This speech was delivered for P. Quinctius in 81 B.C.
The translation is by 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  Two things which have most power in the state - I mean great influence and eloquence - are both working against us to-day ; the one, Gaius Aquilius, ** fills me with apprehension, the other with dread. That the eloquence of Quintus Hortensius ** may embarrass me in my pleading is a thought that causes me some disquietude; that the influence of Sextus Naevius may injure the cause of Publius Quinctius - of that I am gravely afraid.  Yet I should not consider the possession of these advantages in so high a degree by my opponents to be so greatly deplored, if we possessed at least a moderate share of either; but the position is such that I, who have little natural ability and insufficient experience, am pitted against a most accomplished advocate, while my client Quinctius, whose resources are small, who has no opportunities and only a few friends, has to contend with a most influential adversary.  An additional disadvantage for us is that Marcus Junius, who has several times pleaded this cause before you, Aquilius, who has had great experience at the bar, and has given great and frequent attention to this cause in particular, is prevented by a new commission from being present to-day. ** So then I was applied to - I who, even if I possessed all other qualifications in the highest degree, have scarcely had time enough to make myself acquainted with a matter of such importance and one involving so many disputed points.  Thus what has generally been a help to me in other causes also fails me in this. For I have always supplemented my lack of ability by taking careful pains, and how great my industry is, unless one has time and leisure, cannot be perceived. **
The more numerous these disadvantages are, Aquilius, the greater should be the indulgence with which you and your assessors ** listen to our words, so that truth, weakened by so many unfavourable conditions, may at last be revived by the impartiality of men so eminent.  But if you, in your capacity as judge, show that you can afford no protection to loneliness and distress against violence and interest; if, before such a tribunal, the cause is weighed in the balance of influence and not in that of truth, then assuredly neither sanctity nor purity any longer exists in the state, nor can the authority and integrity of the judge afford any consolation to a humble citizen. No doubt either truth will prevail before you and your assessors, or, driven by violence and interest from this tribunal, will be unable to find a place wherein to rest.
[2.] L If I use such language, Aquilius, it is not that I have any doubt of your firmness and integrity, or as if Quinctius ought not to have the highest confidence in these distinguished citizens whom you have summoned to be your assessors. What then is it that troubles us?  In the first place, his great peril inspires my client with the greatest alarm, since he is staking all his fortunes on the issue of a single judgement ; and when he reflects upon that, the idea of your power comes into his mind as often as that of our sense of justice ; for, as a rule, all those whose life is in the hands of another think more often of what the man in whose absolute power they are is able to do than of what he ought todo.  In the next place, Quinctius has for his opponent nominally Naevius, but in reality the most accomplished men of our time, the bravest and most prosperous of our citizens, who with united efforts and vast resources are defending Naevius, if to subserve the cupidity of one of the parties in order that he may be able the more easily to overwhelm anyone he chooses by an iniquitous trial - if that can be called defending.  For can anything more iniquitous or more scandalous be spoken of or mentioned, Gaius Aquilius, than the fact that I, who am defending the civil rights, ** the good name and fortunes of the other party, should have to plead my cause first, ** above all, when Hortensius, who in this trial fills the part of an accuser, ** upon whom nature has lavishly bestowed a wealth of language and the greatest eloquence, is going to speak against me? Thus it comes to pass that I, whose duty it is to repel the darts of the enemy and to heal the wounds inflicted by them, am compelled to perform this task, even before my adversaries have launched a single dart, while they have the time granted them for making an attack when we shall have been deprived of the power of avoiding their assault, and when, if they launch some false charge, as they are ready to do, we shall have no opportunity of applying an antidote.  This is due to the unfairness and injustice of the praetor ; in the first place because, contrary to all precedent, he has preferred that the trial should deal with my client's dishonour ** before the fact at issue; in the second place, because he has so arranged the course of procedure that the accused should be forced to plead his cause before he has heard a single word from the accuser. This is the result of the power and influence of those men who support the passionate desires of Naevius as zealously as if their own interests or honour were at stake, and test their resources in matters in which, the greater the power they possess owing to their merit and rank, the less ought they to show how great it is.
 Weighed down and overwhelmed by so many and such great difficulties, Quinctius has taken refuge in your integrity, uprightness, and compassion. Since until now the power of his opponents has prevented him from enjoying the same legal rights as theirs, from obtaining the same facilities for pleading, from finding an impartial magistrate ; since, by the greatest injustice of all, everything is unfavourable and hostile to him, he begs and prays you, Aquilius, and you his assessors, to allow equity, driven about and persecuted by many acts of injustice, to find rest and support at last in this tribunal. [3.] L And to enable you to do this more easily, I will endeavour to make you acquainted with the origin, progress, and conduct of the matter.
 Publius Quinctius, my client, had a brother named Gaius, undoubtedly a careful and industrious manager of an estate in every respect except one. He showed rather less caution than usual in entering into partnership with Naevius, a worthy man I dare say, but one who had not been brought up in such a manner as to give him the opportunity of becoming acquainted with the rights of a partnership and the duties of a trustworthy manager ; not that he did not possess a certain talent, for he was never regarded as a buffoon who lacked humour or as an unmannerly auctioneer. ** How then does the matter stand? Since nature had endowed him with nothing better than a good voice, and his father had left him nothing but his freedom, he made his voice a considerable source of gain, and used his freedom to utter his witticisms with greater impunity.  The only reason why you could have wanted to take him into partnership must have been to afford him the opportunity, in handling your money, of thoroughly learning what was the value of it. However, Quinctius, being acquainted with and familiar with the man, was induced to admit him, as I have said, into a partnership in his business in Gaul, where he had a considerable grazing farm, well cultivated and very productive. Naevius is removed from the Licinian auction-halls ** and the company of auctioneers, and transported across the Alps to Gaul. A great change of place but not of character! For the man who from early youth had made a practice of getting money for himself without any capital, after he had put a certain bit of capital into the partnership, could not rest contented with a moderate profit.  Nor is it to be wondered at if he, who had let out his voice on hire, thought that what he had acquired by it would bring him great profit. Accordingly, by Hercules! he withdrew from the common stock whatever he could (no small sum) and put it into his own pocket; and in this he displayed as much activity as if those who carried on a partnership with the greatest honesty were, should any question about the partnership come before an arbitrator, regularly condemned. ** But I do not think it necessary to mention in regard to these matters certain facts which my client desires me to recall; although the cause asks for them, still, because it only asks and does not absolutely demand, I will pass them over.
[4.] L  After the partnership had lasted for several years, Naevius had more than once been suspected by Gaius Quinctius, since he was unable to render a satisfactory account of certain transactions which he had carried on as he thought fit and not in accordance with the rules of business. In the meantime Gaius Quinctius dies in Gaul, while Naevius was there ; his death was sudden. ** By his will he left his brother Publius, my client, his heir, desiring that he who felt the bitterest sorrow at his death might also receive the highest proof of his esteem. **  Soon after his brother's death Quinctius set out for Gaul, where he lived on the most friendly terms with this fellow Naevius. They were together nearly a year, during which time they had several discussions ** both about the partnership and everything connected with the management of the farm and the property in Gaul. In the mean time, Naevius never put in a word to the effect that either the partnership owed him anything or that Quinctius was personally indebted to him. Since a certain number of debts had been left unpaid which had to be settled at Rome, my client had a notice put up in Gaul that he would sell some private property of his at Narbo. **  Then it was that this excellent man Naevius endeavoured, at great length, to dissuade him from making the sale. He told him that the date he had fixed was not a favourable one for selling ; that he himself had plenty of money at Rome, which my client, if he had any sense, ought to look upon as belonging to both, considering his intimacy with his late brother and his relationship to himself, Naevius having married a cousin of Quinctius by whom he had children. Because Naevius spoke of what an honest man ought to do, Quinctius believed that one who imitated the language of honest men would also imitate their actions. He abandoned the idea of making the sale and set out for Rome. Naevius did the same.  Since Gaius was indebted to Publius Scapula, ** his brother Publius, according to your decision, Aquilius, settled how much he had to pay to Scapula's children. The question had to be settled by you, because, owing to the rate of exchange, ** it was not enough to examine the account-books for the amount of the debt, but also you had to make inquiries near the temple of Castor ** how much he had to pay. You settled the question, and, in consideration of your intimate friendship with the Scapulae, decided how much ought to be paid to them reckoning in denarii. **
[5.] L  All this took place at the suggestion and on the urgent advice of Naevius. Nor was it surprising that Quinctius took the advice of a man of whose assistance he felt assured; for Naevius had promised him not only in Gaul, but every day in Rome, that he would pay down the money as soon as Quinctius had given him a hint. Moreover, Quinctius knew that he was able to pay and felt that he ought to ; he had no idea that he was telling him a lie, because there was no reason why he should do so. Accordingly, as if he had the money at home, he entered into a formal engagement to pay the Scapulae, ** informed Naevius, and asked him to see about getting the money, as he had promised.  Then that excellent man - I am afraid he may think he is being laughed at because I call him "excellent" for the second time - thought that Quinctius was reduced to the greatest straits, so that he could tie him down at the critical moment on his own terms. He refused to advance Quinctius a penny until a settlement had been arranged in regard to all the affairs and accounts of the partnership, and he felt assured that no cause of dispute would arise between them. " Let us see about that later," said Quinctius; " for the present, if you will be so kind, I should be glad if you would see about getting the money, as you promised." Naevius declared that he would only do so on his own terms, saying that his promise had no more to do with him than any other promise that he had made when selling goods by auction, by the owner's orders.  Quinctius, thoroughly upset by such a disappointment, obtains a few days' grace from the Scapulae and sends to Gaul to have the goods sold as he had previously advertised ; the auction takes place during his absence at an unfavourable time, and he pays off the Scapulae on less favourable terms than he had previously arranged. He then of his own accord appeals to Naevius, asking him, since he suspected there might be a dispute about something or other, to see about getting the whole affair settled as soon as possible and with the least trouble.  Naevius appoints his friend Marcus Trebellius to represent him ; we appoint a man connected by common ties with both parties, a man who had been brought up in Naevius's house and was an intimate friend of his, a relative of ours, Sextus Alfenus. No arrangement was possible, because my client wished to suffer only a moderate loss, while Naevius was not content with a moderate booty.  And so from that time the matter had to be settled in the courts. ** After several appointments had been made and adjourned, involving considerable loss of time without any result, Naevius appeared in court.
[6.] L I beg you, Aquilius, and you his assessors, to give me your earnest attention, that you may be able to understand a remarkable kind of fraud. and an entirely new method of trickery.  Naevius next declared that he had sold by auction in Gaul whatever he thought fit ; that he had taken care that the partnership should not be indebted to him ; that he no longer claimed that Quinctius should produce bail nor was he ready to promise bail to him ; but if Quinctius wished to bring any action against him, he had no objection to make. Since Quinctius desired to pay another visit to his property in Gaul, for the present he did not bind Naevius over to appear; and they separated without any appointment for appearance in court having been made. Next, Quinctius remains in Rome about thirty days ; he adjourned any suits ** that he had with others, so that he might be able to set out for Gaul free from anxiety.  He set out and left Rome on January 27, ** during the consulship of Scipio and Norbanus. I beg you to bear this date in mind. Lucius Albius, the son of Sextus, of the tribe of Quirinus, a worthy and especially honourable man, set out with him. After they had reached the fords of Volaterrae, ** as they are called, they saw an intimate friend of Naevius, one Lucius Publicius, who was bringing him some slaves from Gaul for sale, and on his arrival at Rome told Naevius where he had seen Quinctius. Had not Naevius received this information from Publicius, the matter would not have been so soon a subject of dispute in court. **  Then Naevius sent his slaves round to all his friends, got together his acquaintances from the Licinian halls and the entrance to the market by his own efforts, and invited them to meet him at the counting-house of Sextius ** at the second hour of the following day. They attended in great numbers. Naevius called them to witness that "Publius Quinctius had not answered to his bail, and that he had answered" ; an affidavit was signed in full ** and bore the seal of the distinguished witnesses, after which the meeting broke up. Naevius then applied to the praetor ** Burrienus for permission to take possession of the defaulter's estate in accordance with the edict. He ordered the goods of the man to be put up for sale, whose intimate friend he had been, whose partner he still was, and whose kinship by marriage was indissoluble as long as Naevius's children still lived.  This makes it easy to understand that there is no duty so sacred and solemn that it cannot in most instances be impaired and violated by avarice. For if friendship is maintained by truth, partnership by good faith, and kinship by a sense of duty, the man who has attempted to rob his friend, his partner, his kinsman of his reputation and fortunes must admit that he is untrustworthy, perfidious, and undutiful.  Alfenus, Quinctius's agent, ** the friend and relative of Naevius, tore down the bills of sale, carried off one young slave whom Naevius had seized, formally declared himself Quinctius's agent, and insisted that it was only right that Naevius should have regard for the reputation and fortunes of Quinctius and await his return to Rome; if he refused to do this and was determined to force him by such methods to accept his terms, he asked no favour, and if Naevius chose to bring an action, he was ready to defend Quinctius in court.  While such was the course of events at Rome, in the meantime Quinctius, contrary to law, custom, and the edicts of praetors, was forcibly driven from the common pastures and land by slaves belonging to the partners.
[7.] L If what Naevius did in Gaul by written instructions appears to you to have been correct and regular, then you must think that all that he did in Rome was moderate and reasonable. Quinctius, expelled and driven out of his estate, having been subjected to such flagrant injustice, had recourse to Gaius Flaccus the governor, who was at that time in the province, and whom, as his rank demands, I mention with the respect due to his office. ** How severely he thought such a course of action ought to be punished, you will be able to learn from his decrees,  In the meantime at Rome Alfenus was fighting daily with this veteran gladiator; the people, no doubt, he had on his side, because his opponent continued to aim at the head. ** Naevius makes a formal application that the agent should give security for payment of the award if Quinctius lost his case. Alfenus says it was not fair that an agent should give security, which the defendant would not have to give if he were present in person. ** Thereupon Alfenus appeals to the tribunes ** ; and, after definite assistance had been asked from them, they separated on this occasion, on Alfenus promising that Quinctius should appear in court on September 13.
[8.] L  Quinctius returns to Rome, and appears to his bail. This Naevius, a most violent fellow, who had taken possession of the property, had driven Quinctius out and robbed him of it, for eighteen months made no claim, kept quiet, amused Quinctius as long as he could with proposals for coming to terms, and finally applied to the praetor Gnaeus Dolabella ** that Quinctius should give him security for payment of the judgement according to the formula: IN THAT HE IS CLAIMING FROM ONE WHOSE GOODS HAVE BEEN POSSESSED FOR THIRTY DAYS ACCORDING TO THE PRAETOR'S EDICT. Quinctius did not object to an order being made that he should give security, if his goods had really been "possessed" in accordance with the edict. The praetor gave a decision - how far equitable, I say nothing about that ; I only say this, that it was an innovation, and I should have preferred to remain silent upon this point, since anyone could understand it, regarded from either point of view - and ordered Quinctius to enter into an engagement ** with Naevius on the question : WHETHER HIS GOODS HAD NOT BEEN POSSESSED FOR THIRTY DAYS according to the edict of Publius Burrienus the praetor. ** Quinctius's supporters demurred; they pointed out that the trial ought to deal with the real question, ** so that either both parties or neither of them should give security ; that there was no need for the reputation of either being put on trial. **
 Further, Quinctius himself emphatically declared that his reason for being unwilling to give security was to avoid the appearance of himself thereby giving a verdict that his goods had been possessed in accordance with the edict ; moreover, if he made an "engagement" of the kind asked for, he would be obliged to plead first in a matter affecting his civil rights, as has happened to-day. Following the practice of members of the nobility, who, when once they have begun to carry out some plan, whether right or wrong, show such superiority in its execution that is beyond the reach of one in our humble position, Dolabella most manfully persevered in acting wrongfully ; he ordered that either security must be given or an engagement entered into, and in the meantime caused our advocates who protested to be forcibly removed from court.
[9.] L  Quinctius withdrew quite distracted ; and no wonder, since a wretched and unfair alternative was offered him - either to condemn himself to lose his civil rights if he gave security, or to plead first in an action in which they were at stake, if he entered into an "engagement." Since in the one case there was nothing to prevent his being obliged to pass sentence on himself, which is the severest form of judgement, while in the other he had the hope after all of coming before a judge of such a character that the less influence he brought to bear, the greater the assistance he might obtain from him, Quinctius preferred to enter into the "engagement." He did so; he proposed ** you as judge, Aquilius; and then sued Naevius on the "engagement." This is the essential point of the trial, this is the gist of the whole cause.
 You see, Aquilius, that the trial is not concerned with a pecuniary matter, but with the fame and fortunes of Quinctius. Although our ancestors established the rule that a man pleading on a matter affecting his civil rights should speak after the accuser, you see that we have to plead our cause first, without having heard the charge. ** And moreover, you see those who have been in the habit of speaking for the defence ** playing the part of accusers to-day, and directing those abilities, which were formerly employed in saving and assisting, towards the work of destruction. The only thing that remained for them to do - and that they accomplished yesterday - was to summon you before the praetor, ** so that you might fix in advance the time allowed for us to speak ; this they would without difficulty have obtained from the praetor, had you not taught him your rights, your duties, and your functions.  Neither, up to the present, have we found anyone except yourself, from whom we could maintain our rights against our opponents, nor have they ever been content to maintain what anyone would consider right: so unimportant, so weak do they consider power of any kind unless it is backed up by injustice.
[10.] L But since Hortensius presses you to consult your assessors ; since he calls upon me not to waste time in talking, and complains that, when my predecessor was defending Quinctius, his speech could never have been finished, I will not allow the suspicion to continue, that we do not want the matter to be decided, I shall not be so conceited as to claim that I can set forth the cause more adequately than has already been done by others before me ; yet I shall be briefer, because it has already been described and put into shape by the advocate who spoke on that occasion, and also because brevity, which is most agreeable to myself, is required of me, who am incapable of thinking out or of delivering a long speech.  I will do what I have often observed you doing, Hortensius ; I will divide my entire pleading under three distinct heads. You always do this, because you always can; I will do it in this case, because I think that in it I can; what your natural talent gives you the power of always doing, the nature of the cause permits me to do to-day. I will lay down for myself well-defined boundaries and limits which I must not overstep, however much I may desire to do so. Thus I shall have before me the subject of which I have to treat, and Hortensius will have a statement to which he has to reply, and you, Aquilius, will be able to understand in advance what are the matters which you are to hear discussed.  We deny, Sextus Naevius, that you have taken possession of the goods of Publius Quinctius in accordance with the praetor's edict. That is the question in regard to which the "engagement" was made. I will first prove that you had no grounds for applying to the praetor to authorise you to take possession of the goods; next, that you could not have taken possession of them in accordance with the edict; lastly, that you did not possess them at all. I beg you, Aquilius, and you his assessors, carefully to commit to memory the promise I have made; for, if you bear these points in mind, you will find it easier to understand the whole matter, and, as to myself, you will, by your influence, easily call me back, if I endeavour to pass beyond these barriers by which I have voluntarily confined myself. I deny that Naevius had any grounds for his application ; I deny that he could have taken possession of the goods in accordance with the edict ; I deny that he did take possession of them at all. When I have proved these three assertions, I will conclude.
[11.] L  There were no grounds for your application. How can this be proved? Because Quinctius never owed anything to Naevius, neither on account of the partnership nor as a private debt. Who is a witness to this? The very man who is our bitterest opponent. On this point I will call you, you, I say, Naevius, as a witness. Quinctius lived with you in Gaul for a year and more after the death of his brother. Prove that you ever asked him to pay that enormous sum, prove that you ever mentioned or said that it was owing, and I will admit that he owed it.  My client's brother dies, and, according to your statement, owed you a large sum of money on certain specific heads. ** My client, his heir, comes to you in Gaul, to your joint estate - in fact, to the very place where not only the property was, but where all the accounts and letters were kept. Who would have been so careless in his private affairs, so heedless, so unlike you, Sextus, after the property had passed out of the hands of the man with whom he had made the contract into those of his heir, as not to notify this heir as soon as he saw him, claim the money, present the account, and if any dispute arose, settle the matter privately or by the rigour of the law? Is it really so? What every good man does, every man who wishes his kinsfolk and friends to be and to be accounted worthy of affection and of honour, was this not what Sextus Naevius would do - this man who is so inflamed and carried away by greed that he would be unwilling ** to give up any of his advantages for fear of leaving his relative, my client, a share of anything that makes life honourable?  Would he not ask for the money, if any were owing, he who, because that was not paid which was never owed, is endeavouring to deprive his kinsman, not only of his money, but even of his life-blood ? ** At that time I suppose you did not want to be troublesome to the man whom to-day you do not allow to breathe freely ; at that time you were too modest to call upon the man to pay whom to-day you criminally desire to murder. I suppose so: you were unwilling or afraid to call upon one who was your relative, who had a great respect for yous a man of worth, modest, and older than yourself. More than once (as is often the case) after you had plucked up courage and determined to mention the money, when you approached him, having carefully prepared and considered what you intended to say, on a sudden you, the nervous man of virgin modesty, drew back; at once words failed you; when you wanted to call upon him for the money, you did not dare to do so, for fear he might feel hurt to hear you. No doubt that was the explanation.
[12.] L  Let us believe then that Sextus Naevius spared the ears of the man at whose head his attacks are now aimed. If he had owed you anything, Sextus, you would have demanded it, and at once ; if not at once, a little later ; if not a little later, some time or other ; certainly within six months ; without doubt before the end of the year. But no! for eighteen months, during which you daily had an opportunity of reminding him of the debt, you never said a word ; now, when nearly two years have passed, you call upon him for the money. Is there any dissipated and extravagant spendthrift - not one whose entire fortune has been squandered but who still has plenty of money - who would have been so careless as Naevius ? The mere mention of the man's name seems enough.  My client's brother owed you money, you never asked for it; on his death, the estate passed to his heir ; although you saw him every day, you waited two years before you finally asked him to pay. Can there be any doubt which is the more probable: that Sextus Naevius would have asked for anything that was owing to him at once, or that he would not even have claimed it for two years ? You had no opportunity of claiming it? But he lived with you more than a year. Proceedings could not have been taken in Gaul? But justice was administered in the province and the courts were held in Rome. The only alternative is that extreme negligence or unparalleled generosity prevented you from demanding the money. If you plead negligence, we shall be astonished, if you plead generosity, we shall laugh; and I do not know what other excuse you can find. The fact that Naevius claimed nothing for so long a time is sufficient proof that nothing was owing to him.
[13.] L  But what if I show that the very thing which Naevius is now doing proves that nothing is owing to him? For what is he doing now? What is the matter in dispute? What is this trial on which we have already been engaged two years ? What is this affair that is going on now, with which he is utterly wearing out so many eminent men? He demands his money. What! not till now? However, let him demand it ; let us hear what he has to say.  He wants the accounts and disputed points concerning the partnership to be settled. It is rather late, but better late than never; let us grant this. "This is not the object of the present action, Gaius Aquilius," says he; "this is not what troubles me now. Quinctius has had the use of my money for so many years. Let him have it for all I care; I do not ask for it." What then are you contending for? Is it, as you have said on so many occasions, that my client may lose his rights as a citizen, that he may not be able to keep his position which up till now he has so honourably maintained, that he may no longer be reckoned among the living, that he may have to fight for his life and all that makes it honourable, to plead his cause first before the judge, without hearing the voice of the accuser until he himself has finished his speech ? What then? What purpose does this serve ? That you may come into your own more speedily ? But if this was what you wanted, that could have been done long ago.  That you may contest the matter by a more honourable form of procedure? ** . But you cannot, without committing an abominable crime, murder your kinsman Quinctius. That the trial may be facilitated? But neither does Aquilius take pleasure in pronouncing sentence when a man's civil rights are at stake, nor has Hortensius learned the art of demanding a man's head. But what is our answer, Aquilius? Naevius demands his money; we deny that any is owing to him. Let a trial take place at once ; we make no objection. Is there anything else he wants? ** If he is afraid that, after the decision has been given in his favour, the money will not be forthcoming, let him accept security for the payment and give security for what I claim in the same form as that in which he accepts security from me. ** This can be settled now, Aquilius; you can leave the tribunal at once, relieved of a matter which I was on the point of saying has been as troublesome to you as to Quinctius.
 What are we to do, Hortensius? What are we to say of our offer? Can we not for once lay aside our arms and discuss a question of money without imperilling anyone's fortunes? Can we not assert our claim in such a way as to leave the civil rights of a kinsman unimpaired ? Can we not assume the rôle of plaintiff and abandon that of accuser? "No," says Naevius, "I will accept security from you, but I will not give you security." [14.] L Who is it, I ask, who imposes upon us such equitable terms? Who has decided that what is fair for Quinctius is unfair for Naevius? "The estate of Quinctius," says he, "has been taken possession of in accordance with the praetor's edict." So then you demand that I should admit this, so that we may by our own verdict confirm the existence of this possession which we maintain in our judgement does not exist?  Cannot some way be found, Aquilius, whereby each of the parties may come into his own without bringing disgrace, infamy and ruin upon the other? Undoubtedly, if anything were owing to Naevius he would claim it ; he would not prefer that all kinds of trial should take place rather than that single one, ** which is the origin of all the rest. The man who for so many years never even applied to Quinctius for payment when he could have brought an action any day he chose ; who, from the moment he began to act fraudulently, ** wasted all the time in a number of adjournments, who afterwards released his recognisances, and treacherously drove my client by force from their common lands; who, when he had the opportunity of bringing an action on the main point without anyone objecting, preferred to enter into an "engagement" which might ruin his opponent's reputation ** ; who, when he is brought back to trying the question which is the origin of all the rest, rejects the most equitable terms, thereby virtually admitting that it is not my client's money but his life-blood that he is seeking - does not this man openly declare: "If anything had been owing to me, I should have claimed it and, more than that, I should have recovered it long ago;  I should have had no need to enter upon so troublesome a business nor to engage in such odious legal proceedings, nor to employ so many friends to assist me, if it had been merely a question about making a claim. But I have to screw money out of a man against his will and under compulsion ; I have to wrest and squeeze out of him what he does not owe; he must be driven from all his possessions ; I must summon to my aid all men of influence, eloquence, and rank; violence must be employed against truth, threats flung about, perils thrown in his way, terrors brought before him, so that at last, overcome and thoroughly alarmed by these methods of attack, he may surrender of his own accord "? And in fact, by Hercules! when I see those who are fighting against us, when I think of that company of their friends, ** all these perils seem to me to be at hand, impending and inevitable ; but when I carry back my eyes and thoughts to you, Aquilius, I believe that, the greater their efforts and zeal, the more trifling and feeble will the results appear.
 Well then, Quinctius owed you nothing, as you yourself declare. But what if he had owed you anything? Would that have been at once a reason for making an application to the praetor to attach Quinctius's goods? I think that such a proceeding is neither in accordance with the law nor to anyone's interest. What excuse, then, does Naevius give? He says that Quinctius had not kept his appointment to appear.
[15.] L Before proving that this is not the case, I should like, Aquilius, to examine both the fact itself and the behaviour of Sextus Naevius in the light of the principles of duty and the custom of all men. According to your assertion, he had not kept his appointment - this man between whom and yourself there existed ties of kinship, partnership, in short, all friendly relations and long-standing intimacy. Was it seemly that you should go straight to the praetor ? Was it fair that you should immediately make application to be allowed to enter into possession of Quinctius's property by virtue of his edict ? Did you resort with such eager haste to these extreme and most unfriendly legal measures, in order that there might be nothing more grievous or more cruel which you kept back for future employment?  For what greater disgrace can happen to a human being, what greater or more bitter misfortune can befall a man? Can such dishonour fall to one's lot, can such disaster be met with? If a man has been deprived of his money by ill-luck or forcibly deprived of it by another's injustice, as long as his reputation is unsullied, his upright character proves a ready consolation for his poverty. On the other hand, there are cases where men, either tainted with ignominy or convicted of an offence that involves disgrace, ** do remain in possession of their own property, and are not obliged to wait for help from others, which is the worst of miseries, and so find what is after all a help and comfort that alleviates their sufferings. But the man whose property has been sold, who has seen not only his rich possessions but even the necessaries of food and clothing ignominiously put up for sale under the hand of an auctioneer - that man is not only banished from the company of the living, but is relegated to a position lower than the dead, if that be possible. In fact, an honourable death often confers lustre even upon a disgraceful life, but a life so disgraceful as this ** leaves no room even for an honourable death.  Therefore, by Hercules! if a man's goods are possessed by virtue of an edict, his character and reputation are taken possession of together with the goods; if a man's name is posted up on placards in the most frequented places, he is not even allowed the privilege of perishing in silence and obscurity ; if a man he trustees appointed and put in as owners of his property, ** to fix the rules and conditions of his ruin ; if a man hears the voice of an auctioneer crying out his name and putting a price on the goods, then, in bitterest ** pain, alive and with his own eyes, he sees the final act of his own funeral, if that can be called a funeral, which is attended not by friends met together to do honour to his obsequies, but by brokers, like executioners, ready to tear and mangle the remnants of his life.
[16.] L  Accordingly our ancestors willed that such a sentence should be a rare occurrence, and the praetors have ordained that it should only be pronounced after mature consideration. Worthy men, even when they are openly defrauded, and when there is no opportunity of trying the case in the usual manner, only lower themselves to extreme measures with timidity and caution, driven by the force of necessity and with great reluctance, after the defendant has several times failed to appear, and after they have often been flouted and disappointed. For they carefully consider the nature and gravity of confiscating a man's possessions. No honourable man, even if he is within his rights, wants to put a citizen to death ; he would prefer that it should be remembered that he spared when he could have destroyed than that he destroyed when he could have spared. Honourable men treat the greatest strangers, indeed, even their greatest enemies in this manner, for the sake of public opinion and the common feelings of humanity ; so that, having never themselves done anything unpleasant to others knowingly, nothing disagreeable can justly befall them by way of reprisals.  He did not appear to his recognisances. Who? Your kinsman. However blameworthy the matter may have appeared in itself, its heinousness should have been thought less of in consideration of your close relationship. He did not appear to his recognisances. Who? Your partner. You ought to have pardoned even a graver fault in a man with whom either your own wish had associated you or chance had united you. He did not appear to his recognisances. Who? The man who was always in your company. So then, because he has once been guilty of not being in your company, you have hurled against him all the weapons which are reserved for use against those who have committed many guilty and fraudulent acts.  If it were a question of some twopenny bit of your own, Naevius, if you were afraid of being taken in in some trifling matter, would you not have hurried to consult Gaius Aquilius or some other adviser? But when the rights of friendship, partnership, and kinship were in question ; when it was fitting that your obligations and character should be considered, at such a time you not only abstained from consulting Gaius Aquilius or Lucius Lucilius, but you did not even consult yourself; you did not even say to yourself : "Two hours have passed; Quinctius has not appeared to his bail; what am I to do?" If, by Hercules! you had only said these five words to yourself, your cupidity and avarice would have abated ; you would have left room for reason and prudence ; you would have composed yourself; you would not have sunk to the disgrace of having to confess before men of such eminence as these that, at the very same hour at which he did not appear to his recognisances, you formed the design of utterly ruining the fortunes of one who was your kinsman.
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1.(↑) Gaius Aquilius Gallus was a well-known jurist and a pupil of Q. Mucius Scaevola. He is highly praised by Cicero (Pro Caecina, xxvii. 77), with whom he was praetor in 66. He is often cited in the Digest, published certain formulae, and was also one of the judges in the trial of Caecina.
2.(↑) Hortensius (Quintus H. Hortalus, 114-50 B.C.) the famous advocate and rival of Cicero. In the civil war he joined Sulla and strongly supported the aristocratical party,
3.(↑) It is not certain who Junius was, nor is anything known of this legation or commission.
4.(↑) Or, "it is difficult to see what results (how much industry) can be expected." Cicero means that in this case he has little chance of showing his industry.
5.(↑) These assessors or assistants ('qui tibi in consilio sunt') were chosen by the judge himself and formed his consilium.
6.(↑) 'Caput' often does not mean literally "life" here and elsewhere in this speech, but a man's civil and political rights, which would be lost by 'infamia', if judgement were given against him and his goods sold (the important point).
7.(↑) i.e. before we have heard the exact charge; see § 33.
8.(↑) Hortensius was defending Naevius, so Cicero has on right to call him an accusator. 'In' is inserted by Baiter.
9.(↑) His alleged (according to Cicero) non-appearance to his bail, involving infamia.
10.(↑) 'Praeco', literally a crier in a court of justice, at public games, at auctions (where he called out the conditions of sale), and the like. The word 'scurra' originally meant a fine gentleman of distinguished manners, opposed to a rustic; an idler, acquainted with all the gossip. In Cicero's time it means a professional wit or buffoon. Then, when it became customary for the great men of Rome to have one of these people at table to amuse their guests, the name was used for a parasite, who let himself out for a dinner and entertained them with gross flattery, small talk, and various tricks. Socrates was called 'scurra Atticus' by Zeno, and dissipated men about town 'scurrae' in Pro Sestio xvii. § 39.
11.(↑) Besides being the name of part of a house, atrium was also a court surrounded by a colonnade and the halls where auctions were held. The Atria Licinia were named after L. Licinius Crassus, the orator.
12.(↑) So Naevius, to avoid such a thing happening, was careful to cheat his partner. Prof. H. Morgan (Harvard Studies in Classical Philology, xii., 1901) rejects this generally accepted interpretation: "Long's explanation renders 'arbitrium' useless and some older editors omitted it. But 'condemnare' with double accusative is common in legal language. The punishment ('arbitrium') is kept with the passive, and the meaning is: As if men who acted as honest partners were usually condemned to 'arbitrium pro socio', that is, had to go before an arbitrator on a question of defrauding a partner. 'Pro socio' is the legal phraseology for : in a partnership question." He compares Pro Roscio Comoedo, x. 25 "Quae cum ita sint, cur non arbitrium pro socio adegeris Q. Roscium quaero."
13.(↑) This seems intended to create the suspicion that Naevius had something to do with his death.
14.(↑) It was considered a mark of respect to be mentioned in a friend or relative's will and a great slight if one's name were omitted. The emperor Augustus was very touchy on this point.
15.(↑) 'Communicare' is a legal term meaning to share with others; and this may be intended here, with reference to adivision of what remained of the old stock to form a new partnership, since the one between Gaius and Naevius was ended by the death of the former.
16.(↑) Narbo Martius (mod. Narbonne), capital of Gallia Narbonensis and the first Roman colony in Gaul. It was connected by a canal with the sea, was a flourishing town, and a centre for the transport of tin from Spain and Britain.
17.(↑) Supposed to have been a money-lender.
18.(↑) Various explanations have been given of this much-discussed phrase ('propter aerariam rationem') : (1) that the difference between Gallic and Roman money is meant, the debt having been incurred in Gaul and being payable in Rome, where the rate of exchange was different ; (2) that it alludes to the state of the currency. M. Drusus (in 91) authorised the mint to issue one plated denarius in every seven, the result being that no one knew whether his money was good or bad; later (in 84) the praetors and tribunes decided to replace the plated denarii by silver. (3) To this Niebuhr objected that 'argentaria' (not 'aeraria') would be the proper word, and explains the passage as referring to the lex Valeria brought forward by the consul L. Valerius Flaccus (86). By this law all debts were cancelled and creditors only received a quarter of their debt (like our composition of 5 shillings in the pound). Mommsen agrees and explains the process as the substitution in calculation of the reduced as (1/16 of a denarius) for the libral as represented by the silver sestertius. According to Niebuhr, the law only applied to debts owing at the time, whence the difficulty of settling the amount of the debt to the Scapulae (see Roby, Roman Private Law, ii. p. 456).
19.(↑) The bankers' counting-houses were near the temple of Castor in the Forum.
20.(↑) Or, how much should be deducted from the debt for each denarius paid.
21.(↑) 'Constituere' is a technical term, meaning to make a definite arrangement to pay a definite sum on a definite day.
22.(↑) 'Esse in vadimonium coepit' : literally, "the matter came to giving bail." When proceedings 'in iure' (before a praetor or other magistrate who possessed jurisdiction) were not finished on the same day, the parties agreed upon a time when they should appear again, and this agreement was called 'vadimonium' (that is, a guarantee that they would appear in court on the appointed day). A sum of money of varying amount (but never exceeding 100,000 sesterces) had to be paid by one who failed to appear, called 'poena desertionis'.
23.(↑) Literally, put off appearance in court.
24.(↑) In 83 B.C. (see § 57).
25.(↑) A seaport in the territory of Volaterrae in Etruria (mod. Torre di Vado).
26.(↑) The words in the text from narratum to Naevius are omitted by many, who begin § 25 with 'Quod ubi ex Publicio audivit, pueros . . .'
27.(↑) Some banker, otherwise unknown.
28.(↑) Or, reading 'maximae' with some Mss., "a very bulky affidavit."
29.(↑) On February 20: see § 79.
30.(↑) Procurator was an agent appointed to act generally for an absent principal or in a particular suit. He had to give security that his principal would abide by the terms of the decision.
31.(↑) Quinctius probably asked for an order that he might be put in possession of his property again, since he had been ejected by force. Such an order was called Interdictum de Vi. Flaccus expressed his strong disapproval of Naevius's action and issued some orders, but it is not known what they were or what was the result. C. Valerius Flaccus (consul 93) gained victories over the Gauls and the Celtiberi in Spain. He was a partisan of Sulla.
32.(↑) "The head" is really the civic status of Quinctius ; see § 8.
33.(↑) This reply of Alfenus is difficult to explain and could hardly have been made in later times. It would seem that in Cicero's time the necessity for security in the representation by a procurator admitted of exceptions, and at this time was not absolute. Perhaps Alfenus may have contended that there was no need for security, since Naevius claimed to be already in possession of all Quinctius's estate (Roby). Or he may have afraid of doing harm to Quinctius by giving a security which might be taken to mean not such as was required from a procurator but demanded from a defendant, in the 'actio iudicati '(in the proceedings on the judgement).
34.(↑) The appeal was against the writ of possession. The praetor seems to have let it be known that, as Alfenus had refused to give the security required, he would make an order in favour of Naevius keeping possession of Quinctius's property and authorise him to proceed to a sale.
35.(↑) Praetor 81. In the following year he had Cilicia as his province, which he and his legatus Verres plundered. Accused of extortion and betrayed by Verres, he was condemned and went into exile. Not to be confused with the consul in the same year, when Cicero delivered this speech.
36.(↑) 'Sponsio'. A legal wager, both parties to which agreed that the one who lost the cause should pay a certain nominal sum to the winner. The form of words was as follows: "Si bona mea ex edicto P. Burrieni praetoris dies xxx possessa non sunt, HS. . . . dare spondes?" the answer given (by Naevius) being "Spondeo."
37.(↑) Quinctius denied that the goods had been possessed according to the edict, whereupon the praetor ordered him to prove his denial by becoming plaintiff in a fictitious action involving a 'sponsio'. Dolabella evidently considered that the order of Burrienus, even though it might appear harsh, was prima facie valid, and he did not like to put it aside, unless it were proved to have been wrong or not duly carried out.
38.(↑) The partnership dispute.
39.(↑) If the result went against him, he would be ruined and disgraced. Dolabella considered it would be easier for him to prove a negative and speak first as a plaintiff ; if the result was favourable, it would show that Quinctius's goods had not been possessed for thirty days, and the partnership dispute could be taken up; if unfavourable, he would be obliged to take the consequences of not having met Naevius's claim by appearing in court.
40.(↑) The plaintiff proposed the name of someone as iudex, who would be nominated if accepted by defendant, and the plaintiff then 'sumpsit iudicem'.
41.(↑) Cicero says Dolabella forced Quinctius not only to speak first as accuser, but he also had to defend himself, not about a mere money matter, but one which endangered his civil rights as having forfeited his recognisances.
42.(↑) To instruct you (Aquilius) how to conduct the proceedings.
43.(↑) 'In ius', to be carefully distinguished from 'in iudicium', proceedings before a iudex - ius being the preliminary proceedings before the praetor.
44.(↑) This rendering seems better than "on good security."
45.(↑) Or, reading 'velit', "Naevius was so avaricious that he was ready to sacrifice something so as not to leave Quinctius anything," but it is difficult to see the sense of this.
46.(↑) Rhetorical exaggeration (cf. the use of 'caput' in this speech and note on § 8).
47.(↑) That is, a trial involving more important issues than a mere money matter.
48.(↑) 'Ut quid' (the reading of nearly all the mss.) must be rendered : "in order that what may happen besides?" .
49.(↑) It would appear that Naevius owed Quinctius something in connexion with the partnership.
50.(↑) The money question in the partnership.
51.(↑) Madvig omits 'male'; if so, the meaning is simply "to take legal proeeedings."
52.(↑) In reality, the 'sponsio' was about the fact of possession.
53.(↑) The 'advocati' of Naevius, sitting together on the benches.
54.(↑) 'Judicium turpe' is a trial in which the penalty for the unsuccessful litigant was 'infamia', the loss of certain political rights. Such were actions relating to breach of trust, guardianship, partnership. One whose property was possessed and sold became 'infamis' (Pro Roscio Comoedo, vi. 16). He lost his vote, could not fill public offices or appear in a court of law, and was expelled from his tribe.
55.(↑) The life of an 'infamis'.
56.(↑) Magister was one of the creditors appointed to superintend the sale of the property ; 'domini' were the creditors who sold the property as if they were the owners of it.
57.(↑) There is special force in 'acerbum funus', 'acerbus' being used of a premature death, before one is ripe for it, "dying cruelly before his time."
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