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I.
1. I have observed, O judges, that the whole speech of the accuser is
divided into two parts, one of which appeared tome to rely upon, and to
put its main trust in, the inveterate unpopularity of the trial before
Junius, 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 defense,
speaking separately to the question of unpopularity and to that of the
accusation, in order that everyone may under that I neither wish to evade
any point by being silent with respect to it, nor to make anything obscure
by speaking of it. 2. 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. 3. But in all this embarassment,
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. 4. 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.
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II.
5. Indeed, as in some places truth appears to have but little foundation
to rest upon, and but little vigor, 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. 6. 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
other 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.
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III.
7. 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 goodwill 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 harbor at last, and a refuge for the hitherto miserable and tempest-tossed
bark of his fortunes. 8. 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 predeteremined
to do, with kindness and attention.
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IV.
9. 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.
10. 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 defense. 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? 11. 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 nefarius 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.
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V.
Aulus Cluentius Avitus, this man's father, O judges, was a man by far
the most distinguished for valor, 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 neighborhood. When he died, in the consulship
of Sulla and Pompeius [A.U.C. 666. 22 years before
this time.], he left his 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 honor
and nobleness. 12. 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 recall her from her desires.
13. 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.
14. 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 favorably on the deed, no one approving
it, all foreboding a dismal end to it.
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VI.
15. 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. 16. 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 without
the greatest anguish of mind.
17. 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.
18. 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 bloodshed 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 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.
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VII.
19. 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
that Aulus Cluentius only instituted it because he was compelled by force
and absolute necessity.
20. 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 eyesight,--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.
21. There was a woman of Larinum, named Dinea, the mother-in-law
of Oppianicus, who had three sons, Marcus Aurius, Numerius Aurius, and
Gnaeus 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, was
convicted of assassination, and was put by him in his slaves' prison.
But Numerius Aurius, his brother, died, and left Gnaeus 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, Gnaeus 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.
22. 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 her son four hundred thousand
sesterces; and she made that Oppianicus who has already been 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.
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VIII.
23. 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. 24. 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.
25. 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 Sulla, he came to Larinum with a body of armed men,
to the great alarm of all the citizens; he carried off the quatuorviri,
whom the citizens of that municipality had elected; he said that he and
three others had been appointed by Sulla; 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 been 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?
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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.
26. In the first place, remark the audacity of the man.
He was anxious to marry Sassia, the mother of Avitus, her whose husband,
Aulus Arius, 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. 27.
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. 28. 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.
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X.
29. 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 judgement 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 judgement 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. 30. 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 defense,--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.
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XI.
31. And by the same poison he killed Gaius 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 drunk 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 everyone 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.
32. 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.
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XII.
33. Therefore when Gnaeus 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. 34.
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 were
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.
35. It would seem now that nothing could possibly be added to this weakness;
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.
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XIII.
36. 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 everyone's conversation! There was a man of Larinum of the name
of Avilius, a man of abandoned character and great poverty, but exceedingly
skillful 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, wouuld take me a long while to tell, especially as I am
hurrying on to other topics. Listen to the end of this pretended friendship.
37. 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 the Esquiline gate, by the idea that he was being taken to some
villa. 38. 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. [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 quaestores parricidii, and in many points they
resembled the magistracy of the Eleven at Athens. Their court appears
to have been near the Maenian Column. Vide Smith, Dict. Ant. p.
1009, v. Triumvir.] 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 honor, 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.
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XIV.
40. 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. 41. 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 senators [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] 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. 42. Still, audacious, infamous,
guilty as he was, Avitus, O judges, would never have accused him, if he
had been able to do 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.
43. 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.
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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 the 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. 44. 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. 45. 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, endeavored to take off Avitus by poison.
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XVI.
46. There were two twin brothers of the municipality of Aletrinum, by
name Gaius 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 practiced 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. 47. And accordingly
he now resolved to prepare destruction for Avitus by the agency of Gaius
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. 48. O ye immortal gods!
will any one, when he has heard all these facts, say that Oppianicus was
falsely convicted?
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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 defense 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?
49. 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 neighborhood 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. 50. 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.
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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. 51. 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 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.
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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. 52. 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
defense, which has always been considered a most honorable 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?
53. 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 honorable 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 honor, 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. 54. 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 color, made all those things,
which were previously very suspicious, palpable and evident.
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XX.
55. When the judges were about to come to their decision, Gaius 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 Staienus
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 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
suspicions 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?
56. And, now that this trial had taken place, now that
Oppianicus was convicted in fact, and in the general opinion of everyone,
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 Gaius
Fabricius, who, on account of his intimacy with Oppianicus, he thought
must have been privy to that crime; and, on account of the connection
of the two causes, he obtained leave to have that cause taken first. Then
this Fabricius not only did not bring to me my neighbors and friends the
citizens of Aletrinum, but he was not able himself any longer to employ
them as men eager in his defense, or as witnesses to his character. 57.
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 endeavor 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 honor and a kindness to have any opportunity of speaking
afforded them.
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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.
58. 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 face,
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 defense. After he began to discuss
the immediate facts of the case, he himself aggravated considerably the
unfavorable 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 Gaius Fabricius had slunk away from his seat with his head
down. 59. 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,"
fron 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.
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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. 60. 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? 61. 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 defense
of them. For what answer could these judges make if anyone asked of them,
"You have condemned Scamander; of what crime? Becuase, forsooth,
he attempted to murder Avitus of 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 Gaius 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?
62. 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.
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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 these decisions also were corruptly procured by bribes?
though in one of those decisions one of the defendants was acquitted by
Staienus 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. 63. 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 practiced by my client. By whom,
then, was it practiced? 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. 64. 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.
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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 argument is superfluous.
65. I say that Statius Albius gave Gaiue Aelius Staienus the judge a large
sum of money to influence his decision. Does anyone 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 Staienus
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?
66. 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 practiced agent in the
corruption of tribunals, but at that time himself a judge, Staienus. 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. 67. But
afterwards, when Scamander had been acquitted by the single vote of Staienus,
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 Staienus, 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.
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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. 68. That Staienus,
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. 69. But he, as was afterwards was 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 aedileship with men of the highest
rank, and that he was afraid of incurring unpopularity and of giving offense.
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 then 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. 70. 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 Gaius Staienus. 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.
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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." 71. 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 along time, he gives him a gentle spur. "What will you
do," says he, "will you help me, O Balbus, 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 Gutta to Bulbus. [This is quite untranslatable;
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.]
72. 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 Paetus?" (For Staienus
had chosen this surname for himself from the images of the Aelii, lest
if he called himself Ligur, he should seem to be using the name of the
nation rather than that of his family.) "Men are asking men 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 everyone was to give
openly.
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XXVII.
73. The report had reached the bench, that there was mention made of corruption
being practiced 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 everyone in such doubt, on a sudden Canutius,
a very clever man, and who had got some suspicion that Staienus 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 Staienus. 74. 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 Staienus 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 on
a sudden, that Staienus himself was not present. He was acting as counsel
for the defense 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 Gaius Junius the judge most bitterly, and
insisted upon it that they should not deliberate on their decision without
the presence of Staienus; 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
Staienus was engaged, and, as he had the power to do, adjourned that court,
and himself brought Staienus back to the bench. 75. 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
Staienus 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.
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XXVIII.
Behold now--the lots were drawn with such a result that Bulbus, Staienus,
and Gutta were the first who were to deliver their opinions. There was
the greatest anxiety on the part of everyone to see what vote would be
given by these worthless and corrupt judges. And they all condemn him
without the slightest hesitation. 76. 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
anyone, although they believe that others had only given a correct decision
through the influence of bribery, nevertheless thought that it behooved
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.
77. 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 disfavor 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 men 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;
78. and at that very time Staienus, having been sent for by Oppianicus,
came by night to the house of Titus Annius, a most honorable man, and
most intimate friend of my own. By this time the whole business is known
to everyone;--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
Staienus.
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XXIX.
The character of this Staienus, 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 Staienus'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. 79. 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 Staienus, 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 Gaius Junius, who had presided over that
trial, was thrown, as it were, into the fresh fire; and that he, a man
of aedilitian rank, who was already praetor 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.
80. 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.
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XXX.
Who at that time could have dared to say that Oppianicus had been condemned
because he was guilty? who now ventures to say it? Who at that time could
have ventured to assert that Oppianicus had endeavored 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?
81. 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 practiced
or attempted at that trial. The question is, By whom was it practiced;
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 of my fortunes depended
entirely on that one trial, from which I was in danger.
82. 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 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 on in the papers others; and in the meantime
you find no trace of any money of Cluentius' in the whole business. What
then? Can we trace the money of Albius by the scent, or you can 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? 83. Oh, but Staienus
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 Staienus 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 Staienus. 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,
Staienus; on one side, every description of fraud and audacity: and on
the other side, modesty, an honorable 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.
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XXXI.
84. Oh, but Oppianicus gave Staienus money, not to corrupt the judges,
but to conciliate their favor. Can you, O Attius, can a man endued were
your prudence, to saying 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. 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 favor Staienus 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 Public Cethegus,
when he published that fable about conciliation and favor. 85. 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 Staienus 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. 86. But
the case of Staienus 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.
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XXXII.
87. 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 Staienus,
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 connection 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 Staienus, 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 Staienus'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.
88. 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 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 defense 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 favor; and that some were such
that they were never called judicial decisions at all, and never even
thought so. 89. 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.
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XXXIII.
Gaius 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 anyone 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 public 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? 90. Was that then an investigation, or a discussion, or a
decision? I will suppose it was. Let him, who wishes today 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 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. 91. 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 Gaius Verres, the city
praetor, 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
Gaius 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.
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XXXIV.
92. 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 offense against another law." Can those who admit this urge also
in defense that that was a regular decision? "Therefore," says
he, "the praetor 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. 93. What, then, is the reason
why our defense 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, [These
were steps built in the forum by Marcus Aurelius Cotta, and called by
his name] 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 favor of the defendant, but
none of even rising up to speak. 94. It happened lately, before Gaius
Orchivius, my colleague, that the judges refused to sanction a prosecution
against Faustus Sulla, in a cause concerning some money which remained
unpaid. Not because they considered that Sulla was an outlaw, or because
they thought the cause of the public money insignificant or contemptible;
but because, when a tribune of the people was the accuser, they did not
think that there could be a fair trial. What? Shall I compare Sulla with
Junius? or this tribune of the people with Quintius? or one time with
the other time? Sulla, with his great wealth, his numerous relations,
connections, 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 hunger 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.
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XXXV.
95. 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 everyone 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 honorable 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. 96. 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 anyone 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. 97. Oh, but Bulbus
also was condemned. Add that he was condemned of treason, in order that
you may understand that this trial has no connection with that one. But
this charge was brought against him. I confess it; but it was also made
evident by the letters of Gaius 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 guesswork;
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.
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XXXVI.
98. 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 offense 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. 99. What! not if Staienus 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 honorable men, which were given against Staienus bymen
who were lieutenants, and prefects, and military tribunes, under Mamercus
Aemilius, that most illustrious man, by whose evidence it was made quite
plain that it was chiefly through his instrumentality, when he was quaestor,
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 pretenses connected with the
trial of Safinius, he retained and embezzled as he did afterwards in the
case of the trial of Oppianicus. 100. I say nothing of all these things,
and of many others which were stated against Staienus at that trial. This
I do say,--that Publius and Lucius Cominius, Roman knights, most honorable
and eloquent men, had the same dispute with Staienus then, whom they were
accusing, that I now have with Attius. The Cominii said the same thing
that I say now,--that Staienus received money from Oppianicus to induce
him to corrupt the tribunal, and Staienus said that he had received it
to conciliate goodwill towards him. 101. This conciliation of goodwill
was laughed at, and so was this assumption of the character of a good
man, as in the gilded statues which he erected in from 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 favor 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, Staienus
was condemned at that time, while he urged the same defense as Attius
did. 102. 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 Staienus it was decided that Oppianicus had desired to
corrupt the judges,--that Oppianicus had given one the judges money to
purchase the votes of the other judges, (since it has been already settled
that either Cluentius is guilty of that offense, 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 Staienus does not only not make against Cluentius,
but is the greatest possible confirmation of our cause and of our defense?
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XXXVII.
103. 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 anyone 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
Balbus, of Popillius, and of Gutta, do not make against Cluentius. That
of Staienus is actually in favor of Cluentius. Let us now see if there
is any other decision which we can produce which is favorable to Cluentius.
Was not Gaius 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 tial there
was no sedition, no violence, and no crowd, he was easily acquitted at
the first hearing. I do not count this acquittal. [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.] for
it is still possible that though he was not fined on that occasion, he
did take a bribe for his verdict. (On the charge of bribery Staienus was
nowhere formally tried, such a charge not being proper to the jurisdiction
of that court.) [The text in blue comes from
Cicero IX: Loeb Classical Library, vol. 198. trans. H. Grose Hodge. Harvard
UP, 1927.]
104. 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
honorably 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.
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XXXVIII.
105. Then, also, those five judges, who, hunting for the vague rumors
of ignorant men, acquitted him at that time, were unwilling that their
clemency should be extravagantly praised; and if anyone asked them whether
they had sat as judges on Gaius 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 endeavored 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. 106. 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 Staienus; 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 atrocius act had been suggested to them, preferred
condemning him a little later, when the facts were clearly ascertained.
107. 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 skillful,--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 Quintius Considius? who is better acquainted with
the practice of the 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 everyone,
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 Mardcus
Basilus! and Gaius 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 Gnaeus 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. 108. 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 everyone who condemned him is esteemed
virtuous and firm.
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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 anyone 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. 109.
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 defense; just as if it ought not to have been proof enough that
he was deserted by everyone, that he had recourse to such an advocate
as him. For there was at Rome a great abundance of advocates, most eloquent
and most honorable men, of whom certainly anyone would have defended a
Roman knight, of noble birth in his municipality, if he had thought that
such a cause could be defended with honor.
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XL.
110. 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 defense, but even as a witness to
character, or as employed in any way in any cause? [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.]
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 Sulla, 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. 111. 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 ankles. 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, 112. 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 anyone 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.
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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. 113. 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, someone 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 someone 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. 114. 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 anyone, 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 offense. 115. 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 Scaevola 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. 116. 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. Scaevola was convicted
of other charges, by a great number of witnesses from Apulia. The greatest
possible eagerness was shown in endeavoring 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.
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XLII.
117. 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 connection cemented by mutual
good offices. 118. 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 honors which
he has received from the Roman people, is named by me to do him honor,
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 vigor 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 defense, nor to have injured
the dignity of anyone, nor to have disregarded any of the claims of friendship.
119. 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 Gaius Geta, after he had been expelled
from the senate by Lucius Metellus and Gnaeus 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 forever of all honor and all dignity, so) a man branded with
this ignominy would never have had any subsequent access to honor, or
any possibility of return to the senate. 120. Now, if the freedman of
Gnaeus 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 honorable position in the city; but those men, whom Lucius Gellius
himself and Gnaeus 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.
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XLIII.
Our ancestors did not think it fit for anyone to be a judge, not only
of anyone'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. 121. 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 praetors, 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. 122. 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 turn worthy of the
highest rank. The one orders him to be degraded to the rank of an aerarian
[Aerarii were those citizens of Rome who
did not enjoy the perfect franchise. They had to pay the aes 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.] 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?
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XLIV.
123. 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 note [In the twenty-ninth book of Livy,
c. 37, an extraordinary instance is related of disagreement between the
censors; for one of them, Gaius Claudius Nero, degraded his colleague,
Marcus Livius; and Livius in his turn degraded Gaius Claudius.]
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. 124. But if the
statement which has been inade in their notes ought to carry weight with
it because it is true, their 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 connection 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 unfavorable decision had ever
been come to respecting him. Then take in the authority of the censors;
then argue that their decision has any connection whatever with this case.
125. 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?
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XLV.
126. 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 aediles,
Decius Matrinius, before Marcus Junius and Quintus Publicius, the praetors,
and before Marcus Platorius and Gaius Flaminius, the curule aediles, I
persuaded them,--men sworn to do their duty,--to choose him for their
secretary whom those same censors had made an aerarian; 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.
127. 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.
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XLVI.
128. 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. 129. 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 anyone in the senate who is tainted
with such wickedness, or if you decide that it is not right to inflict
the same punishment on everyone 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 offense committed by many, that a few should be selected for ignominy
and disgrace.
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XLVII.
130. But we all understand that in these notes of the censors the real
object was to catch at some breeze of popular favor. 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. 131. But if I or anyone
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 rumor, 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!
132. 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
favor 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 forever?
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XLVIII.
133. 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 honorable 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. 134. 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
Gaius 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 anyone 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.
[If the censors considered a knight unworthy of
his rank, they struck him out of the list of the 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. -- Smith, Dict. Ant. p. 895.
v. Equites.] 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.
135. 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
Gaius Egnatius, the father, a most honorable 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 wished 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.
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XLIX.
136. 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 tbat 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. 137. 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 Gaius 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 Gaius Junius, a little boy,
rejected the whole law and the whole proposition with the greatest outcry
and with the greatest eagerness. 138. 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.
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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
defense, 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. 139. 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. 140. 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.
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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. 141. 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. 142. 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 honor 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 unfavorable opinion of this cause, you
will lay it aside now that you have thoroughly investigated the case and
learnt the whole truth.
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LII.
143. 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 someone 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? 144. Someone 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 honorable 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. 145. 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 defense,
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.
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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 anyone, he should be made liable to the laws, but that if a Roman knight
does the same, he should not. 146. 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. 147. 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 Plaetorius and Gaius Flaminius as assassins?
What became of the charge of peculation brought against Gaius Orchinius?
or of my oration, when prosecuting a charge of embezzlement? or of the
speech of Gaius 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. 148. If anyone, 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 labor and a danger which you
were not obliged to encounter by the law.
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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 quaestor, 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 anyone of them
has agreed, or shall agree, has conspired, or shall conspire, to get anyone
condemned in a criminal trial." "Anyone 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 at 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 anyone 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." 149. 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 defense
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 labor is at the service of everyone 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 favor. But I will not omit those things which I think are
expected from me.
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LV.
150. It seems to you, O Attius, to be a scandalous thing that everyone
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 honor 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. 151. And, to say nothing of all other laws, by which
we are bound, and from which all the other ranks are released, Gaius 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 Sulla, a man who had not the slightest connection 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. 152. Nor is there any other object aimed at now, (believe me,
O judges, and provide for what you must provide for,) except the bringing
of the whole equestrian body within the danger of this law. Not that this
is the object of everyone, 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. 153. 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?
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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 Gaius Flavius Pusio, Gnaeus Titinnius, Gaius Maecenas, 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 honors; that they were aware how much splendor, how much honor,
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.
154. They said, that either the proper age for offering themselves as
candidates for honors 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 honors, 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 honorable circumstances which in his case
might lessen the inconvenience,--the place, the anthority, the dignity
it gave him at home, the name and influence it conferred on him among
foreign nations, the toga praetexta, 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 offenses. 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. 155. 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.
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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. 156. 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 defense 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. 157. 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 labor is devoted to defending everyone 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 endeavor 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. 158. But I make this promise to everyone, if
by chance anyone 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 defense 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.
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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. 159. 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 honor.
160. 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.
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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 defense
which could be stated in a few words, have been stated with the greatest
brevity possible.
161. You have said that an injury was done by the family
of my client to Gnaeus Decius, a Samnite; him I mean who was proscribed,
in his calamity. He was never treated by anyone 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. 162.
You have said, "When a relation of Publius Aelius had been disinherited
by his will, this man, who was no relation of his, was declared his heir.'
Publius Aelius 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 Coelius 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 Coelius without any action. 163. 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 Oppianicus; who for many years remained quiet; then at last
he accused a slave of Avitus of tbeft; 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.
164. 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!
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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.
165. It has been urged in the case for the prosecution,
that Gaius 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 Plaetorius, 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 praetor's edict to this man, his sister's son, a most
virtuous young man, and one held in the highest esteem for honorable conduct,
Numerius Cluentius, who is present in court.
166. 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.
167. 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. 168. 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 laboring 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 favor. 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 he
the cause of distress or of a false accusation to an innocent man.
[The testimony of Balbutius the father is read.]
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LXI.
169. 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 someone 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. 170.
Now, by fear of what could Avitus have been influenced, that he should
have endeavored to commit so great a crime? What reason could anyone have
had for fearing Oppianicus, already condemned to punishment for his crimes,
and banished from the city? What did Cluentius fear? Did be 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? 171. 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? 172. Come now, by whose instrumentality
was the poison administered? By that of Marcus Asellius.
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LXII.
What connection 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 you not 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? 173. But now, as for that circumstance of poison being administered
in bread, how improbable, how unusual, how strange a thing it is. Was
it easier than administering it in a cup? Could it be hidden 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." 174. 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.
175. When Oppianicus was wandering about as a vagabond
and an exile, excluded from every quarter, he went into the Falernian
district of Gaius 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.
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LXIII.
176. 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 connections of Oppianicus,
and many also of the friends of Sassia herself, honorable 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. 177. 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 honors 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. 178. 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, 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.
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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. 179. 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, [The figures are missing from the
MSS.] and five pounds' weight of gold, with the privity of one
of his slaves, a boy not grown up. 180. 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's agents. [Those
sent round by the auctioneer after a sale to collect the money from the
purchasers.] That saw is found to have became the property of Strato.
When suspicion was excited in this manner, and Strato was openly accused,
the buy 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 wan thrown into prison; and the money, though not all of it, was
found in his shop. 181. A prosecution for theft is commenced against him.
For what else can anyone 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 yeas 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.
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LXV.
182. 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 Ratilius, Publius Saturius and other
most honorable 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 someone 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. 183. 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 defense which has been cut away from
innocence gets breathing-time; 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? 184. 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 out;
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 honor, and loaded him with
all sorts of kindness. 185. 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?
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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. 186. 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 anyone 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 connections of Oppianicus,
whom she had invited to be present before, and for this identical time?
What was done to these men, Strato and Nicostratus? 187. 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 everyone 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.
188. 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. 189. 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 affair
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 forever left that house overflowing with every imaginable wickedness.
190. 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.
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LXVII.
Therefore, among other people too, when sudden enmities have arisen between
relations, we often see divorces and ruptures of connections 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 connections, often lay aside their ancient enmities; she
thought that a connection with the family would be a pledge to ensure
the strengthening of enmity. 191. 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 wore 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.
192. 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.
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LXVIII.
But now, what sort of journey do you think that woman had to Rome? which
I, by means of the neighborhood 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!
193. 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. 194. 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 endeavored
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.
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LXIX.
195. 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 follow-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. 196. 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 favor, 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.]
197. 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 neighbors 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 honorable men, whom we are all acquainted
with, to come hither in numbers, and to give their personal evidence in
his favor. The Frentani are present, most noble men. The Marrucini, a
tribe of equal dignity, are present too. You see Roman knights, most honorable
men, come to praise him from Teanum in Apulia, and from Luceria. Most
honorable panegyrics have been sent from Bovianum, and from the whole
of Samnium, and also the most honorable and noble men of these states
have come too. 198. As for those men who have farms in the district of
Larinum, or business as merchants, or flocks and herds, honorable 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.
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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 Gnaeus Tudicius, a senator, a most virtuous and honorable
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 neighbors towards this
man is unequalled. 199. His mother alone opposes the zeal of all these
men, and their anxiety and diligence in his behalf, and my labor, 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 bas 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.
200. 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.
201. 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.
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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? 202.
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 anyone is attacked, do the more
kindly protect him, preserve Aulus Cluentius, restore him uninjured to
his municipality. Restore him to his friends, and neighbors, and connections,
whose eagerness in his behalf you see. Bind all those men forever 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 is room only for truth.
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