The accused shifted the blame from himself to his soldiers; he said, “that in consequence of their having in the most turbulent manner demanded battle, they were led into the field, not on the day they desired, for it was then evening, but on the following; that they were drawn up at a suitable time and on favourable ground; but either the reputation or the strength of the enemy was such, that they were unable to stand their ground.
When they all fled precipitately, he himself also was carried away with the crowd, as had happened to Varro at the battle of Cannae, and to many other generals.
How could he, by his sole resistance, benefit the republic, unless his death would remedy the public disasters?
that he was not defeated in consequence of a failure in his provisions; that he had not, from want of caution, been drawn into a disadvantageous position; that he had not been cut off by an ambuscade in consequence of not having ex- [p. 1021]
plored his route, but had been vanquished by open force, and by arms, in a regular engagement. He had not in his power the minds of his own troops, or those of the enemy. Courage and cowardice were the result of each man's natural constitution.”
He was twice accused, and the penalty was laid at a fine. On the third accusation, at which witnesses were produced, he was not only overwhelmed with an infinity of disgraceful charges, but a great many asserted on oath, that the flight and
panic commenced with the praetor, that the troops being deserted by him, and concluding that the fears of their general were not unfounded, turned their backs; when so strong a feeling of indignation was excited, that the assembly clamorously rejoined that he ought to be tried capitally.
This gave rise to a new controversy;
for when the tribune, who had twice prosecuted him as for a finable offence, now, on the third occasion, declared that he prosecuted him capitally; the tribunes of the commons being appealed to, said, “they would not prevent their colleague from proceeding, as he was permitted according to the custom of their ancestors, in the manner he himself preferred, whether according to the laws or to custom, until he had obtained judgment against a private individual, convicting him either of a capital or finable offence.”
Upon this, Sempronius said, that he charged Cneius Fulvius with the crime of treason; and requested Caius Calpurnius, the city praetor, to appoint a day for the comitia.
Another ground of hope was then tried by the accused, viz. if his brother, Quintus Fulvius, could be present at his trial, who was at that time flourishing in the fame of his past achievements and in the near expectation of taking Capua.
Fulvius wrote to the senate, requesting the favour in terms calculated to excite compassion, in order to save the life of his brother; but the fathers replied, that the interest of the state would not admit of his leaving Capua.
Cneius Fulvius, therefore, before the day appointed for the comitia arrived, went into exile to Tarquinii, and the commons resolved that it was a legal exile.