Pro Q. Roscio Comoedo

Wherefore consider over and over again, O Caius Piso, who is said to have cheated, and who to have been cheated. Roscius is said to have cheated Fannius? What is that? The honest man is said to have cheated the rogue; the modest man, the shameless one; the chaste man, the perjurer; the unpractised man, the cunning one; the liberal man is said to have cheated the covetous one. It is incredible how, if Fannius were said to have cheated Roscius, each fact would appear probable from the character of each man; both that Fannius had acted wickedly, and that Roscius had been cheated by his imprudence. So when Roscius is accused of having cheated Fannius, both parts of the story are incredible, both that Roscius should have sought anything covetously, and that Fannius should have lost anything by his good-nature.

Such is the beginning. Let us see what follows. Quintus Roscius has cheated Fannius of 50,000 sesterces. On what account? Saturius smiles; a cunning fellow, as he seems to himself. He says, for the sake of the fifty thousand sesterces. I see; but yet I ask why he was so exceedingly desirous of this particular fifty thousand sesterces? For certainly, O Marcus Perperna and Caius Piso, they would not have been of such consequence to either of you, as to make you cheat your partner. I ask, then, why they were of such consequence to Roscius! Was he in want of money? No, he was even a rich man. Was he in debt? On the contrary, he was living within his income. Was he avaricious? far from it; even before he was a rich man he was always most liberal and munificent.

Oh, in the name of good faith, of gods, and men! he who once refused to make a gain of three hundred thousand sesterces—for he certainly both could and would have earned three hundred thousand sesterces if Dionysia [*](Dionysia was a celebrated dancer.) can earn two hundred thousand,—did he seek to acquire fifty thousand by the greatest dishonesty, and wickedness and treachery? And that sum was immense, this trifling; that was honourable, this sordid; that was pleasant, this bitter; that would have been his own, this must have been stated on an action and a trial. In these last ten years he might have earned six millions of sesterces most honourably. He would not; he undertook the labour entitled to gain, but refused the gain of his labour. He did not yet desist from serving the Roman people; he has long since ceased to benefit himself.

Would you even do this, O Fannius? And if you were able to receive such profits, would you not act with all your gestures, and even at the risk of your life? Say now that you have been cheated of fifty thousand sesterces by Roscius, who has refused such enormous sums, not because he was too indolent to labour for them, but out of a magnificence of liberality. What now shall I say of these things which I know to a certainty occur to your minds, O judges? Roscius cheated you in a partnership. There are laws, there are formularies [*](“As the formulae comprehended, or were supposed to comprehend, every possible form of action that could be required by a plaintiff; it was presumed that he could find among all the formulae some one which was adapted to his case; and he was accordingly supposed to be without excuse if he did not take pains to select the proper formula.”—Cic. pro Rosc. Com. 8. Smith, Dict. Ant. p. 9, v. Actio.) established for every case, that no one may make a blunder, either as to the legal description of injury which he has suffered, or as to the sort of action he should bring; for public formulae have been given by the praetor to suit every evil, or vexation, or inconvenience, or calamity, or injury which any one can suffer and to them each private action is adapted.

And as this is the case, I ask why you have not Roscius as your partner before an arbitrator? Did you not know the formula? It was most notorious. Were you unwilling to adopt severe proceedings? Why so? On account of your ancient intimacy? Why then do you injure him now? On account of the integrity of the man? Why then do you accuse him now? On account of the magnitude of the crime? Is it so? The man whom you could not circumvent before an arbitrator, to whose decision such a matter properly belonged, will you seek to convict before a judge, who has no power of arbitrating in it? Either, then, bring this charge where it may be discussed, or do not bring it where it may not: although the charge is already done away with by your own evidence; for when you declined to adopt that formula, you showed that he had committed no fraud against the partnership. Oh, he made a covenant. Has he account-books, or not? If he has not, how is the covenant shown? If he has, why do you not tell us?

Say now, if you dare, that Roscius begged of you to appoint his own intimate friend arbitrator. He did not beg you to. Say that he made a covenant in order to procure his acquittal. He made no covenant. Ask why then he was acquitted? Because he was a man of the most perfect innocence and integrity. For what happened? You came of your own accord to the house of Roscius; you apologised to him; you begged him to announce to the judge that you had acted hastily, and to pardon you; you said that you would not appear against him; you said loudly that he owed you nothing on account of the partnership. He gave notice to the judge; he was acquitted. And still do you dare to mention dishonesty and theft? He persists in his impudence. I did all this, says he, for he had made a covenant with me. Yes, I suppose to procure his acquittal. What reason had he to fear that he would be condemned?

Oh, the matter was evident, the theft was undeniable. A theft of what? He begins, in a manner to create great expectations, to relate his partnership with the old actor. Panurgus, says he, was a slave of Fannius. He had an equal share in him with Roscius. Here in the first place Saturius began to complain bitterly that Roscius had had a in him given to him for nothing, when he had become the property of Fannius by purchase. That liberal man, forsooth, that extravagant man, that man overflowing with kindness, made a present of his share to Roscius? No doubt of it.

Since he rested on this point for a while, it is necessary for me also to dwell a little on it. You say, O Saturius, that Panurgus was the private property of Fannius. But I say that the whole of him belonged to Roscius, for how much of him belonged to Fannius? His body. How much to Roscius? His education. His person was of no value; his skill was valuable. As far as he belonged to Fannius, he was not worth fifty thousand sesterces; as far as he belonged to Roscius, he was worth more than a hundred thousand. For no one looked at him because of his person; but people estimated him by his skill as a comic actor. For those limbs could not earn by themselves more than twelve sesterces; owing to the education which was given him by Roscius, he let himself out for not less than a hundred thousand.

Oh, tricky and scandalous partnership, when the one brings what is worth fifty thousand sesterces into the partnership, the other what is worth a hundred thousand; unless you are indignant at this, that you took the fifty thousand out of your strong box, and Roscius got his hundred thousand out of his learning and skill. For what was it that Panurgus brought with him on the stage? What was the expectation formed of him why was there such zeal for him, such partiality to him? Because he was the pupil of Roscius. They who loved the one, favoured the other; they who admired the one, approved of the other; lastly, all who had heard the name of the one, thought the other well-trained and accomplished. And this is the way with the common people; they estimate few things by the real truth, many things by prejudice.

Very few observed what he knew, but every one asked where he had been taught; they thought that nothing poor or had could be produced by him. If he had come from Statilius, even if he had surpassed Roscius in skill, no one would have been able to see it. For just as no one supposes that a good son can be born to a worthless father, so no one would suppose that a good Comedian could be formed by a very bad actor; but because he came from Roscius, he appeared to know more than he really did know. And this lately did actually happen in the case of Eros the comedian, for he, after he was driven off the stage, not merely by hisses, but even by reproaches, took refuge, as at an altar, in the house, and instruction, and patronage, and name of Roscius. Therefore, in a very short time he who had not been even one of the lowest class of actors, came to be reckoned among the very first comedians.

What was it that raised him? This man's commendation alone who not only took this Panurgus home that he might have the name of a pupil of Roscius, but who also instructed him with the greatest pains and energy and patience. For the more skillful and ingenious any one is, the more vehement and laborious is he in teaching his art; for that which he himself caught quickly, he is tortured by seeing slowly comprehended by another. My speech has extended itself to some length, in order that you may thoroughly understand the conditions of this partnership.

What then followed? A man of Tarquinii, Quintus Flavius by name, knew this Panurgus, the common slave of Roscius and Fannius, and you appointed me as the advocate to conduct the action about that business. The cause having been commenced, and an action being appointed according to the formula, “for injury and loss inflicted,” you brought it to a conclusion with Flavius, without my knowledge. Was it for the half share, or for the entire partnership? I will speak plainly. Was it for myself, or for myself and for yourself? Was it for myself alone? I could do so according to the precedent set by many people; it is lawful to do so; many men have legally done so; I have done you no injury in that matter. Do you demand what is due to you? Exact it, and carry it off. Let every one have and follow up his portion of his right. “But you managed your affair very well.” “Do you too manage yours well” “You get your half share valued at a high price.” “Do you too get yours valued at a high price.” “You get a hundred thousand sesterces,”—if indeed that be true. “Then do you also get a hundred thousand sesterces.”

But you may easily, both in belief and in speaking of it, have exaggerated the terms on which Roscius concluded his business; in fact and reality you will find them moderate and unimportant. For he got a farm at a time when the prices of farms were very low,—a farm which had not a house on it, and was not well cultivated in any respect, which is worth much more now than it was. And no wonder, for at that time, on account of the calamities of the republic, every one's possessions were uncertain; now, by the kindness of the immortal gods, the fortunes of every one are well assured: then it was an uncultivated farm, without a house; now it is beautifully cultivated, with an excellent villa on it.

But since by nature you are so malevolent, I will never relieve you from that vexation and that anxiety. Roscius managed his business well; he got a most fertile farm. What is that to you? Do you settle your half of the matter anyhow you please. He then changes his plan of attack, and endeavours to invent a story which he cannot prove. “You,” says he, “arranged the whole matter, and not your share of it only.” The whole cause then is brought to this point,—whether Roscius came to a settlement with Flavius for his own share, or for the whole partnership.

For I confess that, if Roscius touched anything on their joint account, he ought to pay it to the partnership. Did he settle the quarrel of the partnership, and not merely his own, when he received this farm from Flavius? If so, why did he not give security to Flavius, that no one else should make any demand on him? He who settles his own demand only, leaves to the rest their right of action unimpaired; he who acts for his partners, gives security that none of them shall afterwards make any demand. Why did it not occur to Flavius to take this precaution for himself? Was he, forsooth, not aware that Panurgus belonged to a partnership. He knew that. Was he not aware that Fannius was Roscius' partner? Thoroughly; for he himself had a law-suit commenced with him.

Why then does he settle this action, and not exact an agreement that no one shall make any further demand on him? Why does he lose the farm, and yet get no release from this action? Why does he act in so inexperienced a manner, as neither to bind Roscius by any stipulation, nor on the other hand to get a release from Fannius' action?

This first argument, drawn both from the rules of civil rights, and from the customs prevailing with respect to such security, is a most important and powerful one, which I would press at greater length, if I had not other more undeniable and manifest proofs in the cause. And that you may not say I have promised this on insufficient grounds, I will call you—you, I say, Fannius—from your seat as a witness against yourself.—What is your charge? That Roscius settled with Flavius on behalf of the partnership.—When? Four years ago.—What is my defence? That Roscius settled with Flavius for his share in the property. You yourself, three years ago, made a new engagement with Roscius.—What? Recite that stipulation plainly.—Attend, I beg you, O Piso—I am compelling Fannius against his will, and though he is shuffling off in every direction, to give evidence against himself. For what are the words of this new agreement? “Whatever I receive from Flavius, I undertake to pay one half of to Roscius.” These are your words, O Fannius.

What can you get from Flavius, if Flavius owes you nothing? Moreover, why does he now enter into a mutual engagement about a sum which he has already exacted some time ago? But what can Flavius be going to give you, if he has already paid Roscius everything that he owed? Why is this new mutual arrangement interposed in so old an affair, in a matter so entirely settled, in a partnership which has been dissolved? Who is the drawer up of this agreement? who is the witness? who is the arbitrator? who? You, O Piso: for you begged Quintus Roscius to give Fannius fifteen thousand sesterces, for his care, for his labour, for having been his agent, and for having given security, on this condition, that, if he get anything from Flavius, he should give half of that sum to Roscius. Does not that agreement seem to show you with sufficient clearness that Roscius settled the affair on his own behalf alone?

But perhaps this also may occur to you, that Fannius did in requital promise Roscius half of whatever he might get from Flavius, but that be got nothing at all. What has that to do with it? You ought to regard not the result of the demand, but the beginning of the mutual agreement. And it does not follow, if he did not choose to prosecute his demand, that he did not for all that, as far as it depended on him, show his opinion that Roscius had only settled his own claim, and not the claim of the partnership. What more? Suppose I make it evident, that after the whole settlement come to by Roscius, after this fresh mutual agreement entered into by Fannius, Fannius also recovered a hundred thousand sesterces from Flavius, for the loss of Panurgus? Will he after that still dare to sport with the character of that most excellent man, Quintus Roscius?

I asked a little before—what was very material to the business, on what account Flavius, when (as they say) he was settling the whole claim, did neither take security from Roscius, nor obtain a release from all demands from Fannius? But now I ask how it was that, when he had settled the whole affair with Roscius, he paid also a hundred thousand sesterces to Fannius on his separate account? (a thing still more strange and incredible.) I should like to know, O Saturius, what answer are you preparing to give to this? Whether you are going to say that Fannius never got a hundred thousand sesterces from Flavius at all, or that he got them for some other claim, and on some other account?