43.
Our ancestors did not think it fit for any one to be a judge, not only of any one's
character, but not even of the most insignificant money matter, if he had not been agreed to
by both the contending parties. Wherefore, in every law in which exception has been made of
causes for which a magistrate may not be taken, or a judge elected, or another man accused,
this cause of ignominy is passed over. For their intention was that the power of the censors
should strike the profligate with terror, but not that it should have power over their lives.
[121]
Therefore, O judges, I will not only prove what you are
already aware of, that the censorial animadversions, and the reasons given for them too, have
often been overturned by the votes of the Roman people, but that they have also been upset by
the judicial sentences of those men who, being on their oaths, were bound to give their
decisions with more scrupulousness and care. In the first place, O judges, in the case of many
defendants, whom the censors in their notes accused of having taken money contrary to the
laws, they were guided by their own conscientious judgment, rather than by the opinion
expressed by the censors. In the second place, the city praetors, who are bound by their oaths
to select only the most virtuous men to be judges, have never thought that the fact of a man's
having been branded with ignominy by the censors was any impediment to their making him a
judge.
[122]
And lastly, the censors themselves have very often
not adhered to the decisions, if you insist on their being called decisions, of former
censors. And even the censors themselves consider their own decisions to be of only so much
weight, that one is not afraid to find fault with, or even to rescind the sentence of the
other; so that one decides on removing a man from the senate, the other wishes to have him
retained in it, and thinks him worthy of the highest rank. The one orders him to be degraded
to the rank of an aerarian 1 or to be entirely
disfranchised; the other forbids it. So that how can it occur to you to call those judicial
decisions which you see constantly rescinded by the Roman people, repudiated by judges on
their oaths, disregarded by the magistrates, altered by those who have the same power
subsequently conferred on them, and in which you see that the colleagues themselves repeatedly
disagree?
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