CHAP. V.

ROSCIUS THE ACTOR.

155

C. Fannius Chærea had given up one of his slaves, named Panurgus, to Roscius, on the terms that the latter was to instruct him in acting, and they were afterwards to share between them whatever he gained by his art. Panurgus received the requisite instruction and went upon the stage, but was not long afterwards killed (how, does not appear) by a man named Q. Flavius. Roscius brought an action for this against the latter, and the management of the case was com

mitted to Fannius. Before, however, it was tried, Roscius compromised the matter, but only so far as regarded his own moiety, as he alleged, and Flavius gave up a farm to him in satisfaction of damages. Several years had elapsed, when

1 It has been laid down that, according to the English law, if a man beats the servant of another to such a degree that he dies, the master loses his right of action, and can only proceed by indictment. See Yelverton, 89, 2 Roll's Abr. 568. This may be on the ground that the private right of action is merged (as it is termed) in the felony, and consequently the rule should, perhaps, be confined to such cases.

Fannius applied to the prætor for an order that the accounts between him and Roscius might be settled by arbitration. Calpurnius Piso was appointed arbitrator. He did not make a formal award, but recommended that Roscius should pay to Fannius 10,000 sesterces (about £90) for the trouble and expense which the latter had incurred in conducting the action against Flavius, and that Fannius should enter into an engagement to pay over to Roscius the half of whatever he recovered from Flavius. Fannius agreed to this, and then brought an action on his own account against Flavius for the loss he had sustained by the death of Panurgus, and got a verdict for 100,000 sesterces (£900). Half of this, according to the agreement, ought to have been paid over to Roscius; but Fannius not only retained it, but commenced an action against Roscius for a moiety of the value of the farm which the latter had obtained from Flavius, on the pretext that Roscius had settled the former action and obtained the farm on the partnership account.

Cicero maintained that his client did not owe Fannius a farthing. So confident was he of the strength of his case, that he offered to consent to a verdict against him, provided the plaintiff could show that the debt now claimed was entered in his ledger. He was willing to allow the entries of the plaintiff to be evidence in his own favour; and in tendering such an issue, we may be very sure that Cicero had good information. that he might do so with safety. But he made a distinction between the ledger (tabula or codex) and the day-book, or With regard to an action by the representatives of a party killed, it may be men. tioned that formerly the maxim was, actio personalis moritur cum personâ, and the relatives of the deceased, whose death might have been occasioned by the negligence of another party, could obtain no pecuniary compensation for their loss. But this has been remedied by the statute, 9 and 10 Vict. c. 93, entitled "An Act for compensating the families of persons killed by accidents," which provides that an action may be brought in the name of the executor or administrator for the benefit of the "wife, husband, parent, and child" of the person, whose death shall have been caused by such wrongful act or neglect, as would (if death had not ensued) have entitled the deceased to recover damages on account thereof.

CHAP. V.

SPEECH FOR ROSCIUS.

157

mere memorandum of accounts (adversaria). Fannius wished to put the latter in evidence, but Cicero objected, and said that he could not admit loose papers, full of erasures and interlineations, in which, no doubt, Fannius had inserted the debt when he determined to make his unjust claim. He seized the opportunity of praising the skill and virtues of his client, whose name as an actor has become so world-famous. "Has Roscius defrauded his partner? Can such an imputation rest upon one who has in him (I say it boldly) more honesty than he has art, more truth than accomplishments, whom the Roman people consider to be a better man than he is an actor; who, though admirably fitted for the stage on account of his skill in his profession, yet is most worthy of being a senator on account of his modesty and decorum?"1 And again: "The other side contend that Panurgus was the property of Fannius; but I say that he belonged wholly to Roscius. For what was the property of Fannius? The body of his slave. What of Roscius? The instruction he received. The part that belonged to Fannius was not worth six pounds, that which belonged to Roscius was worth more than four times as much. For no one valued him for his bodily frame, but for his skill as a comic actor. His mere limbs could not earn more than twelve pence at a time: but by the instruction which my client imparted to him he used to gain not less than twenty-four pounds a day. For what were the qualifications of Panurgus, and what support did he bring with him to back him upon the stage? The friends and admirers of Roscius patronised him because he had been his pupil ;-all who had heard of Roscius thought that Panurgus, coming from him, must be perfectly accomplished in his art. This is the way with the vulgar, they are guided little by truth, but much by

1 The occupation of an actor was held in low estimation at Rome. Speaking of Roscius on another occasion, Cicero says, Etenim cum artifex ejusmodi sit, ut solus dignus videatur esse, qui in scena spectetur; tum vir ejusmodi est ut solus dignus videatur, qui eo non accedat.-Pro Quintio, 25.

opinion. Few took the trouble to observe what skill Panurgus really had, but all asked where he had been taught. They thought that nothing awkward and clumsy could be produced by such a master. If he had come from Statilius, even though he surpassed Roscius himself, none would have tolerated him, for no one would believe that, as a virtuous son may be born to a wicked father, so a good comedian can proceed from the school of a villanously bad actor. Because he came from Roscius he seemed to have more skill than he really possessed."

The defence of Cluentius discloses a melancholy tale of wickedness; and Sassia, the mother of his client, might almost contest the palm of pre-eminence in guilt with Lucrece di Borgia. Not long after her husband's death her daughter married her first cousin Aurius Melinus, for whom the mother soon conceived an adulterous passion. She employed all her arts to alienate his affection from his wife, and at last succeeded in inducing him to divorce her. She then flew to the arms of her son-in-law, and openly married him. But where can more withering language be found than that by which Cicero brands her infamy? "That nuptial couch which two years before she had spread for her daughter on her marriage, she bids him adorn and prepare in the same house for herself, while her daughter is turned away as an outcast. The mother-in-law weds her son-in-law with no religious ceremonies, with none to give the bride away, amidst the dark and gloomy forebodings of all." By and by, however, Melinus, having incurred the enmity of Oppianicus, against whom there was the strongest suspicion that he had poisoned his own wife and brother, and procured the murder of a near relative of Melinus, was, through the interest of Oppianicus with the tyrant Sylla, included in one of his lists of proscription and put to death. This murder of her husband attracted the love of Sassia; and Oppianicus being equally smitten, paid his addresses to her, and offered her marriage. She at first refused, on, the

CHAP. V.

DEFENCE OF CLUENTIUS.

159

ground that he had three sons alive, and she did not wish to be encumbered with such a family. Oppianicus understood the hint, and in the course of a few days caused two of them to be murdered. The scruples of Sassia were now removed, and she married Oppianicus, wooed and won, as Cicero says, not by nuptial presents, but the death of murdered children; non nuptialibus donis, sed filiorum funeribus delinita:

"The funeral-baked meats,

Did coldly furnish forth the marriage tables.”

The career of Oppianicus was one of the most abandoned villany, and having unsuccessfully attempted to take off Cluentius by poison, he was put upon his trial for this crime, and being convicted was sentenced to banishment. He had endeavoured to bribe his judges, and for that purpose had distributed amongst some of them a large sum of money, which they took, but, notwithstanding, pronounced a verdict of guilty. For this offence they were afterwards put upon their trial and convicted. Oppianicus died in exile five years after his condemnation; and three years after his death Sassia bestowed her daughter in marriage upon his son by a former wife, and urged him to accuse her own son Cluentius of having caused her deceased husband Oppianicus to be poisoned. It was on this occasion that Cicero defended Cluentius; and his speech is one of his most elaborate and successful efforts.

I hardly know where we could find a better description of the duties which devolve upon a jury than is contained in the following passage :-"I cannot doubt, gentlemen, that if you were to sit on the trial of a man who was beyond the reach of the statute under which he was indicted, although his character might be odious, and himself personally obnoxious to you, and you might feel very reluctant to pronounce a verdict of acquittal, you would notwithstanding acquit him, and respect your oath rather than gratify you dislike. For it is the duty of every intelligent juryman to consider that the