104. To have received from Cluentius four hundred sesterces. Of what rank was he? A senator. He was accused according to that law by which an account is properly demanded of a senator in a prosecution for peculation, and he was most honourably acquitted. For the cause was pleaded according to the custom of our ancestors, without violence, without fear, without danger. Everything was fairly stated, and explained, and proved. The judges were taught that not only could a defendant be honestly condemned by a man who had not sat as a judge uninterruptedly, but that if that judge had known nothing else except what previous investigations it was clear had taken place in the case, he ought to have heard nothing else.
104. Fidiculanius quid fecisse dicebatur? a Cluentio HS cccc. erat ordinis?. lege in eo genere a senatore ratio repeti solet, de pecuniis repetundis, ea lege accusatus honestissime est absolutus. Acta est enim causa more maiorum sine vi, sine metu, sine periculo; dicta et exposita et demonstrata sunt omnia. iudices sunt non modo potuisse honeste ab eo reum condemnari qui non perpetuo sedisset sed, aliud si is iudex nihil scisset, nisi quae praeiudicia de eo facta esse constaret, audire praeterea nihil debuisse.
105. Then, also, those five judges, who, hunting for the vague rumours of ignorant men, acquitted him at the time, were unwilling that their clemency should be extravagantly praised; and if any one asked them whether they had sat as judges on Caius Fabricius, they said that they had, if they were asked whether he had been accused of any crime except of that poison which was said to have been endeavoured to be administered to Habitus, they said no; if, after that, they were asked what their decision had been, they said that they had condemned him. For no one acquitted him. In the same manner, if any question had been asked about Scamander, they would certainly have given the same answer, although he was acquitted by one vote; but at that time no one of those men would have liked that one vote to be called his.
105. etiam illi quinque qui imperitorum hominum rumusculos aucupati tum illum absolverunt iam suam clementiam laudari magno opere nolebant; a quibus si qui quaereret sedissentne iudices in C.Gaium Fabricium, sedisse se dicerent; si interrogarentur num quo crimine is esset accusatus praeterquam veneni eius quod quaesitum diceretur, negarent; si deinde essent rogati quid iudicassent, condemnasse se dicerent; nemo enim absolvit. modo quaesitum si esset de Scamandro, certe idem respondissent; tametsi ille una sententia est absolutus, sed illam unam nemo tum istorum suam dici vellet.
106. Which, then, could more easily give an account of his vote,—he who said that he had been consistent with himself and with the previous decision, or he who said that he had been lenient to the principal offender, and very severe against his assistants and accomplices? But concerning their decision I have no occasion to say anything; for I have no doubt, that such men as they, being influenced by some sudden suspicion, avoided the point at issue. On which account I find no fault with the mercy of those who acquitted him. I approve of the firmness of those men who, in giving their judgment, followed the precedent of the previous decisions of their own accord, and not in consequence of the fraudulent trick of Stalenus; but I praise the wisdom of those men who said that to their minds it was not proved, who could by no means acquit a man whom they knew to be very guilty, and whom they themselves had already condemned twice before, but who, as such a disgraceful plan, and as a suspicion of such an atrocious act had been suggested to them, preferred condemning him a little later, when the facts were clearly ascertained.
106. Vter igitur facilius suae sententiae rationem redderet, isne qui se et sibi et rei iudicatae constitisse dicit, an ille qui se in principem malefici lenem, in adiutores eius et conscios vehementissimum esse respondit? ego de sententia non debeo disputare; neque enim dubito quin ei tales viri suspicione aliqua perculsi repentina de statu suo declinarint. re eorum qui absolverunt misericordiam non reprendo, eorum qui in iudicando superiora iudicia secuti sunt sua sponte, non Staieni fraude, constantiam comprobo, eorum vero qui sibi non liquere dixerunt sapientiam laudo, qui absolvere eum quem nocentissimum cognorant et quem ipsi bis iam antea condemnarant nullo modo poterant, condemnare, cum tanta consili infamia et tam atrocis rei suspicio esset iniecta, paulo posterius patefacta re maluerunt.
107. And, that you may not judge them to have been exceedingly wise men merely by their actions, but that you may also feel sure, from their very names, that what they did was most honestly and wisely done; who can be mentioned superior to Publius Octavius Balbus, as to ability more prudent,—in knowledge of law more skillful,—in good faith, in religion, in the performance of his duty, more scrupulous or more careful? He did not acquit him. Who is a better man than Quintus Considius? who is better acquainted with the practice of courts of justice, and with that sense of right which ought always to exist in the public courts? who is his superior in virtue, in wisdom, or in authority? Even he did not acquit him. It would take me too long to cite the virtue of each separate individual in the same manner; and in truth, their good qualities are so will known to every one, that they do not need the ornaments of language to set them off. What a man was Marcus Juventius Pedo, a man formed on the principles and system of the judges of old! What a man was Lucius Caulius Mergus! and Marcus Basilus! and Caius Caudinus! all of whom flourished in the public courts of justice at that time when the republic also was flourishing. Of the same body were Lucius Cassius and Cnaeus Heius, men of equal integrity and wisdom. And by the vote of none of those men was Oppianicus acquitted. And the youngest of all but one, who in ability, and in diligence, and in conscientiousness was equal to those men whom I have already mentioned, Publius Saturius, delivered the same opinion.
107. ne ex facto solum sapientes illos iudicetis, sed etiam ex hominibus ipsis quod hi fecerunt rectissime ac sapientissime factum probetis, quis P.Publio Octavio Balbo ingenio prudentior, iure peritior, fide, religione, officio diligentior aut sanctior commemorari potest? absolvit. Q.Quinto Considio constantior, quis iudiciorum atque eius dignitatis quae in iudiciis publicis versari debet peritior, quis virtute, consilio, auctoritate praestantior? is quidem absolvit. est de singulorum virtute ita dicere, quaeque iam cognita sunt ab omnibus verborum ornamenta non quaerunt. vir M.Marcus Iuventius Pedo fuit ex vetere illa iudiciorum disciplina, qualis L.Lucius Caulius, M.Marcus Basilus, C.Gaius Caudinus! qui omnes in iudiciis publicis iam tum florente re publica floruerunt. eodem numero L.Lucius Cassius, Cn.Gnaeus Heius pari et integritate et prudentia; quorum nullius sententia est Oppianicus absolutus. in his omnibus natu minimus, ingenio et diligentia et religione par eis quos antea commemoravi, P.Publius Saturius, in eadem sententia fuit.
108. O, the singular innocence of Oppianicus! when in the case in which he was defendant, those who acquitted him are supposed to have had some ulterior end,—those who postponed their decision, to have been cautious; but every one who condemned him is esteemed virtuous and firm. These things, though Quinctius agitated them, were not proved at that time either in the assembly or in a court of justice. For he himself would not allow them to be stated, nor indeed, by reason of the excited state of the multitude, could any one stand up to speak. Therefore he himself, after he had overthrown Junius, abandoned the whole cause. For in a very few days' time he became a private individual, and he perceived too that the violence of men's feelings had cooled down. But if at the time that he accused Junius he had also chosen to accuse Fidiculanius, Fidiculanius would have had no opportunity of making any reply. And at first, indeed, he threatened all those judges who had voted against Oppianicus.
108. O innocentiam Oppianici singularem! quo in reo qui absolvit ambitiosus, qui distulit cautus, qui condemnavit constans existimatur. tum agente Quinctio neque in contione neque in iudicio demonstrata sunt; neque enim ipse dici patiebatur nec per multitudinem concitatam consistere cuiquam in dicendo licebat. ipse postquam Iunium pervertit, totam causam reliquit; paucis enim diebus illis et ipse privatus est factus et hominum studia defervisse intellegebat. si, per quos dies Iunium accusavit, Fidiculanium accusare voluisset, respondendi Fidiculanio potestas facta non esset. primo quidem omnibus illis iudicibus qui Oppianicum condemnarant minabatur.
109. By this time you know the insolence of the man. You know what a tribune-like pride and arrogance he has. How great was the animosity which he displayed! O ye immortal gods! how great was his pride! how great his ignorance of himself! how preposterous and intolerable was his arrogance! when he was indignant even at this, (from which all those proceedings of his took their rise,) that Oppianicus was not pardoned at his entreaty and owing to his defence; just as if it ought not to have been proof enough that he was deserted by every one, that he had recourse to such an advocate as him. For there was at Rome a great abundance of advocates, most eloquent and most honourable men, of whom certainly any one would have defended a Roman knight, of noble birth in his municipality, if he had thought that such a cause could be defended with honour.
109. insolentiam noratis hominis, noratis animos eius ac spiritus tribunicios. erat odium, di immortales! quae superbia, quanta ignoratio sui, quam gravis atque intolerabilis adrogantia! qui illud iam ipsum acerbe tulerit, ex quo illa nata sunt omnia, non sibi ac defensioni suae condonatum esse Oppianicum; proinde quasi non satis signi esse debuerit ab omnibus eum fuisse desertum qui se ad patronum illum contulisset. enim Romae summa copia patronorum, hominum eloquentissimorum atque amplissimorum, quorum certe aliquis defendisset equitem Romanum in municipio suo nobilem, si honeste putasset eius modi causam posse defendi.
110. For, as for Quinctius, indeed, what cause had he ever pleaded before, though he was now nearly fifty years old? Who had ever seen him not only in the position of a counsel for the defence, but even as a witness to character, or as employed in any way in any cause? who, because he had seized on the rostrum which had been for some time empty, and the place which had been deserted by the voice of the tribunes ever since the arrival of Lucius Sulla, and had recalled the multitude, which had now been for some time unused to assemblies, to the likeness of the old custom, was on that account for a short time rather popular with a certain set of men. But yet afterwards how hated he became by those very men by whose means he had mounted into a higher position!—and very deservedly.
110. Quinctius quidem quam causam umquam antea dixerat, cum annos ad quinquaginta natus esset? quis eum umquam non modo in patroni sed in lautioris advocati loco viderat? qui quod rostra iam diu vacua locumque illum post adventum L.Lucii Sullae a tribunicia voce desertum oppresserat multitudinemque desuefactam iam a contionibus ad veteris consuetudinis similitudinem revocarat, idcirco cuidam hominum generi paulisper iucundior fuit. idem quanto in odio postea fuit illis ipsis per quos in altiorem locum ascenderat!
111. For just take the trouble to recollect not only his manners and his arrogance, but also his countenance, and his dress, and his purple robe reaching down as far as his ankles. He, as if it were a thing quite impossible to be borne that he should have been defeated in this trial, transferred the case from the court of justice to the public assembly. And do we still reiterate our complaints, that new men have not sufficient encouragement in this city? I say, that there never was a time or place where they had more; for here, if a man, though born in a low rank of life, lives so as to seem able to uphold by his virtue the dignity of nobility, he meets with no obstacle to his arriving at that eminence to which his industry and innocence conduct him.
111. neque iniuria. enim ut non solum mores et adrogantiam eius sed etiam voltum atque amictum atque etiam illam usque ad talos demissam purpuram recordemini., quasi non esset ullo modo ferendum se ex iudicio discessisse victum, rem ab subselliis ad rostra detulit. iam querimur saepe hominibus novis non satis magnos in hac civitate esse fructus? usquam umquam fuisse maiores; ubi si quis ignobili loco natus ita vivit ut nobilitatis dignitatem virtute tueri posse videatur, usque eo pervenit quoad eum industria cum innocentia prosecuta est.
112. But if any one depends on the fact of his being meanly born as his chief claim, he often goes greater lengths than if he was a man of the highest birth devoted to the same vices. As, in the case of Quinctius, (for I will say nothing of the others,) if he had been a man of noble birth, who could have endured him with his pride and intolerance? But because he was of the rank of which he was, people put up with it, as if they thought that if he had any good quality by nature, it ought to be allowed to save him and as if, owing to the meanness of his birth, they thought his pride and arrogance matters to be laughed at rather than feared. However, to return to my original subject: What decision did you—you, I say, who mention those trials— think ought to have bean come to at the time that Fidiculanius was acquitted? At least you think that the decision was not a corrupt one.
112. quis autem hoc uno nititur quod sit ignobilis, procedit saepe longius quam si idem ille esset cum isdem suis vitiis nobilissimus. Vt Quinctius — nihil enim dicam de ceteris — si fuisset homo nobilis, quis eum cum illa superbia atque intolerantia ferre potuisset? eo loco fuit, ita tulerunt ut, si quid haberet a natura boni, prodesse ei putarent oportere, superbiam autem atque adrogantiam eius deridendam magis arbitrarentur propter humilitatem hominis quam pertimescendam. ut illuc revertar, quo tempore Fidiculanius est absolutus, tu qui iudicia facta commemoras quid tum esse existimas iudicatum? certe gratiis iudicasse.
113. But he had condemned him; but he had not heard the entire case; but he had been greatly and repeatedly annoyed at every assembly of the people, by Lucius Quinctius. Then the whole of Quinctius's judicial conduct was unjust, deceitful, fraudulent, turbulent, dictated by a wish for popularity, seditious. Be it so; Falcula may have been innocent. Well then, some one condemned Oppianicus without being paid for it; Junius did not appoint men as judges in the place of the others, to condemn him for a bribe. It is possible that there may have been some one who did not sit as judge from the beginning, and who, nevertheless, condemned Oppianicus without having been bribed to do so. But if Falcula was innocent, I wish to know who was guilty? If he condemned him without being bribed to do so, who was bribed? I say that there has been nothing imputed to any one of these men which was not imputed to Fidiculanius; I say that there was nothing in the case of Fidiculanius which did not also exist in the case of the rest.
113. condemnarat, at causam totam non audierat, at in contionibus omnibus a L.Lucio Quinctio, tribuno plebis, vehementer erat et saepe vexatus. igitur omnia Quinctiana iniqua, falsa, turbulenta, popularia, seditiosa ⟨iudices⟩ iudicaverunt., potuit esse innocens Falcula. ergo aliquis Oppianicum gratiis condemnavit, iam non eos Iunius subsortitus est qui pecunia accepta condemnarent, iam potest aliquis ab initio non sedisse et tamen Oppianicum gratiis condemnasse., si innocens Falcula, quaero quis sit nocens; si hic gratiis condemnavit, quis accepit? rem esse ullam cuiquam illorum obiectam quae Fidiculanio non obiecta sit, aliquid fuisse in Fidiculani causa quod idem non esset in ceterorum.
114. You must either find fault with this trial, the prosecution in which appeared to rely on previous decisions, or else, if you admit that this was an honest one, you must allow that Oppianicus was condemned without money having been paid to procure his condemnation. Although it ought to be proof enough for any one, that no one out of so many judges was proceeded against after Falcula had been acquitted.—For why do you bring up men convicted of bribery under a different law, the charges being well proved, the witnesses being numerous? when, in the first place, these very men ought to be accused of peculation rather than of bribery. For if, in trials for bribery, this was an hindrance to them, that they were being prosecuted under a different law, at all events it would have been a much greater injury to them to be brought before the court according to the law properly belonging to this offence.
114. hoc iudicium reprehendas tu cuius accusatio rebus iudicatis nitebatur necesse est aut, si hoc verum esse concedis, Oppianicum gratiis condemnatum esse fateare. satis magno argumento esse debet quod ex tam multis iudicibus absoluto Falcula nemo reus factus est. enim mihi damnatos ambitus conligitis alia lege, certis criminibus, plurimis testibus? cum primum illi ipsi debuerint potius accusari de pecuniis repetundis quam ambitus. si in ambitus iudiciis hoc eis obfuit, cum alia lege causam dicerent, certe, si propria lege huius peccati adducti essent, multo plus obfuisset.
115. In the second place, if the weight attached to this accusation was so great, that, under whatever law any one of those judges was prosecuted, he must be utterly ruined; then why, when there: are such crowds of accusers, and when the reward is so great, were not the others prosecuted too? On this, that case is mentioned, (which, however, has no right to be called a trial,) that an action for damages was brought against Publius Septimius Scaevola on that account; and what the practice is in cases of that sort, as I am speaking before men of the greatest learning, I have no need to occupy much time in explaining. For the diligence which is usually displayed in other trials, is never exercised after the defendant has been convicted.
115. , si tanta vis fuit istius criminis ut, qua quisque lege ex illis iudicibus reus factus esset, tamen hac plaga periret, cur in tanta multitudine accusatorum, tantis praemiis, ceteri rei facti non sunt? profertur id quod iudicium appellari non oportet, P.Publio Septimio Scaevolae litem eo nomine esse aestimatam. rei quae consuetudo sit, quoniam apud homines peritissimos dico, pluribus verbis docere non debeo. enim ea diligentia quae solet adhiberi in ceteris iudiciis, eadem reo damnato adhibita est.
116. In actions for damages, the judges usually, either because they think that a man whom they have once convicted is hostile to them, if any mention of a capital charge against him is made, do not allow it; or else, because they think that their duties are over when they have given their decision respecting the defendant, they attend more carelessly to the other points. Therefore, very many men are acquitted of treason, when, if they were condemned, actions would be brought to recover damages on charges of peculation. And we see this happen every day,—that when a defendant has been convicted of peculation, the judges acquit those men to whom, in fixing the damages, it has been settled that the money has come; and when this is the case, the decisions are not rescinded, but this principle is laid down, that the assessment of damages is not a judicial trial. Scaevola was convicted of other charges, by a great number of witnesses from Apulia. The greatest possible eagerness was shown in endeavoring to have that action considered as a capital prosecution. And if it had had the weight of a case already decided, he afterwards, according to this identical law, would have been prosecuted either by the same enemies, or by others.
116. litibus aestimandis fere iudices aut, quod sibi eum quem semel condemnarunt inimicum putant esse, si qua in eum lis capitis inlata est, non admittunt aut, quod se perfunctos iam esse arbitrantur cum de reo iudicarunt, neglegentius attendunt cetera. et maiestatis absoluti sunt permulti quibus damnatis de pecuniis repetundis lites maiestatis essent aestimatae, et hoc cotidie fieri videmus ut reo damnato de pecuniis repetundis, ad quos pervenisse pecunias in litibus aestimandis statutum sit, eos idem iudices absolvant; quod cum fit, non iudicia rescinduntur sed hoc statuitur, aestimationem litium non esse iudicium. Scaevola condemnatus est aliis criminibus frequentissimis Apuliae testibus. contentione pugnatum est uti lis haec capitis aestimaretur. res si rei iudicatae pondus habuisset, ille postea vel isdem vel aliis inimicis reus hac lege ipsa factus esset.
117. That follows, which they call a trial, but which our ancestors never called a trial, and never paid any attention to as if it had been a formal judicial decision, the animadversion and authority of the censors. But before I begin to speak on that subject, I must say a few words about my own duty, in order that it may be clearly seen that I have paid proper attention to this danger, and also to all other considerations of duty and friendship. For I have a friendship with both those brave men who were the last censors; and with one of them, (as most of you are aware,) I have the greatest intimacy, and the closest connection cemented by mutual good offices.
117. id quod illi iudicium appellant, maiores autem nostri numquam neque iudicium nominarunt neque proinde ut rem iudicatam observarunt, animadversio atque auctoritas censoria. de re ante quam dicere incipio, perpauca mihi de meo officio verba facienda sunt, ut a me cum huiusce periculi tum ceterorum quoque officiorum et amicitiarum ratio conservata esse videatur. mihi cum viris fortibus qui censores proxime fuerunt ambobus est amicitia; cum altero vero, sicuti plerique vestrum sciunt, magnus usus et summa utriusque officiis constituta necessitudo est.
118. So that, if I am forced to say anything of the reasons which they have given for their sentences, I shall say it with these feelings, that I shall wish everything that I say considered as having reference not to their individual conduct in particular, but to the whole principle of the censorial animadversion. But from Lentulus, my intimate friend, who out of regard for his eminent virtue and for the high honours which he has received from the Roman people, is named by me to do him honour, I shall easily obtain this indulgence, that, as he himself is always accustomed to employ the greatest good faith and diligence in matters affecting the safety of his friends, and also the greatest vigour of mind and freedom of speech, so, in this instance, he will not be offended with me for taking as much freedom my self, as I cannot forbear to take without danger to my client. But, everything shall be said by me carefully and deliberately, as indeed it ought to be, so that I shall not appear to have betrayed the cause entrusted to my good faith for its defence, nor to have injured the dignity of any one, nor to have disregarded any of the claims of friendship.
118. re quicquid de subscriptionibus eorum mihi dicendum erit, eo dicam animo ut omnem orationem meam non de illorum facto sed de ratione censoria habitam existimari velim; a Lentulo autem, familiari meo, qui a me pro eximia sua virtute summisque honoribus quos a populo Romano adeptus est honoris causa nominatur, facile hoc, iudices, impetrabo ut, quam ipse adhibere consuevit in amicorum periculis cum fidem et diligentiam tum vim animi libertatemque dicendi, ex hac mihi concedat ut tantum mihi sumam quantum sine huius periculo praeterire non possim. A me tamen, ut aequum est, omnia caute pedetemptimque dicentur ut neque fides huius defensionis relicta neque cuiusquam aut dignitas laesa aut amicitia violata esse videatur.
119. I see then, O judges, that the censors passed animadversion on some of the judges who sat on that trial which Junius presided over, and added to their sentence that that very trial was the cause of it. Now, first I will lay down this general principle, that this city has never been so content with censorial animadversions as with judicial decisions. Nor in so notorious a case need I waste time by citing instances. I will just adduce this one fact,—that Caius Geta, after he had been expelled the senate by Lucius Metellus and Cnaeus Domitius when they were censors, was himself appointed censor afterwards; and that he whose morals had met with this reproof from the censors, was afterwards appointed to judge of the morals of the whole Roman people, and of those very men who had thus punished him. But if that had been thought a final judicial decision, (as other men when they have been condemned by a sentence involving infamy are deprived for ever of all honour and all dignity, so) a man branded with this ignominy would never have had any subsequent access to honour, or any possibility of return to the senate.
119. igitur, iudices, animadvertisse censores in iudices quosdam illius consili Iuniani, cum istam ipsam causam subscriberent. illud primum commune proponam, numquam animadversionibus censoriis hanc civitatem ita contentam ut rebus iudicatis fuisse. in re nota consumam tempus; exempli causa ponam illud unum, C.Gaium Getam, cum a L.Lucio Metello et Cn.Gnaeo Domitio censoribus ex senatu eiectus esset, censorem esse ipsum postea factum et, cuius mores erant a censoribus reprehensi, hunc postea et populi Romani et eorum qui in ipsum animadverterant moribus praefuisse. si illud iudicium putaretur, ut ceteri turpi iudicio damnati in perpetuum omni honore ac dignitate privantur, sic hominibus ignominia notatis neque ad honorem aditus neque in curiam reditus esset.
120. Now, if the freedman of Cnaeus Lentulus or of Lucius Gellius should convict any man of theft, he, being deprived of all his credit, will never recover any portion of his honourable position in the city; but those men, whom Lucius Gellius himself and Cnaeus Lentulus, the two censors, most illustrious citizens and most wise men, have animadverted on, and, in their reasons for their sentences, have imputed to them theft and peculation, have not only returned to the senate, but have been acquitted of those very charges by judicial sentence. Our ancestors did not think it fit for any one to be a judge, not only of any one's character, but not even of the most insignificant money matter, if he had not been agreed to by both the contending parties. Wherefore, in every law in which exception has been made of causes for which a magistrate may not be taken, or a judge elected, or another man accused, this cause of ignominy is passed over. For their intention was that the power of the censors should strike the profligate with terror, but not that it should have power over their lives.
120. si quem Cn.Gnaei Lentuli aut L.Lucii Gelli libertus furti condemnarit, is omnibus ornamentis amissis numquam ullam honestatis suae partem reciperabit; quos autem ipse L.Lucius Gellius et Cn.Gnaeus Lentulus, duo censores, clarissimi viri sapientissimique homines, furti et captarum pecuniarum nomine notaverunt, ei non modo in senatum redierunt sed etiam illarum ipsarum rerum iudiciis absoluti sunt. voluerunt maiores nostri non modo de existimatione cuiusquam sed ne pecuniaria quidem de re minima esse iudicem, nisi qui inter adversarios convenisset. in omnibus legibus quibus exceptum est de quibus causis aut magistratum capere non liceat aut iudicem legi aut alterum accusare, haec ignominiae causa praetermissa est. enim causam, non vitae poenam in illa potestate esse voluerunt. non solum illud ostendam quod iam videtis, populi Romani suffragiis saepenumero censorias subscriptiones esse sublatas, verum etiam iudiciis eorum qui iurati statuere maiore cum religione et diligentia debuerunt.
121. Therefore, O judges, I will not only prove what you are already aware of, that the censorial animadversions, and the reasons given for them too, have often been overturned by the votes of the Roman people, but that they have also been upset by the judicial sentences of those men who, being on their oaths, were bound to give their decisions with more scrupulousness and care. In the first place, O judges, in the case of many defendants, whom the censors in their notes accused of having taken money contrary to the laws, they were guided by their own conscientious judgment, rather than by the opinion expressed by the censors. In the second place, the city praetors, who are bound by their oaths to select only the most virtuous men to be judges, have never thought that the fact of a man's having been branded with ignominy by the censors was any impediment to their making him a judge.
121. iudices, senatores equitesque Romani, in compluribus iam reis quos contra leges pecunias accepisse subscriptum est suae potius religioni quam censorum opinioni paruerunt. praetores urbani qui iurati debent optimum quemque in lectos iudices referre numquam sibi ad eam rem censoriam ignominiam impedimento esse oportere duxerunt.
122. And lastly, the censors themselves have very often not adhered to the decisions, if you insist on their being called decisions, of former censors. And even the censors themselves consider their own decisions to be of only so much weight, that one is not afraid to find fault with, or even to rescind the sentence of the other; so that one decides on removing a man from the senate, the other wishes to have him retained in it, and thinks him worthy of the highest rank. The one orders him to be degraded to the rank of an aerarian or to be entirely disfranchised; the other forbids it. So that how can it occur to you to call those judicial decisions which you see constantly rescinded by the Roman people, repudiated by judges on their oaths, disregarded by the magistrates, altered by those who have the same power subsequently conferred on them, and in which you see that the colleagues themselves repeatedly disagree?
122. denique ipsi saepe numero superiorum censorum iudiciis, si ista iudicia appellare voltis, non steterunt. etiam ipsi inter se censores sua iudicia tanti esse arbitrantur ut alter alterius iudicium non modo reprehendat sed etiam rescindat, ut alter de senatu movere velit, alter retineat et ordine amplissimo dignum existimet, ut alter in aerarios referri aut tribu moveri iubeat, alter vetet. re qui vobis in mentem venit haec appellare iudicia quae a populo Romano rescindi, ab iuratis iudicibus repudiari, a magistratibus neglegi, ab eis qui eandem potestatem adepti sunt commutari, inter conlegas discrepare videatis?
123. And as all this is the case, let us see what the censors are said to have decided respecting that corrupt tribunal. And first of all let us lay down this principle; whether a thing is so because the censors have stated it in their notes, or whether they made such a statement in their notes because it was the fact. If it is the case because they have so stated it, take care what you are doing; beware lest you are establishing for the future a king by power in the person of every one of our censors,—beware lest the note of a censor may hereafter be able to cause as much distress to the citizens as that terrible proscription did,—beware lest we have reason to dread for the future that pen of the censor, whose point our ancestors blunted by many remedies, as much as that sword of the dictator.
123. cum ita sint, videamus quid tandem censores de illo iudicio corrupto iudicasse dicantur. primum illud statuamus utrum, quia censores subscripserint, ita sit, an, quia ita fuerit, illi subscripserint. quia subscripserint, videte quid agatis ne in unum quemque nostrum censoribus in posterum potestatem regiam permittatis, ne subscriptio censoria non minus calamitatis civibus quam illa acerbissima proscriptio possit adferre, ne censorium stilum cuius mucronem multis remediis maiores nostri rettuderunt aeque posthac atque illum dictatorium gladium pertimescamus. autem quod subscriptum est, quia verum est, idcirco grave debet esse, hoc quaeramus verum sit an falsum;
124. But if the statement which has been made in their notes ought to carry weight with it because it is true, then let us inquire whether it be true or false; let the authority of the censor be put out of the question —let that consideration be taken out of the cause which has no connection with it. Tell me what money Cluentius gave, where he got it, how he gave it; show me, in short, one trace of any money having proceeded from Cluentius. After that, prove that Oppianicus was a virtuous citizen, or an honest man; that no one had ever had a bad opinion of him; that no unfavourable decision had ever been come to respecting him. Then take in the authority of the censors; then argue that their decision has any connection whatever with this case.
124. removeantur auctoritates censoriae, tollatur id ex causa quod in causa non est; doce quam pecuniam Cluentius dederit, unde dederit, quem ad modum dederit; unum denique aliquod a Cluentio profectae pecuniae vestigium ostende. deinde bonum virum fuisse Oppianicum, hominem integrum, nihil de illo umquam secus esse existimatum, nihil denique praeiudicatum. auctoritatem censoriam amplexato, tum illorum iudicium cum re coniunctum esse defendito.
125. But as long as it is plain that Oppianicus was a man who was convicted of having tampered with the public registers of his own municipality, of having made erasures in a will, of having substituted another person in order to accomplish the forgery of a will, of having murdered the man whose name he had put to the will, of having thrown into slavery and into prison the uncle of his own son and then murdered him, of having contrived to get his own fellow-citizens proscribed and murdered, of having married the wife of the man whom he had murdered, of having given money for poisoning, of having murdered his mother-in-law and his wife, of having murdered at one time his brother's wife, the children who were expected, and his own brother himself,—lastly, of having murdered his own children; as he was a man who was manifestly detected in procuring poison for his son-in-law,—who, when his assistants and accomplices had been condemned, and when he himself was prosecuted, gave money to one of the judges to influence by bribes the votes of the other judges;—while, I say, all this is notorious about Oppianicus, and while the accusation of bribery against Cluentius is not sustained by any one single proof, what reason is there that that sentence of the censors, whether it is to be called their wish or their opinion, should either seem to be any assistance to you, or to be able to overwhelm my innocent client?
125. vero eum fuisse Oppianicum constabit qui tabulas publicas municipi manu sua corrupisse iudicatus sit, qui testamentum interleverit, qui supposita persona falsum testamentum obsignandum curaverit, qui eum cuius nomine id obsignatum est interfecerit, qui avunculum fili sui in servitute ac vinculis necaverit, qui municipes suos proscribendos occidendosque curaverit, qui eius uxorem quem occiderat in matrimonium duxerit, qui pecuniam pro abortione dederit, qui socrum, qui uxores, qui uno tempore fratris uxorem speratosque liberos fratremque ipsum, qui denique suos liberos interfecerit, qui, cum venenum privigno suo dare vellet, manifesto deprehensus sit, cuius ministris consciisque damnatis ipse adductus in iudicium pecuniam iudici dederit ad sententias iudicum corrumpendas, dum haec, inquam, de Oppianico constabunt neque ullo argumento Cluentianae pecuniae crimen tenebitur, quid est quod te ista censoria sive voluntas sive opinio fuit adiuvare aut hunc innocentem opprimere posse videatur?
126. What was it, then, that influenced the censors? Even they themselves, if they were to allege the most serious reason that they could, would not say it was anything else beyond common conversation and report. They will say that they found out nothing by witnesses, nothing by documents, nothing by any important evidence, nothing, in short, from any investigation of the cause. If they had investigated it, still their sentence ought not to have been so fixed as to be impossible to be altered. I will not quote precedents, of which, however, there is an infinite number; I will not mention any old instance, or any powerful or influential man. Very lately, when I had defended an insignificant man, clerk to the aediles, Decius Matrinius, before Marcus Junius and Quintus Publicius, the praetors, and before Marcus Platorius and Caius Flaminius, the curule aediles, I persuaded them,—men sworn to do their duty,—to choose him for their secretary whom those same censors had made an aerarian; for as there was no fault found in the man, they thought that they ought to inquire what he deserved, and not what resolution had been come to respecting him.
126. igitur censores secuti sunt? ipsi quidem, ut gravissime dicam, quicquam aliud dicent praeter sermonem atque famam. se testibus, nihil tabulis, nihil aliquo gravi argumento comperisse, nihil denique causa cognita statuisse dicent. si ita fecissent, tamen id non ita fixum esse deberet ut convelli non liceret. utar exemplorum copia quae summa est, non rem veterem, non hominem potentem aliquem aut gratiosum proferam. hominem tenuem, scribam aedilicium, D.Decimum Matrinium, cum defendissem apud M.Marcum Iunium Q.Quintum Publicium praetores et M.Marcum Plaetorium C.Gaium Flaminium aedilis curulis, persuasi ut scribam iurati legerent eum quem idem isti censores aerarium reliquissent. enim in homine nulla culpa inveniretur, quid ille meruisset, non quid de eo statutum esset, quaerendum esse duxerunt.
127. For as for these things which they have stated in their notes, about corrupting the judges, who is there who believes that they were sufficiently ascertained or carefully inquired into by them? I see that a note was made by the censors respecting Marcus Aquillius and Titus Gutta;—what does this mean? Were those two the only men corrupted with bribes? What became of the rest? Did they, forsooth, condemn him for nothing? He, then, was not unfairly dealt with; he was not overwhelmed by means of bribes; it is not the case, as all these assemblies stirred up by Quinctius would have it, that all the men who voted against Oppianicus are to be imagined criminal, or at all events suspected. I see that two men alone are judged by the authority of the censors to have been implicated in that infamy; or else they must allege that there is something which they have found out concerning those two men which they have not found out respecting the others.
127. haec quidem quae de iudicio corrupto subscripserint quis est qui ab illis satis cognita et diligenter iudicata arbitretur? M’.Manlium Aquilium et in Ti.Tiberium Guttam video esse subscriptum. est hoc? duos esse corruptos solos pecunia iudicant; ceteri videlicet gratiis condemnarunt. est igitur circumventus, non oppressus pecunia, non, ut in illa Quinctiana contione habebatur, omnes qui Oppianicum condemnarunt in culpa sunt ac suspicione ponendi. solos video auctoritate censorum adfinis ei turpitudini iudicari. illud adferant, aliquid eos quod de his duobus habuerint compertum de ceteris comperisse.
128. For that indeed can never be allowed, that they should transfer the usage of military discipline to the animadversions and authority of the censors; for our ancestors established a rule, that if in military affairs a crime had been committed by a number of soldiers, a few should be punished by lot, that so fear might have its influence on all, while the punishment reached only a few. But how can it be fitting for the censors to act on this principle in the distribution of dignities, in their judgment on the character of citizens, and in their punishment of their vices? For a soldier who has not maintained his post, who has been afraid of the vigorous attack of the enemy, may still hereafter become a better soldier, and a virtuous man, and a useful citizen. Wherefore, to prevent his committing offences in time of war through fear of the enemy, the great fear of death and execution was established by our ancestors; but yet, that the number of those who underwent capital punishment might not be too great, that plan of drawing lots was invented.
128. illud quidem minime probandum est, ad notationes auctoritatemque censoriam exemplum illos ⟨e⟩ consuetudine militari transtulisse. enim ita maiores nostri ut, si a multis esset flagitium rei militaris admissum, sortito in quosdam animadverteretur, ut metus videlicet ad omnis, poena ad paucos perveniret. idem facere censores in delectu dignitatis et in iudicio civium et in animadversione vitiorum qui convenit? miles qui locum non tenuit, qui hostium impetum vimque pertimuit, potest idem postea et miles esse melior et vir bonus et civis utilis. re ne ⟨quis⟩ in bello propter hostium metum delinqueret, amplior ei mortis et supplici metus est a maioribus constitutus; ne autem nimium multi poenam capitis subirent, idcirco illa sortitio comparata est.
129. But will you, O censor, act in this way when choosing the senate? Supposing there are many who have taken bribes to condemn an innocent man, will you not punish all of them, but will you pick as you choose, and select a few out of the many to brand with ignominy? Shall the senate then, while you see and know it to be the case, have a senator—shall the Roman people have a judge—shall the republic have a citizen, unmarked by any ignominy, who, to cause the ruin of an innocent man, has sold his good faith and religion for a bribe? And shall a man, who, being induced by a bribe, has deprived an innocent citizen of his country, his fortune, and his children, not be branded by the stigma of the censor's severity? Are you the prefect appointed to supervise our manners—are you a teacher of the ancient discipline and severity, if you either knowingly retain any one in the senate who is tainted with such wickedness, or if you decide that it is not right to inflict the same punishment on every one who is guilty of the same fault, or wild you establish the same principle of punishment with respect to the dishonesty of a senator in his peaceful capacity, which our ancestors chose to establish with respect to the cowardice of a soldier in time of war? Moreover, if this precedent ought to have been transferred from military affairs to the animadversion of the censors, at all events the system of drawing lots should have been retained. But if it is not consistent with the dignity of a censor to draw lots for punish meet, and to commit the guilt of men to the decision of fortune, it certainly cannot be right in the case of an offence committed by many, that a few should be selected for ignominy and disgrace.
129. tu idem facies censor in senatu legendo? erunt plures qui ob innocentem condemnandum pecuniam acceperint, tu non animadvertes in omnis, sed carpes, ut velis, et paucos ex multis ad ignominiam sortiere? igitur te sciente et vidente curia senatorem, populus Romanus iudicem, res publica civem sine ignominia quemquam qui ad perniciem innocentis fidem suam et religionem pecunia commutarit, et qui pretio adductus eripuerit patriam, fortunas, liberos civi innocenti, is censoriae severitatis nota non inuretur? es praefectus moribus, tu magister veteris disciplinae ac severitatis, si aut retines quemquam sciens in senatu scelere tanto contaminatum aut statuis qui in eadem culpa sit non eadem poena adfici convenire? quam condicionem supplici maiores in bello timiditati militis propositam esse voluerunt, eandem tu in pace constitues improbitati senatoris? si hoc exemplum ex re militari ad animadversionem censoriam transferendum fuit, sortito id ipsum factum esse oportuit. autem sortiri ad poenam et hominum delictum fortunae iudicio committere minime censorium est, certe in multorum peccato carpi paucos ad ignominiam et turpitudinem non oportet.
130. But we all understand that in these notes of the censors the real object was to catch at some breeze of popular favour. The matter had been brought forward in the assembly by a factious tribune; without any investigation into the business, his conduct was approved by the multitude; no one was allowed to say a word on the other side; indeed, no one showed the least anxiety to espouse the other side of the question. Moreover, those judges had already become exceedingly unpopular. A few months afterwards there was a fresh and very great odium excited with respect to the courts of justice, arising out of the affair of marking the balloting balls. The disgrace into which the courts were fallen appeared quite impossible to be overlooked or treated with indifference by the censors. So they chose to brand those men whom they saw were infamous for other vices, and for generally disgraceful lives, with their animadversion and special note also; and so much the more, because at that very time, during their censorship, the right of sitting as judges was divided with the equestrian body, in order that they might seem to have reproved those tribunals by their authority, through the ignominy inflicted on deserving men.
130. omnes intellegimus in istis subscriptionibus ventum quendam popularem esse quaesitum. res erat in contione a tribuno seditioso; incognita causa probatum erat illud multitudini; nemini licitum est contra dicere, nemo denique ut defenderet contrariam partem laborabat. invidiam porro magnam illa iudicia venerant. paucis postea mensibus alia vehemens erat in iudiciis ex notatione tabellarum invidia versata. ab censoribus et neglegi macula iudiciorum posse non videbatur., quos ceteris vitiis atque omni dedecore infamis videbant, eos hac quoque subscriptione notare voluerunt, et eo magis quod illo ipso tempore illis censoribus erant iudicia cum equestri ordine communicata, ut viderentur per hominum idoneorum ignominiam sua auctoritate ⟨rem⟩ reprendisse.
131. But if I or any one else had been allowed to plead this cause before those censors, I would certainly have proved to the satisfaction of men endowed with such prudence, (for the facts of the case prove it,) that they themselves had ascertained nothing, had discovered nothing; but that in all those notes appended to their animadversions nothing had guided them but rumour, and nothing had been sought but popular applause. For to the name of Publius Popillius, who had condemned Oppianicus. Lucius Gellius had appended a note, “because he had taken money to condemn an innocent man.” Now what a real conjurer that man must be, O judges, to know that a man was innocent, whom, very likely, he had never seen, when the very wisest men, to say nothing of those who actually condemned him, after investigation of the case, said that they, were not without doubt in the matter?
131. si hanc apud eosdem ipsos censores mihi aut alii causam agere licuisset, hominibus tali prudentia praeditis certe probavissem; res enim indicat nihil ipsos habuisse cogniti, nihil comperti; ex tota ista subscriptione rumorem quendam et plausum popularem esse quaesitum. in P.Publium Popilium qui Oppianicum condemnarat subscripsit L.Lucius Gellius, quod is pecuniam accepisset quo innocentem condemnaret. id ipsum quantae divinationis est, scire innocentem fuisse reum quem fortasse numquam viderat, cum homines sapientissimi, iudices, ut nihil dicam de eis qui condemnarunt, causa cognita sibi dixerint non liquere!
132. However, be it so. Gellius condemns Popillius. He decides that he had accepted money from Cluentius. Lentulus says that he had not. For he did not elect Popillius into the senate, because he was the son of a freedman; but he left him his place as a senator at the games, and the other ornaments of that rank, and released him from all ignominy. And by doing so, he declares his opinion, that he had voted against Oppianicus without having been bribed to do so. And afterwards Lentulus, on a trial for bribery, gave his evidence most zealously in favour of this same Popillius. Wherefore, if Lentulus did not agree with the decision of Lucius Gellius, and if Gellius was not contented with the opinion delivered by Lentulus, and if each censor thought himself not bound at all by the opinion of the other censor, what reason is there why any one of us should think that the notes of the censors ought to be all fixed and ratified so as to be unalterable for ever?
132. esto; condemnat Popilium Gellius, iudicat ⟨eum⟩ accepisse a Cluentio pecuniam. hoc Lentulus; nam Popilium, quod erat libertini filius, in senatum non legit, locum quidem senatorium ludis et cetera ornamenta relinquit et eum omni ignominia liberat. cum facit, iudicat eius sententia gratiis esse Oppianicum condemnatum. eundem Popilium postea Lentulus in ambitus iudicio pro testimonio diligentissime laudat. re si neque L.Lucii Gelli iudicio stetit Lentulus neque Lentuli existimatione contentus fuit Gellius, et si uterque censor censoris opinione standum non putavit, quid est quam ob rem quisquam nostrum censorias subscriptiones omnis fixas et in perpetuum ratas putet esse oportere?
133. Oh, but they visited Habitus himself with their censure. Not for any baseness, nor for any, I will not say vice, but not even for any fault of his own in his whole life. For no one can possibly be a more religious man, or a more honourable one, or more scrupulous in fulfilling all his duties. Nor indeed does the opposite party say anything to the contrary, but they adopt the same report of the judges having been bribed. Nor indeed have they any contrary opinion to that which we wish to be entertained about his modesty, integrity, and virtue; but they thought it quite impossible for the accuser to be passed over after the judges had been punished. And with respect to this whole business, if I produce one precedent from the whole of our ancient history, I will say no more.
133. in ipsum animadverterunt. quidem ob turpitudinem, nullum ob totius vitae non dicam vitium sed erratum. enim hoc homine sanctior neque probior neque in omnibus officiis retinendis diligentior esse quisquam potest; neque illi aliter dicunt, sed eandem illam famam iudici corrupti secuti sunt; neque ipsi secus existimant quam nos existimari volumus de huius pudore, integritate, virtute, sed putarunt praetermitti accusatorem non potuisse, cum animadversum esset in iudices. de re tota si unum factum ex omni antiquitate protulero, plura non dicam.
134. For I think that I ought not to pass over the instance of that most eminent and most illustrious man, Publius Africanus; who, when he was censor, and when Caius Licinius Sacerdos had appeared on the register of the knights, said with a loud voice, so that the whole assembly could hear him, that he knew that he had committed deliberate perjury and that if any one denied it, he would give him his own evidence in support of this assertion. But when no one ventured to deny it, he ordered him to give up his horse. So that he, with whose decision the Roman people and foreign nations had been accustomed to content themselves, was not content with his own private knowledge as justifying him in branding another with ignominy. But if Habitus had been allowed to do this, he would have found it an easy matter to have resisted those very judges themselves, and the false suspicion, and the odium excited in the breasts of the people against him.
134. enim mihi exemplum summi et clarissimi viri, P.Publii Africani, praetereundum videtur; qui cum esset censor et in equitum censu C.Gaius Licinius Sacerdos prodisset, clara voce ut omnis contio audire posset dixit se scire illum verbis conceptis peierasse; si qui contra vellet dicere, usurum esse eum suo testimonio. cum nemo contra diceret, iussit equum traducere. is cuius arbitrio et populus Romanus et exterae gentes contentae esse consuerunt ipse sua scientia ad ignominiam alterius contentus non fuit. si hoc facere licuisset, facile illis ipsis iudicibus et falsae suspicioni et invidiae populariter excitatae restitisset.
135. There is still one thing which especially perplexes me, and a topic to which I appear to have scarcely made any sufficient reply,—namely, the eulogy which you read, extracted from the will of Caius Egnatius, the father, a most honourable man, and a most wise one; saying that he had disinherited his son, because he had taken a bribe to vote for the condemnation of Oppianicus. Of that man's inconstancy and feebleness I will not say another word. This very will which you are reading is such, that he, when he was disinheriting that son whom he hated, was joining with his other son whom he loved, the most perfect strangers as his coheirs. But I think that you, O Attius, should consider carefully, whether you wish the decision of the censors, or that of Egnatius, to carry most weight with it. If that of Egnatius, that is a trifling thing which the censors have expressed in their notes about the others; for they expelled Egnatius himself from the senate, whom you wish to be considered an authority. If that of the censors is to preponderate, then the censors when they expelled his father, retained this Egnatius in the senate, whom his father disinherited on account of the note which the censors had written respecting him.
135. Vnum etiam est quod me maxime perturbat, cui loco respondere vix videor posse, quod elogium recitasti de testamento Cn.Gnaei Egnati patris, hominis honestissimi videlicet et sapientissimi, idcirco se exheredasse filium quod is ob Oppianici condemnationem pecuniam accepisset. cuius hominis levitate et inconstantia plura non dicam; hoc testamentum ipsum quod recitas eius modi est ut ille, cum eum filium exheredaret quem oderat, ei filio coheredes homines alienissimos adiungeret quem diligebat. tu, Atti, consideres censeo diligenter utrum censorium iudicium grave velis esse an Egnati. Egnati, leve est quod censores de ceteris subscripserunt; ipsum enim Cn.Gnaeum Egnatium quem tu gravem esse vis ex senatu eiecerunt; sin autem censorium, hunc Egnatium quem pater censoria subscriptione exheredavit censores in senatu, cum patrem eicerent, retinuerunt.
136. Oh, but the whole senate judged that that tribunal had been bribed. How so? It undertook the cause. Could it pass over with indifference a matter of that sort when reported to it? When a tribune of the people, having stirred up the multitude, had almost brought the matter to a trial of strength; when a most virtuous citizen and most innocent man was said to have been unjustly condemned through the influence of money; when the whole body of senators was exceedingly unpopular, was it possible for no edict to be issued? Was it possible for all that excitement of the multitude to be disregarded without extreme danger to the republic? But what was decreed? How justly, how wisely, how diligently was it decreed? “If there are any men by whose agency the public court of justice was corrupted.” Does the senate appear here to decide that any such thing was really done? or rather to be exceedingly angry and indignant if such a thing was done? If Aulus Cluentius himself were asked his opinion about the courts of justice he would express no other sentiments than those which they expressed, by whose sentences you say that Aulus Cluentius was condemned.
136. enim senatus universus iudicavit illud corruptum esse iudicium. modo? causam. potuit rem delatam eius modi repudiare? cum tribunus plebis, populi concitator, rem paene ad manus revocasset, cum vir optimus et homo innocentissimus pecunia circumventus diceretur, cum invidia flagraret ordo senatorius, potuit nihil decerni, potuit illa concitatio multitudinis sine summo periculo rei publicae repudiari? quid est decretum? iuste, quam sapienter, quam diligenter! qui sunt quorum opera factum sit ut iudicium publicum corrumperetur. Vtrum videtur id senatus factum iudicare an, si factum sit, moleste graviterque ferre? ipse A.Aulus Cluentius sententiam de iudiciis rogaretur, aliam non diceret atque ei dixerunt quorum sententiis Cluentium condemnatum esse dicitis.