41. However, to return to my original subject: What decision did you—you, I say, who mention those trials— think ought to have bean come to at the time that Fidiculanius was acquitted?  At least you think that the decision was not a corrupt one. But he had condemned him; but he had not heard the entire case; but he had been greatly and repeatedly annoyed at every assembly of the people, by Lucius Quinctius. Then the whole of Quinctius's judicial conduct was unjust, deceitful, fraudulent, turbulent, dictated by a wish for popularity, seditious. Be it so; Falcula may have been innocent. Well then, some one condemned Oppianicus without being paid for it; Junius did not appoint men as judges in the place of the others, to condemn him for a bribe. It is possible that there may have been some one who did not sit as judge from the beginning, and who, nevertheless, condemned Oppianicus without having been bribed to do so. But if Falcula was innocent, I wish to know who was guilty? If he condemned him without being bribed to do so, who was bribed? I say that there has been nothing imputed to any one of these men which was not imputed to Fidiculanius; I say that there was nothing in the case of Fidiculanius which did not also exist in the case of the rest.  You must either find fault with this trial, the prosecution in which appeared to rely on previous decisions, or else, if you admit that this was an honest one, you must allow that Oppianicus was condemned without money having been paid to procure his condemnation. Although it ought to be proof enough for any one, that no one out of so many judges was proceeded against after Falcula had been acquitted.—For why do you bring up men convicted of bribery under a different law, the charges being well proved, the witnesses being numerous? when, in the first place, these very men ought to be accused of peculation rather than of bribery. For if, in trials for bribery, this was an hindrance to them, that they were being prosecuted under a different law, at all events it would have been a much greater injury to them to be brought before the court according to the law properly belonging to this offence.  In the second place, if the weight attached to this accusation was so great, that, under whatever law any one of those judges was prosecuted, he must be utterly ruined; then why, when there: are such crowds of accusers, and when the reward is so great, were not the others prosecuted too? On this, that case is mentioned, (which, however, has no right to be called a trial,) that an action for damages was brought against Publius Septimius Scaevola on that account; and what the practice is in cases of that sort, as I am speaking before men of the greatest learning, I have no need to occupy much time in explaining. For the diligence which is usually displayed in other trials, is never exercised after the defendant has been convicted.  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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