The Accusers

by Lindsey Davis

  Justinus was now spreading out his search from the Embankment in ever-increasing circles. This tedious tramp could take him weeks. He might never track down the right seller. Even if he identified the one, he might never persuade him to give evidence in court. But for Justinus it had become a challenge.

  'What can I do?' wailed Honorius plaintively.

  'Read up the facts. Plan your arguments for when we go to court.'

  'A defender who is familiar with the case? That will be a novelty!' Aelianus sneered.

  Honorius gazed at him. 'I gather you are the cruel satirist in Falco and Associates.'

  'No, that's my sister,' Aelianus returned. 'When Helena Justina assesses your professional worth, you'll come out of it like a raw grape skin after a wine-pressing.'

  He made it sound as if he was looking forward to watching Honorius being pulped.

  I told Honorius to make his presence felt with the Senate clerks and get Birdy a trial date.

  As experts go, Old Fungibles was a babe - not the seventy-year-old I expected. More like thirty, though he looked forty. He was a grey little fellow who lived and worked in a one-room hole-in-the-wall unit, in a side road among furniture makers and metal workshops. The booth was spartan; the man seemed obsessed. He was colourless, but clearly extremely intelligent. My guess was that he had been some barrister's slave from a young age. He must have been trusted to carry out detailed work, and he had devoured information. Freed early, no doubt on the death of his master, he inherited enough legal codes to set up in his own business. Now he wrote wills and interpreted them. His real name was Scorpus. He acknowledged with good humour that we could call him Fungibles.

  We all sat on stools. I wondered how the man could do brain-work here. From nearby premises clanged the ceaseless din of metal-beating. In the narrow street outside, people passed to and fro gossiping loudly. Some proprietors would have offered refreshments. Fungibles merely told us his fee (which was as basic as his living quarters, yet somehow I had faith in him), then he dived straight into our consultation.

  He read the Metellus document. I outlined the family. I stuck to the facts. Aelianus described the lucrative position of Paccius. Fungibles listened. His face was expressionless. He did not take notes. When we had finished speaking, he read the will a second time. Even then, he remained calm.

  'You may be aware of legal actions involving this family,' I said. 'They have featured sensationally in the Daily Gazette.'

  He looked shy. 'I don't keep up with the Forum news. My business is domestic. If I do my job properly, people don't need any recourse to the Basilica.'

  'How do you absorb new case law?' Aelianus asked. He was being himself - a lithe, athletic, rather untidy youth, who would suddenly demand answers to rather rude questions. Trust him to imply that we doubted the expert's competence.

  Fungibles did not care. We had paid him, cash in advance. He would tell us what he thought; we could believe it or not. He was proud of the service he offered; he did not beg for our approval. 'A contact tips me off if something changes.'

  Aelianus subsided. I nodded. Fungibles checked that the interruption was over, then he began.

  'The form is correct. In Latin. Formal language. Properly names an heir first. It is, as it stands, a valid testament. There are three interesting aspects to this will. First, who it institutes as heir. Second, the bequests to the heirs of right - that's the children here, who have a claim in law. Third, the size and allocation of other gifts.'

  'What about the wife?' I asked. 'Calpurnia Cara.'

  'She has no claim, strictly. However, most men like to see their widows left in the style they have previously enjoyed. By custom she might expect to be provided for. I see that this lady has a maintenance allowance - though the amount is small.'

  'Insultingly?'

  Fungibles smiled. 'In a senatorial family, I would have thought this was - pointed!'

  'Be frank.'

  Unless she holds a great deal of property in her own name, I would imagine from this will that Calpurnia Cara had violently upset her husband.'

  'Fine.' Calpurnia at odds with Metellus? We only knew that he annoyed her with his reluctance to commit suicide. This was a new angle.

  'First intriguing point: Paccius. Tell us about appointing him as the heir,' Aelianus demanded. He had really taken to this legal stuff - an unexpected surprise.

  Fungibles was restrained. 'It is a principle which lawyers robustly uphold, that a man has the right to make his will just as he wishes.'

  'He can name an outsider?'

  'He can. It is frequently done. There is usually a reason - infant children can't be made the heirs, for instance. Or it can be a device when there are many debts.'

  'There are debts,' I confirmed. 'According to one story. On the other hand, there may be money salted away, possibly in large quantities. We have difficulty sorting out the truth.'

  'Intriguing! A problem when you name an extraneous heir, as Metellus has done, is that the nominee has the right of refusal. The heirs of right would be stuck with the duties and responsibilities - including paying off creditors - without any escape. This man Paccius could say no. Has he done so?'

  'He is eager to accept.'

  'Then he thinks there is money, depend on it,' said Fungibles. He pursed his lips. 'Tell me why you think he was the choice?'

  'Family lawyer. He defended the deceased in a lengthy corruption case. Mind you - he lost!'

  Fungibles glanced down at the will. 'Was this two years ago?'

  I cocked my head. 'Last autumn. Why?'

  'The will was made two years before that case occurred.'

  I had not noticed that. It meant Paccius was very close to Metellus senior long before we had assumed he was taken on for the trial. And Negrinus, who was supposed to be on close terms with his father during his term as aedile, had already been disinherited when he took up office. Of course, he may not have known that. Was this what his sister Carina had meant when she complained about 'all he has to live with' and 'all we have suffered'?

  'Scorpus, tell us about disinheriting sons.'

  He screwed his mouth even more. 'A bad idea. I never allow my clients to do it. You said the son was not freed from parental control?'

  'No. Both parents seem to have been strict, bossy types. It is why Negrinus is reckoned to have escaped corruption charges; he owned nothing. He wasn't worth pursuing.'

  'And he owns nothing still,' commented Aelianus, perhaps anxiously considering his own position as a senator's son.

  'But he could! He was entitled to inherit,' said Fungibles. 'He and his sisters would normally share equally. The only way to remove him was, as Metellus senior did, to disinherit him formally by name. It is sensible,' he went on slowly, 'to add a remark indicating why. I would advise it. Almost always it will be because the son lives a sordid lifestyle. Does he?'

  'Birdy?' He drank thirstily at my home, but that was nothing. He was distressed that night. 'No one would call him debauched. Not in Rome. He's corrupt in business but respectable - unless he hides it well.'

  'He would have to be a byword for immorality for this will to be upheld,' said Fungibles. 'Someone who pimps, or fights as a gladiator. Why is he called Birdy?'

  'No idea.'

  'Well, if he is an upright character, he should challenge the will.'

  'So he can do that?'

  Fungibles looked surprised. 'I am startled that he has not already entered his plea. It works like this,' he explained. 'The omitted heir slaps in a claim to the praetor that he is the victim of an "unduteous will". The basis is a legal device: it's saying that the testator must be deemed to have been insane to have ruled out a child so unfairly. An insane person cannot make a will. Thus - if the praetor allows the claim - and from what you tell me, this son has everything on his side - the will becomes void. Then the rules of intestacy are brought in to distribute the estate.'

  'And what happens under intestacy?' Aelianus asked, taking rapid notes.


  'Negrinus and his sisters would each get a third. For each woman the sum would be calculated minus her dowry. So the situation becomes very different.'

  'Paccius would play no part?'

  'Ruled right out. Paccius, and this female, Saffia Donata.' Fungibles looked up, almost smiling. 'So who is the woman? This lucky Saffia? A mistress of the deceased?'

  'Daughter-in-law - divorced from Negrinus, however,' I stated. 'One child from the marriage, plus a heavy pregnancy. She has a child from a previous marriage, so if she carries the latest safely, she gets rights as a mother of three.'

  Fungibles nodded. 'She will be hoping the baby survives. As for this curious will, her father-in-law must have taken quite a shine to her.'

  'Why not make her the heir directly then? Aelianus asked. 'Why this fideicommissum, dragging in Paccius?'

  'That's a regular device,' exclaimed Fungibles. 'I imagine we are talking about people in the top census bracket? At that level, large bequests to a woman are illegal. It is to keep important estates in male hands - and perhaps save potentially rich heiresses from predators.' I laughed. I was glad that Helena was not present; she would have been outraged. Fungibles smiled slightly and pressed on: 'Your Metellus wished to favour Saffia Donata - for reasons we can only speculate - so he has instituted Paccius as his heir instead, to avoid the law. Paccius will have undertaken to pass on the money.'

  'Instead of an illegal bequest, a perfectly legal gift?'

  Fungibles was enjoying himself now. 'Intriguingly, the fideicommissum makes no attempt to pass on Saffia's portion to the Negrinus children after her. I find that very odd.' Fungibles clearly disapproved. 'Normally an arrangement would be made that if Saffia dies, the money then passes to her children; in fact, I would expect a deed of trust to be devised specifically with that intention. This wording here could leave the children in trouble. Saffia may make provision for them if she cares for them - but she may choose not to.'

  'Negrinus is disinherited - so if their mother is hard-hearted, his children could be left with nothing?' Aelianus asked.

  'Yes.'

  'That's terrible. And it all seems dangerous. How binding is the fideicommissum? Will Saffia even get the money? Does Paccius have any real obligation to divert the money to her?'

  'It is a promise,' said Fungibles. He was dry. 'You know what happens to promises! If Paccius has a conscience, then of course he must pass it on.'

  'He's an informer! What if he has no conscience?'

  'Then Saffia could sue him in the trusts court. The fact that there is a trusts court tells you it is often needed.'

  'Would she win?' I threw in, still smarting from the conscience jibe.

  'She might. Let's not slander Saffia Donata over her father-in-law's fancy for her - but was he closer to her than to his own children - and his grandchildren?'

  'I'd say Saffia was regarded as a nuisance by the whole Metellus family,' I said. 'I'm not sure how far that goes back. She was first married to Negrinus' best friend, who is still very much on the scene.'

  Fungibles looked up sharply, though he made no comment.

  'What if Lutea - his name is Licinius Lutea - remarried Saffia?' I asked thoughtfully.

  'He gets access to what Saffia gets -' Fungibles paused. 'If she lets him.'

  'All right.' Ideas were whirling in my head. I needed to think. 'So what is your overall impression of this will, Scorpus?'

  'I hate it. I would be ashamed to have helped produce it. If Metellus took legal advice, he was robbed. The formulae are all correct. But it's a weak will, immediately open to challenge by the heirs of right.'

  'We could use that in Negrinus' defence,' Aelianus told me excitedly. 'It is alleged he killed his father because he was disinherited - yet he has a good claim to overturn the will, so why commit murder?'

  That was true. But Fungibles wanted us to look at the document in another light. 'I cannot see what, but I would say there must be a secret. That usually explains why outsiders gain an unhealthy influence.'

  His fee was tiny. But he had given good advice. Sometimes, in this disreputable world, you meet a man who disturbs the norm. Sometimes, you find somebody honest.

  XXIII

  AELIANUS AND I emerged from the hole-in-the-wall, heads reeling.

  'That was dense - but you seem to thrive on all this legal stuff!' I commented. We started to walk. It was the kind of backstreet where you keep your hand on your purse and don't meet the eyes of passersby. Aelianus grunted. He was always terse on anything personal. 'I like it,' I encouraged him. 'Honorius won't stick around after the case. We could use a legal specialist on our team. How about you?'

  'What about Quintus?'

  'What about him? His expertise is in languages.' Justinus was also much better than his brother with personality issues, though I did not say so.

  'I thought he was your favourite.'

  We reached the end of the street and turned a corner, into one that was if anything even dirtier and more threatening. I checked it out, looking left. Aelianus by now knew enough to do the same, looking right; I then discreetly double-checked his side. I wanted to trust my subordinates - but I wanted to stay alive. We took the direction we needed, heading back towards the Forum.

  'I don't have favourites.' In fact, I had always warmed especially to Justinus, though I hoped I had not shown it. The two brothers fought continually, but I had been unaware that Aelianus harboured resentment about being shut out. 'I respect good work, Aulus.'

  He said nothing.

  We were walking at a leisurely pace. The day was grey and heavily overcast, with a hint of snow in the air. It was bitingly cold; I wrapped myself deep in my woollen cloak, throwing the ends over my shoulders and snuggling my reddened ears into its folds, while Aelianus fastened his garment more pedantically, pinning it dead centre with a fibula beneath his chin. The way the front edges hung, he must have a frozen gap chilling his stomach up the middle of his tunic. He made no attempt to grip the material together. He was athletic and liked to pretend he was physically hard.

  We passed neglected fountains, stalls where the vegetable-sellers stamped miserably, a small temple with its doors firmly closed to prevent vagrants snuffling into the sanctum to take refuge from the weather.

  When I next spoke to Aelianus, my breath formed a damp area in my cloak where it obstructed my mouth. 'Your parents would be amazed - and pleased - if you started studying.' I stretched my neck to show him a grin. 'I'd get some credit for reforming you!'

  'What do you mean - reforming?'

  'Oh yes, you're an upright character!' He gave me a look. 'Stories were circulating in Baetica,' I warned him. Helena and I had followed Aelianus out there after his stint working with the provincial governor. His life in Spain had been one of hunting and entertaining with the local wild young men; his dafter indiscretions seemed to include an unhealthy flirtation with the worship of Cybele. None of this had ever been mentioned at home by Aulus. He was secretive and had become quite a loner, once he was back in Rome. 'Of course I haven't gossiped, but your father is alert to your rampant past. Decimus may seem in a world of his own, but he's sharp. If he thinks that your working with me now is a cause for relief, then he was quite worried about the alternatives.'

  'He still wants to see me in the Senate,' Aelianus confided. 'I know.'