He appoints as his umpire his friend Marcus Trebellius; we name a common friend, a relation of our own, Sextus Alphenus, who had been brought up in his house, and with whom he was exceedingly intimate. No agreement could be come to; because the one was willing to put up with a slight loss, but the other was not content with a moderate booty.

So from that time the matter was referred to legal decision. Lit. “recognizances were entered into.” When the praetor had granted an action, the plaintiff required the defendant to give security for his appearance before the praetor on a stated day, commonly the day but one after the in jus vocatio. After many delays, and when much time had been wasted in that business, and nothing had been done, Naevius appeared before the judge.

I beseech you, O Caius Aquillius, and you the assessors in this suit, to observe carefully, in order that you may be able to understand the singular nature of this fraud, and the new method of trickery employed.

He says that he had had a sale by auction in Gaul; that he had sold what he thought fit; that he had taken care that the partnership should owe him nothing; that he would have no more to do with summoning any one, or with giving security; if Quinctius had any business to transact with him, he had no objection. He, as he was desirous to revisit his farm in Gaul, does not summon the man at present; so he departs without giving security. After that, Quinctius remains at Rome about thirty days. He gets any securities which he had given other people respited, so as to be able to go without hindrance into Gaul.

He goes; he leaves Rome on the twenty-ninth of January, in the Consulship of Scipio and Norbanus;—I beg of you to remember the day. Lucius Albius the son of Sextus of the Quirine tribe, a good man and of the highest reputation for honour, set out with him. When they had come to the place called the fords of Volaterra, they see a great friend of Naevius, who was bringing him some slaves from Gaul to be sold, Lucius Publicius by name, who when he arrived in Rome told Naevius in what place he had seen Quinctius; and unless this had been told Naevius by Publicius, the matter would not so soon have come to trial.

Then Naevius sends his slaves round to his friends; he summons himself all his associates from the halls of Licinius and from the jaws of the shambles, and entreats them to come to the booth of Sextus by the second hour of the next day. They come in crowds; he makes oath that Publius Quinctius has not appeared to his bail, and that he has appeared to his. A long protest to this effect is sealed with the seals of noble men. They depart: Naevius demands of Burrienus the praetor, that by his edict he may take possession of Quinctius's goods. If either party did not appear on the appointed day, he was said vadimonium deserere, and the praetor gave to the other party the bonorum possessio. Vide Smith's Dict. Ant. p. 9. v. Actio. He urged the confiscation of the property of that man with whom he had had intimacy, with whom he actually was in partnership, between whom and himself there was a relationship, which while his children lived could not possibly be annulled.

From which act it could easily be perceived that there is no bond so holy and solemn, that avarice is not in the habit of weakening and violating it. In truth, if friendship is kept up by truth, society by good faith, relationship by affection, it is inevitable that he who has endeavoured to despoil his friend, his partner, and his relation of fame and fortune, should confess himself worthless and perfidious and impious.

Sextus Alphenus, the agent of Publius Quinctius, the intimate friend and relation of Sextus Naevius, tears down the bills; carries off one little slave whom Naevius had laid hold of; gives notice that he is the agent, and that it is only fair that that fellow should consult the fame and fortunes of Publius Quinctius, and await his arrival. But if he would not do so, and believed that by such methods he could bring him into the conditions which he proposed, then he asked nothing as a favour, and if Naevius chose to go to law, he would defend him at the trial.

While this is being done at Rome, meantime Quinctius, contrary to law and to custom, and to the edicts of the praetors, is driven by force by the slaves which belonged to both him and Naevius, as partners, from their common lands and estates. Think, O Caius Aquillius, that Naevius did everything at Rome with moderation and good sense, if this which was done in Gaul in obedience to his letters was done rightly and legally. Quinctius being expelled and turned out of his farm, having received a most notorious injury, flies to Caius Flaccus the general, who was at that time in the province; whom I name to do him honour as his dignity demands. How strongly he was of opinion that that action called for punishment you will be able to learn from his decrees.

Meantime Alphenus was fighting every day at Rome with that old gladiator. He had the people indeed on his side, because that fellow never ceased to aim at the head. There is an allusion here to the fights of gladiators, in which the people disapproved of that gladiator who aimed too constantly at the vital parts of his adversary, so as to make the combat short. There is a pun here, caput meaning the head or life of the gladiator, and also the condition of a citizen. Naevius demanded that the agent should give security for payment on judgment being given. Alphenus says that it is not reasonable for an agent to give security, because the defendant would not be bound to give security if he were present himself. The tribunes are appealed to, and as a positive decision was demanded from them, the matter is terminated on the footing of Sextus Alphenus undertaking that Publius Quinctius should answer to his bail by the thirteenth of September.

Quinctius comes to Rome; he answers to his bail. That fellow, that most energetic man, the seizer of other men's goods, that invader, that robber, for a year and a half asks for nothing, keeps quiet, amuses Quinctius by proposals as long as he can, and at last demands of Cnaeus Dolabella, the praetor, that Quinctius should give security for payment on judgment being given, according to the formula, “Because he demands it of him whose goods he has taken possession of for thirty days, according to the edict of the praetor.” Quinctius made no objection to his ordering him to give security, if his goods had been possessed, in accordance with the praetor's edict. He makes the order; how just a one I do not say—this alone I do say, it was unprecedented: and I would rather not have said even this, since any one could have understood both its characters. He orders Publius Quinctius to give security to Sextus Naevius, to try the point whether his goods had been taken possession of for thirty days, in accordance with the edict of the praetor. The friends who were then with Quinctius objected to this: they showed that a decision ought to be come to as to the fact, so that either each should give security to the other, or else that neither should; that there was no necessity for the character of either being involved in the trial.

Moreover, Quinctius himself cried out that he was unwilling to give security, lest by so doing he should seem to admit that his goods had been taken possession of in accordance with the edict: besides, if he gave a bond in that manner, he should be forced (as has now happened) to speak first in a trial affecting himself capitally. Dolabella (as high-born men are wont to do, who, whether they have begun to act rightly or wrongly, carry either conduct to such a height that no one born in our rank of life can overtake them) perseveres most bravely in committing injustice: he bids him either give security or give a bond; and meantime he orders our advocates, who objected to this, to be removed with great roughness.

Quinctius departs much embarrassed; and no wonder, when so miserable a choice was offered him, and one so unjust, that he must either himself convict himself of a capital offence if he gave security, Because the giving security now would be an admission that he had forfeited his recognizances before; which was liable to be punished with infamia or open the cause himself in a capital trial if he gave a bond. As in the one case there was no reason why he should pass an unfavourable sentence on himself (for sentence passed by oneself is the hardest sentence of all), but in the other case there was hope of coming before such a man as a judge, as would show him the more favour the more without interest he was, he preferred to give a bond. He did so. He had you, O Caius Aquillius, for the judge; he pleaded according to his bond; in what I have now mid consists the sum and the whole of the present trial.

You see, O Caius Aquillius, that it is a trial touching not the property of Publius Quinctius, but his fame and fortunes. Though our ancestors have determined that he who is pleading for his life should speak last, you see that we, owing to this unprecedented accusation of the prosecutor's, are pleading our cause first. Moreover, you see that those who are more accustomed He means Hortensius. to defend people are today acting as accusers; and that those talents are turned to do people injury, which have hitherto been employed in ministering to men's safety, and in assisting them. There remained but one thing more, which they put in execution yesterday,—namely, to proceed against you for the purpose of compelling you to limit the time allowed us for making our defence; and this they would easily have obtained from the praetor if you had not taught him what your rights and duties and business were.

Nor was there any longer any assistant left to us but yourself by whose means we could obtain our rights against them. Nor was it even enough for them to obtain that which might be justified to everybody; so trifling and insignificant a thing do they think power to be which is not exercised with injustice. But since Hortensius urges you to come to a decision, and requires of use that I should not waste time in speaking, and complains that when the former advocate was defending this action it never could be brought to a conclusion, I will not allow that suspicion to continue to exist, that we are unwilling for the matter to be decided, nor will I arrogate to myself a power of proving the case better than it has been proved before; nor yet will I make a long speech, because the cause has already been explained by him who has spoken before, and brevity, which is exceedingly agreeable to me, is required of me, who am neither able to devise He mentions in the Brutus that he was at this time in a very delicate state of health. Erat eo tempore in nobis summa gracilitas et infirmitas corporis. Brutus, 313. nor to utter many arguments.

I will do what I have often observed you do, O Hortensius; I will distribute my argument on the entire cause into certain divisions. You always do so, because you are always able. I will do so in this cause, because in this cause I think I can. That power which nature gives you of being always able to do so, this cause gives me, so that I am able to do so today. I will appoint myself certain bounds and limits, out of which I cannot stray if I ever so much wish; so that both I may have a subject on which I may speak, and Hortensius may have allegations which he may answer, and you, O Caius Aquillius, may be able to perceive beforehand what topics you are going to hear discussed. We say, O Sextus Naevius, that you did not take possession of the goods of Publius Quinctius in accordance with the edict of the praetor.

On that point the security was given. I will show first, that there was no cause why you should require of the praetor power to take possession of the goods of Publius Quinctius; in the second place, that you could not have taken possession of them according to the edict; lastly, that you did not take possession of them. I entreat you, O Caius Aquillius, and you too the assessors, to preserve carefully in your recollections what I have undertaken. You will more easily comprehend the whole business if you recollect this; and you will easily recall me by the expression of your opinion if I attempt to overstep those barriers to which I have confined myself. I say that there was no reason why he should make the demand; I say that he could not have taken possession according to the edict; I say that he did not take possession. When I have proved thee three things, I will sum up the whole.

There was no reason why you should make the demand, How can this be proved? Because Quinctius owed nothing whatever to Sextus Naevius, neither on account of the partnership, nor from any private debt. Who is a witness of this? Why, the same man who is our most bitter enemy. In this matter I will cite you—you, I say, O Naevius, as our witness Quinctius was with you in Gaul a year, and more than that, after the death of Caius Quinctius. Prove that you ever demanded of him this vast sum of money, I know not how much; prove that you ever mentioned it, ever said it was owing, and I will admit that he owed it.

Caius Quinctius dies; who, as you say, owed you a large sum for some particular articles. His heir, Publius Quinctius, comes into Gaul to you, to your joint estate—comes to that place where not only the property was, but also all the accounts and all the books. Who would have been so careless in his private affairs, who so negligent, who so unlike you, O Sextus, us not, when the effects were gone from his hands who had contracted the debt, and had become the property of his heir, to inform the heir of it as soon as he saw him? to apply for the money? to give in his account? and if anything were disputed, to arrange it either in a friendly manner, or by the intervention of strict law? Is it not so? that which the best men do, those who wish their relations and friends to be affectionate towards them and honourable, would Sextus Naevius not do that, he who so burns, who is so hurried away by avarice, that he is unwilling to give up any part of his own property, lest he should leave some fraction to be any credit or advantage to this his near relation.

And would he not demand the money, if any were owing, who , because that was not paid which was never owed, seeks to take away not the money only, but even the life of his relation? You were unwilling, I suppose, to be troublesome to him whom you will not allow even to live as a free man! You were unwilling at that time modestly to ask that man for money, whom you now will nefariously to murder! I suppose so. You were unwilling, or you did not dare, to ask a man who was your relation, who had a regard for you, a good man, a temperate man, a man older than yourself. Often (as sometimes happens with men), when you had fortified yourself, when you had determined to mention the money, when you had come ready prepared and having considered the matter, you being a nervous man, of virgin modesty, on a sudden checked yourself, your voice failed you, you did not dare to ask him for money whom you wished to ask, lest he should be unwilling to hear you. No doubt that was it.

Let us believe this, that Sextus Naevius spared the ears of the man whose life he is attacking! If he had owed you money, O Sextus, you would have asked for it at once; if not at once, at all events soon after; if not soon after, at least after a time; in six months I should think; beyond all doubt at the close of the year: but for a year and a half, when you had every day an opportunity of reminding the man of the debt, you say not one word about it; but now, when nearly two years have passed, you ask for the money. What profligate and extravagant spendthrift, even before his property is diminished, but while it is still abundant, would have been so reckless as Sextus Naevius was? When I name the man, I seem to myself to have said enough.