Cicero : Pro Cluentio

Sections 73-142

The translation is by H.G. Hodge (1927). Click on the L symbols to go to the Latin text of each section. Click on ** to go to the translator's footnotes.

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[27.] L   [73] A rumour had leaked out in court that there was a suggestion of bribery among the jurors : the whole business was neither as secret as they wanted to keep it, nor as open as, in the public interest, it should have been. In this general mystification and uncertainty Cannutius, a man of experience, who had somehow got wind of Staienus's having taken a bribe, but did not think that his plans had yet been put into effect, decided to have it suddenly announced : "The pleadings are finished." At this juncture Oppianicus did not feel any very great anxiety, for he thought Staienus had carried through his plan. [74] Thirty-two jurors were to consider the verdict; acquittal could be secured by sixteen votes. ** That number of votes should be secured by the distribution to each juror of 40,000 sesterces, with the expectation that Staienus would be led by the hope of larger profits to crown the total with the addition of his own, the seventeenth vote. Now it so fell out, because Cannutius had acted suddenly, that Staienus himself was not present in court (he was defending some suit before an arbitrator). Habitus was indifferent enough to his absence and so was Cannutius; but not so Oppianicus nor his counsel, L. Quinctius, who, as a tribune of the people at the time, protested in the most abusive language to the president of the court, G. Junius, against the jury considering their verdict without Staienus ; and thinking that his absence was due to the intentional negligence of the criers, he left the criminal court and went to where Staienus was in the civil court, and by virtue of his official prerogative ordered it to adjourn: Staienus he led back to his seat himself. [75] The jurors rose to consider their verdict ; for Oppianicus had declared, as the defendant was at that time able to do, that he wished the voting to be open, in order that Staienus might know what he ought to pay each juror. The jurors were of different sorts : the venal ones among them, though not numerous, were none the less all of them incensed. Just as those who make a practice of taking bribes at elections are usually the bitterest enemies of those candidates whose money they think has not been allowed to reach them, so now those jurors, in the same circumstances, had come to vote with a prejudice against the accused : the honest jurors, while thinking him guilty indeed, none the less waited for the others whom they thought venal, to give their votes first in order that they might thereby judge by whom it was likely that the court had been bribed.

[28.] L   Lo and behold! the lot decided that Bulbus, Staienus, and Gutta should be among the first to vote: everywhere was the keenest expectancy to see what verdict these worthless and venal jurors would record ; and they all, without the slightest hesitation, voted guilty. [76] This made people feel uneasy and somewhat doubtful as to what had happened. After them came prudent jurors trained in the old style of trial, who were incapable either of acquitting a thoroughly guilty person, or of convicting at the first hearing one of whom there was any suspicion that he might be the victim of bribery, without going into the matter: they voted "Not proven." But some conscientious men who held that the motive behind any action needed examination, felt that though others were returning a true verdict only because bribed to do so, still they ought none the less to stand by their previous verdicts : accordingly they voted guilty. There were five persons in all who, whether from mistaken judgement, or pity, or a suspicion of foul play, or interested motives, voted your poor innocent Oppianicus not guilty.

[77] Immediately upon the conviction of Oppianicus, L. Quinctius, an ardent demagogue, whose ears were set to catch every breath of private gossip or public harangue, felt that here was a chance of using the unpopularity of the Senate for his own advancement, considering how poor a reputation with the people the Senatorial courts enjoyed at the time. He delivered several violent and impressive harangues, loudly protesting as tribune of the people, that the jurors had been bribed to condemn an innocent man : "This touches every one of us," he said. "Fair trial is a thing of the past : not a man is safe who has a rich enemy." So people who were completely ignorant of the case and had never seen Oppianicus imagined that a good citizen and a thoroughly respectable person had fallen a victim to bribery: their suspicions blazed up, and they began to call for the case to be reconsidered, and the proceedings quashed. [78] And that was just the time when Staienus came by night on the summons of Oppianicus to the house of T. Annius, a man of the highest character and a connexion and friend of my own. What followed is now a matter of common knowledge - how Oppianicus raised the question of the money and Staienus said he would repay it: how the whole conversation was overheard by trustworthy persons who had secreted themselves close by for the purpose: and how the whole plot was exposed and taken into court and Staienus forced to let go and give up all the money. [29.] L   The character of Staienus, now so notorious and so transparent, was such as to lend itself to every suspicion of dishonour. Those who attended the public meetings did not realise that he had promised to use in the interest of the accused the money which he had kept to himself, for the simple reason that they were not told. They perceived that there had been talk of bribery in the case : they heard that an innocent man had been convicted : they saw that Staienus had voted for his conviction: they concluded from what they knew of the man that he had not done so without being paid for it. The same suspicion persisted in the case of Bulbus, of Gutta, and of sundry others. [79] And so I confess - as I may now do with impunity, especially before this honourable court - that, because the very name of Oppianicus, to say nothing of his way of life, had hitherto been generally unknown ; because, further, it seemed a shameful thing that an innocent man should fall victim to bribery; and lastly, because the suspicion of bribery gained colour from the bad character of Staienus and the ill reputation of some jurors like himself ; because, moreover, the case was taken up by L. Quinctius with all the authority of his office, and all his skill in kindling the passions of a crowd : for all these reasons, I say, a high degree of resentment and odium was worked up against that trial, and I remember how the president of the court, G. Junius, was flung into the still raging furnace, and how a man who, being already an aedile, was marked out by public opinion as a coming praetor, was removed from his practice at the bar, aye, and from public life as well, not by a deliberate vote of censure, but by popular outcry.

[80] I am not sorry to be defending Cluentius in these days rather than in those, for while his case, which is not susceptible of change, remains the same, those days, so unfair, so prejudicial to it, are now past ; with the result that whatever disadvantage lay in those times can no longer harm us, whatever advantage lies in a good cause avails us still. And so I am conscious how close is the attention now not only of those to whom belongs the prerogative of judgement, but of those, too, who can only form an opinion on the case. Had I been speaking then, I should not have had the same hearing, not because my case would have been different - on the contrary, it would have been the same - but because the times were different. [30.] L   Let me give you an illustration of this : who would then have dared to say that Oppianicus was rightly convicted ? Who now dares to deny it? Who could then have shown that it was Oppianicus who corrupted the court? Who in these days can disprove it? Who was then at liberty to point out that Oppianicus had only been put on trial when already found guilty by two recent verdicts ? Who is there in these days who would try to dispute it? [81] And so - now that we are rid of prejudice, now that time has modified it, that my voice has appealed against it, that your own sense of honour and justice has banished it from an examination of the facts - what case have I still to answer ?

It is agreed that bribery was at work in the trial : the only question is, from whom did it proceed ? From the prosecutor, or from the accused? The prosecutor says: "First, the charges on which I was prosecuting were so grave as to preclude the need for bribery. Second, the man I was bringing into court was already convicted, so that bribery could have availed nothing - no, not even to save him. Lastly, even if he had been acquitted, the whole basis of my fortunes would remain unaffected." What says the accused, on the other hand? "First, the mere number and gravity of the charges filled me with apprehension. Second, I felt that the conviction of Fabricius and his accomplice, as accessories to my crime, implied my conviction also. Lastly, I had come to the point where the whole basis of my fortunes was involved in the issue of a single trial."

[82] Come, then, since Oppianicus had many weighty motives for bribing the court, and my client none, let us examine the question, whence came the actual sum expended? Cluentius has kept his accounts most scrupulously - a fact which assuredly has this advantage that no addition or subtraction could have been made to or from the family estate without its appearing. Yet for all these eight years you have been thinking over your case, investigating, discussing, examining every item relevant to it in his or other people's accounts, and all this time not a trace do you find of such expenditure on the part of Cluentius. Are we indeed to go sniffing along the trail of Oppianicus's money or cannot your own admission lead us straight to his lair? We find in one place 640,000 sesterces, and that in the hands of a brazen scoundrel, moreover a juror. What would you further? [83] "Oh," you say, "' but Staienus was instigated to bribe the court not by Oppianicus but by Cluentius." Then why were Cluentius and Cannutius ready to let him be absent when the court was to consider its verdict ? Why did not those who had given him the money insist on his being in his place when they were closing the proceedings? It was Oppianicus who insisted ; Quinctius who insisted ; it was the tribune's prerogative which prevented the consideration of the verdict without Staienus. "But Staienus voted guilty." Yes, for he had stipulated to Bulbus and the rest that he would vote guilty as a pledge to them that Oppianicus had left him in the lurch. And so, if on your side is to be found a motive for bribing the court, the money which bribed it, Staienus, and every species of dishonesty and knavery ; and on our side probity, uprightness of life, no suspicion of having bribed the court, no motive for doing so; then since the truth stands revealed and all misconception is dispelled, suffer the taint of that dishonour to be transferred to him at whose door lie those other crimes; suffer it to depart at last from him on whom you see that no guilt has ever fastened.

[31.] L   [84] But, you may say, Oppianicus gave Staienus the money not to bribe the court, but to effect a reconciliation with Cluentius. To think that you, Accius, for all your caution, for all your practice and experience, should say such a thing! Wisest, they say, is he whose own mind suggests the appropriate idea: next comes the man who accepts the good ideas of another. ** With folly the reverse is true: for he whose mind suggests to him nothing at all is less of a fool than the man who adopts the foolish suggestions of his neighbour. Your story of a reconciliation was invented by Staienus in the midst of the crisis, when he was gripped by the throat, or perhaps as rumour had it at the time, it was suggested to him by P. Cethegus. [85] For you remember that there was such a rumour at the time - to the effect that as Cethegus hated the fellow, was reluctant to see such knavery engaged in public life, and moreover realised that there was no hope of acquittal for a man who had admitted to having secretly and irregularly accepted a bribe from the accused when serving as a juror, he gave him somewhat insincere advice. If, in thus acting, Cethegus was unprincipled, I think it was that he wished to be rid of an opponent. ** But if it was the case that Staienus could not deny his acceptance of the money, whereas nothing was so damning or disgraceful as to confess the ends for which he had accepted it, no fault can be found with Cethegus's advice. [86] But your present case, Accius, has no connexion with Staienus's case in the past; he in his desperate plight might have said anything, and brought less shame on himself by saying it than by confessing the truth : but as for you, I am surprised that you have now revived that old farce which was then hissed and hooted off the stage. How was it at that time possible for Cluentius to be reconciled to Oppianicus? Or how with his mother? Their names were down in black and white on the public records as defendant and prosecutor: Fabricius and his accomplice had been convicted : Albius could not have escaped though another prosecuted, nor could Cluentius have relinquished the prosecution without being branded as a false accuser.

[32.] L   [87] Or was it to secure the collusion ** of Cluentius? That too is an act of judicial corruption. But what need, for such a purpose, of a juror as go-between? Why, indeed, should the whole alleged transaction have been conducted through the agency of Staienus, a dirty scoundrel who had nothing to do with either party, and not through some honest man, a friend and connexion of both? But why do I labour my point as if there were any doubt about it, when the actual sum employed shows us by its figures and its total not only the amount but its purpose? I depose that, to secure the acquittal of Oppianicus sixteen jurors would have had to be bribed : 640,000 sesterces were paid to Staienus. If, as you maintain, it was to effect a reconciliation, what is the point of the odd forty thousand? If, as I maintain, it was to give each of the sixteen jurors forty thousand a-piece, Archimedes ** himself could not have worked out the amount better.

[88] But, you may say, the result of many previous trials has proved that Cluentius bribed the court. Far from it: before to-day your contention has never come before a court as a direct issue. Much as the case has been discussed, long as it has been canvassed, this is the first day on which it has been defended, the first on which truth, emboldened by this honourable court, has raised her voice to answer prejudice. But as for those many previous trials, what do they amount to? I have fortified myself for every issue, and am prepared to show that of the trials which followed that of Oppianicus, and are said to bear upon it, some were more like a landslide or a hurricane than a trial or an investigation : some are in no wise prejudicial to Habitus, others actually support him ; while others again were never spoken or thought of as trials. [89] At this point I ask you, gentlemen, rather for form's sake than because you are not likely to do so without being asked, to give me your careful attention while I deal with these trials one by one.

[33.] L   There is the conviction of G. Junius, who had presided at the original trial ; and further, if you please, his conviction actually took place during his term of presidency. The tribune, so far from granting any special indulgence to his case, showed none even to the law. ** Precisely at a time when it was unlawful for him to withdraw from court for any other public duty, he was himself haled away to court. To what court indeed? I ask you because I am encouraged by the expression of your faces to hope that I may now speak freely of what I had thought I must suppress.

[90] Was it, I ask, a court, an investigation, a trial? I shall suppose that it was. Let any member of that excited mob - and the mob was deferred to in those days - tell me on what charge Junius stood his trial. Ask whom you will his reply will be: "On the charge of accepting a bribe and compassing the ruin of an innocent man." That is what people think. But had it been so, he ought to have been prosecuted under the same statute ** as Habitus is now. But Junius presided over the court administering that statute. Quinctius should have waited a few days ; but he was anxious to conduct his prosecution before either he resigned office or the popular prejudice subsided. And so you see that the prosecutor relied entirely, not on the merits of his case, but on its circumstances, and on his own prerogative. [91] He demanded a fine - under what statute ? - because, if you please, Junius had omitted to take the official oath, though that has never been held criminal in anyone, and also because the record of the City Praetor, the moral and scrupulous G. Verres, ** which was produced, full of erasures, at the trial, contained no note of his having filled up a vacancy among the jurors. ** Such were the reasons, gentlemen, trivial and unsubstantial as they were, which led to the conviction of G. Junius, reason: which ought never to have been admitted before the court. And his downfall was due not to the facts, but to the circumstances, of his case.

[34.] L   [92] Ought this trial, think you, to reflect on Cluentius? Why should it? If Junius was irregular in the filling up of vacancies, or if he had at any time omitted to take any official oath, did his conviction imply any sentence on Cluentius ? "No," says my opponent, "but the reason for his conviction under those statutes was an offence committed against another statute." Can those who admit this possibly maintain that his trial was deserving of the name? "Well, then," he goes on, "the reason for the ill-feeling in Rome against G. Junius was the belief that the corruption of the court at Oppianicus's trial had been effected through him." Has the case, then, changed since those days? Are the facts of the case, the motive of the trial, the nature of the whole proceeding different now from what they were then? I hold that of the actual facts of the case no single item can have changed. [93] Whence comes it, then, that my case is being heard in such deep silence now, whereas Junius then was deprived even of the chance of defending himself? The reason is that then the case was wholly at the mercy of prejudice, misunderstanding, suspicion, and the spirit of lawlessness and tumult which daily animated the mass meetings. The accuser was a tribune of the people: whether on the platform or before the court, a tribune still; and he came into court straight from his mass meeting - nay, he brought it with him. The Aurelian steps yonder ** - they were new then - might have been built to serve as an auditorium for the case : and when the accuser had filed them with an excited crowd, there was no possibility of speaking for the accused ; nor even of rising to speak. [94] Not long ago, in the court presided over by my colleague, G. Orchivius, ** the judges refused to give a place on the case-list to the case of Faustus Sulla ** who was being tried for retaining surplus public funds; not that they thought Sulla above the law, or considered public funds a trifle beneath their consideration; but because they thought that, with a tribune conducting the prosecution, both sides could not be on an equal footing in the discussion of the case. What comparison shall I draw? Shall I compare Sulla with Junius, or that tribune with Quinctius, or indeed the one occasion with the other? Sulla was a man of great wealth, with many relations, connexions, friends, and dependants. Junius possessed these advantages only to a small and inconsiderable extent, and it was by his own efforts that they had been gained and collected. The tribune in Sulla's case was a quiet, respectable man ; far from being prone to lawlessness, he was its enemy in others; whereas in Junius's case, the tribune was a sour, scurrilous fellow, a mob-orator and a fire-brand. That occasion was quiet and peaceable, the other was disturbed by all the storms of prejudice. Despite all this, the jurors in Faustus's case decided none the less that the accused was at a disadvantage in pleading his case, because his adversary, in addition to his legal rights as an accuser, had on his side all the force of his authority as a tribune.

[35.] L   [95] To this consideration then, gentlemen, it is your duty, as wise jurors, to give your careful attention, and to realise completely all the harm, all the danger to which every one of us may be exposed by the violence of the tribunate, especially in the heat of prejudice and the excitement of a lawless assembly. Why, even in the best of times, when men thought to shield themselves not by posing as popular champions, but by a life of honour and integrity, neither P. Popilius nor Q. Metellus, ** distinguished men though they were, was able to resist a tribune's violence. How much less at a time like the present, with such morals and such magistrates, could we find safety, if it were not for your wisdom and the redress provided by your courts ?

[96] That was no semblance of a trial, gentlemen, no semblance, I say : for in it no limits were observed, no traditional usage followed, nor any defence made. It was mere violence - an avalanche, a hurricane, as I have often said before - anything, in fact, but a trial, a discussion, or a legal inquiry. But if there be anyone who thinks that trial a judicial proceeding, and considers its verdict binding as a judicial decision, he ought none the less to make a distinction between that case and this. In Junius's case it was proposed that he be fined, as we are told, either for his failure to take the official oath, or for his irregularity in filling a vacancy on the jury. But the case of Cluentius can in no way be connected with those statutes under which it was proposed to fine Junius.

[97] "But," I shall be told, "Bulbus also was convicted." Yes, and you should add, "For treason," ** that you may realise that my client's trial has no connexion with his. "But the charge in the present case was also brought up against Bulbus." I admit it: but it was also made plain by the correspondence of G. Cosconius and the evidence of many witnesses that Bulbus had tampered with a legion in Illyricum, that being the charge that was proper to that court's jurisdiction and those the facts which brought him within the law of treason. "But it was the other point which told most heavily against him." Now you are coming to mere guess-work ; and if guessing is allowed, perhaps you will find my inference far nearer the truth. For in my opinion the reason why Bulbus was so easily condemned was that he was a worthless and iniquitous scoundrel, and was already defiled with many a crime when he came into court. Out of the whole case against Bulbus you choose to select the point that suits your case, and then say that it was that point which was responsible for the verdict.

[36.] L   [98] And so there was no more reason to consider the trial of Bulbus as reflecting on the present case, than the trials respectively of P. Popilius and Ti. Gutta which were quoted by the prosecution. They were tried for corrupt practice, ** and were accused by men who had themselves been condemned for corrupt practice. And I hold that the reason why their accusers were restored to their full rights was not that they had revealed the guilt of Popilius and Gutta in taking a bribe for their verdicts, but because they proved to the court that they were entitled to the legal reward ** as having exposed in others the same guilt as had proved their own undoing. Wherefore I hold it indisputable that this conviction for corrupt practice can in no way be connected with the case of Cluentius, and the jurisdiction of your court.

[99] What of the fact that Staienus was condemned ? I forbear to mention here, gentlemen - though I rather think I ought to mention it - that he was condemned for treason. I forbear to read out the evidence against him of trustworthy witnesses who served under the distinguished Mamilius Aemilius as generals, praefects, and military tribunes ; whose evidence revealed that it was he who as quaestor was chiefly responsible for exciting the army to mutiny. I even forbear to read out the evidence which was given of the 600,000 sesterces which he took for services to be rendered at Safinius's trial, and then, as afterwards at Oppianicus's trial, quietly kept the money for himself.

[100] This, and much more evidence against Staienus at that trial, I pass over : what I do say is, that those two honourable and eloquent Roman knights, Publius and Lucius Cominius, had precisely the same contention in those days against Staienus whom they were accusing, as I have to-day against Accius. The Cominii maintained, as I do now, that Staienus took money from Oppianicus to bribe the court, while Staienus says he took it to effect a reconciliation. [101] The court laughed at his talking thus of reconciliation, and posing as an honest man, as he had done in the matter of the gilt statues which he erected in the Temple of Juturna, ** with an inscription at the foot recording the kings whom he had restored to friendship with Rome. Then were all his sharp practices and impostures driven from cover, disclosing a whole lifetime devoted to such pursuits ; his private lack of means was brought to light, and his source of income from the courts ; but his pose as the paid agent of peace and goodwill carried no conviction, with the result that Staienus, when answering the same charge as Accius is now, was found guilty. [102] The Cominii, taking the same line as I have been taking all through the case, made good their charge. Wherefore, if the condemnation of Staienus amounted to a judicial decision that Oppianicus intended to bribe the court, and that he gave a bribe to a juror for the purchase of votes ; and if (since it is agreed that either Cluentius or Oppianicus was guilty of so doing) no trace can be found of Cluentius having given any money to a juror, while the money given by Oppianicus was recovered from a juror after the trial was over; then what possible doubt is there that Staienus's condemnation, so far from telling against Cluentius, provides abundant confirmation of my case and of my defence ?

[37.] L   [103] So far, then, my view of the trial of Junius is this - that it should be styled an assault of anarchy, a piece of mob-violence, a tribunician outrage rather than a trial. But should anyone style it a trial, he must needs admit that the fine which was claimed from Junius can by no manner of possibility be connected with my client's case. Junius's case, then, was the outcome of violence: those of Bulbus, Popilius, and Gutta do not tell against Cluentius; while that of Staienus positively tells in his support. Let us see if any other case can possibly be brought forward in support of Cluentius.

Was not G. Fidiculanius Falcula, ** who had voted for Oppianicus's condemnation, made to stand on his defence, and that though he had only sat for a few days as a substitute, a fact which excited much prejudice against him at that trial? As a matter of fact, he was tried twice : for L. Quinctius, with the lawless and unruly mass-meetings which he held daily, had excited a violent prejudice against him. At one trial an attempt was made to get him fined, like Junius, because he had taken his seat unlawfully when it was not the turn of his panel to do so. He was accused at a somewhat quieter time than was Junius but under much the same statute and on much the same charge ; and because no part was played at his trial by lawlessness, violence, or disorder, he was easily acquitted at the first hearing. But I waive this acquittal ; for it is still possible that though he was not fined on that occasion, he did take a bribe for his verdict. (On the charge of bribery Staienus was nowhere formally tried, such a charge not being proper to the jurisdiction of that court.) [104] What was Fidiculanius alleged to have done? To have accepted 400,000 sesterces from Cluentius. To what order did he belong? The senatorial. He was accused under the statute by which a senator is usually brought to book in such a case, the Statute of Extortion, ** and was honourably acquitted; for the case was conducted in the good old style, without violence, intimidation, or peril; every point was set forth, argued, and proved. The court was led to conclude not only that a man who had not sat through the whole trial might have acted honourably in voting for conviction, but that this particular man, when sitting as a judge, even though he had no knowledge of anything but the previous judgements admittedly outstanding against Oppianicus, was not bound to hear any further evidence.

[38.] L   [105] At that time even the famous five, ** who being out to catch the idle plaudits of the ignorant, had voted for Oppianicus's acquittal, had come to be extremely loth to hear their clemency praised. Had they been asked whether they had sat as jurors at the trial of G. Fabricius they would have said yes ; if questioned as to whether any other charge was brought against him than the alleged attempt to poison Habitus, they would have said no. Had they been asked what their verdict was, they would have replied that they voted guilty ; for not a vote was cast for acquittal. Had the same questions been asked them about Scamander's case, they would assuredly have given the same answers: he indeed secured a single vote for his acquittal, but this single vote none of the famous five would at that time admit to have been his own. [106] Which, then, would find it easier to give an account of his verdict, the man who says: "I was true to myself and to my verdict," or the man who answers: "I showed clemency to the principal in a crime, but great severity to his abettors and accomplices" ? It is not my business to argue about the way they voted: in the case of men such as they, I doubt not it was some sudden suspicion which made them abandon their previous position. And so, while I find no fault with the clemency of those who voted for acquittal, I approve the constancy of those who, of their own free will and uninfluenced by Staienus, in passing judgement stood by the judgements they had passed already ; and I applaud the prudence of those who voted "Not proven," who were unable to acquit a man whose extreme guilt they knew and whom they had twice condemned already, and preferred, considering the scandalous plot which had been rumoured and the horrible suspicion which had arisen, to postpone their condemnation a little till everything should be made clear.

[107] And now, that you may not merely infer their wisdom from what they did but may judge from their characters also that what they did was rightly and wisely done, whom, I ask you, can you call to mind more gifted by nature, more versed in law, more careful or more scrupulous in honour, faith, and duty than P. Octavius Balbus? He did not vote for acquittal. Whom more consistent than Q. Considius? Whom more experienced in trials and in the gravity which should mark the proceedings in a public trial? Whose character, whose judgement, and whose authority are more distinguished ? Not even he was for acquittal. Time does not permit me to describe the qualities of each of them in turn ; these qualities, known as they are to all, need no embellishment of words. Think of a man like M. Juventius Peto, one of the good old school of jurors ; think of a man like L. Caulus Mergus, or M. Basilus, or G. Caudinus! All of them men the day of whose greatness at the bar coincided with the great days of the Republic. To the same category belong L. Cassius and Gn. Heius, their peers in honour and in wisdom. Of these not one voted for Oppianicus's acquittal. And among them too was P. Saturius, junior to them all in years, but the equal in ability, in earnestness, and in devotion to duty of those I have already mentioned. [108] A wondrous innocent indeed was Oppianicus, the prisoner at whose trial those who were for acquittal are thought interested, those for postponing judgement, cautious, those for conviction, consistent !

[39.] L   At the time, through the action of Quinctius all this was not pointed out either on the platform or in court. For Quinctius himself allowed no mention of it, and the excitement of the mob made it impossible for a speaker to stand his ground. And so, the ruin of Junius accomplished, Quinctius let the whole case drop. For a few days afterwards he himself went out of office, and realised, moreover, that the heat of popular feeling had abated. But had he chosen to accuse Fidiculanius during the days which he spent in accusing Junius, Fidiculanius would have had no chance to make a reply : and indeed he began by threatening all the jurors who had voted for Oppianicus's conviction. [109] Now you had cause to know the fellow's insolence ; you knew his pride and the airs he gave himself as a tribune. By Heaven! how insufferable he was, and how haughty ! How greatly he overrated himself; how tedious and unendurable was his conceit! Why, his one grievance, from which all the rest of the story followed, was that Oppianicus had not been acquitted as a compliment to himself and to his conduct of the defence: as if it should not have been evidence enough that everyone had abandoned Oppianicus when he betook himself to such an advocate. For there were any number of advocates at Rome, men of eloquence and standing, one of whom assuredly would have defended a Roman knight of high position in his native place, if he had thought the defence of such a case consistent with his honour.

[40.] L   [110] For as to Quinctius, what case had he ever undertaken before in the fifty years that he had lived ? Who had ever seen him in the capacity of a witness to character or a legal adviser, not to say a pleader? He had indeed, since the rostra had long been unoccupied, nor had a tribune's voice been heard from that place since the coming of Sulla, ** seized upon it and recalled the populace, now long unused to public meetings, to a semblance of its former practice, thus being enabled to win, with a certain class of people, some measure of temporary popularity. But subsequently how he came to be hated even by his own followers on whose backs he had climbed to a higher place! Nor did their hatred wrong him: [111] for do but recall his manners and his arrogance, yes, and even his expression and his clothes, and that purple robe he wore right down to his heels. He then, as if it were not to be borne that he should leave the court defeated, carried the case from the bench to the platform. And after this, do we often lament that our state has too little to offer to a self-made man? ** Never, I maintain, has a state offered so much as does ours, wherein if a man of humble birth shows in his life a character such as to support the high standing which rank confers, his advancement is dependent only on hard work and a blameless record. [112] Indeed a man who has nothing but humble birth to support him often goes further than he would, had he the same defects though born of high degree. Suppose that Quinctius (to take no other example) had been of noble birth, who could have put up with his haughtiness, his unbearable presumption? His birth being what it was, people did endure him to the extent of thinking that any good points with which nature might have endowed him ought to count in his favour ; while his haughtiness and conceit appeared, in a man of his humble origin, more ridiculous than dangerous.

[41.] L   But to resume : on the occasion of Falcula's acquittal, what do you imagine to have been proved by the verdict, you who are so fond of quoting verdicts? "Assuredly, that he had not sold his vote." [113] And yet he voted for conviction : and yet he had not sat through the whole case ; and yet at public meetings he was assailed by Quinctius, furiously and often. Then all those trials, Quinctius's work, were the fruits of injustice, lies, violence, demagogy, and insurrection. "Very good," you say, "Falcula may have been innocent." The conclusion is then that someone voted against Oppianicus without being bribed ; that Junius did not fill up vacancies with men who would take a bribe to vote against Oppianicus ; and that we may suppose someone to have voted honestly against him without having sat through the whole case. But if Falcula is innocent, what juror, I ask, can be guilty ? If he did not take a bribe to vote guilty, who did? I deny that a single charge was brought against any one of the jurors that was not brought against Fidiculanius, or that there existed a single feature in Fidiculanius's case which did not exist in theirs also. [114] You, then, who rested the case for the prosecution on judicial decisions, are bound either to find fault with their decision in this case or, if you will allow that it was a right one, to admit that the conviction of Oppianicus was not due to bribery.

However, this should need no better proof than the fact that after the acquittal of Falcula, not one of his fellow-jurors was put on trial. What, I ask you, is the use of quoting their convictions for giving bribes under a different statute on a definite charge and on the evidence of many witnesses? In the first place, those jurors should have been charged with taking, not with giving bribes. For if the taking of bribes told against them when on trial for giving bribes, which comes under a different statute, it would manifestly have told against them still more if they had been put on trial under the statute proper to the offence in question. [115] And, second, if this charge of yours was so forceful that under what statute soever any of those jurors was put on trial, this was still the charge which gave the coup de gráce, why were not all the jurors put on trial when their accusers were so many and the inducements so great ?

At this point I am reminded that, at the assessment of penalty ** - a proceeding which should not be termed judicial - Publius Septimus Scaevola was penalised on the score of corrupt practice. It is not for me to deal at length with the nature of this proceeding, as I am addressing gentlemen of such experience : but the care which is customary in trials generally is never displayed when once the verdict of guilty has been given. [116] At an assessment of penalty, I might almost say that jurors either refuse to sanction the demand for an assessment involving the civil status of the prisoner because they think that they have made him their personal enemy by their act in finding him guilty ; or else, imagining their duty to be over as soon as they have given their verdict, they pay a somewhat scant attention to the subsequent proceedings. Accordingly ** many persons have been acquitted of treason whose penalty, after their conviction for corrupt practice, was assessed under the head of treason ; and again, we see as a daily occurrence the spectacle of a court acquitting the very persons to whom, in the assessment following a conviction for corrupt practice, the same court adjudged that the moneys had passed. Such occurrences amount, not to the quashing of a judicial proceeding, but to the pronouncement that an assessment of penalty is not a judicial proceeding. Scaevola was found guilty of other charges on the evidence of numerous witnesses from Apulia. The utmost effort was made to secure that his penalty be assessed at the loss of civil status : if the assessment had had the weight of a judicial proceeding, he would afterwards have been put on trial - whether through the enmity of the same persons or of others - under this very statute. **

[42.] L   [117] Next comes what my opponents term a judicial proceeding, though our forefathers never gave it that name, nor did they respect it as such - namely, the imposition by the censors of their official stigma. ** But before I begin to deal with this point, I must first say a few words about the claims that there are upon me, in order that you may realise that I have maintained a proper regard at once for the needs of my client and for the claims involved by my friendship with others as well. For I am on friendly terms with both those excellent men who were our last censors, and with one of them, as most of you know, I enjoy a friendship and an intimacy based on our mutual good offices. [118] And so, whatever I may have to say about their endorsements, I shall say it with the desire to make you feel that my every word bears not upon their actions, but upon the censorial system. As for Lentulus, ** my friend, whom I name in all honour to his noble character and to the high offices with which he has been invested by the Roman people, he will readily allow me to draw upon that fund of loyalty and care, yes, and of strong feeling and free speech with which he is always ready to support his friends at need, exactly as much as I cannot fail to do if I am not to betray the needs of my client. None the less, as is only right, I shall speak throughout with caution and reserve that I may not be found either to have neglected my duty to him whom I am defending or in any instance to have wounded reputation or violated friendship.

[119] Now I observe, gentlemen, that the censors imposed their stigma on certain of the jurors who served in the trial before Junius, endorsing it with the very reason alleged by the prosecution. Here I will first lay down the general proposition that our state has never assigned the same weight to a censorial stigma as to a judicial decision ; and without wasting time over a matter of common knowledge, I will merely illustrate it with a single example. G. Geta was himself made censor after having been degraded from the senate by the censors L. Metellus and Gn. Domitius; so that one whose morals had been stigmatised by the censors came to supervise the morals of the Roman people including those who had stigmatised himself. But if the stigma were regarded as a judicial decision then no one who had been branded by the censors with ignominy could hope to obtain office or be restored to the senate, just as men who have been condemned by a judicial decision involving infamy are debarred for all time from office and honours. [120] But the fact is that while a man found guilty of theft at the instance of a freedman of Gn. Lentulus or L. Gellius will be deprived of every civil privilege and will never recover his honour in any particular, yet those whom our two learned and distinguished censors L. Gellius and Gn. Lentulus themselves branded by name for theft and the acceptance of bribes were not only restored to the senate but actually acquitted by the courts dealing with those very offences.

[43.] L   It was the intention of our forefathers that no one should act as a judge in a question involving, I do not say a man's reputation, but even his slightest pecuniary interest, unless the disputants agreed to accept him. That is why in all statutes which contain clauses specifying the reasons which disqualify a man from holding public office, serving as a juror, or initiating a prosecution, the reason we are discussing, namely, ignominy, is never mentioned ; because our forefathers intended to invest the censor's office with the power of inspiring fear, not of punishing for life. [121] And so I will proceed to show that the endorsements of the censors have again and again been annulled, not merely as you already realise, by the elections of the Roman people, but by the judicial decisions of those who, being on their oath, were bound to use the more scrupulous vigilance in their pronouncements. In the first place, both senators and knights of Rome have followed the dictates of their own conscience rather than the opinion of the censors when serving as jurors, as they have often served, at the trial of men whose names had been branded as having broken the law by accepting bribes. Next, the city praetors, who are bound by oath to place the names of the best citizens on the list of selected jurors, have never felt that the ignominy inflicted by the censors ought to limit their selection. [122] And lastly, the censors themselves have time after time thrown over the verdicts - if you wish to call them such - of their predecessors. So little importance indeed do the censors themselves attach to each other's verdicts that one will not only arraign but even annul his colleague's verdict : one will propose to degrade a man from the senate, while the other keeps him there, and holds him worthy of the most honourable rank. One orders him to be degraded or expelled from his tribe, ** the other forbids it. How then can it occur to you to give the name of verdict to decisions which you see annulled by the people, rejected by sworn jurors, passed over by magistrates, altered by successive wielders of the censor's power, a subject of variance between those who wield it jointly ?

[44.] L   [123] This being so, let us see what actual "verdict" the censors are alleged to have passed on the corruption of that court. And let us first decide whether it is true because the censors so framed their endorsement, or whether they so framed it because it was true. If the former be the case, take heed what you are about ; or you will be entrusting to future censors a tyrant's power over every one of us; the censor's endorsement will prove as great a source of calamity to our citizens as those cruel proscriptions ** ; and the censor's pencil, whose point our forefathers took so many precautions to blunt, will hereafter inspire us with as much terror as did once the dictator's. [124] But if, on the other hand, the endorsement, because it is true, ought to have great weight, let us ask the question: " Is it true or false? " Put on one side the censorial pronouncements ; remove from the case all that does not belong to it; tell us what bribe Cluentius gave, where he got it, how he used it ; show us, in fact, any trace of bribery on Cluentius's part. Convince us next that Oppianicus was an honest man with not a stain upon his character ; that no one ever thought him otherwise ; that there was no verdict outstanding against him. Then and not till then may you cling to the pronouncements of the censors, and maintain that their verdict has some connexion with the facts at issue. [125] But so long as it is an established fact that Oppianicus was the man who was convicted of falsifying with his own hand the public records of his town, who forged a will, who by fraudulent impersonation secured the seals and signatures of witnesses to a sham will, who murdered the man in whose name it had been signed and sealed, who put to death his own son's uncle when a slave and a captive, who secured the proscription and death of his own fellow townsmen, who killed his brother and then married his widow, who gave a bribe to procure abortion, who murdered his mother-in-law, murdered his wives, murdered at one and the same time his brother's wife, her expected children and his brother himself, and finally murdered his own children; who, intending to give poison to his step-son, was taken in the act, and when haled to judgement after the conviction of his abettors and accomplices bribed a juror to tamper with the jurors' votes - so long, I say, as these facts are established against Oppianicus, and the charge of corruption against Cluentius is supported by no single proof, in what conceivable way can this, the whim or the opinion of the censors, whichever it was, avail to assist you, or to work the ruin of my innocent client ?

[45.] L   [126] What was it then that influenced the censors? They themselves will not say - to put the case at its strongest - that it was anything more than common talk and rumour, or that they had learned anything from oral evidence or documents or any valid proof, or that their conclusion was in fact based on any hearing of the case. And even had it been otherwise, that conclusion still ought not to be so firmly planted as not to allow of its being uprooted. I will not quote a number of cases to prove this, though a large number exists, nor will I adduce one that is out of date, nor that of some powerful person or popular favourite. Only lately I was pleading the cause of D. Matrinius, a humble aedile's clerk, before the praetors M. Junius and Q. Publicius and the curule aediles M. Plaetorius and G. Flaminius: and I finally persuaded them, on their oath as they were, to appoint as clerk a man whom those same censors of yours had stated in their endorsement that they had degraded to the lowest class. ** For since no fault was to be found with him, it was his deserts and not any pronouncement that had been made about him, which they felt they ought to investigate. [127] And, further, as to this "corrupt judgement" mentioned in their endorsement, who believes that their own was duly considered, or based on adequate investigation ? I see that the endorsement was made against M'. Aquilius and Ti. Gutta. ** What does that tell us? Supposing they say that two jurors only were bribed, then the others, I suppose, took no bribe for their verdict of "guilty." Then Oppianicus was not the victim of intrigue and bribery ; nor are all those who voted for his conviction to be looked on, as Quinctius maintained at those meetings of his, with disapproval and suspicion ; for I observe that two jurors only were held by the official pronouncement of the censors to be implicated in that scandal. Or else let them allege that the had discovered against those two something whic they had not discovered against the others.

[46.] L   [128] For it is utterly impossible to admit the plea that in the official imposition of the stigma the censors followed the analogy of military usage. Our forefathers decided that ifa any gross breach of military discipline was committed by a number of persons, it should be visited on certain individuals after the drawing of lots, with the object, clearly, that the warning might be felt by all, the punishment by a few. But what justification is there for the censors doing the same, whether in elevating to high rank, or in passing judgement on a citizen or in punishing a wrongdoer? For a soldier who has deserted his post, or shown cowardice before the furious onset of the enemy, may still turn out a better soldier, an honest man, and a good citizen. And so, when a soldier had failed in his duty in war through fear of the enemy, a still stronger fear was put before him by our forefathers' enactment - the fear of punishment and death; but to prevent too many paying the penalty with their lives, they devised this drawing of lots. [129] And do you propose to do the same when making up the list of the senate in your capacity as censor? Should there be several who have taken a bribe to condemn the innocent, will you, instead of visiting the crime on all, choose at your pleasure and elect for degradation a few out of many? Shall the senate then, to your knowledge and before your eyes, retain one single member, the Roman people a single juror, the state a single citizen who has compassed the ruin of the innocent by selling his honour and his oath, and who has not suffered ignominy for it? And shall the man who, for money's sake, robbed an innocent citizen of his country, his fortunes, and his children, shall he, I say, not be branded with the stigma of the censor's stern displeasure ? Or shall the measure of punishment designed by our forefathers as a warning to the cowardice of a soldier in time of war, be equally applied by you to the dishonesty of a senator in time of peace ? Had this precedent, drawn from military usage, been applicable to the infliction of the censorial stigma, here too it should have been carried out by the drawing of lots. But if it is consistent with a censor's duty to ballot for punishment and to submit the conduct of criminals to the arbitrament of chance, surely it is wrong, where many have sinned, to pick and choose only a few for the infliction of ignominy.

[47.] L   [130] In point of fact we all know that these endorsements amounted to an attempt to catch the breeze of popular favour. The case was taken up at public meetings; and though it had never been heard, the same view of it was taken by the populace. No one had a chance to denounce that view ; no one in fact exerted himself to urge the opposite side. Moreover, the courts of those days ** had fallen into great unpopularity. Why, only a few months afterwards the courts further incurred extreme unpopularity over the voting-tablets having been marked ** It was felt to be impossible that this stain on the honour of the courts should be passed by unnoticed by the censors. Seeing these men under the odium of other misdeeds and all manner of dishonour, they wished to brand them further by their endorsement ; and the fact that, at this very date and during their tenure of office, the judicial function had been extended to the order of knights, made them the more anxious to let it appear that in degrading suitable persons, they were officially arraigning the courts as formerly constituted. [131] Yet had I or anyone else been permitted to plead the case before those very censors, judges as wise as they would certainly have given me the verdict. For the facts show that they knew nothing and had ascertained nothing for themselves: their whole action in making their endorsement had been a bid for notoriety and popular applause. For in the case of P. Popilius, who had voted for Oppianicus's condemnation, L. Gellius's endorsement was to the effect that he had taken a bribe to condemn the innocent. Now as for that, what a power of divination he must have had to know the innocence of a man whom he may never have seen, when men of great sagacity, jurors who had heard the case, gave a verdict of "not proven" - to say nothing of those who voted "guilty."

[132] But let that pass: Gellius finds Popilius guilty : his verdict is that he took a bribe from Cluentius. Lentulus says he did not. His reason for refusing to admit Popilius to the Senate was that his father was a freedman, though he allowed him to retain a senator's seat at the Games together with his other insignia, besides freeing him from all ignominy. In doing this, he gave his verdict that Popilius had been disinterested in voting for Oppianicus's condemnation. Moreover, Lentulus afterwards singled out this same Popilius for praise when giving evidence at a trial for bribery. Inasmuch, then, as Lentulus did not abide by the judgement of Gellius, nor was Gellius content with the opinion of Lentulus, and as neither censor thought it necessary to abide by his colleague's decision, what reason is there for any of us to suppose that censorial endorsement should in every case be unalterable and binding for all time ?

[48.] L   [133] But I am told they censored Habitus himself. Yes, but for nothing that was disgraceful, for no act in the course of his whole life that was, I will not say wrong, but even regrettable. For no one could possibly be purer than my client, or more honourable, or more scrupulous in the observance of every duty. Nor did the censors deny this; they merely followed the original rumour about the corruption of the court. It was not that they held any opinion other than we should wish concerning the honour, the blamelessness and the high character of my client, but they thought that they could not pass over the accuser after censuring the jurors. I will quote one instance from all those that the past supplies, and then will say no more on this point. [134] I feel, indeed, that I cannot fail to mention the example of the great and famous P. Africanus. ** During his term as censor he was holding the census of knights, when G. Licinius Sacerdos came forward ; whereupon, in a loud voice so as to be heard by the whole assembly, he said that he knew that Licinius had committed deliberate perjury ; and that if anyone wished to bring an accusation against him, he would give his evidence to support it. Then, as no one brought an accusation, he bade Licinius "lead past his horse." ** And so the man with whose judgement the Roman people and foreign nations had always been satisfied, was not satisfied with his personal knowledge when it came to degrading another. Could Habitus have fared thus, he would easily have held his own, even if he had had the censors as his judges, against the groundless suspicion and prejudice roused against him by a demagogue.

[135] There is a further point which troubles me greatly, an argument to which I find myself scarcely able to reply ; I mean the passage which you quote from the will of the elder Egnatius - the most honourable and intelligent of men, I need hardly say - stating that he disinherited his son for taking a bribe to secure Oppianicus's conviction. On this man's worthless and unreliable character I will not dilate: the very will which you quote has the effect of disinheriting the son whom the testator hated, and at the same time instituting absolute strangers as heirs conjointly with the son whom he loved. But as for you, Accius, I advise you to consider carefully whether you wish the judgement of the censors or that of Egnatius to carry weight. If that of Egnatius, then no weight can be attached to the censors' endorsements in other cases; for this very Gn. Egnatius, whose judgement you wish to carry weight, the censors expelled from the senate. But if that of the censors, Egnatius the younger, whose father disinherited him in the style of a censor's endorsement, was retained in the senate by the very censors who expelled his father!

[49.] L   [136] But it is urged that the senate as a body adjudged that there had been bribery at that trial. How so? "It took up the case." Could it, indeed, have refused to take notice of a matter of that kind when duly brought before it? When a tribune of the people had stirred up the populace and almost brought things to blows, when it was being said that a good citizen and an innocent man had been victimised by bribery, when the senatorial order was involved in a blaze of unpopularity, could they possibly avoid passing a resolution? Could they possibly avoid taking notice of the mob's excitement without gravely endangering the state? But what resolution did they pass? With what fitness, wisdom, and exactness it was framed. "If there have been any who have been responsible for the corruption of a public court of justice . . ." Does it appear that the senate was adjudging the corruption to have taken place, or rather expressing displeasure and concern in the event of its having taken place? If Aulus Cluentius himself had been asked for his opinion on that trial, he would have expressed the same as those by whose opinion you say he stands condemned. [137] But I ask you, did this so-called decree of the senate result in the proposal of this law of yours ** by the learned consul L. Lucullus? Was it proposed the year after by M. Lucullus and G. Cassius, to whom, as consuls-designate at the time, the senate in passing the decree looked for its execution? It was not. And what you maintain was effected by Habitus through bribery, though without the vaguest suspicion to support you, was primarily due to their just and wise conduct as consuls ; that is to say, they decided not to proceed to lay before the people a decree which had been passed by the senate to extinguish the momentary outbreak of popular feeling against it. The very public which had been goaded by the hypocritical laments of L. Quinctius into clamouring for just such a measure to be laid before them, afterwards, when affected by the tears of G. Junius's little son, assembled in an uproar to disown their desire for such an inquiry or law; [138] and this brought home the truth of what has often been remarked - that as the sea, though naturally calm, becomes rough and stormy beneath a strong wind, so is it with the Roman people; peaceable enough when left to themselves, the speech of a demagogue can rouse them like a furious gale.

[50.] L   There still remains a very weighty expression of opinion which to my shame I all but passed over - for it is ascribed to myself. Accius quoted a passage from some speech ** which he alleged to be mine, in which I urged the jurors to return an honest verdict, and specially quoted, among other unsatisfactory trials, this very trial before Junius. As if indeed I had not opened my defence on the present occasion by mentioning the unpopularity of that trial; or as if on the first occasion when dealing with the scandal attaching to the courts, I could have failed to mention what was then on every lip! [139] If in fact I really did say anything of the kind, I was not speaking of a fact within my personal knowledge nor did I say it in evidence : my speech was the outcome rather of the exigencies of the moment, than of my deliberate judgement. In my capacity as prosecutor I had made it my first object to work upon the feelings both of the public and of the jurors, and I was quoting, not from my own opinion, but from current rumour, every case that told against the courts, and I was therefore unable to pass over the case of which you speak, as it was then a matter of general notoriety. But it is the greatest possible mistake to suppose that the speeches we barristers have made in court contain our considered and certified opinions; all those speeches reflect the demands of some particular case or emergency, not the individual personality of the advocate. For if a case could speak for itself no one would employ a pleader. As it is, we are employed to express, not the conclusions warranted by our own judgement, but the deductions which can be made from the facts of the case. [140] There is a story that the brilliant M. Antonius used to say that his reason for never having written any speech was that, should he have occasion to regret anything he had said, he might be able to deny having said it : as if indeed men do not remember anything we have said or done unless we have committed it to writing ! [51.] L   For myself, I should prefer, on a point of this kind, to follow, among many other authorities, that of the eloquent and learned L. Crassus. He was defending Gn. Plancus against M. Brutus, ** a forcible and skilful speaker; and Brutus put forward two readers, causing them to read in turn contradictory passages taken from two of his speeches; in one of which when opposing a bill introduced to prevent the founding of a colony at Narbo, he did his utmost to disparage the senate; while, when supporting the statute of Servilius, ** he had praised that body in the highest terms ; and then, meaning to inflame the jurors of those days ** against Crassus, Brutus had a further passage from this speech read out in which he had made many bitter attacks upon the Roman knights. This discomforted Crassus not a little. [141] Accordingly in his reply, he first explained the requirements of the two occasions to show that his speech had been designed to suit the facts of either case ; next, in order to let Brutus see what manner of man he had provoked, and how gifted not only with eloquence but with wit and humour, he in his turn produced three readers each carrying one of the treatises on law left by M. Brutus, father of Brutus "the Prosecutor." ** They began to read the opening passages of these books which I suspect you know ; and at the words, "I happened to be at m country place at Privernum with my son Brutus," he asked after the estate at Privernum; at the words, "I was at Alba with my son Brutus," he inquired after the one at Alba; at the words, "I happened to be sitting at my place at Tibur with my son Brutus," he asked for news of the estate at Tibur, declaring that the elder Brutus, like the wise man that he was, seeing his son's extravagance, had wanted to leave a record of what property he was bequeathing to him ; and could he with propriety have written that he had been in his baths with a son of that age he would not have failed to do so. "But to find these baths," said Crassus, "I must look not in your father's books but in his accounts and in the censor's register." ** Thus did Crassus on this occasion avenge himself on Brutus, to make him sorry for what he had read out. For he may have been annoyed at being brought to book over speeches of public import in which consistency, perhaps, is more to be expected. [142] But for my part, I feel no annoyance at your having read out the passages you did, for they were inappropriate neither to their own times nor to the case in question ; and in making the remarks you quote, I incurred no such responsibility as to affect my honour or my freedom in defending this case. But if I should choose to admit that, though I have now examined the case of Aulus Cluentius, I previously shared the popular prejudice of the time, who, pray, could find fault with me for that? Especially as it is only fair that from you also, gentlemen, I should gain the request that I made to you at the beginning and now make to you again - the request that, should you have come into this court with an unfavourable impression of that trial you lay it aside now that you have come to understand the case, and to know the whole truth about it.

Following sections (143-202)


30.(↑)   If the voting were equal, the accused would be given the benefit of the doubt.

31.(↑)   The reference is to Hesiod, Op. 293.

32.(↑)   It is probable that Cethegus and Staienus were at the time rival candidates for the aedileship. See § 69.

33.(↑)   'Praevaricari' literally means to walk crookedly: hence it is used of a prosecutor who conducts his case in the interests of the other side.

34.(↑)   The great mathematician, whose tomb Cicero had discovered at Syracuse, when quaestor in Sicily, 75 B.C.

35.(↑)   The "indulgence due to the case" was a respite of ten days customarily granted to the accused in order that he might prepare his defence: that "due to the law " was the observance of the rule that a presiding judge must not be withdrawn from his court.

36.(↑)   The Lex Cornelia de sicariis.

37.(↑)   The object of Cicero's indictment, four years before, for misgovernment in Sicily.

38.(↑)   When a vacancy occurred among the jurors, it was filled by the president of the court, subject to the authority of the city praetor. As Falcula, thus appointed by Junius, voted against Oppianicus, collusion between them and Cluentius was suspected. Cicero himself had accused Verres and Junius (in Verrem, II. i. 158) of complicity.

39.(↑)   A flight of steps in the Forum supposed to have been built by and named after M. Aurelius Cotta, consul in 74 B.C., the year of Junius's trial. They led up to the Tribunal Aurelium near the Temple of Castor at the opposite end of the Forum from where Cicero was speaking. N.B. the Courts were held in the open air.

40.(↑)   Cicero's colleague in the praetorship, 66 B.C.

41.(↑)   Lucius Cornelius Sulla Faustus, son of the dictator, had inherited the vast fortune which his father was supposed to have amassed by embezzling public funds.

42.(↑)   Both went into exile when attacked by a tribune, Popilius by Gaius Gracchus in 123 and Metellus by Saturninus in 100 B.C.

43.(↑)   'Maiestas': the crime of treason consisted in "diminishing, that is, detracting from, the dignity, honour, or power of the People or of those on whom the People has conferred power." It was punished by the confiscation of all property..

44.(↑)   'Ambitus:' The Lex Calpurnia de Ambitu, embodying older legislation, was passed in 67 B.C., and punished by exclusion from the senate or any public office, or by a fine, anyone guilty of "corrupt practice" in connexion with an election. The 'praemia legis', mentioned in this section, consisted in the complete restitution (except for the fine) of any person who, having himself been convicted of "corrupt practice," secured the conviction of another for the same offence.

45.(↑)   A nymph in honour of whom there was a chapel in the Campus Martius. Nothing appears to be known about the incident except what Cicero tells us.

46.(↑)   For another and different view of Falcula's conduct see the Pro Caecina, § 28 and 29.

47.(↑)   The Lex Cornelia de Repetundis was designed by Sulla to check maladministration in the provinces by making it penal to take a bribe. It was applicable to "anyone who takes a bribe when acting as a magistrate, ruler, administrator, ambassador, or other officer, or to any member of his staff." It also contained a clause dealing with judicial corruption.

48.(↑)   See § 76.

49.(↑)   Owing to the restrictions which Sulla put on their activities in 81 B.C., and which were not completely removed till 70 B.C.

50.(↑)   A novus homo was one who, like Cicero himself, was the first of his family to hold one of the "curule" magistracies.

51.(↑)   At the "assessment of penalty," which followed on a conviction, evidence might be put in of offences committed by the prisoner, other than those for which he had just been convicted.

52.(↑)   This introduces an example, not of leniency, but of carelessness resulting in severity.

53.(↑)   Lex Cornelia de Sicariis et Veneficiis. Cluentius was prosecuted under this law passed by Sulla to deal with cases of assassination and poisoning.

54.(↑)   The Censors, as guardians of the public morals, put a "black mark" {nota, subscriptio, animadversio} against the name of anyone whom they proposed to degrade from his position as a senator, knight, or citizen.

55.(↑)   See § 120.

56.(↑)   "To place a man among the aerarii," used to imply his disfranchisement ; but since the end of the fourth century B.C. it had meant no more than 'tribu movere', to move a man from a (superior) "country" tribe into an (inferior) "urban" tribe. Both phrases, therefore, as here used by Cicero, mean to degrade him.

57.(↑)   The reference is to the proscriptions of the Dictator Sulla in 82 B.C. and to the pen which he used in writing the lists of the proscribed.

58.(↑)   See note on § 122.

59.(↑)   Jurors who voted "guilty" at the trial of Oppianicus. See ch. xxxviii.

60.(↑)   The courts were a monopoly of the senate from 81 to 70 B.C.

61.(↑)   The scandal referred to occurred at the trial for extortion of Terentius Varro in 73 B.C.: he was defended by his relative Hortensius, Cicero's rival, who had the voting-tablets marked in such a way that he could see whether the jurors he had bribed had earned their pay.

62.(↑)   Publius Scipio Africanus, the younger, censor in 142 B.C

63.(↑)   The order of knights was originally a cavalry force who had to lead their horses past the censors for inspection. The censors ordered them to "lead past" or "sell" their horses according as they were or were not satisfied with them. These phrases continued to be used at a review of the order, though they had long ago lost their literal significance.

64.(↑)   i.e. the law which should have been, but was not, proposed appointing a special commission to deal with the case.

65.(↑)   Probably Cicero's first speech against Verres; the precise reference may be to § 38-40.

66.(↑)   Nicknamed "the Prosecutor" from his love of litigation.

67.(↑)   The Lex Servilia of Caepio, B.C. 106.

68.(↑)   i.e. the knights. See footnote on § 61.

69.(↑)   See note on § 140.

70.(↑)   These were public baths, built by the elder Brutus as a speculation.

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