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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 hat |