This speech was delivered for Q. Roscius Gallus; the date is uncertain, perhaps 77 B.C.
The translation is by J.H. Freese (1930). Click on the L symbols to go to the Latin text of each section. Click on ** to go to the translator's footnotes.
[1.] L [1] ** . . . As one of the best of men, no doubt, and of singular integrity, he attempts to use his own account-books as evidence in his own cause. Those who desire to prove the payment of a sum of money ** by the account-books of an honourable man are in the habit of saying : "Should I have been able to corrupt such a man so as to persuade him to make a false entry in his ledger to oblige me? " I am waiting to see how long it will be before Chaerea uses the following language : "Should I have been able to induce this hand, full of treachery, and these fingers of mine to make a false entry ** of a debt? " But if he produces his account-books, Roscius also will produce his. The entry will be found in Chaerea's books, but not in those of Roscius. [2] Why should greater credit be given to Chaerea's books than to those of Roscius. ** Would Chaerea have made such an entry of money disbursed unless he had been authorised by Roscius ? Would not Roscius also have made an entry of money disbursed to him, if he had authorised Chaerea to make it? For it is as dishonourable not to enter what you owe as it is disgraceful to set down as due from another what is not due. For the account-books of one who has not entered what is true are as much to be condemned as those of one who has written down ** what is false. But see how far I am ready to go, relying upon the ample means I possess for proving my cause. If Gaius Fannius produces his accounts of money received and expended, set down in his own interest and in accordance with his pleasure, I have no objection to your giving judgement in his favour. [3] What brother or father thinks so highly of his brother or son as to regard as confirmed whatever either of them has entered in his books? Roscius will regard it as confirmed ; produce your books ; what you may have been convinced of, he will be convinced of; what you may have approved of, he will approve of. A little time ago we asked for the account-books of Marcus Perpenna and Publius Saturius ** ; we now urgently call for yours alone, Gaius Fannius Chaerea, and have no objection to judgement being given according to them in your favour ; so why do you not produce them ? Does he not make up his books ? On the contrary, most carefully. [4] Does he not enter small amounts in his ledgers? On the contrary, every sum. Is this debt unimportant and trifling ? It is 100,000 sesterces. ** How is it that such a large ** sum of money lies neglected and is omitted from the books ? how is it that 100,000 sesterces are not entered in the ledger ** ? Oh, immortal gods ! to think that there can be a man so audacious as to dare to claim a sum which he is afraid to enter in his account-books ; as not to hesitate to swear to a debt in court ** which, when not on oath, he did not like to enter in his ledger; as to endeavour to persuade another of something which he cannot prove to his own satisfaction !
[2.] L [5] He says that I am in too great a hurry to express my indignation about the account-books ; he admits that he has not this item entered in his ledger, but maintains that it can be seen by anyone in his day-book. Are you then so devoted to yourself, have you such an intense admiration of yourself, as to ask for money not on the strength of your account-books, but of your day-books? It is presumptuous to quote one's ledger as a witness ; but is it not sheer madness to produce rough notes of one's entries and erasures? [6] But if day-books have the same value, the same exactness, and the same authority as account-books, what is the use of making a ledger, of putting everything down, of keeping an ordered list of transactions or a record of old documents? But if, because we have no faith in day-books, we have adopted the practice of compiling ledgers, ought authority and sanctity to be attributed before the judge to what is considered by all to be feeble and unimportant ? [7] What is the reason why we write our notes carelessly but make up our ledgers carefully ? What is the reason? It is because day-books last for a month, ledgers for ever; day-books are immediately destroyed, ledgers are religiously preserved ; day-books embrace the memory of a moment, ledgers attest the good faith and conscientiousness which ensure a man's reputation for all time ; day-books are ill-arranged, ledgers are put together in order. This is why no one ever produces day-books in court ; it is ledgers that are produced, it is account-books that are read.
[3.] L You, Gaius Piso, distinguished as you are by integrity, virtue, dignity, and authority, would not venture to make a claim for money on the strength of day-books. [8] As for myself, I ought not to dwell any longer on matters as to which custom is perfectly clear; but I ask this question which is extremely pertinent to the matter in hand: How long is it, Fannius, since you entered this item in your day-books? He blushes, he does not know what to answer, he cannot invent anything on the spur of the moment. "It is now two months ago," you will say. Yet it ought to have been entered in the ledger of receipts and expenses. "It is more than six months." Why then did this item remain so long forgotten in the day-book ? What pray, if it is more than three years ago ? How is it that, when all other people who make up account-books transfer their accounts nearly every month into their books, you allow this item to lie neglected in your day-book for more than three years? [9] Have you arranged all the other items of receipts and expenses in the ledger or not? If you have not, how do you make up your books ? if you have, why is it that, when entering all the other items in order, you left this item, which was an extremely large one, for more than three years in your day-book? You did not want it to be known that Roscius was indebted to you. Why then did you put it down? "You had been asked not to enter it." Why then did you put it down in your day-book ? **
But although I consider this is sufficiently convincing, I cannot feel satisfied unless I obtain evidence from Fannius himself that this money is not owing to him. What I am attempting is a great task ; what I am promising is difficult ; unless Roscius shall have the same man both as his opponent and his witness I do not want him to win his cause.
[4.] L [10] A definite sum of money was owing to you, which you now claim before a judge, and there was also an engagement to pay a third part of it in addition as appointed by law. ** In this case, if you have claimed a sesterce more than is owing to you, you have lost your cause, because a judgement is one thing, arbitration is another. A judgement deals with a definite sum, ** arbitration with an indefinite sum. We come before a judge on the understanding that we either gain or lose the suit entirely ; we come before an arbitrator with the expectation, neither of losing everything nor of getting as much as we asked.
[11] The terms of the formula themselves are evidence of this. What is the formula in a judgement? It is precise, severe, and simple: IF IT IS SHOWN THAT 50,000 SESTERCES OUGHT TO BE PAID. ** Unless the claimant can prove that the sum of 50,000 sesterces to a farthing is owing to him, he loses his cause. What is the formula in arbitration? It is mild and moderate: AS MUCH AS IT SEEMS FAIR AND JUST SHOULD BE GIVEN. Yet in this case the claimant admits that he is asking for more than is due to him, but he says that he will be satisfied and more than satisfied with what is awarded him by the arbitrator. Thus the one has confidence in his cause, the other has not. [12] This being so, I ask you why, as you did, in regard to this money, to these very 50,000 sesterces to which your account-books {tabulae } bear proof, you entered into an "agreement," ** why you accepted an arbitrator ** and made your claim in such a manner ** that it might be fixed how much it "seems fair and just" should be given or promised on the other side. Who was the arbitrator in this matter ? Would that he was in Rome! He is in Rome. Would that he were on the bench! He is. Would that he were sitting as Piso's assessor! It is the same Piso himself. Did you accept the same man as arbitrator and judge ? Did you allow the same man unlimited freedom of action and also tie him down to the narrowest formula of the agreement? Who ever obtained all that he claimed before an arbitrator? Nobody ; for he only claimed what it seemed fair and right should be given him. You have now come before a judge with a claim for the same amount as that for which you approached an arbitrator! [13] Others, when they perceive that their cause is likely to fail before a judge, have recourse to an arbitrator, but Fannius has ventured to apply to an arbitrator from a judge! The man who, as regards the sum of money, assuming that his account-books were trustworthy, has accepted an arbiter, has passed judgement that the money was not due. **
Two parts of the cause are now finished. Fannius admits that he did not pay the money, ** he does not say that he entered it as paid, since he does not quote his account-books. His only remaining alternative is to say that he made a stipulation. ** For I cannot imagine how there can be any other way of claiming a fixed sum of money. [5.] L You made a stipulation: when? on what day? at what time ? in whose presence ? who says that I made a promise? Nobody. [14] If I were to finish my pleading at this point, I should think that I had done enough to prove my good faith and carefulness, enough for the cause and the question at issue, enough for the formula and the "engagement," enough even to convince the judge why a decision ought to be given in favour of Roscius. A fixed sum of money has been claimed ; an "engagement" has been given for a third part of it. This money must either have been a loan or a literal or a verbal contract. Fannius admits that it was not lent; his ledgers prove that it was not a literal contract, the silence of witnesses proves that it was not a stipulation. Need I say more? [15] But since the defendant is a man who has always thought very little of money, but has considered his reputation to be most sacred ; since the judge is a man whose favourable opinion of us we desire as much as his decision in our favour ; since the distinguished and brilliant assembly of counsel ** present ought to make us respect them as if they were one single ** judge, we will speak just as if all civil and equity actions ** and all private duties were included and comprehended in the formula which is the basis of this discussion. What I have said before was necessary ; what I am going to say will be voluntary. Then I was addressing myself to a judge, now I address myself to Gaius Piso; then I was pleading for an accused person, now for Roscius ; my former speech was prepared in order to win a cause, the latter to save a good reputation.
[6.] L [16] You, Fannius, demand money from Roscius. What money? Speak boldly and frankly. Was it owing to you from the partnership, or money which had been promised and offered you by my client's generosity ? The one is a serious and hateful charge, the other less important and easier to deal with. Is it money owing on the strength of the partnership ? What do you say? This is a charge that cannot be lightly borne nor carelessly repelled. For if there are any private actions that most deeply affect a man's reputation - I had almost said his existence - they are the three following : actions covering trust, guardianship, partnership. ** For it is as treacherous and criminal to cheat the partner who has combined with us in business as it is to break faith, which holds society together, and to defraud one's ward who has come under our guardianship. [17] This being so, let us consider who it is that has cheated and deceived his partner ; for his past life will afford us silent, but weighty and convincing, evidence either for or against him. Quintus Roscius? What say you? If hot coals, when thrown into water, are at once cooled and extinguished, do not the fiery arrows of slander, when brought up against a life of the greatest innocence and purity, immediately fall to the ground and lose their fire? Roscius cheated his partner! Can such an offence be fastened on this man? a man who, so help me the god of truth! (and I say so quite fearlessly) has in him more good faith than art, more truth than learning ; a man whom the Roman people respects more highly as a man than as an actor, who by his talent is most worthy of the stage as he is of the senate by his purity of life. [18] But why am I so foolish as to speak of Roscius before Piso? I am praising him at some length - an unknown man, no doubt! Is there any man in the world of whom you have a better opinion? Is there anyone whom you think more virtuous, more modest, more refined, more ready to oblige, or more generous? Well? do you, Saturius, who appear against him, hold a different opinion ? In this cause, as often as you had occasion to mention his name, did you not each time declare that he was an honourable man and that you spoke of him with respect ** - a compliment usually paid only to a most distinguished person or a most intimate friend? [19] In this you seemed to me to be absurdly inconsistent, in praising and attacking the same man, in calling him at one and the same time a most excellent man and a thorough rascal. Did you mention the same man out of respect, call him most distinguished, and at the same time accuse him of having cheated his partner? But, I suppose, your praise was a tribute paid to truth, the accusation was a concession to influence. It was you who were speak ing in praise of Roscius, as you really thought him to be; it was at the pleasure of Fannius that you were pleading your cause.
[7.] L Roscius cheated! This is in truth an absurdity for anyone to hear or think of. What, I ask, if he had found some nervous, crazed, helpless rich man, who was incapable of going to law with him? Even then it would be incredible. All the same, let us see whom he cheated. [20] Roscius cheated Gaius Fannius Chaerea! I beg and beseech you, who know them, to contrast their lives ; you who do not know them, look at their faces. Do not the head itself, and those clean-shaven eyebrows seem to reek of malice and proclaim craftiness aloud? If one can make a guess from the silent form of a man's body, does not Fannius seem to be composed entirely of fraud, trickery, and lies from the tips of his fingers to the top of his head? He always has his head and eyebrows shaved, that he may not be accused of having a single hair of an honourable man on him; Roscius has constantly portrayed him brilliantly on the stage - and yet he is not adequately rewarded with gratitude in return for his kindness. For when he plays Ballio, ** that most rascally and perjured pimp, Roscius really represents Chaerea ; that filthy, impure, and detested character is the image of Chaerea in manners, disposition, and life. It seems to me astonishing why he should have thought Roscius resembled him in fraud and wickedness, unless perhaps he noticed that he imitated him admirably in the character of the pimp. [21] Therefore I ask you, Gaius Piso, consider again and again who is said to have cheated and whom. Roscius cheated Fannius! What does this mean? A good man is said to have cheated a rascal, a modest man a shameless one, a virtuous man a perjurer, an inexperienced man a crafty knave, a generous man a greedy one ? It is incredible. Just as, if it were said that Fannius had cheated Roscius, it would appear probable, judging from the character of each man, that Fannius had acted like a rogue and that Roscius had been deceived owing to his want of caution, so in like manner, when Roscius is accused of having cheated Fannius, it seems incredible, either that Roscius strove to secure any advantage owing to his avarice or that Fannius lost anything owing to his good nature.
[8.] L [22] Such is the starting-point of this affair; let us see what happened afterwards. Quintus Roscius cheated Fannius of 50,000 sesterces. On what grounds? Saturius smiles, the cunning old fellow, as he thinks himself to be ; he says, on account of the same 50,000 sesterces. I see; nevertheless, I should like to ask why he was so intensely eager to have those sesterces ; for certainly such a sum would not have been enough to make it worth while for you, Marcus Perpenna, or you, Gaius Piso, to cheat a partner. Why were they worth so much to Roscius, is what I want to know. Was he in want? No, he was wealthy. Had he any debts? No, he had plenty of money. Was he a miser? No, even before he became rich, he was always most liberal and generous. [23] Good heavens! a man who refused to make a profit of 300,000 sesterces - for certainly he could and ought to have earned that amount if Dionysia ** can earn 200,000 - did he employ the greatest fraud, wickedness, and perfidy for the sake of obtaining 50,000 sesterces ? The first sum was immense, honourably acquired, agreeable to gain, his own property ; the second was paltry, sordid, distressing, depending on an action and a trial. In the last ten years Roscius could have made 6,000,000 sesterces ** ; he would not. The labour that could earn a fortune he undertook; the fortune it might have brought he rejected. He has never ceased to serve the Roman people ; he has long since ceased to serve his own interests. [24] Would you ever do this, Fannius? and if you could make such profits, would you not have mouthed and ranted until you had actually and in fact no breath left? Say now that you have been cheated of 50,000 sesterces by Roscius, who refused such vast, such stupendous sums, not because he was too lazy to work for them, but because he was so magnificently generous. Why need I say now, gentlemen, what I feel sure you are thinking ? Roscius cheated you in a partnership! There are laws, there are formulae established for every kind of action, so that no one can possibly be mistaken as to the nature of the injury done to him or the method of legal procedure to be adopted. For according to the loss, vexation, inconvenience, disaster, or injustice suffered by each individual, public formulae have been drawn up by the praetor in precise terms, to which every private action can be adapted.
[9.] L [25] This being so, I ask why you did not press Roscius to agree to an arbitrator in a case of partnership? ** You did not know the formula? But it was well known. Were you unwilling to bring an action against him the result of which might be serious? Why so? On account of your long-standing friendship? Why then do you attack him? On account of the man's integrity? Why then do you accuse him? On account of the gravity of the charge? Is this indeed really so? Will you secure the condemnation by a judge, who has none of the powers of an arbitrator in a matter like this, of the man whom you could not get the better of before an arbitrator, whose proper function it was to pronounce a decision upon it? ** Then either launch this charge where it is lawful to start an action ** or do not launch it where it ought not to be brought. However, your own evidence has already refuted it. For at the time when you refused to employ that formula, you indicated that Roscius had not been guilty of fraud against the partnership. Have you the account-books or not? If not, how can there be an arrangement? If you have, why not name ** the arrangement? [26] Say now that Roscius asked you to accept his own friend as arbitrator ! He did not do so. Say that he made an arrangement in order to be acquitted! He made no arrangement. Ask why he was acquitted. Because he was perfectly innocent and a man of the highest integrity. For what took place? You went to Roscius's house of your own accord ; you apologised ; you begged him to pardon your hasty action ** and to inform the judge ** that an arrangement had been come to ; you said that you would not appear again, and loudly declared that nothing was owing to you from the partnership. Roscius informed the judge and was acquitted. And yet do you still venture to mention fraud and theft ? Fannius persists in his impudence. "Yes," says he, "but he had made an arrangement with me." Of course, to avoid being condemned. But what reason was there why he should be afraid of being condemned? The fact was clear, the theft was obvious. [27] What was stolen? The advocate, with everyone on the tiptoe of expectation, begins to set forth the history of the partnership in the old actor. ** [10.] L "Panurgus," says he, "was the slave of Fannius, and became the common property of Fannius and Roscius." At this point Saturius first complained bitterly that Roscius had become joint-possessor for nothing of a slave who had been bought by Fannius and was his private property. Of course Fannius, that generous man, careless about money, overflowing with kindness, made a present of him to Roscius. I suppose so! [28] Since Saturius dwelt some little time on this point, I also must linger a little. You assert, Saturius, that Panurgus was the private property of Fannius. But I contend that he belonged entirely to Roscius. For what part of him belonged to Fannius? His body. What part belonged to Roscius? His training. It was not his personal appearance, but his skill as an actor that was valuable. What belonged to Fannius was not worth more than 4000 ** sesterces ; what belonged to Roscius was worth more than 100,000 sesterces, for no one judged him by his body, but valued him by his skill as a comedian ; his limbs, by themselves, could not earn more than twelve asses, but the training, which he had received from Roscius, yielded no less than 100,000 sesterces. [29] What a tricky and unworthy partnership, into which one of the partners contributes 4000 sesterces, the other something worth 100,000 sesterces, unless perhaps you are annoyed at having to draw 4000 sesterces from your strong box, whereas Roscius brought forth 100,000 as the result of his training and skill. What hopes, what expectations, what enthusiasm, what favour accompanied Panurgus on the stage, because he was the pupil of Roscius! All who were devoted to Roscius and admired him favoured and approved of the pupil; in short, all who had heard the name of Roscius thought Panurgus an accomplished and finished comedian. This is the way of the crowd ; its judgements are seldom founded on truth, mostly on opinion. [30] Very few appreciated what he knew, everybody wanted to know where he had learnt it. They did not think that anything irregular or wrong could come out of Roscius. If he had come from Statilius, ** although he might have surpassed Roscius in skill, no one would have looked at him; for no one would think that a good comedian could be made out of a very bad actor any more than a worthy son be born from an unworthy father. Because Panurgus came from Roscius he seemed to know even more than he did.
[11.] L The same thing also happened recently in the case of the comedian Eros. Driven off the stage, hissed and even insulted, he took refuge as at an altar in the house of Roscius, who gave him instruction, patronage, and his name; and so, in a very short time, he who had not even been considered good enough for the lowest class of actors attained a position among the most distinguished comedians. What was it that raised him so high ? [31] Only the recommendation of Roscius, who after this not only took Panurgus to his house that he might be spoken of as one of his pupils, but taught him with the greatest pains, irritability, and discomfort. In fact, the cleverer and more talented a man is, the more ill-tempered and worried he is as a teacher; for when he sees that a pupil is slow at grasping what he himself has mastered so rapidly, he is tormented. I have been led to mention these details at some length, in order that you might have an accurate knowledge of the conditions under which the partnership was formed.
[32] What followed next? "Panurgus, this joint slave," says Fannius, "was assassinated by a certain Quintus Flavius of Tarquinii. You appointed me as your agent ** to act for you in this affair. After the suit had been entered upon, ** and an action for damages had been appointed, you came to an agreement with Flavius without my being consulted." Was it for a half share or for the partnership as a whole ? To put it more plainly. Was it for myself alone, or for both of us? For myself alone ; it was in my power to do so, following many precedents ; it is allowed by law; many have done it; I have done you no injury by doing so. Ask for your share ; get paid and carry off what is due to you; let each demand the share that legally belongs to him and' do his best to get it. "Well, you managed your business very cleverly." Go you and do likewise. "You got a very high price for your half." Go you and do the same. "You got 100,000 sesterces." ** If this is really the case, do you also get 100,000 sesterces.
[12.] L [33] But this settlement of Roscius can easily be exaggerated by talk and public opinion ; in fact and truth you will find it moderate and inconsiderable. He obtained a farm at a time when the prices of country properties were low ; it contained no homestead and was entirely uncultivated ; to-day it is worth far more than it was then. There is nothing surprising in this. For at that time, owing to the disasters by which the republic was afflicted, no one's property was secure ; now, thanks to the kindness of the immortal gods, everyone's possessions are assured ; then the farm was uncultivated, without a building upon it; now it is highly cultivated and there is an excellent homestead. [34] However, since you are naturally so ill-disposed, I will never relieve you of that worry and anxiety. ** Roscius made a very good thing of the business and got a most productive farm ; what has that to do with you? Make any settlement you like as to your half share. Now he changes his tactics and tries to invent what he is unable to prove. "It was about the whole business," says he, "that you made a settlement."
The whole cause then comes to this: did Roscius make an agreement with Flavius only for his own share or for the partnership as a whole? [35] For if Roscius has received anything on account of the partnership, I admit that he ought to hand it over. "When he accepted the farm from Flavius, he made a settlement on behalf of the partnership, not for himself alone." Why then did he not give security that no one should ask an as ** more? Anyone who makes an agreement for himself alone leaves to the others their right of action unimpaired; one who makes an agreement for his partners gives security that none of them shall make any further claim. Why then did it not occur to Flavius to look after his own interests? I suppose he did not know that Panurgus belonged to the partnership. He did know it. He did not know that Fannius was Roscius's partner. He knew it perfectly well, for he was at law with him at the time. [36] Why then does he make a settlement without requiring a counter-stipulation that no one should make any further claim? ** Why does he retire from the farm without getting himself released from his action? Why does he manage so unskilfully as to neglect to bind Roscius by a stipulation and not to free himself in court from Fannius ? [37] This is the first argument, most convincing and weighty, which the conditions of civil law and custom in the matter of security supply ; I would develop it at greater length, if I had not other evidence clearer and more conclusive in the cause itself.
[13.] L But lest perchance you should say that I have promised what I cannot perform, it is you, you, I say, Fannius, whom I will rouse from your benches ** as a witness against yourself. What is your accusation? That Roscius made a settlement with Flavius on behalf of the partnership. When? Fifteen years ago. ** What is my defence? that Roscius made an agreement with Flavius for himself alone. Three years ago you made a counter-promise to Roscius. What? Read that counter-stipulation clearly. Listen, Piso, I beg. Against his will, shuffling backwards and forwards, Fannius is compelled by me to give evidence against himself. For what does the counter-stipulation proclaim? I PROMISE TO PAY ROSCIUS HALF OF WHAT I RECEIVE FROM FLAVIUS. These are your own words, Fannius. [38] What can you get from Flavius, if he owes nothing? Why does Roscius now make a counter-stipulation in regard to a sum which he obtained long ago? What has Flavius to give you, since his payment to Roscius covered all his debts ? Why, in a matter of so long ago, in an affair which is settled and done with, in the case of a partnership that is now dissolved, why is this new counter-stipulation introduced ? Who drew up and witnessed it? Who was the arbitrator? You, Piso; for it was you who requested Roscius to give Fannius 100,000 sesterces ** to compensate him for his trouble and labour, because he had been Roscius's agent, because he had given security and appeared in court on several occasions, on condition that Fannius would pay Roscius half of what he recovered from Flavius. ** Does not that counter-stipulation itself sufficiently prove that Roscius made an agreement for himself only ? [39] But perhaps you may think that Fannius made a counter-promise to pay Roscius half of what he might get from Flavius, but that he got nothing at all. What does that matter? You ought to consider, not the result of the claim, but the origin of the counter-promise. Nor, if he did not want to proceed against Flavius, did he thereby, as far as it depended on him, any the less declare his opinion that Roscius had compounded for his own share only, not for the association. But what if I make it clear that, after the old agreement of Roscius and after this recent counter-promise of Fannius, Fannius recovered 100,000 sesterces from Flavius on account of Panurgus? will he still any longer dare to scoff at the reputation of that most excellent man, Quintus Roscius ?
[14.] L [40] A little before I asked a question extremely pertinent to the matter: why did Flavius, when he was making an agreement about the whole action, neither get security from Roscius nor was released from the action of Fannius? But now I want to know the meaning of something strange and incredible: why, after he had come to a settlement with Roscius about the whole affair, did he make a separate payment of 100,000 sesterces to Fannius? On this point, Saturius, I should like to know what answer you propose to make ; that Fannius never got 100,000 sesterces at all from Flavius or that he got them on some other claim or for some other reason? [41] If for some other reason, what dealings had you had with him previously ? None. Had he been handed over to you as a debtor? ** No. I am wasting time uselessly. "Fannius " says he "did not get 100,000 sesterces from Flavius, neither on account of Panurgus nor any one else." If I prove that, after this recent stipulation of Roscius, you got 100,000 sesterces from Flavius, can you give any reason why you should not leave the court defeated and disgraced? ** [42] By whose evidence then shall I prove this? This affair, I believe, came into court. Certainly. Who was the plaintiff? Fannius. Who was the defendant? Flavius. Who was the judge? Cluvius. I must produce one of these men as a witness to say that the money was paid. Whose evidence would have the greatest weight? Indisputably, that of him who has been approved of by the general verdict [as judge]. Which of these three men, then, will you expect me to produce as a witness? The plaintiff? It is Fannius ; he will never give evidence against himself. The defendant? It is Flavius; he has been dead a long time; if he were alive, you would hear him speak. The judge? It is Cluvius. What does he say? That Flavius paid Fannius 100,000 sesterces on account of Panurgus. Consider Cluvius's position: he is a Roman knight ; his life: he is a man of the greatest distinction ; the confidence he inspires : you accepted him as judge ; his truthfulness : he said what he could and ought to have known. [43] Say now, say that a Roman knight, an honourable man, your judge, ought not to be believed! He looks about him, he is excited, he declares that we are not going to read the evidence of Cluvius. We shall read it. You are mistaken; you are comforting yourself with a vain and feeble hope. Read the evidence of Titus Manilius and Gaius Luscius Ocrea, two senators, most accomplished men, who heard it from Cluvius. ** { EVIDENCE OF TITUS MANILIUS AND GAIUS LUSCIUS OCREA. } Do you say that we ought not to believe Luscius and Manilius or Cluvius ?
[15.] L I will speak more clearly and more frankly. Did Luscius and Manilius hear nothing from Cluvius about the 100,000 sesterces, or did Cluvius tell an untruth to Luscius and Manilius? On this point I am calm and free from anxiety. I do not care greatly what you may fall back upon in reply, for the cause of Roscius is made sure by the strongest and most sacred evidence of most excellent men. [44] If you have already made up your mind which of them you would refuse to believe on oath, answer. Do you assert that Manilius and Luscius ought not to be believed ? Say so, if you dare ; such words are on a par with your obstinacy, your arrogance, and your whole life. What are you waiting for? to see how long it will be before I tell you that Luscius and Manilius are senators in rank, in years old men, in character, pious and religious, in private resources, rich and wealthy ? I shall not do this : I will not do prejudice to myself ** by rendering to them the well-deserved credit of a life passed with the greatest austerity. The need of my own youth for their good opinion is greater than the longing of their austere old age for any praise of mine. [45] It is for you, Piso, to deliberate and consider well, whether you should believe Chaerea, though not on his oath, in a cause in which he is personally interested, rather than Manilius and Luscius on oath in one with which they are not concerned. There remains the alternative, for him to maintain that Cluvius lied to Luscius and Manilius. If he does this - and he is impudent enough for it - will he disapprove of the man as a witness whom he approved of as a judge ? Will he say that a man ought not to be trusted, whom he himself has trusted ? Will he before a judge disparage the good faith as a witness, of the man before whom as a judge because of his good faith and integrity he produced witnesses? If I should propose him as a judge, he would be bound not to reject him, and shall he dare to find fault with him, when I bring him forward as a witness?
[16.] L [46] "Well, but," says he, "Cluvius informed Luscius and Manilius when he was not on oath." If he told them on oath, would you believe him? But what is the difference between a perjurer and a liar ? A man who is in the habit of lying becomes used to committing perjury. If I can persuade a man to tell a lie, I shall easily be able to induce him to commit perjury. For when a man has once deviated from the truth, he has no greater scruples about being persuaded to commit perjury than to tell a lie. For who is there that is stirred by an invocation of the gods though not by the attestation of his own conscience? ** Because the gods punish equally the perjurer and the liar ; for it is not the form of words, in which an oath is embodied, but the perfidy and wickedness whereby a snare is set for someone, that excites the wrath and indignation of the immortal gods. [47] But I on the contrary maintain that the authority of Cluvius would have less weight if he had spoken on oath than it now has, when he is not on oath. For then he might perhaps appear to ill-disposed persons to be too much of a partisan if they saw him acting as a witness in a cause in which he had been judge ; but now every citizen must consider him to be a man of the highest integrity and the greatest steadfastness, who tells his own intimates what he knows.
[48] Say now, if you can, if the fact, if the cause allows you, that Cluvius lied! Cluvius lied? Truth itself lays hands on me and compels me to stop and dwell upon this point for a few moments. What then was the origin of all these lies and where were they forged? Roscius of course is a cunning and crafty man. This is how he began to reason: "Since Fannius claims 50,000 sesterces from me, I will ask Gaius Cluvius, a Roman knight and a man of the highest distinction, to tell a lie for my sake, to say that an agreement was made which was not made, that 100,000 sesterces were given by Flavius to Fannius, which were not given." This is the first thought of a dishonest mind, of a pitiable disposition, of a lack of sense. ** What next? [49] Having plucked up courage, he approached Cluvius. What kind of man is he ? a trifler ? No, most serious. Pliable ? No, most firm. A friend of Roscius? No, a perfect stranger. After the usual greetings, he of course began to ask Cluvius in flattering and courteous language : "Will you tell a lie to oblige me ; in the presence of some of your excellent and intimate friends, say that Flavius settled with Fannius about Panurgus, although he did nothing of the kind ; say that he gave him 100,000 sesterces, although he did not give him an as." What was his answer? "Certainly, I will tell a lie for your sake gladly and with the greatest pleasure ; and, if at any time you want me to commit perjury, so that you may make a little profit, you may feel sure that I shall be ready. You need not have taken all this trouble to come to me; you could have arranged so trifling a matter through a messenger."
[17.] L [50] Great heavens! would Roscius ever have asked Cluvius to do this, even if he had had millions at stake in the trial, or would Cluvius have agreed to Roscius's request, even if his share were to be the whole booty ? By the god of truth, you yourself, Fannius, would hardly have the audacity to demand and the power to obtain such a promise from Ballio ** or one like him. As a matter of truth, it is false ; as a matter of common sense, it is incredible: for I am forgetting Roscius and Cluvius are men of most excellent character; for the moment I am assuming that they are dishonourable. [51] Roscius suborned Cluvius as a false witness. Why was this done so late? Why did Cluvius not speak at the time the first instalment was to be paid, instead of waiting until the second was due ? for Roscius had already paid 50,000 sesterces. Next, if Cluvius had been persuaded to make a false statement, why did he say that Flavius had given Fannius 100,000 rather than 300,000 sesterces, since, according to the counter-stipulation, half of the sum belonged to Roscius ? You can now understand, Piso, that Roscius claimed for himself alone, but nothing for the partnership. Since Saturius feels that this is quite clear, he does not venture to resist and fight against the truth, but immediately discovers another retreat for fraud and treachery. [52] "I admit," says he, "that Roscius claimed only his share from Flavius ; I grant that he left Fannius's share free and untouched ; but I maintain that what he obtained for himself became the common property of the partnership." No manner of reasoning can be more captious or scandalous than this. I ask: could Roscius have been able or not to claim his share in accordance with the partnership ? if he could not, how did he get the money ? if he could, how was it that he did not demand and get it for himself, for what is claimed for oneself is certainly not demanded for another? Is it not so? [53] If Roscius had claimed what belonged to the partnership as a whole, the money received would have been shared equally by all; now, since he demanded what belonged to his own share only, did he not demand what he then got for himself alone ?
[18.] L What is the difference between a man who carries on a suit himself and one who is appointed as agent to another? ** He who begins an action in person claims for himself only ; no one, unless he has been appointed agent, can claim for another. Do you say so? If Roscius had been made your agent, you would have got as your own what he received after gaining the suit; but since he claimed in his own name, did he get what he got for you, and not for himself? [54] But if anyone can claim for another, but has not been appointed his agent, I ask why, after Panurgus had been killed, and an action for damages had been begun against Flavius, why it was that you were made the agent of Roscius for that action, especially as you argued that, whatever you claimed in your name, you claimed for him, and whatever you claimed and got for yourself fell to the partnership. But if nothing of what you got from Flavius would have come to Roscius, unless he had appointed you his agent in the suit, nothing of what Roscius got for his share ought to come to you, since he was not appointed your agent. ** [55] Now, what answer will you be able to make to this, Fannius? When Roscius made an arrangement with Flavius for his own share, did he leave you your right of action or not? If not, how did you afterwards get 100,000 sesterces from Flavius? If he did, why do you claim from Roscius what you ought to claim and try to obtain yourself ? In fact, a partnership is very like an inheritance, a kind of twin sister ; just as a partner has a share in a partnership, so an heir has a share in an inheritance. As an heir claims for himself alone, not for his co-heirs, so a partner claims for himself alone, not for his co-partners; and, as each claims for his own share, so he pays for his own share only, the heir in proportion to the share for which he entered on his inheritance, the partner in proportion to the share for which he entered the partnership. [56] Just as Roscius could have given up his share in his own name to Flavius, so that you might not have the right to claim it, so, when he got his share and left you the right of claiming unimpaired, he ought not to share with you, unless perhaps, by a perversion of justice, you can rob Roscius of what belongs to him, while you cannot extort it from another. Saturius persistently maintains that whatever a partner claims for himself becomes the property of the partnership. But if this is so, confound it! what a fool Roscius was, who on the advice and authority of men learned in the law, made a precise counter-stipulation with Fannius that he should pay him half of what he got from Flavius, since, without any security or counter-promise, Fannius none the less owed it to the partnership, that is, to Roscius. . . .
* * *
1.(↑) The beginning of the first part and the end of the second part of this speech are lost. The words 'malitiam naturae crederetur' are taken to mean: how could a man, naturally so wicked, be believed ?
2.(↑) 'Expensum' or 'expensam pecuniam ferre' was the phrase for making an entry of money due with the debtor's name; 'acceptum referre' for an entry of money received. Strictly speaking, a "literal" contract ('obligatio litteris') to be valid, should be made by entry in the account-books of both parties. The technical name for this contract is 'expensilatio', upon which the present action is founded.
3.(↑) Nomen is an entry in the books, containing the names of debtors and creditors: here, 'falsum perscribere nomen' is to make a false entry of a loan to Roscius.
4.(↑) Apparently it was the general practice for the debtor to acknowledge the debt in his own books, but if he was an honest man, little harm would result from his omitting to do so.
5.(↑) 'Rettulit . . . perscripsit' the former is used of the debtor the latter of the creditor. 'Perscribere' is to write out in full.
6.(↑) Perpenna was one of the judge's assessors. Saturius is well spoken of elsewhere by Cicero, but it is difficult to see why their account-books were called for.
7.(↑) It should be remembered that four sesterces make a denarius, which, like the drachma, was the average wage of a day-labourer, the "penny a day" of the New Testament. This seems a very large sum, and it is suggested that the most Fannius claimed was 50,000 sesterces (see § 38).
8.(↑) 'Extraordinaria pecunia' means money not acquired in the ordinary way (e.g. by inheritance or by a gift). Here apparently it means the omission of an entry which ought to be made.
9.(↑) 'Codex (accepti et expensi)' was a carefully arranged account-book, to which the 'adversaria', daily notes of income and expenditure (day-book, waste-book) were transferred every month. It is often called 'tabulae', literally, boards covered with wax, which could be smoothed over and used again.
10.(↑) 'Jurare in litem' is to make an oath regarding the matter in dispute, when the iudex required confirmation of a man's assertions upon oath.
11.(↑) Fannius had entered the item in the day-book, but had not transferred it to the ledger; and according to Cicero this is not sufficient ground to base an action upon, as Fannius is doing.
12.(↑) The Lex Silia (the date of which is unknown) introduced a new 'legis actio' named 'condictio', synonymous with 'denuntiatio' (notice, summons) by which the plaintiff summoned the defendant to appear in court in thirty days to appoint a judge to try the matter. It only applied to cases of a fixed sum of money ('certa pecunia', that is, money promised by 'stipulatio' or 'expensilatio'), the action in this case being for the second instalment of 50,000 sesterces due from the 100,000 sesterces awarded by Pisoto Fannius. A condiction of this kind gave rise to a 'sponsio poenalis tertiae partis'. Before the process began the defendant, by a 'sponsio', undertook to pay, besides the sum claimed, a third of that sum as a penalty, and the same applied to the plaintiff, in case judgement went against him. This is the meaning of 'legitimae artis sponsio,' which was employed in the cases of a loan ('mutuum, data pecunia'), a literal contract ('expensilatio'), or a verbal contract ('stipulatio'). For 'sponsio' see note on Pro Quinctio, § 34.
13.(↑) After the arbitrator has given his decision.
14.(↑) Supplying oportere after dari, as it would appear in the formula.
15.(↑) Compromissum or transactio was a promise given by both parties to abide by the award of the arbitrator.
16.(↑) Cicero asks why he accepted an arbiter at all or made any agreement, when he had his own tabulae to rely on.
17.(↑) The various readings, with the exception of Mommsen's given in the text, have the si paret or pareat of the formula: "if it is shown . . ." 'Sic petieris' refers to putting the claim before an arbitrator, who would decide the question 'quantum aequius et melius'.
18.(↑) If the 'tabulae' were honest, there was no case for an arbitrator; to accept arbitration is a proof of fraud.
19.(↑) That is, it was not a loan. 'Adnumerare' is to pay down the money, hand it over as a loan ('adnumeratio, datio'). For 'expensum ferre' see note on § 1.
20.(↑) There were three methods of proof of a debt, none of which was employed by Fannius. The money was not paid in cash ('data, adnumerata') ; it was not a written acknowledgement of debt contained in the tabulae; there was no 'stipulatio' before witnesses.
21.(↑) 'Advocatio', the body of 'advocati', by whom may be meant either friends who attended the court to support the parties, or the assessors of the judge, elsewhere spoken of as "vos qui in consilio adestis," "hi quos tibi advocasti" (Pro Quinctio, ii. § 5, § 10).
22.(↑) 'Unum' : emphatic, in the sense of pre-eminent.
23.(↑) The first, as being supposed to be derived from the law, are 'legitima' ; the others, arising generally from the praetor's edict by virtue of his power of jurisdiction ('ex iurisdictione'), are called 'honoraria'.
24.(↑) If a man failed to perform his duty properly as a partner, an action called 'iudicium pro socio' (an action to regulate the accounts between partners) could be brought against him. Condemnation brought 'infamia' against the offender.
25.(↑) 'Honoris causa', also 'gratia'. The particular mention of a person's name was considered a mark of respect: cf. Pro Quinctio, § 28 "Flaccum imperatorem quem honoris gratia nomino," Pro Roscio Amerino, § 6 "L. Sulla, quem honoris causa nomino."
26.(↑) The name of a pimp in the Pseudolus of Plautus.
27.(↑) A famous female dancer,
28.(↑) A.C. Clark points out that ten times 300,000 is 3,000,000, not 6,000,000. He therefore reads IↃↃↃ CCCIↃↃↃ (with Schütz), 600,000 sesterces, unless decem (x.) be altered to viginti (xx.).
29.(↑) See note on Pro Quinctio, iii. § 18.
30.(↑) If 'non' is retained before 'erat,' the meaning is that "in this case it was not for an arbitrator to give a strict verdict any more than for a iudex to regard all the equities " (Roby, 488 note).
31.(↑) Before an arbitrator.
32.(↑) Roby thinks 'cur non nominas' unintelligible and probably corrupt.
33.(↑) In summoning him to court.
34.(↑) That is, the arbitrator.
35.(↑) Panurgus had been a 'histrio', a word which originally meant a dancer or pantomimist and then an actor generally.
36.(↑) This seems to be too high a value, the usual price being 500 drachmae ; although Mommsen gives IↃↃↃ∞ (6,000). Clark reads HS ∞(1000), and CCCIↃↃↃↃↃↃ (150,000, with Mommsen). ∞ = 1000.
37.(↑) A second-rate actor.
38.(↑) 'Cognitor', who was appointed for a particular suit or cause of suit ('in litem') in a set form of words in the presence of the opponent.
39.(↑) In the 'litis contestatio' both parties, before the praetor, made declarations to prepare the question for its transference to the iudex. At these proceedings the parties called upon certain persons to be witnesses ('testes estote'), so as to keep an oral record of what happened before the praetor. The action was brought under the Lex Aquilia, called after Aquilius the tribune who proposed it. It was probably passed at the third secession of the plebs. In its first chapter it was provided that if a man has unlawfully killed another man's slave, he shall pay the owner whatever was his highest value in the year preceding. The amount would be doubled if the claim were contested.
40.(↑) According to Mommsen, 600,000; he reads HSQ CCCIↃↃↃ (Q = 500,000).
41.(↑) Chaerea's jealousy of Roscius's good bargain.
42.(↑) In a full settlement, Roscius would have had to give a guarantee against further claims ('neminem amplius petiturum').
43.(↑) If he had added 'neminem amplius petiturum', he would have had Roscius's promise and also have been quit of any legal proceedings on the part of Fannius.
44.(↑) The accuser's benches.
45.(↑) Modern scholars have suggested either the beginning of the Social War (91 B.C.) or Sulla's victory in the civil war (81 B.C.) as the start of this 15-year period .
46.(↑) It is generally agreed that there is a mistake in the numerals, the amount being very large. Lambinus proposed CCIↃↃIↃↃ (15,000) Manutius CCIↃↃ (10,000) Ernesti
IↃↃↃ (50,000).
47.(↑) Roscius soon afterwards paid a first instalment (50,000 sesterces), and when Fannius brought an action against Flavius and was awarded 100,000, it would appear that Fannius and Roscius were quits, since by his restipulation Fannius promised to give Roscius half of what he got from Flavius (50,000). But Fannius denies that he got anything from Flavius and sues Roscius for the second instalment. See the appendix.
48.(↑) 'Addictus' was a debtor who had been made over as a bondman or servant to a creditor.
49.(↑) Fannius claims 50,000 sesterces as a second and final instalment of the 100,000 ordered by Piso; but as Fannius got 100,000 from Flavius, and had promised to pay Roscius half what he got, Roscius does not see why he should pay Fannius a sum equal to what Fannius would have to pay him according to the agreement made before Piso. But Saturius denies that his client had received this 100,000 sesterces, which Cicero tries to prove that he had (42, etc.).
50.(↑) Possibly Cluvius was dead, although Cicero would have said so; anyhow, he was got out of the way. The evidence of the two senators was of course not so good as that of Cluvius himself would have been.
51.(↑) Cicero says it would be conceited on his part and only do him harm if he, a young and scarcely known man, were to speak patronisingly of or to eulogise men of such reputation.
52.(↑) When a man says, "May the gods punish me if I lie," it is a 'deprecatio deorum'. The meaning is: No one will trouble about an oath, if the dictates of conscience do not keep him from lying.
53.(↑) 'nulli' : this form of the genitive appears once in Plautus and Terence.
54.(↑) § 20.
55.(↑) A person could maintain or defend an action by his 'cognitor' or 'procurator', both meaning an agent. Both parties to a suit used a special form of words in appointing a cognitor, and in the presence of both. It was not necessary for the cognitor to be present, but it was sufficient for him to give his assent to his appointment.
56.(↑) No commentator except Long appears to notice this difficult passage (52-54). His explanation is the following. "The fact of Fannius being named as Roscius's cognitor in the action of Roscius against Flavius implies that Fannius acted for Roscius only and not for the partnership. If Fannius, as cognitor, considers that he had an interest in that suit, we must assume that Roscius's share of what Fannius might get in an action against Flavius depended on Fannius being made cognitor in the action of Roscius against Flavius; then, as Fannius had not made Roscius his cognitor in his (Fannius's) action against Flavius he was not entitled to anything that Roscius had got in the arrangement with Flavius." But the argument remains obscure.
Roscius's 'decisio' (agreement) with Flavius took place fifteen years before the present action (or, according to Hotman, only four years; the date of speech is disputed). Fannius waited for twelve years, and then brought an action before an arbiter, in which he claimed 50,000, being half the amount of what Roscius had received for his farm, which Fannius says belonged to him as a partner, although Cicero's object is to prove that Roscius acted for himself and not for the partnership. The account of the arbitration is obscure, and no figures are mentioned. (Various emendations of the text have been proposed in regard to them.) The result was that Piso (the arbitrator) requested Roscius to pay Fannius 100,000 sesterces, as remuneration for the trouble taken by the latter as 'cognitor' in regard to the suit, with the reservation that Fannius should pay Roscius half of what he received from Flavius. Roscius paid Fannius half the amount (50,000) awarded by the arbitrator as a first instalment. Later on, Fannius brought an action against Flavius, and was awarded 100,000 sesterces by the 'iudex' Cluvius, although Fannius denies that he received anything from Flavius. In the present action, Fannius is suing for the second instalment of the arbitrator's award, although he refuses to pay half of what he himself had received from Flavius, as he agreed to do before the arbitrator.
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