Pro Q. Roscio Comoedo

Have you all other sums of money received and expended regularly entered, or not? If not, how is it that you make up your books? If you have, how is it that, when you were entering all other items in regular order, you leave this sum, which was one of the greatest of all in amount, for more than three years in your memoranda? “You did not like it to be known that Roscius was in your debt.” Why did you put it down at all? “You were asked not to enter it.” Why did you put it down in your memoranda? But, although I think this is strong enough, yet I cannot satisfy myself unless I get evidence from Caius Fannius himself that this money is not owed to him. It is a great thing which I am attempting; it is a difficult thing which I am undertaking; yet I will agree that Roscius shall not gain the verdict unless he has the same man both for his adversary and for his witness.

A definite sum of money was owed to you, which is now sought to be recovered at law; and security for a legitimate portion of it has been given. In this case, if you have demanded one sesterce more than is owed to you, you have lost your cause; because trial before a judge is one thing, arbitration is another. [*](Professor Long's explanation of the difference here laid down is little more than a translation of and comment on this passage. He says, “The following is the distinction between arbitrium and judicium according to Cicero (Pro Rosc. Com. 4). In a judicium the demand was of a certain or definite amount, pecuniae certae).; in an arbitrium the amount was not determined (incertae.) In a judicium the plaintiff obtained all that he claimed or nothing, as the words of the formula show, “si paret H. S. 1000 dari oportere.” (Compare Gaius, iv. 50.) The corresponding words in the formula arbitraria were “Quantum aequius melius, id dari”; and their equivalents were “ex fide bona; ut inter bonos bene agier.” (Top. 17)... If the matter was brought before a judex, properly so called, the judicium was constituted with a poena, that is per sponsionem; there was no poena when an arbiter was demanded, and the proceeding was by the formula arbitraria. The proceeding by the sponsio then was the strict one, “Angustissima formula sponsionis,” (Cic. pro Rosc. Com. 14); that of the arbitrium was ex fide bona, and the arbiter, though he was bound by the instructions of the formula, was allowed a greater latitude by its terms. The engagement between the parties who accepted an arbiter, by which they bound themselves to abide by his arbitrium, was compromissum. (Pro Rosc. Com. 40) But this term was also employed, as it appears, to express the engagement by which parties agreed to settle their differences by arbitration, without the intervention of the praetor. Smith, Dict. Ant. v. 530 v. Judex. ) Trial before a judge is about a definite sum of money; arbitration about one which is not determined. We come before a judge so as either to gain the whole suit or to lose it; we go before an arbiter on the understanding that we may not get all we asked, and on the other hand may not get nothing.

Of that the very words of the formula are a proof. What is the formula in a trial before a judge? Direct severe, and simple; “if it be plain that fifty thousand sesterces ought to be paid.” Unless he makes it plain that fifty thousand sesterces to a single farthing are due to him, he loses his cause. What is the formula in a cause brought before an arbiter? “That whatever is just and right shall be given.” But that man confesses that he is asking more than is owed to him, but that he will be satisfied and more than satisfied with what is given him by the arbiter. Therefore the one has confidence in his case, the other distrusts his.

And as this is the case, I ask you why you made an agreement to abide by arbitration in a matter involving this sum, this very fifty thousand sesterces, and the credit of your own account-books? why you admitted an arbitrator in such a case to decide what it was right and proper should be paid to you; or secured to you by bond, if it so seemed good to him? Who was the arbitrator in this matter? I wish he were at Rome. He is at Rome. I wish he were in court. He is. I wish he were sitting as assessor to Caius Piso. He is Caius Piso himself. Did you take the same man for both arbitrator, and judge? Did you permit to the same man unlimited liberty of varying his decision, and also limit him to the strictest formula of the bond? Who ever went before an arbitrator and got all that he demanded? No one; for he only got all that it was just should be given him. You have come before a judge for the very same sum for which you had recourse to an arbiter.

Other men, when they see that their cause is failing before a judge, fly to an arbitrator. This man has dared to come from an arbiter to a judge, who when he admitted an arbitrator about this money, and about the credit due to his account-books, gave a plain indication that no money was owing to him. Already two-thirds of the cause are over. He admits that he has not set down the sum as due, and he does not venture to say that he has entered it as paid, since he does not produce his books. The only alternative remaining, is for him to assert that he had received a promise of it; for otherwise I do not see how he can possibly demand a definite sum of money. Did you receive a promise of it? When? On what day? At what time? In whose presence?

Who says that I made such a promise? No one. If I were to make an end of speaking here, I appear to have said enough to acquit myself as far as my good faith and diligence are at stake—to have said enough for the cause and dispute, enough for the formula and bond; I seem to have said enough to satisfy the judge why judgment ought to pass for Roscius. A definite sum of money has been demanded; security is given for a third part of it; this money must either have been given, or set down as paid, or promised. Fannius admits it was not given; the books of Fannius prove that it has not been set down as paid; the silence of witnesses proves that it was never promised.

What do we want more? Because the defendant is a man to whom money has always seemed of no value, but character of the very highest, and the judge is a man whom we are no less anxious to have think well of us than to decide favourably for us, and the bar present is such, that on account of its extraordinary brilliancy we ought to feel almost as much respect for it as for another judge, we will speak as if every regular trial, every honorary arbitration, every domestic duty were included and comprehended in the present formula. That former oration was necessary, this shall be a voluntary one; the other was addressed to the judge, this is addressed to Caius Piso; that was on behalf of a defendant, this is on behalf of Roscius; the one was prepared to gain a victory, this one to preserve a good character.

You demand, O Fannius, a sum of money from Roscius. What sum? Is it money which is owed to you from the partnership? or money which has been promised and assured to you by his liberality? One demand is important and odious, the other is more trifling and easy to be got rid of. Is it a sum which is owing from the partnership? What are you saying? This is neither to be borne lightly nor to be defended carelessly. For if there are any private actions of the greatest, I may almost say, of capital importance, they are these three—the actions about trust, about guardianship, and about partnership. For it is equally perfidious and wicked to break faith, which is the bond of life, and to defraud one's ward who has come under one's guardianship, and to deceive a partner who has connected himself with on. in business.

And as this is the case, let us consider who. it is who in this instance has deceived and cheated his partner. For his past life shall silently give us a trustworthy and important testimony one way or other. Is it Quintus Roscius? What do you say? Does not, as fire dropped upon water is immediately extinguished and cooled, so, does not, I say, a false accusation, when brought in contact with a most pure and holy life, instantly fall and become extinguished? Has Roscius cheated his partner? Can this guilt belong to this man? who, in truth, (I say it boldly,) has more honesty than skill, more truth than learning; whom the Roman people think even a better man than he is an actor; who is as worthy of the stage because of his skill, as he is wholly of the senate on account of his moderation.

But why am I so foolish as to say anything about Roscius to Piso? I suppose I am recommending an unknown man in many words. Is there any man in the whole world of whom you have a better opinion? Is there any man who appears to you more pure, more modest, more humane, more regardful of his duty, more liberal? Have even you, O Saturius, who appear against him, have you a different opinion? Is it not true that as often as you have mentioned his name in the cause, you have said that he was a good man, and have spoken of him with expressions of respect? which no one is in the habit of doing except in the case of either a most honorable man, or of a most dear friend.

While doing so, in truth, you appeared to me ridiculously inconstant in both injuring and praising the same man; in calling him at the same time a most excellent man and a most dishonest man. You were speaking of the man with respect, and calling him a most exemplary man, and at the same time you were accusing him of having cheated his partner. But I imagine the truth is, your praise was prompted by truth; the accusation by your duty to your client. You were speaking of Roscius as you really thought; you were conducting the cause according to the will of Chaerea. Roscius cheated him. This, in truth, seems absurd to the ears and minds of men. What? If he had got hold of some man, rich, timid, foolish and indolent, who was unable to go to law with him, still it would Be incredible.

But let us see whom he has cheated. Roscius has cheated Caius Fannius Chaerea. I beg and entreat you, who know them both, compare the lives of the two men together; you who do not know them, compare the countenance of both. Does not his very head, and those eye-brows entirely shaved off, seem to smell of wickedness, and to proclaim cunning? Does he not from his toe-nails to his head, if the voiceless figure of a man's person can enable men to conjecture his character, seem wholly made up of fraud, and cheating, and lies? He who has his head and eyebrows always shaved that he may not be said to have one hair of an honest man about him. And Roscius has been accustomed to represent his figure admirably on the stage, and yet he does no meet with the gratitude due to such kindness. For when he acts Ballio, that most worthless and perjured pimp, he represents Chaerea. That foul, and impure, and detestable character is represented in this man's manners, and nature, and life. And why he should have thought Roscius like himself in dishonesty and wickedness, I do not know; unless, perhaps, because he observed that he imitated himself admirably in the character of the pimp.

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.