THE FRAGMENTS WHICH REMAIN OF THE SPEECH OF M. T. CICERO ON BEHALF OF MARCUS TULLIUS. 1
TRANSLATED BY C.D. YONGE
THE ARGUMENT.
Marcus Tullius had a farm; and a man of the name of Publius
Fabius had bought another farm bordering on it. On the farm of Tullius
there was a large field which Fabius coveted greatly; and as he could
not obtain it by bargain, or by any legal process, (though he does seem
to have tried this latter expedient.) he arms a gang of slaves, and
sends them to take possession of the land: they murder Tullius’s
slaves, and demolish and burn the villa which he had there. After all
this, Tullius prosecutes Fabius for the damage done. So that, as it
seems, this speech ought rather to be called a speech against Publius
Fabius than a speech on behalf of Marcus Tullius.
I.
1. FORMERLY, O judges, I had determined to conduct this cause in a
different manner, thinking that our adversaries would deny that their
household was implicated in such a violent and atrocious murder.
Accordingly, I came with a mind free from care and anxiety, because I
was aware that I could easily prove that by witnesses. But now, when it
has been confessed, not only by that most honourable man, Lucius
Quinctius, but when Publius Fabius himself has not hesitated to admit
the facts which are the subject of this trial, I come forward to plead
this cause in quite a different manner from that in which I was
originally prepared to argue it. For then my anxiety was to be able to
prove what I asserted had been done. Now all my speech is to be
directed to this point, to prevent our adversaries from being in a
better position, merely because they have admitted what they could not
possibly deny though they greatly wished to do so.
2. Therefore, as matters stood at first your decision was more
difficult, but my defence was easy. For I originally rested my whole
case on the evidence; now I rest it on the confession of my adversary;
and to oppose his audacity in acts of violence, his impudence in a
court of justice, may fairly be considered as the task of your power,
not of my abilities.—For what is easier than to decide on the case of a
man who confesses the fact? But it is difficult for me to speak with
sufficient force of that which cannot be by language made out worse
than it is in reality, and cannot be made more plain by my speech than
it is by the confession of the parties actually concerned.
3. As, therefore, on account of the reasons which I have stated, my
system of defence must be changed, I must also forget for a little
time, in the case of Publius Fabius, that lenity of mine which I
practised at the previous trial, when I restrained myself from using
any arguments which might have the appearance of attacking him, so much
that I seemed to be defending his reputation with no less care than the
cause of Marcus Tullius. Now, since Quinctius has thought it not
foreign to the subject to introduce so many statements, false for the
most part and most wickedly invented, concerning the life and habits
and character of Marcus Tullius, Fabius must pardon me for many
reasons, if I do not now appear to spare his character so much, or to
show the same regard for it now as I did previously.
II.
4. At the former trial I kept all my stings sheathed; but since, in
that same previous trial, he thought it a part of his duty to show no
forbearance whatever to his adversary, how ought I to act, I, a Tullius
for another Tullius, a man kindred to me in disposition not less than
in name? And it seems to me, O judges, that I have more need to feel
anxious as to whether my conduct will be approved in having said
nothing against him before, than blamed for the reply I now make to
him.
5. But I both did at that time what I ought to have done, and I shall
do now what I am forced to do. For when it was a dispute about money
matters, because we said that Marcus Tullius had sustained damage, it
appeared foreign to my character to say anything of the reputation of
Publius Fabius; not because the case did not open the door to such
statements. What is my conduct then? Although the cause does require
it, still, unless when he absolutely compels me against my will, I am
not inclined to condescend to speak ill of him. Now that I am speaking
under compulsion, if I say anything strong, still I will do even that
with decency and moderation, and only in such a way that, as he could
not consider me hostile to him at the former trial, so he may now know
that I am a faithful and trustworthy friend to Marcus Tullius.
III.
6. One thing, O Lucius Quinctius, I should wish to obtain from you,
which, although I desire because it is useful for me, still I request
of you because it is reasonable and just,—that you would regulate the
time that you take to yourself for speaking, so as to leave the judges
some time for coming to a decision. For the time before, there was no
end to your speech in his defence; night alone set bounds to your
oration. Now, if you please, do not do the same; this I beg of you. Nor
do I beg it on this account, because I think it desirable for me that
you should pass over some topics, or that you should fail to state them
with sufficient elegance, and at sufficient length; but because I do
think it enough for you to state each fact only once. And if you do
that, I have no fear that the whole day will be taken up in talking.
7. The subject of this trial which comes before you, O judges, is, What
is the pecuniary amount of the damage inflicted on Marcus Tullius by
the malice of the household of Publius Fabius, by men armed and banded
together in a violent manner. Those damages we have taxed; the
valuation is yours; the decision given is that the amends shall be
fourfold.
IV.
8. As all laws and all legal proceedings which seem at all harsh and
severe have originated in the dishonesty and injustice of wicked men,
so this form of procedure also has been established within these few
years on account of the evil habits and excessive licentiousness of
men. For when many families were said to be wandering armed about the
distant fields and pasture lands, and to be committing murders, and as
that fact appeared to concern not merely the estates of individuals,
but the main interests of the republic, Marcus Lucullus, who often
presided as judge with the greatest equity and wisdom, first planned
this tribunal, and had regard to this object, that all men should so
restrain their households that they should not only not go about armed
to inflict damage on any one, but, even if they were attacked, should
defend themselves by law, rather than by arms;
9. and though he knew that the Aquilian law2
about damage existed, still he thought, that, as in the time of our
ancestors both men’s estates and their desires were less, and as their
families, not being very numerous, were restrained by fear of important
consequences, it very seldom happened that a man would be killed, and
it was thought a nefarious and unprecedented atrocity; and therefore,
that there was at that time no need of a system of judicial procedure
with reference to bodies of men collected in a violent manner and
armed; (for he thought that if any one established a law or a tribunal
for matters which were not usual, he seemed not so much to forbid them
as to put people in mind of them.)
V.
10. In these times, when after a long civil war our manners had so far
degenerated that men used arms with less scruple, he thought it
necessary to establish a system of judicial procedure, with reference
to the whole of a man’s household, in the formula, “Which was said to
have been done by the household,” and to assign judges,
11. in order that the matter might be decided as speedily as possible;
and to affix a severe punishment, in order that audacity might be
repressed by fear, and to take away that outlet, “Damage unjustly
caused.”
That which in other causes ought to have weight, and which has weight
by the Aquilian law, namely, that damage had been caused by armed
slaves in a violent manner,
* * * * * *
12. Men must decide themselves when they could lawfully take arms,
collect a band, and put men to death. When an action was assigned, this
alone was to be the point at issue, “whether it appeared that damage
had been inflicted by the malice of the household, by men collected and
armed acting in a violent manner,” and the word “unjustly” was not to
be added; he thought that he had put an end to the audacity of wicked
men when he had left them no hope of being able to make any defence.
VI.
13. Since, then, you have now heard what this judicial procedure is,
and with what intention it was established, now listen, while I briefly
explain to you the case itself, and its attendant circumstances.
14. Marcus Tullius had a farm, inherited from his father, in the
territory of Thurium, O judges, which he was never sorry to have, till
he got a neighbour who preferred extending the boundaries of his estate
by arms, to defending them by law. For Publius Fabius lately purchased
a farm of Caius Claudius, a senator,—a farm bordering on that of Marcus
Tullius,—dear enough, for nearly half as much again (though in a
wretched state of cultivation, and with all the buildings burnt down)
as Claudius himself had given for it when it was in a good and highly
ornamented condition, though he had paid an extravagant price for it.
* * * * * *
15. I will add this also, which is very important to the matter. When
the commander-in-chief died, though he wished to invest a sum of money,
got I know not how, in a farm, he did not so invest it, but he
squandered it. I do not very greatly wonder that, hampered as he was by
his own folly, he wished to extricate himself how he could. But this I
cannot marvel at sufficiently, this I am indignant at, that he strives
to remedy his own folly at the expense of his neighbours, and that he
endeavoured to pacify his own ill-temper by the injury of Tullius.
VII.
16. There is in that farm a field of two hundred acres, which is called
the Popilian field, O judges, which had always belonged to Marcus
Tullius, and which even his father had possessed. That new neighbour of
his, full of wicked hope, and the more confident because Marcus Tullius
was away, began to wish for this field, as it appeared to him to lie
very conveniently for him, and to be a convenient addition to his own
farm. And at first, because he repented of the whole business and of
his purchase, he advertised the farm for sale. But he had had a partner
in the purchase, Cnaeus Acerronius, a most excellent man. He was at
Rome, when on a sudden messengers came to Marcus Tullius from his
villa, to say that Publius Fabius had advertised that neighbouring farm
of his for sale, offering a much larger quantity of land than he and
Cnaeus Acerronius had lately purchased.
17. He applies to the man. He, arrogantly enough, answers just what he
chooses. And he had not yet pointed out the boundaries. Tullius sends
letters to his agent and to his bailiff, to go to the procurator of
Caius Claudius, in order that he might point out the boundaries to
purchasers in their presence. But he * * * * * refused to do this. He
pointed out the boundaries to Acerronius while they were absent; but
still he did not give them up this Popilian field. Acerronius excused
himself from the whole business as well as he could, and as soon as he
could; and he immediately revoked any agreement which he had with
Fabius, (for he preferred losing his money to losing his character,)
and dissolved partnership with such a man,
VIII.
18.being only slightly scorched. Fabius in the meantime brings on the
farm picked men of great courage and strength, and prepares arms such
as were suitable and fit for each of them; so that any one might see
that those men were equipped, not for any farming work, but for battle
and murder.
19. In a short time they murdered two men of Quintus Catius Aemilianus,
an honourable man, whom you all are acquainted with. They did many
other things; they wandered about everywhere armed; they occupied all
the fields and roads in an hostile manner, so that they seemed not
obscurely but evidently to be aware of what business they were equipped
for. In the meantime Tullius came to Thurium. Then that worthy father
of a family, that noble Asiaticus, that new farmer and grazier, while
he was walking in the farm, notices in this very Popilian field a
moderate-sized building, and a slave of Marcus Tullius, named Philinus.
20. “What business have you,” says he, “in my field?” The slave
answered modestly and sensibly, that his master was at the villa; that
he could talk to him if he wanted anything. Fabius asks Acerronius (for
he happened to be there at the time) to go with him to Tullius. They
go. Tullius was at the villa. Fabius says that either he will bring an
action against Tullius, or that Tullius must bring one against him.
Tullius answers that he will bring one, and that he will exchange
securities with Fabius at Rome. Fabius agrees to this condition.
Presently he departs.
IX.
21. The next night, when it was near day-break, the slaves of Publius
Fabius come armed and in crowds to that house which I have already
mentioned, which was in the Popilian field. They make themselves an
entrance by force. They attack the slaves of Marcus Tullius, men of
great value, unawares, which was very easy to do; and as these were few
in number and offered no resistance, they, being a numerous body well
armed and prepared, murdered them And they behaved with such rancour
and cruelty that they left them all with their throats cut, lest, if
they left any one only half dead and still breathing, they should get
the less credit. And besides this, they demolish the house and villa.
22. Philinus, whom I have already mentioned, and who had himself
escaped from the massacre severely wounded, immediately reports this
atrocious, this infamous, this unexpected attack to Marcus Tullius.
Tullius immediately sends round to his friends, of whom in that
neighbourhood he had a numerous and honourable body.
23. The matter appears scandalous and infamous to them all.
* * * * * *
X.
24. Listen, I entreat you, to the evidence of honest men touching those
affairs which I am speaking of. Those things which my witnesses state,
our adversary confesses that they state truly. Those things which my
witnesses do not state, because they have not seen them and do not know
them, those things our adversary himself states. Our witnesses say that
they saw the men lying dead; that they saw blood in many places; that
they saw the building demolished. They say nothing further. What says
Fabius? He denies none of these things. What then further does he add?
25. He says that his own household of slaves did it. How? By men armed,
with violence. With what intention? That that might be done which was
done. What is that? That the men of Marcus Tullius might be slain. If,
then, they contrived all these circumstances with this intention, so
that men assembled in one place, and armed themselves, and then marched
with fixed resolution to an appointed place, chose a suitable time, and
committed a massacre,—if they intended all this and planned it, and
effected it,—can you separate that intention, that design, and that act
from malice?
26. But those words “with malice are added in this form of procedure
with reference to the man who does the deed, not to him to whom it is
done. And that you may understand this, O judges, attend, I beg of you,
carefully. And, in truth, you will not doubt that this is the case.
XI.
27. If the trial were assigned to proceed on this ground, that the fact
to be proved was, “That it had been done by the household,” then if any
household itself had been unwilling to appear personally in the
slaughter, and had either compelled or hired the assistance of other
men, whether slaves on free men, all this trial, and the severe justice
of the praetor, would be at an end. For no one can decide that, if the
household were not present at a transaction, in that transaction the
household itself committed damage with men armed, in a violent manner.
Therefore, because that could be done, and done easily too, on that
account it was not thought sufficient for investigation to be made as
to what the household itself had done, but as to this point also, “What
had been done by the malice of the household.”
28. For when the household itself does anything, men being collected
together and armed, in a violent manner, and inflicts damage on any
one, that must be done by malice. But when it forms a plan to procure
such a thing to be done, the household itself does not do it, but it is
done by its malice. And so by the addition of the words “by malice” the
cause of both plaintiff and defendant is made more comprehensive. For
whichever point he can prove, whether that the household itself did him
the damage, or that it was done by the contrivance and assistance of
that household, he must gain his cause.
XII.
29. You see that the praetors in these last years have interposed
between me and Marcus Claudius with the insertion of this clause,—“From
which, O Marcus Tullius, Marcus Claudius, or his household, or his
agent, was driven by violence.” And what follows is according to the
formula in the terms in which the praetor’s interdict ran, and in which
the securities were drawn up. If I were to defend myself before a judge
in this way,—to confess that I had driven men out by violence—to deny
that there was malice in it,—who would listen to me? No one, I suppose;
because, if I drove out Marcus Claudius by violence, I drove him out by
malice; for malice is a necessary ingredient in violence; and it is
sufficient for Claudius to prove either point,—either that he was
driven out with violence by me myself, or that I contrived a plan to
have him driven out with violence.
30. More, therefore, is granted to Claudius when the interdict runs
thus, “from which he was driven by violence, by my malice,” than if it
had merely said, “whence he was driven by me by violence.” For, in this
latter case, unless I had myself driven him out, I should gain my
cause. In the former case, when the word “malice” is added, whether I
had merely originated the design, or had myself driven him out, it is
inevitable that it should be decided that he had been violently driven
out by me with malice.
XIII.
31. The case in this trial, O judges, is exactly like this, and,
indeed, identical with it. For I ask of you, O Quinctius, if the point
in question were, “What appeared to be the pecuniary amount of the
damage done by the household of Publius Fabius, by armed men, to Marcus
Tullius,” what would you have to say? Nothing, I suppose; for you
confess everything, both that the household of Publius Fabius did this,
and that they did it violently with armed men. As to the addition,
“with malice,” do you think that that avails you, that by which all
your defence is cut off and excluded?
32. for, if that addition had not been made, and if you had chosen to
urge, in your defence, that your household had not done this, you would
have gained your cause if you had been able to prove this. Now, whether
you had chosen to use that defence, or this one which you are using,
you must inevitably be convicted; unless we think that a man is brought
before the court who has formed a plan, but that one who has actually
done an action is not; since a design may be supposed to exist without
any act being done, but an act cannot exist without a design. Or,
because the act is such that it could not be done without a secret
design, without the aid of the darkness of night, without violence,
without injury to another, without arms, without murder, without
wickedness, is it on that account to be decided to have been done
without malice? Or, will you suppose that the pleading has been
rendered more difficult for me in the very case in which the praetor
intended that a scandalous plea in defence should be taken from him?
33. Here, now, they do seem to me to be men of very
extraordinary talent, when they seize themselves on the very thing
which was granted to me to be used against them; when they use rocks
and reefs as a harbour and an anchorage. For they wish the word
“malice” to be kept in the shade; by which they would be caught and
detected, not only since they have done the things themselves which
they admit having done, but even if they had done them by the agency of
others.
34 I say that malice exists not in one action alone, (which would be
enough for me,) nor in the whole case only, (which would also be enough
for me,) but separately in every single item of the whole business.
They form a plan for coming upon the slaves of Marcus Tullius: they do
that with malice. They take arms: they do that with malice. They choose
a time suitable for laying an ambush and for concealing their design:
they do that with malice. They break open the house with violence: in
the violence itself there is malice. They murder men, they demolish
buildings: it is not possible for a man to be murdered intentionally,
or for damage to be done to another intentionally, without malice.
Therefore, if every part of the business is such that the malice is
inherent in each separate part, will you decide that the entire
business and the whole transaction is untainted with malice?
XV.
35.What will Quinctius say to this? Surely he has nothing to say, no
one point, I will not say on which he is able to stand, but on which he
even imagines that he is able. For, first of all, he advanced this
argument, that nothing can be done by the malice of a household. By
this topic he was tending not merely to defend Fabius, but to put an
end utterly to all judicial proceedings of this sort. For if that is
brought before the court with reference to a household, which a
household is absolutely incapacitated from doing, there is evidently no
trial at all; all must inevitably be acquitted for the same reason.
36.If this were the only case, (it would be well, indeed, if it were,)
but if it were the only case, still you, O judges, being such as you
are, ought to be unwilling that an affair of the greatest importance,
affecting not only the welfare of the entire republic but also the
fortunes of individuals—that a most dignified tribunal, one established
with the greatest deliberation, and for the weightiest reasons, should
appear to be put an end to by you. But this is not the only thing at
stake.* * * * * the decision in this case is waited for with so much
anxiety as shows that it is expected to rule not one case only, but all
cases.* * * * *
...Shall I say that violence was done by the household of Publius
Fabius? Our adversaries do not deny it. That damage was done to Marcus
Tullius? You grant that—I have carried one point. That this violence
was done by armed men? You do not deny that—I have carried a second
point. You deny that it was done with malice; on this point we join
issue.* * * * *
Nor, indeed, do I see any need of looking for arguments by which that
trivial and insignificant defence of his may be refuted and done away
with.
37. And yet I must speak to the statements which Quinctius has made;
not that they have anything to do with the matter, but that it may not
be thought that anything has been granted by me, merely because it has
been overlooked.
XVI.
38.You say that inquiry ought to be instituted whether the men of
Marcus Tullius were slain wrongfully or no. This is the first inquiry
that I make about the matter,—whether that matter has come before the
court or not. If it has not come, why then need we say anything about
it, or why need they ask any questions about it? But if it has, what
was your object in making such a long speech to the praetor, to beg him
to add to the formula the word “wrongfully,” and because you had not
succeeded, to appeal to the tribunes of the people, and here before the
court to complain of the injustice of the praetor because he did not
add the word “wrongfully.
39.” When you were requesting this of the praetor,—when you
were appealing to the tribunes, you said that you ought to have an
opportunity given to you of persuading the judges, if you could, that
damage had not been done to Marcus Tullius wrongfully. Though,
therefore, you wish that to be added to the formula of the trial, in
order to be allowed to speak to that point before the judges; though it
was not added, do you nevertheless speak to it as if you had gained the
very thing which was refused to you? XVII.
But the same words which Metellus used in making his decree, the
others, whom you appealed to, likewise used. Was not this the language
of them all,—that although that which a household was said to have done
by means of men armed and collected in a violent manner, could not
possibly be done rightly, still they would add nothing? And they were
right, O judges.
40. For if, when there is a refuge open to them, still slaves commit
these wickednesses with the greatest audacity, and masters avow them
with the greatest shamelessness, what do you think would be the case if
the praetor were to decide that it is possible that such murders should
be committed lawfully? Does it make any difference whether the
magistrates establish a defence for a crime, or give people power and
liberty to commit crime?
41.In truth, O judges, the magistrates are not influenced by the extent
of the damage, to assign a trial in this formula. For if it were the
case, the magistrates would not give recuperators rather than a judex,3—not
an action against the whole family, but against the one who was
proceeded against by name; nor would the damages be estimated at
fourfold, but at double; and to the word “damage” would be added the
word “wrongfully.” Nor, indeed, does the magistrate who has assigned
this trial depart from the provisions of the Aquilian law about other
damage, in cases in which nothing is at issue except the damage. And to
this point the praetor ought to turn his attention.
XVIII.
42. In this trial, you see the question is about violence; you see the
question is about armed men; you see that the demolition of houses, the
ravaging of lands, the murders of men, fire, plunder, and massacre are
brought before the court. And do you wonder that those who assigned
this trial thought it sufficient that it should be inquired whether
these cruel, and scandalous, and atrocious actions had been done or
not; not whether they had been done rightly or wrongfully? The
praetors, then, have not departed from the Aquilian law which was
passed about damage; but they appointed a very severe course of
proceeding in the case of armed men acting with violence. Not that they
thought that no inquiry was ever to be made as to the right or the
wrong; but they did not think it fit that they who preferred to manage
their business by arms rather than by law should argue the question of
right and wrong.
43.Nor did they refuse to add the word “wrongfully” because they would
not add it in other cases; but they did not think that it was possible
for slaves to take arms and collect a band rightfully. Nor did they
refuse because they thought, that if this addition were made, it would
be possible to persuade such men as these judges that it had not been
wrongfully done, but because they would not appear to put a shield in
the hands of those men in a court of justice, whom they had summoned
before the court for taking those arms which they did take.
XIX.
44. The same prohibitory law about violence existed in the time of our
ancestors which exists now. “From which you, or your household, or your
agent have this year driven him, or his household, or his agent, by
violence.” Then there is added, with reference to the man who is being
proceeded against, “When he was the owner;” and this further addition
also, “Of what he possessed, having acquired it neither by violence,
nor secretly, nor as a present.”
45. The man who is said to have driven another away by violence has
many pleas of defence allowed him, (and if he can prove any one of them
to the satisfaction of the judge, then, even if he confesses that he
drove him out by violence, he must gain his cause,) either that he who
has been driven out was not the owner, or that he had got possession
from him himself by violence, or by stealth, or as a present. Our
ancestors left so many pleas of defence, by which he might gain his
cause, even to the man who confessed himself guilty of violence.
XX.
46. Come, now, let us consider another prohibitory law, which has also
been now established on account of the iniquity of the times, and the
excessive licentiousness of men.
* * * * * *
47. And he read me the law out of the Twelve Tables, which permits a
man to kill a thief by night, and even by day if he defends himself
with a weapon; and an ancient law out of the sacred laws, which allows
any one to be put to death with impunity who has assaulted a tribune of
the people. I imagine I need say no more about the laws.
48. And now I, for the first time in this affair, ask this
question:—What connexion the reading of these laws had with this trial?
Had the slaves of Marcus Tullius assaulted any tribune of the people? I
think not. Had they come by night to the house of Publius Fabius to
steal? Not even that. Had they come by day to steal, and then had they
defended themselves with a weapon? It cannot be affirmed. Therefore,
according to those laws which you have read, certainly that man’s
household had no right to slay the slaves of Marcus Tullius.
XXI.
49. “Oh,” says he, “I did not read it because of its bearing on that
subject, but that you might understand this, that it did not appear to
our ancestors to be anything so utterly intolerable for a man to be
slain.” But, in the first place those very laws which you read, (to say
nothing of other points,) prove how utterly our ancestors disapproved
of any man being slain unless it was absolutely unavoidable. First of
all, there is that holy law which armed men petitioned for, that
unarmed men might be free from danger. Wherefore it was only reasonable
for them to wish the person of that magistrate to be hedged round with
the protection of the laws, by whom the laws themselves are protected.
50. The Twelve Tables forbid a thief—that is to say, a plunderer and a
robber—to be slain by day, even when you catch him, a self-evident
enemy, within your walls. “Unless he defends himself with a weapon,”
says the law; not even if he has come with a weapon, unless he uses it,
and resists; “you shall not kill him. If he resists, endoplorato,”
that is to say, raise an outcry, that people may hear you and come to
your aid. What can be added more to this merciful view of the case,
when they did not allow that it might be lawful for a man to defend his
own life in his own house without witnesses and umpires?
XXII.
51.Who is there who ought more to be pardoned, (since you bring me back
to the Twelve Tables,) than a man who without being aware of it kills
another? No one, I think. For this is a silent law of humanity, that
punishment for intentions, but not for fortune, may be exacted of a
man. Still our ancestors did not pardon even this. For there is a law
in the Twelve Tables, “If a weapon escapes from the hand” * *
52. If any one slays a thief, he slays him wrongfully. Why? Because
there is no law established by which he may do so. What? suppose he
defended himself with a weapon? Then he did not slay him wrongfully.
Why so? Because there is a law * * * * *
XXIII.
53. Still it would have been done by violence.* * Still in that very
spot which belonged to you, you not only could not lawfully slay the
slaves of Marcus Tullius, but even if you had demolished the house
without his knowledge, or by violence, because he had built it in your
land and defended his act on the ground of its being his, it would be
decided to have been done by violence, or secretly. Now, do you
yourself decide how true it is, that, when your household had no power
to throw down a few tiles with impunity, he had power to commit an
extensive massacre without violating the law. If, now that that
building has been demolished, I myself were this day to prosecute him
on the ground “that it was done by violence, or secretly,” you must
inevitably either make restitution according to the sentence of an
arbitrator, or you must be condemned in the amount of your security.
Now, will you be able to make it seem reasonable to such men as these
judges, that, though you had no power of your own right to demolish the
building, because it was, as you maintain, on your land, you had power
of your own right to slay the men who were in that edifice?
XXIV.
54. “But my slave is not to be found, who was seen with your slaves.
But my cottage was burnt by your slaves.” What reply am I to make to
this? I have proved that it was false. Still I will admit it. What
comes next? Does it follow from this that the household of Marcus
Tullius ought to be murdered? Scarcely, in truth, that they ought to be
flogged; scarcely, that they ought to be severely reprimanded. But
granting that you were ever so severe; the matter could be tried in the
usual course of law, by an every-day sort of trial. What was the need
of violence? what was the need of armed men, of slaughter, and of
bloodshed?
55. “But perhaps they would have proceeded to attack me.” This, in
their desperate case, is neither a speech nor a defence, but a mere
guess, a sort of divination. Were they coming to attack him? Whom?
Fabius. With what intention? To kill him. Why? to gain what? how did
you find it out? And that I may set forth a plain case as briefly as
possible, is it possible to doubt, O judges, which side seems to have
been the attacking party?—Those who came to the house, or those who
remained in the house?
56. Those who were slain, or those, of whose number not one
man was wounded? Those who had no imaginable reason for acting so, or
those who confess that they did act so? But suppose I were to believe
that you were afraid of being attacked, who ever laid down such a
principle as this, or who could have this granted him without extreme
danger to the whole body of citizens, that he might lawfully kill a
man, if he only said that he was afraid of being hereafter killed by
him?
[The rest of this oration is lost.]
Endnotes
[1 ] This Oration is in a very imperfect and
corrupt state. It is only lately that even what we have of it has been
discovered in the North of Italy. It has been edited with great care by
C. Beier, who has, however, gone rather beyond the province of an
editor in filling up lacunae
of several lines at a time to complete what he considers must have been
Cicero’s meaning. Those additions of his I have generally thought it
better to omit from the translation, as they rest on no authority, and
as this work professes only to be a translation of Cicero himself.
[2 ] The Lex Aquilia provided for the damages which any one was to pay
to the owner, in the case of his having unlawfully killed any slave or
quadruped. Actions under this law were limited to damage done by actual
contact; though the subject of them was extended afterwards Vide Smith, Dict. Ant. p. 313, in voc. Damni [Editor: illegible character] liguria Actio.
[3 ] We are not acquainted with the difference between the judex and the recuperatores. Vide Smith, Dict. Ant p. 529, v. Judex in init.