4.
[10]
A definite sum of money was owed to you, which is now sought to be recovered at law;
and security for a legitimate portion of it has been given. In this case, if you have
demanded one sesterce more than is owed to you, you have lost your cause; because trial
before a judge is one thing, arbitration is another. 1 Trial before a judge is about a definite sum of money;
arbitration about one which is not determined. We come before a judge so as either to
gain the whole suit or to lose it; we go before an arbiter on the understanding that we
may not get all we asked, and on the other hand may not get nothing.
[11]
Of that the very words of the formula are a proof. What is the
formula in a trial before a judge? Direct severe, and simple; “if it be plain
that fifty thousand sesterces ought to be paid.”
Unless he makes it plain that fifty thousand sesterces to a
single farthing are due to him, he loses his cause. What is the formula in a cause
brought before an arbiter? “That whatever is just and right shall be
given.” But that man confesses that he is asking more than is owed to him, but
that he will be satisfied and more than satisfied with what is given him by the arbiter.
Therefore the one has confidence in his case, the other distrusts his.
[12]
And as this is the case, I ask you why you made an agreement to abide
by arbitration in a matter involving this sum, this very fifty thousand sesterces, and the credit of your own account-books? why you
admitted an arbitrator in such a case to decide what it was right and proper should be
paid to you; or secured to you by bond, if it so seemed good to him? Who was the
arbitrator in this matter? I wish he were at Rome. He is at Rome. I wish he
were in court. He is. I wish he were sitting as assessor to Caius Piso. He is Caius Piso himself. Did you take the same
man for both arbitrator, and judge? Did you permit to the same man unlimited liberty of
varying his decision, and also limit him to the strictest formula of the bond? Who ever
went before an arbitrator and got all that he demanded? No one; for he only got all that
it was just should be given him. You have come before a judge for the very same sum for
which you had recourse to an arbiter.
[13]
Other men, when
they see that their cause is failing before a judge, fly to an arbitrator. This man has
dared to come from an arbiter to a judge, who when he admitted an arbitrator about this
money, and about the credit due to his account-books, gave a plain indication that no
money was owing to him. Already two-thirds of the cause are over. He admits that he has
not set down the sum as due, and he does not venture to say that he has entered it as
paid, since he does not produce his books. The only alternative remaining, is for him to
assert that he had received a promise of it; for otherwise I do not see how he can
possibly demand a definite sum of money.
This text is part of:
Search the Perseus Catalog for:
1 Professor Long's explanation of the difference here laid down is little more than a translation of and comment on this passage. He says, “The following is the distinction between arbitrium and judicium according to Cicero (Pro Rosc. Com. 4). In a judicium the demand was of a certain or definite amount, pecuniae certae).; in an arbitrium the amount was not determined (incertae.) In a judicium the plaintiff obtained all that he claimed or nothing, as the words of the formula show, “si paret H. S. 1000 dari oportere.” (Compare Gaius, iv. 50.) The corresponding words in the formula arbitraria were “Quantum aequius melius, id dari”; and their equivalents were “ex fide bona; ut inter bonos bene agier.” (Top. 17)... If the matter was brought before a judex, properly so called, the judicium was constituted with a poena, that is per sponsionem; there was no poena when an arbiter was demanded, and the proceeding was by the formula arbitraria. The proceeding by the sponsio then was the strict one, “Angustissima formula sponsionis,” (Cic. pro Rosc. Com. 14); that of the arbitrium was ex fide bona, and the arbiter, though he was bound by the instructions of the formula, was allowed a greater latitude by its terms. The engagement between the parties who accepted an arbiter, by which they bound themselves to abide by his arbitrium, was compromissum. (Pro Rosc. Com. 40) But this term was also employed, as it appears, to express the engagement by which parties agreed to settle their differences by arbitration, without the intervention of the praetor. Smith, Dict. Ant. v. 530 v. Judex.
M. Tullius Cicero. The Orations of Marcus Tullius Cicero, literally translated by C. D. Yonge. London. George Bell & Sons. 1903.
The National Endowment for the Humanities provided support for entering this text.
This work is licensed under a
Creative Commons Attribution-ShareAlike 3.0 United States License.
An XML version of this text is available for download, with the additional restriction that you offer Perseus any modifications you make. Perseus provides credit for all accepted changes, storing new additions in a versioning system.