Hist. of Rome

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.

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 Aerarii were those citizens of Rome who did not enjoy the perfect franchise. They had to pay the aes militare, and to remove a citizen in the enjoyment of the full franchise into the list of those who enjoyed a less complete one, was of course a degradation and a punishment. 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 So that how can it occur to you to call those judicial decisions which you see constantly rescinded by the Roman people, repudiated by judges on their oaths, disregarded by the magistrates, altered by those who have the same power subsequently conferred on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?

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 In the twenty-ninth book of Livy, c. 37, an extraordinary instance is related of disagreement between the censors; for one of them, Caius Claudius Nero, degraded his colleague, Marcus Livius, and Livius in his turn degraded Caius Claudius. 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.

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.

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?

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.

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.

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.

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.

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.

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?

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?

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.

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. “If the censors considered a knight unworthy of his rank, they struck him off of the list of knights, and deprived him of his horse, or ordered him to sell it, with the intention, no doubt, that the person thus degraded should refund to the state the money which had been advanced to him for its purchase. (Niebuhr, Hist. of Rome, vol. i. p. 433.)”—Smith, Dict. Ant. p. 895, v. Equites. 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.

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.

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.

But I ask of you whether Lucius Lucullus, the consul, a very wise man, passed that law according to that resolution of the senate? I ask whether Marcus Lucullus and Caius Cassius passed that law, against whom, when they were the consuls elect, the senate passed the very same resolution? They did not pass it. And that which you assert to have been brought about by Habitus's money, though you do not confirm your assertion by even the very slightest circumstances of suspicion, was done in the first instance by the justice and wisdom of those consuls, in order that men might not think that what the senate had decreed for the purpose of extinguishing the flames of present unpopularity, might afterwards be referred to the people. The Roman people itself afterwards, which formerly when excited by the fictitious complaints of Lucius Quinctius, a tribune of the people, had demanded that thing and the proposal of that law, now being influenced by the tears of the son of Caius Junius, a little boy, rejected the whole law and the whole proposition with the greatest outcry and with the greatest eagerness.

From which that was easy to be understood which has been often said,—that as the sea, which by its own nature is tranquil, is often agitated and disturbed by the violence of the winds, so, too, the Roman people is, when left to itself, placable, but is easily roused by the language of seditious men, as by the most violent storm. There is also one other very great authority besides, which I had almost passed over in a shameful manner; for it is said to be my own. Attius read out of some oration or other, which he said was mine, a certain exhortation to the judges to judge honestly, and a certain mention of judicial decisions in other cases, which had not been approved of, and also of that very trial before Junius; just as if I had not said at the beginning of this defence, that had been a trial which had incurred great unpopularity; or as if, when I was discussing the discredit into which the courts of justice had fallen in some instances, I could possibly at that time pass over that one which was so notorious.

But I, if I said anything of that sort, did not mention it as a thing within my own knowledge, nor did I state it in evidence; and that speech was prompted rather by the occasion, than by my judgment and deliberate intention. For when I was acting as accuser, and had proposed to myself at the beginning to rouse the feelings of the Roman people and of the judges; and as I was mentioning all the errors of the courts of justice, relying not on my own opinion, but on the common report of men; I could not pass over that matter which had been so universally discussed. But whoever thinks that he has my positive opinions recorded indelibly in those orations which we have delivered in the courts of justice, is greatly mistaken. For all those speeches are speeches of the cause, and of the occasion, and are not the speeches of the men or of the advocates themselves. For if the causes themselves could speak for themselves, no one would employ an orator. But, as it is, we are employed, in order to say, not things which are to be considered as asserted on our own authority, but things which are derived from the circumstances of the cause itself.

They say that that able man, Marcus Antonius, was accustomed to say, “that he had never written a speech, in order that, if at any time he had said anything which was not desirable, he might be able to deny that he had said it.” Just as if whatever were said or pleaded by us was not retained in men's memories, if we did not ourselves commit it to writing. But I, with respect to speeches of that sort, am guided by the authority of many men, and especially of that most eloquent and most wise man, Lucius Crassus; who—when he was defending Lucius Plancius, whom Marcus Brutus, a man both vehement and able as a speaker, was prosecuting; when Brutus, having set two men to read, made them read alternate chapters out of two speeches of his, entirely contrary to one another, because when he was arguing against that motion which was introduced against the colony of Narbo, he disparaged the authority of the senate as much as he could, but when he was urging the adoption of the Servilian law, he extolled the senate with the most excessive praises; and when he had read out of that oration many things which had been spoken with some harshness against the Roman knights, in order to inflame the minds of those judges against Crassus—is said to have been a good deal agitated.