Pro A. Cluentio

This conciliation of good-will was laughed at, and so was this assumption of the character of a good man, as in the gilded statues which he erected in front of the temple of Juturna, at the bottom of which he had the following inscription engraved,—“that the kings had been restored by him to the favour of the people.” All his frauds and dishonest tricks were brought under discussion; his whole life, which has been spent in such a way as that, was laid open; his domestic poverty, the profits which he made in the courts of law, were all brought to light: an interpreter of peace and concord who regulated everything by the bribes which he received was not approved of. Therefore, Stalenus was condemned at that time, while he urged the same defence as Attius did.

When the Cominii did the same thing that I have done throughout the whole of this cause, people approved of them. Wherefore, if by the condemnation of Stalenus it was decided that Oppianicus had desired to corrupt the judges,—that Oppianicus had given one of the judges money to purchase the votes of the other judges, (since it has been already settled that either Cluentius is guilty of that offence, or else Oppianicus, but that no trace whatever is found of any money belonging to Cluentius having been ever given to any judge, while money belonging to Oppianicus was taken away, after the trial was over, from a judge,)—can it be doubtful that that conviction of Stalenus does not only not make against Cluentius, but is the greatest possible confirmation of our cause and of our defence?

Therefore, I see now that the case respecting the decision of Junius is of this nature, that I think it ought to be called an inroad of sedition, an instance of the violence of the multitude, an outrage on the part of a tribune, any thing rather than a judicial proceeding. But if any one calls that a regular trial, still he must inevitably admit this,—that that penalty which was sought to be recovered from Junius cannot by any means be connected with the cause of Cluentius. That decision of the tribunal over which Junius presided, was brought about by evidence. The cases of Bulbus, of Popillius, and of Gutta, do not make against Cluentius. That of Stalenus is actually in favour of Cluentius. Let us now see if there is any other decision which we can produce which is favourable to Cluentius. Was not Caius Fidiculanius Falcula, who had condemned Oppianicus, prosecuted especially because—and that was the point which in that trial was the hardest to excuse—he had sat as judge a few days after the appointment of a substitute? He was, indeed, prosecuted, and that twice. For Lucius Quinctius had brought him into extreme unpopularity by means of daily seditious and turbulent assemblies. On one trial a penalty was sought to be recovered from him, as from Junius, because he had sat as judge, not in his own decury, nor according to the law. He was prosecuted at a rather more peaceable time than Junius, but under almost the same law, and on very nearly the same indictment. But because at the trial shore was no sedition, no violence, and no crowd, he was easily acquitted at the first hearing. I do not count this acquittal.[*](The passage which follows in the text is given up by Orellius altogether corrupt, and is wholly unintelligible as it stands at present. Weiske thinks that several words have dropped out.)---

What was Fidiculanius said to have done? To have received from Cluentius four hundred sesterces. Of what rank was he? A senator. He was accused according to that law by which an account is properly demanded of a senator in a prosecution for peculation, and he was most honourably acquitted. For the cause was pleaded according to the custom of our ancestors, without violence, without fear, without danger. Everything was fairly stated, and explained, and proved. The judges were taught that not only could a defendant be honestly condemned by a man who had not sat as a judge uninterruptedly, but that if that judge had known nothing else except what previous investigations it was clear had taken place in the case, he ought to have heard nothing else.

Then, also, those five judges, who, hunting for the vague rumours of ignorant men, acquitted him at the time, were unwilling that their clemency should be extravagantly praised; and if any one asked them whether they had sat as judges on Caius Fabricius, they said that they had, if they were asked whether he had been accused of any crime except of that poison which was said to have been endeavoured to be administered to Habitus, they said no; if, after that, they were asked what their decision had been, they said that they had condemned him. For no one acquitted him. In the same manner, if any question had been asked about Scamander, they would certainly have given the same answer, although he was acquitted by one vote; but at that time no one of those men would have liked that one vote to be called his.

Which, then, could more easily give an account of his vote,—he who said that he had been consistent with himself and with the previous decision, or he who said that he had been lenient to the principal offender, and very severe against his assistants and accomplices? But concerning their decision I have no occasion to say anything; for I have no doubt, that such men as they, being influenced by some sudden suspicion, avoided the point at issue. On which account I find no fault with the mercy of those who acquitted him. I approve of the firmness of those men who, in giving their judgment, followed the precedent of the previous decisions of their own accord, and not in consequence of the fraudulent trick of Stalenus; but I praise the wisdom of those men who said that to their minds it was not proved, who could by no means acquit a man whom they knew to be very guilty, and whom they themselves had already condemned twice before, but who, as such a disgraceful plan, and as a suspicion of such an atrocious act had been suggested to them, preferred condemning him a little later, when the facts were clearly ascertained.

And, that you may not judge them to have been exceedingly wise men merely by their actions, but that you may also feel sure, from their very names, that what they did was most honestly and wisely done; who can be mentioned superior to Publius Octavius Balbus, as to ability more prudent,—in knowledge of law more skillful,—in good faith, in religion, in the performance of his duty, more scrupulous or more careful? He did not acquit him. Who is a better man than Quintus Considius? who is better acquainted with the practice of courts of justice, and with that sense of right which ought always to exist in the public courts? who is his superior in virtue, in wisdom, or in authority? Even he did not acquit him. It would take me too long to cite the virtue of each separate individual in the same manner; and in truth, their good qualities are so will known to every one, that they do not need the ornaments of language to set them off. What a man was Marcus Juventius Pedo, a man formed on the principles and system of the judges of old! What a man was Lucius Caulius Mergus! and Marcus Basilus! and Caius Caudinus! all of whom flourished in the public courts of justice at that time when the republic also was flourishing. Of the same body were Lucius Cassius and Cnaeus Heius, men of equal integrity and wisdom. And by the vote of none of those men was Oppianicus acquitted. And the youngest of all but one, who in ability, and in diligence, and in conscientiousness was equal to those men whom I have already mentioned, Publius Saturius, delivered the same opinion.

O, the singular innocence of Oppianicus! when in the case in which he was defendant, those who acquitted him are supposed to have had some ulterior end,—those who postponed their decision, to have been cautious; but every one who condemned him is esteemed virtuous and firm. These things, though Quinctius agitated them, were not proved at that time either in the assembly or in a court of justice. For he himself would not allow them to be stated, nor indeed, by reason of the excited state of the multitude, could any one stand up to speak. Therefore he himself, after he had overthrown Junius, abandoned the whole cause. For in a very few days' time he became a private individual, and he perceived too that the violence of men's feelings had cooled down. But if at the time that he accused Junius he had also chosen to accuse Fidiculanius, Fidiculanius would have had no opportunity of making any reply. And at first, indeed, he threatened all those judges who had voted against Oppianicus.

By this time you know the insolence of the man. You know what a tribune-like pride and arrogance he has. How great was the animosity which he displayed! O ye immortal gods! how great was his pride! how great his ignorance of himself! how preposterous and intolerable was his arrogance! when he was indignant even at this, (from which all those proceedings of his took their rise,) that Oppianicus was not pardoned at his entreaty and owing to his defence; just as if it ought not to have been proof enough that he was deserted by every one, that he had recourse to such an advocate as him. For there was at Rome a great abundance of advocates, most eloquent and most honourable men, of whom certainly any one would have defended a Roman knight, of noble birth in his municipality, if he had thought that such a cause could be defended with honour.

For, as for Quinctius, indeed, what cause had he ever pleaded before, though he was now nearly fifty years old? Who had ever seen him not only in the position of a counsel for the defence, but even as a witness to character, or as employed in any [*](“The Latin is, ‘non modo in patroni, sed in laudatoris, aut advocati, loco viderat.’ In the time of Cicero the advocatus was different from the person who conducted the suit (patronus) and made the speech, though in later times this person likewise is called advocatus.”—Riddle, Lat. Dict. in voc.) way in any cause? who, because he had seized on the rostrum which had been for some time empty, and the place which had been deserted by the voice of the tribunes ever since the arrival of Lucius Sulla, and had recalled the multitude, which had now been for some time unused to assemblies, to the likeness of the old custom, was on that account for a short time rather popular with a certain set of men. But yet afterwards how hated he became by those very men by whose means he had mounted into a higher position!—and very deservedly.

For just take the trouble to recollect not only his manners and his arrogance, but also his countenance, and his dress, and his purple robe reaching down as far as his ankles. He, as if it were a thing quite impossible to be borne that he should have been defeated in this trial, transferred the case from the court of justice to the public assembly. And do we still reiterate our complaints, that new men have not sufficient encouragement in this city? I say, that there never was a time or place where they had more; for here, if a man, though born in a low rank of life, lives so as to seem able to uphold by his virtue the dignity of nobility, he meets with no obstacle to his arriving at that eminence to which his industry and innocence conduct him.

But if any one depends on the fact of his being meanly born as his chief claim, he often goes greater lengths than if he was a man of the highest birth devoted to the same vices. As, in the case of Quinctius, (for I will say nothing of the others,) if he had been a man of noble birth, who could have endured him with his pride and intolerance? But because he was of the rank of which he was, people put up with it, as if they thought that if he had any good quality by nature, it ought to be allowed to save him and as if, owing to the meanness of his birth, they thought his pride and arrogance matters to be laughed at rather than feared. However, to return to my original subject: What decision did you—you, I say, who mention those trials— think ought to have bean come to at the time that Fidiculanius was acquitted? At least you think that the decision was not a corrupt one.

But he had condemned him; but he had not heard the entire case; but he had been greatly and repeatedly annoyed at every assembly of the people, by Lucius Quinctius. Then the whole of Quinctius's judicial conduct was unjust, deceitful, fraudulent, turbulent, dictated by a wish for popularity, seditious. Be it so; Falcula may have been innocent. Well then, some one condemned Oppianicus without being paid for it; Junius did not appoint men as judges in the place of the others, to condemn him for a bribe. It is possible that there may have been some one who did not sit as judge from the beginning, and who, nevertheless, condemned Oppianicus without having been bribed to do so. But if Falcula was innocent, I wish to know who was guilty? If he condemned him without being bribed to do so, who was bribed? I say that there has been nothing imputed to any one of these men which was not imputed to Fidiculanius; I say that there was nothing in the case of Fidiculanius which did not also exist in the case of the rest.

You must either find fault with this trial, the prosecution in which appeared to rely on previous decisions, or else, if you admit that this was an honest one, you must allow that Oppianicus was condemned without money having been paid to procure his condemnation. Although it ought to be proof enough for any one, that no one out of so many judges was proceeded against after Falcula had been acquitted.—For why do you bring up men convicted of bribery under a different law, the charges being well proved, the witnesses being numerous? when, in the first place, these very men ought to be accused of peculation rather than of bribery. For if, in trials for bribery, this was an hindrance to them, that they were being prosecuted under a different law, at all events it would have been a much greater injury to them to be brought before the court according to the law properly belonging to this offence.

In the second place, if the weight attached to this accusation was so great, that, under whatever law any one of those judges was prosecuted, he must be utterly ruined; then why, when there: are such crowds of accusers, and when the reward is so great, were not the others prosecuted too? On this, that case is mentioned, (which, however, has no right to be called a trial,) that an action for damages was brought against Publius Septimius Scaevola on that account; and what the practice is in cases of that sort, as I am speaking before men of the greatest learning, I have no need to occupy much time in explaining. For the diligence which is usually displayed in other trials, is never exercised after the defendant has been convicted.

In actions for damages, the judges usually, either because they think that a man whom they have once convicted is hostile to them, if any mention of a capital charge against him is made, do not allow it; or else, because they think that their duties are over when they have given their decision respecting the defendant, they attend more carelessly to the other points. Therefore, very many men are acquitted of treason, when, if they were condemned, actions would be brought to recover damages on charges of peculation. And we see this happen every day,—that when a defendant has been convicted of peculation, the judges acquit those men to whom, in fixing the damages, it has been settled that the money has come; and when this is the case, the decisions are not rescinded, but this principle is laid down, that the assessment of damages is not a judicial trial. Scaevola was convicted of other charges, by a great number of witnesses from Apulia. The greatest possible eagerness was shown in endeavoring to have that action considered as a capital prosecution. And if it had had the weight of a case already decided, he afterwards, according to this identical law, would have been prosecuted either by the same enemies, or by others.

That follows, which they call a trial, but which our ancestors never called a trial, and never paid any attention to as if it had been a formal judicial decision, the animadversion and authority of the censors. But before I begin to speak on that subject, I must say a few words about my own duty, in order that it may be clearly seen that I have paid proper attention to this danger, and also to all other considerations of duty and friendship. For I have a friendship with both those brave men who were the last censors; and with one of them, (as most of you are aware,) I have the greatest intimacy, and the closest connection cemented by mutual good offices.

So that, if I am forced to say anything of the reasons which they have given for their sentences, I shall say it with these feelings, that I shall wish everything that I say considered as having reference not to their individual conduct in particular, but to the whole principle of the censorial animadversion. But from Lentulus, my intimate friend, who out of regard for his eminent virtue and for the high honours which he has received from the Roman people, is named by me to do him honour, I shall easily obtain this indulgence, that, as he himself is always accustomed to employ the greatest good faith and diligence in matters affecting the safety of his friends, and also the greatest vigour of mind and freedom of speech, so, in this instance, he will not be offended with me for taking as much freedom my self, as I cannot forbear to take without danger to my client. But, everything shall be said by me carefully and deliberately, as indeed it ought to be, so that I shall not appear to have betrayed the cause entrusted to my good faith for its defence, nor to have injured the dignity of any one, nor to have disregarded any of the claims of friendship.

I see then, O judges, that the censors passed animadversion on some of the judges who sat on that trial which Junius presided over, and added to their sentence that that very trial was the cause of it. Now, first I will lay down this general principle, that this city has never been so content with censorial animadversions as with judicial decisions. Nor in so notorious a case need I waste time by citing instances. I will just adduce this one fact,—that Caius Geta, after he had been expelled the senate by Lucius Metellus and Cnaeus Domitius when they were censors, was himself appointed censor afterwards; and that he whose morals had met with this reproof from the censors, was afterwards appointed to judge of the morals of the whole Roman people, and of those very men who had thus punished him. But if that had been thought a final judicial decision, (as other men when they have been condemned by a sentence involving infamy are deprived for ever of all honour and all dignity, so) a man branded with this ignominy would never have had any subsequent access to honour, or any possibility of return to the senate.

Now, if the freedman of Cnaeus Lentulus or of Lucius Gellius should convict any man of theft, he, being deprived of all his credit, will never recover any portion of his honourable position in the city; but those men, whom Lucius Gellius himself and Cnaeus Lentulus, the two censors, most illustrious citizens and most wise men, have animadverted on, and, in their reasons for their sentences, have imputed to them theft and peculation, have not only returned to the senate, but have been acquitted of those very charges by judicial sentence. Our ancestors did not think it fit for any one to be a judge, not only of any one's character, but not even of the most insignificant money matter, if he had not been agreed to by both the contending parties. Wherefore, in every law in which exception has been made of causes for which a magistrate may not be taken, or a judge elected, or another man accused, this cause of ignominy is passed over. For their intention was that the power of the censors should strike the profligate with terror, but not that it should have power over their lives.