In actions for damages, the judges usually, either because they think that a man whom they have once convicted is hostile to them, if any mention of a capital charge against him is made, do not allow it; or else, because they think that their duties are over when they have given their decision respecting the defendant, they attend more carelessly to the other points. Therefore, very many men are acquitted of treason, when, if they were condemned, actions would be brought to recover damages on charges of peculation. And we see this happen every day,—that when a defendant has been convicted of peculation, the judges acquit those men to whom, in fixing the damages, it has been settled that the money has come; and when this is the case, the decisions are not rescinded, but this principle is laid down, that the assessment of damages is not a judicial trial. Scaevola was convicted of other charges, by a great number of witnesses from Apulia. The greatest possible eagerness was shown in endeavoring to have that action considered as a capital prosecution. And if it had had the weight of a case already decided, he afterwards, according to this identical law, would have been prosecuted either by the same enemies, or by others.
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THE SPEECH OF M. T. CICERO IN DEFENCE OF AULUS CLUENTIUS HABITUS.
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