Introduction to Pro A. Cluentio Habito
by Marcus Tullius Cicero
This introduction is reproduced in its entirety (with
the exception of the introductory opening found on the previous
page, which appeared before the material below) from Introduction
to M. Tulli Ciceronis: Pro A. Cluentio Oratio, ed. W. Peterson,
Macmillian and Co., Ltd.: London, 1920.
NOTE: Any footnotes, that pertain directly to the
material below, and are not a reference to some contemporaneous commentator
from the early 20th century, are put in brackets [] where the footnote
number originally appeared. The numbers appearing with the paragraph
symbol (§) refer to the Latin paragraph of the text they concern.
They will be appropriately hyperlinked in the future as time permits.
|
The Story Unfolded in Cicero's
Speech
A. Cluentius Habitus, the defendant,
had lost his father in the year B.C. 88, when he was a boy of fifteen.
His sister Cluentia married her cousin, A. Aurius Melinus; and the
first stage in the rupture between Cluentius and his mother was
brought about by the circumstances which destroyed this marriage.
Sassia, falling in love with her son-in-law, induced him to divorce
Cluentia, and marry her instead.
Here enter the villain of the piece, Oppianicus the
elder, who eventually succeeded Aurius Melinus as Sassia's (third)
husband, and thus became the step-father of Cluentius.
Melinus had a kinsman, M. Aurius, who was murdered,
and Oppianicus became suspected of having been concerned in his
death (§ 23). The previous record of Oppianicus was a bad one. His
first wife had been a Cluentia, a sister of Cluentius the elder,
and an aunt of Cicero's client: of her he was said to have rid himself
by poison (§ 30). Then he murdered his own brother, after having
cleared the way for succeeding to his estate by taking the life
of his wife Auria, together with that of her unborn child (§ 31).
His second wife was Magia, the daughter of a rich widow of Larinum
named Dinaea: she died, after giving birth to a son who lived to
be the prosecutor in the present action (§ 21). Next Oppianicus
seems to have married Papia (§ 27), who is probably identical with
the woman (a sister-in-law of Magia's) whose unnatural guilt is
recorded in § 34, without any mention of her name. His subsequent
conduct seems to have been motivated by the desire to secure for
her grandson, the younger Oppianicus, the entire succession to Dinaea's
property: it is her only surviving son, M. Aurius, whom Oppianicus
is now suspected of having put out of the way,--shortly after Dinaea
herself had been removed by Clodius, a travelling quack whom he
had in his pay (§ 40). But he is threatened with a prosecution,
and has to fly from Larinum. Joining Sulla's party, on that general's
return from the East, he gets himself installed as one of the chief
magistrates of Larinum, and in that capacity procures the execution
of all who made themselves obnoxious to him, including, among others,
Aurius melinus, the husband of Sassia (§ 25).
Oppianicus is now free to pay his court to the rich
widow. He had divorced his third wife, Papia, whom he had married
under the discreditable circumstances referred to above; and, in
some manner not specified in Cicero's narrative, he had rid himself
also a fourth wife, Novia, who had lately borne him a son (filius
infans, § 28). Sassia, for her part, was by no means inconsolable
over the loss of her husband, Melinus; she only objected that her
new suitor was burdened with three children. Novia's infant child,
and another boy whom Papia was bringing up in retirement at Teanum,
are promptly disposed of, and with this proof of affection Sassia
would seem to have been content, as the eldest son of Oppianicus,
who bore his name, survived, as has been said, to institute proceedings
against Cluentius. The fact that he was now heir to the whole family
property of his grandmother, Dinaea, was probably a sufficient reason
for not including him in the list of victims (§§ 27-8).
This recital of the crimes of Oppianicus is presented
by Cicero with the obvious view of predisposing the jury to believe
that he was quite capable of having attempted, as was alleged, the
life of Cluentius. It is, in fact, the so called probabile ex
vita (§§ 10-42)--the argument in proof of a man's guilt, drawn
from his known life and character. Oppianicus had had five wives:
the first he poisoned, two he seems to have divorced, one died a
natural death, and the fifth was Sassia. Reference may be made to
§ 125 for a general summary of his career of crime: from the indictment
contained in that section it will appear that he was charged with
having murdered, or at least procured the murder of, no fewer than
eleven persons--his first wife, his brother, a brother-in-law, two
of his own sons, a cousin, his mother-in-law, besides Asuvius of
Larinum (§ 36), and three of his fellow-citizens (§ 25). He had,
moreover, according to Cicero, forged a will and bribed a jury.
It may be that all the counts in Cicero's impeachment
of Oppianicus could not have been substantiated if the dead man
had been present to answer for himself. Certainly it should be noted
that, while the orator evidently wishes to produce the impression
that Oppianicus had practised wife-murder on a large scale (§§ 52,
125), the death of his first wife Cluentia is the only case he actually
cites. And we may well ask how, if Oppianicus had really been guilty
of so many enormities, he had never been brought to trial till Cluentius
raised his action against him. The anarchy which attended Sulla's
triumph (§ 25) may have afforded him a protection against the exposure
of some of his misdeeds; but the murder of his first wife Cluentia
(§ 30), as also that of his brother, C. Oppianicus, and of his brother's
wife (§ 31), was anterior to that date, and ought to have been enough
in themselves to bring him to justice. There was also the charge
of having made away with two of his own children in order to clear
the way for his marriage with Sassia (§ 27); and lastly, there was
the alleged assassination of Asuvius (§ 36), which threatened indeed
to come to light, but was in some mysterious fashion covered up
and put out of sight.
Cicero has certainly not scrupled to paint the picture
in the darkest possible colors. But making every allowance for rhetorical
exaggeration and for the desire to whitewash, as it were, the defendant
at the expense of the prosecutor's father (§ 10), there can be no
doubt that Oppianicus was a man of the worst character. And when
we remember that he was represented at the present trial by his
widow, Sassia, "uxor generi, noverca filii, filiae pelex"
(§ 199), we may well echo Mommsen's judgment: "the criminal
statistics of all times and countries will hardly furnish a parallel
to the dreadful picture of crimes--so varied, so horrible, and so
unnatural--which this trial unfolds to us."
The averment of the prosecution was that
it was Cluentius who had procured the death of Oppianicus (as well
as of two other persons) by poison.
It was certain that there had been enmity between the
two. The quarrel as to the status of the Martiales (§ 43), and his
stepfather's interest in the succession to the estate of Cluentius
(§ 44), are put forward by Cicero as the motive for the crime for
which Oppianicus had been condemned eight years before. This is
the probabile ex causa (§§ 43-45), to which Cicero appends
a narrative of the method by which Oppianicus (according to his
story) sought to carry out his evil design. He addressed himself
to a certain C. Fabricius, through whom overtures were made to be
the slave of the physician who happened at the time to be in attendance
on Cluentius. Poison was to be given the patient instead of medicine.
But the slave communicated the design to his master, and a trap
was set by which Scamander, a freedman of Fabricius, was surprised
at a secret interview with Diogenes, the slave in question, to whom
he was in the act of paying a sum of money to procure poisoning
(§ 47). Scamander was tried and convicted, as also was Fabricius.
Finally Cluentius prosecuted Oppianicus also before the same court
which had convicted the other two. At Scamander's trial, one juror
had voted for acquittal--Staienus, a needy and disreputable senator;
and it was to him accordingly that Oppianicus applied, placing a
large sum of money in his hands to bribe the bench and secure his
acquittal. Cicero's account of what happened at that trial must,
like the Scamander story, form the subject of a separate investigation,
as constituting one of the main difficulties of the narrative: meanwhile
it may be stated here that Oppianicus was found guilty, but only
by a narrow majority (§ 76).
The defence of Oppianicus had been conducted by the
tribune, Quinctius, who now declared that Cluentius had bribed the
court. He put himself at the head of a wider agitation, which aimed
at the suppression of the senatorial juries and the restoration
of its privileges to the equestrian order. A series of proceedings
was instituted which proved fatal to quite a number of those who
had assisted in procuring the conviction of Oppianicus. C. Junius,
the iudex quaestionis, was impeached on technical grounds
and found guilty (§§ 79, 89). Several of the jurors were prosecuted
on various charges, though in every case it was their alleged corruption
at the trial of Oppianicus that influenced the jury to bring in
an adverse verdict. One only (Fidiculanius Falcula) was directly
impeached, and in his case a double trial resulted in acquittal
(§§ 103-4). The censors affixed their official stigma to the names
of certain jurors who were understood to have acted from corrupt
motives (§ 117); and finally the senate passed a formal resolution
denouncing, in a comprehensive way, the conduct of any who might
have been guilty of bribery at a criminal trial (§ 136).
The death of Oppianicus took place about two years
after his trial, i.e., in the year B.C. 72. Sassia attempted
at the time to extort from certain slaves under torture some declaration
that would compromise her son, but altogether without success. Three
years afterwards one of these slaves, Strato by name, committed
theft and murder in her house, and she seized the opportunity of
putting him again to the torture. This time she professed to have
obtained some sort of evidence incriminating Cluentius; and it was
on the strength of this evidence that she persuaded the younger
Oppianicus to institute the present proceedings.
It is probable that Cluentius was acquitted, as the
result of Cicero's able advocacy. He may have been altogether innocent
of the death of his stepfather, though we shall find reason to discount
some of the arguments which his advocate adduces in his favour.
Cicero represents Oppianicus as living a life so wretched (§ 174)
that no one who bore him any ill-will would have wished to release
him from his misery. But from some of the incidents of the narrative
we might be inclined to infer that the convict was by no means so
badly off as Cicero makes out. In particular, we may note that his
own and Sassia's friends, who are described as homines honesti
atque omnibus rebus ornati (§ 176), interested themselves in
investigating the circumstances of his decease. The facts of the
death of Oppianicus, as referred to by Cicero, seem open to doubt:
it will not escape a critical reader, for instance, that while seeking
to disprove the genuineness of the alleged depositions of Strato
and Nicostratus, he nowhere definitely states what those depositions
were.
The two minor charges of poisoning alleged against
Cluentius need not detain us. The first Cicero refutes on the evidence
of the senator Plaetorius, with whom the alleged victim, Vibius
Cappadox, was staying at the time of his death (§ 165). In reply
to the second, he brings forward the father of the young Balbutius,
who was said to have met his death by accidentally swallowing a
poisoned draught which Cluentius was alleged to have prepared for
Oppianicus the younger (§§ 166-168). This last may, perhaps, be
considered the only satisfactory piece of evidence in the whole
speech. For the rest, Cicero seems to have had ample reason for
his boast, as reported by Quintilian: se tenebras offudisse
iudicibus in causa Cluenti gloriatus est, Inst. ii.
17. 21.
|
The Scamander Incident
The conviction of Scamander, the freedman
of the Fabricii, formed one of the praeiudicia or 'previous
decisions' recorded against Oppianicus, on which Cicero largely
relied for the success of his present defence. When Scamander was
prosecuted for having been a party to the alleged attempt on the
life of Cluentius, Cicero had appeared on his behalf; and one of
his main difficulties in defending Cluentius now was that he had
previously committed himself to a quite different version of the
facts and circumstances involved in the case. P. Cannutius, the
counsel for the prosecution at the trial of Scamander, is represented
(§ 52) as having proved more than a match for Cicero. As the guilt
or innocence of Oppianicus turns greatly on the incident in which
Scamander figures, and as that incident has generally been misrepresented
by commentators, it may be worth while to restate it here.
What Cicero now wishes his hearers to believe is that
Oppianicus, having conceived the design of removing Cluentius by
poison, employed as his agent Fabricius, who, in turn, had recourse
to the services of his freedman Scamander. The latter approached
Diogenes, the slave of the physician who was at the time in attendance
on Cluentius. The text makes it quite clear that it was of the essence
of the plot that Diogenes was to administer the poison: cp. §§ 47,
55, 61, 62. This he brings with him to the interview described in
§ 47, as clearly appears from certain words used subsequently, constitum
inter eos. . .ut medicamentum, non venenum Diogenes adferret,
§ 53. Scamander, on the other hand, brings a packet of money (pecunia
obsignata)--sealed, possibly, with the seal of his master,
Fabricius. This was, according to Cicero, the money consideration
to be handed to Diogenes for the commission of the crime. When the
viri boni emerged from their concealment, this packet was
certainly found on Scamander's person. Ramsay remarks that the money
without the poison would have proved nothing; and other commentators
explain the words of § 47, pecunia obsignata quae ob eam rem
dabatur, as meaning that Scamander was in the act of handing
Diogenes the money, and Diogenes in the act of giving Scamander
the poison. But we have seen that it was Diogenes who was to administer
the drug, and we must therefore suppose that he either handling
it himself or allowing Scamander to handle it at the precise moment
when the friends intervened. They certainly waited till they saw
enough to convince them that Scamander knew what he was paying his
money for. In connection with the poison brought by Diogenes, the
packet found on Scamander could point only to one conclusion.
It may be an example of the way in which Cicero sought,
in defending Cluentius, to 'throw dust in the eyes of the jury,'
that the terms which he employs in describing this incident vary
in different places. At first he says -- § 47, venenum.
. .comparatur. . .pecunia obsignata. . .deprehenditur --that
it was the money-bribe that was found on Scamander: then immediately
afterwards he speaks as if it were the poison that Scamander was
caught with, --cuius in manibus venenum deprehenderat §
49, cp. venenum esse deprehensum, and manifesta veneni
deprehensione § 50, as well as § 20 cum manifesto venenum
deprehendisset. Lastly, in § 53, he permits himself to use
a phrase implying that Scamander had both the money and the poison
about him when he was caught, cum veneno pecuniaque deprehensum.
The defence which Cicero had put forward on the occasion
of Scamander's trial was that it was medicine, not poison, that
Diogenes had brought to the rendezvous (§ 53). This could never
have been suggested, with any hope of acceptance, if there had been
any allegation that it was Scamander who had brought the poison:
cp. the use of quaesitum in §§ 55 and 62. Moreover, the
words venenum diebus paucis comparatur (§ 47) must be held
as implying that it was Diogenes and his friends who got ready the
drug; the action of comparatur is the same as that of emitur
in the sentence immediately preceding. Cicero's attempt to whitewash
Scamander at the previous trial had altogether failed. Only one
juror, the notorious Staienus, could be got to accept the suggestion
that it was a harmless drug that Diogenes brought with him (as from
his reputed master, the doctor Cleophantus, though he had now passed
by purchase into the hands of Cluentus, § 47); and that he had been
suborned to bring a poison instead, in order that his new master
might be in a position to raise a false charge against Scamander,
and indirectly against Oppianicus. If Scamander was really innocent,
and if the poison was bring "planted on" him (to use a
colloquial term) by Diogenes, why should he have compromised himself,
the prosecutor asked, by repairing to a secret rendezvous, and by
bringing a sum of mony in a sealed packet? (§ 53).
Combining the account of the line of defence which
Cicero represents himself as having adopted at the trial of Scamander
(§ 52) with the argument he advances at the present trial, we cannot
help noting that the whole story turns on the testimony of Diogenes,
and that there is some prima facie ground for the suggestion
that the plot may have been got up by Cluentius himself. Diogenes
was, after all, only a slave, and could easily have been influenced
by his new master to say just what he was wanted to say. The untrustworthiness
of the testimony of a slave is quite a common-place in Cicero's
speeches, and the impropriety of taking evidence against an accused
person from the slave of his accuser is specially illustrated in
the Pro Milone (§§ 59, 60). The narrative of the text does
not sufficiently disclose the real object with which Cluentius purchased
Diogenes from his doctor, Cleophantus (§ 47); it seems hardly enough
to say that the motive of the transference was quo facilius
aut comprehenderetur res eius indicio, aut falsa esse cognosceretur.
If Diogenes was a liar, the change of ownership would have left
him a liar still. The statement that Fabricius had sought to corrupt
Diogenes (§ 47), and that the money found on Scamander was the consideration
which Diogenes was to receive for poisoning Cluentius, rested ultimately
on the bare word of a slave. The only corroborative evidence which
Cicero specifies in support of his new version of the story is the
deposition of M. Baebius, and this he takes as a matter of common
knowledge: qui qua fide, qua prudentia, qua diligentia fuerit
meminisse vos arbitror, § 47.
The verdict brought in against Scamander, and also
that recorded against Fabricius soon afterwards, are regarded by
Cicero as constituting praeiudicia, or previous decisions,
'prejudicing' the case of Oppianicus, with the circumstances of
whose trial we have next to deal. It is an axiom with the orator
that the guilt of Oppianicus is involved in the conviction of those
whom he represents as having acted as his agents: cp. hoc venenum
Oppianici § 62. But it should be noted that the cases were
not conducted on parallel lines. The impeachment of Scamander and
Fabricius was limited exclusively to the charge of poisoning (§
62), and on that count they were all but unanimously condemned--Scamander
with one dissentient, and Fabricius by a unanimous verdict. In the
case of Oppianicus many other charges were included in the indictment
(cp. § 19, § 20, pauca. . .crimina, and § 59); and his
conviction was secured by only the narrowest possible majority.
The composition of the majority vote that condemned him must form
the next subject of our inquiry; meanwhile it is important to recall
the fact that Cicero does not venture to impugn the good faith of
the five jurors who, apart from those who said Non Liquet,
pronounced for the acquittal of the defendant. At first sight it
would certainly appear to be possible to infer that Oppianicus was
not really implicated in the alleged attempt at poisoning, and that
the jury accordingly declined the invitation to connect him with
its previous decisions in the cases of Scamander and Fabricius.
The conviction of Oppianicus may, in fact, have been due to some
of the other counts in the indictment preferred against him.
|
The Trial of Oppianicus Before
Junius
(Iudicium Iunianum)
The following is the
account which, in the speech before us, Cicero gives of the circumstances
of this trial. Oppianicus felt that his case was hopeless, in view
of the judgments previously recorded against Scamander and Fabricius.
Having decided to endeavour to influence the jury he approached
Staienus, who was known to have given the solitary vote in favour
of Scamander; and, finding Staienus a willing instrument, he placed
in his hands the sum of 640,000 sesterces [about
$160,000 1996 dollars--Webmaster] with which to
bribe sixteen members of the bench, whose votes, together with his
own, would secure a majority of the whole thirty-two. Staienus made
promises to certain venal jurors, but secretly determined to keep
all the money to himself, calculating that the conviction of Oppianicus
would save him from all risk of being called to account for his
intromissions. So he pretends that Oppianicus has played him false,
and will not pay; and he advises his venal colleagues that the best
thing they could do would be to follow his example and vote for
a conviction.
The lot decreed that Staienus and two of his friends
should be the first to record their verdicts; and as there was a
general suspicion that they had been bribed in favour of the defendant,
the surprise was great when all three voted for a conviction. Some
bewildered jurymen began to believe that it must have been Cluentius
who had had recourse to bribery. The result was that, while a considerable
number held the charge 'not proven,' five actually voted for acquittal;
and it was only by a narrow majority that Oppianicus was declared
guilty.
How are we to account for the fact that the verdict
against Oppianicus was not unanimous, like that against Fabricius,
or all but unanimous, like that against Scamander? His alleged attempt
to bribe the bench of jurors had entirely failed: no one got any
money from him except Staienus, and even Staienus was forced eventually
to disgorge (§ 78). Those jurors whom Staienus had deluded with
the promise of a bribe all voted against his patron as soon as they
found that the money was not forthcoming. They returned what was,
according to Cicero, the right verdict, but they so from pique and
disappointment. Surely if Oppianicus was so notoriously guilty,
the jurors who had not been approached by Staienus (some of them,
presumably, honourable men), would have given an adverse judgment
instead of either refusing to commit themselves or siding with the
minority.
The method by which Cicero endeavours to account for
the character and composition of the verdict is obviously another
instance of 'throwing dust in the eyes of the jury.' His statement
of the case is introduced by a glaring sophism. Just as in the pro
Milone he argues that, either Milo waylaid Clodius with intent
to murder him, or Clodius waylaid Milo, so in the speech before
us he assumes that, as bribery had undoubtedly been practised, it
must have been practised either by Cluentius or else by Oppiancius
(§ 64). But all the evidence points to an alternative supposition,
viz. that both were guilty, and that Cluentius overbribed his rival.
This theory derives additional support from a passage in the Verrines,
in which the orator distinctly states that Staienus had taken a
bribe from both prosecutor and defendant: inventus est senator
qui, cum iudex esset, in eodem iudicio et ab reo pecuniam acciperet
quam iudicibus divideret et ab accusatore ut reum condemnarent,
Verr. i., § 39.
Except so far as it may be indicated in a phrase which
Cicero lets drop in the course of his narrative [This may be a fair
interpretation of the words used in § 78 Staieni sententia condemnatum
videbant.], the fact that the issue turned on a single vote
is nowhere distinctly stated in the text. But there is a passage
in the pro Caecina which makes this a certainty: cum
si uno minus damnarent condemnari reus non posset (§ 29). The
transference of a single vote, that is to say, would have resulted
in a tie--16 to 16; and this would have involved another hearing
(ampliatio). The majority in favour of a conviction was
therefore 17 to 15 [Cp. § 74, where it appears that 16 votes were
needed for acquittal, in addition to that of Staienus].
The proper interpretation of § 107 is an important
factor in determining this result. Nine names are there enumerated,
and these have been taken by some commentators (as, for example,
Professor Ramsay) to be the names of jurors who voted "Guilty."
But this view is not supported by the context. We know from indications
in other parts of the speech that eight jurors who gave a hostile
verdict were suspected of having been influenced by bribery--Staienus,
Bulbus, Gutta, Popilius, Falcula, Aquilius, Scaevola, and Egnatius.
If the nine honourable men whose names are recited in § 107 had
concurred in this verdict, Cicero would have claimed them as witnesses
against Oppianicus in more emphatic language than he actually uses
in the section under discussion [Non absolvit--ne is quidem
absolvit--quorum nullius sententia est Oppianicus absolutus--in
eadem sententia fuit. § 107]. Moreover, he professes to be
merely selecting certain names from a number at his disposal, whereas
(on Ramsay's theory) he could really not have added a single one
more. Nin are mentioned in all, and 9+8=17. The fact seems to be
that in § 106 he begins to divide the bench into two classes--those
who acquitted, and those who did not acquit; and the names mentioned
in § 107 are the names of nine of those who voted Non Liquet.
To make up the majority of 15 we must suppose that there was a tenth
juror who gave this verdict, and whose name is omitted from the
list. The only possible alternative would be to suppose that, with
the view of vindicating the justice of the verdict, Cicero is quoting
in § 107 a certain number of reputable names from the list both
of those who gave a direct verdict of "Guilty," and of
those who voted "Not Proven"; but this seems hardly so
probable.
The conduct of Staienus is another matter in regard
to which the orator's statements are hardly convincing. He receives
a large sum of money, amounting to 640,000 sesterces, for distribution
among sixteen jurors: his own vote was regarded as certain, as he
had already voted for the acquittal of Scamander, and fully expected
to be rewarded also on the present occasion (spe maiorum praemiorum,
§ 74). This money Cicero represents Staienus as having schemed to
keep entirely to himself, though he was subsequently forced to disgorge
the whole of it (§ 78). It is not improbable that Staienus was over-bribed
by Cluentius. The theory that he had an understanding with the prosecution
would readily explain his absence from court when the jury was about
to retire in order to consider their verdict. Without him the majority
would have been 16 to 15, and therefore he could have been spared,
especially considering that he was now expected to turn his back
on his previous performance in acquitting Scamander; but Quinctius,
acting in the interests of Oppianicus, and probably ignorant that
the other side had annexed him, insisted on having Staienus brought
back to court before the final vote was taken.
The acquittal of Fidiculanius Falcula, on the other
hand (§ 91 and § 103), is a strong point in favour of the defence
which Cicero sets up in the speech before us. It was charged against
Falcula that he had been given a seat on the jury at the last moment,
and that in empanelling him Junius had acted in collusion with the
praetor Verres. He was twice brought to trial--the second time on
the direct charge of having taken a bribe to vote against Oppianicus;
and on both occasions he was acquitted. But Cicero cannot have had
much belief in his innocence, if we may judge from the pro Caecina,
§ 29: Utrum gravius aliquid in quemquam dici potest quam ad
hominem condemnandum quem nunquam vidisset neque audisset adductum
esse pretio? Cp. notes on § 104.
Accepting Cicero's narrative only so far as it helps
to point to a probably theory, we may suggest the following as an
approximately true version of what actually happened. Oppianicus
gave Staienus money to make certain of sixteen votes, which, along
with his own, would ensure an acquittal. Some at least of the thirty-two
jurors were men of character, and above bribery (cp. nummarii
pauci, § 75), and in order to convert a possible minority of
15 into a majority Cluentius had to over-bribe at least some of
those who had already pledged themselves to Oppianicus, e.g.,
Bulbus, Gutta, and Staienus himself. The irregular subsortitio
of Falcula (§ 103) secured for Cluentius one vote which may have
been doubtful before; and --in order, possibly, to divert suspicion--it
was arranged that Staienus, whose vote was no longer indispensable,
should stay away. Quinctius, however, insisted on his being brought
back into court, and the result was a verdict of Guilty
by 17 votes (instead of 16) against 15.
The account of the interview Oppianicus had with Staienus
after his conviction (§ 78), and a reference to certain disclosures
which the condemned man is alleged to have made [§ 69, quemadmodum
ex ipso Oppianico postea est auditum.], render it probable
that, without trying to save his own character, Oppianicus sought
to show that Cluentius was fully as guilty as himself. Staienus
had tricked him, but he would take care that the truth should be
known. The closeness of the division may have resulted from the
eager efforts made on both sides. Cluentius won--by a single vote,
that of Staienus: Staieni sententia condemnatum videbant,
§ 78.
The issue was certainly by no means so conclusive as
it had been in the previous cases of Scamander and Fabricius. When
Cicero appeared for the former, eight years before, he had taken,
as we have already seen, an entirely different view of the case.
From more than one passage in his speeches, statements can be cited
which are quite irreconcilable with his present position: e.g.
2 Verr. ii., §§ 78-9, where he illustrates the conduct
charged against Verres by the double treachery of Staienus (cp.
i., § 39); 1 Verr. § 29, where he refers to the corruption
of the "Iunianum consilium": Ibid. §§ 38, 39,
where, in citing cases of senatorial corruption, he alludes to the
litis aestimatio at the trial of Scaevola as a proof that
bribery had been practised against Oppianicus: 2 Verr.
i., § 157, where he accuses Verres of having falsified the entries
in his official register, in order to conceal his connivance at
the crime of Junius (quod falsum codicem protuleris). Again
in the pro Caecina, §§ 28, 29, he dwells on the informality
of which Falcula had been guilty (for the purpose of disparaging
him as a witness), in language very different from that which he
uses in his speech before us. The accusation of inconsistency which
had evidently been levelled against him on the ground of such utterances
as these, he endeavours to rebut by various arguments, especially
in § 139: just as he tries to demolish the weight of the praeiudicia
against his client by showing that they were due to the invidia
which then prevailed. There can be little doubt that this change
of attitude is partly attributable to the altered position of the
equestrian order. The Lex Sempronia iudiciaria of C. Gracchus
(B.C. 122) had transferred to the Equites from the Senate the coveted
privilege of serving as jurors in the law courts; and the monopoly
thus created continued to be enjoyed by the knights down to the
period of Sulla's legislation. The only attempts to interfere with
it were the Lex Servilia of B.C. 106 (cp. § 140), which
provided for associating the Senate with the Equites, but which
did not continue long in operation; a similar motion brought forward
by the tribune L. Drusus, in B.C. 91 (see on § 153); and the Lex
Plautia of B.C. 89, which proposed that each of the thirty-five
tribes should furnish fifteen persons of any standing whatever.
It was only in B.C. 81 that a Lex Cornelia again transferred
the iudicia to the Senate. But the corruption which marked
the senatorial régime, and which is represented as having
culminated in the trial before Junius, led to the agitation of which
we hear in the present speech, and which was headed by Oppianicus's
counsel, the tribune Quinctius [Rem a subselliis ad rostra detulit,
§ 111]. He raised a series of actions against the jurors who had
taken bribes at the late trial, and also set in motion against them
the machinery of the censorial stigma. Cicero makes much of the
fact that in most cases their alleged conduct at the trial of Oppianicus
was not made the main charge against these offenders. Possibly there
may have been a motive for this. The senatorial juries which tried
the cases could have convicted on a direct charge of bribery without
descrediting their own order. But they had to yield to the inevitable.
The feeling of resentment over the exclusive privileges of the senators
was so strong that it was easy to secure a conviction on any charge
which it might be convenient to put in the foreground in dealing
with each particular case. Thus it is said of Junius himself, idcirco
illis legibus condemnatus est quod contra aliam legem commiserat
(§ 92). Similarly Bulbus, on his trial for maiestas, is
at the same time accused of having taken a bribe at the trial of
Oppianicus (§ 97); and Staienus, when also on his trial for maiestas,
had to face the argument which the Cominii founded on his conduct
as one of his jury in that case (§ 99; cp. § 114).
Cicero's attitude in connection with the impeachment
of Verres shows us that he shared in the popular resentment against
the senatorial adminstration; see especially i. Verr.,
§ 38, ii. 4, § 133. There is, indeed, a passage in the present speech
in which he sets it in a fairer light: tum vero illa iudicia
senatoria non falsa invidia, sed vera atque insigni turpitudine
notata atque operta dedecore et infamia, defensioni locum nullum
reliquisent, § 61. But this may have been because he felt that
it was his interest to uphold the character of the tribunal which
had, in condemning Scamander, pronounced a judgment favourable to
his client Cluentius. In any case it should be remembered that the
present defence was conducted four years after the compromise effected
(in B.C. 70) by the Lex Aurelia, which provided that the
iudicia were to be composed one-third of senators, another
of equites, and another of tribunii aerarii. At the trial
of Scamander, in B.C. 74, it is probable that, as counsel for the
accused, Cicero would inveigh strongly against the senatorial régime,
especially as the scandal of the marked voting-tablets (see on §
130) had, about the same time, given fresh proof of judicial corruption
in a way that must have strengthened the hands of those who were
beginning to agitate for the restoration of their judicial privileges
to the knights. Cicero had always had at heart the interests of
the equestrian order, and hence his protest--the grounds for which
we must next consider--against a proceeding which he alleged would
render the members of that order liable to the conspiracy clause
in the Sixth Chapter of the Lex Cornelia de Sicariis et Veneficis,
which was technically applicable only to senators.
|
The Lex Cornelia de Sicariis
et Veneficis
After all that has been said, it may
appear strange that there should still remain for discussion the
question whether the alleged conduct of Cluentius at the trial of
the elder Oppianicus was really put forward as a count in the present
indictment against him. Nearly seven-eighths of Cicero's speech
are taken up with this aspect of the case; but it has been held
that Cicero misrepresented the indictment, and that the only charges
directly preferred against Cluentius were the charges of poisoning.
The primary purpose of the Lex Cornelia de Sicariis
et Veneficis, passed circa B.C. 81, was to inflict
penalties for murder and poisoning. It also contained a section
(the Sixth Chapter) which dealt with the crime of conspiring to
procure the conviction of a person innocently accused on a capital
charge--threatening penalties against "those who should be
proved to have given false evidence, or induced others to give false
evidence, or have combined or conspired in any way to procure the
conviction of an innocent man when criminally impeached, or, if
acting in the capacity of a judge or juror, having received money
for that purpose" (Ramsay) [Just. Inst.,
iv. 18, 5: Digest 48, 1, 1. Sulla had embodied in this statute a
Lex Sempronia passed by C. Gracchus in B.C. 124, and directed
against judicial corruption on the part of senators; ne quis
iudicio circumveniretur, § 151, where see note]. The peculiarity
of this section--and this is of the highest importance for the proper
interpretation of Cicero's argument--was that the equites
and the lower orders generally were excluded from its operation:
it applied only to senators and to the holders of certain offices.
Reference may be made, among other passages, to § 155, omnes
id agamus ut haec quam primum in omnes ordines quaestio
perferatur. [quaestio; i.e., the quaestio
inter sicarios, § 147. The usual explanation of this phrase
(cp. inter sicarios deferre, accusare, defendere) is that
there was no substantive to express murder, corresponding to veneficium,
peculatus, etc. and that, as it was impossible to say sicae,
or de sica deferre, the short phrase inter sicarios
deferre and other analogous forms were employed for what would
have been, at full length, ita deferre ut nomen alicuius inter
sicarios deferatur. It has been suggested, however (see Mr.
Faussett's note on § 21), that inter sicarios may be a
quasi-local designation, 'in the Assassination Court': cp. inter
falcarios, Cat. i., § 8, 'in the sickle-maker's street'; and
inter lignarios, Liv. xxxv. 41, 'in the carpenter's street,'
or 'in the timber market.']
Many students of the pro Cluentio have been
of opinion that no charge was made against the defendant under the
Sixth Chapter of the Cornelian Law, and that he was accused of poisoning
only, not of judicial murder. They recognize in the elaborate refutation
of the popular prejudice on the subject of the trial before Junius,
Cicero's boasted achievement of having 'thrown dust in the eyes
of the jury,' by defending his client from an accusation that had
never been made, in order that he may afterwards be in a position
to conciliate the sympathies of the court by generously renouncing
the technical plea on which he might have declined to say a single
word about the circumstances which led to the conviction of Oppianicus.
According to this view, Cluentius was accused only under the Fifth
Chapter of the Lex Cornelia, which related to poisoning,
though Accius had done his best to prejudice him in the eyes of
the jury by dwelling on his alleged conduct at the previous trial:
Cicero, however, puts his case as though his client had actually
been impeached for "judicial murder."
In this edition, on the other hand, the view is maintained
that Cluentius, though an eques, was accused, not only of poisoning,
but also under that section of the Cornelian Law which related to
conspiracy and judicial murder, and which was technically applicable
only to senators. The prosecution appears to have advanced the argument
that Cluentius was morally guilty under the second head; and also
that the time had come when, in view of the changed conditions of
judicial administration, the scope of the statute should be extended--by
the establishment, even retroactively, of such a precedent as this--to
others who might be guilty of similar offences [That Accius took
this line deliberately, and with his eyes open, as it were, would
seem to appear from § 143, where, in the words, Nimirum tibi
istud lex ipsa renuntiavit, Cicero obviously wishes to intimate
his belief that his opponent was aware of the true construction
of the statute, in spite of the argument which he had advanced.
Cp. § 149, Nolo quemquam eorum qui adsunt existimare me quae
de lege ab Accio dicta sunt, si reticuerim comprobare.]
Those who take the other view cite the division of
the case adopted in the exordium, and carefully maintained throughout
the speech: the prejudice arising out of the bribery scandal (invidia)
is separated from the charges directly preferred against Cluentius
(crimina), and Cicero states (§ 3) that, while the latter
can be disproved, he can only deal with the prejudice by throwing
himself on the protection of the court. In answer to this, it should
be noted that the orator does sometimes, as a matter of fact, use
the word crimen where we should have expected him to use
the more insidious term invidia: e.g. § 8, Adgrediar
ad crimen, etc., and veteris istius criminis diluendi potestas:
§ 143, purgandi istius invidiosi criminis: § 125, Cluentianae
pecuniae crimen: cp. § 97, At est hoc illi crimen obiectum.
Again, it is urged that there are passages in the speech
in which it is distinctly stated that the question of corrupt conduct
at the iudicium Iunianum is not before the court. In support
of this view reference has been made to the following passages:
§ 160, Reliqua perpauca sunt; quae quia vestrae questionis erant
idcirco illi statuerunt fingenda esse sibi et proferenda ne omnium
turpissimi reperirentur si in iudicium nihil praeter invidiam attulissent;
and, again, § 164, Cognoscite nunc id. . .quod vestri iudicii
est. . .de criminibus veneni. But in using such language as
this, Cicero must not be taken as implying that judicial corruption
formed no part of the present indictment against his client: what
he asserts is that Cluentius, as an eques, is not liable under the
statute on which the indictment is framed. It is sufficient, in
support of the view here maintained, to cite § 90 [. . .quod
pecuniam acceperit, quod innocentem circumvenerit. Est haec opinio.
At si ita esset, hac lege accusatum oportuit qua accusatur Habitus],
a section which contains an express reference to the Lex Cornelia
as the statute under which the charge of 'judicial murder' was being
pressed against Cluentius; and § 144 [Nam ut haec ad me causa
delata est. . .dixi Habito statim eo capite qui coisset
quo quis condemnaretur illum esse liberum, teneri autem
nostrum ordinem (emphasis is author's)], from which section
it clearly appears that the allegation of bribery and corruption
formed an actual count in the indictment against him.
But how did it come about that the prosecution brought
a charge against Cluentius under a statute to the provisions of
which they must have known he was not amenable? The motive was probably
in great part political: Accius and his friends wished, by establishing
a precedent in the present case, to secure that extension of the
Sixth Chapter of the Lex Cornelia, which the altered circumstances
of judicial administration seemed to demand. Knights as well as
senators, the prosecution urged, ought to be held liable to the
statute, now that both orders had a share in the administration
of the jury-courts (§ 145). Accius had evidently pressed this point
hard. He had professed to believe that Cicero would found on the
letter of the law (praesidio legis, § 143), and had appealed
to the court, on the contrary, to administer it according to the
spirit: see notes on §§ 156, 160. Behind Accius and his friends
were the tribunes and the party they championed. The leaders of
the democrats, in B.C. 66, were just as ready to criticise the constitution
of the iudicia, as administered under the Aurelian Law,
as the opponents of senatorial monopoly had been in earlier days.
They saw no good reason why the provisions of the Lex Cornelia
should continue to be technically applicable only to senators and
officials who had held magistracies by popular election, while there
was no menas of bringing to justice others who, like Cluentius,
were charged with having corrupted members of senatorial juries.
Their object accordingly was to secure an extended application of
the Lex Cornelia, by the precedent which they hoped would
be established by the conviction of Cluentius: nec nunc quidquam
agitur--mihi credite iudices et prospicite id quod providendum est--nisi
ut equester ordo in huiusce legis periculum concludatur (§
152). The opportunity was a favourable one. Many who had voted for
the conviction of Oppianicus had themselves been condemned on a
criminal charge, and the censors had taken official cognizance of
the scandal by stigmatizing, among others, Cluentius himself. The
prosecution must have hoped--especially as the defendant was being
impeached also under another section of the same statute--that equitable
considerations would prevail, and that the jury before which Cluentius
appeared would not prejudice itself in the eyes of the people by
refusing, on technical grounds, to convice the defendant of a crime
of which he was believed really to be guilty. Cicero meets these
expectations in the language of emphatic protest. He objects to
the attempt to extend to others--whether equestrian jurors (de
eis qui rem iudicarint, § 152) or members of the general public
(populus Romanus, §§ 151, 157)--a statute which Sulla had
expressly limited to members of that order on which he was conferring
the monopoly of the jury courts, probably because he recognized
the fact that it would be mainly from members of the senatorial
order that his new jurors would be exposed to the risk of bribery
and corruption. And in rebutting the arguments of the other side,
Cicero does not scruple to work upon the fears of the mixed tribunal
he is now addressing by pointing out the common danger that would
be involved in such a precedent: §§ 153, 157.
As bearing out the view of Cicero's argument advanced
above, and as subsidiary to the Analysis given, I may be allowed
to quote the following from the Introduction to my Translation:
"Cicero starts by saying that Accius had made two divisions
of his speech. In the first he had endeavoured to show that the
statute ought to be made applicable to Cluentius [Neque
me illa oratio commovet quod ait Accius indignum esse facinus si
senator iudicio quempiam circumvenerit, legibus eum teneri: si eques
Romanus hoc idem fecerit, non teneri (§ 145): iniquum tibi
videtur, T. Acci, esse non iisdem legibus omnes teneri (§ 150):
agit enim sic causam T. Accius, adulescens bonus et disertus,
omnes cives legibus teneri omnibus (§ 156).]: of this argument
Cicero says, quite justly, mihi niti et magno opere confidere
videbatur invidia iam inveterata iudicii Iuniani (§ 1). These
words do not necessarily imply that Accius had introduced the subject
of the invidia by a side-wind, and not as a direct count
in the indictment. They merely contain an anticipation of the way
in which Cluentius's advocate intends to meet his opponent, viz.
by arguing (§ 143 seq.) that the unpopularity of the conviction
of Oppianicus, and the admitted fact that bribery had been practised
at his trial, ought not to prejudice the court against Cluentius,
especially as Cluentius is not technically amenable to the statute
on which Accius had based his case. This latter fact--though he
afterwards professes that Cluentius does not wish to be found on
it (§§ 144-5)--Cicero at once put forward in his reference to the
second division of the prosecutor's speech, qua de re lege est
haec quaestio constitua (§ 1), and quae propria est iudicii
vestri et legitimae veneficii quaestionis (§ 2). This need
not be interpreted to mean that the crimina alone constituted
the formal indictment; it is rather a forewarning of the position
which Cicero afterwards intended to take up (§§ 143-160: cp. especially
§ 148, iubet lex ea qua lege haec quaestio constituta est. .
.quaerere de veneno). He cannot deny the fact of the bribery
scandal (§ 4): if the prosecution had not endeavoured to fasten
it directly on Cluentius, their case would have been a very thin
one indeed (§ 160). He therefore proceeds at once to meet the multorum
annorum accusatio (§ 8), and states explicitly, at a subsequent
stage, his satisfaction that the bribery scandal has at
least been made a definite issue: ante hoc tempus omnino ista
res suo nomine in iudicium nunquam est vocata. . .ut hodierno die
primum causa illa defensa sit (§ 88)."
The only tenable alternative to the argument advanced
above would seem to be the view of Zumpt (Röm. Criminalrecht,
ii. 2), that bribery was really the main charge against Cluentius,
but that it was brought under a clause of the Lex Cornelia
which was applicable to all persons without distinction who should
be the 'cause of death' to others. Zumpt relies mainly on the language
used by Paulus (Sent. rec. v. 23, 1 and 10) in summarizing
the provisions of the Lex Cornelia, of which he says, "poenam
deportationis infligit ei qui hominem occiderit eiusve rei causa
furtisve faciendi cum telo fuerit et qui venenum hominis necandi
causa habuerit vendiderit paraverit falsumve testimonium dixerit,
quo quis periret, mortisve causam praestiterit." The
words in italics may seem too indefinite, and too destitute of support
from other sources, to build such a theory on: if they had actually
formed a part of Sulla's statute, we may be certain that Accius
would not have failed to found on them in his speech for the prosecution,
in which case all Cicero's sophistries would have been addressed
to minds already informed of the true facts of the case. At the
same time it is right to note that this seems to be the view which
has commended itself to an able reviewer of my Translation in the
Athenaeum (1st August, 1896), from whom I quote the following:
"At first sight it appears almost incredible that Cicero should
have been guilty of declaring that only senators and certain other
specified classes of persons could be held liable under the section,
if, in fact, the statute contained other words which modified or
nullified the effect of the words which he quotes. But the orator
was capable of using perversly statutes and legal formulae to a
far greater extent than scholars have usually been willing to recognize.
Any one who has studied long and carefully the speeches for Quinctius
and for Caecina must feel that Cicero's capacity for such perversion
was almost unlimited. And in the present instance, if his case on
the terms of the law had been as strong as his professions about
it are, his mode of treatment would surely have been far different.
As it is, he deals with the whole matter in a most tentative and
imperfect fashion. The question whether Cluentius had been guilty
of bribing a jury is first discussed with the utmost elaboration,
but without any reference to the statute. Until nearly three-quarters
of the speech are over, we hear only vaguely of the 'invidia'
attaching to the charge, and when mention is at last made of the
law in connexion[sic] with it the orator speaks in a very curious
manner: 'I, who was bound to know the laws under which I am called
upon to plead, and with which I have to deal, immediately told Habitus
that he was not liable under the section.' Cicero never claimed
to be a great jurisconsult, and it is strange that he did not fortify
his opinion by an appeal to men of greater repute for learning in
the law if such an appeal were really possible. Nowhere does he
state that skilled lawyers and courts had not supported
a different view of the matter; and the omission is most suspicious.
Next he catches at a statment made by the opposing counsel that
it was expedient to give the law a wider interpretation. When he
finally comes face to face with the actual words used in the Sixth
Section, he does not deal with them like a man who has a strong
case. It is almost certain that he does not quote in full. For example,
it is hardly to be supposed that Sulla, when he incorporated in
his enactment earlier provisions, relieved the relations of the
senators from liability. In view of the incompleteness of the quotations,
we should have expected a direct and even triumphant assertion that
the statute contained not a word which the other side could quote;
but this we do not get. Cicero insinuates rather than states (§
149) that he will deal with all the arguments which his
opponent had urged in connexion[sic] with the Sixth Section of the
Cornelian Law. But no one who is well acquainted with his manner
will believe that he has carried this out. In the discussion which
we do get there are obvious weaknesses, irrelevancies, and omissions.
The contentions quoted from the other side are all directed to expediency;
but the opposing counsel must have appealed to legal authority and
decided cases. Had he omitted to do so, or been unable to do so,
Cicero would have ridden over him roughshod. But the problem is
'res longi subselli' (to quote a phrase of Pompeius, reported by
Cicero), and we have only been able to present in part the reasons
for believing that the dust which Cicero boasted of having thrown
in the eyes of the jury was intended to render them blind rather
to the law than to the facts on which the issue turned."
It may be doubted whether even Cicero would have gone
so far in misrepresentation as this theory assumes. Let us look
again at the explicit statements which he makes: A. Cluentius
causam dicit eques Romanus ea lege qua senatores et ei qui magistratum
habuerunt soli tenentur, § 156: cp. § 148, where the sections
of the statute quoted are seen to apply only to senators, official
and unofficial (qui magistratum habuerint, quive in senatu sententiam
dixerint). The orator has already disclaimed all intention
of sheltering himself behind the letter of the statute (§§ 143-145),
but he does not disdain to take advantage incidentally of the argument
which he appears to renounce. Cp. § 145, quod si nihil aliud
esset actum nisi ut hanc causam obtineremus, lege recitata peropassem:
§§ 148, 157, and note on § 154.
On the whole, therefore, it seems to be safest to adhere
to the view that Cluentius was impeached under the Fifth Chapter
of the Cornelian Law, which related to poisoning, and also under
the Sixth. Though the prosecution nominally relied on the direct
charges brought under the former head, its real strength lay in
an elastic construction of the provisions of the Sixth Chapter,
especially in view of the strongly prevailing belief that Cluentius
had used corrupt means to procure the conviction of his step-father
eight years before.
It has already been said that Cicero's boast, reported
by Quintilian, that he had "thrown dust in the eyes of the
jurymen at the trial of Cluentius," makes it probable that
his client was acquitted. The charges of poisoning alleged against
Cluentius seem to have had little ground of support. But we have
seen that there are grave reasons for doubting the accuracy of Cicero's
statements in regard to the conduct of Cluentius at the trial of
Oppianicus. The probably rather is that "there was bribery
on both sides, and Cluentius was able to bribe the odd man."
And suspicion has been shown to attach also to Cicero's account
of some of the incidents which preceded and led up to the trial
of Oppianicus,--notably the alleged attempt to poison Cluentius,
and the mysterious proceedings of Scamander and Diogenes. Cicero
had already, in defending Scamander, appeared for the other side.
And the proverbial exigencies of an advocate's position are still
further illustrated by the passage in the speech before us, in which
he warns his readers against looking on judicial orations as unbiased
and impartial records of fact: § 139. We ought to read the pro
Cluentio in the light of this caution.
|
|
