? For the expression of your countenances, O judges, invites me to say freely what I had thought I must have suppressed. What shall I say? Was that then an investigation, or a discussion, or a decision? I will suppose it was. Let him, who wishes to-day to speak on the subject of the people having been excited, say whose wishes were at that time complied with; let him say on what account Junius gave his decision. Whomsoever you ask, you will get this answer;—Because he received money, because he unfairly crushed an innocent man. This is the common opinion. But if that were the truth, he ought to have been prosecuted under the same law as Avitus is impeached under. But he himself was carrying on an investigation according to that law. Quintius would have waited a few days. But he was unwilling to accuse him as a private man, and when the odium of the business had been allayed. You see then that all the hope of the accuser was not in the cause itself, but in the time and in the influence of individuals. He sought a fine. According to what law? Because he had not taken the oath to observe the law: a thing which never yet was brought against any man as a crime: and because Caius Verres, the city prætor, a very conscientious and careful man, had not the list out of which judges were to be chosen in the place of those who had been rejected, in that book which was then produced full of erasures. On all these accounts Caius Junius was condemned, O judges, for these trivial and unproved reasons, which had no business to have been ever brought before the court at all. And therefore he was defeated, not on the merits of his case, but by the time.
XXXIV. Do you think that this decision ought to be any hindrance to Cluentius? On what account? If Junius had not appointed the judges in the place of those who had been objected to according to law—if he had omitted to take the oath to obey the law—does it follow that any decision bearing on Cluentius’s case was pronounced or implied in his condemnation? “No,” says he; “but he was condemned by these laws, because he had committed an offence against another law.” Can those who admit this urge also in defence that that was a regular decision? “Therefore,” says he, “the prætor was hostile to Junius on this account, because the tribunal was thought to have been bribed by his means.” Was then the whole cause changed at this time? Is the case different, is the principle of that decision different, is the nature of the whole business different now from what it was then? I do not think that of all the things that were done then anything can be altered. What, then, is the reason why our defence is listened to with such silence now, but that all opportunity of defending himself was refused to Junius then? Because at that time there was nothing in the cause but envy, mistake, suspicion, daily assemblies, seditiously stirred up by appeals to popular feeling. The same tribune of the people was the accuser before the assemblies, and the prosecutor in the courts of law. He came into the court of justice not from the assembly, but bringing the whole assembly with him. Those steps of Aurelius,1 which were new at that time, appeared as if they had been built on purpose for a theatre for the display of that tribunal. And when the prosecutor had filled them with men in a state of great excitement, there was not only no opportunity of speaking in favour of the defendant, but none of even rising up to speak. It happened lately, before Caius Orchinius, my colleague, that the judges refused to sanction a prosecution against Faustus Sylla, in a cause concerning some money which remained unpaid. Not because they considered that Sylla was an outlaw, or because they thought the cause of the public money insiguificant or contemptible; but because, when a tribuue of the people was the accuser, they did not think that there could be a fair trial. What? Shall I compare Sylla with Junius? or this tribune of the people with Quintius? or one time with the other time? Sylla, with his great wealth, his numerous relations, connexions, friends, and clients; but in the case of Junius all these things were small, and insignificant, and collected and acquired by his own exertions. The one a tribune of the people, moderate, modest, not only not seditious himself, but an enemy to seditious men; the other bitter, fond of raking up accusations, a hunter after popularity, and a turbulent man. The present a tranquil and a peaceable time; the former time one ruffled with every imaginable storm of ill-will. And as all this was the case, still in the case of Faustus those judges decided that a defendant was brought before the court on very unfair terms, when his adversary was in possession of the greatest power known to the state, which he could avail himself of to add force to his accusations.
XXXV. And this principle you, O judges, ought, as your wisdom and humanity prompts and enables you to do, to consider over in your mind carefully; and to be thoroughly aware what disaster and what danger the tribunitian power can bring upon every one individual among us, especially when it is egged on by party spirit, and by assemblies of the people, stirred up in a seditious manner. In the very best times, forsooth, when men defended themselves, not by boastings addressed to the populace, but by their own worth and innocence, still neither Publius Popillius, nor Quintus Metellus, most illustrious and most honourable men, could withstand the power of the tribunes; much less at the present time, with such manners as we now have, and such magistrates, can we possibly be saved without the aid of your wisdom, and without the relief which is afforded by the courts of justice. That court of justice then, O judges, was not like a court of justice; for in it there was no moderation preserved, no regard was had to custom and usage, nor was the cause of the defendant properly advocated. It was all violence, and, as I have said before, a sort of earthquake or tempest,—it was anything rather than a court of justice, or a legal discussion, or a judicial investigation. But if there be any one who thinks that that was a regular proceeding, and who thinks it right to adhere to the decision that was then delivered; still he ought to separate this cause from that one. For it is said that a great many things were demanded of him either because he had not taken the oath to observe the law, or because he had not cast lots for electing judges in the room of those to whom objection had been made in a legal manner. But the case of Cluentius can in no particular be connected with these laws, in accordance with which a penalty was sought to be recovered from Junius. Oh, but Bulbus also was condemned. Add that he was condemned of treason, in order that you may understand that this trial has no connexion with that one. But this charge was brought against him. I confess it; but it was also made evident by the letters of Caius Cosconius and by the evidence of many witnesses, that a legion in Illyricum had been tampered with by him; and that charge was one peculiarly belonging to that sort of investigation, and was one which was comprehended under the law of treason. But this was an exceedingly great disadvantage to him. That is mere guess work; and if we may have recourse to that, take care, I beg you, that my conjecture be not far the more accurate of the two. For my opinion is, that Bulbus, because he was a worthless, base, dishonest man, and because he came before the court contaminated with many crimes of the deepest dye, was on that account the more easily condemned. But you, out of Bulbus’s whole case, select that which seems to suit your own purpose, in order that you may say that it was that which influenced the judges.
XXXVI. Therefore, this decision in the case of Bulbus ought not to be any greater injury to this cause, than those two which were mentioned by the prosecutor in the case of Publius Popillius and Titus Gutta, who were prosecuted for corruption,—who were accused by men who had themselves been convicted of bribery, and whom I do not imagine to have been restored to their original position merely because they had proved that these other men also had taken money for the purpose of influencing their decision, or because they proved to the judges that they had detected others in the same sort of offence of which they had themselves been guilty; and that, therefore, they were entitled to the rewards offered by the law. Therefore, I think that no one can doubt that that conviction for bribery can in no possible way be connected with the cause of Cluentius and with your decision. What! not if Stalenus was condemned? I do not say at this present moment, O judges, that which I am not sure ought to be said at all, that he was convicted of treason,—I do not read over to you the testimonies of most honourable men, which were given against Stalenus by men who were lieutenants, and prefects, and military tribunes, under Mamercus Æmilius, that most illustrious man, by whose evidence it was made quite plain that it was chiefly through his instrumentality, when he was quæstor, that a seditious spirit was stirred up in the army. I do not even read to you that evidence which was given concerning these six hundred thousand sesterces, which when he had received on pretences connected with the trial of Safinius, he retained and embezzled as he did afterwards in the case of the trial of Oppianicus. I say nothing of all these things, and of many others which were stated against Stalenus at that trial. This I do say,—that Publius and Lucius Cominius, Roman knights, most honourable and eloquent men, had the same dispute with Stalenus then, whom they were accusing, that I now have with Attius. The Cominii said the same thing that I say now,—that Stalenus received money from Oppianicus to induce him to corrupt the tribunal, and Stalenus said that he had received it to conciliate good-will towards him. This conciliation of good-will was laughed at, and so was this assumption of the character of a good man, as in the gilded statues which he erected in front of the temple of Juturna, at the bottom of which he had the following inscription engraved,—“that the kings had been restored by him to the favour of the people.” All his frauds and dishonest tricks were brought under discussion; his whole life, which has been spent in such a way as that, was laid open; his domestic poverty, the profits which he made in the courts of law, were all brought to light: an interpreter of peace and concord who regulated everything by the bribes which he received was not approved of. Therefore, Stalenus was condemned at that time, while he urged the same defence as Attius did. When the Cominii did the same thing that I have done throughout the whole of this cause, people approved of them. Wherefore, if by the condemnation of Stalenus it was decided that Oppianicus had desired to corrupt the judges,—that Oppianicus had given one of the judges money to purchase the votes of the other judges, (since it has been already settled that either Cluentius is guilty of that offence, or else Oppianicus, but that no trace whatever is found of any money belonging to Cluentius having been ever given to any judge, while money belonging to Oppianicus was taken away, after the trial was over, from a judge,)—can it be doubtful that that conviction of Stalenus does not only not make against Cluentius, but is the greatest possible confirmation of our cause and of our defence?
XXXVII. Therefore, I see now that the case respecting the decision of Junius is of this nature, that I think it ought to be called an inroad of sedition, an instance of the violence of the multitude, an outrage on the part of a tribune, anything rather than a judicial proceeding. But if any one calls that a regular trial, still he must inevitably admit this,—that that penalty which was sought to be recovered from Junius cannot by any means be connected with the cause of Cluentius. That decision of the tribunal over which Junius presided, was brought about by evidence. The cases of Bulbus, of Popillius, and of Gutta, do not make against Cluentius. That of Stalenus is actually in favour of Cluentius. Let us now see if there is any other decision which we can produce which is favourable to Cluentius.
Was not Caius Fidiculanius Falcula, who had condemned Oppianicus, prosecuted especially because—and that was the point which in that trial was the hardest to excuse—he had sat as judge a few days after the appointment of a substitute? He was, indeed, prosecuted, and that twice. For Lucius Quintius had brought him into extreme unpopularity by means of daily seditious and turbulent assemblies. On one trial a penalty was sought to be recovered from him, as from Junius, because he had sat as judge, not in his own decury, nor according to the law. He was prosecuted at a rather more peaceable time than Junius, but under almost the same law, and on very nearly the same indictment. But because at the trial there was no sedition, no violence, and no crowd, he was easily acquitted at the first hearing. I do not count this acquittal.1NA* * * * * *
What was Fidiculanius said to have done? To have received from Cluentius four hundred sesterces. Of what rank was he? A senator. He was accused according to that law by which an account is properly demanded of a senator in a prosecution for peculation, and he was most honourably acquitted. For the cause was pleaded according to the custom of our ancestors, without violence, without fear, without danger. Everything was fairly stated, and explained, and proved. The judges were taught that not only could a defendant be honestly condemned by a man who had not sat as a judge uninterruptedly, but that if that judge had known nothing else except what previous investigations it was clear had taken place in the case, he ought to have heard nothing else.
XXXVIII. Then, also, those five judges, who, hunting for the vague rumours of ignorant men, acquitted him at that time, were unwilling that their clemency should be extravagantly praised; and if any one asked them whether they had sat as judges on Caius Fabricius, they said that they had; if they were asked whether he had been accused of any crime except of that poison which was said to have been endeavoured to be administered to Avitus, they said no; if, after that, they were asked what their decision had been, they said that they had condemned him. For no one acquitted him. In the same manner, if any question had been asked about Scamander, they would certainly have given the same answer, although he was acquitted by one vote; but at that time no one of those men would have liked that one vote to be called his. Which, then, could more easily give an account of his vote,—he who said that he had been consistent with himself and with the previous decision, or he who said that he had been lenient to the principal offender, and very severe against his assistants and accomplices? But concerning their decision I have no occasion to say anything; for I have no doubt, that such men as they, being influenced by some sudden suspicion, avoided the point at issue. On which account I find no fault with the mercy of those who acquitted him. I approve of the firmness of those men who, in giving their judgment, followed the precedent of the previous decisions of their own accord, and not in consequence of the fraudulent trick of Stalenus; but I praise the wisdom of those men who said that to their minds it was not proved, who could by no means acquit a man whom they knew to be very guilty, and whom they themselves had already condemned twice before, but who, as such a disgraceful plan, and as a suspicion of such an atrocious act had been suggested to them, preferred condemning him a little later, when the facts were clearly ascertained. And, that you may not judge them to have been exceedingly wise men merely by their actions, but that you may also feel sure, from their very names, that what they did was most honestly and wisely done; who can be mentioned superior to Publius Octavius Balbus, as to ability more prudent,—in knowledge of law more skilful,—in good faith, in religion, in the performance of his duty, more scrupulous or more careful? He did not acquit him. Who is a better man than Quintus Considius? who is better acquainted with the practice of courts of justice, and with that sense of right which ought always to exist in the public courts? who is his superior in virtue, in wisdom, or in authority? Even he did not acquit him. It would take me too long to cite the virtue of each separate individual in the same manner; and in truth, their good qualities are so well known to every one, that they do not need the ornaments of language to set them off. What a man was Marcus Juventius Pedo, a man formed on the principles and system of the judges of old! What a man was Lucius Caulius Mergus! and Marcus Basilus! and Caius Caudinus! all of whom flourished in the public courts of justice at that time when the republic also was flourishing. Of the same body were Lucius Cassius and Cnæus Heius, men of equal integrity and wisdom. And by the vote of none of those men was Oppianicus acquitted. And the youngest of all but one, who in ability, and in diligence, and in conscientiousness was equal to those men whom I have already mentioned, Publius Saturius, delivered the same opinion. O, the singular innocence of Oppianicus! when in the case in which he was defendant, those who acquitted him are supposed to have had some ulterior end,—those who postponed their decision, to have been cautious; but every one who condemned him is esteemed virtuous and firm.
XXXIX. These things, though Quintius agitated them, were not proved at that time either in the assembly or in a court of justice. For he himself would not allow them to be stated, nor indeed, by reason of the excited state of the multitude, could any one stand up to speak. Therefore he himself, after he had overthrown Junius, abandoned the whole cause. For in a very few days’ time he became a private individual, and he perceived too that the violence of men’s feelings had cooled down. But if at the time that he accused Junius he had also chosen to accuse Fidiculanius, Fidiculanius would have had no opportunity of making any reply. And at first, indeed, he threatened all those judges who had voted against Oppianicus. By this time you know the insolence of the man. You know what a tribune-like pride and arrogance he has. How great was the animosity which he displayed! O ye immortal gods! how great was his pride! how great his ignorance of himself! how preposterous and intolerable was his arrogance! when he was indignant even at this, (from which all those proceedings of his took their rise,) that Oppianicus was not pardoned at his entreaty and owing to his defence; just as if it ought not to have been proof enough that he was deserted by every one, that he had recourse to such an advocate as him. For there was at Rome a great abundance of advocates, most eloquent and most honourable men, of whom certainly any one would have defended a Roman knight, of noble birth in his municipality, if he had thought that such a cause could be defended with honour.
XL. For, as for Quintius, indeed, what cause had he ever pleaded before, though he was now nearly fifty years old? Who had ever seen him not only in the position of a counsel for the defence, but even as a witness to character, or as employed in any1 way in any cause? who, because he had seized on the rostrum which had been for some time empty, and the place which had been deserted by the voice of the tribunes ever since the arrival of Lucius Sylla, and had recalled the multitude, which had now been for some time unused to assemblies, to the likeness of the old custom, was on that account for a short time rather popular with a certain set of men. But yet afterwards how hated he became by those very men by whose means he had mounted into a higher position!—and very deservedly. For just take the trouble to recollect not only his manners and his arrogance, but also his countenance, and his dress, and his purple robe reaching down as far as his ancles. He, as if it were a thing quite impossible to be borne that he should have been defeated in this trial, transferred the case from the court of justice to the public assembly. And do we still reiterate our complaints, that new men have not sufficient encouragement in this city? I say, that there never was a time or place where they had more; for here, if a man, though born in a low rank of life, lives so as to seem able to uphold by his virtue the dignity of nobility, he meets with no obstacle to his arriving at that eminence to which his industry and innocence conduct him. But if any one depends on the fact of his being meanly born as his chief claim, he often goes greater lengths than if he was a man of the highest birth devoted to the same vices. As, in the case of Quintius, (for I will say nothing of the others,) if he had been a man of noble birth, who could have endured him with his pride and intolerance? But because he was of the rank of which he was, people put up with it, as if they thought that if he had any good quality by nature, it ought to be allowed to save him, and as if, owing to the meanness of his birth, they thought his pride and arrogance matters to be laughed at rather than feared.
XLI. However, to return to my original subject: What decision did you—you, I say, who mention those trials—think ought to have been come to at the time that Fidiculanius was acquitted? At least you think that the decision was not a corrupt one. But he had condemned him; but he had not heard the entire case; but he had been greatly and repeatedly annoyed at every assembly of the people, by Lucius Quintius. Then the whole of Quintius’s judicial conduct was unjust, deceitful, fraudulent, turbulent, dictated by a wish for popularity, seditious. Be it so; Falcula may have been innocent. Well then, some one condemned Oppianicus without being paid for it; Junius did not appoint men as judges in the place of the others, to condemn him for a bribe. It is possible that there may have been some one who did not sit as judge from the beginning, and who, nevertheless, condemned Oppianicus without having been bribed to do so. But if Falcula was innocent, I wish to know who was guilty? If he condemned him without being bribed to do so, who was bribed? I say that there has been nothing imputed to any one of these men which was not imputed to Fidiculanius; I say that there was nothing in the case of Fidiculanius which did not also exist in the case of the rest. You must either find fault with this trial, the prosecution in which appeared to rely on previous decisions, or else, if you admit that this was an honest one, you must allow that Oppianicus was condemned without money having been paid to procure his condemnation. Although it ought to be proof enough for any one, that no one out of so many judges was proceeded against after Falcula had been acquitted.—For why do you bring up men convicted of bribery under a different law, the charges being well proved, the witnesses being numerous? when, in the first place, these very men ought to be accused of peculation rather than of bribery. For if, in trials for bribery, this was an hindrance to them, that they were being prosecuted under a different law, at all events it would have been a much greater injury to them to be brought before the court according to the law properly belonging to this offence. In the second place, if the weight attached to this accusation was so great, that, under whatever law any one of those judges was prosecuted, he must be utterly ruined; then why, when there are such crowds of accusers, and when the reward is so great, were not the others prosecuted too? On this, that case is mentioned, (which, however, has no right to be called a trial,) that an action for damages was brought against Publius Septimius Scævola on that account; and what the practice is in cases of that sort, as I am speaking before men of the greatest learning, I have no need to occupy much time in explaining. For the diligence which is usually displayed in other trials, is never exercised after the defendant has been convicted. In actions for damages, the judges usually, either because they think that a man whom they have once convicted is hostile to them, if any mention of a capital charge against him is made, do not allow it; or else, because they think that their duties are over when they have given their decision respecting the defendant they attend more carelessly to the other points. Therefore, very many men are acquitted of treason, when, if they were condemned, actions would be brought to recover damages on charges of peculation. And we see this happen every day,—that when a defendant has been convicted of peculation, the judges acquit those men to whom, in fixing the damages, it has been settled that the money has come; and when this is the case, the decisions are not rescinded, but this principle is laid down, that the assessment of damages is not a judicial trial. Scævola was convicted of other charges, by a great number of witnesses from Apulia. The greatest possible eagerness was shown in endeavouring to have that action considered as a capital prosecution. And if it had had the weight of a case already decided, he afterwards, according to this identical law, would have been prosecuted either by the same enemies, or by others.
XLII. That follows, which they call a trial, but which our ancestors never called a trial, and never paid any attention to as if it had been a formal judicial decision, the animadversion and authority of the censors. But before I begin to speak on that subject, I must say a few words about my own duty, in order that it may be clearly seen that I have paid proper attention to this danger, and also to all other considerations of duty and friendship.
For I have a friendship with both those brave men who were the last censors; and with one of them, (as most of you are aware,) I have the greatest intimacy, and the closest connexion cemented by mutual good offices. So that, if I am forced to say anything of the reasons which they have given for their sentences, I shall say it with these feelings, that I shall wish everything that I say considered as having reference not to their individual conduct in particular, but to the whole principle of the censorial animadversion. But from Lentulus, my intimate friend, who out of regard for his eminent virtue and for the high honours which he has received from the Roman people, is named by me to do him honour, I shall easily obtain this indulgence, that, as he himself is always accustomed to employ the greatest good faith and diligence in matters affecting the safety of his friends, and also the greatest vigour of mind and freedom of speech, so, in this instance, he will not be offended with me for taking as much freedom myself, as I cannot forbear to take without danger to my client. But, everything shall be said by me carefully and deliberately, as indeed it ought to be, so that I shall not appear to have betrayed the cause entrusted to my good faith for its defence, nor to have injured the dignity of any one, nor to have disregarded any of the claims of friendship.
I see then, O judges, that the censors passed animadversion on some of the judges who sat on that trial which Junius presided over, and added to their sentence that that very trial was the cause of it. Now, first I will lay down this general principle, that this city has never been so content with censorial animadversions as with judicial decisions. Nor in so notorious a case need I waste time by citing instances. I will just adduce this one fact,—that Caius Geta, after he had been expelled the senate by Lucius Metellus and Cnæus Domitius when they were censors, was himself appointed censor afterwards; and that he whose morals had met with this reproof from the censors, was afterwards appointed to judge of the morals of the whole Roman people, and of those very men who had thus punished him. But if that had been thought a final judicial decision, (as other men when they have been condemned by a sentence involving infamy are deprived for ever of all honour and all dignity, so) a man branded with this ignominy would never have had any subsequent access to honour, or any possibility of return to the senate. Now, if the freedman of Cnæus Lentulus or of Lucius Gellius should convict any man of theft, he, being deprived of all his credit, will never recover any portion of his honourable position in the city; but those men, whom Lucius Gellius himself and Cnæus Lentulus, the two censors, most illustrious citizens and most wise men, have animadverted on, and, in their reasons for their sentences, have imputed to them theft and peculation, have not only returned to the senate, but have been acquitted of those very charges by judicial sentence.
XLIII. Our ancestors did not think it fit for any one to be a judge, not only of any one’s character, but not even of the most insignificant money matter, if he had not been agreed to by both the contending parties. Wherefore, in every law in which exception has been made of causes for which a magistrate may not be taken, or a judge elected, or another man accused, this cause of ignominy is passed over. For their intention was that the power of the censors should strike the profligate with terror, but not that it should have power over their lives. Therefore, O judges, I will not only prove what you are already aware of, that the censorial animadversions, and the reasons given for them too, have often been overturned by the votes of the Roman people, but that they have also been upset by the judicial sentences of those men who, being on their oaths, were bound to give their decisions with more scrupulousness and care. In the first place, O judges, in the case of many defendants, whom the censors in their notes accused of having taken money contrary to the laws, they were guided by their own conscientious judgment, rather than by the opinion expressed by the censors. In the second place, the city prætors, who are bound by their oaths to select only the most virtuous men to be judges, have never thought that the fact of a man’s having been branded with ignominy by the censors was any impediment to their making him a judge. And lastly, the censors themselves have very often not adhered to the decisions, if you insist on their being called decisions, of former censors. And even the censors themselves consider their own decisions to be of only so much weight, that one is not afraid to find fault with, or even to rescind the sentence of the other; so that one decides on removing a man from the senate, the other wishes to have him retained in it, and thinks him worthy of the highest rank. The one orders him to be degraded to the rank of an ærarian1 or to be entirely disfranchised; the other forbids it. So that how can it occur to you to call those judicial decisions which you see constantly rescinded by the Roman people, repudiated by judges on their oaths, disregarded by the magistrates, altered by those who have the same power subsequently conferred on them, and in which you see that the colleagues themselves repeatedly disagree?
XLIV. And as all this is the case, let us see what the censors are said to have decided respecting that corrupt tribunal. And first of all let us lay down this principle; whether a thing is so because the censors have stated it in their notes, or whether they made such a statement in their notes because it was the fact. If it is the case because they have so stated it, take care what you are doing; beware lest you are establishing for the future a king by power in the person of every one of our censors,—beware lest the note1 of a censor may hereafter be able to cause as much distress to the citizens as that terrible proscription did,—beware lest we have reason to dread for the future that pen of the censor, whose point our ancestors blunted by many remedies, as much as that sword of the dictator. But if the statement which has been made in their notes ought to carry weight with it because it is true, then let us inquire whether it be true or false; let the authority of the censor be put out of the question—let that consideration be taken out of the cause which has no connexion with it. Tell me what money Cluentius gave, where he got it, how he gave it; show me, in short, one trace of any money having proceeded from Cluentius. After that, prove that Oppianicus was a virtuous citizen, or an honest man; that no one had ever had a bad opinion of him; that no unfavourable decision had ever been come to respecting him. Then take in the authority of the censors; then argue that their decision has any connexion whatever with this case. But as long as it is plain that Oppianicus was a man who was convicted of having tampered with the public registers of his own municipality, of having made erasures in a will, of having substituted another person in order to accomplish the forgery of a will, of having murdered the man whose name he had put to the will, of having thrown into slavery and into prison the uncle of his own son and then murdered him, of having contrived to get his own fellow-citizens proscribed and murdered, of having married the wife of the man whom he had murdered, of having given money for poisoning, of having murdered his mother-in-law and his wife, of having murdered at one time his brother’s wife, the children who were expected, and his own brother himself,—lastly, of having murdered his own children; as he was a man who was manifestly detected in procuring poison for his son-in-law,—who, when his assistants and accomplices had been condemned, and when he himself was prosecuted, gave money to one of the judges to influence by bribes the votes of the other judges;—while, I say, all this is notorious about Oppianicus, and while the accusation of bribery against Cluentius is not sustained by any one single proof, what reason is there that that sentence of the censors, whether it is to be called their wish or their opinion, should either seem to be any assistance to you, or to be able to overwhelm my innocent client?
XLV. What was it, then, that influenced the censors? Even they themselves, if they were to allege the most serious reason that they could, would not say it was anything else beyond common conversation and report. They will say that they found out nothing by witnesses, nothing by documents, nothing by any important evidence, nothing, in short, from any investigation of the cause. If they had investigated it, still their sentence ought not to have been so fixed as to be impossible to be altered. I will not quote precedents, of which, however, there is an infinite number; I will not mention any old instance, or any powerful or influential man. Very lately, when I had defended an insignificant man, clerk to the ædiles, Decius Matrinius, before Marcus Junius and Quintus Publicius, the prætors, and before Marcus Platorius and Caius Flaminius, the curule ædiles, I persuaded them,—men sworn to do their duty,—to choose him for their secretary whom those same censors had made an ærarian; for as there was no fault found in the man, they thought that they ought to inquire what he deserved, and not what resolution had been come to respecting him. For as for these things which they have stated in their notes, about corrupting the judges, who is there who believes that they were sufficiently ascertained or carefully inquired into by them? I see that a note was made by the censors respecting Marcus Aquillius and Titus Gutta;—what does this mean? Were those two the only men corrupted with bribes? What became of the rest? Did they, forsooth, condemn him for nothing? He, then, was not unfairly dealt with; he was not overwhelmed by means of bribes; it is not the case, as all those assemblies stirred up by Quintius would have it, that all the men who voted against Oppianicus are to be imagined criminal, or at all events suspected. I see that two men alone are judged by the authority of the censors to have been implicated in that infamy; or else they must allege that there is something which they have found out concerning those two men which they have not found out respecting the others.
XLVI. For that indeed can never be allowed, that they should transfer the usage of military discipline to the animadversions and authority of the censors; for our ancestors established a rule, that if in military affairs a crime had been committed by a number of soldiers, a few should be punished by lot, that so fear might have its influence on all, while the punishment reached only a few. But how can it be fitting for the censors to act on this principle in the distribution of dignities, in their judgment on the character of citizens, and in their punishment of their vices? For a soldier who has not maintained his post, who has been afraid of the vigorous attack of the enemy, may still hereafter become a better soldier, and a virtuous man, and a useful citizen. Wherefore, to prevent his committing offences in time of war through fear of the enemy, the great fear of death and execution was established by our ancestors; but yet, that the number of those who underwent capital punishment might not be too great, that plan of drawing lots was invented. But will you, O censor, act in this way when choosing the senate? Supposing there are many who have taken bribes to condemn an innocent man, will you not punish all of them, but will you pick as you choose, and select a few out of the many to brand with ignominy? Shall the senate then, while you see and know it to be the case, have a senator—shall the Roman people have a judge—shall the republic have a citizen, unmarked by any ignominy, who, to cause the ruin of an innocent man, has sold his good faith and religion for a bribe? And shall a man, who, being induced by a bribe, has deprived an innocent citizen of his country, his fortune, and his children, not be branded by the stigma of the censor’s severity? Are you the prefect appointed to supervise our manners—are you a teacher of the ancient discipline and severity, if you either knowingly retain any one in the senate who is tainted with such wickedness, or if you decide that it is not right to indict the same punishment on every one who is guilty of the same fault? or will you establish the same principle of punishment with respect to the dishonesty of a senator in his peaceful capacity, which our ancestors chose to establish with respect to the cowardice of a soldier in time of war? Moreover, if this precedent ought to have been transferred from military affairs to the animadversion of the censors, at all events the system of drawing lots should have been retained. But if it is not consistent with the dignity of a censor to draw lots for punishment, and to commit the guilt of men to the decision of fortune, it certainly cannot be right in the case of an offence committed by many, that a few should be selected for ignominy and disgrace.
XLVII. But we all understand that in these notes of the censors the real object was to catch at some breeze of popular favour. The matter had been brought forward in the assembly by a factious tribune; without any investigation into the business, his conduct was approved by the multitude; no one was allowed to say a word on the other side; indeed, no one showed the least anxiety to espouse the other side of the question. Moreover, those judges had already become exceedingly unpopular. A few months afterwards there was a fresh and very great odium excited with respect to the courts of justice, arising out of the affair of marking the balloting balls. The disgrace into which the courts were fallen appeared quite impossible to be overlooked or treated with indifference by the censors. So they chose to brand those men whom they saw were infamous for other vices, and for generally disgraceful lives, with their animadversion and special note also; and so much the more, because at that very time, during their censorship, the right of sitting as judges was divided with the equestrian body, in order that they might seem to have reproved those tribunals by their authority, through the ignominy inflicted on deserving men. But if I or any one else had been allowed to plead this cause before those censors, I would certainly have proved to the satisfaction of men endowed with such prudence, (for the facts of the case prove it,) that they themselves had ascertained nothing, had discovered nothing; but that in all those notes appended to their animadversions nothing had guided them but rumour, and nothing had been sought but popular applause. For to the name of Publius Popillius, who had condemned Oppianicus Lucius Gellius had appended a note, “because he had taken money to condemn an innocent man.” Now what a real conjurer that man must be, O judges, to know that a man was innocent, whom, very likely, he had never seen, when the very wisest men, to say nothing of those who actually condemned him, after investigation of the case, said that they were not without doubt in the matter!
However, be it so. Gellius condemns Popillius. He decides that he had accepted money from Cluentius. Lentulus says that he had not. For he did not elect Popillius into the senate, because he was the son of a freedman; but he left him his place as a senator at the games, and the other ornaments of that rank, and released him from all ignominy. And by doing so, he declares his opinion, that he had voted against Oppianicus without having been bribed to do so. And afterwards Lentulus, on a trial for bribery, gave his evidence most zealously in favour of this same Popillius. Wherefore, if Lentulus did not agree with the decision of Lucius Gellius, and if Gellius was not contented with the opinion delivered by Lentulus, and if each censor thought himself not bound at all by the opinion of the other censor, what reason is there why any one of us should think that the notes of the censors ought to be all fixed and ratified so as to be unalterable for ever?
XLVIII. Oh, but they visited Avitus himself with their censure. Not for any baseness, nor for any, I will not say vice, but not even for any fault of his own in his whole life. For no one can possibly be a more religious man, or a more honourable one, or more scrupulous in fulfilling all his duties. Nor indeed does the opposite party say anything to the contrary, but they adopt the same report of the judges having been bribed. Nor indeed have they any contrary opinion to that which we wish to be entertained about his modesty, integrity, and virtue; but they thought it quite impossible for the accuser to be passed over after the judges had been punished. And with respect to this whole business, if I produce one precedent from the whole of our ancient history, I will say no more. For I think that I ought not to pass over the instance of that most eminent and most illustrious man, Publius Africanus; who, when he was censor, and when Caius Licinius Sacerdos had appeared on the register of the knights, said with a loud voice, so that the whole assembly could hear him, that he knew that he had committed deliberate perjury and that if any one denied it, he would give him his own evidence in support of this assertion. But when no one ventured to deny it, he ordered him to give up his horse.1 So that he, with whose decision the Roman people and foreign nations had been accustomed to content themselves, was not content with his own private knowledge as justifying him in branding another with ignominy. But if Avitus had been allowed to do this, he would have found it an easy matter to have resisted those very judges themselves, and the false suspicion, and the odium excited in the breasts of the people against him.
There is still one thing which especially perplexes me, and a topic to which I appear to have scarcely made any sufficient reply,—namely, the eulogy which you read, extracted from the will of Caius Egnatius, the father, a most honourable man, and a most wise one; saying that he had disinherited his son, because he had taken a bribe to vote for the condemnation of Oppianicus. Of that man’s inconstancy and feebleness I will not say another word. This very will which you are reading is such, that he, when he was disinheriting that son whom he hated, was joining with his other son whom he loved, the most perfect strangers as his coheirs. But I think that you, O Attius, should consider carefully, whether you wish the decision of the censors, or that of Egnatius, to carry most weight with it. If that of Egnatius, that is a trifling thing which the censors have expressed in their notes about the others; for they expelled Egnatius himself from the senate, whom you wish to be considered an authority. If that of the censors is to preponderate, then the censors when they expelled his father, retained this Egnatius in the senate, whom his father disinherited on account of the note which the censors had written respecting him.
XLIX. Oh, but the whole senate judged that that tribunal had been bribed. How so? It undertook the cause. Could it pass over with indifference a matter of that sort when reported to it? When a tribune of the people, having stirred up the multitude, had almost brought the matter to a trial of strength; when a most virtuous citizen and most innocent man was said to have been unjustly condemned through the influence of money; when the whole body of senators was exceedingly unpopular, was it possible for no edict to be issued? Was it possible for all that excitement of the multitude to be disregarded without extreme danger to the republic? But what was decreed? How justly, how wisely, how diligently was it decreed? “If there are any men by whose agency the public court of justice was corrupted.” Does the senate appear here to decide that any such thing was really done? or rather to be exceedingly angry and indignant if such a thing was done? If Aulus Cluentius himself were asked his opinion about the courts of justice, he would express no other sentiments than those which they expressed, by whose sentences you say that Aulus Cluentius was condemned. But I ask of you whether Lucius Lucullus, the consul, a very wise man, passed that law according to that resolution of the senate? I ask whether Marcus Lucullus and Caius Cassius passed that law, against whom, when they were the consuls elect, the senate passed the very same resolution? They did not pass it. And that which you assert to have been brought about by Avitus’s money, though you do not confirm your assertion by even the very slightest circumstances of suspicion, was done in the first instance by the justice and wisdom of those consuls, in order that men might not think that what the senate had decreed for the purpose of extinguishing the flames of present unpopularity, might afterwards be referred to the people. The Roman people itself afterwards, which formerly when excited by the fictitious complaints of Lucius Quintius, a tribune of the people, had demanded that thing and the proposal of that law, now being influenced by the tears of the son of Caius Junius, a little boy, rejected the whole law and the whole proposition with the greatest outcry and with the greatest eagerness. From which that was easy to be understood which has been often said,—that as the sea, which by its own nature is tranquil, is often agitated and disturbed by the violence of the winds, so, too, the Roman people is, when left to itself, placable, but is easily roused by the language of seditious men, as by the most violent storm.
L. There is also one other very great authority besides, which I had almost passed over in a shameful manner; for it is said to be my own. Attius read out of some oration or other, which he said was mine, a certain exhortation to the judges to judge honestly, and a certain mention of judicial decisions in other cases, which had not been approved of, and also of that very trial before Junius; just as if I had not said at the beginning of this defence, that had been a trial which had incurred great unpopularity; or as if, when I was discussing the discredit into which the courts of justice had fallen in some instances, I could possibly at that time pass over that one which was so notorious. But I, if I said anything of that sort, did not mention it as a thing within my own knowledge, nor did I state it in evidence; and that speech was prompted rather by the occasion, than by my judgment and deliberate intention. For when I was acting as accuser, and had proposed to myself at the beginning to rouse the feelings of the Roman people and of the judges; and as I was mentioning all the errors of the courts of justice, relying not on my own opinion, but on the common report of men; I could not pass over that matter which had been so universally discussed. But whoever thinks that he has my positive opinions recorded indelibly in those orations which we have delivered in the courts of justice, is greatly mistaken. For all those speeches are speeches of the cause, and of the occasion, and are not the speeches of the men or of the advocates themselves. For if the causes themselves could speak for themselves, no one would employ an orator. But, as it is, we are employed, in order to say, not things which are to be considered as asserted on our own authority, but things which are derived from the circumstances of the cause itself. They say that that able man, Marcus Antonius, was accustomed to say “that he had never written a speech, in order that, if at any time he had said anything which was not desirable, he might be able to deny that he had said it.” Just as if whatever were said or pleaded by us was not retained in men’s memories, if we did not ourselves commit it to writing.
LI. But I, with respect to speeches of that sort, am guided by the authority of many men, and especially of that most eloquent and most wise man, Lucius Crassus; who—when he was defending Lucius Plancius, whom Marcus Brutus, a man most vehement and able as a speaker, was prosecuting; when Brutus, having set two men to read, made them read alternate chapters out of two speeches of his, entirely contrary to one another, because when he was arguing against that motion which was introduced against the colony of Narbo, he disparaged the authority of the senate as much as he could, but when he was urging the adoption of the Servilian law, he extolled the senate with the most excessive praises; and when he had read out of that oration many things which had been spoken with some harshness against the Roman knights, in order to inflame the minds of those judges against Crassus—is said to have been a good deal agitated. And so, in making his reply, he first of all explained the difference between the two times, so that the speech might appear to have arisen from the case and from its circumstances; after that, in order that Brutus might learn what a man, not only eloquent but endued with the greatest wit and facetiousness, he had provoked, he himself in his turn brought up three readers with a book a-piece, all which books Marcus Brutus, the father of the prosecutor, had left, on the civil law. When the first lines of them were read, those which I take to be known to all of you, “It happened by chance that I and Brutus my son were in the country near Privernum,” he asked what had become of his farm at Privernum. “I and Brutus my son were in the district of Alba.” He begged to know where his Alban farm was. “Once, when I and Brutus my son had sat down in the fields near Tibur.” Where was his farm near Tibur? And he said that “Brutus, a wise man, seeing the profligacy of his son, evidently wished to leave a record behind him of what farms he left him. And if he could with any decency have written that he had been in the bath with a son of that age, he would not have passed it over; and still that he preferred inquiring about those baths, not from the books of his father, but from the registers and the census.” Crassus then chastised Brutus in this manner, and made him repent of his readings. For perhaps he had been annoyed at being reproved for those speeches which he had delivered in the affairs of the republic; in which perhaps deliberate wisdom is more required than in those in court. But I am not at all vexed at those things having been read. For they were not unsuited to the state of the times which then existed, nor to the cause in which they were spoken. Nor did I take any obligation on myself when I spoke them, to prevent my defending this cause with honour and freedom. But suppose I were now to confess, that I had now become acquainted with the real merits of Cluentius’s case, but that I was previously influenced by popular opinion concerning it, who could blame me? especially when, O judges, it is most reasonable that this also should be granted me by you, which I begged at the beginning, and which I request now, that if you have brought with you into court a somewhat unfavourable opinion of this cause, you will lay it aside now that you have thoroughly investigated the case and learnt the whole truth.
LII. Now since, O Titus Attius, I replied to everything which was said by you concerning the condemnation of Oppianicus, you must inevitably confess that you were very much deceived when you thought that I would defend the cause of Aulus Cluentius, not by arguing on his own actions, but on the law. For you very often said that you had been informed that I intended to defend this action, relying on the protection of the law. Is it so? Are we, then, without knowing it, betrayed by our friends? and is there some one among those whom we think our friends, who carries intelligence of our plans to our adversaries? Who reported this to you? Who was so dishonest? But to whom did I tell it? No one, I imagine, is in fault; but in truth it was the law itself which suggested this to you. But do I appear to have defended it in such a way as to have made throughout the whole case the least mention of the law? Do I appear to have defended this cause differently from the way in which I should have defended it if Avitus had been guilty by law, supposing the facts to be proved? Certainly, as far as a man may assert a thing positively, I have omitted no opportunity of clearing him from the odious imputation sought to be cast on him. What do I mean, then? Some one will ask, perhaps, whether I have any objection to ward off danger from a client’s life by the protection with which the law supplies me? I have no objection at all, O judges; but I adhere to my own plan of action. In a trial in which an honourable and a wise man is concerned, I have been accustomed, not only to consult my own judgment, but very much also to be guided by the judgment and inclination of him whom I am defending. For when this cause was brought to me, as to a person who ought to know the laws on which we are employed, and to which we devote ourselves, I said at once to Avitus that he was perfectly safe from the law about “those who conspired together to procure a man’s condemnation;” but that our order was liable to be impeached under that law. And he began to beg and entreat me not to defend him by urging points of law. And when I said what I thought, he brought me over to his opinion; for he affirmed with tears that he was not more desirous of retaining his freedom as a citizen, than of preserving his character. I complied with his wishes, and yet I did it (for it is not a thing which we ought to do at all times) because I saw that the cause itself could be amply defended on its own merits, without any reference to law at all. I saw that in this defence, which I now have employed, there was more dignity, but that in that one which he begged me not to use, there would be less trouble. But if I had no other object in view beyond merely gaining this cause, I should have read the laws to you, and then have summed up.
LIII. Nor am I moved by that argument which Attius uses when he says that it is a scandalous thing that, if a senator should procure a wrongful conviction of any one, he should be made liable to the laws, but that if a Roman knight does the same, he should not. Although I should grant to you that it would be a scandalous thing, (and the fact I will examine into presently,) still you must inevitably grant to me that it is a much more scandalous thing that the laws should be departed from in that state which is entirely held together by the laws; for this is the bond of this dignity which we enjoy in the republic, this is the foundation of our liberty, this is the source of justice. The mind, and spirit, and wisdom, and intentions of the city are all situated in the laws. As our bodies cannot, if deprived of the mind, so the state, if deprived of law, cannot use its separate parts, which are to it as its sinews, its blood, and its limbs. The ministers of the law are the magistrates; the interpreters of the law are the judges; lastly, we are all servants of the laws, for the very purpose of being able to be freemen. What is the reason, O Naso, why you sit in that place? What is the power by which those judges, invested with such dignity, are separated from you? And you too, O judges, how is it that out of such a multitude of citizens, you with your small numbers decide on the fortunes of man? By what right is it that Attius said whatever he chose? Why have I had an opportunity of speaking at such length? What is the meaning of all these secretaries and lictors, and all the rest of those whom I see assisting at this investigation? I think that all these things take place according to law, and that the whole of this trial is conducted and governed (as I said before) by the mind, as it were, of the law. What, then, shall we say? Is this the only investigation that is so conducted? What became of the question of classing Marcus Plætorius and Caius Flaminius as assassins? What became of the charge of peculation brought against Caius Orchinius? or of my oration, when prosecuting a charge of embezzlement? or of the speech of Caius Aquillius, before whom a case of bribery is at this moment being tried? or of all the other investigations that are habitually taking place? Survey all the different parts of the republic; you will see that everything takes place under the general dominion, and according to the special enactment of the laws. If any one, O Titus Attius, were to wish to prosecute you before me as judge, you would cry out that you were not liable under the law about extortion. Nor would this demurrer of yours be any confession that you had appropriated the money illegally; but it would be merely a refusal to encounter a labour and a danger which you were not obliged to encounter by the law.
LIV. Now see what is being done, and what law is laid down by you. The law, according to the provisions of which this investigation has been instituted, orders the judge who presides over the investigation, that is to say, Quintus Voconius, with the other judges, who are his colleagues, (it means you, O judges,) to make inquiry concerning the fact of poisoning. To make inquiry with respect to whom? The subject is interminable. “Whoever has made it, or sold it, or bought it, or had it in his possession, or administered it.” What does the same law subjoin immediately afterwards? Read—“And bring him to a capital trial.” Whom? He who has conspired? he who has agreed? Not so. What, then, is meant? Tell me. “Whoever is a military tribune of the four first legions, or a quæstor, or a tribune of the people.” Then all the magistrates are named. “Or who has delivered or shall deliver his opinion in the senate.” What then? “If any one of them has agreed, or shall agree, has conspired, or shall conspire, to get any one condemned in a criminal trial.” “Any one of them:” Of whom? Of those, forsooth, who have been enumerated above. What does it signify in which way the law was framed? Although it is plain enough, yet the law itself shows its own meaning; for when it binds all the world, it uses this expression: “Whoever has committed or shall commit an act of poisoning.” All men and women, freemen and slaves, are brought under the power of the court. If, again, it had wished to include conspiracy, it would have added, “or who has conspired.” Now it runs, “And let any one who has conspired, or shall conspire, be brought to a capital trial, before one who has filled any magistracy, or who has delivered his opinion in the senate.” Does that apply to Cluentius? Certainly not. Who, then, is Cluentius? He is a man who still does not wish to get off on a trial by any quibble of law. Well, then, I discard the law. I comply with Cluentius’s wishes; still I will say a few things which are not connected with my client’s case, by way of reply to you, O Attius. For there is something in this cause which Cluentius thinks concerns him; there is also something which I think concerns me. He thinks it is for his interest that his defence should rest on the facts and merits of the case, not on the letter of the law; but I think that it concerns me not to appear defeated by Attius in any discussion. For this is not the only cause that I have to plead; my labour is at the service of every one who can be content with my ability as their advocate. I do not wish any one of those who are present to think, if I remain silent, that I approve of what has been said by Attius respecting the law. Wherefore, O Cluentius, I am complying with your wishes in this your cause; and I do not read any law in this court, nor do I allege any law in your favour. But I will not omit those things which I think are expected from me.
LV. It seems to you, O Attius, to be a scandalous thing that every one should not be bound by the same laws. In the first place, (suppose I do grant to you that it is a most scandalous thing,) it is an evil of this sort, that it is a proof that we have need to have the laws altered, not that we are not to obey the laws while they are in existence. In the next place, what senator has ever made this complaint, that when, by the kindness of the Roman people, he had attained a higher rank, he did not think he ought by that promotion to be put under more severe conditions of law? How many advantages are there, which we are without; how many troubles and annoyances are there which we undergo.—And all these things are compensated by the advantages of honour and dignity. Now apply these same conditions of life to the equestrian order, and to the other ranks of the state. They will not endure them; for they think that fewer inconveniences of the laws, and of the courts of justice, ought to be allotted to them, who have either never been able to mount to the higher ranks of the state, or have never tried. And, to say nothing of all other laws, by which we are bound, and from which all the other ranks are released, Caius Gracchus passed this law, “That no one should be circumvented.” And he passed, it for the sake of the common people, not against the common people. Afterwards Lucius Sylla, a man who had not the slightest connexion with the common people, still, when he was appointing a trial concerning a case of this sort to take place according to the provisions of this very law, by which you are sitting as judges at the present moment, did not dare to bind the Roman people with this new sort of proceeding, whom he had received free from any such obligation. But if he had thought it practicable to do so, from the hatred which he bore the equestrian order, he would not have been more glad to do anything than to turn the whole fury of that proscription of his which he let loose upon the old judges, on this single tribunal. Nor is there any other object aimed at now, (believe me, O judges, and provide for what you must provide for,) except the bringing the whole equestrian body within the danger of this law. Not that this is the object of every one, but of a few. For those senators who easily keep themselves in integrity and innocence, such as (I will speak the truth,) you yourselves are, and those others who have lived free from covetousness are anxious that the knights, as they are next to the senatorial body in rank, should also be most closely united to them by community of feeling. But those who wish to engross all power to themselves, and to prevent any from existing in any other man, or in any other rank, think that by holding this single fear over them, they will be able to bring the Roman knights under their power, if it is once established that investigations of this sort can be held upon those men who have acted as judges. For they see that the authority of this order is strengthened, they see that its judicial decisions are approved; but if this fear be suspended over you they feel confident that they shall be able to pluck the sting out of your severity. For, who would dare to decide with truth and firmness in the case of a man possessed of at all greater power or riches than the generality, when he sees that he himself may be afterwards prosecuted with reference to that case, for having been guilty of some agreement or conspiracy?
LVI. O the gallant men, the Roman knights! who resisted that most eminent and most powerful man, Marcus Drusus, when tribune of the people, when he was aiming at nothing with respect to the whole body of nobility which existed at that time, except contriving that they, who had sat as judges, might be themselves brought before the court by proceedings of this sort. Then Caius Flavius Pusio, Cnæus Titinnius, Caius Mæcenas, those props of the Roman people, and the other men of this order, did not do the same thing that Cluentius does now, in refusing, because they thought that they should by that means incur some blame; but they most openly resisted, when they demurred to these proceedings, and said openly, with the greatest courage and honesty, that they might have arrived by the decision of the Roman people at the highest rank, if they had chosen to set their hearts on seeking honours; that they were aware how much splendour, how much honour, and how much dignity there was in that sort of life; and that they had not despised these things, but had been content with their own order, which had been the rank of their fathers before them; and that they had preferred following that tranquil course of life, removed from the storms of unpopularity, and from the intricacies of these judicial proceedings. They said, that either the proper age for offering themselves as candidates for honours ought to be restored to them, or, since that was impossible, that that condition of life had better remain which they had followed when they abstained from being candidates; that it was unjust that they, who had avoided all the decorations of those honours, on account of the multitude of their dangers, should be deprived of the kindness of the people, and yet not be free from the dangers of these new tribunals; that a senator could not make this complaint, because he had originally offered himself as a candidate for them, knowing all the conditions, and because he had a great many honourable circumstances which in his case might lessen the inconvenience,—the place, the authority, the dignity it gave him at home, the name and influence it conferred on him among foreign nations, the toga prætexta, the curule chair, the ensigns of the rank, the forces, the armies, the military command, the provinces, all which things our ancestors wished to be the greatest rewards for virtuous actions, and by them they wished, also, that there should be the greatest dangers held out, as a terror to offences. They did not refuse to be prosecuted under this law, under which Avitus is now prosecuted, which was then called the Sempronian law, and now is called the Cornelian law. For they were aware that the equestrian order is not bound by that law; but they were anxious not to be bound by any new law. Avitus has never demurred even to this, not to giving an account of his course of life according to the provisions of a law by which he was not at all bound. And if this condition pleases you, let us all strive to have this investigation extended to all ranks and orders in the city.
LVII. But in the mean time, in the name of the immortal gods! since we have all our advantages, our laws, our liberty, and our safety by means of the laws, let us not depart from the laws. And at the same time let us consider what a scandalous thing it is for the Roman people to be now pursuing another object; for them to have entrusted to you the republic and their own fortunes; to be themselves without any care; to have no fear of being bound by the decision of a few judges, by a law which they have never sanctioned, and by a form of judicial investigation of which they think themselves independent For Titus Attius, a virtuous and eloquent young man, conducts this case in such a manner; saying that all the citizens are bound by all the laws; and you attend and listen in silence, as you ought to do.
Aulus Cluentius, a Roman knight, is prosecuted according to that law by which the senators, and those who have served magistracies, alone are bound. I, by his desire, am prevented from demurring to this and from establishing the main bulwark of my defence on the citadel of the law. If Cluentius gains his cause, as we, relying on your equity, feel sure that he will, all will believe, what indeed will be the truth, that he has gained it because of his innocence, since he has been defended in such a manner as this; but in the law, all appeal to which he discarded, he found no protection at all. Here now is something which concerns me, as I said before, and which I ought to make good to the satisfaction of the Roman people, since my condition of life is such that the whole of my care and labour is devoted to defending every one from danger. I see how great, and how dangerous, and how boundless a field of investigation is attempted to be opened by the prosecutors, when they endeavour to transfer that law, which was framed with reference to our order alone, to the whole Roman people. And in that law are the words—“Who has conspired.” You see how wide an application that may have. “Or agreed.” That is just as vague and indefinite. “Or consented.” But this is not only vague and indefinite, but is also obscure and unintelligible. “Or given any false evidence.” Who is there of the common people at Rome, who has ever given any evidence at all, who is not, as you see, exposed to this danger, if Titus Attius is to have his own way? At all events I assert this positively, that no one will ever give evidence for the future, if this tribunal is held over the common people of Rome. But I make this promise to every one, if by chance any one is brought into trouble by this law, who is not properly liable to this law, that if he will employ me to defend him, I will defend his cause by the protection that the law affords, and that I will prove my case easily to these judges, or to any others who resemble them, and that I will use every means of defence with which the law provides me, which I am now not permitted to use, by the man with whose wishes I am bound to comply.
LVIII. For I ought not to doubt, O judges, that, if a cause of this sort be brought before you, of a man who does not come under the provisions of that law, even if he be unpopular, or if he seem to be disliked by many, or even if you hate him yourselves, and are unwilling to acquit him, still you will acquit him; and you will be guided rather by your sense of duty than by your personal hatred. For it is the part of a wise judge, to think that he has just that power permitted to him by the Roman people, which is committed and entrusted to him; and to remember that not only is power given to him, but also that confidence is placed in him: that he is a man capable of acquitting a man whom he hates, of condemning one whom he does not hate; and of always thinking not what he himself wishes, but what the law and the obligation of his oath requires of him—of considering according to what law the defendant is brought before him, who the defendant is into whose conduct he is inquiring, and what are the facts which are being investigated. All these things require to be looked at, and also it is the part of a great and wise man, O judges, when he has taken in his hand his judicial tablet, to think that he is not alone, and that it is not lawful for him to do whatever he wishes; but that he must employ in his deliberations law, equity, religion, and good faith; that he must discard lust, hatred, envy, fear, and all evil passions, and must think that consciousness implanted in one’s mind, which we have received from the immortal gods, and which cannot be taken from us, to be the most powerful motive of all. And if that is a witness of virtuous counsels and virtuous actions throughout our whole lives, we shall live without any fear, and in the greatest honour.
If Titus Attius had known these things, or thought of them, certainly he would not have ventured to say what he did assert at great length, that a judge decides whatever he chooses, and ought not to be bound by the laws. But now concerning all these topics I think I have said too much, if judged by the inclination of Cluentius; little enough, if we look to the dignity of the republic; but quite enough with reference to your wisdom. There are a few topics remaining, which because they belonged to your investigation they thought ought to be considered and urged by them, that they might not be considered the most worthless of all men, as they would deserve to be if they brought nothing into the court but their own personal ill-feeling.
LIX. And that you may see that it is of necessity that I have urged the topics which I have now been mentioning, at considerable length, listen to what remains. You will then understand that all those points of the defence which could be stated in a few words, have been stated with the greatest brevity possible.
You have said that an injury was done by the family of my client to Cnæus Decius, a Samnite; him I mean who was proseribed, in his calamity. He was never treated by any one more liberally than by Cluentius. It was the riches of Cluentius that relieved him in his distresses; and he himself, and all his friends and relations, know it well. You have said “that his stewards offered violence to and assaulted the shepherds of Ancarius and Pacenus.” When some dispute (as is often the case) had arisen in the hills between the shepherds, the stewards of Avitus defended the property and private possessions of their master. The parties expostulated with one another, the cause was proved to the satisfaction of the others, and the matter was settled without any trial or any recourse to law. You have said, “When a relation of Publius Ælius had been disinherited by his will, this man, who was no relation of his, was declared his heir.” Publius Ælius acted so from his knowledge of Avitus’s merit. He was not present at the making of the will; and that will was signed by Oppianicus as a witness. You have said, “that he refused to pay Florius a legacy bequeathed to him in the will.” That is not the case; but as thirty sesterces had been written instead of three hundred, and as it did not appear to him to have been very carefully worded, he only wished him to consider what he received as due to his liberality. He first denied that the money was legally due, but, having done so, he then paid it without any dispute. You have said, “that the wife of a certain Samnite named Cœlius was, after the war, recovered from Cluentius.” He had bought the woman as a slave from the brokers; but the moment that he heard that she was a free woman he restored her to Cœlius without any action. You have said, “that there is a man named Ennius, whose property Avitus is in possession of.” This Ennius is a needy man, a trumper up of false accusations, a hired tool of Oppiancius; who for many years remained quiet; then at last he accused a slave of Avitus of theft; lately, he began to claim things from Avitus himself. By that private proceeding, he will not (believe me), though we may perhaps be his advocates, escape calumny. And also, as it is reported to us, you suborn an entertainer of many guests, a certain Aulus Binnius, an innkeeper on the Latin road, to say that violence was offered to him in his own tavern by Aulus Cluentius and his slaves But about that man I have no need at present to say anything. If he invited them, as is commonly the case, we will treat the man so as to make him sorry for having gone out of his way.
You have now, O judges, everything which the prosecutors, after eight years’ meditation, have been able to collect against the morals of Aulus Cluentius during his whole life, the man whom they state to be so hated and unpopular. Charges how insignificant in their kind! how false in their facts! how briefly replied to!
LX. Learn now this, which has a reference to your oath, which belongs to your tribunal, which is a burden the law has imposed on you, in accordance with which you have assembled here,—the law, I mean, about accusations of poison; so that all may understand in how few words this cause may be summed up, and how many things have been said by me which had a great deal to do with the inclination of my client, but very little with your decision.
It has been urged in the case for the prosecution, that Caius Vibius Capax was taken off by poison by this Aulus Cluentius. It happens very seasonably that a man is present endowed with the greatest good faith, and with every virtue, Lucius Plætorius, a senator, who was connected by ties of hospitality with, and was an intimate friend of that man Capax. He used to live with him at Rome; it was in his house that he was taken ill, in his house that he died. “But Cluentius is his heir.” I say that he died without a will, and that the possession of his property was given by the prætor’s edict to this man, his sister’s son, a most virtuous young man, and one held in the highest esteem for honourable conduct, Numerius Cluentius, who is present in court.
There is another poisoning charge. They say that poison was, by the contrivance of Avitus, prepared for this young Oppianicus, when, according to the custom of the citizens of Larinum, a large party was dining at his wedding feast; that, as it was being administered in mead, a man of the name of Balbutius, his intimate friend, intercepted it on its way, drank it, and died immediately. If I were to deal with this charge as one that required to be refuted, I should treat those matters at great length, which, as it is, my speech will pass over in a few words. What has Avitus ever done that he is not to be thought a man incapable of such an atrocity as this? And what reason had he for being so exceedingly afraid of Oppianicus, when he could not possibly say a word in this case, and while accusers could not possibly be wanting, as long as his mother was alive? which you will soon have proved to you. Was it his object to have no sort of danger wanting to his cause, that this new crime was added to it? But what opportunity had he of giving him poison on that day, and in so large a company? Moreover, by whom was it given? Whence was it got? How, too, was the cup allowed to be intercepted? Why was not another given to him over again? There are many arguments which may be urged; but I will not appear to wish to urge them, and still not to do so. For the facts of the case shall speak for themselves. I say that that young man, whom you say died the moment that he had drank that cup, did not die at all on that day. O great and impudent lie! Now see the rest of the truth. I say that he, having come to the dinner while labouring under an indigestion, and still, as people of that age often do, had not spared himself, was taken ill, continued ill some days, and so died. Who is my witness for this fact? The man who is a witness also of his own grief—his own father. The father, I say, of the young man himself: he, who, from his grief of mind, would have been easily inclined by even the slightest suspicion to appear as a witness against Aulus Cluentius, gives evidence in his favour. Read his evidence. But do you, unless it is too grievous for you, rise for a moment, and endure the pain which this necessary recollection of your trouble causes you; on which I will not dwell too long, since, as became a virtuous citizen, you have not allowed your own grief to be the cause of distress or of a false accusation to an innocent man.
[The testimony of Balbutius the father is read.]
LXI. There is one charge remaining, O judges; a charge of such a nature, that you may see from it the truth of what I said at the beginning of my speech,—that whatever misfortune has happened to Aulus Cluentius of late years, whatever anxiety or trouble he has at the present time, has all been contrived by his mother. You say that Oppianicus was killed by poison, which was administered to him in bread by some one of the name of Marcus Asellius, an intimate friend of his own; and that that was done by the contrivance of Avitus. Now, in this matter, I ask first of all what reason Avitus had for wishing to kill Oppianicus. For I admit that ill-will did exist between them; but men only wish their enemies to be slain, either because they fear them, or because they hate them. Now, by fear of what could Avitus have been influenced, that he should have endeavoured to commit so great a crime? What reason could any one have had for fearing Oppianicus, already condemned to punishment for his crimes, and banished from the city? What did Cluentius fear? Did he fear being attacked by a ruined man? or being accused by a convict? or being injured by the evidence of an exile? But if, because Avitus hated him, he, on that account, did not wish him to live, was he such a fool, as to think that a life which he was then living, the existence of a convict, of an exile, of a man abandoned by every one? whom, on account of his odious disposition, no one was willing to admit into his house, or to visit, or to speak to, or even to look at? Did Avitus, then, envy the life of this man? If he had hated him bitterly and utterly, ought he not to have wished him to live as long as possible? Would an enemy have hastened his death, when death was the only refuge which he had left from his calamity? If the man had had any virtue or any courage, he would have killed himself, (as many brave men have done in many instances, when in similar misfortunes.) How is it possible for an enemy to have wished to offer to him what he must himself have wished for eagerly? For now indeed, what evil has death brought him? Unless, perchance, we are influenced by fables and nonsense, to think that he is enduring in the shades below the punishments of the wicked, and that he has met with more enemies there than he left behind here; and that he has been driven headlong into the district and habitation of wicked spirits by the avenging furies of his mother-in-law, of his wife, of his brother, and of his children. But if these stories are false, as all men are well aware that they are, what else has death taken from him except the sense of his misery? Come now, by whose instrumentality was the poison administered? By that of Marcus Asellius.
LXII. What connexion had he with Avitus? None—nay rather, as he was a very intimate friend of Oppianicus, he was rather an enemy to Avitus. Did he then pick out that man whom he knew to be rather unfriendly to himself, and to be exceedingly intimate with Oppianicus, to be above all others the instrument of his own wickedness, and of the other’s danger? In the next place, why do you, who have been prompted by pity to undertake this prosecution, leave this Asellius so long unpunished? Why did not you follow the precedent of Avitus, and have a previous examination, which should affect him, by means of an investigation into his conduct who had administered the poison? But now, as for that circumstance of poison being administered in bread, how improbable, how unusual, how strang a thing it is. Was it easier than administering it in a cup? Could it be hid more secretly in some part of the bread than if it had been all liquefied and amalgamated with a potion? Could it pass more rapidly into the veins and into every separate part of the body if it were eaten than if it were drunk? Could it escape notice (if that was thought of) more easily in bread, than in a cup, when it might then have been so mixed up as to be wholly impossible to be separated? “But he died by a sudden death” But if that was the case, still that circumstance, from the number of men who die in that way, would not give rise to any well-grounded suspicion of poison. If it were a suspicious circumstance, still the suspicion would apply to others rather than to Avitus. But as to that fact itself, men tell most impudent lies. And that you may see this, listen to this statement of the truth respecting his death, and how after his death an accusation was sought for out of it against Avitus, by his mother.
When Oppianicus was wandering about as a vagabond and an exile, excluded from every quarter, he went into the Falernian district of Caius Quintilius; there he first fell sick, and had a very violent illness. As Sassia was with him, and as she was more intimate with a man of the name of Statius Albius, a citizen of that colony, a man in good health, who was constantly with her, than that most dissolute husband could endure, while his fortune was unimpaired, and as she thought that that chaste and legitimate bond of wedlock was dissolved by the condemnation of her husband, a man of the name of Nicostratus, a faithful slave of Oppianicus’s, a man who was very curious and very truth-telling, is said to have been accustomed to carry a good many tales to his master. In the meantime, when Oppianicus was becoming convalescent, and could not endure any longer the profligacy of this Falernian, and after he had come nearer the city,—for he had some sort of hired house outside the gates,—he is said to have fallen from his horse, and, being a man in delicate health before, to have hurt his side very badly, and having come to the city in a state of fever, to have died in a few days. This is the manner of his death, O judges, such as to have no suspicious circumstance at all attached to it, or if it has any, they must apply to some domestic wickedness carried on within his own walls.
LXIII. After his death Sassia, that abandoned woman, immediately began to devise plots against her son. She determined to have an investigation made into the death of her husband. She bought of Aulus Rupilius, whom Avitus had employed as his physician, a slave of the name of Strato, as if she were following the example of Avitus in purchasing Diogenes. She said that she was going to investigate the conduct of this Strato, and of some servant of her own. Besides that, she begged of that young Oppianicus that slave Nicostratus, whom she thought to be too talkative, and too faithful to his master, for judicial examination. As Oppianicus was at that time quite a boy, and as that investigation was being instituted about the death of his own father, although he thought that that slave was a well-wisher both to himself and to his father, still he did not venture to refuse anything. The friends and connexions of Oppianicus, and many also of the friends of Sassia herself, honourable men, and accomplished in every sense of the word, are invited to attend. The investigation is carried on by means of the severest tortures. When the minds of the slaves had been tried both with hope and fear, to induce them to say something in the examination, still, compelled (as I imagine) by the authority of those who were present, and by the power of the tortures, they adhered to the truth, and said that they knew nothing of the matter. The examination was adjourned on that day, by the advice of the friends who were present. After a sufficient interval of time, they are summoned a second time. The examination is repeated all over again. No degree of the most terrible torture is omitted. The witnesses who had been summoned turned away, and could scarcely bear to witness it. The cruel and barbarous woman began to storm, and to be furious that her plans were not proceeding as she had hoped that they would. When the torturer and the very tortures themselves were worn out, and still she would not desist, one of the men who had been summoned as witnesses, a man distinguished by honours conferred on him by the people, and endued with the highest virtue, said that he plainly saw that the object was not to find out the truth, but to compel them to give some false evidence. After the rest had shown their approbation of these words, it was resolved by the unanimous opinion of them all, that the examination had been carried far enough. Nicostratus is restored to Oppianicus; Sassia goes to Larinum with her friends, grieving, because she thought that her son would certainly be safe; since not only no true accusation could be proved against him, but there could not be even any false suspicion made to attach to him, and since not only the open attacks of his enemies were unable to injure him, but even the secret plots of his mother against him proved harmless to him. After she came to Larinum, she, who had pretended to be persuaded that poison had been previously given to her husband by that man Strato, immediately gave him a shop at Larinum, properly furnished and provided for carrying on the business of an apothecary.
LXIV. One, two, three years did Sassia remain quiet, so that she seemed rather to be wishing and hoping for some misfortune to her son, than to be planning and contriving any such thing against him. Then in the meantime, in the consulship of Hortensius and Metellus, in order that she might persuade Oppianicus, who was occupied about other matters, and thinking of nothing of the sort, to this accusation, she betroths to him against his will her own daughter, her whom she had borne to his father-in-law, in order that she might have him in her power, now that he was bound to her by this marriage, and also by the hope of her will. Nearly about the same time, Strato, that great physician, committed a theft and murder in his own house in the following manner:—As there was in his house a chest, in which he knew there was a good deal of money and gold, he murdered by night two slaves while they were asleep, and threw their bodies into a fishpond. Then he cut out the bottom of the chest, and took out . . . . sesterces, and five pounds’ weight of gold, with the privity of one of his slaves, a boy not grown up. The theft being discovered the next day, all the suspicion attached to those slaves who did not appear. When the cutting out of the bottom of the chest was noticed, men asked how that could have been done? One of the friends of Sassia recollected that he had lately seen at an auction, among a lot of very small things, a crooked and twisted saw sold, with teeth in every direction; and by such an instrument as this it seemed that the bottom of the chest might have been cut round in the manner in which it was. To make my story short, inquiry is made of the auctioneer. That saw is found to have become the property of Strato. When suspicion was excited in this manner, and Strato was openly accused, the boy who had been privy to the deed got alarmed; he gave information of the whole business to his mistress; the men were found in the fishpond; Strato was thrown into prison; and the money, though not all of it, was found in his shop. A prosecution for theft is commenced against him. For what else can any one suspect? Do you say this, that when a chest had been pillaged, money taken away, only some of it recovered, and when men had been murdered, that then an investigation into the death of Oppianicus was instituted? Who will you get to believe that? What is that you could possibly allege, that would be less possible? In the next place, to pass over the other points, was an investigation made into the death of Oppianicus three years after that death?—Ay, and being exasperated against him on account of her former grudge, she then, without the slightest reason, demanded that same Nicostratus, in order to submit him to the question. Oppianicus at first refused. After she threatened that she would take her daughter away from him, and alter her will, he, I will not say brought his most faithful servant to that most cruel woman, for her to subject him to the question, but he clearly gave him up to her for punishment.
LXV. After three years had elapsed, then, the long projected investigation into the death of her husband was made; and what slaves were especially pointed at in the investigation? I suppose some new circumstances were alleged in the accusation; some new men were involved in the suspicion. Strato and Nicostratus were those mentioned. What? had not an ample investigation into their conduct taken place at Rome? Was it not so? The woman, now mad, not by disease, but with wickedness, though she had conducted an investigation at Rome, though it had been resolved, in accordance with the opinion of Titus Annius, Lucius Rutilius, Publius Saturius, and other most honourable men, that the investigation had been carried far enough, still, three years afterwards she attempted to institute an investigation into the conduct of the same men, allowing, I will not say no man, (lest you should say by chance that some one of the inhabitants of the colony was present,) but no respectable man to be present; and this investigation was in reality directed against the life of her son. Can you say, (for it occurs to me to think what possibly can be said, even if it has not been said as yet,) that when the investigation about the robbery was proceeding, Strato made some confession respecting the poisoning? By this single means, O judges, truth, though kept under by the wickedness of many, often raises its head, and the defence which has been cut away from innocence gets breathingtime; either because they who are cunning in devising fraud, do not dare to execute all that they devise, or because they whose audacity is conspicuous and prominent, are destitute of the craftiness of malice. But if cunning were bold, or audacity crafty, it would scarcely be possible to resist them. Was there no robbery committed? Nothing was more notorious at Larinum. Did no suspicion attach to Strato? On the contrary, he was accused on account of the circumstance of the saw, and he was also informed against by the boy who was his accomplice. Was that not stated in the investigation? Why, what other reason was there for making the investigation at all? Did Strato then, (this is what you are bound to say, and what Sassia was constantly saying at that time,) while the investigation was going on about the robbery, while under the torture, make any confession about the poisoning? Behold now, here is the case which I have just mentioned. The woman abounds in audacity, she is deficient in contrivance and in ability. For many documents of what came out in the investigation are preserved, which have been read to you, and made public, those very documents which he said were then sealed up; and in all these documents there is not one letter about theft. It never once occurred to her to write out the first speech of Strato about the robbery, and after that, to add to it some expression about poisoning, which might seem not to have been extracted by any interrogatory, but to have been wrung from him by pain. The investigation into the robbery was superseded by the suspicion of the poisoning, which was a previous subject for investigation, which this very woman herself had pointed cut; who, after she had come to the resolution (being compelled thereto by the opinion of her friends,) that the examination had been pushed far enough, for three years afterwards loved that man Strato above all the other slaves, and held him in the greatest honour, and loaded him with all sorts of kindnesses. When, therefore, the investigation into a robbery was going on, and that robbery too which he, beyond dispute, had committed, did he then abstain from saying a word about that which was the subject of the investigation, but at once say something about the poisoning? And did he never say one word at all about the robbery, (even if not at the time when he ought to have said it, still) either at the end, or middle, at any part whatever of his examination?
LXVI. You see now, O judges, that that wicked woman, with the same hand with which she would murder her son, if it were in her power, has made up this false report of the examination. And who, I should like to know, has signed this report of the examination? Name any one person. You will find no one except perhaps a man of that sort, whom I would rather mention than have no one named. What do you say, O Titus Attius? will you bring before the court matter involving danger to a man’s life, will you bring forward the information laid with respect to this wickedness, and the fortunes of another, all written down in this document, and yet refuse to name the author of this document, or the witness, or any one who will in any respect confirm it? And will such men as these judges, before whom we stand, approve of this destruction which you have drawn forth out of the mother’s bosom against her most innocent son? Be it so then; these documents have no author. What next? Why is not the investigation itself reserved for the judges; for the friends and connexions of Oppianicus, whom she had invited to be present before, and for this identical time? What was done to these men, Strato and Nicostratus? I ask of you, O Oppianicus, what you say was done to your slave Nicostratus? whom you, as you were shortly about to accuse this man, ought to have taken to Rome, to have given him an opportunity of giving information; lastly, to have preserved him unhurt for examination, to have preserved him for these judges, and to have preserved him for this time. For, O judges, know that Strato was crucified, having had his tongue cut out; for there is no one of all the citizens of Larinum who does not know this. That frantic woman was afraid, not of her own conscience, not of the hatred of her fellow-citizens, not of the reports flying about among everybody; but, as if every one was not likely to be hereafter the witness of her wickedness, she was afraid of being convicted by the last words of a dying slave.
What a prodigy is this, O ye immortal gods! What shall we say of this enormity? What shall we call this enormous and inhuman wickedness, or where shall we say it has its birth? For now, in truth, you see, O judges, that I did not, at the beginning of my oration, say what I did about his mother without the strongest and most unavoidable necessity; for there is no evil, no wickedness, which she has not from the very beginning wished, and prayed for, and planned and wrought against her son. I say nothing of that first injury which she did him through her lust—I say nothing of her nefarious marriage with her son-in-law—I say nothing of her daughter driven from her husband by the profligate desires of her mother,—because they have relation, not to the existing danger of his life to my client, but to the common disgrace of the family. I say nothing of the second marriage with Oppianicus, to ensure which she first received from him his dead sons as hostages, and then married, to the grief of the family, and the destruction of her stepsons. I pass over how, when she knew that Aurius Melinus, whose mother-in-law she had formerly been, and whose wife she had been a little before that, had been proscribed and murdered by the contrivance of Oppianicus, she chose for herself that place as the abode and home of her married state, in which she might every day behold the proofs of the death of her former husband, and the spoils of his fortune. This is what I complain of first of all,—that wickedness which is now at length thoroughly revealed, of the poisoning of Fabricius; which, being then recent, was suspicious to others, incredible to him, but which now appears plain and evident to everybody. In fact, his mother is hardly concealed in that act of poisoning; nothing was devised by Oppianicus without the counsel of that woman; and unless that had been the case, certainly she would not afterwards, when the affairs was detected, have departed from him as from a wicked husband, but she would have fled from him as from a most pitiless enemy, and she would have for ever left that house overflowing with every imaginable wickedness. She not only did not do that, but from that time forth she omitted no opportunity of planning some treachery or other, but day and night, she, a mother, directed all her thoughts to compassing the destruction of her son. But first, in order to confirm Oppianicus in his resolution of becoming the accuser of her son, she bound him to her by gifts and presents, by giving him her daughter in marriage, and by the hope of her inheritance.
LXVII. Therefore, among other people too, when sudden enmities have arisen between relations, we often see divorces and ruptures of connexions take place; but this woman thought that no one could be sufficiently relied upon as the prosecutor of her son, unless he first married his sister. Other men, induced by new connexions, often lay aside their ancient enmities; she thought that a connexion with the family would be a pledge to ensure the strengthening of enmity. And she was not only diligent in providing an accuser for her son, but she also planned how to furnish him with the requisite weapons. Hence were all those tamperings with the slaves, both by means of threats and of promises; hence those repeated and cruel investigations into the death of Oppianicus; to which at last it was not the moderation of the woman, but the authority of her friends that put a limit. From the same wickedness proceeded that investigation conducted at Larinum three years afterwards. The false reports of the investigation were fabricated by the same frantic criminality. From that same frenzy proceeded also that abominable cutting out of her victim’s tongue; and lastly, the whole contrivance of this accusation has been managed and carried out by her. And when she had herself sent the accuser armed with all these weapons against her son to Rome, she remained herself a little while at Larinum, for the sake of seeking out and hiring witnesses. But afterwards, when news was brought to her that this man’s trial was coming on, she immediately flew hither, to prevent any diligence being wanting on the part of the accusers, or any money to the witnesses; or perhaps lest she, as his mother, should lose this sight which she had so eagerly desired, of this man’s mourning habit, and grief, and melancholy condition.
LXVIII. But now, what sort of journey do you think that woman had to Rome? which I, by means of the neighbourhood of the people of Aquinum and Venafrum, heard and ascertained from many people. What throngings of the people were there in these cities! what groanings of men and women! that a woman should go from Larinum, should go all the way from the Adriatic to Rome, with a large retinue, and great sums of money, in order to be the more easily able to convict and oppress by a capital charge, falsely trumped up, her own son!
There was not one of all those people (I may almost say) who did not think that every place required purifying, by which she had passed on her journey; no one who did not think the very earth itself, the common mother of us all, polluted by the footsteps of that wicked mother. Accordingly, she could not stay long in any city; of all that number of people, who might have been her entertainers, not one was found who did not flee from the contagion of her sight. She trusted herself to night and solitude, rather than to any city or to any host. But now, which of us does she think is ignorant of what she is doing, of what she is contriving, of what she is thinking? We know whom she has addressed herself to, whom she has promised money to, whose good faith she has endeavoured to undermine by means of bribes. Moreover, we are acquainted with her nocturnal sacrifices, which she thinks are secret, and her wicked prayers, and her abominable vows; in which she makes even the immortal gods to be witnesses of her wickedness, and does not perceive that the minds of the gods are propitiated by piety, by religion, and holy prayers, not by a polluted superstition, nor by victims slain to conciliate their sanction for acts of wickedness. This insanity and barbarity of hers I may well feel sure that the immortal gods have rejected with disgust from their altars and temples.
LXIX. Do you now, O judges, whom fortune has appointed to be a sort of other gods, as it were, to Aulus Cluentius, my client, throughout his whole life, ward off this savage attack of his mother from her son’s head. Many men, while sitting as judges, have pardoned the sins of the children out of pity for the parents;—we now entreat you, not to give up the most virtuously spent life of this man to the inhumanity of his mother, especially when you may see all his fellow-citizens in his municipality on the other side of the question. Know all of you, O judges, (it is a most incredible statement, but still a perfectly true one,) that all the men of Larinum, who have been able to do so, have come to Rome, in order by their zeal, and by the display of their numbers, to comfort this man as far as they could, in this his great danger; know that that town is at the present moment delivered to the keeping of children and women, and that it is now, at this time of common peace over Italy, defended by its domestic forces only. But even those who are left behind are equally eager with those whom you see present here, and are harassed day and night by anxiety about the result of this trial. They think that you are going to deliver a decision, not about the fortunes of one of their citizens, but about the condition, and the dignity, and all the advantages of the whole municipality. For the industry of that man in the common service of the municipality is extreme, O judges; his kindness to each individual citizen, and his justice and good faith towards all men, are of the highest order. Besides, he so preserves his high rank among his countrymen, and the position which he has inherited from his ancestors, that he equals the gravity, and wisdom, and popularity, and character for liberality of his ancestors. Therefore they give their public testimony in his favour, in words which signify not only their opinion of, and their esteem for him, but also their own anxiety of mind and grief. And while their panegyric is being read, I beg of you, who have brought it hither, to rise up.
[The panegyric on Cluentius, in pursuance of the resolution of the senators of Larinum, is read.]
From the tears of these men, you, O judges, may easily imagine that the senators did not pass these resolutions without tears. Come now, how great is the zeal of his neighbours in his behalf, how incredible their good-will towards him, how great their anxiety for him. They have not, indeed, sent resolutions drawn up in papers of panegyric, but they have chosen their most honourable men, whom we are all acquainted with, to come hither in numbers, and to give their personal evidence in his favour. The Frentani are present, most noble men. The Marrucini, a tribe of equal dignity, are present too. You see Roman knights, most honourable men, come to praise him from Teanum in Apulia, and from Luceria. Most honourable panegyrics have been sent from Bovianum, and from the whole of Samnium, and also the most honourable and noble men of these states have come too. As for those men who have farms in the district of Larinum, or business as merchants, or flocks and herds, honourable men and of the highest character, it is impossible to say how eager and anxious they are. It seems to me that there are not many men so beloved by a single individual as he is by all these nations.
LXX. How I wish that Lucius Volusienus were not absent from my client’s trial, a man of the greatest virtue and most exalted character! How I wish that I could say that Publius Helvidius Rufus was present, the most accomplished of all the Roman knights! who, while, in this man’s cause, he was kept awake night and day, and while he was instructing me in many of the facts of this case, has been stricken with a severe and dangerous illness; but even while in this state of suffering, he is not less anxious for the acquittal of Cluentius than for his own recovery. You shall witness the equal zeal of Cnæus Tudicius, a senator, a most virtuous and honourable man, shown both in giving evidence and in uttering an encomium on him. We speak with the same hope, but with more diffidence, of you, O Publius Volumnius, since you are one of the judges of Aulus Cluentius. In short, we assert to you that the good-will of all his neighbours towards this man is unequalled. His mother alone opposes the zeal of all these men, and their anxiety and diligence in his behalf, and my labour, who, according to the rules of old times, have pleaded the whole of this cause by myself, and also your equity, O judges, and your merciful dispositions. But what a mother! One whom you see hurried on, blinded by cruelty and wickedness,—whose desires no amount of infamy has ever restrained,—who, by the vices of her mind, has perverted all the laws of men to the foulest purposes,—whose folly is such, that no one can call her a human being,—whose violence is such, that no one can call her a woman,—whose barbarity is such, that no one can call her a mother. And she has changed even the names of relationships, and not only the name and laws of nature: the wife of her son-in-law, the mother-in-law of her son, the invader of her daughter’s bed! she has come to such a pitch, that she has no resemblance, except in form, to a human creature.
Wherefore, O judges, if you hate wickedness, prevent the approach of a mother to a son’s blood; inflict on the parent this incredible misery, of the victory and safety of her children; allow the mother (that she may not rejoice at being deprived of her son) to depart defeated rather by your equity. But if, as your nature requires, you love modesty, and beneficence, and virtue, then at last raise up this your suppliant, O judges, who has been exposed for so many years to undeserved odium and danger,—who now for the first time, since the beginning of that fire kindled by the actions and fanned by the desires of others, has begun to raise his spirits from the hope of your equity, and to breathe awhile after the alarms he has suffered,—all whose hopes depend on you,—whom many, indeed, wish to be saved, but whom you alone have the power to save. Avitus prays to you, O judges, and with tears implores you, not to abandon him to odium, which ought to have no power in courts of justice; nor to his mother, whose vows and prayers you are bound to reject from your minds; nor to Oppianicus, that infamous man, already condemned and dead.
LXXI. But if any misfortune in this trial should overthrow this innocent man, verily, that miserable man, O judges, if indeed (which will be hard for him) he remains alive at all, will complain frequently and bitterly that that poison of Fabricius was ever detected. But if at that time that information had not been given, it would have been to that most unhappy man not poison, but a medicine to relieve him from many distresses; and, lastly, perhaps even his mother would have attended his funeral, and would have feigned to mourn for the death of her son. But now, what will have been gained by his escape then, beyond making his life appear to have been preserved from the snares of death which then surrounded him for greater grief, and beyond depriving him when dead of a place in his father’s tomb? He has been long enough, O judges, in misery. He has been years enough struggling with odium. No one has been so hostile to him, except his parent, that we may not think his ill-will satisfied by this time. You who are just to all men, who, the more cruelly any one is attacked, do the more kindly protect him, preserve Aulus Cluentius, restore him uninjured to his municipality. Restore him to his friends, and neighbours, and connexions, whose eagerness in his behalf you see. Bind all those men for ever to you and to your children. This business, O judges, is yours; it is worthy of your dignity, it is worthy of your clemency. This is rightly expected of you, to release a most virtuous and innocent man, one dear and beloved by many men, at last from these his misfortunes; so that all men may see that odium and faction may be excited in popular assemblies, but that in courts of justice there in room only for truth.
[1 ]Manutius makes a mistake in fixing this consulship of Lepidus and Tullus, and by consequence, the delivery of this oration, one year earlier.
[2 ]Junius had been the judge in the trial of Oppianicus. See a. xxvii.
[1 ]a. u. c. 666. Twenty-two years before this time.
[1 ]“The highest magistrates of a colonia were the duumviri or quatuorviri, so called as the numbers might vary, whose functions may be compared with those of the consulate at Rome, before the establishment of the prætorship. Their principal duties were the administration of justice.”—Smith, Dict. Ant. p 259 v. Colonia.
[1 ]There were many triumviri, but the triumviri capitales, which are meant here, were regular magistrates elected by the people; they succeeded to many of the functions of the quæstores parricidii, and in many points they resembled the magistracy of the Eleven at Athens. Their court appears to have been near the Mænian Column. Vide Smith, Dict. Ant. p. 1009, v. Triumvir
[1 ]The term in the original is decuriones. In the colonies “the name of the senate was ordo decurionum, in later times simply ordo or curia; the members of it were decuriones or curiales. Thus in the later ages, curia is opposed to senatus, the former being the senate of a colony, and the latter the senate of Rome.”—Smith, Dict. Ant. p. 259, v. Colonia.
[1 ]This is quite untranslateable; it is a set of puns. Gutta is the name of one judge, Bulbus of another; but gutta also means a drop, and bulbus means an onion. He sprinkles a drop on this onion, or he pours water on the onion to boil it.
[1 ]There is an epigram in the Greek anthology from which these sentiments of Cicero seem to be taken:—
[1 ]These were steps built in the forum by Marcus Aurelius Cotta, and called by his name.
[1 ]The passage which follows in the text is given up by Orellius as altogether corrupt, and is wholly unintelligible as it stands at present. Weiske thinks that several words have dropped out.
[1 ]“The Latin is, ‘non modo in patroni, sed in laudatoris, aut advocati, loco viderat.’ In the time of Cicero the advocatus was different from the person who conducted the suit (patronus) and made the speech, though in later times this person likewise is called advocatus.”—Riddle, Lat. Dict in voc.
[1 ]Ærarii were those citizens of Rome who did not enjoy the perfect franchise. They had to pay the æs militare, and to remove a citizen in the enjoyment of the full franchise into the list of those who enjoyed a less complete one, was of course a degradation and a punishment.
[1 ]In the twenty-ninth book of Livy, c. 37, an extraordinary instance is related of disagreement between the censors; for one of them, Caius Claudius Nero, degraded his colleague, Marcus Livius; and Livius in his turn degraded Caius Claudius.
[1 ]“If the censors considered a knight unworthy of his rank, they struck him out of the list of knights, and deprived him of his horse, or ordered him to sell it, with the intention, no doubt, that the person thus degraded should refund to the state the money which had been advanced to him for its purchase. (Niebuhr, Hist. of Rome, vol. i. p. 433.)”—Smith, Dict. Ant. p. 895, v. Equites.