Pro A. Cluentio

When this Dinea was making her will, Oppianicus, who was her son-in-law, having taken the papers, effaced the legacies she bequeathed in it with his finger; and as he had done this in many places, after her death, being afraid of being detected by all those erasures, he had the will copied over again, and had it signed and sealed with forged seals. I pass over many things on purpose. And indeed I fear lest I may appear to have said too much as it is. But you must suppose that he has been consistent with himself in every other transaction of his life. All the senators [*](The term in the original is decuriones. In the colonies “the name of the senate was ordo decurionum, in later times simply ordo or curia, the members of it were decuriones or curiales. Thus in the later ages, curia is opposed to senatus, the former being the senate of a colony, and the latter the senate of Rome.”—Smith, Dict. Ant. p. 259. v. Colonia.) of Larinum decided that he had tampered with the public registers of the censors of that city. No one would have any account with him; no one would transact any business with him. Of all the connections and relations that he had, no one ever left him guardian to his children. No one thought him fit to call on, or to meet in the street, or to talk to, or to dine with. All men shunned him with contempt and hatred,—all men avoided him as some inhuman and mischievous beast or pestilence.

Still, audacious, infamous, guilty as he was, Habitus, O judges, would never have accused him, if he had been able to avoid doing so without danger to his own life. Oppianicus was his enemy; still he was his step-father: his mother was cruel to him and hated him; still she was his mother. Lastly, no one was ever so disinclined to prosecutions as Cluentius was by nature, by disposition, and by the constant habits of his life. But as he had this alternative set before him, either to accuse hint, as he was bound to do by justice and piety, or else to be miserably and wickedly murdered himself, he preferred accusing him any way he could, to dying in that miserable manner.

And that you may have this thoroughly proved to you, I will relate to you the crime of Oppianicus, as it was clearly detected and proved, from which you will see both things, both that my client could not avoid prosecuting him, and that he could not possibly escape being convicted. There were some officers at Larinum called Martiales, the public ministers of Mars, and consecrated to that god by the old institutions and religious ceremonies of the people of Larinum. And as there was a great number of them, and as, just as there were many slaves of Venus in Sicily, these also at Larinum were reckoned part of the household of Mars, on a sudden Oppianicus began to urge on their behalf, that they were all free men, and Roman citizens. The senators of Larinum and all the citizens of that municipality were very indignant at this. Accordingly they requested Habitus to undertake the cause and to maintain the public rights of the city. Habitus, although he had entirely retired from public life, still, out of regard to the place and the antiquity of his family, and because he thought that he was born not for his own advantage only, but also for that of his fellow-citizens, and of his other friends, he was unwilling to refuse the eager importunity of all the Larinatians.

Having undertaken the business, when the cause had been transferred to Rome, great contentions arose every day between Habitus and Oppianicus from the zeal of each for the side which he espoused. Oppianicus himself was a man of a bitter and savage disposition; and Habitus's own mother, being hostile to and furious against her son, inflamed his insane hatred. But they thought it exceedingly desirable for them to get rid of him, and to disconnect him from the cause of the Martiales. There was also another more influential reason which had great weight with Oppianicus, being a most avaricious and audacious man.

For, up to the time of that trial, Habitus had never made any will. For he could not make up his mind to bequeath anything to such a mother as his, nor, on the other hand, to leave his parent's name entirely out of his will. And as Oppianicus was aware of that, for it was no secret, he plainly saw, that, if Habitus were dead, all his property would come to his mother; and she might afterwards, when she had become richer, and had lost her son, be put out of the way by him, with more profit, and with less danger. So now see in what manner he, being urged on by these desires, endeavoured to take off Habitus by poison.

There were two twin brothers of the municipality of Aletrinum, by name Caius and Lucius Fabricius, men very like one another in appearance and disposition, but very unlike the rest of their fellow-citizens; among whom what uniform respectability of character, and what consistent and moderate habits of life prevail, there is not one of you, I imagine, who is ignorant. Oppianicus was always exceedingly intimate with these Fabricii. You are all pretty well aware what great power in causing friendship a similarity of pursuits and disposition has. As these two men lived in such a way as to think no gain discreditable; as every sort of fraud, and treachery, and cheating of young men was practiced by them; as they were notorious for every sort of vice and dishonesty, Oppianicus, as I have said, had cultivated their intimacy for many years.

And accordingly he now resolved to prepare destruction for Habitus by the agency of Caius Fabricius, for Lucius had died. Habitus was at that time in delicate health; and he was employing a physician of no great reputation, but a man of tried skill and honesty, by name Cleophantus, whose slave, Diogenes, Fabricius began to tamper with, and to induce by promises and bribes to give poison to Habitus. The slave, being a cunning fellow, but, as the affair proved, a virtuous and upright man, did not refuse to listen to Fabricius' discourse; he reported the matter to his master, and Cleophantus had a conference with Habitus. Habitus immediately communicated the business to Marcus Bebrius, a senator, his most intimate friend; and I imagine you all recollect what a loyal, and prudent, and worthy man he was. His advice was that Habitus should buy Diogenes of Cleophantus, in order that the matter might be more easily proved by his information, or else be discovered to be false. Not to make a long story of it, Diogenes is bought in a few days, (when many virtuous men had secretly been made aware of it,) the poison, and the money sealed up, which was given for that purpose, is seized in the hands of Scamander, a freedman of the Fabricii.

O ye immortal gods! will any one, when he has heard all these facts, say that Oppianicus was falsely convicted? Who was ever more audacious? who was ever more guilty? who was ever brought before a court more manifestly detected in his guilt? What genius, what eloquence could there be, what plea in defence could possibly be devised, which could stand against this single accusation? And at the same time, who is there that can doubt that, in such a case as this so clearly detected and proved, Cluentius was forced either to die himself, or to undertake the prosecution?

I think, O judges, that it is proved plainly enough, that Oppianicus was prosecuted on such accusations that it was absolutely impossible for him to be honestly acquitted. Now I will show you that he was brought before the courts as a criminal, in such a way that he came before them already condemned, as there had been more than one or even two previous investigations of his case. For Cluentius, O judges, in the first instance, accused that man in whose hands he had seized the poison. That was Scamander, the freedman of the Fabricii. The Bench was honest. There was no suspicion of the judges having been bribed. A plain case, a well-proved fact, an undeniable charge was brought before the court. So then this Fabricius, the man whom I have mentioned already seeing that, if his freedman were condemned, he himself would be in danger, because he knew that I lived in the neighbourhood of Aletrinum, and was very intimate with many of the citizens of that place, brought a number of them to me: who, although they had that opinion of the man which they could not help having, still, because he was of the same municipality as themselves, thought it concerned their dignity to defend him by what means they could; and they begged of me that I would do so, and that I would undertake the cause of Scamander; and on his cause all the safety of his master depended.

I, as I was unable to refuse anything to men who were so respectable, and so much attached to me, —and as I was not aware that the accusation was one involving crimes of such enormity and so undeniably proved—as indeed they too, who were then recommending the cause to me, were not aware either,—promised to do all that they asked of me. The cause began to be pleaded; Scamander the defendant was cited before the court. Publius Canutius was the counsel for the prosecution, a man of the greatest ability, and a very accomplished speaker; and he accused Scamander in plain words, saying “that the poison had been discovered on him.” All the force of his accusation was directed against Oppianicus. The cause of his designs against Cluentius was revealed; his intimacy with the Fabricii was mentioned; the way of life and audacity of the man was revealed; in short, the whole accusation was stated with great firmness and with varied eloquence, and at last was summed up by the proved discovery of the poison. Then I rose to reply,

with what anxiety, O ye immortal gods! with what solicitude of mind! with what fear! Indeed, I am always very nervous when I begin to speak. As often as I rise to speak, so often do I think that I am myself on my trial, not only as to my ability, but also as to my virtue and as to the discharge of my duty; lest I should either seem to have undertaken what I am incapable of performing, which is an impudent act, or not to perform it as well as I can, which is either a perfidious action or a careless one. But that time I was so agitated, that I was afraid of everything. I was afraid, if I said nothing, of being thought utterly devoid of eloquence, and, if I said much in such a case, of being considered the most shameless of men. I recollected myself after a time, and adopted this resolution, that I must needs act boldly; that the age which I was of at that time generally had much allowance made for it, even if I were to stand by men in danger, though their cause had but little justice in it. And so I acted. I strove and contended by every possible means, I had recourse to every possible expedient, to every imaginable excuse in the case, which I could think of; so as, at all events, (though I am almost ashamed to say it,) no one could think that the cause had been left without an advocate.

But, whatever excuse I tried to put forth, the prosecutor immediately wrested out of my hands. If I asked what enmity there was between Scamander and Habitus, he admitted that there was none. But he said that Oppianicus, whose agent he had been, had always been and still was most hostile to Habitus. If again I urged that no advantage would accrue to Scamander by the death of Habitus; he admitted that, but he said that all the property of Habitus would come to the wife of Oppianicus, a man who had had plenty of practice in killing his wives. When I employed this argument in the defence, which has always been considered a most honourable one to use in the causes of freedmen, that Scamander was highly esteemed by his patron; he admitted that, but asked, Who had any opinion of that patron himself?

When I urged at some length the argument, that plot might have been laid against Scamander by Diogenes, and that it might have been arranged between them on some other account that Diogenes should bring him medicine, not poison that this might happen to any one; he asked why he came into such a place as that, into so secret a place, why he came by himself, why he came with a sum of money sealed up. And lastly, at this point, our cause was weighed down by witnesses, most honourable men. Marcus Bebrius said that Diogenes had been bought by his advice, and that he was present when Scamander was seized with the poison and the money in his possession. Publius Quintilius Varus a man of the most scrupulous honour, and of the greatest authority, said that Cleophantus had conversed with him about the plots which were being laid against Habitus, and about the tampering with Diogenes, while the matter was fresh.

And all through that trial, though we appeared to be defending Scamander, he was the defendant only in name, but in reality, it was Oppianicus who was in peril, and who was the object of the whole prosecution. Nor, indeed, was there any doubt about it, nor could he disguise that that was the case. He was constantly present in court, constantly interfering in the case; he was exerting all his zeal and all his influence. And lastly, which was of great injury to our cause, he was sitting in that very place as if he were the defendant. The eyes of all the judges were directed, not towards Scamander, but towards Oppianicus; his fear, his agitation, his countenance betraying suspense and uncertainty, his constant change of colour, made all those things, which were previously very suspicious, palpable and evident.

When the judges were about to come to their decision, Caius Junius, the president, asked the defendant, according to the provisions of the Cornelian law which then existed, whether he wished the decision to be come to in his case secretly or openly. He replied by the advice of Oppianicus, because he said that Junius was an intimate friend of Habitus, that he wished the decision to be come to secretly. The judges deliberate. Scamander on the first trial was convicted by every vote except one, which Stalenus said was his. Who in the whole city was there at that time, who when Scamander was condemned, did not think that sentence had been passed on Oppianicus? What point was decided by that conviction except that that poison had been procured for the purpose of being given to Habitus? However, what suspicion of the very slightest nature attached, or could attach to Scamander, so that he should be thought to have desired of his own accord to kill Habitus?

And, now that this trial had taken place, now that Oppianicus was convicted in fact, and in the general opinion of every one, though he was not yet condemned by any sentence having been legally passed upon him, still Habitus did not at once proceed criminally against Oppianicus. He wished to know whether the judges were severe against those men only whom they had ascertained to have poison in their own possession, or whether they judged the intention and complicity of others in such crimes worthy of the same punishment. Therefore, he immediately proceeded against Caius Fabricius, who, on account of his intimacy with Oppianicus, he thought must have been privy to that crime; and, on account of the connection of the two causes, he obtained leave to have that cause taken first. Then this Fabricius not only did not bring to me my neighbours and friends the citizens of Aletrinum, but he was not able himself any longer to employ them as men eager in his defence, or as witnesses to his character.

For they and I thought it suitable to our humanity to uphold the cause of a man not entirely a stranger to us, while it was undecided, though suspicious; but to endeavour to upset the decision which had been come to, we should have thought a deed of great impudence. Accordingly he, being compelled by his desolate condition and necessity, fled for aid to the brothers Cepasii, industrious men, and of such a disposition as to think it an honour and a kindness to have any opportunity of speaking afforded them. Now this is a very shameful thing, that in diseases of the body, the more serious the complaint is, the more carefully is a physician of great eminence and skill sought for; but in capital trials, the worse the case is, the more obscure and unprincipled is the practitioner to whom men have recourse.

The defendant is brought before the court; the cause is pleaded; Canutius says but little in support of the accusation, it being a case, in fact, already decided. The elder Cepasius begins to reply, in a long exordium, tracing the facts a long way back. At first his speech is listened to with attention. Oppianicus began to recover his spirits, having been before downcast and dejected. Fabricius himself was delighted. He was not aware that the attention of the judges was awakened, not by the eloquence of the man, but by the impudence of the defence. After he began to discuss the immediate facts of the case, he himself aggravated considerably the unfavourable circumstances that already existed. Although he pleaded with great diligence, yet at times he seemed not to be defending the man, but only quibbling with the accusation. And while he was thinking that he was speaking with great art, and when he had made up this form of words with his utmost skill, “Look, O judges, at the fortunes of the men, look at the uncertainty and variety of the events that have befallen them, look at the old age of Fabricius;”—when he had frequently repeated this “Look,” for the sake of adorning his speech, he himself did look, but Caius Fabricius had slunk away from his seat with his head down.

On this the judges began to laugh; the counsel began to get in a rage, and to be very indignant that his cause was taken out of his mouth, and that he could not go on saying “Look, O judges,” from that place; nor was anything nearer happening, than his pursuing him and seizing him by the throat, and bringing him back to his seat, in order that he might be able to finish his summing up. And so Fabricius was condemned, in the first place by his own judgment, which is the severest condemnation of all, and in the second place by the authority of the law, and by the sentences of the judges. Why, now, need we say any more of this cause of Oppianicus? He was brought as a defendant before those very judges by whom he had already been condemned in ten previous examinations. By the same judges, who, by the condemnation of Fabricius, had in reality passed sentence on Oppianicus, his trial was appointed to come on first. He was accused of the gravest crimes, both of those which have already been briefly mentioned by me, and of many others besides, all of which I now pass over. He was accused before those men who had already condemned both Scamander the agent of Oppianicus, and Fabricius his accomplice in crime.

Which, O ye immortal gods! is most to be wondered at, that he was condemned, or that he dared to make any reply? For what could those judges do? If they had condemned the Fabricii when innocent, still in the case of Oppianicus they ought to have been consistent with themselves, and to have made their present decision harmonize with their previous ones. Could they themselves of their own accord rescind their own judgments, when other men, when giving judgment, are accustomed most especially to take care that their decisions be not at variance with those of other judges? And could those who had condemned the freedman of Fabricius, because he had been an agent in the crime, and his patron, because he had been privy to it, acquit the principal and original contriver of the whole wickedness? Could those who, without any previous examination, had condemned the other men from what appeared in the cause itself, acquit this man whom they knew to have been already convicted twice over?