The Trial of Gaius Verres
Frank
H. Cowles, Gaius Verres: An Historical Study (Cornell Thesis)(1917)
CHAPTER VII. (pp. 163-191)
[footnotes omitted]
Quintus Hortensius Hortalus, defense
attorney for Gaius Verres.
In order to understand the
sequence of events of the year
70, insofar as they pertained to the trial of Verres, it will be
necessary to
sketch briefly the legislation of previous years and the resultant
circumstances which contributed to the political situation in Rome upon
Verres's return there. This
situation was the culmination of ten years' misrule by the senatorial
oligarchy
established by Sulla. The consular elections of the year 71 bad sealed
the fate
of that oligarchy. It only remained for the new consuls to take office,
for the
reaction against the Sullan constitution to be complete. The first day
of
January, B. C. 70, was therefore an eventful day in Roman history, for
on that
day the consulate was assumed by the two most powerful men of the time;
the
one, known for his enormous wealth, fresh from victories over Spartacus
and
from the successful termination of his campaign against the slave
uprising,
Marcus Licinius Crassus; the other, flushed with even more remarkable
successes
in Spain, honored on the previous day by an extraordinary triumph, the
most
conspicuous figure in public life, Gnaeus Pompei us Magnus.
The
chief bulwark of the aristocratic party's strength
had been its tenure of the law courts, and the domain of the judicia
formed
the principal battle ground of the parties. The result was what always
happens
when the judiciary is the tool of politicians, namely, unspeakable
corruption
of the courts, the impossibility of obtaining just verdicts, and an
increasing
popular demand for reform. The senatorial control of the courts had
been
uninterrupted from the earliest times, except for a period of about
fifty years
between the time of Gracchus and that of Sulla. Gracchus, who had
recognized in
this control a vulnerable point of the senatorial party, had provided
by his
lex judiciaria of B.C. 122 that
as a rule all judices should be drawn from the ranks of the
p. 164
equites.
The
latter class was thus at one stroke placed in a position of vantage
over the
aristocracy, to the extent that a returning governor, accused of
extortion,
must have connived freely at the corrupt practices of the equites engaged
in his province as publicani, in
order to have any opportunity for a favorable hearing before equestrian
judges.
Conditions in the courts were little improved by Gracchus's law, and
the latter
was the cause of continual dissension. In spite of one or two attempts
to place
the senators again in control, the domination of the courts by the equites
continued
until B.C. 81, when Sulla included in his program for the restoration
of the
senatorial oligarchy the reversal of the Gracchan regulation, and the
return of
the senate to its historic prerogative of the judicium.
A provincial governor now indicted for extortion
faced a jury composed exclusively of men of his own rank, senators who
either
had themselves been guilty of exploiting the provinces, or who might
wish to
enrich themselves in the future by that method.
The resulting corruption of justice, combined with the oligarchy's
feeble
foreign policy, its inefficient conduct of the wars against Sertorius,
Spartacus and the Mediterranean pirates, its maladministration of the
provinces
and general incapability, could only result in popular agitation for
the
restoration of judicial power to the equites. Thus the
senatorial party
found itself at the time of Verres's prosecution in a most precarious
position,
and of its predicament Cicero
took the fullest advantage. For though now a senator, the orator had
not
forgotten that he was a novus homo:
his equestrian consciousness still
remained, and he did not hesitate to point out to the senatorial jury
repeatedly and with all the forcefulness at his command, that their
tenure of the judicia was
hanging by a very slender thread was their decision of the sun against
Verres. He played very cleverly upon the class
p. 165
consciousness of his noble hearers, and the result
in part shows that he had convinced them that an acquittal was too
perilous to
attempt.
During the early history of Roman
judicial procedure we hear of no cases of Repetundae. But
with the spread of Roman power such cases begin to appear, and their
number
increases proportionately with the extension of Roman sovereignty,
until in
Cicero's time a returning provincial governor almost expected to be
indicted
upon his arrival and many of them, as did Verres, shaped their plans
with that
in view. There was no lack of legislation providing penalties for
exploitation
of the provinces, but its enforcement by the corrupt judiciary was, of
course,
anything but efficient. The first enactment dealing directly with the
subject
was the Lex Porcia
of M. Porcius Cato, B.C. 198,
limiting
the amount which could legally be demanded by a governor from
his province
for the expenses of administration. The next law was the Lex Calpurnia
of L.
Calpurnius Piso Frugi, B.C. 149. It established a quaestio
perpetua or standing court to try defendants accused of
extortion. This quaestio was to be
presided over by the Praetor Peregrinus, the judices being chosen from the
senate
and serving for one year. Only foreigners
might bring an action under this law. Roman
citizens might recover under an ordinary civil
process. About 126 B.C. was
p. 166
passed the
Lex Junia of the tribune M. Junius,
but
of its provisions we have no knowledge. The Lex Acilia of
M Acilius Glabrio,
B.C. 123 or 122, excluded
senators from sitting on the jury in cases of Repetundae, and
provided for a special Praetor Repetundis. The latter was to
appoint annually
450 judices, of
whom 100 sat in each trial, the
parties to the suit each choosing 100 and
enjoying the right to challenge SO of
those chosen by the opposition. If two-thirds of the court
returned a verdict of non
liquet, one new trial (ampliatio) was
granted. The penalty was fixed at double the amount extorted or
corruptly
received. The next enactment was the Lex
Cornelia of
C. Servilius Glaucia,
about 111 B.C. It abolished the ampliatio allowed by the Lex Acilia, but
provided for an adjournment of one
day (comperendinatio), which
thus divided a trial into two parts actio
prima and actio secunda. The
Lex Cornelia
of Sulla, B.C. 81, under which the
indictment was brought against Verres, was based chiefly upon the Lex Servilia. This law transferred jurisdiction
to the senators and may have increased the pecuniary penalty to two and
one
half times the amount alleged to have been extorted.
It also provided banishment (aquae et
ignis interdictio).
The jury was chosen by lot (sortitio), and the defendant, if not a
senator, could not
challenge more than
three judices. The whole body of judices was
divided into a number of decuriae, small
bodies regularly numbered,
each one being assigned to a single case according to its precedence on
the
list, and from the decuria so
assigned, the jury was chosen.
It
will be seen from the foregoing that the trial of
Verres possesses a considerable political interest aside from its
purely legal
p. 167
aspect. It was a case of the people, and
especially
the provincials, against the already tottering aristocratic oligarchy,
a case
which offered to a successful prosecutor a most extraordinary
opportunity for
the acquiring of a reputation. And yet
it was an opportunity beset with difficulties. The senatorial·
party goaded to
desperation by its impending fall, was prepared for extreme measures.
If Verres
could by any possible means be acquitted, it might be that the Sullan
constitution could yet be saved and its advantages conserved for
another
generation of aristocrats. It was a
situation with a challenge, and the ambitious orator
accepted the
challenge with his eyes open. Hardly had Verres left Sicily
when representatives of the plundered cities appeared in Rome for the
purpose of bringing an action de Repetundis against their former
governor. They assembled in crowds
before the doors of the Marcelli, patrons of the Sicilians, they
appealed to
the consuls-elect,
and by joint resolution of all the deputations, they placed their case
in the
hands of Cicero.
Of the important
cities in the province, only two were
not represented among the plaintiffs-Syracuse the praetor's residence,
and
Messana, the storehouse of his plunder, both of which towns had to some
extent
benefited by the governor's extortions.
Aside from the fact that Cicero
was already possessed of some considerable reputation as a pleader, the
unanimity of his choice by the Sicilians is to be explained by the fact
that he
was personally known to them as an upright and able administrator. In the year 75
B.C. Cicero
had
been quaestor of Lilybaeum under the praetor
Sex. Peducaeus,
during which time he bad won great favor with
the
provincials and at his departure had assured them of his willingness to
serve
them in any future exigency. Upon this promise, made four years
previously,
they now relied to gain his consent to appear for the prosecution.
Sicilian
governors had been indicted before this, but never before
p. 168
had the indictment been brought
directly by the provincials
It was truly a “cause célèbre”.
·With some show of reluctance at" laying
down his chosen role of advocate and assuming the less agreeable one of
prosecutor, Cicero
allowed himself to be persuaded to undertake the task.
There
can be little doubt that another factor
which weighed heavily in bringing about the orator's decision was the
knowledge
that here would be an opportunity to match his legal and oratorical
skill
against that of the great Quintus Hortensius Hortalus,
whose reputation alone stood between Cicero
and forensic supremacy. The conviction would mean the dethronement of
this
hitherto universally
acclaimed
king of the courts.
Even before the preliminary affair of the Divinatio, Verres had
had the foresight to engage the services of
the most brilliant counsel available. In fact, for years he had been
courting
the favor of the advocate, and that he had been successful is seen in Cicero's allusion
to Hortensius as “that great pleader and friend" of the defendant
ex-governor. We have seen how, five years before, when Hortensius as
aedile was
in charge of the public games, the artistic treasures of Greece and Asia Minor which Verres had
brought
to Rome,
contributed no small share to the brilliance of the decorations.
In addition to his great talents, Hortensius was older than Cicero; he was
almost sure to be one of the
consuls for the following year; he was wealthy and connected with the
nobility,
in the service of whom he had been consistently active. We can only wonder at the overweening
confidence in his own powers and influence which would prompt him to
risk his
primacy at the bar in the defense of so flagrant a plunderer as Verres
was
commonly believed to be.
Cicero was
exceedingly fortunate, in that era of
judicial
p. 169
corruption, in having the opportunity to bring his case before an
honest and
impartial judge. The praetor urbanus for the year 70 was M. Acilius
Glabrio son of the author
of the Lex Acilia. Of his
scrupulousness in investigation and regard for the popular will, and of his conduct
both of the preliminaries and the trial itself,
Cicero
speaks
in the highest terms. In a later work
he states that Glabrio's natural indolence was a defect not remedied by
his
thorough education at the hands of his grandfather, Scaevola. Such a.
tendency
in the praetor's character may be in part responsible for the
prosecutor's
earnest plea to him beginning, “If you have inherited the vigor and
energy of
your father.”
In a quaestio
perpetua, the initial act of an accuser was
known as postulatio. This took the form of an application to the praetor for
redress against
the accused. If no legal obstacle stood in the way, it was followed by
the nominis delatio in
which the accuser formally indicted the defendant. In the nominis recptio
the magistrate indicated that he
had entered the case upon his docket. But the Lex
Cornelia had not provided
a public prosecutor, and therefore any citizen might offer to conduct a
case
before the quastio de Repetundis.
Thus it often happened that more than one would-be prosecutor appeared
with an
indictment against the same individual, and in such cases it became
necessary
to decide which had the better right to conduct the prosecution or, as
Cicero
says, to determine If whom they to
whom the injury is alleged to have been done prefer to be their
counsel; and
secondly, whom he who is accused of having committed these injuries
would least
wish to be so.” The proceeding was
p.
170
called actio de constituendo accusatore, or
technically divinatio. Such
a test afforded Hortensius his first
opportunity for
delaying the proceedings, even furnishing a possibility of eliminating Cicero from the
trial
altogether. With this object in view, Verres's counsel brought forward
a
certain Q. Caecilius Niger,
a Sicilian, the son of a freedman,
a
former quaestor of the governor.
This
man advanced three reasons
why he, rather than Cicero, should be allowed to conduct the
prosecution:
first. he had been mistreated by Verres; he was therefore his enemy and
could
not be prejudiced in his favor; second, as the former quaestor of the
indicted
proprietor, he had fist-hand knowledge of the alleged crimes and would
therefore not be under the necessity of making a journey to Sicily for
the
collection of evidence; third, a Sicilian ought to appear for
Sicilians. It was
a clever move and it effectually blocked the further progress of the
trial
until a divinatio should decide the claims of the rival prosecutors.
The proceeding took place before
a jury not required to take
an oath,
and probably in the court of the Praetor Repetundis, though this cannot
be certainly
known. Neither do we know
p.
171
the number of the jury but only that several of those
who afterward sat on the case of Verres had also acted in that capacity
in the
Divinatio.
The
speech of Cicero
upon this occasion is the only one of its kind which has come down to
us and is
commonly referred to as the Divinatio in Q. Caeciliom.
It must have been delivered about January
15th. and the whole proceeding was probably concluded in one day.
In this speech the orator reveals his
consciousness of the
momentousness of the occasion for his own future and his determination
not to
be cheated of the opportunity to plead the greatest case which had yet
been
entrusted to him. Yet so confident is his attitude so great is the
artistry
with which he ridicules Caecilius, the man of straw, and reveals the
latter's
unfitness for a serious prosecution, especially against Hortensius,
that no
auditor or reader could doubt what the outcome must inevitably be. The
discourse was subsequently edited and published as the first in the
Verrine
series. It falls naturally into three parts: first,
Cicero
explains why he
wishes to undertake the case; second,
he compares his own claims with those, of Caecilius; third,
he weighs the grounds on which his opponent bases his qualifications as
a
prosecutor and contrasts them with his own.
His
willingness to undertake a prosecution, in
spite of his habitual practice of appearing only for the defense,
he explains by referring to his intimate relations with the provincials
during
his quaestorship.
Such a
procedure involved a sacrifice of his personal inclinations,
but
the case might still be regarded as essentially a defense of the
Sicilians
rather than a prosecution of
p. 172
their oppressor.
Nor could a man of honor refuse such a duty in a time when it was
becoming
increasingly difficult for provincials and even citizens to obtain
justice.
The
principle of selection according to which a
prosecutor ought to be chosen was to consider what counsel the
plaintiffs most
desired, and whom the defendant was least anxious they should have.
That Cicero
was
desired by the Sicilians was amply attested as a matter of common
knowledge, by
the testimony of unimpeachable witnesses, and by the requests of
eminent
provincials personally present.
In the absence of a prosecutor better qualified than the speaker, such
an
appeal could not be resisted.
The complaint of the Sicilians should find a receptive ear at Rome, being
brought under the laws de Repetundis, which
had been framed especially for the benefit of the
provinces.
Furthermore, the plaintiffs were well acquainted with both the rivals
and had
as adequate reasons for objecting to Caecilius as they had for
depending upon Cicero.
On the other hand, Verres would decidedly prefer Caecilius, in whom he
could
see no quality to inspire fear. Hortensius
too, was urging the claim of his tool, inspired by the knowledge that
his case
was safe if the latter were prosecutor.
Nothing would stand in the way of his bribing the jury as he had done
in
another case.
In
this
p. 173
connection, Cicero
displays considerable personal feeling
against his great rival-a proceeding which would be an unquestionable
breach of
taste today-intimating that the supremacy of Hortensius had been due to
the
fact that heretofore he had faced only immature and inferior opponents.
Now he
was to meet fearless men of well tested character.
Caecilius was
possessed of none of the qualities requisite in a prosecutor. Such an
official
should above all be a man of honor and integrity.
The fact that the Sicilians were stating that if Caecilius were
prosecutor they
would not appear in the trial, could only indicate that Verres and his
former
quaestor were tarred with the same stick.
An accuser must be trustworthy and truthful. The very situation would
make it
impossible for Caecilius to be so, even though he actual1y desired to
be.
There were so many charges in which he was, to an extent, implicated
·with his
former chief, that in accusing the latter, he would not dare to mention
them.
The whole matter of extortion in connection with the grain,
perhaps the most important of all the charges, would have to be omitted
entirely, because Caecilius, as Verres's quaestor, had handled the
funds. He
must inevitably have known of the corrupt practices which were making
the
governor wealthy; he had never opposed them; therefore he was an
accessory.
In other matters also, the fear of exposure would seal his lips, and
his
prosecution, would be the veriest farce.
Another ground for the charge of incompetence was Caecilius's lack of
the
education and experience necessary to a successful prosecutor.
The assembling and
p.174
logical arrangement of his facts would be utterly
beyond him. It would be impossible for him to
impress his
hearers with the great importance of the case or to command their
attention by
expressing his ideas in forceful language. Even a man adequately
prepared might
well be dismayed at the difficulties of the task,
as Cicero
confesses himself to be.
It was only the ignorance of Caecilius which could give him confidence,
for in
the hands of a man like Hortensius he would be a mere child. Utterly
bewildered
by the wiles of the leader of the bar, he would probably forget even
the
instructions with which he had been primed and the words borrowed from
other
men's speeches which he had committed to memory.
Cicero,
on the other hand,
was well versed in all the tricks of the skilled practitioner. He had a
wholesome respect for .the ability of Hortensius, but felt himself able
to cope
with it.
Nor
could Caeci1ius rightly claim that he had the
aid of able assistant-prosecutors (subscriptores).
The first of these was one L. Appuleius, whom Cicero represents
as a tyro in experience, if
not in age.
The
other was Alienus, more distinguished-if we may believe the orator-for
the
noise he made in speaking than for the effectiveness of his remarks.
Even men of such mediocre talents would hardly dare to put forth their
best
efforts for fear of outshining their chief.
The first ground
upon which Caecilius based his claim to the office of
prosecutor was the allegation that he had personally been injured by
Verres.
Granting this, Cicero
still maintained
p. 175
that the infinitely more grievous wrongs suffered by
the
provincials made their claim to choose a prosecutor of greater weight.
The offense for which Caecilius cherished resentment against Verres was
also of
a peculiar nature. A certain Agonis of Lilybaeum, a freedwoman of Venus
Erycina, was known to be very rich. Some one of the captains of M.
Antonius,
then operating against the pirates, had abducted a number of valuable
slaves
from this woman. In order to express more emphatically the enormity of
the
theft, she declared that she herself and all her property belonged to
Venus.
Caecilius, at the time quaestor of Lilybaeum, heard of the matter,
summoned the
woman to trial, succeeded in establishing that she had actually stated
herself
to be a slave, and upon the basis of that declaration seized her
property, sold
it and appropriated the money.
But shortly afterward Verres compelled his quaestor to disgorge the
newly
acquired gains, and to turn everything over to him. Then he returned to
Agonis
such part as he saw fit and kept the remainder.
The case was thus shown to be simply that of one thief cheating another,
a
ridiculously inadequate basis upon which to press a claim to be
prosecutor. Cicero
also shows that
afterward the two men were apparently upon the best of terms.
Caecilius
furthermore contended that his position as quaestor of
Verres had afforded him extraordinary opportunities for acquiring
confidential
information which would prove most valuable as evidence. Cicero dwells
long upon the violation of
propriety which the use of such information would entail, exclaiming,
“If you
had received ever so many injuries from your praetor, still you would
deserve
greater credit by bearing them
p. 176
than by
avenging them!”
Precedent would show that the tie between praetor and quaestor had
always been
regarded as sacred, and as not to be broken without involving a
violation of
every principle of right.
No quaestor had ever been permitted to act as accuser against his
praetor,
a statement in support of which Cicero cited three cases in which such
permission was refused: L. Philo vs. C. Servilius: M. Aurelius Scaurus
vs. L. Flaccus;
Cn. Pompeius vs. T. Albucius.
Of the first two cases practically nothing further is known,
but of the third we know that T. Albucius was praetor of Sardinia, B.
C. 105, and
two years later was found guilty in the court of Repetundae on a charge brought by
C. Julius Caesar Strabo, who was chosen to be
prosecutor instead of Cn. Pompeius, solely on the ground that the
latter had
been quaestor to Albucius.
Even, under the
most favorable circumstances it could hardly be expected that his
resentment at
a personal wrong would qualify Caecilius for the prosecution in the
same degree
as Cicero
would
be qualified be disinterested indignation against the despoiler of a
province.
Private revenge as a motive suffers in comparison with the desire to
see justice
done the allies of the state.
The present task was such a one as the noblest Romans had ever felt a
pride in
undertaking, even at the risk of their own reputation.
But Caecilius had no reputation to lose, no matter how he might fail,
and
everything to gain, both for himself and those who control1ed him. Cicero had
determined to
p. 177
stake everything upon this one
throw. Defeat meant
the loss of everything it had taken years to gain. The Roman people
would not be slow to put their own construction upon the
motives of a jury which should deliberately reject the claims of an
honest
prosecutor in favor of a tool of the oligarchy.
It is a remarkable speech which has
come down to us, though it was probably edited and revised to some
extent after
its delivery, and we cannot know just how much of it was spoken in the
form in
which we now have it. “It is the only extant discourse of its kind, in
which
the speaker is obliged to eulogize himself, and yet dares not be
over-arrogant.
Naturally we are Dot compelled to believe all that Cicero says. It is masterful artistry
with
which throughout he makes Caecilius ridiculous by depicting the way in
which
Hortensius will dispose of his own helpless creature.”
Doubtless there is much of exaggeration in the speech which we have no
way of
separating from the strict truth. There is an intense pride manifest
throughout, unpleasantly prominent at times,
but toned down by an occasional note of modest self-depreciation. But
it is a
just pride, and Cicero's
confidence 1n himself was borne out by the event. He was chosen"
prosecutor. Verres's first move in the great trial had been
successfully
blocked.
With Caecilius
out of the way, Cicero's
next proceeding, in accordance with the usual custom, was to bring his
formal
charge against Verres, a charge which he had already enunciated in the Divinitio.
·He accused the governor of having extorted a
sum of
forty million sesterces from the Sicilians, and demanded from him,
under the LexCornelia,
one hundred million sesterces in return,
a penalty of two and one half times the amount extorted.
The interrupted nominis receptio then took place and
p. 178
the prosecutor applied for an
adjournment of 110 days
for the purpose of gathering evidence in the province. The adjournment
was
granted, and as there was no time to lose, Cicero
probably made his preparations to leave for Sicily on the next day.
His cousin, Lucius Cicero, was to accompany
him, possibly in the capacity of subsciptor. We
may conclude that all this took place on the day following the
Divinatio, or about January 16th. On the 17th,
having been provided with the necessary credentials by Glabrio,
he was ready to start.
But the
opposition, defeated in the first trial of strength, was far from
discouraged.
Probably on the day when Cicero
was to
p. 179
leave, Hortensius played his second card. He produced a
partisan
of
Verres who brought before Glabrio a charge against a Roman governor of
the province
of Macedonia,
accusing him of extortion in
Achaia,
and requesting an adjournment of 108 days for the collection of evidence. The
significance of this figure is understood only when we realize that
this
adjournment would expire on the 5th day of May, whereas Cicero's
adjournment of 110 days, granted the
day before, would not expire until May 6th. Thus the Achaian case would
have
precedence on the docket of Glabrio's court, and would come to trial
first,
while the case against Verres would have to be postponed until the
other case
was decided.
A
more adroit move could hardly be imagined, and we may well suppose that
Cicero
and his clients were disagreeably surprised and somewhat dismayed by
this
unexpected maneuver which would upset their plans to the extent of
making it
impossible to begin the trial in May. But there was no way of striking
back and
it is hardly probable that Cicero's
departure
for Sicily
was postponed.
Accompanied by his cousin, he landed
during the .last of January at one of the ports in the western part of
the
island,
probably Lilybaeum, where he was best known. From scattered references
in the
speeches it is possible to gather a few details of the journey.
Visiting all the principal cities, with great industry
p. 180
he examined and
copied
public records and took the testimony of individuals,
even calling the farmers from their plowing to furnish
statements of what they had suffered. With few exceptions he
received courteous treatment, and in many localities was
enthusiastically
received as the defender of the province.
In order to avoid all appearance of other than disinterested motives,
he paid
all his expenses from his private purse,
though as a senator of Rome
he was entitled to entertainment at public expense.
During the course of his journey the prosecutor was subjected to
considerable
petty annoyance at the bands of Metellus, Verres's successor. In the
first
month of his term, Metellus bad been engaged in remedying as far as
possible,
the destructive work of his predecessor. But simultaneously with Cicero's arrival
there
came to the new praetor a certain Laetilius bearing letters from
Verres, upon
the receipt of which Metellus "suddenly became the friend and
relative" of the ex-governor,
and from then on hindered Cicero in every possible way. Some of the
cities he
solicited for testimony in defense of Verres. The witnesses who gave
testimony
against Verres were threatened;
many upon whom Cicero
relied were prevented by arrest from appearing; only the credentials
furnished
by Glabrio made it possible to procure as many witnesses as he did. The
two
quaestors of Verres were still in the island and they, aided by their
successors, ably supplemented the new praetor's efforts to increase for
Cicero
the difficulty of
securing evidence.
But the provincials were too much aroused to be cheated out of their
opportunity for redress, and we may suspect that Cicero was not greatly disturbed by
the
efforts to thwart him. At Heraclea
and elsewhere he was met by the mothers and children of the
p. 181
men
recently
executed by Verres, and hailed by them as a savior, while the former
governor
was execrated as a murderer.
At Henne he was escorted into the city by the priests of Ceres and a
great
concourse of citizens, bewailing the spoliation of their temple and the
desecration of their deity.
At Syracuse, where Cicero expected little consideration
because
that city had not joined the others in requesting him to prosecute
Verres, he
was surprised to be informed that the participation of the Syracausans
in a 1audatio of the governor had been
due to
coercion. The Syracausans afforded the
prosecutor every facility for collecting evidence, made L. Cicero a hospes of
the state, and rescinded the decree ordering the 1audatio. Metellus forthwith adjourned the senate and accused Cicero
of
unseemly conduct, in that he had spoken in Greek before the senate of a
Greek
city. After considerable difficulty, the prosecutor succeeded in
obtaining a
copy of the senate's decree which he later presented as evidence. The
greater
detail
with which Cicero speaks of his experience at Syracuse was, of course,
employed
to offset the fact that representatives of the capital city had not
been among
those who chose him to conduct the case At Messana he was not so
fortunate. The
city did not even offer him the public hospitality due his rank,
a slight which was partially responsible for his bitter arraignment of
the
Mamertines later on.
In spite of all
obstacles Cicero
succeeded in concluding his labors at the end of fifty days,
a marvelous achievement for those times, and one in which he took a
just pride.
His return journey was not without annoyance and even danger at the
hands of
pirates, remnants of the slave armies, and emissaries of Verres.
Sailing from
Messana, he landed at Vibo Bruttium, and from there took passage in a
small
ship for Velia in Lucania,
reaching Rome
safely about March 8th. The cause of his
p. 182
haste we can only
conjecture. We may conclude, however, from his statement that he
considered it
necessary to be in Rome on a certain day
in order to prevent the case of Verres from being dropped from the
docket, that
he feared the machinations of the defense in his absence, and that
possibly
Hortensius had been successful in having some terminal day set upon
which
Cicero must appear, even though it was in the middle of the adjournment
granted
him. The remainder of the time until May was ...,
thus
left free for the working up into a brief
of the vast store of material he had gathered in the province and for
the
promotion of his candidacy for the office of aedile, which was to be
voted upon
in the July elections. Shortly after his return from Sicily,
probably about the middle of March,
the opposition showed the first sign of panic. Verres attempted to
bribe Cicero.
Galled by his failure to corrupt the man of whom his fear was daily
increasing,
he and his friends spread the report that the prosecutor had accepted a
large
sum from them, in return for which he had promised that the prosecution
would
be only a
sham. The
partial purpose
of this report was to intimidate the Sicilian witnesses who had come to
Rome
prepared to testify.
But they had confidence in the integrity of the man to whom they had
entrusted
their case, still holding in mind his excellent record at Lilybaeum.
Thus the
canard reacted upon the heads of the would-be bribers .
On May 5th the
adjournment
granted to the prosecutor in the Achaian case expired and that case was
called
for trial. Cicero
intimates that the prosecutor in this case never went as far as
Brundisium in
his quest for evidence.
But at any rate he secured enough material to
warrant him in proceeding with the trial, and to bring about his
success in
drawing out that trial through the greater part of May, June, and July.
p. 183
the day before the Achaian trial began, Cicero's
adjournment of
110 days expired. He would therefore have been summoned before the
court and
informed that the case against Verres was further postponed until a
verdict
should be returned in the Achaian case, which was exactly what
Hortensius had
counted upon as a result of his coup of
January 17th.
The
jury for the trial of Verres was probably
empanelled some time during the progress of the Achaian case, in order
to
expedite proceedings upon the decision of that case. The sortitio, or choosing
by lot of the jurors from the senators of
the decuria assigned to
the case under the Lex Cornelia, may well have
occurred as early as June 1st. Under the
law a defendant or prosecutor ranking lower than a senator could
challenge only
three judices. A senator
could apparently challenge twice that
number. Perhaps thirty days intervened between the sortitio and the rejectio
judicum. Upon the
latter occasion
Verres took full advantage of his senatorial rank and challenged six
jurors, as
follows: Sextus Peducaeus,[2] the
ex-governor of Sicily
under whom Cicero had served as quaestor five years before ; Q. Junius,
' mentioned by Plutarch
as an able man ; Q. Junius,'
possibly a relative of the young Junius whom Verres had robbed during
the city
praetorship ;
C. Cassius, ex-consul, whose wife Verres had cbeated P.
Servius;
P. Sulpicius Galba.
We
have the name of only one juror challenged by Cicero, M. Lucretius.
The names which have come down to us of the judices who survived the rejectio, are
as follows:
M. Caesonius,
Q.
p. 184
Manlius
Q. Cornificius,
P. Sulpicius,
M.
Crepereius,
L.
Cassius,
Cn. Tromellius,
M.
Metellus,
Q. Lutatius Catulus,
P. Servilius Isauricus,
Q. Titinius,
C. Marcellus, L.
Octavius Balbus.
The
personnel of the jury thus empanelled,
consisting of the thirteen above and about as many more whose names are
unknown, made impossible any effective use of bribery by the defense, a
device
in which Verres had placed his trust up to the day of the rejection
judicum. Immediately
upon his
return from the province he had endeavored to get rid of this
prosecution by
the lavish use of money" (evidently a reference to the Divinatio). In
the sortitio good
fortune had been with Cicero
in that the majority of the names drawn were those of incorruptible
men, and in
the rejectio the
prosecutor had made such judicious use of his prerogative of
challenging that
the whole project of bribery was abandoned.
The names of the judices chosen
were commonly known, and there seemed to be no opportunity for
Hortensius's favorite
trick of marked ballots.
Evidently Verres had never doubted that his plunder would be
efficacious in
purchasing jurors' votes. Cicero quotes
him as
declaring openly in Sicily
that he had a powerful friend,"
in confidence in whom he was plundering the province; that he
p. 185
was not seeking money for
himself alone, but would be contented to keep the gains of only one of
the
three years, reserving those of the second for his patrons and
defenders, and
those of the third,
the most richly productive of all, for the
judges.1
Of this frank statement Cicero made effective use upon the occasion of
the rejectio, declaring that the
provinces would soon
be demanding the abrogation of all laws and penalties for extortion, in
the
hope that if the prospect of an indictment were removed, Roman
governors would
plunder only for themselves and not for a host of retainers also.
That Verres had not been entirely unsuccessful in his efforts to
corrupt the
jury is implied by the statement of one of his friends that he had
bought one judex for 400,000 sesterces, another for 500,000, and
the one whose price was lowest for 300,000.
At this
juncture the
fortunes of the defense seemed to be ebbing, and Verres was
considerably
downcast.
But the resourceful Hortensius was far from being defeated, and
immediately put
into execution a plan which he had been reserving for this very
emergency. The
consular elections were to be held in July. Hortensius and Q. Metellus were candidates for the consulship, M.
Metellus for the praetorship, Cicero
for the office of aedile.
If Hortensius and the two Metelli, influential friends of Verres, could
be
elected, and Cicero
defeated, by delaying the trial until the beginning of the next year,
the case
of Verres would be thrown largely into the hands of his friends and he
could
easily be acquitted. The first part of the plan was entirely
successful.
Hortensius and the Metelli were elected by Verres's money.
So great was the confidence engendered in the defense by this success
that upon
the day of the comitia,
p. 186
after
the results had
been announced, the friends of Verres openly congratulated him as
already
acquitted by the elevation of his defender to the consulship. Fortune
further favored the defense upon the occasion
of the lot for the distribution of provinciae to the
praetors-elect. For to M. Metellus fell
the jurisdiction over the court of Repetundae
. Therefore, if
the trial could be postponed until
January 1st, he would succeed the just Glabrio as presiding judge.
Verres was again receiving congratulations. But the comitia for the
election of aediles were yet to be held. The
Sicilian treasure was freely expended in an effort to defeat Cicero, “ten
chests of money" being
appropriated for the purpose,
and their contents given into the bands of divisores or
professional bribers for judicious distributiod.
One of these agents, a certain Q. Verres of the Romilian tribe, undertook to bring
about the desired result for 500,000 sesterces.
Cicero
was well
nigh distracted with the multiplicity of duties and dangers which
surrounded him.
Verres and his son took an active part in the canvass against the
candidate
they feared.
But all their efforts were in vain and Cicero
was handsomely elected.
Even then further attempts were made to intimidate the Sicilians in Rome. Q. Metellus summoned some of them, pointed out that he
was to be consul the next year, that his brother Lucius was even then
propraetor in Sicily, that his other brother, Marcus, would be
presiding over the
case of Verres after January 1st, and that therefore they could not
expect that
the defendant would ever be convicted.
Furthermore many of the present jurors would be unable to act after the
first
of the year. Caesonius had been elected aedile with Cicero and
p. 187
would be
obliged to assume
his new duties. Manlius
aud Cornificius had been elected tribuni plebis; Sulpicius was to enter upon a magistracy
in December; Crepereius, Cassius, and Tremettius were military
tribunes-elect;
Metel1us was the new praetor.
The places of al1 these would be fitted by men whom Verres could'
trust.
Nothing could prevent the defendant's acquittal. So great was the
confidence
inspired by the results of the elections that some further sporadic
efforts
were made toward bribing the jury already empanel1ed.
We
may suppose that the case against the Achaian
governor was decided about July 31st,
The 5th of August,
70 B. C., was set as
the opening of the long-awaited trial, and the few intervening days
were full
occupied by the opposing parties. Now that those of the Verrine faction had
succeeded in arranging that the case should fall into their hands after
the
first of the year, it only remained to carry out successfully the rest
of the
program-namely, to delay the proceedings as much as possible so that a
verdict
could not be reached before January. Again circumstances aided their
plans. Games
and holidays, both those regularly held and specially appointed ones,
were
approaching. On August 15th, only ten days later, the Ludi
Votivi of Pompey, celebrating his Spanish
victories, were
to begin and were to last fifteen days; the Ludi; Romani began September 4th and lasted nine days; from
September 15th to 18th were the Luti,· Romania; in
Cireo. Allthis would entail adjournment of court
for some
forty days. Then it was hoped that the proceedings could be dragged on
till the Ludi Victoriae, beginning
October 25th and lasting five days. The Ludi Plebiii; would come in November. By that time it would be
impossible to finish the trial within the year and the case would go
over into
the
p.
188
bands of Verres's friends.·
The
regulation of the Lex Servila
was
still in force, providing for a comperendinatio, or adjournment, of one day between tbe actio prima and tbe actio secunda. In
view of all the possibilities for delay inherent in these
circumstances, it is hardly
to be wondered at that Verres and his adherents approached the day of
the trial
with confidence.
To
Cicero
the situation presented a serious dilemma. It would take days and weeks
to exhaust
the rich store of evidence be had gathered and carefully prepared. If
he spoke
as he had intended to speak, if he made a serious effort to outshine
Hortensius
in oratorical display, if he conducted the trial upon the usual lines,
it was
quite possible that the whole case might go over to the next year and
be irretrievably
lost. It was indeed a bitter alternative which confronted him. But it
was an
alternative which. while it involved the sacrifice of a wonderful
opportunity for brilliant forensic work, yet
spelled
probable success. Cicero
deliberately resolved upon a bold stroke, whose timeliness makes it the
most
brilliant coup in the history
of the Verrine
indictment. Its brilliance and the staggering surprise which followed
upon its
execution were in no wise lessened by its utter simplicity. On the 5th
of
August the court convened at the eighth hour.
Cicero,
instead of
delivering a long speech wholly introductory in character, confounded
the
opposition by the short, incisive discourse which has come down to us
as the Actio
Prima. In the course of it he briefly reminded the senatorial
jurors of the
great opportunity given them to remove the prejudice existing against
their
class.
There followed a clear expose' the plot of the opposition to
delay the
trial until the following year and of the tricks which bad already
postponed it
for months.
Then he
p. 189
sprung his
trap. He
explained that the necessity for haste had compelled him to abandon any
idea of
making an elaborate speech, that he would simply produce his witnesses
and let
them state the facts, relying upon the justice of his case and the
eloquence of
uncorrupted testimony to be as effective as the most elaborate
discourse could
be.
An eloquent appeal to the jury and the presiding judge
followed, and the speech was concluded with a formal statement of the
indictment, “I declare that Gaius Verres has not only committed many
arbitrary
acts, many cruel ones against Roman citizens and the provincials, many
wicked
acts against gods and men, but in particular that he has taken away
forty
million sesterces out of Sicily contrary to the laws."
The effect was electrical. The defense was taken utterly off its guard.
The
prosecutor proceeded immediately to the examination of witnesses, and
at the
end of the first day had produced a profound impression upon the jury
and the
assembled crowd.
For nine days the examination of witnesses
proceeded,·the hopes of the defense gradually fading, as the
incontrovertible
testimony of the Sicilians wove the net tighter about the indicted
governor. On
the third day Verres, pretending illness, withdrew from the court and
began to
plan how he could avoid making a reply. On the subsequent days, as the
examination proceeded,
with Hortensius only rarely interrupting the witnesses,
it became more and more evident that nothing could save the defendant.
In the
hour of defeat the great advocate's temper arose. When Cicero reflected
obliquely upon him, he
retorted that he was not skilled in solving riddles.
“No?" replied the pitiless prosecutor, “not
even when you have the Sphinx in your house? "-a
cutting reference to an ivory statue, the gift of Verres. Cicero even
twitted him later with
ungratefully abandoning his client in the
p. 190
crisis.
Without awaiting the verdict, Verres said farewell to Rome and went
into voluntary exile.
In
absentia he was
condemned by the court to pay an indemnity,
the amount of which is not certain,
and to remain in exile for the rest of his life.
Cicero's victory
was complete. But he was not to be
denied the opportunity to make use of all of the great mass of evidence
which
he had intended should form the basis of his oratory. The fiction of an
Actio Secunda
made it
possible to utilize the fruit of his labors
with a result far more lasting than the spoken words could have had.
After
carefully editing his material, Cicero
published the five speeches purporting to have been delivered after the
usual comperendinatio. The
contents of these speeches have been treated in previous chapters and
need not
be repeated here. Suffice it
to say that the device of supposing an Actio
Secunda was more than
justified in the vividness of the atmosphere which surrounds the
published
speeches. The reader can only with difficulty force himself to the
realization
that they were never spoken, so successfully has the author
counterfeited the
actuality, And yet a careful perusal reveals the fact that they are
intended not
primarily for a jury, but for the great public. As has been repeatedly
pointed
out, the arguments are often illogical,
their arrangement is many times faulty, and their appeal is to
prejudice rather
than to reason. But Cicero has handed down to the historian a most
valuable
mass of material which is our chief source of knowledge of the
intolerable
conditions which obtained in the Roman provinces during the last years
of the
Republic, the cumulative force of which will be to condemn forever the
senatorial oligarchy established by the Sullan constitution. Cicero saw the
impending fall of that
aristocracy,
and one may well suppose' that his contribution to
p. 191
the consummation of reform
was the publication of his undelivered speeches. Verres had been
only a type. He
had stood for the whole corrupt system. It
was for more than the condemnation of one man that the
orator had
striven, and the outcome of the great trial was the death-knell of the
power of
the Optimates. Cicero's
singleness of purpose, his devotion to duty, his skill in foiling the
most
cunning moves of a determined opposition had borne fruit, and he was
well
content.
For
twenty-seven years the exiled praetor lived
in Massilia the quiet life of a connoisseur, surrounded by the remnants
of
"the wonderful treasures he had once possessed .. Further than that we
know nothing of his life after leaving Rome.
This fact shows that it was probably uneventful. If we may believe the
tradition, his love of art was, in poetic justice, the cause of his
death. In
the year 43 B.C. Antony
commanded him to surrender some of his beloved Corinthian vases. Verres
refused, was forthwith proscribed by the triumvir, and summarily
.executed. According
to
Asinius Pollio,
the old man, now over seventy, died
with
great fortitude and before his death had the satisfaction of a sort of
vicarious revenge, upon hearing that the man who was responsible for
his
downfall had already met a similar fate.
So an implacable hate was satisfied.
|