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 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
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 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
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 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
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[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
p. 170
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
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
[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
p. 172
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
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 [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
p.174
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
p. 175
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
p. 176
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
p. 177
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
p. 178
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
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, [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
p. 180
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
p. 181
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
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 [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,
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, [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.
p. 184
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.
Notes
[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.