1^307 3 1924 064 186 947 OU= i - ;R/- ^~ip-ijlat;on DATE DUE 1 1 _ _ , WV¥-^ k ^raot mimmm GAYIORO PRINTED IN U.SA PI Cornell University y Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924064186947 Production Note Cornell University Library pro- duced this volume to replace the irreparably deteriorated original. It was scanned using Xerox soft- ware and equipment at 600 dots per inch resolution and com- pressed prior to storage using CCITT Group 4 compression. The digital data were used to create Cornell's replacement volume on paper that meets the ANSI Stand- ard Z39. 48-1984. The production of this volume was supported in part by the Commission on Pres- ervation and Access and the Xerox Corporation. Digital file copy- right by Cornell University Library 1991. OlnrneU Hninetattg tibtarg 3tl;aca, S9tn) fotlt BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND THE GIFT OF HENRY W. SAGE 1891 THE SPEECH OF CICERO CLUENTIUS. tltan0late& into Snglisb WITH AN INTRODUCTION AND NOTES BY W. PETERSON, M.A., LATE SCHOLAR OF CORPUS CHRI5TI COLLEGE, OXFORD; PRINCIPAL AND PROFESSOR OF CLASSICS, UMIVERSITV COLLEGE, DUNDEE. MMESi THORNTON, HIGH STRE&* (^nmll Wimxmii^ J AhXM^ BOUGHT WITH THE INCOME | FROM THE SAGE ENDOWMENT FUND THE GIFT OF Henrg W, Sage 1891 ?/^/^.fi /?!..p.p. THORNTON, OXFORD. LoXDOX: SI.VPA'rN, MARSHALL, AND CO. THE SPEECH OF CICERO CLUENTI US (JTranelatel) into lEnglisI) WITH AN INTRODUCTION AND NOTES BY W. PETERSON, M.A., LATE SCHOLAR OF CORl*i;S CHRISTI COLLEGE, OXFORD ; ASSISTANT TO THE PROFES-SOB OF HUMANITY IN THE UNIVERSITY OF EDINBURGH. JAMES THORNTON, HIGH STREET MDCCCL?£XXII. CONTENTS HAGb PREB'ACE . . ... . . vii. .ANALYSIS ... . i.\. INTRODUCTION .1 THE SPEECH FOR CLUENTIUS ... 27 NOTE ON THE TEXT BY PROFESSOR NETTLESHII- . 161 PREFACE. This book may be of service to students who know how to use a translation executed with accuracy, and which aims at reflecting the style and language of its original as nearly as is consistent with difference of idiom. It may also interest such English readers as may care to make the acquaintance, under Cicero's guidance, of a dis- tinguished company of criminals. It has had the advantage of revision in considerable parts by Professor Nettleship, who also kindly placed his notes at the translator's disposal They have been dis- tinguished by his initials ; but this hardly indicates the extent of the obligation incurred, as Mr. Nettleship made several corrections and suggestions which it would not be possible to acknowledge in detail. The text followed in the main is that of Baiter and Kayser, Leipsic, 1862. The two MSS. on which they chiefly rely are referred to in the notes as S and T, and correspond to the A and B of Classen's edition. They are (r) the Codex Salisburgensis aulicus 34, nunc Mona- censis Latinus 15734, and (2) the Codex I^urentianus xlviii. 12, sive Langomarsinianus 12. The University, Edinburgh, X,r,'ew/ier, lS8l. ANALYSIS. SUCTIONS. 1 — 8. Introductory : Cicero states that he will follow the example of his opponent Accius and divide the case into two parts (invidia — crimina). He appeals to the jury to lay aside all prepossessions and accord him a fair hearing. 9 — 160. First division of the case : the existing prejudice against Cluentius rests on the unfounded belief that he had procured the conviction of Oppianicus by bribery. 9 — 18. Family of Cluentius : origin of the feud between him and his mother Sassia. 19 — 4Z. His motive for impeaching Oppianicus eight years before : crimes of the latter. 43 — 61. Collision between Cluentius and Oppianicus. Detec- tion of a plot on the life of Cluentius : conviction of Fabricius and Scamander, — and, by implication, of Oppianicus, who had thus every motive to practise bribery. 62 — 76. His dealings with Staienus : knavish conduct of the latter. 77 — 87. The prejudice against Cluentius due to the political agitation of the tribune Quinctius. His innocence proved from his account-books, whereas there is no plausible explanation of the transaction between Oppianicus and Staienus. 88 — 102. The previous verdicts quoted against Cluentius should not be allowed to prejudice his case, for various reasons. X ANALYSIS. SECTIONS 103 — 116. Commendation of the jurors who condemned Oppi- anicus : acquittal of Falcula : conviction of the others solely owing to the bad feeling excited by Quinctius. 117—134. The censors' stigma cannot rank as a judicial precedent. 135 — 137. The resolution of the senate was adopted merely to meet an emergency ; was most guarded in its terms ; and was never made law. 138 — 142. Retractation of what had previously been said in ignorance of the facts. 143 — 160. Cluentius will not avail himself of the protection of the letter of the law, though he could do so in all justice, not being liable as an eqtus. 161 — 164. Refutation of unfounded aspersions on the personal character of Cluentius. 166 — 194. Second division of the case : Cluentius is innocent of the deaths of Vibius Capax and Balbutius, as well as of that of Oppianicus. 165 — 168. Circumstances attending the deaths of Vibius and __^^ Balbutius. ^'""169— l94r\Cluentius had no motive for attempting the life of - --____^^ Oppianicus. The evidence put forward as impli- cating him is utterly valueless ; and the prosecu- tion is altogether due to the unnatural hatred of his mother, Sassia. 196 — 202. Conclusion : Cluentius deserves sympathy as the son of such a mother. His fellow-townsmen and others bear testimony to his high character. INTRODUCTION. INTRODUCTION. I. The speech for Cluentius is one of the most interesting j monuments of Roman oratory. The rhetorical literature of Greece, of which the extant specimens are more di- verse, and are not limited to a single name like that of Cicero, contains nothing that gives us a greater revelation of the circumstances of private life, nor anything that a dmits of more direct comparison with the lines of a moder n pleadin g. The defendant is impeached for poi-^ soning before a Roman jury, at the instance of his own mother ; and his advocate meets the issues involved in the case in a manner which sometimes reminds us of the eloquence of a Queen's Counsel in a criminal trial at the present day. The judicial oratory both of Athens and of Rome is commonly charged with being often wide of the mark at which it aimed, and with allowing the introduc- tion of arguments which would be inadmissible now that legislation has been more fully systematised, and less opportunity is given the advocate of appealing to con- siderations of equity and common sense on the part of a mixed body of jurors. But the speech before us is much less liable than others to this criticism ; for though thel in dictment apainst Cluentius was nomin ally br ought under a definite statute, it depended mainly on extran_eous matter of great interest not only in itself but also bj^reason INTRODUCTION. ' of its connection with one of t he burnin g ques tions of the da^— the aflminist ratioTr~of j ii^tiVp in thp pnhliV law- courts. The latitude of treatment observable in Cicero's speech for the accused is not therefore without justifica- tion. It would have been no easy matter for an advocate to approach the case that had been stated by the opposite side in that unimpassioned mood which is proper to most judicial pleadings. Here was a mother appearing at the bar of a court of justice to prosecute the son of her bosom on a charge of having first by foul means procured the ruin and conviction of her guiltless husband, and of afterwards taking his life by poison. This in itself must naturally have aroused a strong feeling of prejudice against the defendant ; and there was the additional complica- tion that the verdict of the jury in the case where Cluentius had prevailed over his step-father had for long been cited as a glaring example of miscarriage of justice. What then must Cicero's feehngs have been if, as might fairly enough be inferred from the great appearance of candour maintained throughout the speech, he really be- lieved in his client's innocence ? He seeks to combat the prepossessions of his audience by first painting the characters both of husband and wife in their true colours, and then by showing the groundlessness of the charge of corruption made against the son ; and after conducting a most complex and intricate case in a manner as remark- able for its eloquence and force as for the careful arrange- ment of the facts and the ingenuity displayed in the general management of the argument, he finishes by claiming the sympathy of his hearers for a son whose whole life had been one series of persecutions at the hands of a mother whose character and conduct could only excite the most utter horror. INTRODUCTION. The value of the oration would have been greatly enhanced if the address of the counsel for the prosecu- tion had also been handed down to us ; but even with our imperfect knowledge of the real nature of the points at issue between the contending parties we can construct a picture of provincial society in the last days of the Republic for which materials are elsewhere almost entirely wanting. The narrative of Cicero, highly coloured as it evidently is by political and partisan considerations, is far from being the unbiassed record of an impartial his- torian ; but the main outlines of the drama of real life portrayed by him may be accepted without reserve, and serve to point the contrast between the old-fashioned virtue of the early Italian yeomen and that decay of man- ners which began with Rome's foreign conquests and finally culminated in the downfal of the empire. Much of the now widespread disorganisation of society may be directly attributed to the evil results of the Social War and of the civil strife so long waged between Marius and Sulla. License and disorder had everywhere supplanted the former taste for agricultural pursuits ; brigandage had increased to a degree previously unknown ; and it was accordingly to the still unsettled population of the provinces that Catiline not long afterwards looked for support in the struggle he attempted to carry on against the constituted authorities of the capital The trial at which the speech was delivered was held in the year of Cicero's praetorship, b.c 66. The defen-1 dant, A. _ Clue ntius_pf .„Larinuni^. had..Jifien_imgeached under the Lex Cornelia de Sicariis et Veneficis at the instance of the younger Oppianicus j and the case against him was conducted by T. Accius, a Roman knight of Pisaurum, in Uuibria. The charge directly preferred^ INTRODUCTION. ) against Cluentius was t hat he had by poison pr oairpd the d eath of Oppianicus the elder, his nwn st-T-^^thfri as well a s of two other persons ; but the prosecution rested mainly on the prevailing belief that eight years previously Cluentius had employed corrupt means to secure his step- father's conviction for an alleged attempt on his life. For the facts of the case we are almost entirely depen- dent on the narrative of the text. That it contains an admixture of misrepresentation cannot reasonably be doubted, and seems to have been admitted by Cicero himself, as he is reported by Quintilian to have boasted that he had " thrown dust in the eyes of the jury." ' While we cannot suppose that, in presence of the leading townsmen of Larinum, he would have ventured altogether to falsify facts with which many of his audience must have been sufficiently familiar, the orator's avowed change of attitude towards the whole case, together with his general conduct of the defence, the almost entire absence of direct proof, and certain suggestive improbabilities of statement, cannot fail to put the reader on his guard against accepting in all its details the story now to be related. Larinum was a township of the Frentani, near the northern border of Apulia and not far from the shores of the Adriatic There, in B.C. 88, the elder Cluentius had died, leaving his widow Sassia in charge of two children, the defendant A. Cluentius, then a boy of fifteen, and his sister Cluentia, probably a year or two older. Not long after her father's death Cluentia married her first cousin, A, Aurius Melinus ; and it is to the circumstances by which the harmony of this union was destroyed that ' "Se tenebras offiidisse iudicibus in causa Cluenti gloriatus est." -Quint. Inst. ii. 17, 21. INTRODUCTION. Cicero attributes the deadly feud between Cluentius and his mother which culminated in the present action. For Sassia grew enamoured of her son-in-law, who soon di- vorced the daughter and installed the mother in her place. About the same time the elder Oppianicus became suspected of having been concerned in the death of one M. Aurius, a kinsman of Melinus. His antecedents were not such as to inspire confidence in his innocence. His first wife had been a Cluentia, sister of the defendant's father, and of her he was said to have rid himself by poison. Insatiable avarice seems in general to have been the motive of his many enormities, which are circumstan- tially narrated by Cicero in the beginning of his speech, obviously with the view of predisposing the jury to believe that he could not possibly have escaped the hands of justice at the trial previously instituted by Cluentius. On the death of his first wife he seems to have allied himself with the family of Dinaea, a rich old lady of Larinum, whose son he was now suspected of having put to death. Dinsea had already survived three of her children, one of whom was Magia, the daughter whom Oppianicus had married ; and now in her declining years her heart was glad- dened by the news that her eldest son, M. Aurius, who had not been heard of since he was taken prisoner in the Social War, was still alive, though in slavery. But this intelli- gence was not equally pleasing to her late son-in-law Oppianicus, who had calculated on being able to secure her whole inheritance for his son by Magia. Accordingly immediately on Dinaea's death, which happened oppor- tunely at this time," he contrived to effect the murder ' In connection with Din£Ea's death, it has been noticed that Cicero does not at first commit himself to saying that it was due to foul plaj- {yiJe note on sec. 22). She left the bulk of her fortune to her INTRODUCTION. of M. Aurius before he could be restored to his native place. But the anger of his fellow-townsmen was at length aroused against him. Forced to fly from I^ariiium, he betook himself to the camp of Q. Metellus, who had lately come over from Africa to co-operate with Sulla against the party of Marius. His absence however was not of long duration. In the troublous times that ensued he returned to Larinum, armed as would appear with authority from Sulla to deal with any who might have shown themselves the enemies of his now victorious cause. He seems to have availed himself to the full of the powers thus conferred, and among his victims was A. Aurius Melinus, the husband of Sassia. Oppianicus seems to have been a man of considerable personal attractions. He had already buried two wives, Cluentia and Magia. A third, Papia, probably identical with the woman whose unnatural guilt is recorded with- out any mention of her name (34), had apparently been divorced, and was bringing up her boy in retirement at Teanum. She seems to have been succeeded by Novia, who had lately borne a son {filius infans, 28), but whether Novia was now alive or not does not appear from the text. In any case the facilities of divorce at this period would make her existence no bar to the accomplishment of her husband's schemes. Attracted doubtless by the immense wealth of the now widowed Sassia, Oppianicus became a suitor for her hand. Far from reproaching him with the murder of her late hus- band, Sassia could find nothing to object to in the proposal beyond the fact of his having three children. grandson, Oppianicus the younger, and only a legacy to her long- lost son. With this one might have thought Oppianicus would have been content. INTRODUCTION. This was an obstacle which a man like Oppianicus could easily remove. His two children by Papia and Novia are suddenly taken ill and die ; and with this proof of his afttachment Sassia would appear to have been content, as his eldest son who bore his name survived to institute the present prosecution. The severance of Cluentius from his mother was now- complete, and if we may trust Cicero's narrative there was certainly enough in her conduct to justify it A local incident which occurred about the same time served to bring out in strong relief the latent antagonism between him and his mother's new husband. There was at La- rinum an ancient College of Mars, the members of which, like the Venerei of Mount Eryx in Sicily, seem to have occupied a vaguely-defined position intermediate between slaves and freemen. From some corrupt motive how- ever, Oppianicus began suddenly to maintain that they were all Roman citizens ; and the town council took steps- to resist this innovation. The case was sent up to Rome as affecting the ius civitatis, or rights of Roman citizenship, and Cluentius was charged by the community to protect their interests. Accordingly he proceeded to the capital, probably not unwilling, in spite of what Cicero says, to embrace the opportunity of appearing in a capacity for which the education of the day was intended especially to fit the youth of the country. It was no secret at this time that he had not as yet made any will, from inability to decide how he should deal with his mother j and the calculation that in the event of his dying intestate his property would revert to her, as well as re- sentment against him for coming forward to oppose the claim of the Martiales, is said to have prompted Oppi- anicus to contrive the villany for which he was subse- INTRODUCTION. quently condemned. Keeping carefully in the background himself, he employed the services of a certain C. Fabri- cius, through whom overtures were made to the slave of the physician who was at the time in attendance on Cluentius. The latter was however duly informed of'the plot on his life, and a trap was set by which Scamander, the freedman of Fabricius, was surprised in the act of receiving poison from his supposed accomplice, and of paying him a sum of money as an equivalent for the same. Their intended victim promptly took steps to bring the criminals to justice. Scamander. Fabricius. and Oppi- anicus were impeached one after thg other bpf"*"" *^'^ court in which C. Junius aHTninistererl the law n f poison- in g and assassinatio n. Cicero himself appeared on behalf of Scamander, but professes in the speech before us to have soon discovered the weakness of his case. His client was all but unanimously condemned, and the jury proceeded to hear the charge against Fabricius. He too was convicted without hesitation. At the trial of Sca- mander one vote had been given in favour of acquittal, that of Staienus, a needy and disreputable senator ; and it was the hope of developing the understanding which had already begun to subsist between them that, accord- ing to Cicero, induced Oppianicus to face the desperate chances of a verdict. He furnished Staienus with the sum of 640,000 sesterces (about ;^6,40o) for distribu- tion among sixteen members of the bench, whose votes together with his own would secure a majority of the whole thirty-two. Staienus made overtures to such of the jurors as he knew were open to a bribe, but secretly resolved to keep the whole sum to himself, calculating that the inevitable verdict of guilty would deprive Oppi- INTRODUCTION. anicus of every chance of reclaiming the money from him. So after the interval of a day or two he told those whose votes he was understood to have secured that Oppianicus had played him false and did not mean to pay ; and that the best thing they could do would be to follow the example he would set, and revenge themselves by voting for a conviction. The lot decreed that Staienus and two of his friends should be the first to record their verdict ; and as there was a general suspicion that they had been bribed in favour of the defendant, the surprise was great when all three voted against him. The other jurors were sorely puzzled, and some began to believe that it was Cluentius who had been practising bribery. So while a considerable number held the charge ' not proven,' five actually voted for. acquittal ; and it was only by a narrow majority that Oppianicus was declared guilty. This was in B.C. 74, when a movement was beginning to be made in favour of the repeal of Sulla's reactionary legislation. T he tribune Quinctius accordingly seize d t he opportunity of malcinp the corruptio n whi ch had u n- doubted ivbeen prarti-^^d at the trial th e prptext for a w ider agi tation i" favm^r f^f the restoration of thp iiidiria tr. the oqm'foo The suspicion that an innocent man had been unjustly condemned was fostered by his impassioned harangues, and a series of proceedings was instituted which proved fatal to a considerable number of those who had been instrumental in procuring the conviction of Oppianicus. Junius, the President of the Court, was impeached on technical grounds and found guilty. Several of the jurors were brought to trial on divers charges, but the real motive of the prosecution seems to have been in each case the widespread feeling of indig- nation which prevailed againiit the bench to which they INTRODUCTION. had belonged. One only was directly impeached, first for an irregularity of which he had been guilty, and again on the express charge of having received a bribe from Cluentius ; but in both cases he was acquitted. The censors affixed their official stigma against the names of three of the jurors ; and finally the senate passed a formal resolution denouncing the conduct of such persons as might have been guilty of bribery at a criminal trial. For the eight years which passed between the conviction of Oppianicus and the present action the venality of the " iudicium lunianum ' was a byword among the people, and no one would hear a word in exculpation of Clu- entius. About two years after the trial ' Oppianicus met his death by a fall from his horse. Sassia endeavoured at the time to wring from certain slaves under torture some declaration that would compromise her son, but her attempt entirely failed of its object. Some three years afterwards one of these slaves — Strato, whom she had purchased from the doctor who had attended her hus- band in his last illness — committed a theft and a double murder in her house ; and his mistress seized the oppor- tunity of agSin putting him to the torture, along with Nicostratus, a slave of the younger Oppianicus. This time she professed to have extorted some sort of declara- tion of her son's guilt in the matter of his step-father's death ; and on that ground she induced the younger Oppianicus to institute the present proceedings. But the document she produced in court contained no refer- ence to the crimes for which Strato had been put to the ' The date may be inferred from sec. 179, from which it would appear that Oppianicus died three years before the consulship ot Q. Hortensius and Q. Metellus — i,e., in B.C. 72. INTRODUCTION. torture ; it was not attested by any trustworthy person ; Strato had immediately been crucified, after having had his tongue cut out ; and Nicostratus was, for some reason unknown, not called as a witness by the prosecution. Cicero accordingly contends that the so-called deposition was utterly valueless, and that there was no proof what- ever that his client had been in any way concerned in the death of Oppianicus. Cluentius may, indeed, have been altogether innocent, but it seems impossible to accept as conclusive the argu- ments which his advocate here adduces in disproof of his guilt. Cicero represents the condemned man as living the life of an outlaw and a vagrant, abandoned by all his friends and shunned by every human being ; and argues that Cluentius, having nothing more to fear from him, would have been the last man in the world to wish to release him from his wretchedness. But it appears from other passages that Oppianicus was not altogether so badly off. He had indeed been banished from the capital, but he had a hired lodging just outside the city gates, to which he was riding on horseback when death overtook him; and he also enjoyed the hospitality of Quinctius, his former counsel, at his country residence in the Falernian territory (175). Moreover we are told that his own as well as Sassia's friends, " homines honesti atque omnibus rebus ornati" (176), interested themselves in investigating the facts of his decease. Few again will be disposed to attach much weight to the argument de- rived from the supposed improbability that bread would have been chosen in preference to a liquid as the vehicle for administering the poison (173). There is more point in the statement that Asellius, whose agency Cluentius was said to have employed, was a personal friend of INTRODUCTION. I Oppianicus, and probably therefore an enemy of his step-son, add that proceedings would surely have been instituted against him in the first instance if the prose- cutor had been confident of the justice of his case. For the rest, the story of the death of Oppianicus as narrated by Cicero is unsupported by any corroborative evidence ; and we may further note that, while seeking to disprove the genuineness of the alleged depositions of Strato and Nicostratus, he nowhere definitely states what those depositions were. The two minor charges of poisoning preferred against Cluentius are briefly disposed of before the discussion of the circumstances which attended his step-father's death. The first is refuted on the evidence of the senator Plaetorius, at whose house Vibius Capax, the alleged victim, was staying when he died ; though it may be observed that Cicero incidentally admits that a member of his client's family had profited by the man's death (165). In reply to the second he is able to adduce the testimony of the father of the youth who was said to have met his death by accidentally swallowing a poisoned draught which Cluentius had prepared for the younger Oppianicus; and this is perhaps the only satisfactory piece of evidence in the whole speech. II. But the direct charges of poisoning preferred against Cluentius seem to have been of little moment compared with the obloquy he had incurred in connection with the trial before Junius. Cicero was perfectly well aware t hat prosecut ion and defence alike rested on the proof or dis- proof of bribery at that trial ; and so, following the lead INTRODUCTION. of his opponent Accius (sec. i), he devotes some five- sixths of his reply to an elaborate attempt to show the groundlessness of the prejudice from which his client so long had suffered. It is in this part of the speech that the interest for us mainly centres. Our comparative ignorance of the technical points of law which come up in the course of the discussion makes it all the more difficult for us to determine the question at issue; but there can be little doubt that if Cicero had been in a position to offer direct proof of his client's innocence he would have taken a wholly different line of argument. It is probably to the general conduct of the defence rather than to any particular misrepresentations that the boast about " throwing dust in the eyes of the jury "' was meant to refer. The arrangement of the first part of the speech, for example, was evidently adopted from a shrewd calculation of the effect it must doubtless have had on the minds of the bench. The orator will not address! himself to the proof of his client's innocence until he has first shown that Oppianicus had by his many enormities made himself liable to the severest penalties, and also that his guilt had been virtually decided by two previous verdicts recorded against those who were believed to have acted as his agents. With this view he first endeavours to predispose the jury to believe that Oppianicus had been guilty of attempting the life of Cluentius by detailing the catalogue of crime to which reference has already been made (probabile ex vita); and then he proceeds to narrate the circumstances which induced him to carry the plot into execution (probabile ex causa). As regards the first head, it is sufficient to observe that Cicero had every motive for devoting all his energies to blackening the character of his client's enemy (cp. sec. lo). It may '4 INTRODUCTION. \ appear strange that Oppianicus had never been brought to trial for his numerous misdeeds, though some of them might possibly have admitted of extenuation on political grounds (24) ; but even making every allowance for exaggeration, there can be no doubt that he was a man of very bad character. More tangible matter for discussion is presented by the evidence which Cicero adduces under the second head. We saw that Oppianicus is credited with a twofold motive for having desired to get rid of his step-son — the opposition offered by the latter to his championship of the claims of the Martiales, and his own wish to secure for Sassia the reversion of her son's estate. Now the first of these seems rather a weak motive for a murder, and the second forces Cicero to assume that Oppianicus intended subsequently to get rid of Sassia herself (45), though there is no evidence whatever to show that Sassia ever suspected her husband of such a design ; just as he afterwards hints that she on her part may have been the real cause of her husband's death (17s). Again we may note the early stage at which the plot is said to have been discovered. Scamander, the freedman of Fabricius, meets by appointment Diogenes, who has been transferred to the service of Cluentius, and receives from him a poison, in return for which he is about to give him money when the witnesses (viri boni) emerge from concealment. But we are told in the same paragraph (47) that overtures had been made to Diogenes, while he was still the slave of Cleophantus the physician, to administer the poison himself; and though Cicero now professes to acquiesce in the arguments which had been urged by P. Cannutius at the trial of Scamander, when he himself was counsel for the defence (52), it certainly does not appear why Diogenes should have INTRODUCTION. brought the drug to Scamander. Indeed, were it not for the difficulty occasioned by Cicero's change of front, it would be quite possible to maintain that the whole affair may have been got up by Cluentius himself. At any rate it is to be noted that while Scamander and Fabricius were unhesitatingly condemned the trial of Oppianicus resulted, as we shall find, in a conviction by the narrowest possible majority; and the argument frorr thf /^r""' '^'•'"" ^^■" ' loses much It IS open to us to suppose either that Oppianicus was not really implicated in the guilt of the other two, or that the jury may have seen good grounds for mistrusting the wisdom of their previous decisions. But it is in his discussion of the bribery scandal that Cicero is most evidently endeavouring to " throw dust in the eyes of the jury." His statement of the case is intro- duced by a sophism so obvious that the court can have had no difficulty in refuting it He assumes (64) that as bribery had undoubtedly been practised at the trial before Junius, it must have been either by Cluentius or by Oppianicus ; but the third supposition, that both were guilty, is rendered probable by internal evidence, and is in fact made almost a certainty by a passage in another speech where Cicero distinctly says that Staienus had taken a bribe from both prosecutor and defendant' The ingenious narrative by which he endeavours to account for the fact that such disreputable jurors as Staienus, Bulbus, and Gutta were found among those who voted against Oppianicus is obviously open to suspicion. If Oppianicus was so notoriously guilty, and if his case had ' " Inventus est senator qui, quum index esset, in eodem iudicio et ab reo pecuniam acciperet quam iudicibus divideret, et ab accusatore ut reum damnaret." — In Verr. i. 13. i6 INTRODUCTION. really been prejudged beyond all hope of acquittal at the two previous trials, how is it that he was convicted only by the narrowest majority possible ? No one except Staienus got any money from him ; those whom Staienus bribed by the promise of 40,000 sesterces (^£'400) apiece voted against the defendant when they found that the money was not forthcoming. How is it then that the verdict was not all but unanimous ? That the issue turned upon a singkviote_is nowhere distinctly stated in th e speSCh, ijut it would Tr'^L-!.''"!^- ..- ^'T^"- ^-^"^^ ' that t^p numbers were seve nteen again st fifteen. Of the seven- teen who voted against him, eight at least were suspected of being venal — Staienus, Bulbus, Gutta, Popilius, Fal- cula, Aquilius, Sceevola, Egnatius ; and though it is generally supposed that the other nine are identical with the persons who are eulogised as patterns of virtue in sec 107, the context seems hardly to bear out the sup- position (v. ad loc). From the fact that five are said (76) to have voted not guilty, we may infer that the number of those who said non liquet was ten. It is noticeable that all these fifteen must have voted for the conviction of Scamander and of Fabricius ; and we cannot think it likely that, if they were fully confident of the defendant's guilt, they would have allowed a suspicion that bribery had been practised against him to induce them to stultify their previous verdicts (76). Again as to Staienus, many considerations might be urged to show the difficulty of accepting Cicero's version of his conduct at the trial. He is said to have received from Oppianicus the sum of 640,000 sesterces for dis- tribution among sixteen of the jurors ; and though his ' " Quum si uno minus damnarent condemnari reus non posset." — Sec. 29. INTRODUCTION. 17 vote was also necessary to secure a verdict of acquittal, on the supposition that no one would acquit Oppianicus without a bribe, there is no mention of what he himself was to get except a general allusion to the " hope of rewards still greater" (74). This sum never left his hands, and he is represented as scheming to keep it all to himself ; but the event belied his hopes, for after the trial he was forced, according to Cicero, to disgorge the whole amount (pecunia omnis). Now it seems as difficult to believe that Staienus, who is credited in the text with a considerable degree of cunning (67), can have calculated on being able to embezzle all the money, as to accept the statement that the sum of 640,000 sesterces, neither more nor less, was extorted from him after the trial A more satisfactory explanation of his adverse vote is to suppose that he had been paid a higher price by Cluentius. His absence from court when the jury were about to consider their verdict is also more readily understood on the supposition that he had an under- standing with the prosecution. They were confident of a majority even without him; but Quinctius, acting in the interests of Oppianicus, and probably in ignorance of the counter- exertions of the other side, insisted on having him brought back before the trial went further. The case of Fidiculanius Falcula " presents another difficulty. The suspicion that he had been bribed on behalf of Cluentius was aggravated by the informality of his election (quod non suae decurise munere neque ex lege sedisset), and by the fact that he only heard part of the case ( — paucos dies ex subsortitione sedisset, 103). He was brought to trial first on the ground of the infor- mality, and again on the direct charge of having received a Vide on sec. 91. 1 8 INTKOD UCTJON. bribe from Cluentius ; and though Cicero had elsewhere (Pro Caecina, 29) committed himself to an emphatic ex- pression of belief in his guilt, there can be no doubt that his acquittal on both occasions is a great point in favour of the present defence. I t does not appear whether Falc ula was the only juror introduced in to_t he ^^.n^silin m by t he process of subsortitio ; eos indices in 113 may be no more than a rhetorical plural' He seems certainly to have been the last elected ; and as his election took place only a few days before the verdict was given, it is quite possible that it may have been arranged by the prosecution, acting in league with Junius, with the view of allowing Staienus to absent himself, and so avoid the awkwardness of condemning the man from whom he had taken a bribe. Though his acquittal is a standing dififi- culty in the way of any theory which presumes the guilt of Cluentius, the following version of the circumstances may perhaps be accepted as the nearest possible approxi- mation to the real facts. Oppianicus gave Staienus money to secure sixteen of the jurors, whose votes along with that of Staienus himself would entitle him to a verdict. Cluentius and his friends saw that they must meet him with his own weapons, and as several of the bench were doubtless above bribery, they had to over^ bribe at least some of those who had already pledged themselves to Oppianicus — e.g., Staienus, Bulbus, and Gutta. The subsortitio of Falcula secured them one vote which may have been doubtful before ; and it was arranged, probably to divert suspicion as far as possible, that Staienus, whose vote was not any longer necessary to secure a majority, should stay away. This arrange- used. But cp. In Verr. i. 39 : where the plural, senaiores, is also INTROD UCTION. >9 ment however was overturned by the energy and promp- titude of Quinctius, in spite of the obstacles that would seem to have been placed in his way (cum id ei per viatores consulto negligentius agi videretur, 74). With- out Staienus there would have been a majority of one ; he votes, and the result is seventeen out of thirty-two in favour of a verdict of guilty. If the money which was afterwards recovered from Staienus was not, as Cicero says, the whole sum originally entrusted to him by Oppianicus, it may have been the purchase-money of the votes of those who, like Staienus, had subsequently accepted a higher bribe from Cluentius. However this may ^f^ '*^ '^ almost rprtain that riiifn- ti us was as guilty as Oppiani cus. Indeed, it would appear from the result that he bought just as many votes as were necessary and no more. But if the conviction of Oppianicus was procured by bribery, what is to be said of the alleged attempt on the life of Cluentius ? We have seen that Cicero's account of the discovery of the plot can hardly be considered a straightforward narrative of actual fact, and it would be quite possible to maintain the view that the whole thing had been got up by Cluentius and his friends. The motive of the former may have been the fear that Oppianicus might oust him from the succession to his mother's estate ; and the argu- ment which seems to have been employed by the other side to show that Staienus got the money from Oppiani- cus to patch up the quarrel ^ad conciliationem gratiae) may point to some genuine attempt on the part of Oppianicus to come to an arrangement with his son-in- law. We have seen that Cicero's opinion of the merits of the case had undergone a complete change since he ap- 3 . INTRODUCTION. peared on behalf of Scamander, eight years before.' He defends himself from the charge of inconsistency (ego vero, si quid eius modi dixi, neque cognitum commemo- ravi neque pro testimonio dixi, &c., 139), just as he endea- vours to demolish the weight of the previous verdicts against his client by showing how entirely they had been due to the prevailing invidia. There can be little doubt that this change of attitude is partly due, as Mr. Nettle- ship has pointed out,= to the altered position of the equestrian order. F rom the tribunate of C. Gracchus to the period of Sulla's legislation the equites h ad eniaaed an almost uni nterrupted monopo ly_ofjthe-CD3getedjrivi- lege of serving as jurors m the law-c ourts. 3 Among the reactionary measures of Sulla was a law by which the iudicia were again transferred to the senate. But the senators were no more successful in their administration ■ The following are the passages in which he had previously com- mitted himself : 2 Verr. ii. 78, 79, where he instances the double treachery of Staienns to illustrate a similar piece of conduct on the part of Verres (cp. i. 39) : I Verr. 38, 39, where, in citing cases of senatorial corruption, he alludes to the litis astimatio at the trial of Scsevola as a proof that bribery had been practised against Oppi- anicus : 2 Verr. i. 157, where he accuses Verres of having falsified the entries in his oflicial register in order to conceal his connivance at the crime of Junius (quod falsum codicem protuleris). Further, in the Pro Csecina, 28, 29, where he is endeavouring to depreciate the value of Falcula's evidence, he speaks in language very different from that of the Pro Cluentio of the grave informality of which Falcula had been guilty. ° Journal of Philology, No. 16. 3 The Lex Servilia of B .c. 106 (cp. sec. 140) proposed to associate the senate with the equites in the judicia, but did not continue long in force ; a similar motion was brought forward by the tribune Drusus in 90 {^vide on sec. 153) ; and in 88 the Lex Flautia proposed that each of the thirty-five tribes should furnish fifteen persons of any standing whatever. INTROD UCTION. of justice than the equites had been before them ; and the corruption practised at the trial before Junius in 74 furnished an excellent handle for the agitation in which the tribune Quinctius figured — an agitation which was still going on at the time of the impeachm^t of Verres, a nd wh ich resulted in the Lex Aurelia, passed bj. way of compromise during the consulship of Pompey and Crassus in B.C. 70. After this date the jurors were selected in equal proportions from the senate, the equites, and the tribuni serarii. It is probable that in 74 Cicero, as counsel for Scamander, would inveigh strongly against the senatorial conduct of the indicia, as the venality of the jurors had just been illustrated in a manner so acceptable to those who were beginning to agitate for the restoration of the privileges of the equites. He had always had the interests of the equites at heart, and hence his protest even now against a proceeding which would render them liable to th e conspira cy clause in the sixth chapter^ofJhe_Lex Cornelia de Sicariis, which was technically applicable to senators alone. But there is a passage in his defence of Cluentius where he sets the senatorial administration in a fairer light,' evidently because he was conscious that it was his interest to uphold the character of a tribunal which had given a verdict favourable to his client in the previous case of Scamander. ' " Turn vero ilia iudicia senatoria non falsa invidia, sed vera atque insigni turpitudine notata atque operta dedecore et infamia, defen- sioni locum nullum reliquissent." — Sec. 61. INTRODUCTION. \ III. A recent writer ' has attempted to show that no charge was made against Cluentius under the sixth chapter of the Cornelian Law ; and that it is in the elaborate refuta- tion of the existing prejudice that Cicero is endeavouring to " throw dust in the eyes of the jury," by defending his client from an accusation which had not been made against him in order that he may afterwards gain the sympathies of the court by refusing to take advantage of the technical defence of which he could easily have availed himself. Conscious that Cl uentius. 3«f s Kprnan eques, can not be found guilty of com iptinn nnHpr a _ I clause which a pplies only to senators and tci_l]i£jugh- — officers^ of state, b ut by no jneans rnnfiHprj^- nf hjfj jnnrt. c ence in po in t nf fart, \i P. firstPndpayniiT-s to shrny tViaf h^i;puld not . .possji^ly Jiavejiai any motive _ foLconduct such as would have rendered him liable to the provisions o f the claus e in que stion , a nd then gene rousl y d isclai ms the technica l jlea by wh i ch he m ight haye dec lined to say a si ngle wor d ab out the circumstances which led to the conviction of Oppianicu s. The division of the case adopted in the opening paragraph, and carefully observed throughout the speech, is cited as one of the main proofs of the correctness of this theorj*. The prejudice arising out of the bribery scandal (invidia) is kept distinct from the charges directly alleged against Cluentius (crimina) ; and Cicero says (sec. 3) that though he is able to dis- prove the latter he must in dealing with the former throw himself to some extent on the protection of the » Dr. Carl Bardt, in the Programme of the Gymnasium of Neuwied, Ostern, 1878. INTRODUCTION. »;• court It is further observed that in the transition to the second part of the speech, where, on the assumption that ' the deception has now done its work, the orator is dis- j claiming the technical defence which he wished the jury | to believe he might have employed, he expressly states that the question of bribery at the trial of Oppianicus is not before the court {;vide sees. i6o and 164). Lastly, it is urged that it is impossible to believe that the prosecution would have brought a charge under a statute which they knew did not apply. This theory would undoubtedly, if correct, give addi- tional point to the boast reported by Quintilian; but many arguments may be adduced in disproof of it. In the first place, it seems extremely improbable that Cicero could have ventured thus to presume on a Roman jury's ignorance of the real nature of the issue they had to try. Surely no amount of subtle misrepresentation could have misled them to such an extent as to make them give a pleader credit for refusing to avail himself of a technical defence which could have sheltered his client from a charge never alleged against him. If there are several incidental indications which seem to support the theory under discussion,' there are at least as many on the other side. Hoc lege ipsa (116) can only refer to the sixth chapter of the Cornelian Law ; nor does it seem natural to suppose that in another passage ' Cicero is using the ' Bardt contrasts especially the general expressions used to intro- duce the charge of bribery (e.g., Corrupisse dicitur, sec. 9 ; dicitis, sec. 39 ; at enim, sec. 88 ; est hsec opinio, sec. 90 ; dicitur, sec. 138) with the more definite diets or dixisti usually employed in references to the charges of poisoning directly preferred by the accuser. He also refers to the fact that the word absolvere is avoided throughout, though it is employed in speaking of cases analogous to the present {e.g., 158). INTRODUCTION. word lex ambiguously, with the view of inducing the jury to believe that Cluentius was impeached under the sixth chapter, while his words only commit him to the Lex Cornelia in general. Further, he expressly says that his client has been charged under a statute (viz., the sixth chapter of the law) which applies only to senators and those who have held office ; ^ and with regard to such passages as those above referred to {e.g., 164), where he tells the court that the question of bribery is not before them, it seems more natural to suppose that he is speak- ing as one who is availing himself of the plea which he had previously disclaimed, than that he now for the first time ventures to state definitely what he has previously endeavoured only to insinuate, viz., that Cluentius was impeached only under that section of the Cornelian Law which related to poisoning, and to which all alike were amenable. ) The real truth seems to be that Cluentius was impeached under both sections of the Cornelian Law, and that though the impeachment nominally rested on the direct charges of poisoning, the real strength of the prosecution lay in the prevailing belief that he had by corrupt means procured the conviction of his step-father \ eight years before. His accusers were doubtless aware I that technically he could not be convicted under the ' sixth chapter, and hence the argument of Accius that in equity the same law should in existing circumstances be held binding on both orders. = " Illi non hoc recusabant, ne ea lege accusarentur, qua nunc I Habitus accusatur, qua; tunc erat Sempronia, nunc est Cornelia ; intellegebant enim ea lege equestrem ordinem non teneri " (154). ° " A. Cluentius causam dicit eques Romanus ea lege, qua senatores , et ei qui magistratum habuerunt soli tenentur " (156). INTRODUCTION. The view of Zumpt, that Cluentius was really liable under the sixth chapter, cannot be maintained. Relying on a comparison of the Pandects (Dig., 48. 8), he sup- poses that in addition to the chapters quoted by Cicero (148) as binding senators, official and unofficial (qui magistratum habuerint quive in senatu sententiam dixerint), there was another clause (misquoted by Cicero at sec. 157) which was applicable to all who by false witness should compass the ruin of an innocent man. It may indeed seem strange that Sulla should have made no provision for bringing to justice those who, like Cluentius, were charged with corrupting members of his senatorial juries. But the passages in Cicero (148 and 157) are quite explicit. He protests against extending to the community at large a statute which was directed against the senatorial jurors of Sulla's regime, and works on the fears of the mixed tribunal he was addressing by pointing out the danger of establishing such a precedent. The whole point of Sulla's law, by which everything that came under the head of what may be called "judicial circumvention " was to be punished as murder, was that it applied to those who should violate its provisions when acting in a judicial capacity. Even had the trial of Oppianicus been held after the passing of the Aurelian Law, and even had Cluentius sat on the bench as a juror and been guilty of bribery, he would still have been technically exempt from the provisions of the Cornelian Law ; much more when he was only accused of having bribed a jury— an offence which, so far as we know, could under Sulla's laws be prosecuted only when the criminal was a senator or high officer of state. The reference in Quintilian already quoted (ii. 17. 21) 26 INTRODUCTION. makes it probable that Cluentius was acquitted. The question of his guilt or innocence of the several charges preferred against him is, as we have seen, one which cannot now be determined with any degree of certainty. Sufficient reason has been shown, from considerations internal to the case, why Cicero's account cannot be im- plicitly accepted ; and he himself has warned his readers against looking on his judicial orations generally as un- biassed and impartial records.' We may allow the charge of having set his client's case in too fair a light to rest upon him without much fear that it will seriously injure his moral character, which was considerably higher than that of his contemporaries. The exigencies of an advo- cate's position have always been proverbial, and the question how far his obligation to his client should be permitted to obscure the finer shades of truth and false- hood is still a fruitful subject of debate. ' " Sed errat vehementer si quis in orationibus nostris, quas in iudiciis habuimus, auctoritates nostras consignatas se habere arbi- trator : omnes enim illse causarum ac temporum sunt, non hominum ipsorum aut patronorum " (Pro Cluent., 139). Compare : " patroni est non numquam veri simile, etiam si minus sit verum, defendeie." — De Off., ii. 14. 51. THE SPEECH OF CICERO FOR CLUENTIUS. THE SPEECH OF CICERO FOR CLUENTIUS. Gentlemen of the jury, — I noticed that the speech of the counsel for the prosecution was wholly divided into two parts, one of which, as it seemed to me, was made to depend for its main support on the now deeply-rooted prejudice ' against the trial before Junius, while the other touched with reluctance and distrust, and as a mere matter of form, on the question of the charges of poison- in g;, for the trial of which this court of inquiry has been by law established . I have accordingly determined, in speaking for the defence, to maintain the same division, and to keep the prejudice referred to distinct from the direct charges against my client ; as I should like all to know that I was as little desirous of evading in silence as of glossing over by talk'^ any point connected with the case. But when 1 consider how I must direct my efforts on either head, it seems to me that the one part— ^that n amel y whi ch properly belongs to your court and to a ' " Prejudice " will perhaps best render invidia in every context ; here prejudice ' on the subject of ' the trial. Judicium is either 'trial,' 'bench of jurors,' or 'verdict,' according to the context. ' Obscurim aliquid dicendo=\o throw a cloud of words over a subject. THE SPEECH OF CICERO FOR CLUENTIUS. tribunal by l aw appoi nted to_deal_ withj^sesjjLpoisoiiing- will be very short indeed and will not require any great exertions of oratory ; whereas the treatment of the other, which is quite foreign to a judicial inquiry and is more suited to the heated atmosphere of popular assemblies inflamed by seditious arts than to the calmness and moder ation of a law-cour t, will obviously involve much difficulty and trouble. In this perplexity however there is one consideration, gentlemen, from which I take com- fort. In listening to accusations directly preferred it is your habit to look to the pleader for their complete refut- ation, believing that you should do nothing more for the deliverance of the accused than his advocate can show grounds for by clearing him of what is laid to his charge, and generally by making good his defence. But this is not how you must deal with the prevailing prejudice; there you are bound, in determining the question among yourselves,' to consider what should be said rather than what is actually said by me. For while by the charges brought against Aulus Cluentius it is his own personal status that is endangered, the prejudice involves the interests of all alike. Accordingly in pleading the one division of the case I shall employ the language of proof, in the other that of entreaty : in the former I must secure your careful attention, in the latter I must beseech your protection.^ Without your assistance and that of your ' Reading inter vos with Classen : inter nos (Baiter) would mean "in adjudicating between us," }'.<., between the accuser and me. The context seems to show that nobis refers to Cicero alone ; and, moreover, the phrase " consurgitur in consilium " (sec. 75) makes it certain that the jury had an opportunity of discussing their verdict. ' Fides here not 'sense of honour,' 'feeling of duty; 'but 'pro- tection' (cp. ' vestri auxilii 'below). Cp. ii. Verr. i. 9. 25, "deum atque honiinuni fidem implorabis, " .iml the colloquial "di vostram THE SPEECH OF CICERO FOR CLUENTIUS. honourable court' no man can possibly withstand the force of prejudice. For myself, I am at a loss where to look. Shall I deny the fact of the bribery scandal? Shall I deny that it has been a matter of agitation in public meetings, of conversation in the law-courts, of serious mention in the senate ? ^ Shall I seek to wrest from men's minds a prejudice so strong, so deeply en- grained, of such long standing? That were beyond my ability. It is for your protecting powers, gentlemen, to come to the rescue of my guiltless client in this disastrous scandal, as though it were some destructive fire that might involve all alike in general conflagration. For just as elsewhere truth has too slender a basis to il 6. rest on and too little strength to support it, so here odium which is groundless ought to be of no avail. Let it reign supreme in public meetings, but hang its head in courts of law ; let it prevail in the prejudices and pratings of the ignorant, but be spurned by the under- standings of intelligent men ; let its outbreaks be sudden and violent, but when time has intervened and the merits of the case have become known let it lose all its force. In a word, let us retain the definition of judicial! equity handed down to us by our forefathers, which declares that in law-courts crime is punished apart from prejudice and prejudice apart from crime is laid at rest. ficlem : " fides piiblica is the equivalent to our ' passport.' The word denotes in this connection the "protection" which a sense of honour will prompt men in certain circumstances to accord. ■ Baiter and Kayser, following Garatoni, bracket the words ae sine, but there is no MS. authority for their reading. Tales viri is a com- plimentary expression (hi tales viri, l86), and ac here is 'even,' or 'that is to say.' ' Cp. de Orat., i. 31 : " populi motus, iudicum religiones, senatus gravitatem unius oratione converti." — H. N. THE SPEECH OF CICERO FOR CLUENTWS. For this reason, gentlemen, before proceeding to speak to the facts of the case I have certain requests to make of you. In the first place I must ask you, as is only reasonable, not to bring any preconceived notions into this court ; for we shall forfeit not only the authority but even the very name of jurors if, instead of giving judg- ment here in accordance with the merits of each case, we bring down from our homes on every occasion judgments already formed. Secondly, if you find that reason up- roots, that words weaken, or else that truth wrests from you ' any opinion you may have already embraced, I beg that you will not resist but will dismiss it from your minds with willingness or at least with resignation. Next, when I am speaking in disproof of each several charge, do not on your part call up before your minds in silent thought considerations which may run counter to what I say, but wait for the end and allow me to observe my own order of treatment. When I have finished, then and not till then mentally note any real omission I may have made.^ III. 7 I know full well, gentlemen, that I am taking in haiid a case which has been now for eight successive years completely misrepresented, and which the silent consent of society has, I may say, disposed of by an adverse vote. But if some Providence will only gain for me an in- ' Ramsay well explains the significance of convellet — labefactabit — extorquebit : but Mr. Nettleship notes that the first two are used as nearly synonymous in Pro Rab. Perd. 3 (" quum cuncta auxilia reipuUicae labefactari convellique videat "), and cp. Ad Fam. v. 13. 2. ^ Baiter and Kayser bracket animo before requiratis : but there is no lack of MS. authority for the word. The orator is asking his audience not to make imaginary corrections as he went along, but, when they came to consider their verdict, to note the absence ol (requirere) anything he might actually have omitted. THE SPEECH OF CICERO FOR CLUENTIUS. dulgent hearing at your hands, I am sure I shall make you understand that nothing is so much to be dreaded as popular prejudice, and that when a guiltless person person has incurred such prejudice he should wish for nothing so much as a fair trial, because here at last and here alone can he find an end and issue of unfounded obloquy. I am full of confident hope that if I succeed in setting forth the points in the case and in overtaking the whole subject in my argument, this very court wherein you sit assembled, instead of being, as his accusers thought it would be, full of fear and terror for A. Cluentius, will prove at last the harbour and refuge of the tempest-tost bark of his pitiable fortunes. And although there is much that I think should be said, before speaking to the facts of the case, concerning the dangers to which we all are liable from popular prejudice, still, as I am unwilling to keep you longer in the un- certainty of expectation by any words of mine, I shall proceed to the charge ; only begging you, gentlemen, as I know I shall have to do more than once, to listen to me just as if my case were being argued now for the first time, as in fact it is, not as if it had often been argued before and never successfully. For to-day we have for the first time accorded to us an opportunity of disposing of the charge on its merits ; " up till now misrepresent- ation and prejudice have been the main elements in the case. While therefore I briefly but distinctly reply to the indictment of many years, I request you, gentlemen, to continue to favour me with a courteous and attentive m hearmg. ' B. and K. bracket veteris and follow S.T. in reading ipsius for istiiis, and a point is thus gained by the contrast between the "actual issue" and the existing prejudice. 34 THE SPEECH OF CICERO FOR CLUENTWS. IV. 9. 10. I A. Cluentius stands charged with having bribed a court of justice in order to procure the conviction of his enemy Statius Albius, an innocent man. I shall show, gentle- men, in the first place — since this charge of compassing the ruin of an innocent man by bribery has been the mainspring of the relentless hostility and prejudice of which I have spoken — that no one was ever brought to trial on more heinous charges supported by a greater weight of evidence. Secondly, I shall show that the very jurors who found him guilty had passed previous judg- ments compromising him in such a way as altogether to preclude the possibility of his being acquitted, I do not say by themselves, but even by any other b e nch of iury - meiL. This done, I shall next go on to prove the point which I am aware is above all demanded of me, namely that the tribunal was tampered with, not on the side of ' Cluentius, but against Cluentius ; and I shall enable you to discriminate throughout between the actual facts of the case, ^ the embellishments of error, and the fabric- ations of prejudice. First in order, then, let me take the fact that Cluentius entered the lists as prosecutor relying on the most definite charges and the most irrefragable evidence — a fact from which it may be seen that he had good ground for feeling confident of his case. At this point I deem it necessary, gentlemen, briefly to set before you the charges on which Albius was condemned, and I ask ' So Mr. Nettleship would render a Clutntio, comparing Lucret. i. 693, " ToK contra sensus ab sensibus ipse repugnat," with Munro's note. A similar use of the preposition occurs in sec. 93 ad fin. , ' ' non modo dicendi ab reo," &c. ° Cp. Ad Fam. i. 7. 6, "quid res, quid causa, quid tempusferat tu optime perspicies, " " what is involved in : " thus here " what lawfully I belongs to the case as it really is " (ipsa). — H. N. THE SPEECH OF CICERO FOR CLUENTWS. 35 you, Oppianicus, to believe that it is against my will that I refer to your father's trial : honour and my duty to the defendant compel me to it. If I am not able to content you on the present occasion, I shall have many oppor- tunities of doing so in the future ; but as for Cluentius, if I fail to satisfy him now, I shall never have the chance again. And surely there is no one who would hesitate to speak against a condemned man now in his grave on behalf of one unattainted and still alive. In the one case the sentence of guilty has already put him against whom such language is directed beyond all peril of ignominy, while death has removed even the possibility of grief: but he on whose behalf we so speak cannot contract any discredit without feelings of bitterest vexa- tion, and without the gravest personal dishonour and ''disgrace. And to let you see that Cluentius was not actuated by litigious zeal or by any vainglorious desire for display ' in impeaching Oppianicus, but by abominable wrongs, by daily plottings, by having the fear of death before his eyes, I shall go a little further back in my proof; and I entreat you, gentlemen, not to take this amiss, for a knowledge of the beginning will enable you much morej'eadilyJg.iindeistaBd=tbe-€Rd. ' — "There was one A. Cluentius Habitus, gentlemen, the father of my client here, who for moral worth, high character, and noble birth, was by far the most dis- tinguished man not only in the township of Larinum to which he belonged but also in the surrounding district and neighbourhood. He died in the consulship of Sulla and Pompeius, leaving behind him the defendant, a boy of fifteen, as well as a grown-up daughter of marriageable ■ " Non ostentatione aliqua aut gloria adductum." Cp. Rab. Post. 38, " quod genus tandem est illud ostentationis et gloriae." — H. N. 4 11. fie v!l B.C. 88. 36 THE SPEECH OF CICERO FOR CLUENTWS. 12. age, who within a short time of her father's death was wedded to her first cousin, A. Aurius Melinus. This youth was then considered pre-eminent among his fellows for nobility and integrity of character ; and the union subsisted in all esteem and harmony, till suddenly there sprang up on the part of an unnatural ' woman an abominable passion, involving not only dishonour but even crime. Sassia, the mother of Habitus here — for mother she will be called by me throughout the case," though she harbours against him the hatred and cnielty of an enemy; she will be called, I repeat, by the name of mother, nor will she ever forfeit in the narrative of ' her unnatural wickedness the title which nature has given her. For in proportion as that title is in itself full of love and tenderness the greater will be the repulsion with which you will view the unparalleled guilt of a mother who has been now for many years, and is at this time more than ever,* desiring the death of her son. Well then, this mother of Habitus, having conceived an un- ' Importunus — common in Cicero both of things and persons : Fin. "• 35 > Verr. i. 8; N.D. iii. 8l. Coniunctus w. abl. De Oral. i. 17, 243 ; Fam. v. 13 ; Phil. iii. 35 ; Verg. JS.n. x. 65. — H. N. ' Reading in omni causa, which is repeated in mque unquam, &c. Many MSS. have nominis causa, a. reading which is not without point if we consider Cicero to mean that he will always employ, "for the sake of the word," the title ' mother,' in order that his hearers may contrast with a mother's love the unnatural conduct of this woman, and brand it with the censure it deserves { " quo enim . . . maiore odio dignum esse ducetis "). It is more probable that in omni was changed to nominis than vice versd ; and the motive of the change may have been that tota would be more regular. 3 Audiet : cp. "bene, male audire : " lit. "nor will she so be blamed for . ,. . as," &c. * Cum maxime — "at this particular time : " cp. De Off. ii. 7, 23; Tac. Ann. iv. 27. THE SPEECH OF CICERO FOR CLUENTIUS. 37 lawful passion for her young son-in-law Melinus.^t first, though not indeed for long, kept her desires in check as best she could ; but afterwards began to burn with such frenzied lust, and to be carried away by ' the fires of her evil passion in such wise that no regard for modesty ^ or natural affection, for the disgrace of her family or the talk of society, for the indignation of her son or the sorrow of her daughter, could call her away from her desires. | The young man, whose mind was not yet forti- fied with wisdom and understanding, she worked upon by all the arts with which it is possible to ensnare and captivate those of his years. Her daughter, who not only felt the anguish and indignation which every woman would feel at such affronting conduct on the part of a husband, but further could not tolerate the monstrosity of her mother being her husband's mistress^f which she thought she could not even complain without impietyy while anxious that everybody else should remain in ignorance of her foul wrong/pined away sorrowing and weeping in_the arms and embrace of this most loving brother. But suddenly there comes a divorceywhich seemed as if it would heal all her troubles : -Xlluentia separates from Melinus, sorry to leave her husband but glad to see the end of her wrongs^ Thereupon that exemplary and illustrious mother began openly to exult for joy, to triumph and rejoice : she had conquered her ' Wesenberg says that Cicero always writes efferri latitia,'h}it ferri libidine, &c. ; Pro Quinct. 38, " qui usque adeo fervet ferturque avaritia ; Cluent. 199, " ferri crudelitate et scelere : cp. Auct. Bell. •Mex. 20, " cupiditate pugnandi (ferebatur) ; " Verg. ^n. ix. 354, , " nimia csede atque cupidine ferri." — H..N. ' B. and K. omit non pudicitia after non pudor, as not found in S.T. Classen however retained the words. Pudor is the ' feeling of modesty ; ' pidicilia the ' condition of personal chastity.' 13. 14. 38 THE SPEECH OF CICERO FOR CLUENTILS. VL 16. daughter, but not her lust.' Unwilling that dark sus- picions should any longer sully her fair fame, slie bids -th^jdeck and, lay- out for, her, in the .selfsame house from whieh -her daughter- had been driven and thrust' forth, the very nuptial couch which two years before she had herself bedecked for that daughter's marriage. The mother-in-law weds the son-in-law, with no auspicious rites,'^ with no one to sanction the act, amid universal forebodings of ill. "^ What incredible wickedness was there in this woman, wickedness with this one exception unique in all expe- rience ! 3 What, unbridled and ungovernable lust ! What unparalleled shamelessnes ! Is it possible that she stood in no awe, if not of the vengeance of God and the talk of men, at J€ast---ofT:he-nupt-iaL.xiight„an.d-.ihe.Jj£i^al -torches^ Diff she not dread the threshold of the bed^. chamber, ■•-ii0r-her-daBghtert-e©ash, nor even the very walls which had witnessed the formal nuptials ? Nay, in her frenzied passion she broke through and bore down every barrier ; modesty was vanquished by lust, fear by ' B. and K. omit non libidinis, and connect victrix filicc with noluit in the next sentence. ' Nullis auspicibus, lit. " no soothsayers.'" To the passages quoted by Ramsay from Cicero and Plautus, Mr. Nettleship adds Vorro ap. Serv. ad. ^n. iv. i66 : " Varro pronubam dicit quae ante nupsit . . . ideoque auspices deliguntur ad nuptias." 3 In omni vita: Tibullus ii. I, 37, "his vita magistris Desuevit querna pellere glande famem ; " Verg. iEn. vi. 663, " Inventas aut qui vitam excoluere per artes : '' Mart. viii. 3, 20, " agnoscat mores vita legatque suos "=human life generally. — H. N. ' The references are to the customs connected with the ceremony of marriage at Rome. The bride was escorted to her new home by a procession with lighted torches ; and on her arrival there was lifted across the threshold — a usage which must have originated in the wish to avoid the possibility of any ominous stumble. THE SPEECH OF CICERO FOR CLUENTIUS. 3V shamelessness, and prudence by frenzy. This disgrace, affecting as it did his family, his kindred, and his name and fame, the son took sorely to heart, and his vexation was aggravated by his sister's daily complaints and cease- , Jess weepingH But even in the face of such outrageous and criminaTconduct on the part of his mother he made up his mind to do nothing more than merely refrain from all intercourse with her, lest by keepine/up the con- nection he might be thought not only to view with com- placency but even deliberately to appro/e of what' he could really not look on without the mMt intense anguish p{ mind. So much for the circumstances U\ which the enmity between the defendant and his nrother had its origin : when you come to be familiar with the sequel, you will see how pertinent to the case these circumstances were. It does not escape me, indead, that at the trial of a son one should be slow to speak of a mother's infamy, no matter how depraved that mother may be. I should be unfit, gentlemen, to undertake any case if I, who am retained for the defence/of those imperilled by actions at law, failed to see what/s fixed and implanted in the feel- ings common to humanity " and in the natural constitution of man. I am well^ aware that men should keep silence concerning outragjeous conduct on the part of parents — aye, and should efven endure it with resignation ; but I am also of opiiuon that we should endure only where pos- sible, and onlV where possible hold our peace. Now Aj Cluentius ha^ never in all his days seen any adversity, has ■ Reading ne qiuB for ne (juam, with Garatoni and Baiter. ° Comrmmibus hominum sensibtis : De Oral. iii. 195, "easunt in communibus infixa sensibus." Vide Munro on Lucr. i. 422. — H. N. 16. 17. i 18. 40 — : THE SPEECH OF CICERO WOR CLUENTIUS. \ \ VII, A 201 never been put in peril of his life, has never feared any form of ill, except what was stirred up and set on foot ' entirely by his mother. Yet on this occasion he would say nothing at all about his wrongs, allowing the veil of reticence, if not of oblivion, to confer them, did not the issues of this case ° make it quite impossible for him to be altogether silent with regard to them. For this very trial, this action, and all the abundant evidence that is to be produced, was originally got iready by his mother, and by his mother is at this moment being organised and equipped to the full extent of her wealth and resources. To crown all, she has lately in person swooped down on Rome from Larinum to secure the rpin of her son. She is at hand — this shameless, wealthly, and bloodthirsty woman. She directs the prosec ution anH mgrcihak fhc eviden£s__She exults in this man's linkempt appearance, and in the garb of mourning which he wears. She longs for his overthrow, eager to shed every drop of her blood if only she can see his shed first. If !you do not in the course of the trial plainly perceive all i this, believe that I am wantonly attacking her; but if ^er enormities are clearly proved, you will have to parilon Cluentius for allowing me to speak as I am doing, a;s you would have to refuse to pardon me if I were to hold my peace. I shall now proceed briefly to set forth the charges on which Oppianicus was condemned, that- you may under- stand the resolute character of A. Cluentius as well as the motive of the prosecution. And first 'I shall point out the ground of the accusation, to let you see that it was stern necessity that compelled A. Cluentius to act as he did. When he had plainly detected the poison which ' Reading conflatuin et profeclum. " Reading sed vera sU agitur ut.^ THE SPEECH OF CICERO FORyCLUENTIUS. <^V 41 Oppianicus his mother's husbapd had prepared for him, and the matter was not oncdf surmise but of plain and palpable proof, when jjr fact there could not be the shadow of a doubt as^to the justice of his case, he im- peached Oppianjetis. Of his resolution and energy I shall afterwarjls^peak ; all I wish you to know at present is that the only motive my client had for the im- peachntt^t was the wish to escape in this way, the only way open to him, the danger with which his life was rfhreaterifi4 and the daily plottings against his personal safety. I Arni to show you that the charges on which Oppianicus was impeached were such as to give the accused as little ground for hope as his accuser had for fear, I shall set be fore you a. .few.. of _thg.. counts in the indictment on the occasion of t.he_trial. When you hear them no one among you will wonder that the defendant mistrusted his prospects ' and had recourse to Staienus and bribery. A certain lady of Larinum called Dinaea, the mother- in-law of Oppianicus, had three sons, M. Aurius, N. Aurius, and Cn. Magius, and a daughter, Magia, married to Oppianicus. M. Aurius, when quite a young man, was taken prisoner at Asculum = in the Social War, and fell into the hands of the senator Q. Sergius (the same who was found guilty of assassination), by whom he was confined in a slave's prison. M. Aurius on the other hand died, leaving his brother Cn. Magius his heir; afterwards Magia died, the wife of Oppianicus ; and last ' Rebus, 'position,' 'situation.' Caes., B. G. ii. 24, "desperatis nostris rebus domum contenderunt." Livy, v. II ; 36. 31, "trepidi rerum suarum." — H. N. ' Asculum, a strongly fortified town in the Picentine territory, was captured in B.C. 89 by Q. Pompeius Strabo, the father of Pompeius Magnus. 21. 42 THE SPEECH OF CICERO FOR CLUENTIUS. 22. About of all Cn. Magius, the only remaining son of Dinaea, died also. He left his property to young Oppianicus there, with orders to share with his mother Dinaea. Meanwhile information reached Dinaea from a known and not untrustworthy source that her son M. Aurius was Still alive, a slave in the Gallic country.' The bereaved mother, now that the hope of recovering one child was held out to her, called together all her kinsfolk and those who were his intimate friends, and besought them with tears to undertake the charge, trace the young man, and restore to her the son whom fate had been kind enough, little though it was,^ to leave the sole survivor of a nume- rous family. No sooner however had she begun to take the matter up than she was surprised by illness ; and so she made her will, leaving a legacy of four hundred thou- sand §esterces to her absent son, and in turn appointing as her heir the plaintiff Oppianicus, her grandson. A few day^ afterwards 3 she died. Nevertheless her kinsmen, in pursuapce of the arrangement that had been made while she was^ still alive, set out after her death for the Gallic country in search of M. Aurius, taking the person who had ■ Ager Gallicus was the name given to a tract of land lying along the Adriatic between Ariminum and Ancona, in which the Senonian Gauls settled after crossing the Alps. Varro, De Re Rust. i. 2, defines it thus: "Ager Gallicus Romanus vocatur qui viritim cis Ariminum datus est ultra agrum Picentium." " Tamen is to be taken closely with unum, " a poor remnant." - B. and K. have eis diebus paucis, " a few days after that ; " his would be "a few days after this." In sec. 40 Cicero says that Oppianicus poisoned Dinaea, and also altered her will in favour of his son. It is possible that in this first passage he means to hint at the villany which he afterwards details ; for the words eiusmodi ul (cp. 135) seem to imply that the will was an uimatural one, and must have been due to foul play. THE SPEECH OF CICERO FOR CLUENTIUS. 43 brought the n€wsuloBg^with-them. Meanwhile Oppianicus,! being as you will learn in many ways a man of matchless ' wickedness and impudence, first bribed the informant by the agency of a Gallic friend of his own,' and then pro- cured at no great expense the removal by assassination of M. Aurius him self. {/(j)n this those who had gone to trace and recover their kmsman despatched a letter to the Aurii at Larinum, their own as well as the young man's relatives, saying that they found it difficult to conduct the search because the informant had to their knowledge been bribed by Oppianicus. This letter A. Aurius," a brave and energetic man, of high local standing, and a very near rela- tive of the missing M. Aurius, reads pubUcly to a large . audience in the forum, Oppianicus being present ; and loudly proclaims his intention of impeaching the latter if he found that M. Aurius had been murdered. / Mean- while those who had gone to the Gallic country return shortly afterwards to Larinum with the report that M. Aurius had been put to death. 'The inhabitants to a man, not his relatives alone, are roused to feelings of hatred for Oppianicus and of pity for the unfortunate youth./^So when the same Aurius who had previously given^notice of his intention to prosecute began to press the fellow with loud threatenings, he fled in haste from Vni. 23. ' Gallicanus may possibly be a proper name. It is generally aken to denote a person " connected with Gaul," as the same tdjective is elsewhere applied to the l^ons quartered there. But is it not more natural to refer it to the ager Gallkus spoken of above, " by the agency oi a dweller in the Gallic country " ? = If this Aurius is the same as the Aurius referred to in such disparaging terms in sec. II it is curious to note how Cicero varies his description of him. But " alterum Aurium " below probably rtfers to the Aurius of sec. 11, and this is a different person alto- 2«ther. 24. 44 THE SPEECH OF CICERO FOR CLUENTIUS. 25. I n. Larinum and betook himself to the camp of the illus- trious Q. Metellus;" and after his flight, which bore witness to a guilty conscience, he never dared to trust himself among his enemies unarmed. In " the reign of terror which accompanied the triumph of Sulla he swooped down on Larinum with a band of armed men, to the utmost consternation of the populace. There he made away with the four chief magistrates 3 elected by the townsmen, declaring that Sulla had appointed him with three others, and had likewise instructed him to procure the outlawry and death of the A. Aurius who had threatened to impeach him on a capital charge, of the other A. Aurius, together with his son Lucius, and of Sex. Vibius, whose agency he was reported to have employed in bribing the man who had brought the information to Dinaea. They were accordingly executed in most ruthless fashion, and this kept the rest of the citizens in no small terror of proscription and death. The facts were brought to light on the occasion of his trial ; and how then can any one imggine that he could possibly have been acquittedjj •But all this is of small account Hear what is still to come, and you will wonder, not that Oppianicus was at last found guilty, but that he was for any length of time allowed to go free. » Q. Metellus Pius had left Africa to join Sulla in Italy on hit return from the East (b.c. 83), and helped him to victory. ' For this use of ptrMx. Nettleship compares De Div. ii. 27, " par somnum," and Fam. xvi. 8. I, "perhiemem," "during the time of." 3 The chief magistrates in country towns were called eithir duumviri or quattuorviri — iuri dicundo, as would appear from inscriptions. The former are said to have been at first proper to colonies, the latter to municipia. " IIII. viri A.P." in inscriptiais means quattuorviri aedilicia potestate. THE SPEECH OF CICERO FOR CLUENTIVS. 45 Notice, to begin with, the shameless impudence of the man.) He set his heart on taking to wife Sassia, the mother of Habitus — the very woman whose husband, A. Aurius, he had murdered.| It were hard to say if the brazenness of his suit could be matched by her unnatural conduct in the event of her compliance. But just observe the good feeling and the resolution each displayed. Oppianicus asks ^Sassia to marry him, and earnestly solicits her hand./ She on her part shows no surprise at his audacity, no loathing for his shamelessness — nay, she does not shrink from his dwelling all streaming with her husband's blood : her reply was that she felt averse to the marriage " because he had three sons." / Having set his heart on Sassia's money, Oppianicus thought that he would have to procure from his own home a means of removing the obstacle which stood in the way of his nuptials. | Now he had an infant son by Novia, and the second ' was being brought up beside his mother, Papia, at Teanum, a town eighteen miles distant from Larinum. Without assigning any reason, he suddenly sends for the boy from Teanum, a thing he had not formerly been wont to do except for the games or other holidays; and his poor mother lets him go without a thought of harm., Oppianicus then pretended that he was off to Tarentum ; and on that selfsame day the boy, after being seen in the streets in good health at five o'clock, died before night- fall, and was buried next morning before the dawn had time to break./ This great sorrow the voice of rumour communicated to the mother before any member of the household of Oppianicus; and she, on hearing in one breath that she had been robbed not only of her boy but ' There was a third by Magia, Oppianicus the younger, the prosecutor in the present action. 26. 27. 28. 46 THE SPEECH OF CICERO FOR CLUENTIUS. X Z.29 even of the privilege of paying the last honours to his remains, came right off to Larinum more dead than alive, and there performed over again the obsequies of her already buried child./ Before ten days had passed the other boy, the infant,' is put to death ; ' whereupon Sassia forthwith marries Oppianicus, whose heart was no>v full of joy at the happy fulfilment of his expectations.?' Nor can one wonder at her, since she saw that by way of marriage gifts children had been murdered to win her favour./ As a general rule, men desire riches for their children's sake, but it was this man's pleasure for the sake of riches to cast away his childrenj ' • Gentlemen, I perceive that you, as men of feeling, are greatly di;5composed by the brief recital of such monstrous crimes. / But what, I ask, do you imagine must have been the sensations of those who had not only to listen to the narrative but also to bring in a verdict ?/ You are hearing the story of one on whom you are not sitting in judgment, of one whom your eyes do not behold, of one who is now beyond the reach of your detestation, of one who has paid his debt to nature and to the law— jvho|n_ the law punished with exile and nature with death ; and ' For thi.s inverted construction see Roby, 1733. Another ex- ample occurs in sec. 72. ' The difficulty of this passage seems not to have been sufficiently noticed by editors, who take laetanti animo as ablative and refer the clause to Sassia. In this they are undoubtedly supported by the arrangement of the words ; but there is much awkwardness in the construction animo spe confitmato, and a better sense is obtained by supposing that it is Oppianicus who rejoices that he has now secured the woman and her money (27.) Nothing has been said of any hopes entertained by Sassia. Laetanti and confirmato are there- fore both taken as datives in construction with Oppianico. For the ablative cp. Ad Qu. Fr. i. i, i, " tremerem animo." THE SPEECH OF CICERO FOR CLUENTIUS. 47 you are hearing it from the lips of one who is not his per- sonal enemy, who is not producing witnesses, and who is treating briefly and cursorily what might be stated at the greatest length./ They heard the story of one concerning whom they were bound to bring in a verdict on oatl^who was in court, and whose execrable crime-stained face they had to look on/ whom they all detested for his brazenness, whom they thought deserving of the severest punishment ; and they heard it from the lips of his accusers, they heard the depositions of many witnesses, they heard the long and telling speech of the eloquent P. Cannutius, in which each individual point was dealt with in detail. Is it possible for any one in possession of tlie facts to harbour a suspicion that Oppianicus was an innocent man whose ruin was treacherously compassed by a judicial process .? / I shall now summarily dispose of the remaining charges, gentlemen, that I may come to what more nearly affects and is more intimately bound up with the defendant's case. I beseech you to bear in mind that it is not my object to inveigh against the deceased Oppianicus. No : but as I wish to convince you that it was not my client who bribed the court, I would employ as the primary and fundamental principle of the defence the fact that the Oppianicus who was found guilty was a scoundrel and villain of the deepest dye./ With his own hands he gave a poisonous draught to his wife Cluentia, the aunt of Habitus here by the father's side. Even in the act of drinking it his victim suddenly cried out aloud, " I die in fearful agony ; " nor did she survive the words she uttered, for with that loud ejaculation still on her lips she expired./ And besides theV suddenness of her death and her dying cry, all the other usual marks and tokens of poisoning were found on her 30. I ■f\. tin pfl- 48 THE SPEECH OF CICERO FOR CLUENTIUS. XI. 31 J 'dead body. By poison likewise he killed his brother Gaius. And as if this were not enough, though one would think that in the murder of a brother every form of bloodguiltiness was comprised, he paved for himself beforehand by other enormities a way of leading up to this execrable crime. His sister-in-law, Auria, was preg- nant ; so when she was thought to be approaching her confinement he procured her death by poison along with that of the child with whom she was about to present his brother. After this he commenced operations against the brother himself: and he, when he had already drained the fatal cup, and was calling out all too late upon his own and his wife's death, and 'desiring to alter his will, expired even while giving expression to his wish.Jj The woman he murdered that her issue might not deb^ hirpi from succeeding to his brother's estate, while he depriy^d that brother's offspring of life before it could take in the kindly light of day ; thus giving all to know that nothing could be barred to one ' from whom not even the pro- tection of its mother's womb had availed to keep his 32. brother's offspring. I remember that when I was in Asia a woman of Miletus was sentenced to death for having procured abortion for herself by drugs in consideration of a bribe received from the heirs-in-default ; and rightly, seeing that she had destroyed the hopes of a parent, the continuity of the name, the suppprt of the race, the heir of the house, and a citizen-elect of the state. How much more severely ought the sanie crime to be punished in Oppianicus ! She did violence to her own person — it was herself she tortured ; but he procured the same result through the death and torture of another. People in ' B. and K. bracket ' eyes." nihil ei sanctum" — "nothing holy in his THE SPEECH OF CICERO FOR CLUENTIUS. 49 general do not seem to be able to commit many murders on one man : it has been left for Oppianicus to kill more than one in the person of a single individual. Cn. Magius, the uncle of young Oppianicus there, had xil. 33. come to know of the man's daring practices ; so when, overtaken by a serious illness, he was leaving his property to his sister's son, he summoned his friends and asked his wife, in the presence of his mother Dinaea, if she were with child. On her replying in the affirmative he requested her after his death to live until her confinement with Dinaea (at that time her mother-in-law), and to take every precaution to preserve and bring safely to the birth the child she had conceived. He then left her in his will a large legacy, to be paid by his posthumous issue, if any, but made no provision for any bequest ifthe estate should revert to the heir-in-default. You see how he suspected 34. Oppianicus — his motives are obvious. Though he was making the son his heir he would not appoint the father guardian to his offspring. Hear what Oppianicus did, and you will see that the range of Magius's mental vision did not " reach far into the future on his deathbed. The money that had been bequeathed to the woman through the contingent heir he pays down to her on the nail and before it was due — if indeed his proceeding should be called the payment of a legacy rather than the price of abortion ; and she on receipt of the bribe, together with many other gifts which were quoted from the account- books of Oppianicus at his trial, allowed avarice to prevail, and sold to that villain the promise she bore within her bosom, committed as it had been by her husband to her ' Non longe ; ij., though he had foreseen what was likely to happen, he had not after all guarded against it suiiiciently. Most MSS. however omit the nan. 50 THE SPEECH OF CICERO FOR CLUENTIUS. z 35. XIII. 36. ■r care. One would think that nothing further could be added to such depravity, but njatlc the issue. The very woman who, according to her" husband's solemn request, should not so much as haye known any house e:)ccept her mother-in-law's for the,usual period often months, actually married Oppianicus' within five months of her husband's death. But theij^tinion was not lasting, for the bond which joined them tpgether was not the dignity of wedlock, but companionanip in crime. \ Take again the murder of young Asuvius of Larinum ; was anything more notorious while the facts were still fresh, or a more common subject of conversation among all ? There was at Larinum an abandoned and most necessitous scoundrel named Avillius, a person gifted with a kind of talent which enabled him to work upon the passions of younger men. By flattery and cajolery he had become quite a bosom friend of Asuvius ; and Oppianicus began \ forthwith to entertain the hope that he could, by applying this Avillius like some siege-engine, entangle the youthful\ Asuvius and carry his ancestral wealth by storm, f The plan was devised at Larinum, but its accomplishment was transferred to Rome/ for they thought that, while they could more easily plot together in retirement, it would be more convenient to carry out such a design in a crowded city. / Asuvius went to Rome in company with Avillius, and Oppianicus followed closely in their track./ It would take too long, esp)ecially as I must hasten on to other points, to tell you of their life when they got to Rome, of their revels, of their shameful ex- cesses, of their profuse and lavish expenditure ; Oppiani- cus being not only privy to their conduct but even lending them his companionship and assistance./ But 37. ' mark the issue of their pretended friendship. / Once when THE SPEECH OF CICERO FOR CLUENTIUS. 5« the young man was with some female friend, passing the night at her house and lingering on next day, Avillius according to arrangement made pretends that he is taken ill and wants to make his will. Oppianicus brings witnesses to him to sign it, men unacquainted either with Asuvius or Avillius, and calls him Asuvius ; and after the will has been signed and sealed in the name of Asuvius, the witnesses take their departure.' Avillius for his part gets well at once ; but Asuvius within a short time of the transaction = is inveigled into some sand-pits outside the Esquiline gate, on pretence of a visit to the pleasure- grounds, and is there assassinated/jiFor a day or two he was missed and could not be found in the haunts where he was usually looked for ; and as Oppianicus kept saying in the forum of Larinum that he and his friends had lately witnessed his will with their hand and seal, the freedmen of Asuvius and a few friends, on the ground that it was known for a fact that on the day on which their master had last been seen Avillius had been with him and had been seen by many, lay hold o n the fello w a nd brine; him b gfore the tri b unal of Q. Manlius, who was at that time one of the three Commissioners of PolJ! one to ./ TJtere, altho ugh t^"'"" ^"IS "" witn e ss nor any lay information ap^ajnst him, te rrified by a gui lt- sense of his la t e misdeed, he at once s ets forth the whole s tory as I have just been telli ng it, and_con£eases_thal_U. v^ as he himself XVI.46. 47. indeed it was no secret — Oppianicus foresaw that on his decease his whole property would revert to his mother, whom he could afterwards put to death when the addition to her wealth would have enhanced the reward while the loss of her son would have lessened the danger. Hear then how, fired by these reflections, he sought by poison totake his lifeJ There were two twin-brothers of the township of Aletrium, Gaius and Lucius Fabricius by name, who while resembling each other both in outward appearance and in character formed the strongest contrast to their fellow-townsmen ; for they are, I may say, uniformly dis- tinguished by shining merit and by the almost universal consistency and moderation of their principles of life, as I suppose you are all aware. With these Fabricii Oppianicus had always been on terms of the greatest intimacy. Now I take it you all know what a great influence similarity of tastes and disposition has on the formation of friendships. These men lived as those who thought no form of money-making disreputable. I With them originated every sort of knavery and every act of treachery for the defrauding of young men ; and their universal notoriety for vice and depravity had induced Oppianicus, as I have said, many years before, eagerly to court their friendship. I Accordingly he determined at this time to employ the agency of Gaius Fabricius, Lucius being dead, in getting up a plot against Habitus. The latter, who was at the time in bad health, was being attended by Cleophantus, a physician not unknown to fame, and personally a man of repute ;' and his slave ' Reading nonignobiliet spectato : S.T. have non ignobili sed, for which tt has been substituted, sel and et being often interchanged in MSS. THE SPEECH OF CICERO FOR CLUENTIUS. 57 Diogenes Fabricius began to solicit by promises and rewards to administer a poison to Habitus. The slave, who was not devoid of shrewdness, and as the event proved honest and upright, did not refuse to listen to the proposal of Fabricius, but at the same time reported the matter to his master, who again talked to Habitus about it. Habitus immediately put himself in communication with the senator M. Baebius, a very intimate friend of his ; and I do not suppose you have forgotten the fidelity, forethought, and energy he displayed/ His advice was that Habitus should buy Diogenes from Cleophantus, jin order that the charge mi^ht on his information either more readily be brought home or else be ascertained to be false. To makg _aJon g storv shor t. Diogenes changes hands ; thg pniso n is got ready in a few days ; and, in the presence of many reputable m en w ho had priva t ely come upon the, scene, a sealed pa cket containi ng: the money to pay for Jt is fQund .Qa_tbe. p erson of Scaman der, freedman of the Fabricii.' ' Venerium paucis diebus comparatur is the reading of S.T. , and must certainly be due to Cicero himself. Venerium occurs alone in sec. 50. (manifesta deprehentione veneni), but we have " veneno pecuniaque " in 53, which was probably considered a rhetorical ex- aggeration, and to suit which the present passage may have been altered. The seeming incongruity between the text and sec. 53 is generally explained by pressing the impf. dabaiur. Diogenes has given Scamander the poison, and the latter is just going to give him the money, when the viri boni interfere, and apprehend Scamander with both the money and the poison on his person. But it is difficult to believe that Cicero is giving a perfectly straightforward account of the transaction. Diogenes had been solicited to administer the poison himself to Cluentius : why was he selling it to Scamander ? For the circumstances Mr. Nettleship compares Pro Cael. 62 : " cum servi ad dominam rem istam et maleficium Caelii detulissent, mulier ingeniosa praecepit suis ut omnia Coelio poUicerentur : sed ut 58 THE SPEECH OF CICERO FOR CLUENTIUS. Xyil.48. .49. Who, in Heaven's name, that knows these facts will say that Oppianicus was ruined by foul play ?! >y'as ever man brought to trial more brazen, more criminal, more evidently guilty ? Could any abilities, any gift of oratory, any defence, no matter by wljDifi' elaborated, have with- stood this single charge alone? (Again, is there a man who is not convinced that when the plot had been dis- covered and plainly detected Cluentius had either to face the prospect of death or else to undertake this prosecution ? I / I ^Gentlemen, I imagine I have given adequate proof that the charges on which Oppianicus was impeached were of such a nature as altogether to jweclude the possibility of an honourable acquittal./ I must now make you under- stand that when he was summoned to appear on his defence he came before the court a condemned man, as the case had already been decided not once but twice before. / For Cluentius first impeached the man in whose hands he had found the poison — Scamander, the freed- man of the Fabricii. The bench was unprejudiced ; there was no suspicion of bribery ; the court had before it a simple issue, an established fact, a single accusati on. I Hereupon the C. Fabricius of whom I have spoken above, seeing that the conviction of his freedman would place him in imminent danger, brought a large deputation of the citizens of Aletrium to my house, because he knew that I was their near neighbour ' and on terms of great • venenum, cum a Licinio traderetur, manifesto comprehend! posset, constitui locum iussit, balneas Senias, ut eo mitteret amices qui delitescerent ; deinde repente cum venisset Licinius, ut venenum traderet, prosilirent, hominemque comprehenderent. " ' Cicero had a country seat at Arpinum, his birthplace, which was not far from Aletrium. THE SPEECH OF CICERO FOR CLUENTIUS. 59 intimacy with most of them. These gentlemen held the inevitable view of the man's character, but because he was their fellow-townsmen they thought it concerned their own credit to adopt every measure for his defence ; so they asked me to stand by him and take in hand the case of Scamander, which involved the whole question of his patron's liability. Not being able to refuse any requesti 50. to those estimable men who had such a regard for me, and not having any idea, any more than they themselves had when they sought to put the case in my hands, that the charge alleged was so heinous and so well authenti- cated, I promised to comply with their every wish. •The trial began, and Scamander was summoned to xvin. appear on his defence. The counsel for the prosecution was P. Cannutius, a man of pre-eminent ability and a most accomplished pleader ; but he limited his impeach- ment ol Scamander to the three words, "poison was discovered." It was at Oppianicus that all the shafts of the prosecution were levelled. His motive for the plot on Cluentius was revealed, his intimacy with the Fabricii set forth, and the shameless audacity of his life shown up ; and finally the whole indictment, after an exhaustive K and telling statement, was finished off with the manifest discovery of the poison. Thereupon I rose to reply — 01. and Heaven will bear witness to my anxiety, my trepida- tion, and my fears ! I am indeed always very nervous when I begin to speak, and never do so without feeling that not only my ability but also my character and honour are being put to the test ; and this makes me fear I may be thought so brazen as to profess what I cannot perform, or else so dishonourable or so careless as not to do the best I can. But on this occasion I was in such trepida- tion that I feared every contingency alike. If I said Co THE SPEECH OF CICERO FOR CLUEKTIUS. XIZ. 62. 03. nothing, I was afraid I might be thought to have no gift of speech at all, or else to have no sense of shame, if I spoke at length in such a desperate case. At last I pulled myself together, and made up my mind that there vcas nothing for it but a vigorous defence. I reflected that it was generally reckoned creditable for young pleaders such as I then was not to refuse to stand by a man on trial, even though his case might be rather weak. Acting on this idea I gave battle, I dis- puted ever)' point, I had recourse, so far as in me lay, to every legal device and loop-hole of escape, in such vigorous form that, though I say so with diffidence, I succeeded in making it impossible for any one to think that the advocate had failed to do the best he could for his case. But no sooner had I got hold of any individual point than the prosecutor wrested it from my gfasp. Had I asked^ there was any emnity between Scamander and Habitu^? "^ He admitted there was none, but said that Oppianicus, as whose agent Scamander had acted. Had always been and still was my client's bitterest foe. Had I essayed to show that the death of Habitus would have brought no advantage to Scamandef? yHe conceded the point, but said that his whole property would have reverted to the wife of Oppianicus, a man who had shown himself quite an adept at wife-murder. When I availed mys elf of the plea w hich has always been accounted most credi t- ^Iti wlieii fleedmen are on trial, that S ca mander found favour in his ma ster's eyes , he allow£ d it. but asked in wHose^5STfiat_ master_^imself jfound favour. _ When I dwelt at considerable length on the argument that Scamander had been led into a snare by Diogenes, and that the agreement between the two had been about something quite different, viz., that Diogenes was to bring THE SPEECH OF CICERO FOR CLUENTIUS. 6i physic, not poison — adding that this was what might happen to any one — he asked why Scamander had gone alone to such a retired spot, and why he brought money sealed up in a packet At this point finally my case broke down under the weight of evidence given by men of the highest character. M. Bsebius deposed that it was by his advice that Diogenes was purchased, and that he was present when Scamander was arrested with the poison and the money. P. Quintilius Varus, a man of the greatest conscientiousness and the most exalted re- putation, deposed that shortly after the fact Cleophantus had spoken to him about the plot against Habitus, and the overtures made to Diogenes. And though at the trial I was to all appearance pleading on behalf of 64. Scamander, while he was nominally the defendant, the person actually implicated and imperilled throughout the prosecution was Oppianicus. Of this he was evidently quite conscious,' nor could he in any way disguise it. He appeared constantly in court, called together his supporters," and employed every weapon of energy and interest. Lastly (and this damaged his case more than anything else), he sat on these very benches reserved for , the defence as if he himself were on trial. The eyes of \ every juror were turned, not on Scamander, but on Oppianicus. His fear and trepidation, the anxiety and doubt depicted on his face, his frequent change of colour, made plain and evident all that was previously matter of ' Obscure ferebat=occultabat. It is the opposite oipra se ferre. ° Advocare here does not necessarily mean " to act as advocate,'' by giving advice on points of law, &c. The substantive advocattts has also the more general meaning of " backer," and is applied to anyone who, by attending in court, lends his countenance to a friend. Cic. Phil. i. l6, " Vellem adesset Antonius modo sine advocatis." Dem. De Cor. 275. 20, 01 tK irapuKXijaeiDQ av/Kadriiievoi. 62 THE SPEECH OF CICERO FOR CLUENTIUS. ZZ.661 if suspicion only. When the time came for the jury to deliberate on their verdict, C. Junius, the President of the Court, a sked the accused, in accordance with the provi- sions of the Lex Cornelia, whic h was th en in force. wheth er Re w ished _the votes on his rasp to he taken openly or by £allot ; and he replied, on the advice of Oppianicus, wno"fepresented that Junius was on intimate terms with Habitus, that he preferred a ballpt. The jury then proceeded to consider their verdjctj I B y every vo t e. with one single exception which Staienus acknowledged to be his, Scamander was found guilty, on the first hear- \ ing of the case.^ Was there a man among all present at the time who failed to see that the conviction of Sca- mander implied a verdict against Oppianicus ? ( What was the point decided by his conviction, if it was not that poison had been procured to be administered to Habitus ?' Further, did the faintest shadow of suspicion attach, or could it possibly have attached, to Scamander, which could have made people think that he had desired on his own account to murder Habituspj / 66. "Notwithstanding the issue of this trial, by which Op- pianicus was virtually and in the eyes of men found guilty, though not as yet by any express judicial verdict. Habitus did not at once proceed to impeach him. I He wished to find out whether a jury would deal rigorously with those only whom they ascertained to have actually had poison in their possession, or whether they would consider that the instigators and accomplices of such crimes also deserved to be punished./ So he at once impeached C Fabricius, whose intimacy with Oppianicus led him to I think that he had been an accessory to the fact^l Mi^-tin _«..«.. _4. »<'4.u_ — I.: _r lu: ;..i. ..i.-Ttir^T..- account of the ( ection of thisxase with the his re_guest that it shoul d b e placed first ontb^oll was THE SPEECH OF CICERO FOR CLUENTIUS. 63 aqted. graotfed . At this conjiinpfure, so far was C. Fabricius from bringing my friends and neighbours of Aletrium to me, that he was not eren able to secure their support or testimony ' for himMlf Ordinary kindness had, as we thought, required W40 undertake the defence of one with whom we were not unconnected, so long as his case, however doubtful it may have bfeen^as still undecided ; but now that it had been tried we tfiburfit it would be impertinent on our part to seek to overtimi^the verdict I The consequence was that in this dearth of supporters he was perforce compelled to betake himself, so desperate was his case, to the Cepasii, two hard-working brothers who took as a compliment and a personal favour any opportunity of pleading that might be given themlj | It seems a most inequitable arrangement that whereas'in bodily diseases the more complicated they are the greater is the distinction and excellence looked for in the physician, i n tria ls i nvolving c ivil death the mor e im- piacticable..a..case is the meaner and more obscure is thg advocate employed. The reason may perhaps be that the doctor is not called on for anything except his skill, whereas the pleadermust also lend the w eight of his per- sgnaTreputa tion. iThe defendant is summoned into court, and when Cannutius has stated the case for the prosecu- tion in a few words, as was natural where the issue had already been decided, the elder Cepasius begins his reply with a lengthy and far-fetched introduction./ At first his speech is listened to with attention. / Oppianicus begins to rouse himself from his despondency and dejection/ ' Over and above evidence directly bearing on the case, it ivas allowable for a defendant to produce witnesses to his general cha- racter (laudatores), with the view of influencing the jury in his favour. 87. XXL 64 THE SPEECH OF CICERO FOR CLUENTJUS. 69. ZZII. Fabricius himself is in great glee, not seeing that what arrests the attention of the jury is not the eloquence of the speaker but the shamelessness of his defence^ When he came to speak to the facts, he made the case even worse by himself inflicting as it were fresh wounds, in such a way that, though he was really doing his best,' he seemed at times not to be defending! but to be playing into the hands of the prosecution. / Flattering himself that he was making a very brilliant speech, he drew upon the secrets of his stock-in-trade for this most telling passage : " Turn now, gentlemen, to the lot of man, turn to its uncertain and ever-shifting chances, turn to the old age of C. Fabricius ; " and after several times repeating this highly ornamental " turn " of his, he himself turned, and lo ! C. Fabricius had slunk out of court with his head hanging down. The bench began to laugh, whereupon the advocate got his back up and became exasperated at having the case taken out of his hands, ^nd at not being allowed to finish his brilliant " Turn now, gentlemen ; " " and he was within an ace of running after his client and dragging him back into court by the nape of the neck, so as to be able to go on with his peroration. \ > \ On this occasion then Fabricius was found guilty/first by the weighty testimony of his own conscience, and after- wards by the authority of law and the votes of a jury.| I Is it necessary to go on to speak of the character and ' If sedulo ever meant " designedly " in Cicero, the other reading, hoc quamquam sedulo faciebat, which is the reading of most MSS., would give an excellent sense : " though in doing so he spoke advisedly" — i.e., quite unconscious that his arguments made against him instead of for him, " he seemed at times," &c. = For the constr. cp. " furere crudelis atque importuna mulier, sibi nequaquam, ut sperasset, ea, quie cogitasset, procedere," 177. THE SPEECH OF CICERO FOR CLUEMTIUS. t>5 the trial of Oppianicus ?/ He was impeached before that very court after having^lready been condemned by these two previous decisions; and by the very court which in condemning Fabricius and his accomplice ' had passed judgment also upon him his case was placed first on the roll for trial, y He was impeached on the gravest charges, not only or/ those which I have briefly stated but on many others besides which I pass over. 1 Oppianicus was impeached, I repeat, before the jurj' which had condemned his agent Scamander, and C. Fabricius who had been privy to his crime. /Whether, in Heaven's name, should one wonder most at his conviction, or at his daring to make any defence at all ? Why, what could these jury- men have done ? If in the Fabricii they had condemned innocent men, they were nevertheless bound, in trying Oppianicus, to be consistent with themselves and to stand by their former verdicts. Men in general are wont in passing judgment to guard against differing even from the decisions of others, and were they of their own act to rescind the decisions they themselves had come to? They had condemned the freedman of Fabricius for having been the agent in the crime, and his master for having been privy to it ; were they now to acquit the author and contriver of the villany himself? Without any previous decision, but in the light of the bare iacts of the case, they had condemned the others ; were they now to discharge the man who had already been twice condemned before he came to them ? This would verily hahe rendered entirely. indefensible the old senatori al monopoly of t lie jury- It would have branded it, not with groundless courts. ■ As only one of the brothers was alive at the time of the events which Cicero is narrating (47), it is evident that he uses the plural here of C. Fabricius and Scamander. Cp. sec. 62. , \j 60. 61. \ly I ^ 66 THE SPEECH OF CICERO FOR CLUENTIUS. 62. •*M rsxw. odium, but with merited and conspicuous disgrace; it would have covered it with shame and infamy.' What reply, pray, could these jurors have made had any one asked them on what charge they condemned Scamander as they had done ? /" Why, because he sought to poison Habitus by the ^ency of his doctor's slave.'/ "And what advantage was Scamander to derive from the death of Habitus?/^ "None; but then he was the tool of OppianicuS/' "You also condemned Fabricius; why ? 7 " Well, he was on very intimate terms with Oppianicus, and his freedman, moreover, was detected in the crime ; and so we didn't think it likely that he had been without a share in the plot"/ If then they had actually acquitted Oppianicus after having themselves condemned him twice over, could any one have endured such shameful conduct in our courts of law/such inconsistency in the verdi cts, such wanton caprice on the part of the jurors ? \ But if you see the point which has now been clearly made out by all that I have just been saying — namely that the defendant in that action must inevitably have been condemned, especially by the very jury which had passed the two previous judgments — you cannot fail at the same time to see that it is impossible that the prosecutor can have had any motive for wishing to bribe the tribunal. \ I ask you, T. Accius, abandoning for the time every other argument, whether you believe that Fabricius and his accomplice were also innocent of the charge on which they were found guilty, and whether you will assert that at their trials too the court was bribed, when in the one case the defendant was acquitted by Staienus alone, while in the other he even went the length of condemning himself? Again, if they were guilty, of what crime pray ■ Vide Introduction, p. 21. THE SPEECH OF CICERO FOR CLUENTIUS. 67 were they guilty ? Was any other charge brought against them except the procuring of poison to take the life of Habitus ? Was any other point discussed at their trials except this plot which Oppianicus laid against Habitus by the agency of Fabricius ? You will find there was no other, gentlemen — none. The facts are still within our recollection, and the official records exist. Confute me if I am saying what is not true. Read the depositions of the witnesses ; point to anjlihing beyond this attempt at poisoning on the part of Oppianicus, that was urged against those defendants, I do not say as a direct charge but even as an aspersion. Much could be said to show how inevitably the verdict must have been what it was, but I shall hasten to meet your expectations. For though you are listening t6 me with a courtesy and attention never in my opinion accorded to any one before, still your unexpressed expectations have for some time past been summoning me on to another point. I seem to hear you interrupting me with the cry, " What ! do you deny that some one bribed the bench at the trial of Oppianicus ? " " No, I do not ; what I say is that it was not my client." " Who was it then ? " I fancy that first of all, even if the issue of the case had been uncertain, the probability would still be that it was he who feared a sentence of guilty for himself, rather than he whose only anxiety was lest his opponent should be acquitted. In the second place, since it was not doubtful what the verdict must in- evitably be, I think it is surely more likely that he had recourse to bribery who had only this expedient to trust to. ' than he who had every ground for confidence. I Lastly, he surely was more probably the guilty party who ' Reading " qui sibi alia ratione diffideret ; " " aliqua " for " alia " would mean "who had some reasons for mistrusting his chances." 6 63. I 68 THE SPEECH OF CICERO FOR CLUENTIUS. 64. XXIV. 6S. had twice been unsuccessful before that very court, than he who twice had made good his case therej This one point at least no one surely will be so hostile to Cluentius as not to grant me. If it is an established fact that some one practised bribery at the trial, it must have been either Habitus or else Oppianicus. If I prove that it was not Habitus, I convict Oppianicus; if I show that it was Oppianicus, I exculpate Habitus. Accordingly though I have given sufficient proof that my client had no motive for bribing the jury, which of itself shows that it must have been Oppianicus, listen nevertheless to a separate statement of the evidence against the latter. 1 1 do not purpose to adduce the arguments, weighty as they are, that the guilty party must have been the man who was in danger of conviction, who feared the issue, who had no other hope of acquittal, and who was always noted for unparalleled audacity. Considerations of this kind are not wanting ;\but since the matter with which I am dealing is not doubtful but notorious and evide nt, it fwould be superfluous to enumerate them in detai|| I assert that a large sum of money was given by Statins Albius to C. MXxMS, Staienus, a member of the jury, for the purpose of bribing the tribunal. Does any one deny it ? I call on you, Oppianicus, on you, T. Accius, both of whom — ^you by your eloquence, he in silent loyalty to his father's memory — are deploring the sentence passed on that occasion. Dare to deny that Oppianicus gave money to the juror Staienus ; deny it, I repeat, though it is my turn to address the court ' Are you unable to make ■ Meo loco. The common reading, in eo loco, " where you sit," may be defended, though, as Madvig says (Opusc. i. 122), ex is/a loco would be preferable if the meaning is "in eo loco ubi sedes, ut ne consurgendum quidem tibi sit," Meo lo'O = etsi meus dicendi THE SPEECH OF CICERO FOR CLUENTIUS. 69 the denial with regard to what you reclaimed, admitting the fact and taking away the money ? How then, I ask, can you have the face to speak of bribery and corruption when it was by your side, as you confess, that money was given to a juror before the trial, and after the trial taken from himPl But how was all this managed ? iGentleme^, I shall carry the thread of my narrative a little farther back, and reveal in such a way all that has long lain hidden in obscurity that you will imagine yoti are eye- witnesses of what occurred. Have the gopdness to listen to the sequel of my story with the same attention with which you have hitherto heard me. - I assure you I shall say nothing that might be thought unbecoming the quietude of this assembly, nothing unworthy of your attentive and interested hearing. No sooner did the impeachment of Scamander give Oppianicus a hint of his imminent danger than he imme- diately set himself to become intimate with StaiemiSvJL n eedy and daring f ellow, gifted with a large, experience. of bribing c ourt s of law , and moreover at this timp himself a juror. By the favours he bestowed on him he had made such headway that first of all at the trial of Scamander he received from him a more interested ' support than was consistent with the honour of a juryman. est locus : cp. iv t<3 iyuf 'iian. In eo loco could not mean ' ' while I am discussing the topic," as some have taken it ; on either reading the orator is inviting the other side to do what they could do only by his permission, viz., to interrupt his speech at once with a denial if they thought they could disprove what he was saying. ' For this sense of cupidus cp. Pro Coecina, 8, "cupidior quam sapientem iudicem esse sequum est ; " in Vatin. 40, * ' cupidissime falsum testimonium dicere ; " and cupiditas for " partisan spirit " in Verr. 35, Pro Plancio, 43. The word seems to have the same sense in sec. 152. 66. 70 THE SPEECH OF CICERO FOR CLUENTIUS. 67. zzv. 68. About ^6,000. Afterwards however, when Scamander had been acquitted by one vote, that of Staienus, while Scamander's master had not even been able to acquit himself, he made up his mind that he would have to employ more drastic ' measures to ensure his deliverance. Thereupon he began to beg for assistance to his person and estate from Staienus, regarding him as a man of the shrewdest inven- tion, of the most shameless daring, and of the most vigorous execution ; for he had a share of all these qualities, though not so great as he pretended. Now you are all aware, gentlemen, that even brute beasts, obeying the promptings of hunger, commonly go back to the place where in time past they, have had a meal. Two years previous to this, our , friend Staienus, having undertaken the case of Safiniiis Atella's estate, had said that with six hundred Jihousand sesterces he would bribe the bench of jurpfs. He received this sum from the ward, and kept it to himself, refusing to give it up after the trial was oVer, either to Safinius or to those who had purchased the estate. When he had spent all the money, and hacl left nothing even for the necessaries of life, not to mention the gratification of his desires, he made up his mind that he would have to fall back on his old game of plunder and judicial embezzlement. Seeing the now desperate position of Oppianicus, whom the two previous verdicts had left without a leg to stand on, he roused him from his despondency by the promises he made, and bade him withal never despair of deliver- ance. ' Oppianicus on his part began to implore the fellow to point out to him some way of bribing the jury ; ' Acriora, "more drastic,'' opp. XoUniora. Celsus, vi. 6, 14, "acri.T medicamenta,"opp. io Imia: ib. vi. 6. I, " minus acrem curationem. " — H. N. THE SPEECH OF CICERO FOR CLVENTIUS. 71 on which he told him, as Oppianicus afterwards informed us, that there was not a man in the country who could do it except himself. But at first he began to make difficulties, saying that he was standing for the aedileship against men of the highest rank, and that he was afraid of incurring unpopularity and displeasure. His scruples were subsequently overcome ; and after beginning by demanding an immense sum of money, he came down in the end to a negotiable figure, and bade him send to his house six hundred and forty thousand sesterces. As soon as this sum was brought to him, the infamous fellow began to ponder and reflect in some such way as this : " Nothing could suit me better than that Oppianicus should be condemned. If he is acquitted, I shall either have to distribute this money among the jurors, or else give it back to him ; whereas if he is found guilty no one will seek to recover it" So he bethinks himself of a remarkable device. Gentlemen, you will more readily credit the true statement I am making if you will have the goodness to go back a considerable space and recall to mind the life and disposition of Gains Staienus ; for it is just the opinion we have of the character of an indi- vidual that enables us to determine what his conduct mayLPr may not have been. \ f^Oeing necessitous and extravagant, audacious, cunning, and treacherous, and seeing such a large sum of money lying in his wretched poverty-stricken home,' he began to turn his mind to all sorts of roguery and fraud. " Shall 'Reading "miserrimis in locis et inanissimis," which, though awkward, seems nearest the MSS. T. has miserritnus, and Classen brackets the et. B. and K. give the ingenious reading, "miserrimus in loculis ante inanissimis," " loculis " being a conjecture of Ernesti. This might be rendered " and seeing, poor wretch that he was, such a large sum of money in his hitherto poverty-stricken coffers." 69. About ;^6,400. 70. XXVI. 72 THE SPEECH OF CICERO FOR CLUENTIUS. 71. About ;^400. 72. for I give it to the jurors ? If I do, what shall I gam — ^ myself save danger and disgrace ? Can't I hit on some way of making Oppianicus's conviction inevitable ? What if some accident (nothing in this world is impossible) should deliver him from danger: would I not have to give it up ? Well, let's give him a push while he is on the brink, and dash him down to destruction." The plan he took was to p r omise mo n ey to c ertain_unBrin- ri pled jiirnrs, which he wo uld 3&£rwards keep to himself ; for he thought that the men of character among them would of their own accord deal rigorously with the case, and he wished to make those of less principle enraged with Oppianicus for having played them false. So, with his usual wrongheadedness and perversity, he begins with Bulbus — though one doesn't begin dinner with dessert." Finding him in low spirits and inclined to yawn, because it was long since he had made any money, he gives him a playful poke : " Harkye, Bulbus," says he, " will you lend me your aid, so that you aiid I may not serve our country for naught ? " The other, as soon as he heard the words " not for naught,'' exclaims, " I'll follow wherever you like to lead ; but what's your game ? " Thereupon he promises him forty thousand sesterces in the event of Oppianicus's acquittal, and asks him to approach the others with whom \\e. was in the habit of gossiping. He himself, the contriver of the whole scheme, goes on to sprinkle a drop of seksoningi (Gutta) on his vegetable (Bulbus) ; ^ after which our vegetable friend was not ' The joke, if so it may be called, turns on the name Bulbus, which properly means a bulb, or vegetable. Vegetables were not eaten at the beginning of a meal ; hence the wrongheadedness of the fellow ! ° This is said to be a further development of the joke. " Conditor," according as the accent is long or short, may mean either " he who THE SPEECH OF CICERO FOR CLUENTIUS. 73 thought at all a bitter pill by tliose who had swallowed a little morsel of hope from his conversati on, \1 0ne day passed, and then another, and the matter still seemed rather unsettled; there was no appearance of an intermed- iary agent or a voucher for the payment of the money. On this Bulbus with cheerful countenance accosts the fellow in his most winning manner : " Holloa, Paetus '' — for this was the surname which Staienus had chosen for himself from the illustrious house of the .^Elii, lest if he called himself a Ligur he might be thought to be using a tribal rather than a family surname ' — " Holloa, Psetus," says he, " about that business of which you spoke to me ; they are asking me where the money is." Then did this most unconscionable impostor, who made his living by his profits in courts of justice, and who was already brooding in his hopes and imaginations on the money which he had stowed away, knit his brows. Call to mind his features and those unreal expressions he used to put on. He complains that Oppianicus has played him false ! He who was one huge piece of roguery and falsehood, and who by zealous application and by a sort of knavish craft had given an additional flavour to the vices with which nature had endowed him, roundly asserts that spices" (condio), or "the founder" (condo.) This "conditor" "pours a drop of liquid over his onion," i.e., associates Gutta with Bulbus. Perhaps however Cicero is innocent of this subtlety, and by "conditor" simply meant "contriver." * Staienus had the impudence to call himself C. iSlius Psetus Staienus. Cicero hints that when he "adopted himself" (Brutus, 68. 241) into the iElian family he was careful to choose the cog- nomen Paetus instead of Ligur — both being names of branches of the family — lest it should be thought that he belonged to the bar- barous tribe of Ligurians. Cp. Pro Sest. 69, of Ligus, ' ' qui cognomen sibi ex ^liorun.imaginibus adripuit, quo magis nationis eius esse quam generis videretur." 74 THE SPEECH OF CICERO FOR CLUENTIUS. XXVIL73. 74J Oppianicus has defrauded him, and says prove it, that in the open voting which order of the day he would give his vote for A rumour had spread on the bench tl been some talk of bribery among individual jurors/ for the matter had not been kept as secret as it should have been, while on the other hand it was not so notorious as on public grounds it deserved to be. When all were thus in the darkness of uncertainty, the shrewd Cannu- tius, who had somehow got wind of the fact that S^ienus had been bribed, thinking that the final arrangement had not yet been made, resolved of a sudden to ;|;et the marshal to proclaim that the pleadings of cou(isel were finished. On this Oppianicus felt pretty confiyent, be- lieving as he did that Staienus had completed his arrangements. The number of jurors about to delibe- rate on the verdict was thirty-two. Sixteen .votes would ensure acquittal, /and forty thousand ses^^rces appor- tioned to each individual juror ought to make up that number, crowned as it would be with a seventeenth from Staienus himself in the hope of rewards still greater. But. asJ i Tck would h ave it, S taien us was n o t present in court when this sudden move \tas madej h e was defend- m p; some case nr c}\y\pr before a ciyil com piissioner. Habitus did, not mind this in the lekst, no more did Cannutius ibut it was different with Qppianicus and his advocate, L. Quinctiug- The latter being at the time a tribune of the plebs,jprotested in; most abusive lan- guage to C. Junius, the President of the Court, against allowing the jury to proceed to consider their verdict without Staienus ; and thinking that the attendants were purposely remiss in the matter o^ summoning him, he himself left the public trial and /went to the tribunal THE SPEECH OF CICERO FOR. CLUENTIUS. 75 ^ere Stajenus was en ga ggfl" in a. c ivil suit, dissolved it_ in _virtue of his tribupirtan prerogative^ and brought the a bsentee back w ith "him into court.. \VTh e jury rise to r etire, but not before Op pi anicus*Tiad sa id, as he was then entitled, that he wished the Y9ti'" g to proceed o penly : h is object being ttiat Staienus might know how much he owed and to whom he owed it The jurors were of different sorts. A few were venal, but these few were all in a rage ; just as people who make a practice of taking bribes at political elections' are always dead against the candidates whose coin they believe has been embezzled, so here those of the same stamp among the jury had come into court with wrath against the accused in their hearts. The rest thought him eminently guilty ; but they were waiting to see how those would vote whom they believed to have been bribed, when they would be able to determine who was likely to have been guilty of corrupt practices. Lo and behold ! the issue of the lot a ssigns the responsibility of voting first to B ul hus. Staienus. a nri aiitta ! a nd everybody is on the tiptoe of expecta- tion to see what verdict these unprincipled and mercenary jurors would record. Without any hesitation all three of them vote " guilty." On this people began to feel un- easy, and were not quite clear about what had been going on. Then the shrewder ones among them, men who belonged to the good old school of jury- courts ^ beint; alike_uflahle to acquit a m o st ffilty cr iminal, and un- willing without further inquiry to vote right off' for a ' Held in the Campus Martius (in campo). ° " Re ilia incognita primo condemnare. " " Primo" here is opposed to " pauIo posterius patefacta re " (sec. io6). They had an opportu- nity of learning the facts at the further hearing of the case (ampliatio), and then they voted guilty, ("primo" = " prima actione." Cp. 76. XXV IIL 76. 76 THE SPEECH OF CICERO FOR CLUENTIUS. 77. conviction_ in .a case where it had come to b e suspected Vhaf hrihpj:iJa ad been bro u ght into the fie ld a gainst the defendant, held the charge not proven. Certain austere persons again, who believed that the motives with/which each individual acted ought to be taken into ^account, thought that there was nothing for it but t^/stand by their previous decisions, in spite of the fact'' that it was only on receipt of a bribe that others luKi returned a righteous verdict ; and so they found hitn guilty. Five there were in all whom inadvertence, or compassion, or some suspicion or other, or interested/motives, prompted to vote for the acquittal of your guiltless fri end.) Immediately on the conviction of Oppianicus, L. Quinctius, an out-and-out demagogue, who made a practice of filling his sails with every wind of hearsay and the gossip of public meetings, believing as he did that the senatorial administration of justice was by this time falling out of favour with the people, imagined that he had before him an opportunity of making the un- popularity of that order the means of his own aggran- dizement He delivers one or two impetuous and viru- lent harangues, crying out with the authority of a tribune that jurymen had taken bribes to convict an innocent man, and representing that the issue involved the for- tunes of every individual, that there was an end of trial by jury, and that no one who was at enmity with a man of wealth could possibly be beyond the reach of danger. People who were ignorant of the whole affair, never having set eyes on Oppianicus, and believing that an excellent and thoroughly respectable person had been Verr. ii. 1 . 26, " non prima iudicare " opp. ampliare ; and Lh-y xliii. 2. 6, "bis ampliatus, tertio absolutus est reus." — H. N.) THE SPEECH OF CICERO FOR CLUENTJUS. 77 undone by bribery, began in all the heat of suspicion to canvass the matteEjQcenly and to demand an investiga- tion into the factsJ- It was at this very time that Staienus came by night, at the summons of Oppianicus, to, -the house of that worthy citizen T. Annius, an intimate friend of my own. You all know the rest^^how Oppi- anicus tackled him about the money, haw'he promised to give it up, how their whole conversation was heard by reputable persons who had ^ the time intentionally placed themselves in conc^lment near at hand, how the matter was brought to light and dragged before the court, and the^^-Vrhole sum forcib ly extortsd frnip Staienus. _ ^ /' The character of our friend Staienus had come to be so well known and so thoroughly familiar to people at large that no discreditable suspicion failed to fit in with it. Those who attended the meetings did not know that it was money which he had engaged to expend on behalf of the . defendant that he had kept to himself; nor indeed were they in the way of getting that informa- tion. They were aware that there had been some talk of bribery at the trial. They were told that the accused was innocent of the charge on which he was condemned. They found that Staienus had voted for his conviction ; and they inferred from what they knew of the fellow that he had not done so for nothing. A like suspicion attached to Bulbus, to Gutta, and to some others. I avow, therefore — and I may do so without danger now that I am speaking before this honourable court ' — XXIX. ' This seems to be the most satisfactory rendering of hoc pra- sertim in loco, which is a complimentaiy phrase like hi tales viri. Or it might possibly be, " now that I have come to this part of my speech ; " in which case the orator means to say that now that he has 78. 79. 7S THE SPEECH OF CICERO FOR CLUENTIUS. / that owing to the general ignorance which had hitherto prevailed I do not say of the life but even of the name of Oppianicus, owing also to the existing belief that it was a crying shame that an innocent man should have been undone by bribery (a suspicion which was further confirmed by the bad character of Staienus and the dis- repute of certain jurors who resembled him), and owing moreover to the agitation of L. Quinctius,' a man who not only held high office but was personally well fitted to inflame the passions of a mob — I avow, I say, that the strongest feelings of hatred and prejudice were kindled against the court that heard the case. Nor do I forget that.C_J.uniuSi_wliflJjad ^resided_at^the trial, was . cast into th e still r agin e ; furnace of pQBilla r displeasure. Though an ex-aedile and, one to w hgm^gengra) npir'"" 80. pointed asa co ming praeto r, he was thnistjhrt h from the legal prof ession — aye, an d from public Ijfe.itself — and that not by deliberate discussion but by unreasoni ng clamour. And I feel no regret that I am appearing on behalf of Aulus Cluentius now rather than then. His case remains the same in its absolute unchangeableness, but the incidental unfairness and prejudice have disappeared : the element of disadvantage in the circumstances of the period can do us no harm, while we have still the benefit of the intrinsic merits of the case. Accordingly I am sensible of the attention with which I am now being heard, not only by those with whom lies the prerogative of judgment, but also by those who have had an opportunity of stating the facts, now that " truth has lifted up her voice against calumny" (88), the invidia can no longer do his client's reputation any harm. ' Quinctius was counsel for Oppianicus, but the phrase causam agere seems here to allude to his proceedings out of court. Cp. " hsEC turn agente Quinctio," io8. THE SPEECH OF CICERO FOR CLUENTIUS. 79 only to form an opinion. But if I had been speaking in those days, I should not have been listened to ; not that the case would have been different — it would have been the same as now — but because the occasion would have been different. To show you that this is indeed so, let me ask who at that time would have dared to say that Oppianicus was guilty of the charges on which he was convicted, and who dares now to say he was not? Who at that time could have shown that it was Oppi- anicus who bribed the tribunal, and who can deny it now ? Who at that time would have been permitted to point out that it was only after he had been already condemned by two verdicts of quite recent date that Oppianicus was brought to trial, and is there a man that will endeavour at this time of day to refute the state- ment? When therefore we have eliminated the preju- 81. dice which time has toned down, my words have depre- cated, and your uprightness and impartiality have put far from the deliberate inquiry i^^ the truth, what residue have we left in the case ? |Jwe are agreed that' bribery went on among the jury, and the question concerning it is, with whom did it originate, with the prosecutor or with the defendant ? What the former says is this : " In the first place, as I was prosecuting on the most weighty charges, there was no need for bribery,.; secondly, as the man whom I brought before the court had been already condemned, not even bribery could^have saved him ; and lastly, even had he been acquitted, my personal fortunes would not have suffered in any way." What has the defendant to say for himself? " In the first place, I stood in awe of the multitude and the enormity of my misdeeds in themselves ;' secondly, I saw that when Fabricius and Scamander were convicted as accomplices 8o THE SPEECH OF CICERO FOR CLUSNTIUS. 82. 83. '. '. '. : — z '. in my crime I was also involved in their condemnation ; and lastly, my position was so critical that my personal fortunes were entirely dependent on the issue of one single trial." J / / \ Well then, since Oppianicus had many weighty motives for bribing the court, while my client had none it all, let us try to find out where the money came from. /Cluentius has kept his account-books with the mosj/ scrupulous accuracy, and in this we have a guarantee that nothing can have been either added to or taken/away from his possessions without being noticed.' /For eight whole years you have been engaged in the study of this case, discussing, examining, and raking up jn the account-books of others as well as of my client everything that bears on the subject ; and all the time '' yon have come upon no vestige of bribery on the part of JCluentius. But in track- ing Oppianicus have we only /footprints to guide us, or can we under your leadership/ get at the very place where our quarry made his lair? /There are deposited in one place six hundred and forty thousand sesterces ; they are deposited with a man of the most shameless daring, who is moreover a member/of the jury. What more would you have ? Do I he^r you say that it was Cluentius and not Oppianicus who/set Staienus on to bribe the bench ? Why the n were CluM itius and Cannutiiiaindiff erent about his absence when the lury were goin ^ to consider their , ' It need hardly be remarked how utterly valueless this argument is. Nothing could have been easier than for Cluentius to conceal all traces of bribery in his account of his expenditure. " Cum interea. Roby, 1732. 3 Vobis ducibUs, B. and K. Classen reads " iudicibus.'' Mr. Nettle- ship {/ourn. Phil. No. xvi., 1879), proposes to read " vobis iudi- cibus," comparing "sine duce uUo, sine indice," in Verr. ii. I, 105. THE SPEECH OF CICERO FOR CLUENTIU^ 8t verdict ? W jiy did not th ose who had given t>te irfb iifitti. insist on Staien us being in his place wh e n they ^Itf ^ ^ti** i ury to retire ? Why was it Oppianicus who cbmplained, and Quinctius who importuned ? '^hy hay the tribune's. prerogative. IQ _be asserted injordCT.jto^rarevent^ ^he ju^^ fr om retiri pg .to^ eiTberate without St^nus ? But you say Staienus voted for his convictidni Yes, for this was the guarantee he had given Bul^s and the others to make them think that Oppianicus had played him false. If therefore you have a motive' for bribery, the money, and Staienus with all his rogyery and daring on the one side, and on the other honour, a reputable life, no sus- picion of any such expenditure, nor any motive for bribery, now that the truth has been revealed and all misrepre- sentation done away with, suffer the infamy of that dis- graceful deed to pa^ over to the side on which the other enormities ^lurve been fastened ; suffer prejudice to depart at lengthirom one to whom, as you see, no offence has ever been nought homej But I shall be told that it was not to bribe the bench that Oppianicus gave Staienus the money, but to bring about a reconciliation." Is it possible that a man of your insight, Accius, and of your experience and practice can make this statement ? People say that he has most wisdom to whom the appropriate idea spontaneously suggests itself, while he comes next who falls in with the happy thoughts of his neighbour. 3 The reverse holds good of folly ; for he who has no ideas at all is not such a fool as he who approves his neighbour's foolish notions. ■ Quifecuniam dederant, B. and K., who also continue the inter- rogation to effectum est. ' I.e., between Cluentius and Oppianicus. 3 Cp. Hesiod, Works and Days, 293, sqq. XXXI. 84. 82 THE SPEECH OF CICERO FOR CLUENTIUS. 8S. 86. This idea of effecting a reconciliation Staienus hit upon while the matter was still of recent date, and when they had him by the throat ; or, if you like, the hint was given him by P. Cethegus, as was commonly reported at the time. You may remember that what men said at the time was that Cethegus, hating the fellow as he did, and being disinclined to allow his villany to stalk abroad in the state, and seeing_ r noreover tha t one who had ad- mitted that he h ad while a juror secre tly and ^rregularlv recei ved a bri be, f rom a de fendant cou ld not possibly gsc ape iustice , had given him insincere advice. If Cethegus showed a want of principle in this, I suppose he only wanted to get rid of an opponent ; ' but if on the other hand the situation was such that while it was im- possible for Staienus to deny having received the money nothing could be more dangerous nor more discreditable than to confess for what purpose he had received it, then no fault can be found with the advice which Cethegus gave. But there is a difference between the position in which Staienus was then and that in which you are now, Accius. In his really desperate plight anything he could have said would have been more creditable to him than if he confessed to the fact ; but I wonder that you should have actually revived the very farce which was at that time hooted down and rejected. Why, how could Cluentius have become reconciled to Oppianicus, or to his mother either ? " Their names stood entered in the official ' Probably for the sedileship, for which Staienus was at present a candidate (sec. 69). Cethegus wanted him to be convicted and so got out of the way. — " Si fuit " =if (38 THE SPEECH OF CICERO FOR CLUENTJUS. 165. It was alleged by the prosecution that A. Cluentius made away with Vibius Capax by poison. There is op- portunely present in court a most reputable and in every way worthy person, the Senator L. Praetorius, whose hospitality and intimate friendship this Vibius enjoyed, with whom he lived at Rome when he was taken ill, and at whose house he expired. I assert that he died intestate, and that the succession to his estate was by edict of the praetor assigned to Numerius Cluentius, his sister's son, whom you see here in court, a most honourable and emi- nentlj^stimable young man, and a Roman knight to boot.' 166. 167. The second charge of poisoning states that poison was, at the instigation of Habitus, prepared for young Oppia- nicus here, when a large company was breakfasting together, as is the custom at Larinum, on the occasion of his marriage ; and that when it was being offered him in honey wine, Balbutius, one of his friends, intercepted it on its passage, drank it, and instantly expired^/ If I were to treat this matter as if I had an accusation to dis- pose of, I should state at greater length what I am now cursorily mentioning in my speech. What has Habitus ever done that this monstrous deed should not be thought quite foreign to his character? And had he any reason for being in such fear of Oppianicus, seeing he could not have said one single word in this case,^ while, as you will presently be made aware, ing ; but so anxious was Cluentius to maintain his reputation, that Cicero was instructed to reply to these trivial side-issues. ' By this reference to tlft man's will, Cicero evidently wishes to prove that his client can have had no motive for attempting his life. But as the nephew of Cluentius came in for the inheritance, it might perhaps have been as well to have omitted this argument. ' It is useless to say this means that his youth would have prevented Oppianicus from bringing an action ; for time would soon have THE SPEECH OF CICERO FOR CLUENTIUS. 139 so long as his mother lives my client can never be free from prosecution ? Was it that he wanted his case to lose no element of danger, but rather to have a fresh charge added on to it ? / What kind of a time was that to choose for administering poison, on such a day and before such a number of people ?/ By whom, moreover, was it offered ? ; Where was it procured ? / What about the stoppage of the cup ? f And why was it not offered afresh ? / There is much that might be said ; but I shall not lay myself open to the charge of wishing to say some- thing while saying nothing.'. The facts are their own j 168, defence. 1 1 assert that the youth spoken of, who, accord- ing to youj expired immediately after draining the cup, did not die on that day at all/ It is a monstrous accusation and a shameless falsehood. / I say that when he came to the breakfast he was suffering from indigestion/ he in- dulged his appetites too freely at the time, as young men like him will do ; and he died in consequence after a few days' illness. Who will vouch for this ? /The same man who will vouch for his own sorrow — his father — the young man's father, I repeat He who for his grief of heart could have been induced by a very faint suspicion to come forward on the other side as a witness against A. Cluentius, gives him the support of his testimony instea^/ Read it. And do you, sir, if you please, stand up for a"J little, and endure the pang of this indispensable allusion ; on which I shall not linger any longer, since by acting like the excellent man you are, you have not permitted healed this defect. May not the words mean he had no need to fear Oppianicus because he knew he could not have the shadow of a case ? Nihil periculi below is not really against this view, periculum being a formal word. ' The figure called Omission is a favourite with orators. ». I40 THE SPEECH OF CICERO FOR CLUENTIUS. LXI. 169. 170. 171. your sorrow to involve the guiltless in the calamity of a base less accusati^y^^ I I have still one similar charge remaining, gentlemen, which will enable you thoroughly to appreciate the truth of what I said in the beginning of my speech — that whatever misfortune A. Cluentius has seen during these past years, whatever anxiety and trouble he has had at this time, has been entirely due to the machinations of his mother. / You allege that Oppianicus lost his life by poison given him in a piece of bread by one M. Asellius, an intimate friend of his, who acted, you say, at the instigation of Habitus. 1 Now I have first to ask what motive Habitus had for wishing to take the life of Oppianicus ?/ I admit, indeed, that they had been at enmity, j But it is either from feelings of fear or of hatred that men desire the death of their enemies/ and what fear, I ask, could have prompted Habitus to seek to perpetrate such a monstrous crime ? / Was there any reason why any one should be afraid of Oppianicus now that he had been punished for his crimes and banished the country ?/ What had he to fear? /The attack of a ruined man? Impeachment by a felony Harm from the evidence of an outlaw/ If again it was because he hated his enemy that Habitus desired his death, was he such a fool as to think that the life which Oppianicus was then living — condemned, an out- law, forsaken by allf — was worthy of the name, when, owing to the monstrosity of his character, no one would receive him into his house, no one would go near him, no one would speak to him, no one would look at him ?.', And was it to this man that Habitus grudged his life ?! If he hated him bitterly and with all his heart, ' He was banished from Rome (175) Civitas stands for the body olch'es, jroXif, city. THE SPEECH OF CICERO FOR CLUENTIUS. i+i ought he not to have wished him to live as long as possible ? /Was his enemy to hasten his death — death that in his troubles was for him the only refuge from misfortune ? I Why, had he {)ossessed a spark of spirit or courage, he would have died by his own hand, as many brave men in like afflictions have done before him -i and wherefore would his enemy wish to put in his way what he ought to have desired for himself? 1 As it is, I wonder what evil death has brought him ! Unless in- deed, carried away by idle tales, we imagine that he is suffering in the nether world the punishment of the wicked, and that he has fallen in with more enemies there than he left behind him here ;/ that by the avenging furies of his mother-in-law, of his wives, of his brother, and of his children, he has been driven headlong into the place where the ungodly have their home.' If, however, these representations are untrue, as all must know they are, what, I ask, has death taken from him save the sensation of mise ry ?\ iBut again, by whom was the poison administered ? By M. Asellius. What connection had he with Habitus ? n None ; in fact, as he was very intimate with Oppianicus, he was more probably even on bad terms with him./ Did he then choose the person who, as he knew, was ' There is abundant evidence in the writings of Cicero that he did not disbelieve in the immortality of the soul and a future state ; and we must accordingly infer that he is speaking here merely as the rhetorician. In the De Senectute, and in the Tusculan Disputations (Book I.), he states the arguments of Plato on behalf of the belief; and the Somnium Scipionis in De Repub. vi. concludes with an allusion to the rewards to be enjoyed in the future state by those who have been faithful servants of their country in this life. Cp. too his eulogy of Servius Sulpicius in the Ninth Philippic, especially the beginning of ch. vi. ; also the concluding sections of the Fourteenth. J72. 'lxti. 142 THE SPEECH OF CICERO FOR CLUENTIUS. 173. 174. anything but friendly to himself, and who was an intimate acquaintance of his intended victim, to be the instrument of his own crime and of the jeopardy of his foe? Then why do you, whom filial piety has prompted to under- take this prosecution, suffer this Asellius to go so long unpunished ?/ Why have you not followed the example of Habitus,' and so secured, by the conviction of the man who proffered the poison, a previous verdict pre- judicing my client?? Again how incredible it is, gentle- men, that poison should have been administered in a piece of bread ! how unusual ! how strange ! / Could it diffuse its effects more readily thus than in a draught," or more widely when concealed in a portion of bread than if it had been entirely dissolved in a liquid ?/ Could it make its way into the veins and into every part of the body more quickly when taken in food than when taken in drink?/ Would it be more likely, in the event of discovery, to escape detection in the bread than in the draught, where it would have been so mixed as to be altogether incapable of separation?/ "But he died a sudden death." ' Even had that been the case, it would nevertheless, owing to the frequency of such occurrences, furnish no adequate ground at all for suspecting poison/; and even if there were room for such a suspicion it would nevertheless fall on others before my client/ But it is just here that men lie in the most shameless way, as you ' Habitus first impeached Scamander and C. Fabricius ; and their conviction, according to Cicero, involved the guilt and con- viction of Oppianicus. ° Baiter exhibits this passage in such a way as to make it un- necessary to suppose an ellipse (e.g., in pane dari) after " faciliusne potuit quam in poculo," though the sentence is awkward to handle in English. The predicate of all three clauses is " potuit in venas atque in omnes partes corporis permanare." THE SPEECH OF CICERO FOR CLUENTIUS. HJ will see if you will listen to the story of his death, and of how after his death a charge against Habitus was raked up by his mojljg^j Wandering an outlaw from place to place, and finding ^75. no entertainment anywhere, Oppianicus betook himself to C. Quinctius, in the Falernian territory ; ■ there his illness began, and he remained for a long time seriously indisposed. Sassia, who was with him, under the idea that the purity and legitimacy of the marriage tie had been set aside by her husband's conviction, was holding closer intercourse with Sex. Albius," a lusty yeoman who used to keep company with her, than her husband, with all his looseness, could have endured in the days of his prosperity ; and much of this Nicostratus, a faithful slave of Oppianicus, very inquisitive and very truthful, is said to have reported to his master. Meanwhile Oppianicus began to recover. Unable to put up any longer with the unconscionable conduct of the Falernian yeoman, he set out for Rome, where he used to have some hired lodgings outside the city gates/; but falling from his horse he is said to have struck his side violently, in bad health as he was, and to have died a few days after reach- ing the city in a fever. Such, gentlemen, are the cir- cumstances of his death. Either they involve no suspicion! at all, or, if they do, it hangs upon some domestic tragedy comprised within the four walls of his hou^jjj \ On his decease that abominable woman began at once to lziil 176. plot against her son. She resolved to hold an inquest on ' The Ager Falernus was a district in the north of Campania, lying between the Massic hills on the borders of Latium and the river Vulturnus. It was here that the choicest wines of ancient Italy were grown (Horace, Od. ii. 3, 4 ; iii. I, 41). » S. T. have Attius. '44 THE SPEECH OF CICERO FOR CLU^NTIUS. iier husband's death. Having bought from A. Rupilius, who had been the medical attendant of Oppianicus, one Strato — as if forsooth she entertained the same design as Habitus when he bought Diogenes — she gave out that she intended to examine this Strato by torture, as well as Ascla, one of her own slaves ; and she further called on young Oppianicus to give up for like exami- nation the slave Nicostratus, whom she suspected of having been too communicative in his excessive fidelity to his master. At that time Oppianicus was but a boy ; and being told that it was about his father's death that the inquest was to be held, he did not dare to refuse, though he believed the slave had been well disposed to his father and was so also to himself. The friends and guest-friends of Oppianicus and of the woman herself are called together in large numbers, men of reputation and of every kind of distinction ; and in the rigid inquiry which ensues qll sorts of instruments of torture are brought into requisition. The slaves were wrought on both by hope and by fear to make them, say something on the rack ; but I suppose it was the high character of the spectators, and the intensity of the torture,' that led them to hold by the truth and to protest that they had nothing to tell. So by advice of the friends * B. and K. bracket the difficult words "et vi tormentorum," though there seems to be no MS. authority for so doing. It is surely possible to believe that, without meaning any reflection on the witnesses, which would be quite inconsistent with what he says in the context, Cicero is here stating sarcastically what was obviously not the real reason of the obstinacy of the slaves under torture, in place of what was, viz., their consciousness of innocence. That examination by torture often had an opposite effect to what was intended is evident from such passages as Tac. Ann. iv. 29, ( " etiam si tormenta pgrvicacia servorum contra evenissent." THE SPEECH OF CICERO FOR CLUENTIUS. 145 the inquiry was adjourned for that day. After a con- 177. siderable interval they are summoned a second time; the examination is begun over again, and all the most powerful and agonizing tortures are applied. Unable to stand it any longer, the witnesses expostulate." The bloodthirsty and unnatural woman is beside herself with rage at the utter disappointment of her designs ; and though now the torturer and his very instruments were wearied out, she refused to desist. Then one of the spec- tators, a man whom his country had honoured with high office, and who was personally of the most exalted worth, remarked that he saw her object was not to find out the truth, but to force them to make some false deposition. With this the rest agreed, and so it was unanimously resolved that, in their opinion,^ the inquiry had gone on long enough. Nicostratus is given back to Oppianicus, and Sassia herself departs with her people for Larinum, grieved at the thought that her son would now surely be beyond the reach of danger. Not even the fictions of suspicion, she reflected, far less a regular accusation, could touch him ; and not even his mother's secret plot- tings, to say nothing of the open attack of his enemies, had been able to do him harm. On her arrival at Larinum, she who had pretended that she was fully convinced that Strato had in time past administered poison to her hus- band, forthwith made him a present of a shop in the town, equipped and fitted up for the practice of medicine. [Tior one, two, three years Sassiakept quiet ; it seemed 178. • B. and K. read adversari, which is nearer the MS. adversarii ; but surely aversari is much more suitable to the context. " The bystanders are shocked, and can scarcely endure it any longer ; " Sassia raves ; and then one of the company expostulates. * For similar slightly pleonastic constructions, cp. Pro Lege Manilla, sec. 38, statuetis quid existimetis ; also sees. 1 1 and 46. LXIV. 146 THE SPEECH OF CICERO FOR CLUENTIUS. 179. B.C. 69. 180. as if she were praying and desiring that some disaster might come upon her son, rather than planning and contriving it. In the interval, during the consulship of Q. Hortentius and Q. Metellus, 'designing to draw him on to this prosecution, though his attention was otherwise occupied and nothing was further from his thoughts, she betrothed to Oppianicus here, against his will, the daughter whom she had borne to her son-in-law, in the hope that these matrimonial bonds, as well as the fetters of an expectant heir, would put him in her power. About this very time Doctor Strato committed a domestic theft, aggravated by murder, under the following circumstances. There was in the house a cabinet which he knew con- tained a considerable sum in gold and silver. So by night he killed two of his fellow-slaves in their sleep, and flung them into the fishpond ; and then, cutting out the bottom of the box with his own hands, he removed (150,000') sesterces and five pounds' weight of the gold, one of the slaves, a mere boy, being privy to the deed. Next day the theft was discovered, and suspicion was directed exclusively against the slaves who were missing. But on noticing that the bottom of the box had been cut out, men began to ask by what means it could have been done ; and one of Sassia's friends recollected that he had lately seen for sale at an auction, among other small effects, a bent crooked little saw, with teeth all over it, by which he thought the part removed could have been cut out To be brief, on inquiry being made of the collectors,' it is discovered that the saw in question had ' The figures have dropped out of the MSS. ' The coactores were employed to collect the money due by those who had made purchases at sales by auction. It is interesting to remember that Horace's father was employed in this capacity (Hor. .Sat. i. 6. 86). THE SPEECH OF CICERO FOR CLUENTWS. 147 found its way into the hands of Strato. This aroused suspicion ; and when Strato was openly charged with the crime, the boy who had been his accomplice became greatly terrified and made a clean breast of the matter to his mistress. The bodies were found in the fishpond. Strato was thrown into prison, and furthermore the money, though by no means all of it, is discovered in his shop. A criminal investigation is instituted into the theft What else can one suppose ? Do you tell me that after the pillaging of the box, the abstraction of the money (which was not all recovered), and the murder of the slaves, it was concerning the death of Oppianicus that the inquiry was appointed ? Can you satisfy any one of this ? Is there anything more improbable that you could have brought forward ? To pass over other points, was inquiry held into the death of Oppianicus three years after his decease? Aye, and even on this occasion, inflamed by her former hatred, she again demanded Nicostratus for a groundless examination. At first Oppi- anicus refused ; but afterwards, when she threatened to take away her daughter and alter her will, a most faithful slave, to humour a most bloodthirsty woman, was by him not given up for examination but simply handed over to the executioner. Well then, after an interval of three years, the inquiry into her husband's death was reopened.' Who were the slaves examined ? A fresh charge was alleged, I suppose, and suspicion was directed against fresh persons — Strato and Nicostratus ? What ! had not these men been ex- amined at Rome ? Can it be that you, Sassia, with guilt now to aggravate the distemper that had before infuriated your woman's heart, after having held an inquiry at Rome ft" I18I. er I 3^ LZV. 182. ' Reading " agitata denuo II habebatur." I4S THE SPEECH OF CICERO FOR CI.UENTIUS. 183. \ at which it had been determined, on the representation of T. Annius, L. RutiHus, P. Saturius, and the other honour- able men, that the thing had evidently ' gone on long enough — can it be, I ask, that three years afterwards, without inviting the presence, I shall not say of any man, or you might perhaps retort that the yeoman was in attendance, but of any respectable man, you attempted, about the same matter and on the same persons, to hold an inquiry that involved capital consequences to your son ? Or do you say (for a possible argument occurs to me though you must remember that it' has not yet been put forward) that it was when investigation was being made into the theft that Strato made a confession about the poison ? In this very way, gentlemen, does it happen that truth raises her head out of the depths to which depravity ofttimes weighs her down, and the defence of innocence that has been stifled breathes again. Either cunning rogues have no daring in proportion to their invention, or they whose audacity is conspicuous and prominent have no knavish arts by which to back it. But if craft were daring or audacity cunning, resistance would be hardly possible. Wasthe theft not committed ? Why, nothing was more notorious at Lari- num. Then did suspicion not attach to Strato ? Why, the saw was his accuser, and the boy who had been his accom- plice informed on him. Was this not the object of the inquiry ? What other ground, then, was there for holding it ? Will you not have to say what Sassia said more than once at » Cp. note on sec. 177. = B. & K. have " tanietsi adhuc non esse hoc dictum mementote ; " but an argument might be derived for the other reading (tametsi ab hoc non esse dictum) from the sentence at the end of this section, from which it would appear that Sassia had made this statement though Accius had not availed himself of it for the defence. THE SPEECH OF CICERO FOR CLUENTIUS. i49 the time — that when investigation was being made about the theft Strato while on the rack made a statement about the poison ? Here we have an instance of what I said above : the woman has audacity enough and to spare but is wanting in prudence and tact Several minutes of the depositions made at the inquiry are brought forward; they have been read aloud and communicated to you, and they are the very minutes which she said were attested by the signature of the witnesses at the inquiry. But in them not a syllable about the theft is to be found. It never occurred to her first to write out Strato's deposition about the theft, and afterwards to tack on some statement about the poison which might seem not to have been elicited by direct questioning but to have been >vrung from him in his agony. The subject of the inquiry is the theft. The suspicion of poisoning had been done away with by the previous inquiry, as, indeed, the woman herself had admitted ; for after deciding at Rome, on the repre- sentation of her friends, that it had gone far enough, she had during the three years that followed shown a fond- ness for this Strato above all her slaves, holding him in high esteem, and conferring on him every mark of favour. Well then, when inquiry was being made about the theft — the theft, namely, which beyond all dispute he had committed — did he without saying a word upon the subject of that inquiry make a statement at once about the poison ? If he did not speak of the theft when one might have expected him to do so, did he never even at the end, or in the middle, or at least in some part or other of the inquiry, say a single word about it ? You see now, gentlemen, that with the same hand by which, if opportunity were given her, she would gladly slay her son, this abominable woman has forged her ac- 184. 188. LXVI. I50 THE SPEECH OF CICERO FOR CLUENTIUS. 186. 187. count of the inquiry. And even with regard to it, can you mention the name of any single individual who wit- nessed it with his hand and seal ? ' You will find no one, except perhaps a person whose character is such that I should prefer his being brought forward to no name being mentioned at all. What say you, T. Accius ? Are you actually bringing before the court a capital charge, a criminal information, a written instrument involving the fortunes of another, without giving the name of any voucher for that instrument, of any one who sealed it, of any one who witnessed its signature ? And will this honourable court admit the weapon which you have drawn forth from a mother's bosom for the ruin of a most guilt- less son ? But enough ; the document has no weight. As to the inquiry itself, however, why was it not reserved for the court ? why not for the friends and guest-friends of Oppianicus, whom she had invited to be present on the former occasion ? why not at least for the existing conjuncture ? What was done with these men ? I ask you, Oppianicus, to say what happened to your slave, Nicostratus. You were shortly about to impeach my client, and you ought therefore to have brought him to Rome, allowed him to give information, aye, and pre- served him in safety for examination, for this court, and for this occasion. As to Strato, gentlemen, I have to inform you that he was crucified after having had his tongue cut out, as is known to every one at Larinum. It was not her own evil conscience that the distraught woman feared, it was not the detestation of the townsmen, it was not the public scandal Just as if every one were not to be a witness to her crime, what she dreaded was lest the dying words of a slave should testify against her. Reading " dicite, qui obsignarit, unum aliquem nominatim. " THE SPEECH OF CICERO FOR CLUENTIUS. 151 Gracious Heaven ! what a prodigy have we in this woman ! Where in the whole world can we point to such a monster of iniquity, where to such a hateful and horrible abomination as having ever had its birth ? Surely you see now, gentlemen, that it was only under constraint of the weightiest reasons that I spoke as I did of a mother at the beginning of my speech. Yes, there is no form of evil or of crime that she has not from the first desired, longed for, contrived, and put into execution against her son. I say nothing of her first outrageous lust, I say nothing of her accursed union with her son-in-law, I say nothing of how a mother's passion drove a daughter from her husband's arms ; all this, though it brought dishonour on the whole family, did not go so far as to put my client in danger of his life. I do not arraign her second " marriage with Oppianicus, by contracting which — but not till he had given her his children's lives in pledge — she plunged a family in mourning for the death of those who should have been her step-sons. I pass by the fact that, though she knew that it was Oppianicus who had pro- cured the proscription and assassination of A. Aurius, whose mother-in-law once and whose wife but a short time before she herself had been, she chose for herself a habitation and a home in which the tokens of her husband's death and his despoiled estate would day by day be present to her eyes. My first charge relates to the criminal attempt at poisoning by Fabricius, which has now at length been brought to light. What was even at that early date matter of suspicion to men in general, and of incredulity to my client, now appears evident and obvious to all : the mother cannot of course have been 188. 189. ' Alteris, second of two. It was really her third marriage, but he is leaving her union with the father of Cluentius out of account. J 52 THE SPEECH OF CICERO FOR CLUENTIUS. 190. LXVII. 191. kept in ignorance of that attempt' Oppianicus contrived nothing apart from the woman's co-operation. Had he acted alone, she would surely have left him after the de- tection of his design, and left him not as one separating herself from a wicked husband, but as fleeing from a most ruthless foe ; she would surely have turned her back for all time upon a house that was a very sink of iniquity. But so far was she from doing this that from that time forth she lost no opportunity of hatching some plot or other, devoting all her powers of thought every day and every night to the destruction of the son of her bosom. ^ And first, by way of nerving Oppianicus there for the prosecution of her son, she bound him to herself by gifts and presents, bestowing on him her daughter's hand in marriage, and holding out the hope of succession to her estate. Thus whereas in most cases, when unaccustomed enmity has sprung up among kinsmen, we see divorces and the severing of relationships ensue, this woman thought that no one would be strong enough for the pro- secution of her son except one who had previously taken his sister to wife. New relationships often lead others to lay aside long-standing animosities ; she thought that in the bond of relationship she would have a pledge that would give a backbone to her feud. Nor did she bestow all her pains on securing a prosecutor for her son ; she ' In this complex sentence illud primunt queror serves to introduce the charge of complicity against Sassia contained in the words non est . . . celata, which again resume the clause banning guod iam turn recens. Mr. Nettleship suggests a full stop at veneni, which would bring out the construction more clearly. The reference in quod . . . videtur cannot be to the guilt of Fabricius, which is said to have been self-evident (17) ; and recens stands for recenti re. ' For the position of mater, cp. Verg. Eel. v. 23, .lEn. viii. 370. THE SPEECH OF CICERO FOR CLUENTIUS. 153 also pondered with what weapons she could furnish him. To this end it was that by means of threats and promises alike she worked upon the slaves ; to this end did she hold those everlasting and most barbarous inquests on the death of Oppianicus, which were at last brought to a close not by any moderation on her part but by the in- fluence of her friends. In the same iniquity originated the inquiries held three years afterwards at Larinum ; in the same distraction of mind the forgery of the depositions there made ; in the same frenzy also the execrable ampu- tation of Strato's tongue. She it was, in short, who found and got ready all the materials of this elaborate indict- ment. And after despatching thus equipped to Rome a prosecutor for her son, she herself tarried awhile at Larinum in order to seek out and hire the witnesses ; but on being informed of the near approach of the defendant's trial, she hastened hither with all speed, for fear that the prosecution might fail in diligence, or else that the witnesses might want money, or that she might perchance miss seeing this man's garb of mourning, and his unkempt appearance, a spectacle so dear to her mother's heart. But what, think you, were the circumstances which at- tended her journey to the capital ? I live in the neigh- bourhood of Aquinum and Fabrateria,' and from many citizens I have heard and ascertained the facts. What crowds ran together in these towns ! What loud groans were uttered alike by the men and by the women ! The idea of a lady of Larinum actually setting out for Rome from the very shores of the Adriatic, with a crowd of at- tendants and a store of money, in order to be able more 192. LXVIII. ■ These towns were not far distant from Arpinum, the place of Cicero's birth. All three were in Latium. 154 THE SPEECH OF CICERO FOR CLUENTIUS. 193. 194^ UCIZ. 195. readily to compass in a capital trial the ruin and destruc- tion of her son ! There was, I might almost say, not a man among them but thought that every spot on which she had set her foot would require to be freed from pollution ; not a man but thought that the footprints of that crime-stained mother were a profanation to the earth, the mother of all. So in no town was she permitted to make a halt. Inns there were in abundance, but nowhere was there found a host who did not shun the contagion of her presence. She preferred to entrust herself to the solitude of night rather than to any city or hostelry. And thinks she now that any of us are unaware of her schemes, her intrigues, her daily stratagems ? Full well we know those whom she has approached, to whom she has promised money, whose honesty she has attempted to shake by proffers of reward ; aye, and we have heard of her nightly sacrifices, which she imagines are a secret, of her impious prayers and her abominable vows, by which she makes the very gods in heaven witnesses to her crime ; not knowing that it is piety, and holy fear, and the prayers of the righteous that avail to turn their hearts, not the defilements of superstition, nor the blood of victims sacrificed for the furtherance of crime. Her unnatural frenzy I am confident the immortal gods have spurned from their altars and their shrines. Do you, gentlemen, whom fortune has appointed to play the part of another Providence ' to A. Cluentius here ' Readiag quasi aliquos deos, which is Halm's correction. The consensus of MSS. seems to be in favour of ' alios deos, ' to which *quosdam* was probably afterwards prefixed to soften down the figure, quidam being often used by Cicero in construction with nouns with the force of quasi or tanquam ^e.g., ruina quaedam atque tempestas, sec. 96). THE SPEECH OF CICERO FOR CLUENTIUS. 155 for all the rest of his life, ward off from the person of her | son the monstrous inhumanity of this mother. Men ' have often on the bench pardoned the offences of children out of compassion for their parents : do not you, we pray you, sacrifice to his mother's unnatural cruelty the life this man has most virtuously led, especially as you may i see a whole township arrayed in evidence against her. | You must know, gentlemen,. that all the men of Larinum j — incredible though it is, I say it in all truth — all who were ! able made the journey to Rome, to give my client, so far ! as in them lay, the support of their sympathy and numbers I in this his hour of danger. Their town has at this time : been committed to the care of the women and children, and is at present under the protection, not of its ordinary defenders, but only of the general peace which prevails in Italy. ' And yet even they, no less than these whom i you see here in court, are kept day and night in suspense 1 and disquietude about the issue of this trial. For in their j 196. view it is not on the fortunes of a single townsman that ; you are about to give your verdict, but on the standing | of the whole municipality, on its credit, and the whole | body of its interests. Gentlemen, the defendant is con- 1 spicuous for devotion to the public good of his town, for kindliness to the inhabitants individually, for righteous- ness and conscientiousness towards all men ; and he moreover maintains in his own circle the position of high rank bequeathed him by his forefathers in such a way as to emulate their gravity, their force of character, their - Mr. Nettleship thinks that Madvig's reading ' non donuslicis copiis esse tutum ' may be the tnie one. The vulgate ' in dom. cop. esse totum ' might be rendered ' is wholly in the keeping of the forces of the hearth and home : ' but it is difficult to see the point of ' communi Italiae pace.' 156 THE SPEECH OF CICERO FOR CLUENTIUS. 197. 198. popularity, their generosity. And therefore do they in the name of the community pronounce his eulogy in language which not only expresses their deliberate opinion of his character, but bears witness also to their solicitude and sorrow ; and while this eulogy is being read I must ask you who have brought it to stand up.' From the tears of those present, gentlemen, you may infer that when they passed this decree every member of the town council was also in tears Again as to the neighbours, what en- thusiasm, what incredible good-will, what anxiety do they display ! They have not sent in writing the panegyric they decreed, but have instructed men of the highest reputation, well known to all of us, to be present here in large numbers and to pronounce his eulogy in person. Illustrious citizens of Ferentum " are here in court, and men of the Marrucini no less distinguished than they ; from Teanum Apulum and from Luceria you see honour- able Roman knights come to speak his praise ; from Bovianum and from the length and breadth of Samnium most flattering panegyrics have been forwarded, and men of the highest consideration and renown have also come in person. And as to those who have property, business ' The laudatU, or witness to his character by the fellow-townsmen of Cluentius, was here read. For these laudationes, cp. note on sec. 56. " Ferentum (or Forentum, as in Hor. Od. iii. 4. 16) was a town in Apulia ; its name survives in the village Forenza, which lies on a hill in the vicinity. A more common reading is Frentani, and is perhaps more appropriate as being the name of the Samnite tribe in whose territory Larinum lay. They inhabited a strip of country along the shore of the Adriatic, south of the Marrucini, who are named next; For the Teanum in Apulia, cp. sec. 27. Luceria lay due south of it, while Bovianum was in the heart of the Samnite territory. THE SPEECH OF CICERO FOR CLUENTIUS. 157 avocations, or grazing stock ' in the territory of Larinum, j honourable men of the highest distinction, it were hard ' to speak of their solicitude and anxiety. Few, I think, LXX. are loved by one as this man is by them all. How sorry I am that L. Volusienus, a man of the greatest distinction and worth, is not present at this trial ! Would that P. Helvidius Rufus, an eminently illustrious Roman knight, could be here when I speak his name ! Sleepless day and night in my client's interests, while he was instructing me in the case he fell seriously and dangerously ill ; and yet even in his illness he is as anxious about the de- fendant's safety as about his own recovery. His evidence and eulogy will make you aware of no less enthusiasm on the part of that excellent and honourable senator Cn. Tudicius. Of you, P. Volumnius, I speak in the same expectation but with greater reserve, inasmuch as you are on the jury in this case. To be brief, the whole neighbourhood, I tell you, cherishes the greatest good- will towards the defendant. Their unanimous enthu- i^'- siasm, solicitude, and painstaking care ; my exertions — and I have pleaded this case from beginning to end , single-handed as I have long been wont to do ; and also the justice and clemency of this court, are combated by one woman, the defendant's mother. And what kind of mother? You see how she is carried along in all the blindness of cruelty and crime. No depths of dishonour have ever proved a hindrance to her lust. In the de- pravity of her mind she has overturned in the foulest manner all the binding ordinances = of society, too infatu- ' Res pecuarias, to which the MSS. pecuniarias has been altered, on the ground that Samnintn was a great district for pasturage. * This expression, though probably including the perrersion of relationships referred to below, has a more extended meaning. 158 THE SPEECH OF CICERO FOR CLUENTIUS. 20O. 201 LZZI. ated to be called a human being, too outrageous for the name of woman, too unnatural for that of mother. Aye, and she has ever confounded the designations of kinship as well as the name and ordinances of nature. Her son- in-law's wife, a step-mother to her son, the mistress of her daughter's husband, she has, in a word, sunk so low as to have nothing left her in the likeness of man except her external form. Now by your hate of crime, gentlemen, debar a mother from access to the life-blood of her son. Inflict on her who gave him birth the pang, incredible as it is, of seeing the deliverance and triumph of her offspring ; suffer the mother to depart vanquished by your justice, and so deprive her of the joy of being bereft of her child. And again, by that love which, if true to your nature, you have for honour, truth, and virtue, raise at length from the ground the suppliant now before you, after so many years of groundless prejudice and peril. Now for the first time since the avaricious conduct of others fanned that prejudice into flame has he begun to take heart, and in reliance on your impartiality in some degree to breathe again, forgetting fear. His all is in your hands ; many there are who desire his deliverance, but you alone are able to secure it Habitus entreats you, gentlemen, and beseeches you with tears not to sacrifice him to the pre- judice which in courts of law ought to be of no avail ; not to the mother whose vows and prayers you must put far from your minds ; not to the execrable Oppianicus, a convicted criminal now in his grave. But if at this trial the stroke of some disaster lay my guiltless client low, then will he verily in his wretchedness — if indeed he continue to live, which it will be hard for him to do — often bitterly lament that the poison of Fabricius was THE SPEECH OF CICERO FOR CLUENTIUS. 159 ever detected. For had it not been exposed at the time it would have been to this most miserable man, not poison, but the antidote of his many sorrows ; aye, and his mother might perchance have followed in his funeral procession, counterfeiting grief for the death of her son. But as it is what good will have been done, save that it will seem as if his life was preserved only for affliction out of the midst of deathful snares — only that in death he might be robbed of the sepulchre of his fathers ? Long enough has he been in trouble, gentlemen ; years enough has he suffered from prejudice. None save her who gave him birth was ever so bitter against him but that we may believe his vengeance is now fully satisfied. Do you who are just towards all men, who tenderly sustain all those that are cruelly assailed, preserve A. Cluentius. Restore him to his townsmen unharmed ; give him back to the friends, the neighbours, the guest-friends of whose zeal for him you are witnesses ; lay him under an eternal obligation to yourselves and to your children. To you, gentlemen, this appertains, to your dignity, your clemency ; with justice do we require you to deliver at last from his distresses a most worthy and altogether guiltless man, and one who to very many people is most beloved and dear. Thus will you give all men to know that, while prejudice may find a place in public meetings, truth reigns supreme in courts of law. 202. APPENDIX. SOME REMARKS ON THE TEXT. Classen has, I think, successfully demonstrated that where the Turin palimpsest fails, his MSS. A and B (S and T in Orelli's edition) must on the whole (though not absolutely without exception), be made the basis of the text. Some valuable readings are preserved in quotations made from the speech in antiquity. § 5. Quint, ix. 3. 85, ponatur, r^htly as against A and B, punialur. § II. Quint, iv. 1. 79, repetam, perhaps rightly, with vulgate, as against petam of A and B. § 15. Quint, iv. 2. IDS, timuisse rightly as against A B and many other MSS. J 32. Quint viii. 4. 11, per alieni corporis vim atque cruciatum, as against mortem of MSS. This may possibly be right, vim atque cruciatum = violent torture. Comp. Verr. v. 1 38, mortem cruciatumque, which perhaps = a death of torture. 5 98. I have discussed this passage in the Journal of Philology, vol. 8, p.p. 245-6 ; but do not feel sure that I am right. § 143. Quint, v. 13. 47, nimirum tibi istud lex ipsa renuntiavit. Here A and B have sed et nimirum. I suspect Quint, is right, and that sed et is a corrupt repetition of the preceding est. \ 166. Quint, ix. 2. 48, hxc pluribus dicerem. MSS. pluribus verbis. I suspect that Quint, is right. 5 167. Quint, ix. 3. 37, quae porro interceptio poculi. More idiomatic than the MSS. reading quae deinde i. p. On the other hand in 173 the MSS. reading is to be preferred to that of Priscian, x. p. 520 (Keil), celerius/tf/z«J comestum. . . permanaret : and so it is in 70 to that of Rufinianus, p. 44, Halm, dem iudicibus, mihi igitur nihil quxretur ? 1 62 APPENDIX. Orthography of the Proper Names as given in the best MSS. supported or not by inscriptions or otherwise. Ambivius, C. I. L. (Corpus Inscr. Latinarum), 6. 200 (a.d. 70), 2284. Ancharius, C. I. L. 2. 531, 3 often, 6. 1056: Ancarius, .1.. 1690. Asellius, C. I. L. 2. 535, 6. 1056, a/. Asuvius, C. I. L. 6. 200 (70 A.D.) : Asuia, C. I. L. i. 1204. Cannutius, C. I. L. 5 often : 3 ter. Caulius, C. I. L. 3, D. xxi. foil., 7. H93. Ceitis, C. I. L. 3. 4107. 4 often. Cmsidius, C. I. L. 3. 2296, 5. 3105, i. 480. Decidius, C. I. L. 5. I187, I188. Mairinius, C. I. L. 3. 1301. Orcevius, C. I. L. I. 134, 135, 1541 : Orcivius, C. I. L. 5. 8152 : Orcivia, C. I. L. 5 ter: Orchivius, C. I. L. 3. 2082. Poplicius, C. I. L. I. 635, 1465 : Poblicius, C. I. L. I. 454 : Publkius, C. I. L. I. 943. Rupillius, C. I. L. I. 1421. Safinius, C. I. L. I. 1471. Sasius, C. I. L. 5. 4943, 4967. Apparently the lady's name was Sasia, not Sassia. Arusianus p. 494 (Keil) quotes ".S'l Asia ( = Sasia) huius mater Habiti." In Quint, iv. 2. 105, A (a good MS.) has Osiae=Sasiae. Tudicius, C. I. L. 5. 2515, 2712. COGNOMINA. Cafpadox, C. I. L. 2. 224. Gallicanus, C. I. L. 2. 4115, 1709 ; 3. 42, 3084. Geta, C. I. L. I. 486 (B.C. 54) ; 3. 905, 6179, at. Gutta, C. I. L. 4. 1093 (Pompeii). An Oscan name. See Appian, i. 90 (Mommsen, Unteritalische Dial. , p. 253). Habitus, C. I. L. 4. 1457, 1762 j 7. 1336 (525) : Abitus, C. I. L. 7. 1336 (Soi-2)- The word apparently = fat. Senator, C. I. L. 3. 3591,6150(35); 5. 4724. Probably a mere cognomen in the Pro Cluentio. H. N.