Pro A. Cluentio

Wherefore, all party feeling being now out of the question, for time has removed that, my oration has begged you to dismiss it from your minds, and your good faith and justice has discarded it from an inquiry into truth; it is there besides in the cause that remains in doubt? It is perfectly notorious that bribery was practiced or attempted at that trial. The question is, By whom was it practiced; by the prosecutor, or by the defendant? The prosecutor says, “In the first place, I was prosecuting him on the most serious charges, so that I had no need of bribery; in the second place, I was prosecuting a man who was already condemned, so that he could not have been saved even by bribery; and lastly, even if he had been acquitted, my position and my fortune would have been uninjured by his acquittal.” What does the defendant say, on the other hand? “In the first place, I was alarmed at the very number and atrocity of the charges; in the second place, I felt that, after the Fabricii had been condemned on account of their being privy to my wickedness, I was condemned myself; lastly, I was in such a condition that my whole position and all my fortunes depended entirely on that one trial, from which I was in danger.”

Come now, since the one had many and grave reasons for bribing the judges, and the other had none, let us try to trace the course of the money itself. Cluentius has kept his accounts with the greatest accuracy; and this system has this in it, that by that means nothing can possibly be added to or taken from the income without its being known. It is eight years after that cause occupied men's attention that you are now handling, stirring up, and inquiring into everything which relates to it, both in his accounts and in the papers of others; and in the meantime you find no trace of any money of Cluentius's in the whole business. What then? Can we trace the money of Albius by the scent, or can you guide us, so that we may be able to enter into his very chamber, and find it there? There are in one place six hundred and forty thousand sesterces; they are in the possession of one most audacious man; they are in the possession of a judge. What would you have more?

Oh, but Stalenus was not commissioned to corrupt the judges by Oppianicus, but by Cluentius. Why, when the judges were retiring to deliberate, did Cluentius and Canutius allow him to go away? Why, when they were going to give their votes, did they not require the presence of Stalenus the judge, to whom they had given the money Oppianicus did not for him; Quinctius did demand his presence. The tribunitian power was interposed to prevent a decision being come to without Stalenus. But he condemned him. To be sure, for he had given this condemnatory vote as a sort of pledge to Bulbus and the rest to prove that he had been cheated by Oppianicus. If, therefore, on one side, there is a reason for corrupting the tribunal; on one side, money; on one side, Stalenus; on one side, every description of fraud and audacity: and on the other side, modesty, an honourable life, and no suspicion of corruption, and no object in corrupting the tribunal; allow, now that the truth is made clear and all error dispelled, the discredit of that baseness to adhere to that side to which all the other wickednesses are attached; and allow the odium of it to depart at last from that man, whom you do not perceive to have ever been connected with any fault.

Oh, but Oppianicus gave Stalenus money, not to corrupt the judges, but to conciliate their favour. Can you, O Attius, can a man endued with your prudence, to say nothing of your knowledge of the world, and practice in pleading, say such a thing as this? For they say that he is the wisest man; to whom everything which is necessary is sure to occur of his own accord; and that he is next best to him, who is guided by the clever experience of another. [*](There is an epigram in the Greek anthology from which these sentiments of Cicero seem to be taken:—ou(=tos me\n pana/ristos, o(\s au)to\s pa/nta noh/sh|, e)sqlo\s d' au)= ka)/keinos, o(\s eu)= ei)po/nti pi/qhtai, o(/s de/ ke mh/t' au)/to\s noe/h|, mh/t' a)/llou a)kou/wn e)n qumw=| ba/llhtai, o(/d' au)=t' a)xrh/ios a)nh/r. ) But in folly it is just the contrary; for he is less foolish to whom no folly occurs spontaneously, than he who approves of the folly which occurs to another. That idea of conciliating favour Stalenus thought of, while the case was fresh, when he was held by the throat as it were; or rather, as people said at the time, he took the hint from Publius Cethegus, when he published that fable about conciliation and favour.

For you can recollect that this was what men said at the time; that Cethegus, because he hated the man and because he wished to get rid of such rascality out of the republic, and because he saw that he who had confessed that, while a judge, he had secretly and irregularly taken money from a defendant, could not possibly get off, had given him treacherous advice. If Cethegus behaved dishonestly in this matter, he appears to me to have wished to get rid of an adversary; but if the case was such that Stalenus could not possibly deny that he had received the money, (and nothing could be more dangerous or more disgraceful than to confess for what purpose he had received it,) the advice of Cethegus is not to be blamed.

But the case of Stalenus then was very different from what your case is now, O Attius. He, being pressed by the facts, could not possibly say anything which was not more creditable than confessing what had really happened. But I do marvel that you should have now brought up again the very same plea which was then hooted out of court and rejected; for how could Cluentius possibly become friends with Oppianicus, when he was at enmity with his mother? The names of the defendant and prosecutor were recorded in the public documents; the Fabricii had been condemned; Albius could not possibly escape if there were any other prosecutor, nor could Cluentius abandon the prosecution without rendering himself liable to the imputation of having trumped up a false accusation.

Was the money given to procure any collusion? That, too, has a direct reference to corrupting the judges. But what was the necessity for employing a judge as an agent in such a business? And above all things, what need was there for transacting the whole business through the agency of Stalenus, a man perfectly unconnected with either party, —a most sordid and infamous man—rather than through the intervention of some respectable person, some common friend or connection of both parties? But why need I discuss this matter at length, as if there were any obscurity in the business, when the very money which was given to Stalenus, proves by its amount and by its sum total, not only how much it was, but for what purpose it was given? I say that it was necessary to bribe sixteen judges, in order to procure the acquittal of Oppianicus; I say that six hundred and forty thousand sesterces were taken to Stalenus's house. If, as you say, this was for the purpose of conciliating good-will, what is the meaning of that addition of forty thousand sesterces? but if, as we say, it was in order that forty thousand sesterces might be given to each judge, then Archimedes himself could not calculate more accurately.

But a great many decisions have been come to, tending to prove that the tribunal was corrupted by Cluentius. I say, on the other hand, that before this time, that matter has never been brought before the court at all on its own merits. The matter has been so very much canvassed, and has been so long the subject of discussion, that this is the very first day that a word has been said in defence of Cluentius; this is the very first day that truth, relying on these judges, he ventured to lift up her voice against the popular feeling. However, what are all those numerous decisions? for I have prepared myself to encounter everything, and I am ready to show that the decisions which were said to have been come to afterwards, bearing on that decision, were, as to some of them, more like an earthquake or a tempest, than an orderly judgment or a regular decision; that, as to some of them they had no weight against Habitus at all; that some of them even told in his favour; and that some were such that they were never called judicial decisions at all, and never even thought so.

Here I, rather for the sake of adhering to the usual custom, than from any fear that you would not do so of your own accord, will beg of you to listen to me with attention, while I discuss each of these decisions. Caius Junius, who presided over that trial, has been condemned; add that also, if you please,—he was condemned at the time that he was a criminal judge. No relaxation of the prosecution or mitigation of the law was procured by the means of any one of the tribunes of the people. At a time that it was contrary to law for him to be taken away from the investigation of the case before him to discharge any duty to the republic whatever;—at that very time, I say, he was hurried off to the investigation. But to what investigation? For the expression of your countenances, O judges, invites me to say freely what I had thought I must have suppressed.

What shall I say? Was that then an investigation, or a discussion, or a decision? I will suppose it was. Let him, who wishes today to speak on the subject of the people having been excited, say whose wishes were at that time complied with; let him say on what account Junius gave his decision. Whomsoever you ask, you will get this answer;—Because he received money, because he unfairly crushed an innocent man. This is the common opinion. But if that were the truth, he ought to have been prosecuted under the same law as Habitus is impeached under. But he himself was carrying on an investigation according to that law. Quinctius would have waited a few days. But he was unwilling to accuse him as a private man, and when the odium of the business had been allayed. You see then that all the hope of the accuser was not in the cause itself, but in the time and in the influence of individuals.

He sought a fine. According to what law? Because he had not taken the oath to observe the law: a thing which never yet was brought against any man as a crime: and because Caius Verres, the city praetor, a very conscientious and careful man, had not the list out of which judges were to be chosen in the place of those who had been rejected, in that book which was then produced full of erasures. On all these accounts Caius Junius was condemned, O judges, for these trivial and unproved reasons, which had no business to have been ever brought before the court at all. And therefore he was defeated, not on the merits of his case, but by the time.

Do you think that this decision ought to be any hindrance to Cluentius? On what account? If Junius had not appointed the judges in the place of those who had been objected to according to law—if he had omitted to take the oath to obey the law—does it follow that any decision bearing on Cluentius's case was pronounced or implied in his condemnation? “No,” says he; “but he was condemned by these laws, because he had committed an offence against another law.” Can those who admit this urge also in defence that that was a regular decision? “Therefore,” says he, “the praetor was hostile to Junius on this account, because the tribunal was thought to have been bribed by his means.” Was then the whole cause changed at this time? Is the case different, is the principle of that decision different, is the nature of the whole business different now from what it was then? I do not think that of all the things that were done then anything can be altered.

What, then, is the reason why our defence is listened to with such silence now, but that all opportunity of defending himself was refused to Junius then? Because at that time there was nothing in the cause but envy, mistake, suspicion, daily assemblies, seditiously stirred up by appeals to popular feeling. The same tribune of the people was the accuser before the assemblies, and the prosecutor in the courts of law. Be came into the court of justice not from the, assembly, but bringing the whole assembly with him. Those steps of Aurelius, [*](These were steps built in the forum by Marcus Aurelius Cotta, and called by his name.) which were new at that time, appeared as if they had been built on purpose for a theatre for the display of that tribunal. And when the prosecutor had filled them with men in a state of great excitement, there was not only no opportunity of speaking in favour of the defendant, but none of even rising up to speak.

It happened lately, before Caius Orchinius, my colleague, that the judges refused to sanction a prosecution against Faustus Sulla, in a cause concerning some money which remained unpaid. Not because they considered that Sulla was an outlaw, or because they thought the cause of the public money insignificant or contemptible; but because, when a tribune of the people was the accuser, they did not think that there could be a fair trial. What? Shall I compare Sulla with Junius? or this tribune of the people with Quinctius? or one time with the other time? Sulla, with his great wealth, his numerous relations, connections, friends, and clients; but in the case of Junius all these things were small, and insignificant, and collected and acquired by his own exertions. The one a tribune of the people, moderate, modest, not only not seditious himself, but an enemy to seditious men; the other bitter, fond of raking up accusations, a hunter after popularity, and a turbulent man. The present a tranquil and a peaceable time; the former time one ruffled with every imaginable storm of ill-will. And as all this was the case, still in the case of Faustus those judges decided that a defendant was brought before the court on very unfair terms, when his adversary was in possession of the greatest power known to the state, which he could avail himself of to add force to his accusations.

And this principle you, O judges, ought, as your wisdom and humanity prompts and enables you to do, to consider over in your mind carefully; and to be thoroughly aware what disaster and what danger the tribunitian power can bring upon every one individual among us, especially when it is egged on by party spirit, and by assemblies of the people, stirred up in a seditious manner. In the very best times, forsooth, when men defended themselves, not by boastings addressed to the populace, but by their own worth and innocence, still neither Publius Popillius, nor Quintus Metellus, most illustrious and most honourable men, could withstand the power of the tribunes; much less at the present time, with such manners as we now have, and such magistrates, can we possibly be saved without the aid of your wisdom, and without the relief which is afforded by the courts of justice.

That court of justice then, O judges, was not like a court of justice; for in it there was no moderation preserved, no regard was had to custom and usage, nor was the cause of the defendant properly advocated. It was all violence, and, as I have said before, a sort of earthquake or tempest,—it was anything rather than a court of justice, or a legal discussion, or a judicial investigation. But if there be any one who thinks that that was a regular proceeding, and who thinks it right to adhere to the decision that was then delivered; still he ought to separate this cause from that one. For it is said that a great many things were demanded of him either because he had not taken the oath to observe the law, or because he had not cast lots for electing judges in the room of those to whom objection had been made in a legal manner. But the case of Cluentius can in no particular be connected with these, laws, in accordance with which a penalty was sought to be recovered from Junius.

Oh, but Bulbus also was condemned. Add that he was condemned of treason, in order that you may understand that this trial has no connection with that one. But this charge was brought against him. I confess it; but it was also made evident by the letters of Caius Cosconius and by the evidence of many witnesses, that a legion in Illyricum had been tampered with by him; and that charge was one peculiarly belonging to that sort of investigation, and was one which was comprehended under the law of treason. But this was an exceedingly great disadvantage to him. That is mere guess work; and if we may have recourse to that, take care, I beg you, that my conjecture be not far the more accurate of the two. For my opinion is, that Bulbus, because he was a worthless, base, dishonest man, and because he came before the court contaminated with many crimes of the deepest dye, was on that account the more easily condemned. But you, out of Bulbus's whole case, select that which seems to suit your own purpose, in order that you may say that it was that which influenced the judges.

Therefore, this decision in the case of Bulbus ought not to be any greater injury to this cause, than those two which were mentioned by the prosecutor in the case of Publius Popillius and Titus Gutta, who were prosecuted for corruption,—who were accused by men who had themselves been convicted of bribery, and whom I do not imagine to have been restored to their original position merely because they had proved that these other men also had taken money for the purpose of influencing their decision, or because they proved to the judges that they had detected others in the same sort of offence of which they had themselves been guilty; and that, therefore, they were entitled to the rewards offered by the law. Therefore, I think that no one can doubt that that conviction for bribery can in no possible way be connected with the cause of Cluentius and with your decision.

What! not if Stalenus was condemned? I do not say at this present moment, O judges, that which I am not sure ought to be said at all, that he was convicted of treason,—I do not read over to you the testimonies of most honourable men, which were given against Stalenus by men who were lieutenants, and prefects, and military tribunes, under Mamercus Aemilius, that most illustrious man, by whose evidence it was made quite plain that it was chiefly through his instrumentality, when he was quaestor, that a seditious spirit was stirred up in the army. I do not even read to you that evidence which was given concerning these six hundred thousand sesterces, which when he had received on presences connected with the trial of Safinius, he retained and embezzled as he did afterwards in the case of the trial of Oppianicus.

I say nothing of all these things, and of many others which were stated against Stalenus at that trial. This I do say,—that Publius and Lucius Cominius, Roman knights, most honourable and eloquent men, had the same dispute with Stalenus then, whom they were accusing, that I now have with Attius. The Cominii said the same thing that I say now,—that Stalenus received money from Oppianicus to induce him to corrupt the tribunal, and Stalenus said that he had received it to conciliate good-will towards him.