The Trial of Gaius Verres
Frank H. Cowles, Gaius Verres: An Historical Study (Cornell Thesis)(1917)
CHAPTER VII.  (pp. 163-191)

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

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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

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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 subjectwas 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

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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 interdiction). 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

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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

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had the indictment been brought directly by the provincials. It was truly a "cause celebre." 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

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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[1].  Of his scrupulousness in investigation and regard for the popular will [2], and of his conduct both of the preliminaries and the trial itself [3], Cicero speaks in the highest terms. In a later work [4] 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." [5]

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 6in which the accuser formally indicted the defendant. In the nominis recptio [7] 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." [8]  The proceeding was

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called actio de constituendo accusatore, or technically divinatio [9].   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 [10] a certain Q. Caecilius Niger, a Sicilian, the son of a freedman [11] a former quaestor of the governor [12]. This man advanced three reasons [13] 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 [14], and probably in the court of the Praetor Repetundis, though this cannot be certainly known. Neither do we know

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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 [15].  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. [16]

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 [17], Cicero explains why he wishes to undertake the case; second [18], he compares his own claims with those, of Caecilius; third [19], 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 [20],  he explains by referring to his intimate relations with the provincials during his quaestorship [21]. Such a procedure involved a sacrifice of his personal inclinations [22], but the case might still be regarded as essentially a defense of the Sicilians rather than a prosecution of

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their oppressor [23].  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. [24]

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 [25]. 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 [26]. In the absence of a prosecutor better qualified than the speaker, such an appeal could not be resisted [27].  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 [28].  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 [29].  On the other hand, Verres would decidedly prefer Caecilius, in whom he could see no quality to inspire fear. Hortensius [30] too, was urging the claim of his tool, inspired by the knowledge that his case was safe if the latter were prosecutor [31]. Nothing would stand in the way of his bribing the jury as he had done in another case [32]. In this

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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 [33].

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 [34]. 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 [35]. An accuser must be trustworthy and truthful. The very situation would make it impossible for Caecilius to be so, even though he actually desired to be.[36] 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. [37] The whole matter of extortion in connection with the grain, [38] 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. [39] In other matters also, the fear of exposure would seal his lips, and his prosecution, would be the veriest farce [40] Another ground for the charge of incompetence was Caecilius's lack of the education and experience necessary to a successful prosecutor. [41] The assembling and


logical arrangement of his facts would be utterly beyond him. [42] 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, [43] as Cicero confesses himself to be. [44] 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. [45] 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. [46]

Nor could Caecilius rightly claim that he had the aid of able assistant-prosecutors (subscriptores) [47]. The first of these was one L. Appuleius, whom Cicero represents as a tyro in experience, if not in age. [48] 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. [49] Even men of such mediocre talents would hardly dare to put forth their best efforts for fear of outshining their chief. [50]

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. [51] Granting this, Cicero still maintained

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that the infinitely more grievous wrongs suffered by the provincials made their claim to choose a prosecutor of greater weight. [52] 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. [53] 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. [54] 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 [55] The case was thus shown to be simply that of one thief cheating another, [56] 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. [57]

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

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than by avenging them!" [58] 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. [59] No quaestor had ever been permitted to act as accuser against his praetor [60], 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. [61] Of the first two cases practically nothing further is known, [62] 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. [63]

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. [64] Private revenge as a motive suffers in comparison with the desire to see justice done the allies of the state. [65]  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. [66] But Caecilius had no reputation to lose, no matter how he might fail, and everything to gain, both for himself and those who controlled him. Cicero had determined to

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stake everything upon this one throw. Defeat meant the loss of everything it had taken years to gain. [67] 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. [68]

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."[69] 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, [70] but toned down by an occasional note of modest self-depreciation. But it is a just pride, and Cicero's confidence in 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. [71] He accused the governor of having extorted a sum of forty million sesterces from the Sicilians, and demanded from him, under the LexCornelia,[72] one hundred million sesterces in return, a penalty of two and one half times the amount extorted.[73] The interrupted nominis receptio then took place and

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the prosecutor applied for an adjournment of 110 days [74] 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 [75].  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, [76] 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

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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, [77] 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. [78] 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, [79] probably Lilybaeum, where he was best known. From scattered references in the speeches it is possible to gather a few details of the journey. [80] Visiting all the principal cities, with great industry

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he examined and copied public records and took the testimony of individuals, [81] even calling the farmers from their plowing [82] 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. [83] In order to avoid all appearance of other than disinterested motives, he paid all his expenses from his private purse, [84] though as a senator of Rome he was entitled to entertainment at public expense. [85] 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,[86] 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; [87] 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. [88] 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

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men recently executed by Verres, and hailed by them as a savior, while the former governor was execrated as a murderer. [89] 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. [90] 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 laudatio 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 laudatio. 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[91] 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, [92] 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, [93] 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 [94], reaching Rome safely about March 8th. The cause of his

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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 [1] 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.[2] 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. [1] 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.[2] 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.[3]  On May 6th,

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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, [1] 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, [1] mentioned by Plutarch[2] as an able man; Q. Junius, [3] possibly a relative of the young Junius whom Verres had robbed during the city praetorship [4] C. Cassius, ex-consul, whose wife Verres had cheated [5] P. Servius; [6] P. Sulpicius Galba. [7] We have the name of only one juror challenged by Cicero, M. Lucretius. [8] The names which have come down to us of the judices who survived the rejectio, are as follows: [9] M. Caesonius, [10] Q.

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Manlius [1] Q. Cornificius, [2] P. Sulpicius, [3] M. Crepereius, [4] L. Cassius, [5] Cn. Tromellius, [6] M. Metellus, [7] Q. Lutatius Catulus, [8] P. Servilius Isauricus, [9] Q. Titinius, [10] C. Marcellus, [11] L. Octavius Balbus. [12]

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. [1] The names of the judices chosen were commonly known, and there seemed to be no opportunity for Hortensius's favorite trick of marked ballots. [2] 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,"[3] 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. [2] 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. [3]

At this juncture the fortunes of the defense seemed to be ebbing, and Verres was considerably downcast. [1] 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. [2] 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. [3] 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. [1] 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 .[2] Therefore, if the trial could be postponed until January 1st, he would succeed the just Glabrio as presiding judge.[3] 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,[4] 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.[5] Cicero was well nigh distracted with the multiplicity of duties and dangers which surrounded him.[1] Verres and his son took an active part in the canvass against the candidate they feared.[2] But all their efforts were in vain and Cicero was handsomely elected.[3] 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. [4] 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. [1] Manlius and Cornificius had been elected tribuni plebis; Sulpicius was to enter upon a magistracy [2] in December; Crepereius, Cassius, and Tremettius were military tribunes-elect; Metellus was the new praetor. [3] The places of all 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 empanelled. [4]

We may suppose that the case against the Achaian governor was decided about July 31st,[5] The 5th of August,[6] 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 Ludi Romania in Cireo. All this 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. [1] The regulation of the Lex Servila[2] was still in force, providing for a comperendinatio, [3] or adjournment, of one day between the actio prima and the 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. [1] 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.[2] 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.[3] 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.[1] An eloquent appeal to the jury and the presiding judge[2] 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."[3] 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. [4] 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 [1], with Hortensius only rarely interrupting the witnesses, [2] 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?"[3] 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. [1] Without awaiting the verdict, Verres said farewell to Rome and went into voluntary exile. [2]  In absentia he was condemned by the court to pay an indemnity, the amount of which is not certain, [3] 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, [1] 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. [1] According to Asinius Pollio, [2] 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. [1] So an implacable hate was satisfied.

[1] Act. I, 4, 41, 51, 52.

[2] Act. I, 29.

[3] V, 76, 163.

[4] Brutus, 239.

[5] Act. I, 52.

[6] Ibid.

[7] Ibid.

[8] Div. 10.

[9] The exact significance of the term has been much disputed.  Cf. Ps. Ascon. P. 186 (Stangl); Gellius II, 4; Quintil. III, 10, 3; VII, 4, 33; Cic. Pro Planc., 46.  A fair inference from the passages cited is that the name divinatio was applied to such a trial because there was up for consideration not a question of fact but of the future, a question which was decided not by evidence of witnesses, but as a matter of opinion, brought about by argument.  The judges had to divine, as it were, not merely to settle a question in regard to something already accomplished.  A speech delivered in such a proceeding was also called divinatio.  Cf. Suetonius, Caes. 55.

[10] Div. 23.

[11] Ps. Ascon. p. 185 (Stangl); Plutarch, Cic. 7.  According to the latter he was given to Jewish practices, hence Cicero’s witticism: quid Judae cum verre?  It has been considered probable that his family owed its name and citizenship to some one of the Metelli (Halm, 12 p. 5, n. 35; Holm III, p. 428) as did Q. Caecilius Dio(II, 20).  Thus Caecilius, in furthering the plans of Hortensius, would be doing a service to his patrons, the Metelli, three of whom were arrayed upon the side of Verres.

[12] Div. 28; Ps. Asc. p. 185 (Stangl).

[13] Ps. Asc., 1. c.

[14] Ps. Asc., p. 186 (Stangl).

[15] I, 15.

[16] For a discussion of the different theories of the chronology of the year 70, and an explanation of that adopted in this chapter, see Appendix.

[17] Div. 1-9.

[18] Div. 10-51.

[19] Div. 52-73.

[20] Div. I.

[21] Div. 2, 3.

[22] Div. 4.

[23] Div. 5.

[24] Div. 6-9.

[25] Div. 10.

[26] Div. 11-14. On §12, see Hartman, J.J., Mnemonsyne XXXIX (1911) p. 447, who points out a fallacy in reasoning here.  "Quasi vero idem sit Siculos a Cicerone opem non petisse et omnino a nullo oratore petisse opem!"

[27] Div. 15-16.

[28] Div. 17-19.

[29] Div. 20-21.

[30] Div. 22.

[31] Div. 23.

[32] Div. 24. In the trial of Terentius Varro, B.C. 75, Hortensius had bribed a number of the jurors, and in order to make sure of their fidelity to him had contrived to have them furnished with voting tablets covered with colored wax, those given to the rest of the jury being white.  Cf. Act. I, 17, 40; V, 173; pro Cluent. 130.

[33] Div. 25-26.

[34] Div. 27.

[35] Div. 28.

[36] Div. 29.

[37] Div. 30.

[38] See Chapter IV.

[39] Div. 31-33.

[40] Div. 34-35.

[41] Div. 36.

[42] Div. 37-38.

[43] Div. 39.

[44] Div. 40-43.

[45] Div. 44-47.

[46] Div. 44.

[47] So called because they wrote their names at the end of the charge, under that of the chief prosecutor.  (Cf. Cic. Ad Q. Fratr. III, 3.)

[48] Div. 47.

[49] Div. 48.

[50] Div. 49-50.

[51] Div. 52.

[52] Div. 52-54.

[53] Div. 55.

[54] Div. 56.

[55] Div. 57.

[56] Although in I, 15 Cicero says: qui (Caecilius) istius quaustor fuisset et ab isto laesus inimicitias Justas persequeretur.  But as Holm points out (G.S. III, p. 428), by that time Caecilius had been disposed of and no longer stood in the way.

[57] Div. 58.

[58] Div. 60. Cicero here involves himself in hopeless inconsistency with Div. 32, where he berates Caecilius for failing to interfere in the praetor's illegal transactions in grain.

[59] Div. 61.

[60] Div. 62.

[61] Div. 63.

[62] Sternkopf (Neue Jahrd. CLV-1897-p. 570 ff.) concludes that Philo was quaestor of Servilius, B.C. 102 in Sicily, and Scaurus was quaestor of Flaccus, B.C. 95-90, in Asia.

[63] Cf. Cic. Tusc. V, 108; Brut. 177; de Off. II, 50.

[64] Div. 64.

[65] Div. 65-66.

[66] Div. 67-71.

[67] Div. 72.

[68] Div. 73.

[69] Holm, G.S. III, p. 428.

[70] Cf. III, 2-3; V, 35-39.

[71] Div. 19. Cf. Act. I, 56; I, 27; II, 26.

[72] See p. 166.

[73] Thus, by the above explanation (by Halm12, p. 7, following Zumpt) there is no contradiction between the two passages (Div. 19; Act. I, 56), which name different sums, the first being sestertium miliens and the second quadringentiens.  This difference seems to have created considerable difficulty for some, and various attempts have been made to explain it away, the commonest explanation being that at the time of the Divinatio Cicero consciously exaggerated the amount in order to increase the importance of the case, and that after his researches in Sicily the evidence would only warrant the smaller amount.  (Ps. Ascon. pp. 191, 223-Stangl; Thomas, Verr. V, Inrod. p. 16).  But the difficulty is only apparent and is simply the consequence of the failure to notice one word, repeto.  In Div. 19 Cicero says abs to sestertium miliens ex lege repeto.  This is a statement of the penalty, not of the amount extorted, which is obtained through dividing by 2 ½. The result agrees exactly with the statement in Act. I, 56, dicimus C. Verrem * * * quadringentiens sestertium ex Sicilia contra leges abstulisse.

                Holm (G.S. III, p. 429) points out that the amount which Cicero accused Verres of having stolen in connection with the frumentum in cellam alone was in excess of 100,000,000 sesterces, and hastily concludes that that figure must be greatly exaggerated because in the trial the whole amount in question is only 40,000,000.  But the difference proves absolutely nothing.  Cicero's great object was to convict Verres and defeat Hortensius, and he would not be likely to make the mistake of charging more than he could conclusively prove.  The exact amount was of far less importance than a speedy conviction, and it seems to me not at all improbable that the prosecutor deliberately sacrificed naming a much larger figure in order to keep his charge within limits which he could fully and easily prove.  To accuse him of inconsistency here is to fail in appreciation of his ability as a lawyer, and ability supplemented by a familiarity with detail which qualified him to cope with the finesse of even a Hortensius.

[74] Ps. Ascon., arg. Act. I, p. 205 (Stangl); I, 30.

[75] IV, 145.

[76] II, 64.

[77] Act. I, 6; I, 30. Pseud. Asconius (p. 207, Stangl) says the accuser was named Rupilius, the defendant Oppius: another tradition gives the names as Q. Metellus Nepos and Curio.  (Cf. Zielinski, Phil. LII, p. 256, n. 13.) Nothing is known certainly as to their identity.  Schol. Gronvius (p. 331, Stangl) names the accuser as Dasianus or Piso.

[78] That the case whose adjournment first came to an end was given precedence on the docket, is shown by the case of M. Aemilius Scaurus, accused (B.C. 92 or 91) of extortion by Q. Servilius Caepio.  Scaurus brought a counter-charge against Caepio, and by requesting a shorter adjournment succeeded in having his charge come to trial first.  (Ascon. on Cic. Pro Scauro, p. 22, (Stangl); Holm, G.S. III, p. 429).

[79] From II, 65 it appears that he traversed the island from west to east, as he instructed some witnesses who were to accompany him back to Rome to meet him at Messana.

[80] See Bruckner, Leben des Cicero, p. 122 ff.; Drumann V, p. 313 ff.; Hom III, p. 429.

[81] Act. I, 6; I, 16.

[82] Cic. Pro Scauro, 25.

[83] I, 16.

[84] Ibid.

[85] IV, 25.

[86] II, 64, 138.

[87] II, 65; III, 122.

[88] II, 11, 12.

[89] V, 129.

[90] IV, 110.

[91] IV, 136-149.

[92] IV, 25.

[93] Ps. Ascon. arg. Act. I, p. 205 (Stangl); Act. I, 6.

[94] Ps. Ascon., 1. c.; II, 99.

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