Cicero : Pro Cluentio

Sections 143-202

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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[52.] L   [143] I have now replied to every point which you have made about the condemnation of Oppianicus ; and you must admit, T. Accius, that you were greatly mistaken in supposing that I should base my defence of my client's case not upon its merits but upon its legal aspect. For you claimed again and again to have information that I meant to defend it by the protection afforded by the statute. ** Is that so? Am I indeed being betrayed by my friends without my knowing it, and is there one of those I counted my friends capable of carrying my plans to my opponents? Who can have given you this information? Who can have been so dishonest? Nay, to whom did I tell it myself? My belief is that no one is to blame : no doubt the statute itself was your informant ; but surely you do not think that, in conducting the defence, I have in the course of it made a single allusion to the statute or that I have conducted it otherwise than on the assumption that the statute is applicable to my client? Assuredly, so far as a man may speak with certainty, I have neglected no point which concerned the disproval of your charge so fraught with prejudice. [144] And why so? Perhaps I shall be asked whether I disapprove of taking refuge in the legal aspect of a case to avert the danger of a criminal charge. Far from it, gentlemen, but I follow my habitual practice. When engaged in the trial of a man of honour and good sense it has not been my habit merely to be guided by my own ideas : I defer also to the ideas and wishes of my client. For when this brief was brought to me, as one whose duty it was to know the statutes which we are employed to deal with and in which our work lies, I at once told Habitus that the clause beginning: "Whosoever shall have conspired to cause a man's conviction . . ." was not applicable to him, though applicable to those of my own order. He then started to beg and beseech me not to base his defence on the letter of the law. I gave him my own views, but he brought me over to his opinion ; for he protested with tears that he was not more anxious to retain his citizenship than his reputation. [145] I gave way to him; and I only did so (for we ought not to do so always) because I saw that the case was abundantly capable of being defended on its own merits without an appeal to the statute. I saw that the line of defence which I have actually adopted would be more dignified, the line my client wished me not to adopt less arduous. But had our only concern been to get a verdict, I should have read the statute aloud and then sat down.

[53.] L   Nor am I impressed by the argument employed by Accius that it is a monstrous shame that the law should be applicable to a senator who diverts the course of justice, and not applicable to a Roman knight who does the very same thing. [146] If I am to concede to you that this is a shame - and I shall consider the point presently - you must concede to me that it is a far greater shame, in a state which rests upon law, to depart from law. For law is the bond which secures these our privileges in the commonwealth, the foundation of our liberty, the fountain-head of justice. Within the law are reposed the mind and heart, the judgement and the conviction of the state. The state without law would be like the human body without mind - unable to employ the parts which are to it as sinews, blood, and limbs. The magistrates who administer the law, the jurors who interpret it - all of us in short - obey the law to the end that we may be free.

[147] What is the reason, Quintus Naso, ** that you sit there in the chair? What is the power by which you control eminent men like these jurors? And you, gentlemen, wherefore are you, so few among all the great body of citizens, selected to pass sentence on men's fortunes? By what right has Accius said what he pleased? Why am I given the opportunity to speak at this length? What, indeed, is the meaning of those clerks, of the lictors, of the other officers whom I see in attendance at this court? I take it that all this is the result of law, and that this whole trial, as I said before, is under the direction of law as of some controlling mind. Nay, more: is this the only court that is so governed? What of the Assassination Court of M. Plaetorius and G. Flaminius? Or the Embezzlement Court of G. Orchivius? Or my own, which deals with taking bribes? Or that of G. Aquilius, before whom a trial for giving bribes is now in progress? What of the courts I have not mentioned? Look round on all the departments of the commonwealth; you will find them every one under the rule and governance of the laws. [148] If anyone should propose to prosecute you in my court, T. Accius, you would loudly assert that the Statute of Bribery was not applicable to you. ** But this denial on your part would not be an admission that you had taken a bribe, but a way of escaping a trouble and a risk not imposed on you by law.

[54.] L   Now see what we are coming to, and what principle of law you would establish. The statute under which this court is set up bids the president of the court, that is, Q. Voconius, together with those jurors who have been allotted to him (meaning you, gentlemen) to try cases of poisoning. Try whom? There is no distinction made: "Whosoever has made it, sold it, bought it, had it in his possession or administered it." What does this statute straightway go on to say ? Read it: "And shall try him on a criminal charge." Whom? Him who has conspired or has combined ? Not so. What does it say, then? Tell us. "Whatsoever military tribune of the four first legions, ** whatsoever quaestor, tribune of the people" - and then are mentioned all the magistrates in succession - "or whosoever in the senate has, or shall have, given his vote." What follows? "Whosoever of them has, or shall have, conspired or combined to secure a conviction by a public court."   'Whoever of them' - whom? Of those, presumably, who are specified above. Although it is obvious how great a difference lies between the two ways of specification, the statute itself explains the point to us: where it is binding on all human beings, it speaks thus: "Whosoever has, or shall have, made a noxious drug" : men and women, freedmen and slaves, all are haled to judgement. If the intention of the law had been the same with regard to conspiracy, it would have added: "Or whosoever shall have conspired." But actually it runs as follows: "And shall try on a criminal charge him who shall have held office as a magistrate or in the senate shall have given his vote ; whosoever of these has, or shall have, conspired." [149] Does Cluentius come under this head? Assuredly not. Under what head then does Cluentius come? No matter ; for he has refused to have his case defended on a point of law. Accordingly I waive the legal aspect: I give way to Cluentius. But to you, Accius, I have an answer to make on a few points which are distinct from my client's case. For there is an aspect of this case which Cluentius thinks to be his concern; there is another aspect of it which I think to be mine. He thinks it in his interest to have his case defended on its merits and on its facts, and not on a point of law: and I consider it in my interest not to be seen yielding a single disputed point to Accius. For this is not the only case which I have to plead. These my endeavours are placed at the disposal of all who can find satisfaction in my powers of advocacy. I am unwilling that anyone of those present in court should imagine that by my silence I am assenting to Accius's statement about the statute. And so, while meeting your wishes, Cluentius, to the extent of not reading the statute - nor am I at this point speaking on your behalf - I shall not, at the same time, leave unspoken the argument which I think is expected of me.

[55.] L   [150] You think it unfair, Accius, that all men should not be bound by the same laws. Supposing, first, that I should admit this to be a great injustice ; even so the situation demands that the existing laws be altered, not that we should fail to obey them as they stand. In the second place, what senator ever refused to consider himself bound to submit to a greater strictness in the law's demands upon him, proportionate to the greater dignity of the position to which he had been raised by the favour of the Roman people? How many are the advantages which we forgo, how many the inconveniences and difficulties to which we submit! And the compensation for all these is the great honour and dignity of our position. Now apply the same conditions of life to the order of knights, and to the other orders : they will not put up with them ; for they hold that they should be less exposed to the entanglements of statutory restrictions and legal processes, inasmuch as they have either been unable to reach the highest position in the state, or have not tried to reach it. [151] Passing over all other laws by which we senators are bound while the other orders are free from them, G. Gracchus proposed this very law to deal with cases of "judicial murder." ** And he proposed it in the interests of the people, not against their interests. Now L. Sulla was anything but a friend to the popular cause ; but still, when subsequently appointing a court to deal with this matter under the very statute which you are now administering, he did not dare to inflict this new kind of court upon the Roman people whom he had found free from any such liability. Had he thought it possible to do otherwise, nothing would have pleased him so much, considering his well-known hatred of the order of knights, as to concentrate in this one court all the venom of his proscription as he visited it on the former jurors. ** [152] The single aim and object of this (believe me, gentlemen, and look the danger in the face) is the extension of liability under this statute to include the order of knights. This aim is not shared by all senators but only by a few. For those who have a ready protection in their own uprightness and innocence (as may truthfully be said of you and of all whose lives are innocent of party spirit) are anxious that the order of knights should occupy a position second only to that of their own order and most firmly allied to it by the bond of unanimity. But those who wish to see all power reposed in themselves and none at all in any other person or order think that they will bring the Roman knights under subjection to themselves merely by the threat involved in the decision that those who have served as jurors are liable to a prosecution like the present one. For they see that the authority of this order is gaining in strength, and its administration of the courts in popularity : by exposing you to this menace they are confident that they can take the sting out of your strictness. [153] For who would dare truly and courageously to pass sentence on a man possessed of even slightly greater resources than himself, when he saw that he must stand his trial on a charge of combination or conspiracy ?

[56.] L   What courage they showed, those Roman knights who resisted the distinguished and powerful tribune of the people, M. Drusus, ** when, backed by the entire aristocracy of those days, his one aim was to bring to trial before courts of this kind those who had acted as jurors! Then did not G. Flavius Pusio, Gn. Titinius, and G. Maecenas, the flower of the Roman people, and others of their order, suppose, as Cluentius does now, that their protest exposed them to some degree of blame: they openly fought the measures, protesting against them and saying courageously and honourably before all, that if they had chosen to concentrate all their ambition upon the pursuit of honours, they might have reached the highest position in the state by the award of the Roman people. "We have seen," they said, "the magnificence, the privilege and the distinction attaching to a senator's life. These we have not despised ; but satisfied with our own order, which was our fathers' too, we have preferred to pursue the life it offers in peace and quiet, sheltered from the storms of popular prejudice and from legal actions such as this. [154] Either you must give us back the heyday of our youth in which to pursue ambition, or, since that is impossible, leave us that position in life which we abandoned our ambition to pursue. It is unfair that we who have renounced the privileges of office by reason of its innumerable dangers, should be debarred from public recognition and yet not free from the danger of prosecution in the courts. A senator is not entitled to make this complaint, because those are conditions under which he embarked on his career, and because he has many privileges calculated to alleviate its drawbacks - rank, position, magnificence at home, reputation and influence abroad, the embroidered robe, the chair of state, the badges of rank, the lictors' rods, armies, commands, provinces. In all this our forefathers intended to make the rewards of upright dealing as high as possible but the risk to wrongdoers more than ordinarily heavy." The objection of these knights was not to their being accused under the same statute under which Habitus is accused to-day (at that time it was the Sempronian law, to-day it is the Cornelian ** ); for they realised that it was not applicable to the order of knights : but their efforts were directed to prevent their being brought within the toils of a new statute. [155] Habitus has never objected even to rendering account of his life under a law which is actually not binding on him ; and if such a state of affairs pleases you let us all do our best to get the jurisdiction of this court extended over every order as soon as possible!

[57.] L   But in the meanwhile, in Heaven's name, since it is the laws that give us all our advantages, our rights, our freedom and our security - let us abide by the laws. And further, let us reflect how unfair this is - the Roman people are off their guard : they have placed in your keeping their country and their fortunes: they have no anxiety nor do they fear to find themselves subjected by a handful of jurors to a law which they themselves have never sanctioned and to a court from which they imagine themselves exempt and free. [156] For my worthy and fluent young friend T. Accius is basing his case on the assumption that all laws are binding on all citizens, and you, as your duty is, listen to him in attentive silence. Aulus Cluentius is being tried as a Roman knight under a statute which is only binding on senators and ex-magistrates ; and I am refused his permission to enter my protest and to set the bulwarks of my defence upon the vantage-ground of law. If Cluentius secures the verdict, as, relying on your sense of justice, I confidently expect, everyone will believe, and rightly, that he secured it by his innocence, since that was the line his defence followed ; but that the statute on which he declined to dwell afforded him no protection.

[157] I now come to a point which, as I have said before, concerns myself, and which I owe to the public to make good; for such are the conditions of this life of mine that all my care and all my effort is expended in the defence of men in perils by the law. I see how great, how perilous and how unbounded in its jurisdiction is the court which the prosecution is bent on establishing in its effort to extend to the whole Roman people the statute which was framed against us senators. The statute runs: "Whoso shall have combined" - you see how much that covers - "or conspired" - which is equally vague and undefined, and besides, mysterious and unintelligible - "or shall have given false evidence" - what man of the whole populace of Rome who has ever given evidence is not threatened through the proposal of Accius with the peril of prosecution ? For, as for giving evidence hereafter, I can at all events assure you of this, that if the Roman people be made liable to these proceedings, no one will ever be found to do so. [158] But I promise you all that should any man on whom this statute is not binding be harassed by proceedings under it, and should he entrust his defence to me, I shall base my conduct of his case upon its legal aspect, and shall find no difficulty in commending my argument, whether to these jurors or to others like them, availing myself fully of the defence afforded by the law which the wishes of one to whom I am bound to defer do not on this occasion permit me to adopt.

[58.] L   For I have no right to doubt, gentleman, that if a case of this kind comes before you in which the defendant is outside the scope of the statute, then, even though you deem him the object of prejudice, or a cause of offence to many, even though you hate him, even though you would be sorry to acquit him, you would acquit him none the less, obeying your conscience rather than your animosity. [159] For it is the duty of a wise juror to reflect that the Roman people allows him only such functions as are consistent with his commission and his mandate ; to remember that not only has power been entrusted to him, but faith reposed in him ; to bring himself to acquit a man though he hate him, or to condemn a man though he hate him not; to study, not his own inclinations but his duty to his conscience and the law ; and to observe the statute under which the accused is indicted, the character of the accused whose case he is examining, and the facts which are at issue before the court. These points must he keep before him ; but further, it is equally the duty of a wise and high-minded man, on taking up the juror's tablet to record his vote, to bethink him that he is not alone, not free to obey his whim; and rather to take as his assessors the law and his conscience, justice and honour; to put away from him caprice, malice, prejudice, fear, and every passion, and to put first the testimony of his own conscience. Conscience is God's gift to us all and cannot be wrested from us, and if conscience testifies throughout our lives to good intentions and good deeds, those lives will be wholly fearless and entirely virtuous. [160] Had T. Accius either realised these things or reflected upon them, he would not even have attempted to say what he has actually urged at length ; namely, that a juror ought to decide as he thinks best without being fettered by statutes. What I have said on this point, though more than Cluentius desires and less than the importance of the subject demands, is, I think, sufficient to satisfy your good sense.

There remain but a few points which, because proper to this court, the prosecution thought fit to trump up and bring forward, but only for fear that, if they brought nothing but prejudice into court, they would be found of all men the most base. [59.] L   And now, in order that you may understand that I have been absolutely compelled to speak at some length on the matters which I have dealt with hitherto, give close attention to what follows ; you will realise, I am sure, that where my point could be proved in a few words, my defence has been very concise.

[161] You have stated that Gn. Decidius the Samnite - the same who was proscribed - was insulted in his misfortune by my client's slaves. Actually he was treated by no one more generously than by Cluentius: it was my client's wealth that relieved him in his dire distress, a fact of which both he and all his friends and relations are aware. You have stated that my client's bailiff committed assault and battery upon the shepherds of Ancharius and Pacenus: actually his bailiffs defended their master's property and right of occupancy in the course of an ordinary quarrel between shepherds on the upland pastures. When a complaint was made, explanations were given to the other party, and they parted without carrying their dispute to the courts. [162] "By the will of P. Aelius his kinsman was disinherited, and the defendant, though quite a stranger, was made heir." Aelius did this in discharge of an obligation, nor had my client any hand in the making of the will, which was witnessed by his enemy Oppianicus. "He refused to discharge a legacy left to Florus." On the contrary, although 30,000 sesterces had been written instead of 300,000, and Florus's title was, in Cluentius's opinion, insufficient, he wanted to place Florus under an obligation to his generosity. So he did at first deny the obligation, but subsequently discharged it without dispute. "One Ceius, a Samnite, brought an action against him after the war ** to recover his wife." Actually, when he heard that she was a free woman, although he had purchased her from the broker ** he immediately returned her to Ceius without the intervention of the court. [163] "There is one, Ennius, whose property Habitus retains." This Ennius is actually a needy individual in the pay of Oppianicus, of whom nothing had been heard for many years, until at last he brought an action against Habitus's slaves for theft, and has lately begun to claim restitution from Habitus. In this civil suit, believe me, even though he too may chance to employ you ** to defend him, he will not escape conviction as a false accuser. Again, it is reported to me that you are suborning that man of much hospitality, Ambivius, innkeeper of the Latin Way, to say that he was assaulted in his own inn by Cluentius and his slaves. About this fellow it is at present unnecessary for me to speak: if he gives us his customary invitation, we will give him so warm a reception as to make him sorry he ever went out of his way. ** [164] Here, gentlemen, you have every reflexion on Aulus Cluentius's character, which, after eight years of preparation, the prosecution has raked together for the whole case, anxious as they are to embarrass his trial with prejudice. How essentially trivial they are ; how substantially false ; how easily refutable !

[60.] L   Pass now to what concerns your oath, what belongs to your jurisdiction, what is laid on you as a responsibility by the statute through whose operation you are here met together - that is, to the charges of poisoning - and you will all realise in how few words my case might have been concluded, and how much I have said which, though entirely relevant to my client's instructions, was entirely irrelevant to your court.

[165] My client Aulus Cluentius is charged with having removed by poison Vibius Cappadox. Fortunately there is present in court ** a man of eminent trustworthiness and the highest character, L. Plaetorius, the senator, the host and friend of the said Vibius. It was in his house that Vibius lived at Rome, in his house that he fell ill, in his house that he died. I assert that he died intestate, and that administration of his estate was assigned under the praetors' edict to my client's sister's son, Numerius Cluentius, ** whom you see here, an honourable young man of eminent respectability, and a Roman knight.

[166] The second charge of poisoning is that Habitus instigated an attempt to poison young Oppianicus here, at a dinner which Oppianicus, after the custom of Larinum, gave to a large number of people on his marriage. The poison was being offered him in mead when a certain Balbutius, his friend, intercepted it, drank it, and instantly expired. If I were dealing with the charge as if I really had to disprove it, I should do so at length ; whereas I am now dismissing it with a brief notice. [167] What crime has Habitus ever had upon his conscience that you should imagine such a deed to be otherwise than abhorrent from him ? What was there, moreover, to make him fear Oppianicus so much - a man who has not been able to utter a single word during the whole of this case - whereas my client could never lack accusers while Sassia lives, as you will presently see? Or did he wish the case against him to remain as serious as before, and also be reinforced by a fresh charge? Again, what opportunity had he of giving the poison on such a day and in such a crowd? Further, by whom did he give it? Whence did he procure it? What means this intercepting of the cup? Why was it not given over again? There are many possible answers: but I would not have it thought that I meant to suggest them by my silence ; for the substance of the charge supplies the answer to it. [168] I assert that the young man who, according to you, died directly after he drank the cup, did not die on that same day at all. It is a monstrous charge, and a shameless lie! Consider what follows: I assert that the man in question came to the dinner suffering from indigestion ; over-indulged his appetite in the course of it as young men will do, and eventually died after an illness lasting some days. Who testifies to this? The same man who testifies to his own grief, his father - the father, I say, of the young man in question ; and he who would have been ready, if the shadow of a suspicion had crossed his anguished mind, to stand over there and give evidence against Cluentius, actually offers that evidence on his behalf. Read it. ** And do you, sir, if I am not asking too much, stand up for a few moments and nerve yourself for this painful but indispensable recital: I shall not dwell long upon it, because you have determined with true nobility not to let your sorrow involve the ruin of an innocent man upon a false accusation.

[61.] L   [169] There is still one charge remaining, gentlemen, the nature of which may illustrate to you what I said at the beginning of my speech - that whatever misfortune has in these years befallen Aulus Cluentius, whatever anxiety and difficulty has beset him at this time, the moving spirit through it all has been his mother. You assert that Oppianicus's death was caused by poison given to him in bread by one M. Asellius his friend, and that Habitus instigated the deed. My first question here is: what motive had Habitus for wishing to murder Oppianicus? I admit the existence of enmity between them; but a man desires the death of his enemy either because he fears him, or because he hates him. [170] What fear then can possibly have induced Habitus to burden his conscience with such a crime? What reason was there for anyone to fear Oppianicus now that he had paid the penalty for his misdeeds and been expelled from the country ? What had he to fear? That a ruined man might assail him, a condemned criminal accuse him, or the evidence of an exile do him harm? If, on the other hand, it was hatred of his enemy that made Habitus unwilling that he should enjoy life any longer, was he such a fool as to suppose that the life Oppianicus was then living was worth the name - the life of a felon, an exile, an outcast ; when, through the enormity of his nature, no one would receive him under his roof, no one would go near him, no one would speak to him, no one would look at him? Would Habitus grudge a man like that his life? [171] If he hated him bitterly and intensely, should he not have desired such a man to live as long as possible? Was it for an enemy to be hastening his death, to whom in his misery death alone offered an escape from wretchedness ; who, if he had had any spirit of manliness would have done as many a brave man has done in a like affliction, and put an end to his own life? Why then should his enemy wish to bestow on him what he ought to have coveted for himself? For what harm at all has death done him, now that he is actually dead? Unless perhaps we are led by silly stories to suppose that he is enduring the torments of the damned in the nether world, and that he has there encountered more of his enemies than he left on earth ; that the avenging spirits of his mother-in-law, his wives, his brother, and his children have driven him headlong into the abiding-place of the wicked. But if these stories are false, as every one knows they are, what is it that death has taken from him except the power to feel pain ?

[172] But come, by whom was the poison given? By M. Asellius. [62.] L   What connexion had he with Habitus? None: there was more probably actual enmity between them because Asellius was on intimate terms with Oppianicus. Was it likely then that Habitus would chose a man whom he knew to be more or less ill-disposed to himself and an intimate of Oppianicus, as agent for his own crime and the plot against his enemy ? Then why have you, ** who were impelled to prosecute by loyalty to your father so long allowed this Asellius to go unpunished? Why did you not follow Habitus's example, ** and secure a verdict which, through the person who administered the poison, should reflect upon my client? [173] Again, what an improbable story is this - how unusual, gentlemen, and how strange - this giving of poison in bread! Could it thus more easily permeate the veins and every part of the body, than if given in a cup, more thoroughly when stowed away somewhere in a piece of bread than if it had been completely dissolved in a draught, more speedily when taken with food than with drink? Would it have been harder to detect in bread, if attention had been drawn to it, than when so dissolved in the contents of a cup as to be quite indistinguishable? [174] "But," you say, "Oppianicus died a sudden death." Supposing he did: that has been the lot of too many people to afford good ground for suspecting poison ; and if there were any suspicion, it would attach to others before Habitus. But actually the whole story is a bare-faced lie. To bring this home to you, let me tell you about his death and the way in which, after his death, Cluentius's mother tried to find a charge against her son.

[175] Wandering about, a vagabond and an exile, and finding all doors shut against him, Oppianicus betook himself to L. Quinctius in the Falernian district. It was there that he first fell sick ; and he had a long and serious illness. Sassia was with him, and was on terms of greater intimacy with one Sextus Albius, a lusty yeoman who was usually in her company, than the most dissolute of husbands could tolerate had his fortunes been unimpaired ; for she was of the opinion that the bonds of that chaste, that lawful wedlock had been removed by the condemnation of her husband. And it is said that a favourite slave of Oppianicus called Nicostratus, a faithful fellow, very inquisitive and no liar, used to bring many tales of this to his master. Meanwhile Oppianicus was beginning to get better, and could endure no longer the misconduct of the Falernian yeoman ; so he started to come here to the neighbourhood of Rome, where it was his custom to take some hired lodging outside the gates. But, so they say, he was thrown from his horse, and, ailing as he was, sustained a serious injury to his side; he reached the city in a fever, and died a few days afterwards. The circumstances of his death, gentlemen, are such as to admit of no suspicion ; or, if any be admissible, to confine it to the four walls of his house, and to incriminate his own people.

[63.] L   [176] After his death, the unspeakable Sassia immediately started to plot against her son, and decided to institute an inquiry into her husband's death. She purchased from Aulus Rupilius, whom Oppianicus had employed as a doctor, a certain Strato, ostensibly meaning to do the same as Habitus had done in purchasing Diogenes. ** This Strato and a slave of her own, called Ascla, she said she was going to examine under torture, ** and also demanded that young Oppianicus here should give up for similar examination the slave Nicostratus, whom she suspected of having been too free with his tongue and too loyal to his master. Oppianicus was a boy at the time ; and as this purported to be an inquiry into the death of his father he dared refuse her nothing, although he believed this slave to be as devoted to himself as formerly to his father. Many of her own and her husband's friends and associates were summoned, respectable men with every honourable recommendation. In the rigorous inquiry which followed, every form of torture was employed. But although both promises and threats were used to make the slaves say something under examination, they were none the less induced - as I believe, by the moral support of the witnesses, and the actual violence of the tortures ** - to stand by the truth and deny all knowledge. [177] The inquiry was abandoned for that day, on the suggestion of the friends ; but after a considerable interval, they were summoned a second time, and the inquiry was held over again. The most exquisite tortures were rigorously employed. The witnesses protested, unable to bear the sight any longer, while that cruel, savage woman was beside herself with rage to find her scheme by no means turning out as she had hoped. At last, when the torturer and even the instruments of torture were wearied, and still she would not make an end, one of the witnesses, a man of eminent public position and high character, declared himself convinced that the object of the inquiry was not to discover the truth, but to compel the slaves to say something untrue. The others agreed: and everyone supported the decision that the inquiry had gone far enough. [178] Nicostratus was returned to Oppianicus: Sassia went to Larinum with her people, grieving over the thought that her son must now be safe, seeing that no genuine charge, no, nor even a trumped up suspicion could touch him; and that not only the open assaults of his enemies but even the secret plots of his mother had been unable to harm him. On reaching Larinum she proceeded to bestow on Strato a shop, furnished and stocked, so that he might set up as a doctor at Larinum ; and that though she had pretended to be convinced that this same Strato had formerly poisoned her husband. [64.] L   A year passed, a second, then a third; and Sassia made no move; till it looked as if she were content to hope and long for some disaster to befall her son without actually doing anything to contrive it. [179] Meanwhile, when Q. Hortensius and Q. Metellus were consuls, ** in order to force the young Oppianicus to undertake this prosecution, though his interests were elsewhere and no such idea had occurred to him, she betrothed him against his will to her daughter - the one she had borne to her son-in-law - hoping that the ties of marriage, added to the hold she had on him through his expectations, would put him in her power.

About that very time, this Strato, the doctor, committed theft and murder at her house in the following circumstances. There was a safe in the house which he knew to contain a quantity of cash and of gold ; so one night he killed two of his fellow-slaves as they slept, threw them into the fish-pond, and himself cut out the bottom of the safe, abstracting . . . ** sesterces and five pounds weight of gold, with the connivance of one of the slaves, quite a young lad. [180] The theft was discovered next day, and the entire suspicion fell on the two slaves who were not forthcoming. Then they noticed the cutting out of the bottom of the safe, and people began to wonder how it could have been done. One of Sassia's friends recalled having recently seen among the odds and ends for sale at some auction a small curved saw with teeth all round and crooked, by which it seemed that this circular cut might have been made. To put it shortly, inquiries were made from the auctioneer's agents, ** and it was discovered that the saw went to Strato. This roused suspicion against Strato; and when he was openly taxed with the crime, the boy, his accomplice, took fright and told the whole story to his mistress: the bodies were found in the fishpond, Strato was put in irons, and the coins, though by no means all of them, were actually found in his shop. [181] An inquiry was held to investigate the theft. For what else but theft could anyone suspect? Or do you assert that after the robbery of the safe, the removal and only partial discovery of the money and the murder of the slaves, the inquiry was held to investigate the death of Oppianicus? Who will believe you? What less probable suggestion could you advance? Besides, apart from anything else, was an inquiry likely to be investigating Oppianicus's death, three years after it occurred? Yes, and more than this, inflamed by her former hatred, she now, without any reason, demanded that Nicostratus be examined once again. Oppianicus at first refused ; but later on when she threatened to take her daughter from him, and to alter her will, he surrendered his faithful slave to this cruel woman, not for examination but simply for execution.

[65.] L   [182] And so the question of her husband's death was revived after three years and a fresh inquiry held: and who were the slaves examined ? Some new fact, I suppose, was alleged, some new persons implicated ? Strato and Nicostratus were the men. What? Had not these two been examined at Rome ? Is it possible? Did this woman - beside herself now, not with madness, but with wickedness - although she had held an inquiry at Rome, although in the view of T. Annius, L. Rutilius, P. Saturus and other honourable men that inquiry was considered to have gone far enough, did she still - without securing the presence, I will not say of anyone at all in case you should say that the yeoman was there, but of anyone respectable - attempt to strike at her son's liberty by an inquiry into the same facts and an examination of the same people after a lapse of three years ?

[183] Or do you say - for I am thinking of what might be said though it must be remembered that my friend has not said it - that during the inquiry about the theft, Strato confessed something about the poison? Gentlemen, there is only one way by which truth, though overwhelmed by a mass of villainy, often comes to light and the defence of innocence, though half stifled, recovers breath - and that is because either those who are skilled in fraud lack daring to match their designs, or because those who in daring are conspicuous and prominent, find that their rascally devices fail for lack of contrivance ; whereas, if either the cunning were bold, or the daring crafty, resistance to them would be almost impossible. Was theft not committed ? But nothing was more notorious at Larinum. Or did suspicion not attach to Strato ? But he was incriminated by the saw and denounced by the boy, his accomplice. Or was this not the issue at the inquiry ? What other reason was there for holding it? Or did Strato - and this is what you ought to say and what Sassia said so often at the time - did Strato, when being examined about the theft, say something, while then under torture, about the poison ? [184] And there you have exactly what I told you: the woman has daring in abundance, but her judgement and common sense are failing her. For numerous memoranda of the inquiry are produced in court, which have been read out and laid before you, the very ones which she has stated to have been witnessed and sealed there and then. And in these memoranda there is not a syllable about theft; it did not occur to her first to record the deposition of Strato about the theft, and then afterwards put in some remark about the poison, to look as if it had been wrung from him by torture, and not elicited by questioning. The inquiry dealt with theft : any suspicion of poisoning had been removed by the previous inquiry, and that had been the woman's own verdict ; for at Rome she had decided on the advice of her friends that the inquiry had gone far enough ; and during the three following years she had shown a greater fondness for this Strato than for all her other slaves, held him in special honour, and shown him every favour. [185] Are we to suppose that, during the inquiry into the theft - a theft, moreover, of which he was admittedly guilty - Strato said not a word about the matter under inquiry ? Did he at once speak about the poison? Did he not so much as mention the theft, if not in its proper place, then at least at the end or in the middle or at some point in the examination ?

[66.] L   You see now, gentlemen, that this wicked woman, with the same hand with which she would fain kill her son if she had the power, forged this record of the inquiry. And as for this alleged record, tell me the name of one single witness who signed it: you will not find one except perhaps that of the kind of man whose character makes me glad to have his name produced rather than no one's. How now, T. Accius? [186] Are you to bring into court a capital charge, a criminal indictment, and an attack based on documentary evidence upon the fortunes of another, without naming anyone to vouch for that document, or anyone who sealed or witnessed it? Do you expect to commend to a court like this the instrument which you have drawn from his mother's bosom to work the ruin of her innocent son? Enough : the memoranda have no weight. Why was not the complete record kept for the jurors? Why not for the friends and associates of Oppianicus whom she had summoned in the first instance? Why not indeed for the present occasion? What was done with those two, Strato and Nicostratus? [187] I ask you, Oppianicus, to say what was done with your slave Nicostratus: in view of your intention shortly to accuse my client, you ought to have brought him to Rome, enabled him to give information, and kept him safe for examination, for this court and for this occasion. As for Strato, gentlemen, I have to inform you that he was crucified, after first having had his tongue cut out, as everyone at Larinum knows. This frenzied woman feared not her own conscience, not the hatred of her neighbours, nor the general scandal; she forgot that all men would be witnesses to her crime, and dreaded only that she might be denounced by the last utterances of a poor, dying slave.

[188] Great heavens, what a monstrosity is this! In all the world could there be named aught so unnatural, so hateful, so inhuman an abomination? If so, what gave it birth? For now, gentlemen, you surely see that it was not without the best and most compelling reasons that I mentioned my client's mother at the beginning of my speech; for there is no evil, no wickedness which from the first she has not wished for, longed for, plotted and executed against her son. I say nothing of the first outrage of her passion ; nothing of her infamous marriage with her step-son, nothing of the mother's lust that drove the daughter from her husband's arms. These things constituted a dishonour to her family as a whole, but not as yet a peril to my client's life. I make no complaint of her second ** marriage with Oppianicus, which, contracted only after receiving as security from his hands the murder of his sons, was fraught with mourning to his household and death to her stepchildren. I pass over the fact that when she learned that Aulus Aurius, once her daughter's husband, now her own, had been by the contrivance of Oppianicus proscribed and murdered, she chose as her own residence and home the very house in which she might every day behold the traces of her former husband's death, and the spoils of his estate. [189] My first complaint deals with that crime which has now at last been brought to light, the attempt to poison through Fabricius ** - an attempt which, at the time of its occurrence, people generally only suspected, and my client refused to believe, though it is now clear and obvious to all. Of that attempt his mother, assuredly, was not kept in ignorance ; for Oppianicus devised nothing without her advice. Had it been otherwise, it is certain that afterwards, when the plot was detected, she would not have left him as a wicked husband; she would rather have fled from him as from a cruel foe, and would have abandoned for ever a house that was a very sink of iniquity. [190] So far from acting thus, there was no place in which she did not contrive some pitfall, while day and night this mother gave her whole mind to plotting the destruction of her son. And in the first place, in order to have Oppianicus there for the prosecution of her son, she bound him to her by gifts and donations, by his marriage to her daughter, and his expectations from her estate.

[67.] L   And so, while we have noticed as a general rule that divorce and the sundering of family ties follow the outbreak of a quarrel between relations, this woman considered that no one could be sufficiently relied on to prosecute her son except he first married that son's sister. Most people are induced by the contraction of new relationships to lay aside old quarrels ; but she believed that the bond of relationship would serve her as a guarantee for the perpetuation of her quarrel. [191] Nor did she bestow her pains only on procuring an accuser for her son; she considered also wherewith to equip him : hence her overtures to slaves, alike by threats and promises ; hence these inquiries, so far-reaching and so cruel, into the death of Oppianicus, which were brought to an end not by any moderation on her part but by the interposition of her friends. The same criminal design resulted in those inquiries at Larinum three years after the event; the same frenzy inspired her to forge the records of those inquiries ; the same madness was responsible for her dastardly act in cutting out the slave's tongue ; the whole elaborate charge is, in fact, hers both in conception and presentation. [192] Her son's accuser, thus fortified, she dispatched to Rome, while she herself waited a short time at Larinum to collect and engage witnesses; but on receipt of the news that my client's trial was approaching, she came flying hither with all speed in case the prosecution might need her vigilance, or the witnesses her money ; or perhaps it was that she might not lose a spectacle that her mother's heart so craved - the squalid mourning and unkempt attire of her son. **

[68.] L   But what manner of journey, think you, did this woman make to Rome? I have heard and learnt of it from many, living as I do near Aquinum and Fabrateria. ** How they flocked together in those towns! What groans went up from men and women alike to think that a woman of Larinum was starting thence to go all the way from the Adriatic coast to Rome with a great retinue and large funds, the better to contrive the ruin, on a capital charge, of her own son! [193] I will go so far as to say that there was not one of them but thought that every place by which she passed needed to be purified ; not one but felt that the earth itself, the common mother of us all, was suffering pollution from the feet of that accursed mother. And so in no town was she allowed to halt ; of all those many inns she found not one whose host did not flee before her baleful glance : she was fain to entrust herself to night and solitude rather than to any city or hostelry. [194] And of her present intentions, designs, and daily plottings, which of us does she imagine to be ignorant? We are well aware whom she has approached, to whom she has promised money, whose loyalty she has tried to undermine with a bribe: nay more, we have found out about her midnight sacrifices which she thinks so secret, her infamous prayers, and her unholy vows by which she calls even the immortal gods to witness her crime ; not realising that the favour of Heaven may be gained by duty done to gods and man, and by righteous prayers, not by base superstition and victims offered for the success of crime. But well I know that the immortal gods have spurned from their altars and their temples this woman's rage and cruelty.

[69.] L   [195] Gentlemen, chance has made you as gods, to sway for all time the destiny of my client, Aulus Cluentius : do you shield from this unnatural mother the life of her son. Many a judge, ere now, has allowed his pity for the parents to cover the sin of their children : you I entreat not to sacrifice to his mother's cruelty my client's honourable past, especially when you may see a whole township ranged against her. Be it known to all of you, gentlemen (and, unbelievable as the statement is, I shall make it in all truth), that all the able-bodied men in Larinum have come to Rome to give my client in his hour of great peril all the assistance in their power by their enthusiasm and their numbers. To women and children, be it known to you, is committed at this time the protection of their town, whose safety lies at present in the general peace of Italy, and not in any resources of its own. Yet those that are left, equally with those whom you see before you, are racked day and night with suspense to know the issue of this trial. [196] They feel that the sentence you are about to pass will touch not merely the fortunes of one fellow-townsman, but the standing of the whole township, its honour and all its privileges. For nothing, gentlemen, can exceed my client's devotion to the general good of his town, his kindness to its individual members, his uprightness and sincerity to all men. Moreover, he in such wise supports the distinction of his birth and the high position which his forefathers bequeathed to him, as not to be behind them in dignity, steadfastness, popularity, or generosity. And their testimonial to him on behalf of their community is couched in such terms as to express not merely their evidence and their opinion but also their heartfelt anxiety and sorrow. While this testimonial is being read aloud, you who have presented it will kindly stand up. [197] You may judge by their tears, gentlemen, that all the town-councillors wept, as these do, when passing this resolution. Furthermore, what real enthusiasm is displayed by his neighbours, what extraordinary goodwill, what deep anxiety! So far from merely forwarding in writing the testimonial they had decreed, they preferred that many honourable men, likely to be known to you all, should come into court in large numbers end give their testimonial in person. There are in court many from the best families of Ferentinum, and others equally distinguished from the Marrucini : you see honourable Roman knights from Teanum in Apulia and from Luceria supporting this testimonial ; from Bovianum and the whole of Samnium have been sent honourable testimonials, accompanied, moreover, by men of distinction and high birth. [198] As for those who have estates, business interests, or stock in the district of Larinum - all of them honourable men of eminent distinction - I find it hard to express their anxiety and solicitude. Few men, I think, are so much beloved by a single individual as my client is by this entire community.

[70.] L   How much I regret, gentlemen, the absence from my client's trial of the eminent and virtuous L. Volusienus! Would that I could name as present in court that most highly gifted Roman knight, P. Helvidius Rufus! For while spending days and nights of watchfulness in the defendant's interest and instructing me in the case, he fell seriously and dangerously ill; but even so, he is as much concerned for my client's liberties as for his own life. You will perceive no less enthusiasm on the part of that excellent and honourable man, Gn. Tudicus, the senator, from his evidence both as to fact and as to character. To you, P. Volumnius, I hope I may refer in the same terms, though with greater reserve, as you are a juror in the case of Aulus Cluentius. To be brief, I assert that his entire neighbourhood displays the utmost goodwill towards my client. [199] The enthusiasm, the trouble, and the pains of all these people, conjointly with my own endeavours (for in accordance with ancient practice I have performed the entire conduct of this case singlehanded ** ), and withal your own spirit of justice and of mercy, gentlemen - all are assailed by one person only, his mother. But what a mother! You see her, swept along by the blind impulses of cruelty and crime ; her lust has never stopped short of any dishonour; her moral obliquity has prostituted every institution of mankind ; she is too demented to be called a human being, too ruthless to be called a woman, too savage to be called a mother. Nay, more ; as the wife of her son-in-law, the step-mother of her son, the rival of her daughter, she has changed not merely the names and the ordinances which nature gives, but even the name we give to relationships ; and she is come at last to such a pass that she has lost all semblance of humanity save only her outward form. [200] Wherefore, gentlemen, if you hate wickedness, forbid a mother to come at the blood of her son: grant to a parent the unutterable grief involvedj in the safety, the triumph of her offspring : permit a mother, lest she be overjoyed at being bereft of her son, rather to go hence defeated by your sense of justice. If, on the other hand, as your nature demands, you love honour, truth, and goodness, raise up this your suppliant at the last, gentlemen, who for all these years has been beset by false prejudice and peril; who, for the first time since the criminal avarice of others fanned prejudice into flame, has begun in reliance on your sense of justice to take heart again and enjoy a short breathing-space from his fears; whose all lies in your hands ; whom so many would, but only you can, save. [201] Habitus implores you, gentlemen, and beseeches you with tears to sacrifice him neither to prejudice, which should have no weight in the court of law; nor to his mother, whose vows and prayers you ought to banish from your minds; nor to the infamous Oppianicus, now condemned and dead.

[71.] L   But if a disaster overwhelms my client in this trial, then verily that hapless man, if (though 'twere hard for him) he continue to live, will often and bitterly regret that the attempt to poison him through Fabricius was ever discovered. For if it had not then come to light it would have been to my suffering client no poison but the healing balm of many woes, Aye, and it may be that even his mother, as she followed in that funeral train, would have feigned to mourn the death of her son. But as it is, what will have been achieved, save that he will seem to have been saved alive from out the snares of death only for mourning, and in death to have been robbed of the sepulchre of his fathers ? [202] Long enough, gentlemen, has he been in misery, long years enough has he laboured under prejudice. No one save her who bore him has been so malignant against him but that we may feel that his resentment is now satisfied. Do you, who are benignant to all men, who grant your gentlest succour to those most cruelly assailed, deliver Aulus Cluentius, restore him still a citizen to his town: give him back to his friends, his neighbours and his associates, whose enthusiasm you behold : make him a debtor for all time to you and to your children. Yours, gentlemen, is this duty; yours as men of honour and humanity ; and rightly do we require you to free at last from these disasters a good and innocent man, beloved and cherished by so many of mankind; that thereby all men may know that public meetings are the place for prejudice, courts of law for truth.


71.(↑)   Sulla's Lex Cornelia de Sicariis et Veneficiis.

72.(↑)   Quintus Voconius Naso, president of the court and specified as such in § 148.

73.(↑)   Sulla's Lex Cornelia de Repetundis.

74.(↑)   These tribunes took precedence over those of the second and third legions and ranked as magistrates.

75.(↑)   Literally "to prevent anyone being circumvented in a court of law." This refers to the law of Gracchus afterwards embodied in § 6 of Sulla's lex de sicariis et veneficiis. Presumably Gracchus, as a popular leader, passed this law before that which transferred the control of the courts from the senate to the order of knights.

76.(↑)   Sulla reversed Gracchus's enactment dealing with the courts (see previous note); but though § 6 of Gracchus's law against assassins was aimed at senators in their capacity as jurors, Sulla dared not make it (retrospectively) operative against the order of knights, whom he had just deprived of their judicial privileges, after proscribing 1600 of them.

77.(↑)   The proposals of Marcus Livius Drusus in 91 B.C. included the setting up of a court to try all (equestrian) Jurors who had been guilty of corruption.

78.(↑)   The provisions of the Lex Cornelia de Sicariis et Veneficiis embodied an older law of C. Gracchus.

79.(↑)   The Social War, 91-88 B.C.

80.(↑)   A wholesale purchaser at a sale of the property of proscribed persons. In this particular sale the wife had been included as well as the slaves.

81.(↑)   The plural indicates other accusers besides Accius : compare 'illi' in § 160 and 'dixistis' in § 168, etc.

82.(↑)   There is a play on the word 'via', which suggests the innkeeper leaving the Latin Way to come to Rome as well as going out of his way to invite travellers to his inn.

83.(↑)   Witnesses could be examined and cross-examined as in an English court; but no rule apparently decided what evidence they might give or when they might give it.

84.(↑)   See Genealogical Tables, "Family of Oppianicus."

85.(↑)   These words were addressed to the clerk of the court who thereupon read out the father's deposition.

86.(↑)   i.e. young Oppianicus.

87.(↑)   In prosecuting Fabricius and Scamander before Oppianicus.

88.(↑)   See § 47.

89.(↑)   Slaves were usually tortured before being allowed to give evidence; otherwise, it was thought, they would be incapable of telling the truth.

90.(↑)   These words are difficult: if the sense which I have given them (following Fausset's note) appears too much strained, it remains to take them (with Peterson) as sarcastic.

91.(↑)   69 B.C.

92.(↑)   The figures are missing from the MSS.

93.(↑)   Those sent round by the auctioneer after a sale to collect the money from the purchasers.

94.(↑)   It was actually her third: Cicero is not counting her first marriage with Cluentius's father.

95.(↑)   See ch. xvi.

96.(↑)   See footnote to § 18.

97.(↑)   These places were near Arpinum where Cicero was born.

98.(↑)   The older practice was for one advocate to undertake the whole of the defence: in Cicero's time as many as twelve might be employed.

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