But if you, being the judge, shall appear to be no protection to a desolate and helpless condition against power and influence; if before this tribunal the cause is found to depend on interest, not on truth; then indeed there is nothing any longer holy and uncontaminated in the state—no hope that the firmness and virtue of the judge may counterbalance the lowly condition of any one. But undoubtedly before you and your colleagues truth will prevail, or else, if it be driven from this place by power and influence, it will not be able to find any place where it can stand. I do not say this, O Caius Aquillius, because I have any doubt of your own good faith and constancy, or because Publius Quinctius ought not to have the greatest hopes from those whom you have called in as your assessors, being, as they are, among the most eminent Their names were Lucius Lucilius, Publius Quintilius, and Marcus Marcellus; “The judex was generally aided by advisers learned in the law, (jurisconsulti,) who were said in concilio adesse, but the judex alone was empowered to give judgment.” Smith, Dict. Ant. v. Judex. men in the state.

What then? In the first place, the magnitude of the danger causes a man the greatest fear, because he is staking all his fortunes on one trial; and while he is thinking of this, the recollection of your power does not occur to his mind less frequently than that of your justice; because all men whose lives are in another's hand more frequently think of what he, in whose power and under whose dominion they are, can do, than of what he ought to do,—

Secondly, Publius Quinctius has for his adversary, in name indeed, Sextus Naevius, but in reality, the most eloquent, the most gallant, the most accomplished men of our state, who are defending Sextus Naevius with one common zeal, and with all their power: if, indeed, defending means so to comply with the desire of another, that he may the more easily be able to overwhelm whomsoever he chooses by an unjust trial;

for what, O Caius Aquillius, can be mentioned or spoken of more unjust or more unworthy than this, that I who am defending the liberties, The Latin has caput, which in a legal sense expresses not only a man's life, but also his status or civil condition; to be registered in the census was caput habere; to change one's rank, capite, &c. diminuere. And so a trial which affected not only a citizen's life, but his rank or liberty, was called judicium capitale. the fame, and fortunes of another should be compelled to open the cause, especially when Quintus Hortensius, who in this trial fills the part of the accuser, is to speak against me; a man to whom nature has given the greatest possible fluency and energy in speaking? Matters are so managed, that I, who ought rather to ward off the darts of our adversary and to heal the wounds he has inflicted, am compelled to do so now, even when the adversary has cast no dart; and that that time is given to them to attack us when the power of avoiding their attacks is to be taken from us; and if in any particular they should (as they are well prepared to do) cast any false accusation like a poisoned arrow at us, there will be no opportunity for applying a remedy.

That has happened through the injustice and wrong-doing of the praetor; first, because, contrary to universal custom, he has chosen that the trial as to honour or infamy Because if it were decided that Quinctius had forfeited his recognizances, infamia was the consequence. should take place before the one concerning the fact; secondly, because he has so arranged this very trial, that the defendant is compelled to plead his cause before he has heard a word of the accuser's; and this has been done because of the influence and power of those men who indulge the violence and covetousness of Sextus Naevius as eagerly as if their own property or honour were at stake, and who make experiment of their influence in such matters as this, in which the more weight they have through their virtue and nobility, the less they ought to make a parade of what influence they have.

Since Publius Quinctius, involved in and overwhelmed by such numerous and great difficulties, has taken refuge, O Caius Aquillius, in your good faith, in your truth, in your compassion; when, up to this time , owing to the might of his adversaries, no equal law could be found for him, no equal liberty of pleading, no just magistrate, when, through the greatest injustice, everything was unfavourable and hostile to him; he now prays and entreats you, O Caius Aquillius, and all of you who are present as assessors, to allow justice, which has been tossed about and agitated by many injuries, at length to find rest and a firm footing in this place.

And that you may the more easily do this, I will endeavour to make you understand how this matter has been managed and carried out. Caius Quinctius was the brother of this Publius Quinctius; in other respects a sufficiently prudent and attentive head of a family, but in one matter a little less wise, inasmuch as he formed a partnership with Sextus Naevius, a respectable man, but one who had not been brought up so as to be acquainted with the rights of partnership, or with the duties of a head of an established family. The office of praeco was so little reputable that before Cicero's death a law was passed to prevent all persons who had been praecones from becoming decuriones in the municipia. Under the emperors, however it became very profitable. Not that he was wanting in abilities; for Sextus Naevius as a buffoon was never considered without wit, nor as a crier was he reckoned unmannerly. What followed? As nature had given him nothing better than a voice, and his father had left him nothing besides his freedom, he made gain of his voice, and used his freedom for the object of being loquacious with impunity.

So there was no reason in the world for your taking him as a partner, except that he might learn with your money what a harvest money can produce. Nevertheless, induced by acquaintance and intimacy with the man, Quinctius, as I have said, entered into a partnership with him as to those articles which were procured in Gaul. He had considerable property in cattle, and a well-cultivated and productive farm. Naevius is carried off from the halls of Licinius, The Hall of Licinius, i.e. Licinius Crassus, was the celebrated one where he erected four columns of Hymettian marble, for the theatrical shows in his aedileship, and was one of the common resorts of auctioneers and criers. and from the gang of criers, into Gaul and across the Alps; there is a great change in his situation, Coelum non animum mutant qui trans mare currunt. —;Hor. Epist. 1, ii. 27. none in his disposition; for he who from his boyhood had been proposing to himself gain without any outlay, as soon as he spent anything himself and brought it to the common stock, could not be content with a moderate profit.

Nor is it any wonder if he, who had his voice for sale, thought that those things which he had acquired by his voice would be a great profit to him; so that without much moderation, he carried off whatever he could from the common stock to his private house for himself. And in this he was as industrious as if all who behaved in a partnership with exact good faith, were usually condemned in a trial before an arbitrator. The Latin has “arbitrium pro socio condemnari,” on which Graevius says, “Arbitrium pro socio, is a formula of law, by which is signified an action and trial in a case of partnership if any one had cheated his partner; and Cicero means that Naevius was as industrious in cheating his partner, as if those who did not cheat were liable to be condemned, and not those who did cheat.” But concerning these matters I do not consider it necessary to say what Publius Quinctius wishes me to mention; although the cause calls for it: yet as it only calls for it, and does not absolutely require it, The Latin has quia postulat non flagitat, both words being nearly synonymous, but flagito being evidently a stronger word than postulo. I will pass it over.

When this partnership had now subsisted many years, and when Naevius had often been suspected by Quinctius, and was not able conveniently to give an account of the transactions which he had carried on according to his caprice, and not on any system, Quinctius dies in Gaul, when Naevius was there too, and dies suddenly. By his will he left this Publius Quinctius his heir, in order that, as great grief would come to him by his death, great honour should also accrue to him.

When he was dead, Publius Quinctius soon after goes into Gaul. There he lives on terms of intimacy with that fellow Naevius. There they are together nearly a year, during which they had many communications with one another about their partnership, and about the whole of their accounts and their estate in Gaul; nor during that time did Naevius utter one single word about either the partnership owing him anything, or about Quinctius having owed him anything on his private account. As there was some little debt left behind, the payment of which was to be provided for at Rome, this Publius Quinctius issues notices that he shall put up to auction in Gaul, at Narbonne, those things which were his own private property.

On this, this excellent man, Sextus Naevius, dissuades the man by many speeches from putting the things up to auction, saying that he would not be able at that time to sell so conveniently what he had advertised. That he had a sum of money at Rome, which if Quinctius were wise he would consider their common property, from their brotherly intimacy, and also from his relationship with himself; for Naevius has married the cousin of Publius Quinctius, and has children by her. Because Naevius was saying just what a good man ought, Quinctius believed that he who imitated the language of good men, would imitate also their actions. He gives up the idea of having an auction; he goes to Rome; at the same time Naevius also leaves Gaul for Rome.

As Caius Quinctius had owed money to Publius Scapula, Publius Quinctius referred it to you, O Caius Aquillius, to decide what he should pay his children. He preferred submitting to your decision in this matter, because, on account of the difference in the exchange, it was not sufficient to look in his books and see how much was owed, unless he had inquired at the temple of Castor Some have wished to alter ad Castoris here to a quaestoribus; but the temple of Castor was a place where much money was kept:—Æratâ Æratâ multus in arca Fiscus et ad vigilem ponendi Castora nummi.—Juv. xiv. 260. and the precincts were accordingly much frequented by men skillful in computing accounts, and the exchange of money. how much was to be paid in Roman money. You decide and determine, on account of the friendship existing between you and the family of the Scapulae, what was to be paid to them to a penny.

All these things Quinctius did by the advice and at the instigation of Naevius: nor is there anything strange in his adopting the advice of the man whose assistance he thought at his service. For not only had he promised it in Gaul, but every day he kept on saying at Rome that he would pay the money as soon as he gave him a hint to do so. Quinctius moreover saw that he was able to do so. He knew that he ought; he did not think that he was telling lies, because there was no reason why he should tell lies. He arranged, therefore, that he would pay the Scapulae as if he had the money at home. He gives Naevius notice of it, and asks him to provide for the payment as he had said he would.

Then that worthy man—I hope he will not think I am laughing at him if I call him again a most worthy man—as he thought that he was brought into a great strait, hoping to pin him down to his own terms at the very nick of time, says that he will not pay a penny, unless a decision is first come to about all the affairs and accounts of the partnership, and unless he knew that there would be no dispute between him and Quinctius. We will look into these matters at a future time, says Quinctius, but at present I wish you to provide, if you please, what you said you would. He says that he will not do so on any other condition; and that what he had promised no more concerned him, than it would if when he was holding a sale by auction, he had made any bidding at the command of the owner.

Quinctius being perplexed at this desertion, obtains a few days' delay from the Scapulae; he sends into Gaul to have those things sold which he had advertised; being absent, he sells them at a less favourable time than before; he pays the Scapulae with more disadvantage to himself than he would have done. Then of his own accord he calls Naevius to account, in order, since he suspected that there would be a dispute about something, to provide for the termination of the business as soon as possible, and with the smallest possible trouble.

He appoints as his umpire his friend Marcus Trebellius; we name a common friend, a relation of our own, Sextus Alphenus, who had been brought up in his house, and with whom he was exceedingly intimate. No agreement could be come to; because the one was willing to put up with a slight loss, but the other was not content with a moderate booty.

So from that time the matter was referred to legal decision. Lit. “recognizances were entered into.” When the praetor had granted an action, the plaintiff required the defendant to give security for his appearance before the praetor on a stated day, commonly the day but one after the in jus vocatio. After many delays, and when much time had been wasted in that business, and nothing had been done, Naevius appeared before the judge.

I beseech you, O Caius Aquillius, and you the assessors in this suit, to observe carefully, in order that you may be able to understand the singular nature of this fraud, and the new method of trickery employed.

He says that he had had a sale by auction in Gaul; that he had sold what he thought fit; that he had taken care that the partnership should owe him nothing; that he would have no more to do with summoning any one, or with giving security; if Quinctius had any business to transact with him, he had no objection. He, as he was desirous to revisit his farm in Gaul, does not summon the man at present; so he departs without giving security. After that, Quinctius remains at Rome about thirty days. He gets any securities which he had given other people respited, so as to be able to go without hindrance into Gaul.