But we all understand that in these notes of the censors the real object was to catch at some breeze of popular favour. The matter had been brought forward in the assembly by a factious tribune; without any investigation into the business, his conduct was approved by the multitude; no one was allowed to say a word on the other side; indeed, no one showed the least anxiety to espouse the other side of the question. Moreover, those judges had already become exceedingly unpopular. A few months afterwards there was a fresh and very great odium excited with respect to the courts of justice, arising out of the affair of marking the balloting balls. The disgrace into which the courts were fallen appeared quite impossible to be overlooked or treated with indifference by the censors. So they chose to brand those men whom they saw were infamous for other vices, and for generally disgraceful lives, with their animadversion and special note also; and so much the more, because at that very time, during their censorship, the right of sitting as judges was divided with the equestrian body, in order that they might seem to have reproved those tribunals by their authority, through the ignominy inflicted on deserving men. [131] But if I or any one else had been allowed to plead this cause before those censors, I would certainly have proved to the satisfaction of men endowed with such prudence, (for the facts of the case prove it,) that they themselves had ascertained nothing, had discovered nothing; but that in all those notes appended to their animadversions nothing had guided them but rumour, and nothing had been sought but popular applause. For to the name of Publius Popillius, who had condemned Oppianicus. Lucius Gellius had appended a note, “because he had taken money to condemn an innocent man.” Now what a real conjurer that man must be, O judges, to know that a man was innocent, whom, very likely, he had never seen, when the very wisest men, to say nothing of those who actually condemned him, after investigation of the case, said that they, were not without doubt in the matter? [132]
However, be it so. Gellius condemns Popillius. He decides that he had accepted money from Cluentius. Lentulus says that he had not. For he did not elect Popillius into the senate, because he was the son of a freedman; but he left him his place as a senator at the games, and the other ornaments of that rank, and released him from all ignominy. And by doing so, he declares his opinion, that he had voted against Oppianicus without having been bribed to do so. And afterwards Lentulus, on a trial for bribery, gave his evidence most zealously in favour of this same Popillius. Wherefore, if Lentulus did not agree with the decision of Lucius Gellius, and if Gellius was not contented with the opinion delivered by Lentulus, and if each censor thought himself not bound at all by the opinion of the other censor, what reason is there why any one of us should think that the notes of the censors ought to be all fixed and ratified so as to be unalterable for ever?
