He wishes a decision to be come to concerning the accounts and disputes of the partnership. It is very late. However, better late than never; let us grant it. Oh, says be, I do not want that now, O Caius Aquillius; and I am not troubling myself about that now: Publius Quinctius has had the use of my money for so many years; let him use it, I do not ask anything. What then are you contending for? is it with that object that you have often announced in many places—that he may no longer be a citizen? that he may not keep that rank which hitherto he has most honourably preserved? that be may not be counted among the living? that he may be in peril of his life and all his honours? that he may have to plead his cause before the plaintiff speaks, and that when he has ended his speech he may then hear the voice of his accuser? What? What is the object of this? That you may the quicker arrive at your rights? But if you wished that might be already done. That you may contend according to a more respectable form of procedure?

But you cannot murder Publius Quinctius your own relation, without the greatest wickedness. That the trial may be facilitated I But neither does Caius Aquillius willingly decide on the life of another, nor has Quintus Hortensius been in the habit of pleading against a man's life. But what reply is made by us, O Caius Aquillius? He asks for his money: we deny that it is due. Let a trial take place instantly; we make no objection; is there anything more? If he is afraid that the money will not be forth coming when the decision is given let him take security that it shall be; and let him give security In many cases both plaintiff and defendant might be required to give security, (satis dare.) Smith, Dict. Ant. p.10, V. Actio. for what I demand in the very same terms in which we give security.

The matter can be terminated at once, O Caius Aquillius You can at once depart, being delivered from an annoyance, I had almost said, no less than that Quinctius is exposed to. What are we doing, Hortensius? what are we to say of this condition? Can we, some time or other, laying aside our weapons, discuss the money matter without hazard of any one's fortunes? Can we so prosecute our business, as to leave the life of our relation in safety? Can we adopt the character of a plaintiff, and lay aside that of an accuser? Yes, says he, I will take security from you, but I will not give you security. But who is it that lays down for us these very reasonable conditions? who determines this—that what is just towards Quinctius is unjust towards Naevius? The goods of Quinctius, says he, were taken possession of in accordance with the edict of the praetor. You demand then, that I should admit that; that we should establish by our own sentence, as having taken place, that which we go to trial expressly to prove never did take place.

Can no means be found, O Caius Aquillius, for a man's arriving at his rights as expeditiously as maybe without the disgrace and infamy and ruin of any one else? Forsooth, if anything were owed, he would ask for it: he would not prefer that all sorts of trials should take place, rather than that one from which all these arise. He, who for so many years never even asked Quinctius for the money, when he had an opportunity of transacting business with him every day; he who, from the time when he first began to behave ill, has wasted all the time in adjournments and respiting the recognizances; he who, after he had withdrawn his recognizance drove Quinctius by treachery and violence from their joint estate; who, when he had ample opportunity, without any one's making objection, to try a civil action, With respect to its subject matter the actio was divided into two great divisions, the in personam actio and the in rem actio. The former was against a person who was bound to the plaintiff by contract or delict the latter applied to those cases where a man claimed a property or a right. Smith, Dict. Ant. p.7. chose rather a charge that involved infamy; who, when he is brought back to this tribunal, whence all these proceedings arise, repudiates the most reasonable proposals; confesses that he is aiming, not at the money, but at the life and heart's blood of his adversary;—does he not openly say, “if anything were owing to me, I should demand it, and I should long ago have obtained it;

I would not employ so much trouble, so unpopular a course of legal proceeding, and such a band of favourers of my cause, if I had to make a just demand; I have got to extort money from one unwilling, and in spite of him; I have got to tear and squeeze out of a man what he does not owe; Publius Quinctius is to be cast down from all his fortune; every one who is powerful, or eloquent, or noble, must be brought into court with me; a force must be put upon truth, threats must be bandied about, dangers must be threatened; terrors must be brandished before his eyes, that being cowed and overcome by these things, he may at last yield of his own accord.” And, in truth, all these things, when I see who are striving against us, and when I consider the party sitting opposite to me, seem to be impending over, and to be present to us, and to be impossible to be avoided by any means. But when, O Caius Aquillius, I bring my eyes and my mind back to you, the greater the labour and zeal with which all these things are done, the more trifling and powerless do I think them. Quinctius then owed nothing, as you prove yourself.

But what if he had owed you anything? would that have at once been a reason for your requiring leave from the praetor to take possession of his goods? I think that was neither according to law, nor expedient for any one. What then does he prove? He says that he had forfeited his recognizances.

Before I prove that he had not done so, I choose, O Caius Aquillius, to consider both the fact itself and the conduct of Sextus Naevius, with reference to the principles of plain duty, and the common usages of men. He, as you say, had not appeared to his recognizances; he with whom you were connected by relationship, by partnership, by every sort of bond and ancient intimacy. Was it decent for you to go at once to the praetor? was it fair for you at once to demand to be allowed to take possession of his goods according to the edict? Did you betake yourself to these extreme measures and to these most hostile laws with such eagerness as to leave yourself nothing behind which you might be able to do still more bitter and cruel?

For, what could happen more shameful to any human being, what more miserable or more bitter to a man; what disgrace could happen so heavy, what disaster can be imagined so intolerable? If fortune deprived any one of money, or if the injustice of another took it from him, still while his reputation is unimpeached, honour easily makes amends for poverty. And some men, though stained with ignominy, or convicted in discreditable trials, still enjoy their wealth; are not forced to dance attendance (which is the most wretched of all states) on the power of another; and in their distresses they are relieved by this support and comfort; but he whose goods have been sold, who has seen not merely his ample estates, but even his necessary food and clothing put up under the hammer, with great disgrace to himself; he is not only erased from the list of men, but he is removed out of sight, if possible, even beneath the dead. An honourable Most of the commentators consider this passage corrupt, and propose various emendations of it. I have however thought it safer to adhere to the text of the MSS. as it stands in Orellius. death forsooth often sets off even a base life, but a dishonoured life leaves no room to hope for even an honourable death.

Therefore, in truth, when a man's goods are taken possession of according to the praetor's edict, all his fame and reputation is seized at the same time with his goods. A man about whom placards are posted in the most frequented places, is not allowed even to perish in silence and obscurity; a man who has assignees and trustees appointed to pronounce to him on what terms and conditions he is to be ruined; a man about whom the voice of the crier makes proclamation and proclaims his price,—he has a most bitter funeral procession while he is alive, if that may be considered a funeral in which men meet not as friends to do honour to his obsequies, but purchasers of his goods as executioners, to tear to pieces and divide the relics of his existence.

Therefore our ancestors determined that such a thing should seldom happen; the praetors have taken care that it should only happen after deliberation; good men, even when fraud is openly committed, when there is no opportunity of trying the case at law, still have recourse to this measure timidly and hesitatingly; not till they are compelled by force and necessity, unwillingly, when the recognizances have often been forfeited, when they have been often deceived and outwitted. For they consider how serious a matter it is to confiscate the property of another. A good man is unwilling to slay another, even according to law; for he would rather say that he had saved when he might have destroyed, than that he had destroyed when he could have saved. Good men behave so to the most perfect strangers, aye, even to their greatest enemies, for the sake both of their reputation among men, and of the common rights of humanity; in order that, as they have not knowingly caused inconvenience to another, no inconvenience may lawfully befall them. He did not appear to his recognizances. Who? Your own relation. If that matter appeared of the greatest importance in itself, yet its magnitude would be lessened by the consideration of your relationship. He did not appear to his recognizances. Who? Your partner. You might forgive even a greater thing than this, to a man with whom either your inclination had connected you, or fortune had associated you.

He did not appear to his recognizances. Who? He who was always in your company. You therefore have hurled upon him, who allowed it to happen once that he was not in your company, all those weapons which have been forged against those who have done many things for the sake of malversation and fraud.

If your poundage was called in question, if in any trifling matter you were afraid of some trick, would you not have at once run off to Caius Aquillius, or to some other counsel? When the rights of friendship, of partnership, of relationship are at stake, when regard should have been had to your duty and your character, at that time you not only did not refer it to Caius Aquillius or to Lucius Lucilius, but you did not even consult yourself; you did not even say this to yourself—“The two hours are passed; Quinctius has not appeared to his recognizances; what shall I do?” If, in truth, you had said but these four words to yourself “What shall I do?” your covetousness and avarice would have had breathing time; you would have given some room for reason and prudence; you would have recollected yourself; you would not have come to such baseness as to be forced to confess before such men that in the same hour in which he did not appear to his recognizances you took counsel how utterly to ruin the fortunes of your relation.

I now on your behalf consult these men, after the time has passed, and in an affair which is not mine, since you forgot to consult them in your own affair, and when it was the proper time. I ask of you, Caius Aquillius, Lucius Lucilius, Publius Quintilius, and Marcus Marcellus;—A certain partner and relation of mine has not appeared to his recognizances; a man with whom I have a long standing intimacy, but a recent dispute about money matters. Can I demand of the praetor to be allowed to take possession of his goods? Or must I, as he has a house, a wife, and children at Rome, not rather give notice at his house? What is your opinion in this matter? If, in truth, I have rightly understood your kindness and prudence, I am not much mistaken what you will answer if you are consulted. You will say at first that I must wait; then, if he seems to be shirking the business and to be trifling with it too long, that I must have a meeting of our friends; must ask who his agent is; must give notice at his house. It can hardly be told how many steps there are which you would make answer ought to be taken before having recourse to this extreme and unnecessary course.

What does Naevius say to all this? Forsooth, he laughs at our madness in expecting a consideration of the highest duty, or looking for the practices of good men in his conduct. What have I to do, says he, with all this sanctimoniousness and punctiliousness? Let good men, says he, look to these duties, but let them think of me thus; let them ask not what I have, but by what means I have acquired it, and in what rank I was born, and in what manner I was brought up. I remember, there is an old proverb about a buffoon; “that it is a much easier thing for him to become rich than to become the head of a family.”

This is what he says openly by his actions, if he does not dare to say it in words. If in truth he wishes to live according to the practices of good men, he has many things to learn and to unlearn, both which things are difficult to a man of his age. I did not hesitate, says he, when the recognizances were forfeited, to claim the confiscation of his goods. It was wickedly done; but since you claim this for yourself; and demand that it be granted to you, let us grant it. What if he has not forfeited his recognizances? if the whole of that plea has been invented by you with the most extreme dishonesty and wickedness? if there had actually been no securities given in any cause between you and Publius Quinctius? What shall we call you? Wicked? why, even if the recognizances had been forfeited, yet in making such a demand and confiscation of his goods, you were proved to be most wicked. Malignant? you do not deny it. Dishonest? you have already claimed that as your character, and you think it a fine thing. Audacious? covetous? perfidious? those are vulgar and worn-out imputations, but this conduct is novel and unheard-of.

What then are we to say? I fear forsooth lest I should either use language severer than men's nature is inclined to bear, or else more gentle than the cause requires. You say that the recognizances were forfeited. Quinctius the moment he returned to Rome asked you on what day the recognizances were drawn. You answered at once, on the fifth of February. Quinctius, when departing, began to recollect on what day he left Rome for Gaul: he goes to his journal, he finds the day of his departure set down, the thirty-first of January. If he was at Rome on the fifth of February we have nothing to say against his having entered into recognizances with you.

What then? how can this be found out? Lucius Albius went with him, a man of the highest honour; he shall give his evidence. Some friends accompanied both Albius and Quinctius; they also shall give their evidence. Shall the letters of Publius Quinctius, shall so many witnesses, all having the most undeniable reason for being able to know the truth, and no reason for speaking falsely, be compared with your witness to the recognizance?

And shall Publius Quinctius be harassed in a cause like this? and shall he any longer be subjected to the misery of such fear and danger? and shall the influence of an adversary alarm him more than the integrity of the judge comforts him? For he always lived in an unpolished and uncompanionable manner; he was of a melancholy and unsociable disposition; he has not frequented the Forum, or the Campus, or banquets. He so lived as to retain his friends by attention, and his property by economy; he loved the ancient system of duty, all the splendour of which has grown obsolete according to present fashions. But if, in a cause where the merits were equal, he seemed to come off the worse, that would be in no small degree to be complained of; but now, when he is in the right, he does not even demand to come off best; he submits to be worsted, only with these limitations, that he is not to be given up with his goods, his character, and all his fortunes, to the covetousness and cruelty of Sextus Naevius.

I have proved what I first promised to prove, O Caius Aquillius, that there was absolutely no cause why he should make this demand; that neither was any money owed, and that if it were owed ever so much, nothing had been done to excuse recourse being had to such measures as these. Remark now, that the goods of Publius Quinctius could not possibly have been taken possession of in accordance with the praetor's edict. Recite the edict. “He who for the sake of fraud has lain hid.” That is not Quinctius, unless they be hid who depart on their own business, leaving an agent behind them. “The man who has no heir.” Even that is not he. “The man who leaves the country in exile.” At what time, O Naevius, do you think Quinctius ought to have been defended in his absence, or how? Then, when you were demanding leave to take possession of his goods? No one was present, for no one could guess that you were going to make such a demand; nor did it concern any one to object to that which the praetor ordered not to be done absolutely, but to be done according to his edict.

What was the first opportunity, then, which was given to the agent of defending this absent man? When you were putting up the placards. Then Sextus Alphenus was present: he did not permit it; he tore down the notices. That which was the first step of duty was observed by the agent with the greatest diligence. Let us see what followed on this. You arrest the servant of Publius Quinctius in public: you attempt to take him away. Alphenus does not permit it; he takes him from you by force; he takes care that he is led home to Quinctius. Here too is seen in a high degree the attention of an illustrious agent. You say that Quinctius is in your debt; his agent denies it. You wish security to he given; he promises it. You call him into court; he follows you. You demand a trial; he does not object. What other could be the conduct of one defending a man in his absence I do not understand.