ferre adversarii debeant neque ut se potentia superari putent. Quae domi gerenda sunt, ea per Caeciliam transiguntur: fori judiciique rationem Messala, ut videtis, judices, suscepit: qui si jam satis aetatis atque roboris haberet, ipse pro Sex. Roscio diceret. Quoniam ad dicendum impedimento est aetas et pudor qui ornat aetatem, caussam mihi tradidit, quem sua caussa cupere ac debere intelligebat: ipse assiduitate, consilio, auctoritate, diligentia perfecit ut Sex. Roscii vita, erepta de manibus sectorum, sententiis judicum permitteretur. Nimirum, judices, pro hac nobilitate pars maxima civitatis in armis fuit: haec acta res est uti nobiles restituerentur in civitatem qui hoc facerent, quod facere Messalam videtis; qui caput innocentis defenderent: qui injuriae resisterent; qui quantum possent in salute alterius quam in exitio mallent ostendere. Quod si omnes qui eodem loco nati sunt facerent, et res publica ex illis et ipsi ex invidia minus laborarent.

LII. Verum si a Chrysogono, judices, non impetramus ut pecunia nostra contentus sit, vitam ne petat; si ille adduci non potest ut, quum ademerit nobis omnia, quae nostra erant propria, ne lucem quoque hanc quae communis est eripere cupiat; si non satis habet avaritiam suam pecunia explere, nisi etiam crudelitate sanguinis perlitus sit, unum perfugium, judices, una spes reliqua est Sex. Roscio, eadem quae rei publicae, vestra pristina bonitas et misericordia a; quae si manet, salvi etiam nunc esse possumus. Sin ea crudelitas, quae hoc tempore in re publica versata est, vestros quoque animos, id quod fieri profecto non potest, duriores acerbioresque reddidit, actum est, judices: inter feras satius est aetatem degere quam in hac tanta immanitate versari. Ad eamne rem vos reservati estis, ad eamne rem delecti ut eos condemnaretis quos sectores ac sicarii jugulare non potuissent? Solent hoc boni imperatores facere, quum praelium committunt, ut in eo loco quo fugam hostium fore arbitrentur milites collocent, in quos, si qui ex acie

:

Messala,] He may be the man who is mentioned in the Brutus (c. 70), M. Valerius Messala, of whom Cicero says: "M. Messala minor natu quam nos, nullo modo inops, sed non nimis ornatus genere verborum prudens, acutus, minime incautus patronus, in caussis cognoscendis componendisque diligens, magni laboris, multae operae multarumque caussarum." Messala was a patrician. Cicero says that he undertook all the trouble of this affair (fori judiciique rationem'), except the speech.

pro hac nobilitate] In defence of the nobles, who are here before me, among

fugerint, de improviso incidant. Nimirum similiter arbitrantur isti bonorum emptores vos hic, tales viros, sedere qui excipiatis eos qui de suis manibus effugerint. Dii prohibeant, judices, ut hoc quod majores consilium publicum vocari voluerunt, praesidium sectorum existimetur. An vero, judices, vos non intelligitis nihil aliud agi nisi ut proscriptorum liberi quavis ratione tollantur, et ejus rei initium in vestro jurejurando atque in Sex. Roscii periculo quaeri? Dubium est ad quem maleficium pertineat, quum videatis ex altera parte sectorem, inimicum, sicarium eumdemque accusatorem hoc tempore, ex altera parte egentem, probatum suis filium, in quo non modo culpa nulla, sed ne suspicio quidem potuit consistere? Numquid hic aliud videtis obstare Roscio, nisi quod patris bona venierunt?

LIII. Quod si id vos suscipitis et ad eamdem rem operam vestram profitemini; si idcirco sedetis ut ad vos adducantur eorum liberi quorum bona venierunt; cavete, per Deos immortales, judices, ne nova et multo crudelior per vos proscriptio instaurata esse videatur. Illam priorem, quae facta est in eos qui arma capere potuerunt, tamen senatus suscipere noluit, ne quid acrius quam more majorum comparatum est publico consilio factum videretur: hanc vero, quae ad eorum liberos atque infantium puerorum incunabula pertinet, nisi hoc judicio a vobis rejicitis et aspernamini, videte, per Deos immortales, quem in locum rem publicam rem publicam perventuram putetis.

Homines sapientes et ista auctoritate et potestate praeditos, qua vos estis, ex quibus rebus maxime res publica laborat, iis maxime mederi convenit. Vestrum nemo est quin intelligat populum Romanum, qui quondam in hostes lenissimus existimabatur, hoc tempore domestica crudelitate laborare. Hanc tollite ex civitate, judices, hanc pati nolite diutius in hac re publica versari; quae non modo id habet in se mali, quod tot cives atrocissime sustulit, verum etiam hominibus lenissimis ademit misericordiam consuetu-~ dine incommodorum. Nam quum omnibus horis aliquid atrociter fieri videmus aut audimus, etiam qui natura mitissimi sumus, assiduitate molestiarum sensum omnem humanitatis ex animis amittimus.

53. Quod si id] I infer from what Orelli says that 'id' is not in all the MSS., but probably it ought to be in. Yet 'quod' is the relative, and refers to the sentence, 'An vero judices,' &c.; and 'id' is the quod' repeated. In c. 41 there is the

reading 'quod a vobis hoc pugnari,' &c. This expression has often been misunderstood. See Vol. I. Verr. ii. 1. c. 26,

quod ubi ille id agi,' &c., which differs in some respects from this; and Ver. ii. 1. c. 46.

PRO Q. ROSCIO COMOEDO

ORATIO.

INTRODUCTION.

C. FANNIUS CHAEREA (c. 10) had a slave Panurgus. It was agreed between Chaerea and Q. Roscius, the distinguished actor, that this slave should be their joint property; that Roscius should instruct him in his art, and that they should divide the profits of his labours. Panurgus, after being taught by Roscius, appeared on the stage with great success; but shortly after he was killed by C. Flavius of Tarquinii, in what manner it is not said, nor is it material to the case (c. 11). Roscius commenced an action against Flavius for the value of the slave (judicio damni injuria constituto'), and his partner Chaerea was his agent in the action (cognitor'). Before it came to a trial, Roscius agreed with Flavius to take in satisfaction of his demand a piece of land (c. 11, 12), at a time when the value of land was low. Roscius said that he made this bargain on his own account only, and for his own share in the slave, and that Chaerea might have done the same if he liked. Chaerea said that Roscius made the bargain on the partnership account, and that accordingly half of the value of the land, which he estimated at 100,000 sestertii, was due to him. This, says Cicero, was the whole question: "Utrum Roscius cum Flavio de sua parte an de tota societate fecerit pactionem" (c. 12). If Roscius received this land on the partnership account, Cicero admits that he must account for it to his partner; but he has an argument (c. 12) to show that Roscius made the 'pactio' with Flavius solely on his own account, and he affirms that he could do this.

An attempt had been made to settle this matter between Roscius and Fannius some years before this trial, but the facts are rather obscurely told by Cicero (c. 13, &c.). Fannius had claimed a sum of money from Roscius, and there had been a stipulatio,' and a 'restipulatio' between the parties, for a 'restipulatio' (c. 13) implies a stipulatio.' In the

'restipulatio' Chaerea was the 'repromissor' ("repromittis abhinc triennium Roscio"), and of course Roscius was the 'restipulator.' The 'repromissio' of Chaerea was "Quod a Flavio abstulero, partem dimidiam inde Roscio me soluturum spondeo." Roscius had therefore restipulated in this form: "Quod a Flavio abstuleris, partem dimidiam inde mihi soluturum spondes ?" and the 'repromissio' was the answer to this. But the restipulatio' was only the original stipulatio,' with a change of names. Chaerea therefore had challenged Roscius ( sponsione provocavit') in this form: "Quod a Flavio abstuleris, partem dimidiam inde mihi soluturum spondes ?" to which Roscius had said 'spondeo.'

The nature of the 'restipulatio' and the 'repromissio' may be safely inferred from Cicero; but a passage of Gaius (iv. 166), makes it clearer. The particular meaning of that passage does not concern us. He says: "Cum judex id exploraverit et forte secundum me judicatum sit, adversarium quidem et sponsionis et restipulationis summas, quas cum eo feci, condemnat, et convenienter me sponsionis et restipulationis quae mecum factae sunt absolvit." We may conclude that it was not necessary that the sum mentioned in the stipulatio' and the 'restipulatio' should be the same.

Cicero, after speaking of the 'restipulatio' and the 'repromissio,' asks Chaerea what he could get from Flavius, if Flavius owed nothing; for Chaerea admitted that Flavius had paid all, when he contended that Roscius had compounded with him on behalf of the partnership. Again, Cicero asks, why does Roscius by this 'restipulatio' claim the half of what Chaerea might get from Flavius, when the statement of Roscius was that he had compounded with Flavius on his own account, and was satisfied? Certainly these questions require an answer from both parties. C. Piso, who was the judex in this trial, and acted as an arbiter between the parties in the attempt at a settlement, requested (rogavit') Roscius to give to Chaerea 100,000 sesterces (a number probably incorrect in the text), on the condition that if Chaerea got any thing from Flavius he should give Roscius one half (c. 13). And Cicero asks if this 'restipulatio' did not prove clearly that Roscius had compounded with Flavius only for himself. Roscius did not give 100,000, or any other sum, to Chaerea, but promised 100,000, or some other sum to Chaerea, in answer to Chaerea's 'stipulatio,' but only conditionally. He was willing to give Chaerea something for his pains, if Chaerea gave him half of what he should get from Flavius. But Cicero must have seen that this argument is very bad for his client; for if Chaerea got nothing, Roscius would pay nothing, and he would keep what he had got from Flavius. And if Roscius was a knave, and had received all that was due from Flavius, he might very safely make this bargain. The 'restipulatio' could not be denied, for the proof of it was

in writing, and Cicero had to explain this fact. He then proves, or tries to prove (c. 14, &c.), that Chaerea brought his action against Flavius for the loss of Panurgus, and got 100,000 sestertii from him, which of course would prove that he had no demand against Roscius. He would have to give one half to Roscius, and Roscius would have to pay him what he had promised. We hear nothing more of this transaction in the speech. All we know is that Chaerea now sued Roscius for 50,000 sestertii, a clear fixed sum (pecunia certa,' c. 4); and the origin or foundation of the demand ('caussa ') was this, Whether Roscius received what he did receive from Flavius for his own share, or on the joint account?

Now the question is, what action did Chaerea bring against Roscius ? As it was a 'pecunia certa,' Cicero affirms that the demand must be founded either on a loan, or an 'expensilatio,' or a 'stipulatio.' It was no loan; it was no 'expensilatio,' because there was no entry (expensilatio') in the books of Chaerea, nor was it founded on a stipulatio;' for there was no evidence of a 'stipulatio.' What then could the demand be? It was not a demand for a general partnership account, but a demand for a fixed sum. If there was no form of action for a definite sum of money in such a case as this, except the three forms which Cicero mentions, and if there was no evidence that would support any one of these forms of action, Chaerea had no case at all. But we may assume that he would not have brought his action without some show of right and of evidence to support it.

Several attempts have been made to explain this speech. One is by Unterholzner (Zeitschrift für Geschicht. Rechtsw., i. p. 248). He observes that the matter of the suit is certainly a sum of 50,000 sestertii, which Chaerea demands of Roscius (c. 1); that Cicero attempts to show (c. 1-5) that Chaerea had no legal ground of action; and (c. 6-18) that looking at all the circumstances of the case, there was no probable ground of action. The beginning of the first part of the defence is lost, and the end of the second part also. It is chiefly from the fragment of the first part that we must endeavour to determine the nature of this action for a definite sum of money ('pecunia certa,' c. 5).

Unterholzner concludes that the action was either a 'condictio' or a proper actio in personam.' His notion of a 'condictio' is not exact, and it is unnecessary to say more about it. He concludes that the mode of proceeding was by an 'actio,' in which, as we see, C. Calpurnius Piso was judex. This was not an 'arbitrium,' but a 'judicium,' the difference between which is explained by Cicero (c. 4) as clearly as it can be explained. In a 'judicium' the plaintiff demands a clear, definite sum of money, and he either gets judgment for all his demand, or judgment against him. In the arbitrium' the demand was for what might appear to