Pro A. Cluentio

Then indeed those decisions of the senatorial body, branded with no imaginary odium, but with real and conspicuous infamy, covered with disgrace and ignominy, would have left no room for any defence of them. For what answer could these judges make if any one asked of them, “You have condemned Scamander; of what crime? Because, forsooth, he attempted to murder Habitus by poison, by the agency of the slave of the doctor. What was Scamander to gain by the death of Habitus? Nothing; but he was the agent of Oppianicus. You have condemned Caius Fabricius; why so? Because, as he himself was exceedingly intimate with Oppianicus, and as his freedman had been detected in the very act, it was not proved that he was entirely ignorant of his design.” If, then, they had acquitted Oppianicus himself, after he had been twice condemned by their own decisions, who could have endured such infamy on the part of the tribunals, such inconsistency in judicial decisions, and such caprice on the part of the judges?

But if you now clearly see this, which has been long ago proved by the whole of my speech, that the defendant must inevitably be condemned by that decision, especially when brought before the same judges who had made two previous investigations into the matter, you must at the same time see this, that the accuser could have had no imaginable reason for wishing to bribe the bench of judges. For I ask you, O Titus Altius, leaving out of the question all other arguments, whether you think that the Fabricii who were condemned were innocent? whether you say that those decisions also were corruptly procured by bribes? though in one of those decisions one of the defendants was acquitted by Stalenus alone; in the other, the defendant, of his own accord, condemned himself. Come, now, if they were guilty, of what crime were they guilty? Was there any crime imputed to them except the seeking for poison with which to murder Habitus? Was there any other point mooted at those trials, except these plots which were laid against Habitus by Oppianicus, through the instrumentality of the Fabricii? Nothing else, you will find; I say, O judges, nothing else. It is fresh in people's memories There are public records of the trial. Correct me if I am speaking falsely. Read the statements of the witnesses. Tell me, in those trials, what was objected to them, I will not say as an accusation, but even as a reproach, except this poison of Oppianicus.

Many reasons can be alleged why it was necessary that this decision should be given; but I will meet your expectation half-way, O judges. For although I am listened to by you in such a way, that I am persuaded no one was ever listened to more kindly or more attentively, still your silent expectation has been for some time calling me in another direction, and seeming to chide me thus:—“What then? Do you deny that that sentence was procured by corruption?” I do not deny that, but I say that the corruption was not practiced by my client. By whom, then, was it practiced? I think, in the first place, if it had been uncertain what was likely to be the result of that trial, that still it would have been more probable that he would have recourse to corruption, who was afraid of being himself convicted, than he who was only afraid of another man being acquitted. In the second place, as it was doubtful to no one what decision must inevitably be given, that he would employ such means, who for any reason distrusted his case, rather than he who had every possible reason to feel confidence in his. Lastly, that at all events, he who had twice failed before those judges must have been the corrupter, rather than he who had twice established his case to their satisfaction.

One thing is quite certain. No one will be so unjust to Cluentius, as not to grant to me, if it be proved that that tribunal was bribed, that it was bribed either by Habitus or by Oppianicus. If I prove that it was not bribed by Habitus, I prove that it was by Oppianicus,—I clear Habitus. Wherefore, although I have already established plainly enough that the one had no reason whatever for having recourse to bribery, (and from this alone it follows that the bribery must have been committed by Oppianicus,) still you shall have separate proofs of this particular point. And I will adduce those facts as arguments which, however, are very weighty ones—namely, that he was the briber, who was in danger,—that he was the briber, who was afraid,—that he was the briber, who had no hope of safety by any other means; he who was always a man of extraordinary audacity. There are many such arguments. But when I have a case which is not doubtful, bull open and evident, the enumeration of every separate argument is superfluous.

I say that Statius Albius gave Caius Attius Stalenus the judge a large sum of money to influence his decision. Does any one deny it? I appeal to you, O Oppianicus; to you, O Titus Attius; the one of whom deplores that conviction with his eloquence, the other with silent piety. Dare to deny it, if you can, that money was given by Oppianicus to Stalenus the judge. Deny it—deny it, I say, where you stand. Why are you silent? But you cannot deny it, for you sought to recover what had been paid. You have admitted it,—you have recovered it. With what face now do you dare to mention a decision given through corruption, when you confess that money was given by the opposite side to the judge before trial, and recovered from him after the trial?

How, then, were all these things managed? I will go back a little way, O judges, and I will explain everything which has lain hid in long obscurity, so that you shall appear almost to see it with your eyes. I entreat you, as you have listened to me attentively up to this time, so to listen to what is to come. In truth, nothing shall be said by me which shall not seem to be worthy of this assembly and this silence which is maintained in the court,—worthy of your attention and of your ears. For when first Oppianicus began to suspect, from the fact of a prosecution having been instituted against Scamander, what danger he himself was threatened with, he immediately set himself to work to become intimate with a man, needy, audacious, a practiced agent in the corruption of tribunals but at that time himself a judge, Stalenus. And first of all, when Scamander was the defendant, he made such an impression on him by his gifts, and presents, and liberality; that he showed himself a more eager assistant than the credit of a judge could stand.

But afterwards, when Scamander had been acquitted by the single vote of Stalenus, but when the patron of Scamander had not been acquitted even by his own judgment, he found that he must provide for his safety by stronger measures. Then he began to request of Stalenus as from a man most acute in contriving, most impudent in daring, and most intrepid in executing, (for all these qualities he had in a great degree, and he pretended to have them in a still greater degree,) assistance to save his credit and his fortunes. You are not ignorant, O judges, that even beasts, when warned by hunger, usually return to that place where they have once been fed.

That Stalenus, two years before, when he had undertaken the cause of the property of Safinius at Atella, had said that he would bribe the tribunal with six hundred thousand sesterces. But when he had received this sum from the youth, he embezzled it, and when the trial was over, he did not restore it either to Safinius or to the purchasers of the property. But when he had spent all that money, and had nothing left, not only nothing to gratify his desires, but nothing even to supply his necessities, he made up his mind that he must return to the same system of plunder and judicial embezzlement. And, therefore, as he saw that Oppianicus was in a desperate way, and overwhelmed by two previous investigations adverse to him, he raised him up from his depression with his promises, and bade him not despair of safety. Oppianicus began to entreat the man to show him some method of corrupting the tribunal.

But he, as was afterwards heard from Oppianicus himself, said that there was no one in the city except himself who could do this. But at first he began to make objections, because he said that he was a candidate for the aedileship with men of the highest rank, and that he was afraid of incurring unpopularity and of giving offence. Afterwards, being prevailed on, he required at first a large sum of money. At last, he came down to what could be managed, and desired six hundred and forty thousand sesterces to be sent to his house. And as soon as this money was brought to him, that most worthless man immediately began to form and adopt the following idea,—that nothing could be more advantageous for his interests than for Oppianicus to be condemned; because, if he were acquitted, he must either distribute the money among the judges, or else restore it to him: but if he were condemned, there would be no one to reclaim it.

Therefore, he contrives a singular plan. And you will the more easily, O judges, believe the things which are said by us, if you will direct your minds back a considerable space, so as to recollect the way of life and disposition of Caius Stalenus. For according to the opinion that is formed of a man's habits do people conjecture what has or has not been done by him. As he was a man needy, expensive, audacious, cunning, perfidious, and as he saw so vast a sum of money laid up in his house, a most miserable and unfurnished receptacle for it, he began to revolve in his mind every sort of cunning and fraud. “Must I give it to the judges? In that case, what shall I get myself, except danger and infamy? Can I contrive no means by which Oppianicus must be condemned? Why not? There is nothing in the world that cannot be managed somehow. If any chance delivers him from danger, must I not return the money? Let us, then, drive him on headlong, and crush him in utter ruin.”

He adopts this plan,—he promises some of the most insignificant of the judges some money; then he keeps it back, hoping by this means (as he thought that the respectable men would, of their own accord, judge with impartiality) to make those who were less esteemed furious against Oppianicus on account of their disappointment. Therefore, as he had always been a blundering and a perverse fellow, he begins with Bulbus, and finding him sulky and yawning because he had got nothing for a long time, he gives him a gentle spur. “What will you do,” says he, “will you help me, O Bulbus, so that we need not serve the republic for nothing?” But he, as soon as he heard this—“For nothing,” said he, “I will follow whenever you like. But what have you got?” Then he promises him forty thousand sesterces if Oppianicus is acquitted. And he begs him to summon the rest of those with whom he is accustomed to converse, and he, the contriver of the whole business, adds Gutta [*](This is quite untranslatable; it is a set of puns. Gutta is the name of one judge, Bulbus of another; but gutta also means a drop, and bulbus means an onion. He sprinkles a drop on this onion, or he pours water on the onion to boil it.) to Bulbus.

Therefore, he did not seem at all bitter after the taste he had had of his discourse. One or two days passed, when the matter appeared somewhat doubtful. He wanted the agent and some security for the money. Then Bulbus addresses the man with a cheerful countenance, as caressingly as he can “What will you do,” says he, “O Paetus?” (For Stalenus had chosen this surname for himself from the images of the Aelii, lest if he called himself Ligur, he should seem to be using the name of his nation rather than that of his family.) “Men are asking me where the money is about which you talked to me.” On this that most manifest rogue, fed on gains acquired by tampering with the courts of justice, as he had now all his hopes and all his heart set upon that sum of money which he had got in his house, begins to frown. (Recollect his face, and the expression that you have seen him put on.) He complains that he has been thrown out by Oppianicus; and he, a man wholly made up of fraud and lies, and who had even improved those vices which he had by nature, by careful study, and by a regular sort of system of wickedness, declares positively that he has been cheated by Oppianicus; and he adds this assertion,—that he will be condemned by the vote which in his case every one was to give openly.

The report had reached the bench, that there was mention made of corruption being practiced among the judges;—the matter had not been kept as secret as it ought to have been, and yet was not so thoroughly detected as it was desirable that it should be for the sake of the republic. While the matter was so obscure, and every one in such doubt, on a sudden Canutius, a very clever man, and who had got some suspicion that Stalenus had been tampered with, but who thought that the business was not definitively settled, determined to set sentence pronounced. The judges said that they were willing. And at that time Oppianicus himself was in no great alarm. He thought that the whole business had been settled by Stalenus.

The judges who were to deliberate on the case were thirty-two in number: an acquittal would be obtained by the votes of sixteen of them. Forty thousand sesterces given to each judge ought to make up that number of votes, and then the vote of Stalenus himself, who would be induced by the hope of a greater reward still, would crown the whole, making the seventeenth. And it happened by chance, because the matter was concluded in this way on a sudden, that Stalenus himself was not present. He was acting as counsel for the defence in some cause or other before a judge. Habitus did not mind that, nor did Canutius. But Oppianicus and his patron Lucius Quinctius were not so well pleased; and as Lucius Quinctius was at that time a tribune of the people, he reproached Caius Junius the judge most bitterly, and insisted upon it that they should not deliberate on their decision without the presence of Stalenus, and as they appeared to be purposely rather careless in communicating with him on the subject by means of the lictors, he himself went out of the criminal court into the civil court, where Stalenus was engaged, and, as he had the power to do, adjourned that court, and himself brought Stalenus back to the bench.

The judges rise to give decisions, when Oppianicus said, as he had at that time a right to do, that he wished the votes to be given openly; his object being that Stalenus might know what was to be paid to each judge. There were different kinds of judges, a few were bribed, but all were unfavorable. As men who are accustomed to receive bribes in the Campus Martius are usually exceedingly hostile to those candidates whose money they think is kept back, so the judges of the same sort were then very indignant against this defendant. The others considered him very guilty, but they waited for the votes of those who they thought had been bribed, that by seeing their votes they might judge who it was that they had been bribed by. Behold now—the lots were drawn with such a result that Bulbus, Stalenus, and Gutta were the first who were, to deliver their opinions. There was the greatest anxiety on the part of every one to see what vote would be given by these worthless and corrupt judges. And they all condemn him without the slightest hesitation.

On this, great scruples arose in men's minds, and some doubt as to what had really been done. Then some of the judges, wise men, trained in the old-fashioned principles of the ancient tribunals, as they could: not acquit a most guilty man, and yet, as they did not like at once to condemn a man, in whose case there appeared reason to suspect that bribery had been employed against him, before they were able to ascertain the truth of this suspicion, gave as their decision, “Not proven.” But some severe men, who made up their minds that regard ought to be had to the intention with which a thing was done by any one, although they believed that others had only given a correct decision through the influence of bribery, nevertheless thought that it behoved them to decide consistently with their previous decisions. Accordingly, they condemned him. There were five in all, who, whether they did so out of ignorance, or out of pity, or from being influenced by some secret suspicion, or by some latent ambition, acquitted that innocent Oppianicus of yours altogether.

After Oppianicus had been condemned, immediately Lucius Quinctius, an excessive seeker after popularity, who was accustomed to catch at every wind of report, and at every word uttered in the assemblies, thought that he had an opportunity of rising himself, by exciting odium against the senators; because he thought that the decisions of that body were already falling into disfavour in the eyes of the people. One or two assemblies are held, very violent and stormy: a tribune of the people kept loudly asserting that the judges had taken money to condemn an innocent prisoner: he kept saying, that the fortunes of all men were at stake; that there were no courts of justice; that no one could be safe who had a wealthy enemy. Men ignorant of the whole business, who had never even seen Oppianicus, and who thought that a most virtuous citizen, that a most modest man had been crushed by money, being exasperated by this suspicion, began to demand that the whole matter should be brought forward and inquired into, and in fact, to require an investigation of the whole business; and at that very time Stalenus, having been sent for by Oppianicus, came by night to the house of Titus Annius, a most honourable man, and a most intimate friend of my own.

By this time the whole business is known to every one;—what Oppianicus said to him about the money; how he said that he would restore the money; how respectable men heard the whole of their conversation, having been placed in a secret place with that view; how the whole matter was laid open, and mentioned publicly in the forum, and how all the money was extorted from and compelled to be restored by Stalenus. The character of this Stalenus, already known to and thoroughly ascertained by the people, was such as to make no suspicion unnatural; still, those who were present in the assembly did not understand that the money which he had promised to pay on behalf of the defendant, had been kept back by him.—For this they were not told. They were aware that reports of bribery had been at work in the court of justice; they heard that a defendant had been condemned who was innocent; they saw that he had been condemned by Stalenus's vote. They judged, because they knew the man that it had not been done for nothing. A similar suspicion existed with respect to Bulbus, and Gutta, and some others.

Therefore, I confess, (for I may now make the confession with impunity, especially in this place,) that not only the habits of life of Oppianicus, but that even his name was unknown to the people before that trial. Moreover that, as it did seem a most scandalous thing for an innocent man to have been crushed by the influence of money; and as the general profligacy of Stalenus, and the baseness of some others of the judges who resembled him, increased this suspicion; and as Lucius Quinctius pleaded his cause, a man not only of the greatest influence, but also of exceeding skill in arousing the feelings of the multitude; by these circumstances a very great degree of suspicion was excited against, and a very great degree of odium attached to that tribunal. And I recollect, that Caius Junius who had presided over that trial, was thrown, as it were, into the fresh fire; and that he, a man of aedilitian rank, who was already praetor in the universal opinion of all men, was driven out of the forum and even out of the city, not by any regular discussion, but by the outcry raised against him by all men.

And I am not sorry that I am defending the cause of Aulus Cluentius at this time rather than at that time. For the cause remains the same, and cannot by any means be altered; the violence of the times, and the unpopularity then stirred up, has passed away; so that the evil that existed in the time is now no injury to us, the good which there was in the cause is still advantageous to us. And, therefore, I perceive now how attentively I am listened to, not only by those to whom the judgment and the power of deciding belongs, but even by those whose influence is confined to their mere opinion. But if at that time I had been speaking, I should not have been listened to: not that the circumstances were different; they are exactly the same; but because the time was different—and of that you may feel quite sure. Who at that time could have dared to say? Oppianicus had been condemned because he was guilty? who now ventures to deny it? Who at that time could have ventured to assert that Oppianicus had endeavoured to corrupt the bench of judges with money? at the present time who is there who can deny it? Who, at that time, would have been suffered to mention that Oppianicus was prosecuted, after having been already condemned by two previous investigations? who is there at the present time who can attempt to invalidate this statement?