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I.
1. The two things which have the greatest influence in a state,--namely,
the greatest interest, and eloquence, are both making against us at the
present moment; and while I am awed by the one, Gaius Aquillius, I am
in fear of the other:--I am somewhat awed, apprehending that the eloquence
of Quintus Hortensius may embarrass me in speaking; but I am in no slight
fear lest the interest of Sextus Naevius may injure Publius Quinctius.
2. And yet it would not seem so disastrous for us that these things should
exist in the highest degree in the other party, if they existed also to
a moderate extent in us; but the fact is, that I, who have neither sufficient
experience nor much ability, am brought into comparison with a most eloquent
advocate; and that Publius Quinctius, who has but small influence, no
riches, and few friends, is contending with a most influential adversary.
3. And, moreover, we have this additional disadvantage, that Marcus Junius,
who has several times pleaded this cause before you, Aquillius, a man
practised in the conduct other causes also, and much and frequently concerned
in this particular one, is at this moment absent, being engaged on his
new commission [It is not known what this legatio
was.]; and so they have had recourse to me, who, even if I had
all other requisite qualifications in ever so high a degree, have certainly
scarcely had time enough to be able to understand so important a business,
having so many points of dispute involved in it. 4. So that also, which
has been used to be an assistance to me in other causes, is wanting to
me in this one; for in proportion to my want of ability, have I endeavored
to make amends for that want by industry, and unless time and space be
given to one, it cannot be seen how great his industry is. But the greater
our disadvantages, Gaius Aquillius, are, with so much the more favorable
a disposition ought you, and those who are your colleagues in this trial,
to listen to our words, that the truth, though weakened by many disadvantages,
may be at last reestablished by the equity of such men as you. 5. But
if you, being the judge, shall appear to be no protection to a desolate
and helpless condition against power and influence; if before this tribunal
the cause is found to depend on interest, not on truth; then indeed there
is nothing any longer holy and uncontaminated in the state,--no hope that
the firmness and virtue of the judge may counterbalance the lowly condition
of anyone. But undoubtedly before you and your colleagues truth will prevail,
or else, if it be driven from this place by power and influence, it will
not be able to find any place where it can stand.
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II.
I do not say this, Gaius Aquillius, because I have any doubt of your own
good faith and constancy, or because Publius Quinctius ought not to have
the greatest hopes from those whom you have called in as your assessors,
being, as they are, among the most eminent men in the state [Their
names were Lucius Lucilius, Publius Quintilius, and Marcus Marcellus;
"The iudex was generally aided by advisers learned in the
law (iurisconsulti) who were said in concilio adesse, but
the iudex alone was empowered to give judgment." Smith, Dict. Ant.
v. Iudex]. What then? 6. In the first place, the magnitude
of the danger causes a man the greatest fear, because he is staking all
his fortunes on one trial; and while he is thinking of this, the recollection
of your power does not occur to his mind less frequently than that of
your justice; because all men whose lives are in another's hand more frequently
think of what he, in whose power and under whose dominion they are, can
do, than of what he ought to do. 7. Secondly, Publius Quinctius has for
his adversary, in name indeed, Sextus Naevius, but in reality, the most
eloquent, the most gallant, the most accomplished men of our state, who
are defending Sextus Naevius with one common zeal, and with all their
power: if, indeed, defending means so to comply with the desire of another,
that he may the more easily be able to overwhelm whomsoever he chooses
by an unjust trial; 8. for what, Gaius Aquillius, can be mentioned or
spoken of more unjust or more unworthy than this, that I who am defending
the liberties [The Latin has caput, which
in a legal sense expresses not only a man's life, but also his status
or civil condition; to be registered in the census was caput habere,
to change one's rank, capite, diminuere etc. And so a trial which
affected not only a citizen's life, but his rank or liberty, was called
iudicium capitale], the fame, and fortunes of another should
be compelled to open the cause, especially when Quintus Hortensius, who
in this trial fills the part of the accuser, is to speak against me; a
man to whom nature has given the greatest possible fluency and energy
in speaking? Matters are so managed, that I, who ought rather to ward
off the darts of our adversary and to heal the wounds he has inflicted,
am compelled to do so now, even when the adversary has cast no dart; and
that that time is given to them to attack us when the power of avoiding
their attacks is to be taken from us; and if in any particular they should
(as they are well prepared to do) cast any false accusation like a poisoned
arrow at us, there will be no opportunity for applying a remedy. 9. That
has happened through the injustice and wrongdoing of the praetor; first,
because, contrary to universal custom, he has chosen that the trial as
to [Publius'] honor or infamy [Because
if it were decided that Quinctius had forfeited his recognizances, infamia
was the consequence] should take place before the one concerning
the fact; secondly, because he has so arranged this very trial, that the
defendant is compelled to plead his cause before he has heard a word of
the accuser's; and this has been done because of the influence and power
of those men who indulge the violence and covetousness of Sextus Naevius
as eagerly as if their own property or honor were at stake, and who make
experiment of their influence is such matters as this, in which the more
weight they have through their virtue and nobility, the less they ought
to make a parade of what influence they have. 10. Since Publius Quinctius,
involved in and overwhelmed by such numerous and great difficulties, has
taken refuge, Gaius Aquillius, in your good faith, in your truth, in your
compassion; when, up to this time, owing to the might of his adversaries,
no equal law could be found for him, no equal liberty of pleading, no
just magistrate, when, through the greatest injustice, everything was
unfavorable and hostile to him; he now prays and entreats you, Gaius Aquillius,
and all of you who are present as assessors, to allow justice, which has
been tossed about and agitated by many injuries, at length to find rest
and a firm footing in this place.
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III.
And that you may the more easily do this, I will endeavor to make you
understand how this matter has been managed and carried out. 11. Gaius
Quinctius was the brother of this Publius Quinctius; in other respects
a sufficiently prudent and attentive head of family, but in one matter
a little less wise, inasmuch as he formed a partnership with Sextus Naevius,
a respectable man, but one who had not been brought up so as to be acquainted
with the rights of partnership, or with the duties of a head of an established
family [The office of praeco was so little
reputable that before Cicero's death a law was passed to prevent all persons
who had been praecones from becoming decurions in the municipia.
Under the emperors, however, it became very profitable]. Not that
he was wanting in abilities; for Sextus Naevius as a buffoon was never
considered without wit, nor as a crier was he reckoned unmannerly. What
followed? As nature had given him nothing better than a voice, and his
father had left him nothing besides his freedom, he made gain of his voice,
and used his freedom for the object of being loquacius with impunity.
12. So there was no reason in the world for your taking him as a partner,
except that he might learn with your money what a harvest money can produce.
Nevertheless, induced by acquaintance and intimacy with the man, Quinctius,
as I have said, entered into a partnership with him as to those articles
which were procured in Gaul. He had considerable property in cattle, and
a well-cultivated and productive farm. Naevius is carried off from the
halls of Licinius [The Hall of Licinius, i.e.
Licinius Crassus, was the celebrated one where he erected four columns
of Hymettian marble, for the theatrical shows in his aedileship, and was
one of the common resorts of auctioneers and criers], and from
the gang of criers, into Gaul and across the Alps; there is a great change
in his situation, none in his disposition; for he who from his boyhood
had been proposing to himself gain without any outlay, as soon as he spent
anything himself and brought it to the common stock, could not be content
with a moderate profit. 13. Nor is it any wonder if he, who had his voice
for sale, thought that those things which he had acquired by his voice
would be a great profit to him; so that without much moderation, he carried
off whatever he could from the common stock to his private house for himself.
And in this he was as industrious as if all who behaved in a partnership
with exact good faith, were usually condemned in a trial before an arbitrator
[The Latin has "arbitrium pro socio condemnari,"
on which Graevius says, "'Arbitrium pro socio,' is a formula of law,
by which is signified an action and trial in a case of partnership if
anyone had cheated his partner; and Cicero means that Naevius was as industrious
in cheating his partner, as if those who did not cheat were liable to
be condemned, and not those who did not cheat."]. But concerning
these matters I do not consider necessary to say what Publius Quinctius
wishes me to mention; although the cause calls for it: yet as it only
calls for it, and does not absolutely require it, I will pass it over.
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IV.
14. When this partnership had now subsisted many years, and when Naevius
had often been suspected by [Gaius] Quinctius,
and was not able conveniently to give an account of the transactions which
he had carried on according to his caprice, and not on any system, Quinctius
dies in Gaul, when Naevius was there too, and dies suddenly. By his will
he left this Publius Quinctius his heir, in order that, as graet grief
would come to him by his death, great honor should also accrue to him.
15. When he was dead, Publius Quinctius soon after goes into Gaul. There
he lives on terms of intimacy with that fellow Naevius. There they are
together nearly a year, during which they had many communications with
one another about their partnership, and about the whole of their accounts
and their estate in Gaul; nor during that time did Naevius utter one single
word about either the partnership owing him anything, or about Quinctius
having owed him anything on his private account. As there was some little
debt left behind, the payment of which was to be provided for at Rome,
this Publius Quinctius issues notices that he shall put up to auction
in Gaul, at Narbonne, those things which were his own private property.
16. On this, this excellent man, Sextus Naevius, dissuades the man by
many speeches from the things up to auction, saying that he would not
be able at that time to sell so conveniently what he had advertised. That
he had a sum of money at Rome, which if Quinctius were wise he would consider
their common property, from their brotherly intimacy, and also from his
relationship with himself; for Naevius has married the cousin of Publius
Quinctius, and has children by her. Because Naevius was saying what a
good man ought, Quinctius believed that he who imitated the language of
good men, would imitate also their actions. He gives up the idea of having
an auction; he goes to Rome; at the same time Naevius also leaves Gaul
for Rome. 17. As Gaius Quinctius had owed money to Publius Scapula, Publius
Quinctius referred it to you, Gaius Aquilius, to decide what he should
pay his children. He preferred submitting to your decision in this matter,
because, on account of the difference in the exchange, it was not sufficient
to look in his books and see how much was owed, unless he had inquired
at the temple of Castor how much was to be paid in Roman money [The
Latin has 'propter aerariam rationem' and various explanations have been
given of this much discussed phrase: (1) that the difference between Gallic
and Roman money is meant, the debt having been incurred in Gaul and being
payable in Rome, where the rate of exchange was different; (2) that it
alludes to the state of the currency. M. Drusus in 91 authorized the mint
to issue one plated denarius in every seven, the result being that no
one knew whether his money was good or bad; later in 84 the praetors and
tribunes decided to replace the plated denarii with silver. (3) To this
Niebuhr objected that argentaria (not aeraria) would be
the proper word, and explains the passage as referring to the lex Valeria
brought forward by the consul L. Valerius Flaccus (86). By this law all
debts were cancelled and creditors only received a quarter of their debt.
Mommsen agrees and explains the process as the substitution in calcaulation
of the reduced as for the libral as represented by the silver
sestertius. According to Niebuhr, the law only applied to debts
owing at the time, whence the difficulty of settling the amount of the
debt to the Scapulae (See Roby, Roman Private Law, ii. p. 456)--Loeb
Footnote]. You decide and determine, on account of the friendship
existing between you and the family of the Scapulae, what was to be paid
to them to a penny.
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V.
18. All these things Quinctius did by the advice and at the instigation
of Naevius: nor is there anything strange in his adopting the advice of
the man whose assistance he thought at his service. For not only had he
promised it in Gaul, but every day he kept on saying at Rome that he would
pay the money as soon as he gave him a hint to do so. Quinctius moreover
saw that he was able to do so. He knew that he ought; he did not think
that he was telling lies, because there was no reason why he should tell
lies. He arranged, therefore, that he would pay the Scapulae as if he
had the money at home. He gives Naevius notice of it, and asks him to
provide for the payment as he had said he would. 19. Then that worthy
man,--I hope he will not think I am laughing at him if I call him again
a most worthy man,--as he thought that he was brought into a great strait,
hoping to pin him down to his own terms at the very nick of time, says
that he will not pay a penny, unless a decision is first come to about
all the affairs and accounts of the partnership, and unless he knew that
there would be no dispute between him and Quinctius. We will look into
these matters at a future time, says Quinctius, but at present I wish
you to provide, if you please, what you said you would. He says that he
will not do so on any other condition; and that what he had promised no
more concerned him, than it would if when he was holding a sale by auction,
he had made any bidding at the command of the owner. 20. Quinctius being
perplexed at this desertion, obtains a few days' delay from the Scapulae;
he sends into Gaul to have those things sold which he had advertised;
being absent, he sells them at a less favorable time than before; he pays
the Scapulae with more disadvantage to himself than he would have done.
Then of his own accord he calls Naevius to account, in order, since he
suspected that there would be a dispute about something, to provide for
the termination of the business as soon as possible, and with the smallest
possible trouble. 21. He appoints as his umpire his friend Marcus Trebellius;
we name a common friend, a relation of our own, Sextus Alphenus, who had
been brought up in his house, and with whom he was exceedingly intimate.
No agreement could be come to; because the one was willing to put up with
a slight loss, but the other was not content with a moderate booty. 22.
So from that time the matter was referred to legal decision [Literally,
"recognizances were entered into." When the praetor had granted
an action, the plaintiff required the defendant to give security for his
appearance before the praetor on a stated day, commonly the day but one
after the in ius vocatio.]. After many delays, and when
much time had been wasted in that business, and nothing had been done,
Naevius appeared before the judge.
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VI.
I beseech you, Gaius Aquillius, and you the assessors in this suit, to
observe carefully, in order that you may be able to understand the singular
nature of this fraud, and the new method of trickery employed. 23. He
says that he had had a sale by auction in Gaul; that he had sold what
he thought fit; that he had taken care that the partnership should owe
him nothing; that he would have no more to do with summoning anyone, or
with giving security; if Quinctius had any business to transact with him,
he had no objection. He, as he was desirous to revisit his farm in Gaul,
does not summon the man at present; so he departs without giving security.
After that, Quinctius remains at Rome about thirty days. He gets any securities
which he had given other people respited, so as to be able to go without
hindrance into Gaul. 24. He goes; he leaves Rome on the twenty-ninth of
January, in the consulship of Scipio and Norbanus;--I beg of you to remember
the day. Lucius Albius the son of Sextus of the Quirine tribe, a good
man and of the highest reputation for honor, sets out with him. When they
had come to the place called the fords of Volaterra, they see a great
friend of Naevius, who was bringing him some slaves from Gaul to be sold,
Lucius Publicius by name, who when he arrived in Rome told Naevius in
what place he had seen Quinctius; and unless this had been told Naevius
by Publicius, the matter would not so soon have come to trial. 25. Then
Naevius sends his slaves round to his friends; he summons himself all
his associates from the halls of Licinius and from the jaws of the shambles,
and entreats them to come to the booth of Sextus by the second hour of
the next day. They come in crowds; he makes oath that Publius Quinctius
has not appeared to his bail, and that he has appeared to his. A long
protest to this effect is sealed with the seals of noble men. They depart:
Naevius demands of Burrienus the praetor, that by his edict he may take
possession of Quinctius' goods [If either party
did not appear on the appointed day, he was said "vadimonium deserere,"
and the praetor gave to the other party the "bonorum possessio."
See Smith's Dict. Ant. p. 9. v. Actio]. He urged the confiscation
of the property of that man with whom he had had intimacy, with whom he
was actually in partnership, between whom and himself there was a relationship,
which while his children lived could not possibly be annulled. 26. From
which act it could easily be perceived that there is no bond so holy and
solemn, that avarice is not in the habit of weakening and violating it.
In truth, if friendship is kept up by truth, society by good faith, relationship
by affection, it is inevitable that he who has endeavored to despoil his
friend, his partner, and his relation of fame and fortune, should confess
himself worthless and perfidious and impious. 27. Sextus Alphenus, the
agent of Publius Quinctius, the intimate friend and relation of Sextus
Naevius, tears down the bills; carries off one little slave whom Naevius
had laid hold of; gives notice that he is the agent, and that it is only
fair that that fellow should consult the fame and fortunes of Publius
Quinctius, and await his arrival. But if he would not do so, and believed
that by such methods he could bring him into the conditions which he proposed,
then he asked nothing as a favor, and if Naevius chose to go to law, he
would defend him at the trial. 28. While this is being done at Rome, meantime
Quinctius, contrary to law and to custom, and to the edicts of the praetors,
is driven by force by the slaves which belonged to both him and Naevius,
as partners, from their common lands and estates.
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VII.
Think, Gaius Aquillius, that Naevius did everything at Rome with moderation
and good sense, if this which was done in Gaul in obedience to his letters
was done rightly and legally. Quinctius being expelled and turned out
of his farm, having received a most notorious injury, flies to Gaius Flaccus
the general, who was at that time in the province; whom I name to do him
honor as his dignity demands. How strongly he was of opinion that that
action called for punishment you will be able to learn from his decrees.
29. Meantime Alphenus was fighting every day at Rome with that old gladiator.
He had the people indeed on his side, because that fellow never ceased
to aim at the head [There is an allusion here to
the fights of gladiators, in which the people disapproved of that gladiator
who aimed too constantly at the vital parts of his adversary, so as to
make the combat short. There is a pun here, caput meaning the head
or life of the gladiator, and also the free condition of a citizen.].
Naevius demanded that the agent should give security for payment on judgment
being given. Alphenus says that it is not reasonable for an agent to give
security, because the defendant would not be bound to give security if
he were present himself. The tribunes are appealed to, and as a positive
decision was demanded from them, the matter is terminated on the footing
of Sextus Alphenus undertaking that Publius Quinctius should answer to
his bail by the thirteenth of September.
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VIII.
30. Quinctius comes to Rome; he answers to his bail. That fellow, that
most energetic man, the seizer of other men's goods, that invader, that
robber, for a year and a half asks for nothing, keeps quiet, amuses Quinctius
by proposals as long as he can, and at last demands of Gnaeus Dolabella,
the praetor, that Quinctius should give security for payment on judgment
being given, according to the formula, "Because he demands it of
him whose goods he has taken possession of for thirty days, according
to the edict of the praetor." Quinctius made no objection to his
ordering him to give security, if his goods had been possessed, in accordance
with the praetor's edict. He makes the order; how just a one I do not
say,--this alone I do say, it was unprecedented: and I would rather not
have said even this, since anyone could have understood both its characters.
He orders Publius Quinctius to give security to Sextus Naevius, to try
the point whether his goods had been taken possession of for thirty days,
in accordance with the edict of the praetor. The friends who were then
with Quinctius objected to this: they showed that a decision ought to
be come to as to the fact, so that either each should give security to
other, or else that neither should; that there was no necessity for the
character of either being involved in the trial. 31. Moreover, Quinctius
himself cried out that he was unwilling to give security, lest by so doing
he should seem to admit that his goods had been taken possession of in
accordance with the edict: besides if he gave a bond in that manner, he
should be forced (as has now happened) to speak first in a trial affecting
himself capitally. Dolabella (as high men are wont to do, who, whether
they have begun to act rightly or wrongly, carry either conduct to such
a height that no one born in our rank of life can overtake them) perseveres
most bravely in committing injustice: he bids him either give security
or give a bond; and meantime he orders our advocates, who objected to
this, to be removed with great roughness.
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IX.
32. Quinctius departs much embarrassed; and no wonder, when so miserable
a choice was offered him, and one so unjust, that he must either himself
convict himself of a capital offense if he gave security [Because
giving security now would be an admission that he had forfeited his recognizances
before; which was liable to be punished with infamia.],
or open the cause himself in a capital trial if he gave a bond. As in
the one case there was no reason why he should pass an unfavorable sentence
on himself (for sentence passed by oneself is the hardest sentence of
all), but in the other case there was hope of coming before such a man
as a judge, as would show him the more favor the more without interest
he was, he preferred to give a bond. He did so. He had you, Gaius Aquillius,
for the judge; he pleaded according to his bond; in what I have now said
consists the sum and the whole of the present trial.
33. You see, Gaius Aquillius, that it is a trial touching
not the property of Publius Quinctius, but his fame and fortunes. Though
our ancestors have determined that he who is pleading for his life should
speak last, you see that we, owing to this unprecedented accusation of
the prosecutor's, are pleading our cause first. Moreover, you see that
those who are more accustomed to defend people are today acting as accusers
[He means Hortensius]; and that those talents
are turned to do people injury, which have hitherto been employed in ministering
to men's safety, and in assisting them. There remained but one thing more,
which they put in execution yesterday,--namely, to proceed against you
for the purpose of compelling you to limit the time allowed us for making
our defense; and this they would easily have obtained from the praetor
if you had not taught him what your rights and duties and business were.
Nor was there any longer any assistant left to us but yourself by whose
means we could obtain our rights against them. Nor was it even enough
for them to obtain that which might be justified to everybody; so trifling
and insignificant a thing do they think power to be which is not exercised
with injustice.
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X.
But since Hortensius urges you to come to a decision, and requires of
me that I should not waste time in speaking, and complains that when the
former advocate was defending this action it never could be brought to
a conclusion, I will not allow that suspicion to continue to exist, that
we are unwilling for the matter to be decided, nor will I arrogate to
myself a power of proving the case better than it has been proved before;
nor yet will I make a long speech, because the cause has already been
explained by him who has spoken before, and brevity, which is exceedingly
agreeable to me, is required of me, who is neither able to devise nor
to utter many arguments [He mentions in Brutus
that he was at this time in a very delicate state of health]. 35.
I will do what I have observed you do, Hortensius; I will distribute my
argument on the entire cause into certain divisions. You always do so,
because you are always able. I will do so in this cause, because in this
cause I think I can. That power which nature gives you of being always
able to do so, this cause gives me, so that I am able to do so today.
I will appoint myself certain bounds and limits, out of which I cannot
stray if I ever so much wish; so that both I may have a subject on which
I may speak, and Hortensius may have allegations which he may answer,
and you, Gaius Aquillius, may be able to perceive beforehand what topics
you are going to hear discussed. 36. We say, Sextus Naevius, that you
did not take possession of the goods of Publius Quinctius in accordance
with the edict of the praetor. On that point the security was given. I
will show first, that there was no cause why you should require of the
praetor power to take possession of the goods of Publius Quinctius; in
the second place, that you could not have taken possession of them according
to the edict; lastly, that you did not take possession of them. I entreat
you, Gaius Aquillius, and you too the assessors, to preserve carefully
in your recollections what I have undertaken. You will more easily comprehend
the whole business if you recollect this; and you will easily recall me
by the expression of your opinion if I attempt to overstep those barriers
to which I have confined myself. I say that there was no reason why he
should make the demand; I say that he could not have taken possession
according to the edict; I say that he did not take possession. When I
have proved these three things, I will sum up the whole.
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XI.
37. There was no reason why you should make the demand. How can this be
proved? Because Quinctius owed nothing whatever to Sextus Naevius, neither
on account of the partnership, nor from any private debt. Who is a witness
of this? Why, the same man who is our most bitter enemy. In this matter
I will cite you--you, I say, Naevius, as our witness. Quinctius was with
you in Gaul a year, and more than that, after the death of Gaius Quinctius.
Prove that you ever demanded of him this vast sum of money, I know not
how much; prove that you ever mentioned it, ever said it was owing, and
I will admit that he owed it. 38. Gaius Quinctius dies; who, as you say,
owed you a large sum for some particular articles. His heir, Publius Quinctius,
comes into Gaul to you, to your join estate,--comes to that place where
not only the property was, but also all the accounts and all the books.
Who would have been so careless in his private affairs, who so negligent,
who so unlike you, Sextus, as not, when the effects were gone from his
hands who had contracted the debt, and had become the property of his
heir, to inform the heir of it as soon as he saw him? to apply for the
money? to give in his account? and if anything were disputed, to arrange
it either in a friendly manner, or by the intervention of strict law?
Is it not so? that which the best men do, those who wish their relations
and friends to be affectionate towards them and honorable, would Sextus
Naevius not do that, he who so burns, who is so hurried by avarice, that
he is unwilling to give up any part of his own property, lest he should
leave some fraction to be any credit or advantage to this his near relation.
39. And would he not demand the money, if any were owing, who, because
that was not paid which was never owed, seeks to take away not only the
money, but even the life of his relation? You were unwilling, I suppose,
to be troublesome to him whom you will not allow even to live as a free
man! You were unwilling at that time modestly to ask that man for money,
whom you now wish nefariously to murder! I suppose so. You were unwilling,
or you did not dare, to ask a man who was your relation, who had a regard
for you, a good man, a temperate man, a man older than yourself. Often
(as sometimes happens with men), when you had fortified yourself, when
you had determined to mention the money, when you had come ready prepared
and having considered the matter, you being a nervous man, of virgin modesty,
on a sudden checked yourself, your voice failed you, you did not dare
to ask him for money whom you wished to ask, lest he should be unwilling
to hear you. No doubt that was it.
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XII.
40. Let us believe this, that Sextus Naevius spared the ears of the man
whose life he is attacking! If he had owed you money, Sextus, you would
have asked for it at once; if not at once, at all events soon after; if
not soon after, at least after a time; in six months I should think; beyond
all doubt at the close of the year: but for a year and a half, when you
had every day an opportunity of reminding the man of the debt, you say
not one word about it; but now, when nearly two years have passed, you
ask for the money. What profligate and extravagant spendthrift, even before
his property is diminished, but while it is still abundant, would have
been so reckless as Sextus Naevius was? When I name the man, I seem to
myself to have said enough. 41. Gaius Quinctius owed you money; you never
asked for it: he died; his property came to his heir; though you saw him
every day, you did not ask for it for two years; will anyone doubt which
is the more probable, that Sextus Naevius would instantly have asked for
what was owed to him, or that he would not have asked for two years? Had
he no opportunity of asking? Why, he lived with you more than a year:
could no measures be taken in Gaul? But there was law administered in
the province, and trials were taking place at Rome. The only alternative
remaining is, either extreme carelessness prevented you, or extraordinary
liberality. If you call it carelessness, we shall wonder; if you call
it kindness, we shall laugh; and what else you can call it I know not;
it is proof enough that nothing was owing to Naevius, that for such a
length of time he asked for nothing.
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XIII.
42. What if I show that this very thing which he is now doing is a proof
that nothing is due? For what is Sextus Naevius doing now? About what
is there a dispute? What is this trial on which we have now been occupied
two years? What is the important business with which he is wearying so
many eminent men? He is asking for his money. What now, at last? But let
him ask; let us hear what he has to say. 43. He wishes a decision to be
come to concerning the accounts and disputes of the partnership. It is
very late. However, better late than never; let us grant it. Oh, says
he, I do not want that now, Gaius Aquillius; and I am not troubling myself
about that now: Publius Quinctius has had the use of my money for so many
years; let him use it, I do not ask anything. What then are you contending
for? is it with that object that you have often announced in many places,--that
he may no longer be a citizen? that he may not keep that rank which hitherto
he has most honorably preserved? that he may not be counted among the
living? that he may be in peril of his life and all his honors? that he
may have to plead his cause before the plaintiff speaks, and that when
he has ended his speech he may then hear the voice of his accuser? What?
What is the object of this? That you may the quicker arrive at your rights?
But if you wished, that might be already done. 44. That you may contend
according to a more respectable form of procedure? But you cannot murder
Publius Quinctius, your own relation, without the greatest wickedness.
That the trial may be facilitated? But neither does Gaius Aquillius willingly
decide on the life of another, nor has Quintus Hortensius been in the
habit of pleading against a man's life. But what reply is made by us,
Gaius Aquillius? He asks for his money: we deny that it is due. Let a
trial take place instantly; we make no objection; is there anything more?
If he is afraid that the money will not be forthcoming when the decision
is given, let him take security that it shall be; and let him give security
for what I demand in the very same terms in which we give security [In
many cases both plaintiff and defendant might be required to give security
(satis dare). Smith, Dict. Ant. p. 10. v. Actio].
The matter can be terminated at once, Gaius Aquillius. You can at once
depart, being delivered from an annoyance, I had almost said, no less
than that Quinctius is exposed to. 45. What are we doing, Hortensius?
what are we to say of this condition? Can we, some time or other, laying
aside our weapons, discuss the money matter without hazard of any one's
fortunes? Can we so prosecute our business, as to leave the life of our
relation in safety? Can we adopt the character of a plaintiff, and lay
aside that of an accuser? Yes, says he, I will take security from you,
but I will not give you security.
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XIV.
But who is it that lays down for us these very reasonable conditions?
who determines this,--that what is just towards Quinctius is unjust towards
Naevius? The goods of Quinctius, says he, were taken possession of in
accordance with the edict of the praetor. You demand then, that I should
admit that; that we should establish by our own sentence, as having taken
place, that which we go to trial expressly to prove never did take place.
46. Can no means be found, Gaius Aquillius, for a man's arriving at his
rights as expeditiously as may be without the disgrace and infamy and
ruin of anyone else? Forsooth, if anything were owed, he would ask for
it: he would not prefer that all sorts of trials should take place, rather
than that one from which all these arise. He, who for so many years never
even asked Quinctius for the money, when he had an opportunity of transacting
business with him every day; he who, from the time when he began to behave
ill, has wasted all the time in adjournments and respiting the recognizances,
drove Quinctius by treachery and violence from their joint estate; who,
when he had ample opportunity, without any one's making objection, to
try a civil action [With respect to its subject
matter the actio was divided into two great divisions, the in personam
actio and the in rem actio. The former was against a person
who was bound to the plaintiff by contract or delict; the latter applied
to those cases where a man claimed a property or a right. Smith, Dict.
Ant.p. 7], chose rather a charge that involved infamy; who, when
he is brought back to this tribunal, whence all these proceedings arise,
repudiates the most reasonable proposals; confesses that he is aiming,
not at the money, but at the life and heart's blood of his adversary;--does
he not openly say, "If anything were owing to me, I should demand
it, and I should long ago have obtained it; 47. I would not employ so
much trouble, so unpopular a course of legal proceeding, and such a band
of favorers of my cause, if I had to make a just demand; I have got to
extort money from one unwilling, and in spite of him; I have got to tear
and squeeze out of a man what he does not owe; Publius Quinctius is to
be cast down from all his fortune; everyone who is powerful, or eloquent,
or noble, must be brought into court with me; a force must be put upon
truth, threats must be bandied about, dangers must be threatened; terrors
must be brandished before his eyes, that being cowed and overcome by these
things, he may at last yield of his own accord." And, in truth, all
these things, when I see who are striving against us, and when I consider
the party sitting opposite to me, seem to be impending over, and to be
present to us, and to be impossible to be avoided by any means. But when,
Gaius Aquillius, I bring my eyes and my mind back to you, the greater
the labor and zeal with which all these things are done, the more trifling
and powerless do I think them. 48. Quinctius then owed nothing, as you
prove yourself. But what if he had owed you anything? would that have
at once been a reason for your requiring leave from the praetor to take
possession of his goods? I think that was neither according to law, nor
expedient for anyone. What then does he prove? He says that he had forfeited
his recognizances.
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XV.
Before I prove that he had not done so, I choose, Gaius Aquillius, to
consider both the fact itself and the conduct of Sextus Naevius, with
reference to the principles of plain duty, and the common usages of men.
He, as you say, had not appeared to his recognizances; he with whom you
were connected by relationship, by partnership, by every sort of bond
and ancient intimacy. Was it decent for you to go at once to the praetor?
was it fair for you at once to demand to be allowed to take possession
of his goods according to the edict? Did you betake yourself to these
extreme measures and to these most hostile laws with such eagerness as
to leave youself nothing behind which you might be able to do still more
bitter and cruel? 49. For, what could happen more shameful to any human
being, what more miserable or more bitter to a man; what disgrace could
happen so heavy, what disaster can be imagined so intolerable? If fortune
deprived anyone of money, or if the injustice of another took it from
him, still while his reputation is unimpeached, honor easily makes amends
for poverty. And some men, though stained with ignominy, or convicted
in discreditable trials, still enjoy their wealth; are not forced to dance
attendance (which is the most wretched of all states) on the power of
another; and in their distresses they are relieved by this support and
comfort; but he whose goods have been sold, who has seen not merely his
ample estates, but even his necessary food and clothing put up under the
hammer, with great disgrace to himself; he is not only erased from the
list of men, but he is removed out of sight, if possible, even beneath
the dead. An honorable death forsooth often sets off even a base life,
but a dishonored life leaves no room to hope for even an honorable death.
50. Therefore, in truth, when a man's goods are taken possession of according
to the praetor's edict, all his fame and reputation is seized at the same
time with his goods. A man about whom placards are posted in the most
frequented places, is not allowed even to perish in silence and obscurity;
a man who has assignees and trustees appointed to pronounce to him on
what terms and conditions he is to be ruined; a man about whom the voice
of the crier makes proclamation and proclaims his price,--he has a most
bitter funeral procession while he is alive, if that may be considered
a funeral in which men meet not as friends to do honor to his obsequies,
but purchasers of his goods as executioners, to tear to pieces and divide
the relics of his existence.
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XVI.
51. Therefore our ancestors determined that such a thing should seldom
happen; the praetors have taken care that it should only happen after
deliberation; good men, even when fraud is openly committed, when there
is no opportunity of trying the case at law, still have recourse to this
measure timidly and hesitatingly; not till they are compelled by force
and necessity, unwillingly, when the recognizances have often been forfeited,
when they have been often deceived and outwitted. For they consider how
serious a matter it is to confiscate the property of another. A good man
is unwilling to slay another, even according to law; for he would rather
say that he had saved when he might have destroyed, than that he had destroyed
when he could have saved. Good men behave so to the most perfect strangers,
aye, even to their greatest enemies, for the sake both of their reputation
among men, and of the common rights of humanity; in order that, as they
have not knowingly caused inconvenience to another, no inconvenience may
lawfully befall them. 52. He did not appear to his recognizances. Who?
Your own relation. If that matter appeared of the greatest importance
in itself, yet its magnitude would be lessened by the consideration of
your relationship. He did not appear to his recognizances. Who? Your partner.
You might forgive even a greater thing than this, to a man with whom either
your inclination had connected you, or fortune had associated you. He
did not appear to his recognizances. Who? He who was always in your company.
You therefore have hurled upon him, who allowed it to happen once that
he was not in your company, all those weapons which have been forged against
those who have done many things for the sake of malversation and fraud.
53. If your poundage was called in question, if in any trifling manner
you were afraid of some trick, would you not have at once run off to Gaius
Aquillius, or to some other counsel? When the rights of friendship, of
partnership, or relationship are at stake, when regard should have been
had to your duty and your character, at that time you not only did not
refer it to Gaius Aquillius or to Lucius Lucilius, but you did not even
consult yourself; you did not even say this to yourself,--"The two
hours are passed; Quinctius has not appeared to his recognizances; what
shall I do?" If, in truth, you had said but these four words to yourself,
"What shall I do?" your covetousness and avarice would have
had breathing time; you would have given some room for reason and prudence;
you would have recollected yourself; you would not have come to such baseness
as to be forced to confess before such man that in the same hour in which
he did not appear to his recognizances you took counsel how utterly to
ruin the fortunes of your relation.
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XVII.
54. I now on your behalf consult these men, after the time has passed,
and in an affair which is not mine, since you forgot to consult them in
your own affair, and when it was the proper time. I ask of you, Gaius
Aquillius, Lucius Lucilius, Publius Quintilius, and Marcus Marcellus;--A
certain partner and relation of mine has not appeared to recognizances,
a man with whom I have a long standing intimacy, but a recent dispute
about money matters. Can I demand of the praetor to be allowed to take
possession of his goods? Or must I, as he has a house, a wife and children
at Rome, not rather give notice at his house? What is your opinion in
this matter? If, in truth, I have rightly understood your kindness and
prudence, I am not much mistaken what you will answer if you are consulted.
You will say at first that I must wait; then, if he seems to be shirking
the business and to be trifling with it too long, that I must have a meeting
of our friends; must ask who his agent is; must give notice at his house.
It can hardly be told how many steps there are which you would make answer
ought to be taken before having recourse to this extreme and unnecessary
course. What does Naevius say to all this? 55. Forsooth, he laughs at
our madness in expecting a consideration of the highest duty, or looking
for the practices of good men in his conduct. What have I to do, says
he, with all this sanctimoniousness and punctiliousness? Let good men,
says he, look to these duties, but let them think of me thus; let them
ask not what I have, but by what means I have acquired it, and in what
rank I was born, and in what manner I was brought up. I remember, there
is an old proverb about a buffoon; "that it is a much easier thing
for him to become rich than to become the head of a family." 56.
This is what he says openly by his actions, if he does not dare to say
it in words. If in truth he wishes to live according to the practices
of good men, he has many things to learn and to unlearn, both which things
are difficult to a man of his age.
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XVIII.
I did not hesitate, says he, when the recognizances were forfeited, to
claim the confiscation of his goods. It was wickedly done; but since you
claim this for yourself, and demand that it be granted to you, let us
grant it. What if he has not forfeited his recognizances? If the whole
of that plea has been invented by you with the most extreme dishonesty
and wickedness? if there had actually been no securities given in any
cause between you and Publius Quinctius? What shall we call you? Wicked?
why, even if the recognizances had been forfeited, yet in making such
a demand and confiscation of his goods, you were proved to be most wicked.
Malignant? you do not deny it. Dishonest? you have already claimed that
as your character, and you think it a fine thing. Audacious? covetous?
perfidious? those are vulgar and worn-out imputations, but this conduct
is novel and unheard of. What then are we to say? 57. I fear forsooth
lest I should either use language severer than men's nature is inclined
to bear, or else more gentle than the cause requires. You say that the
recognizances were forfeited. Quinctius the moment he returned to Rome
asked you on what day the recognizances were drawn. You answered at once,
on the fifth of February. Quinctius, when departing, began to recollect
on what day he left Rome for Gaul: he goes to his journal, he finds the
day of his departure set down, the thirty-first of January. If he was
at Rome on the fifth of February we have nothing to say against his having
entered into recognizances with you. 58. What then? how can this be found
out? Lucius Albius went with him, a man of the highest honor; he shall
give his evidence. Some friends accompanied both Albius and Quinctius;
they also shall give their evidence. Shall the letters of Publius Quinctius,
shall so many witnesses, all having the most undeniable reason for being
able to know the truth, and no reason for speaking falsely, be compared
with your witness to the recognizance? 59. And shall Publius Quinctius
be harassed in a cause like this? and shall he any longer be subjected
to the misery of such fear and danger? and shall the influence of an adversary
alarm him more than the integrity of the judge comforts him? For he always
lived in an unpolished and uncompanionable manner; he was of a melancholy
and unsociable disposition; he has not frequented the Forum, or the Campus,
or banquets. He so lived as to retain his friends by attention, and his
property by economy; he loved the ancient system of duty, all the splendor
of which has grown obsolete according to present fashions. But if, in
a cause where the merits were equal, he seemed to come off the worse,
that would be in no small degree to be complained of; but now, when he
is in the right, he does not even demand to come off best; he submits
to be worsted, only with these limitations, that he is not to be given
up with his goods, his character, and all his fortunes, to the covetousness
and cruelty of Sextus Naevius.
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XIX.
60. I have proved what I first promised to prove, Gaius Aquillius, that
there was absolutely no cause why he should make this demand; that neither
was any money owed and that if it were owed ever so much, nothing had
been done to excuse recourse being had to such measures as these. Remark
now, that the goods of Publius Quinctius could not possibly have been
taken possession of in accordance with the praetor's edict. Recite the
edict. "He who for the sake of fraud has lain hid." That is
not Quinctius, unless they be hid who depart on their own business, leaving
an agent behind them. "The man who has no heir." Even that is
not he. "The man who leaves the country in exile." At what time,
Naevius, do you think Quinctius ought to have been defended in his absence,
or how? Then, when you were demanded leave to take possession of his goods?
No one was present, for no one could guess that you were going to make
such a demand; nor did it concern any one to object to that which the
praetor ordered not to be done absolutely, but to be done according to
his edict. 61. What was the first opportunity, then, which was given to
the agent of defending this absent man? When you were putting up the placards.
Then Sextus Alphenus was present; he did not permit it; he tore down the
notices. That which was the first step of duty was observed by the agent
with the greatest diligence. Let us see what followed on this. You arrest
the servant of Publius Quinctius in public: you attempt to take him away.
Alphenus does not permit it; he takes him from you by force; he takes
care that he is led home to Quinctius. Here too is seen in a high degree
the attention of an industrious agent. You say that Quinctius is in your
debt; his agent denies it. You wish security to be given; he promises
it. You call him into court; he follows you. You demand a trial; he does
not object. What other could be the conduct of one defending a man in
his absense I do not understand. 62. But who was the agent? I suppose
it was some insignificant man, poor, litigious, worthless, who might be
able to endure the daily abuse of a wealthy buffoon. Nothing of the sort:
he was a wealthy Roman knight, a man managing his own affairs well: he
was, in short, the man whom Naevius himself, as often as he went into
Gaul, left as his agent at Rome.
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XX.
And do you dare, Sextus Naevius, to deny that Quinctius was defended in
his absence, when the same man defended him who used to defend you? and
when he accepted the trial on behalf of Quinctius, to whom when departing
you used to recommend and entrust your own property and character? Do
you attempt to say that there was no one who defended Quinctius at the
trial? 63. "I demanded," says he, "that security be given."
You demanded it unjustly. "The order was made." Alphenus objected.
"He did, but the praetor made the decree." Therefore the tribunes
were appealed to. "Here," said he, "I have you; that is
not allowing a trial, nor defending a man at a trial, when you ask assistance
from the tribunes." When I consider how prudent Hortensius is, I
do not think he will say this; but when I hear that he has said so before,
and when I consider the cause itself, I do not see what else he can say;
for he admits that Alphenus tore down the bills, undertook to give security,
did not object to go to trial in the very terms which Naevius proposed;
but on this condition, that according to custom and prescription, it should
be before that magistrate who was appointed in order to give assistance.
64. You must either say that these things are not so;
or that Gaius Aquillius, being such a man as he is, on his oath, is to
establish this law in the state: that he whose agent does not object to
every trial which anyone demands against him, whose agent dares to appeal
from the praetor to the tribunes, is not defended at all, and may rightly
have his goods taken possession of; may properly, while miserable, absent,
and ignorant or it, have all the embellishments of his fortunes, all the
ornaments of his life, taken from him with the greatest disgrace and ignominy.
65. And this seems reasonable to no one. This certainly must be proved
to the satisfaction of everyone, that Quinctius while absent was defended
at the trial. And as that is the case, his goods were not taken possession
of in accordance with the edict. But then, the tribunes of the people
did not even hear his cause. I admit, if that be the case, that the agent
ought to have obeyed the decree of the praetor. What; if Marcus Brutus
openly said that he would intercede [Intercedo
was the technical word for the interposition of the tribunes] unless
some agreement was come to between Alphenus himself and Naevius; does
not appeal to the tribunes seem to have been interposed not for the sake
of delay but of assistance?
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XXI.
66. What is done next? Alphenus, in order that all men might see that
Quinctius was defended at the trial, that no suspicion might exist unfavorable
either to his own duty, or to his principal's character, summons many
excellent men, and, in the hearing of that fellow, calls them to witness
that he begs this of him, in the first place, out of regard to their common
intimacy, that he would not attempt to take any severe steps against Quinctius
in his absense without cause; but if he persevered in carrying on the
contest in a most spiteful and hostile manner, that he is prepared by
every upright and honorable method to defend him, and to prove that what
he demanded was not owed, and that he accepted the trial which Naevius
proposed. 67. Many excellent men signed the document setting forth this
fact and these conditions. While all matters are still unaltered, while
the goods are neither advertised nor taken possession of, Alphenus promises
Naevius that Quinctius should appear to his recognizances. Quinctius does
appear to his recognizances. The matter lies in dispute while that fellow
is spreading his calumnies for two years, until he could find out by what
means the affair might be diverted out of the common course of proceeding,
and the whole cause be confined to this single point to which it is now
limited. 68. What duty of an agent can possibly be mentioned, Gaius Aquillius,
which seems to have been overlooked by Alphenus? What reason is alleged
why it should be denied that Publius Quinctius was defended in his absense?
Is it that which I suppose Hortensius will allege, because he has lately
mentioned it, and because Naevius is always harping on it, that Naevius
was contending on equal terms with Alphenus, at such a time, and with
such magistrates? And if I were willing to admit that, they will, I suppose,
grant this, that it is not the case that no one was the agent of Publius
Quinctius, but that he had one who was popular. But it is quite sufficient
for me to prove that there was an agent, with whom he could have tried
the matter. What sort of man he was, as long as he defended the man in
his absence, according to law and before the proper magistrate, I think
has nothing to do with the matter. 69. "For he was," says he,
"a man of the opposite party." No doubt; a man who had been
brought up in your house, whom you from a youth had so trained up as not
to favor anyone of eminence, not even a gladiator. If Alphenus had the
same wish as you always especially entertained, was not the contest between
you on equal terms in that matter? "Oh," says he, "he was
an intimate friend of Brutus, and therefore he interposed." You on
the other hand were an intimate friend of Burrienus, who gave an unjust
decision; and, in short, of all those men who at that time were both very
powerful with violence and wickedness, and who dared do all that they
could. Did you wish to overcome those men, who now are laboring with such
zeal that you may be victorious? Dare to say that, not openly, but to
these very men whom you have brought with you. 70. Although I am unwilling
to bring that matter up again by mentioning it, every recollection of
which I think ought to be entirely effaced and destroyed.
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XXII.
This one thing I say, if Alphenus was an influential man because of his
party zeal, Naevius was most influential; if Alphenus, relying on his
personal interest, made any rather unjust demand, Naevius demanded, and
obtained too, things much more unjust. Nor was there, as I think, any
difference between your zeal. In ability, in experience, in cunning, you
easily surpassed him. To say nothing of other things, this is sufficient:
Alphenus was ruined with those men, and for the sake of those men to whom
he was attached; you, after those men who were your friends could not
get the better, took care that those who did get the better should be
your friends. 71. But if you think you had not then the same justice as
Alphenus, because it was in his power to appeal to some one against you;
because a magistrate was found before whom the cause of Alphenus could
be fairly heard; what is Quinctius to determine on at this time?--a man
who has not as yet found any just magistrate, nor been able to procure
the customary trial [Because the matter in dispute
was really a money matter, but the praetor ordered the trial to proceed
de probro.--Hottoman]; in whose case no condition, no security,
no petition has been interposed,--I do not say a just one, but none at
all that had ever been heard of before that time. I wish to try an action
about money. You cannot. But that is the point in dispute. It does not
concern me; you must plead to a capital charge. Accuse me then, if it
must be so. No, says he, not unless you, in an unprecedented manner, first
make your defense. You must plead; the time must be fixed at our pleasure;
the judge himself shall be removed. 72. What then? Shall you be able to
find any advocate, a man of such ancient principles of duty as to despise
our splendor and influence? Lucius Philippus will be my advocate; in eloquence,
in dignity, and in honor, the most flourishing man in the state. Hortensius
will speak for me, a man eminent for his genius, and nobility, and reputation;
and other most noble and powerful men will accompany me into court, the
number and appearance of whom may alarm not only Publius Quinctius, who
is defending himself on a capital charge, but even anyone who is out of
danger. 73. This really is what an unequal contest is; not that one in
which you were skirmishing against Alphenus. You did not leave him any
place where he could make a stand against you. You must therefore either
prove that Alphenus denied he was his agent, did not tear down the bills,
and refused to go to trial; or, if all this was done, you must admit that
you did not take possession of the goods of Publius Quinctius in accordance
with the edict.
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XXIII.
If, indeed, you did take possession of the things according to the edict,
I ask you why they were not sold--why the others who were his securities
and creditors did not meet together? Was there no one to whom Quinctius
owed money? There were some, there were many such; because Gaius, his
brother, had left some amount of debt behind him. What then was the reason?
They were all men entirely strangers to him, and he owed them money, and
yet not one was found so notoriously infamous as to dare to attack the
character of Publius Quinctius in his absence. 74. There was one man,
his relation, his partner, his intimate friend, Sextus Naevius, who, though
he himself was in reality in debt to him, as if some extraordinary prize
of wickedness was proposed to him, strove with the greatest eagerness
to deprive his own relation, oppressed and ruined by his means, not only
of property which he had honestly acquired, but even of that light which
is common to all men. Where were the rest of the creditors? Even now at
this very time where are they? Who is there who says he kept out of the
way for the sake of fraud? Who is there who denies that Quinctius was
defended in his absence? Not one is found. 75. But, on the other hand,
all men who either have or have had any transactions with him are present
on his behalf, and are defending him; they are laboring that his good
faith, known in many places, may not now be disparaged by the perfidy
of Sextus Naevius. In a trial of this nature Naevius ought to have brought
some witnesses out of that body, who could say; "He forfeited his
recognizances in my case; he cheated me, he begged a day of me for the
payment of a debt which he had denied; could not get him to trial; he
kept out of the way; he left no agent;" none of all these things
is said. Witnesses are being got ready to say it. But we shall examine
into that, I suppose, when they have said it: but let them consider this
one thing, that they are of weight only so far, that they can preserve
that weight, if they also preserve the truth; if they neglect that, they
are so insignificant that all men may see that influence is of avail not
to support a lie, but only to prove the truth.
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XXIV.
76. I ask these two question. First of all, on what account Naevius did
not complete the business he had undertaken; that is, why he did not sell
the goods which he had taken possession of in accordance with the edict:
Secondly, why out of so many other creditors no one reinforced his demand;
so that you must of necessity confess that neither was any one of them
so rash, and that you yourself were unable to persevere in and accomplish
that which you had most infamously begun. What if you yourself, Sextus
Naevius, decided that the goods of Publius Quinctius had not been taken
possession of according to the edict? I conceive that your evidence, which
in a matter which did not concern yourself would be very worthless, ought
to be of the greatest weight in an affair of your own when it makes against
you. You bought the goods of Sextus Alphenus when Lucius Sulla, the dictator,
sold them. You entered Quinctius in your books as the partner in the purchase
of these goods. I say no more. Did you enter into a voluntary partnership
with that man who had cheated in a partnership to which he had succeeded
by inheritance; and did you by your own sentence approve of the man who
you thought was stripped of his character and of all his fortunes? 77.
I had fears indeed, Gaius Aquillius, that I could not stand my ground
in this cause with a mind sufficiently fortified and resolute. I though
thus, that, as Hortensius was going to speak against me, and so Philip
was going to listen to me carefully, I should through fear stumble in
many particulars. I said to Quintus Roscius here, whose sister is the
wife of Publius Quinctius, when he asked of me, and, with the greatest
earnestness, entreated me to defend his relation, that it was very difficult
for me, not only to sum up a cause against such orators, but even to attempt
to speak at all. When he pressed it more eagerly, I said to the man very
familiarly, as our friendship justified, that a man appeared to me to
have a very brazen face, who, while he was present, could attempt to use
action in speaking, but those who contended with him himself, even though
before that they seemed to have any skill or elegance, lost it, and that
I was afraid lest something of the same sort would happen to me when I
was going to speak against so great an artist.
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XXV.
78. Then Roscius said many other things with a view to encourage me, and
in truth, if he were to say nothing he would still move anyone by the
very silent affection and zeal which he felt for his relation. In truth,
as he is an artist of that sort that he alone seems worthy of being looked
at when he is on the stage, so he is also a man of such a sort that he
alone seems to deserve never to go thither. "But what," says
he, "if you have such a cause as this, that you have only to make
this plain, that there is no one in two or three days at most can walk
seven hundred miles? Will you still fear that you will not be able to
argue this point against Hortensius?" "No," says I. "But
what is that to the purpose?" 79. "In truth," said he,
"that is what the cause turns upon." "How so?" He
then explains to me an affair of that sort, and at the same time an action
of Sextus Naevius, which, if that alone were alleged, ought to be sufficient.
And I beg of you, Gaius Aquillius, and of you the assessors, that you
will attend to it carefully. You will see, in truth, that on the one side
there were engaged from the very beginning covetousness and audacity,
that on the other side truth and modesty resisted as long as they could.
You demand to be allowed to take possession of his goods according to
the edict. On what day? I wish to hear you yourself, Naevius. I want this
unheard-of action to be proved by the voice of the very man who has committed
it. Mention the day, Naevius. The twentieth of February. Right, how far
is it from hence to your estate in Gaul? I ask you, Naevius. Seven hundred
miles. Very well: Quinctius is driven off the estate. On what day? May
we hear this also from you? Why are you silent? Tell me the day, I say.--He
is ashamed to speak it. I understand; but he is ashamed too late, and
to no purpose. He is driven off the estate on the twenty-third of February,
Gaius Aquillius. Two days afterwards, or, even if anyone had set off and
run the moment he left the court, in under three days, he accomplishes
seven hundred miles. 80. O incredible thing! o inconsiderate covetousness!
O winged messenger! The agents and satellites of Sextus Naevius come from
Rome, across the Alps, among the Segusiani in two days. O happy man who
has such messengers, or rather Pegasi.
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XXVI.
Here I, even if all the Crassi were to stand forth with all the Antonies,
if you, Lucius Philippus, who flourished among those men, choose to plead
this cause, with Hortensius for your colleague, yet I must get the best
of it. For everthing does not depend, as you two think it does, on eloquence.
There is still some truth so manifest that nothing can weaken it. 81.
Did you, before you made the demand to be allowed to take possession of
his goods, send anyone to take care that the master should be driven by
force off the estate by his own slaves? Choose whichever you like; the
one is incredible; the other abominable; and both are unheard-of before
this time. Do you mean that anyone ran over seven hundred miles in two
days? Tell me. Do you deny it? Then you sent someone beforehand. I had
rather you did. For if you were to say that, you would be seen to tell
an impudent life: when you confess this, you admit that you did a thing
which you cannot conceal even by a lie. Will such a design, so covetous,
so audacious, so precipitate, be approved of by Aquillius and by such
men as he is? 82. What does this madness, what does this haste, what does
this precipitation intimate? Does it not prove violence? does it not prove
wickedness? does it not prove robbery? does it not, in short, prove everything
rather than right, than duty, or than modesty? You send someone without
the command of the praetor. With what intention? You knew he would order
it. What then? When he had ordered it, could you not have sent then? You
were about to ask him. When? Thirty days after. Yes, if nothing hindered
you; if the same intention existed; if you were well; in short, if you
were alive. The praetor would have made the order, I suppose, if he chose,
if he was well, if he was in court, if no one objected, by giving security
according to his decree, and by being willing to stand a trial. 83. For,
by the immortal gods, if Alphenus, the agent of Publius Quinctius, were
then willing to give security and to stand a trial, and in short to do
everything which you chose, what would you do? Would you recall him whom
you had sent into Gaul? But this man would have been already expelled
from his farm, already driven headlong from his home, already (the most
unworthy thing of all) assaulted by the hands of his own slaves, in obedience
to your messenger and command. You would, forsooth, make amends for these
things afterwards. Do you dare to speak of the life of any man, you must
admit this,--that you were so blinded by covetousness and avarice, that,
though you did not know what would happen afterwards, but many things
might happen, you placed your hope from a present crime in the uncertain
event of the future? And I say this, just as if, at that very time when
the praetor had ordered you to take possession according to his edict,
you had sent anyone to take possession, you either ought to, or could
have ejected Publius Quinctius from possession.
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XXVII.
84. Everything, Gaius Aquillius, is of such a nature that anyone may be
able to perceive that in this cause dishonesty and interest are contending
with poverty and truth. How did the praetor order you to take possession?
I suppose, in accordance with his edict. In what words was the recognizance
drawn up? "If the goods of Publius Quinctius have been taken possession
of in accordance with the praetor's edict." Let us return to the
edict. How does that enjoin you to take possession? Is there any pretence,
Gaius Aquillius, if he took possession in quite a different way from that
which the praetor enjoined, for denying that then he did not take possession
according to the edict, but that I have beaten him in the trial? None,
I imagine. Let us refer to the edict.--"They who in accordance with
my edict have come into possession." He is speaking of you, Naevius,
as you think; for you say that you came into possession according to the
edict. He defines for you what you are to do; he instructs you; he gives
you precepts. "It seems that those ought to be in possession."
How? "That which they can rightly secure in the place where they
now are, let them secure there; that which they cannot, they may carry
or lead away." What then? "It is not right," says he, "to
drive away the own against his will." The very man who with the object
of cheating is keeping out of the way, the very man who deals dishonestly
with all his creditors, he forbids to be driven off his farm against his
will. 85. As you are on your way to take possession, Sextus Naevius, the
praetor himself openly says to you--"Take possession in such manner
that Naevius may have possession at the same time with you; take possession
in such a manner that no violence may be offered to Quinctius." What?
how do you observe that? I say nothing of his not having been a man who
was keeping out of the way, of his being a man who had a house, a wife,
children, and an agent at Rome; I say nothing of all this: I say this,
that the owner was expelled from his farm; that hands were laid on their
master by his own slaves, before his own household gods; I say. . . .
[rest of chapter text
missing]
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XXVIII.
I say too that Naevius never even asked Quinctius for the money, when
he was with him, and might have sued him every day; because he preferred
that all the most perplexing modes of legal proceedings should take place,
to his own great discredit, and to the greatest danger of Publius Quinctius,
rather than allow of the simple trial about money matters which could
have been got through in one day; from which one trial he admits that
all these arose and proceeded. On which occasion I offered a condition,
if he was determined to demand the money, that Publius Quinctius should
give security to submit to the decision, if he also, if Quinctius had
any demands upon him, would submit to the like conditions. 86. I showed
how many things ought to be done before a demand was made that the goods
of a relation should be taken possession of; especially when he had at
Rome his house, his wife, his children, and an agent who was equally an
intimate friend of both. I proved that when he said the recognizances
were forfeited, there were actually no recognizances at all; that on the
day on which he says he gave him the promise, he was not even at Rome.
I promised that I would make that plain by witnesses, who both must know
the truth, and who had no reason for speaking falsely. I proved also that
it was not possible that the goods should have been taken possession of
according to the edict; because he was neither said to have kept out of
the way for the purpose of fraud, nor to have left the country in banishment.
87. The charge remains, that no one defended him at the trial. In opposition
to which I argued that he was most abundantly defended, and that not by
a man unconnected with him, nor by any slanderous or worthless person,
but by a Roman knight, his own relation and intimate friend, whom Sextus
Naevius himself had been accustomed previously to leave as his own agent.
And that even if he did appeal to the tribunes, he was not on that account
the less prepared to submit to a trial; and that Naevius had not had his
rights wrested from him by the powerful interest of the agent; that on
the other hand he was so much superior to us in interest that he now scarcely
gives us the liberty of breathing.
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XXIX.
88. I asked what the reason was why the goods had not been sold, since
they had been taken possession of according to the edict. Secondly, I
asked this also, on what account not one of so many creditors either did
the same thing then, why not one speaks against him now, but why they
are all striving for Publius Quinctius? Especially when in such a trial
the testimonies of creditors are thought exceedingly material. After that,
I employed the testimony of the adversary, who lately entered as his partner
the man who, according to the language of his present claim [Intentio
was the technical legal term for the claim made by the plaintiff],
he demonstrates was at that time not even in the number of living men.
Then I mentioned that incredible rapidity, or rather audacity of his.
I showed that it was inevitable, either that seven hundred miles had been
run over in two days, or that Sextus Naevius had sent men to take possession
many days before he demanded leave so to seize his goods. 89. After that
I recited the edict, which expressly forbade the owner to be driven off
his estate, by which it was plain that Naevius had not taken possession
according to the edict, as he confessed that Quinctius had been driven
off his farm by force. But I thoroughly proved that the goods had actually
not been taken possession of, because such a seizure of goods is looked
at not as to part, but with respect to everything which can be seized
or taken possession of. I said that he had a house a Rome which that fellow
never even made an attempt on; that he had many slaves, of which he neither
took possession of any, and did not even touch any; that there was one
whom he attempted to touch; that he was forbidden to, and that he remained
quiet. 90. You know also that Sextus Naevius never came on to the private
farms of Quinctius even in Gaul. Lastly I proved that the private servants
of Quinctius were not all driven away from that very estate which he took
possession of, having expelled his partner by force. From which, and from
all the other sayings, and actions, and thoughts of Sextus Naevius, any
one can understand that that fellow did nothing else, and is now doing
nothing, but endeavoring by violence, by injustice, and by unfair means
at this trial, to make the whole farm his own which belongs to both partners
in common.
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XXX.
91. Now that I have summed up the whole cause, the affair itself and the
magnitude of the danger, Gaius Aquillius, seem to make it necessary for
Publius Quinctius to solicit and entreat you and your colleagues, by his
old age and his desolate condition, merely to follow the dictates of your
own nature and goodness; so that as the truth is on his side, his necessitous
state may move you to pity, rather than the influence of the other party
to cruelty. 92. From the self-same day when we came before you as judge,
we began to disregard all the threats of those men, which before we were
alarmed at. If cause was to contend with cause, we were sure that we could
easily prove ours to any one; but as the course of life of the one was
to be contrasted with the course of life of the other, we thought we had
on that account even more need of you as our judge. For this is the very
point now in question, whether the rustic and unpolished economy of my
client can defend itself against the luxury and licentiousness of the
other, or whether, homely as it is, and stripped of all ornaments, it
is to be handed over naked to covetousness and wantonness. 93. Publius
Quinctius does not compare himself with you, Sextus Naevius, he does not
vie with you in riches or power. He gives up to you all the arts by which
you are great; he confesses that he does not speak elegantly; that he
is not able to say pleasant things to people; that he does not abandon
a friendship when his friend is in distress, and fly off to another which
is in flourishing circumstances; that he does not give magnificent and
splendid banquets; that he has not a house closed against modesty and
holiness, but open and as it were exposed to cupidity and debauchery;
on the other hand he says that duty, good faith, industry, and a life
which has been always austere and void of pleasure has been his choice;
he knows that the opposite course is more fashionable, and that by such
habits people have more influence. 94. What then shall be done? They have
not so much more influence, that those who, having abandoned the strict
discipline of virtuous men, have chosen rather to follow the gains and
extravagance of Gallonius [Gallonius was a crier
also, branded by Horace as notorious for extravagance and luxury],
and have even spent their lives in audacity and perfidy which were no
part of his character, should have absolute dominion over the lives and
fortunes of honorable men. If he may be allowed to live where Sextus Naevius
does not wish to, if there is room in the city for an honest man against
the will of Naevius; if Publius Quinctius may be allowed to breathe in
opposition to the nod and sovereign power of Naevius; if, under your protection,
he can preserve in opposition to the insolence of his enemy the ornaments
which he has acquired by virtue, there is hope that this unfortunate and
wretched man may at last be able to rest in peace. But if Naevius is to
have power to do everything he chooses, and if he chooses what is unlawful,
what is to be done? What God is to be appealed to? The faith of what man
can we invoke? What complaints, what lamentations can be devised adequate
to so great a calamity.
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XXXI.
95. It is a miserable thing to be despoiled of all one's fortunes; it
is more miserable still to be so unjustly. It is a bitter thing to be
circumvented by anyone, more bitter still to be so by a relation. It is
a calamitous thing to be stripped of one's goods, more calamitous still
if accompanied by disgrace. It is an intolerable injury to be slaim by
a brave and honorable man, more intolerable still to be slain by one whose
voice has been prostituted to the trade of a crier. It is an unworthy
thing to be conquered by one's equal or one's superior, more unworthy
still by one's inferior, by one lower than oneself. It is a grievous thing
to be handed over with one's goods to another, more grievous still to
be handed over to an enemy. It is a horrible thing to have to plead to
a capital charge, more horrible still to have to speak in one's own defense
before one's accuser speaks. 96. Quinctius has looked round on all sides,
has encountered every danger. He was not only unable to find a praetor
from whom he could obtain a trial, much less one from whom he could obtain
one on his own terms, but he could not even move the friends of Sextus
Naevius, at whose feet he often lay, and that for a long time, entreating
them by the immortal Gods either to contest the point with him according
to law, or at least, if they must do him injustice, to do it with ignominy.
97. Last of all he approached the haughty countenance of his very enemy;
weeping he took the hand of Sextus Naevius, well practised in advertising
the goods of his relations. He entreated him by the ashes of his dead
brother, by the name of their relationship, by his own wife and children,
to whom no one is a nearer relation than Publius Quinctius, at length
to take pity on him, to have some regard, if not for their relationship,
at least for his age, if not for a man, at least for humanity; to terminate
the matter on any conditions, as long as they were only endurable, leaving
his character unimpeached. 98. Being rejected by him, getting no assistance
from his friends, being harassed and frightened by every magistrate, he
has no one but you whom he can appeal to. To you he commends himself,
to you he commends all his property and fortunes; to you he commends his
character and his hopes for the remainder of his life. Harassed by much
contumely, suffering under many injuries, he flies to you, not unworthy
but unfortunate; driven out of a beautiful farm, with his enemies attempting
to fix every possible mark of ignominy on him, seeing his adversary the
owner of his paternal property, while he himself is unable to make up
a dowry for his marriageable daughter, he has still done nothing inconsistent
with his former life. 99. Therefore he begs this of you, Gaius Aquillius,
that he may be allowed to carry with him out of this place the character
and the probity which, now that his life is nearly come to an end, he
brought with him before your tribunal. That he, of whose virtue no one
ever doubted, may not in his sixtieth year be branded with disgrace, with
stigma, and with the most shameful ignominy; that Sextus Naevius may not
array himself in all his ornaments as spoils of victory; that it may not
be owing to you that the character, which has accompanied Publius Quinctius
to his old age, does not attend him to the tomb.
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