Praetor might at his pleasure determine which of the two parties should be the stipulator, and consequently which must be the plaintiff in the action on the Sponsio, and must prove his case. This may be So, for the Praetor could impose on the parties his own terms, if they could not agree on the mode of procedure. He must however have been guided in his judgment by such facts as he knew; and Keller, who contends that the Praetor did right in referring to a Judex the decision of a question which, as far as Cicero's speech shows, was a very perplexed question, also admits that the facts as they appear seem to be in favour of Naevius having had possession; and I have shown that there is no doubt of that, for Cicero says so, but he disputes the complete possession. It is generally said or supposed by modern writers that the plaintiff in the principal action was also the stipulator, and consequently the plaintiff in the Sponsio; and Keller admits that this was so, whenever the principal action was comprehended within and decided by the 'actio praejudicialis.' He does not give an instance of such a case. His conclusion is this, as to the actio praejudicialis,' the matter of the present inquiry: "that when a praejudicium was necessary on account of some secondary and incidental question, it was just to consider on which of the two the burden of the proof lay, and which of the two had the presumption in his favour, or (as here) a show of possession; and accordingly to require him on whom the burden of the proof lay, to become the stipulator and the plaintiff, and to allow him who had the presumption or the show of possession in his favour, to be the promissor and the defendant." This is a just statement of the case; and the decision of the Praetor is justified by what Cicero admits. Naevius had possession of part of the property, and Cicero tries to show that it was not such a possession as the edict and the law required, and therefore his client was properly the plaintiff in the Sponsio.

The nature of the question before the Judex being explained, it only remains to show briefly what Cicero attempted to prove (Keller, p. 171, &c.). The whole matter is contained in the following words (c. 10): "Negamus te bona P. Quintii, Sex. Naevi, possedisse ex edicto praetoris. In eo Sponsio facta est." Cicero divides this defence into three parts (c. 10): "Nego fuisse caussam cur postularet (Sex. Naevius) : nego ex edicto possidere potuisse; nego possedisse." The two first divisions seem to be a matter of law. The third touches the fact of possession. As Keller understands it, if Quintius could prove any one of these three things, he would gain his cause.

In the first division Cicero employs eight chapters (c. 11-18) to show that Naevius had no legal ground for asking permission to seize the property of Quintius; and he attempts to prove this by showing that Quintius was not indebted to Naevius, either on a partnership

account, or on any other account (c. 11-14); and secondly by showing that Quintius had not failed in making any appearance which he was bound to make (c. 15-18). Keller has answered Cicero's arguments in support of these two positions, in which I do not think it necessary to follow him. I do not dissent from all that he says, nor from much of it. The weakness of Cicero's argument is proper matter for the student to exercise himself on.

The second division (c. 19-27) contains the arguments which show that Naevius could not have seized the property of Quintius 'ex edicto.' This part of the defence is subdivided into five parts. In the first part (c. 19-22), the cases are considered in which a man's property may be seized by his creditors; and the case of Quintius is not any of these. In the second part it is urged (c. 23, 24) that if the goods had been seized, the rest of the creditors of Quintius would have put in their claims, and the goods would have been sold. As this was not done, Cicero concludes that Naevius had not possession 'ex edicto ;' manifestly an illogical conclusion. In the third he affirms that when the dictator L. Sulla was selling some property of the proscribed Alfenus, Naevius was a purchaser, and said that the purchase was on the joint account of P. Quintius and himself; whence he concludes that the goods of Quintius were not seized, for Naevius would not have made a joint purchase with a man who was in the ignominious condition of a debtor with his goods seized. This is very feeble: the facts are imperfectly stated, and it is impossible to accept the argument as worth any thing, with such knowledge of the facts as we have. In the fourth, Cicero attempts to show that Naevius sent men to Gallia to take possession before he got the Praetor's permission; and he proves this by the time. And in the fifth place, Naevius did not take possession 'ex edicto,' even if the fact of possession is admitted, because he turned Quintius out of the land in Gallia by force (c. 27).

Keller examines all these heads of argument. He does not admit that Cicero's argument is worth any thing, even if we suppose it to be true that Naevius sent men into Gallia to seize the land before he got the Praetor's order. He thinks this seizure, which might be a prudent measure, justified by an order obtained afterwards. I don't suppose that any body will agree with him here; nor when he says on the fifth head, that if Naevius took possession of the property in Gallia in a manner contrary to the order of the Praetor, he still had possession 'ex edicto.' Klotz, he says, is of the same mind with himself. Something more is said of this in the notes.

The third division contained the proofs and arguments that Naevius had not in fact seized the property of P. Quintius; but unfortunately all this division which came between c. 27 and c. 28 is lost, and we can only conjecture what was its purport from the peroration (c. 29, &c.).

Keller, in his essay, besides the division entitled 'Defensio in partes locosque digesta' (c. 9), of which I have just given a summary, has discussed the following heads at some length:

§ 1. Quae fuerit judicii origo et natura.

§ 2. Quo jure Naevius ut bona Quinctii possideret a Praetore cum postulaverit tum impetraverit.

§ 3. Generalia quaedam de jure bonorum a creditoribus cum possidendorum tum vendendorum.

§ 4, 5, 6. Subsecivae quaestiones.

§ 7, 8. Alfenus Quinctium absentem recte defenderit necne. These heads will show what kind of matter is contained in this oration. My plan required me to place in notes most of what Keller has put in the form of dissertation; but I have omitted very little that he has discussed; and though I do not always agree with him, he is the first person who has set the matter of this oration in a clear light.

The difficulty of the subject, the misunderstanding and the blunders of the commentators, are a sufficient apology for the length of this introduction and the notes. If this oration of Cicero is well understood, it will help a student towards understanding others. He will see how necessary it is to get a clear view of the matter, and not allow himself to think that under this simple, easy language there lies no difficulty. He will also learn to read the speech of an advocate with a proper distrust, and to know that Cicero's facts are not always true, and that his arguments are often directed solely to get a judgment in his favour.

There is a remark by a great scholar on the reading of Demosthenes, which is worth quoting here; for it is very appropriate: "Nocent autem aetati rerum imperitae ii scriptores maxime, qui obviis verbis, facilique ac dilucida oratione complectuntur res ejusmodi, quibus capiendis multa antiquitatis doctrina opus est. Talis oratio quum saepe etiam doctum deludat, fit plerumque illud, quo nihil nocentius esse potest, ut qui immature legunt, multum legendo nihil plene et accurate intelligere discant-Nam constat hos qui in Academiam delati nihil nisi magna et nobilia nomina scriptorum loquuntur, quos cognosse sibi, si diis placet, in scholis contigerit, eosdem fere reperiri inscientissimos, et in primis doctrinarum elementis rudes-Atque adeo quis fortasse non male judicet, qui hoc totum genus lectionis dicat ad virilem aetatem rectius reservari." (F. A. Wolf. Demosthenis Oratio adversus Leptinem, Epistola ad Reiz, p. x.)

M. TULLII CICERONIS

PRO

P. QUINTIO ORATIO.

I. QUAE res in civitate duae plurimum possunt, hae contra nos ambae faciunt in hoc tempore, summa gratia et eloquentia; quarum alteram, C. Aquilli, vereor, alteram metuo. Eloquentia Q. Hortensii ne me in dicendo impediat, nonnihil commoveor: gratia Sex. Naevii ne P. Quintio noceat, id vero non mediocriter pertimesco. Neque hoc tanto opere querendum videretur, haec summa in illis esse, si in nobis essent saltem mediocria. Verum ita se res habet ut ego, qui neque usu satis et ingenio parum possum, cum patrono disertissimo comparer; P. Quintius, cui tenues opes, nullae facultates, exiguae amicorum copiae sunt, cum adversario gratiosissimo contendat. Illud quoque nobis accedit incommodum, quod M. Junius, qui hanc caussam, Aquilli, aliquoties apud te egit, homo et

1. C. Aquilli,] C. Aquillius Gallus was a colleague of Cicero in the praetorship in B.C. 66. He was a lawyer or jurisconsultus, and a pupil of Q. Mucius Scaevola, Pontifex Maximus. He attained great distinction as a jurisconsultus, and the well-deserved reputation of an honest man, and an enemy to chicanery. Gallus was one of the instructors of Servius Sulpicius. He acted as Judex in the case of Quintius (B.C. 81); and also in the matter which is the subject of Cicero's oration Pro Caecina. Cicero always speaks highly of his talents and integrity. In his Officia (iii. 14) he speaks of him as having published the formulae de Dolo Malo; and in another passage (De Nat. Deorum, iii. 30) as having published (protulit) or introduced the Judicium de Dolo Malo. It is not quite certain if Cicero alludes to something that he effected by his Edictum as Praetor; but that seems the most probable meaning. Gallus is often

cited by the Jurists out of whose writings the Digest was compiled.

vereor,―metuo.] It is usual for critics to fix the difference of meaning of such words as these; but in many cases it is hard to do, and students must try to find it out by comparing passages. This may help: Cicero (De Sen. c. 11) says of Appius Claudius the Censor: "metuebant servi, verebantur liberi." Both slaves and children feared him, but in different ways. 'Vereri' and 'metuere' are two words which Cicero gives as instances for an inquiry into sameness and difference. (De Or. iii. 29.)

comparer:] This means 'matched with,' as one gladiator with another. Thus paria' is used to signify pairs or matches of gladiators. See Horace, Sat. i. 7, 20. Cicero was now in his twenty-sixth year; and Hortensius, who was eight years older, had attained great reputation as an orator.

M. Junius,] It is not certain who this

in aliis caussis exercitatus et in hac multum et saepe versatus hoc tempore abest, nova legatione impeditus; et ad me ventum est, qui, ut summa haberem cetera, temporis quidem certe vix satis habui ut rem tantam tot controversiis implicatam possem cognoscere. Ita quod mihi consuevit in ceteris caussis esse adjumento, id quoque in hac caussa deficit. Nam quo minus ingenio possum, subsidio mihi diligentiam comparavi; quae quanta sit, nisi tempus et spatium datum sit, intelligi non potest. Quae quo plura sunt, C. Aquilli, eo te et hos, qui tibi in consilio adsunt, meliori mente nostra verba audire oportebit, ut multis incommodis veritas debilitata tandem aequitate talium virorum recreetur. Quod si tu judex nullo praesidio fuisse videbere contra vim et gratiam solitudini atque inopiae; si apud hoc consilium ex opibus, non ex veritate caussa pendetur, profecto nihil est jam sanctum atque sincerum in civitate; nihil quod humilitatem cujusquam gravitas et virtus judicis consoletur. Certe aut apud te et eos qui tibi adsunt veritas valebit, aut ex hoc loco repulsa vi et gratia locum ubi consistat reperire non poterit. II. Non eo dico, C. Aquilli, quo mihi veniat in dubium tua fides et constantia, aut quo non in his, quos tibi advocasti, viris electissimis civitatis, spem summam habere P. Quintius debeat. Quid ergo est? Primum magnitudo periculi summo timore hominem afficit, quod uno judicio de fortunis

Junius is. Passeratius supposes him to be M. Junius mentioned by Cicero. (De Leg. iii. 20.)

It appears that the case had been already heard in part and had been adjourned. More than one patronus was employed, as we see; but it is not certain whether Cicero defended Quintius because Junius was absent, or whether he would have spoken if Junius had been present. Cicero elsewhere (c. 10) alludes to the case having been stated by Junius.

Junius was absent on some legatio,' but there were many kinds of legatio,' and we do not know what this was. Some suppose that nova' means a new legatio,' as opposed to a former legatio;' and this may be the meaning. Or it may mean a sudden or unexpected legatio.'

Quae quo plura] 'Quae' refers to all the difficulties that Cicero has mentioned, all that he had to contend against.

in consilio adsunt,] The persons 'qui in consilio aderant' were L. Lucilius, P. Quintilius, and M. Marcellus (c. 17). They are mentioned (c. 2) as invited by Gallus to give him their assistance quos tibi advo

6

casti;' and they were accordingly advocati.' Thus we obtain from the simple sense of the verb 'advocare' the meaning of the advocatus' of Cicero's time. Here they are the men who sit with the Judex, whom he invites to help him. In other cases they are invited to assist a defendant or plaintiff with their advice; and are distinguished from the patronus.'

atque sincerum] Three Paris MSS. have neque sincerum;' and it may be right. Klotz has 'neque sincerum.'—' nihil quod .. gravitas.' Here is a double nominative to consoletur,' for 'quod' is a nominative, and it is explained by 'gravitas et virtus.'' locum ubi res consistat :' Klotz. Eight of Keller's MSS. have 'res;' and many MSS., as Orelli says. Klotz asks, who could have put 'res' into all the MSS. ? but we know that it is not in all the MSS. Any body may add it if he pleases; and no harm will be done.

2. Quid ergo est ?] A usual formula, as in c. 3, 18, 23; and in Horace, Ars Poet. v. 353. It means, " Well what it is then that I mean?" "What would I say?"