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?
[113]
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.
[114]
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.
[115]
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.
[116]
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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