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•^ m PROPBRTY OP TH« ^
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THE ^y^.^.
ORATIONS
OF
MARCUS TULLIUS CICERO.
Xiforallq fosslatfir hq C. D. Y O N G E, B. A-
VOL. n.
OONTAINIKO TBI
THRSE ORATIONS ON THE AGRARIAN LAW, THE FOUR AGAINSI CATILINE, THE ORATIONS FOR RABIRIUS, MURENA, SYLLA, ARCHIAS, ELACCUS, SCAURUS,
V LONDON:
' HENRY a BOHN, YORK STREET, COVENT (itAUDEV ^ 1856.
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LONDON: aiCIIARD Cr.AT, PBINTER, BREAD S1RKKT HILL
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CONTENTS.
PAGB
Fragments of the Oration for M. Tullius 1
— for M. Fonteius 16
^ Dratien for A. Csecina 85
in defence of the proposed Manilian Law 77
for A. Cluentins 104
i'ragments of the Oration for C. Cornelius 188
against C. Antonius and L. Catilina . . 194
IMrst Oration concerning the Agrarian Law . . . ' 202
Second Oration concerning the Agrarian Law 218
'i hird Oration concerning the Agrarian Law 257
< -ration for C. Babirius 268
First Oration against L. Catilina 278
Second Oration against L. Catilina 292
Third Oration against L. Catilina 303
F(^urth Oration against L. Catilina 817
Oration for L. Murena 380 ^
for P. Sylla 874
for A. L. Archias 411
for L. Flaccns 424
i irst Oration after Cicero's return 470
Second Oration after Cicero's return 491
Omtion against P. ClodiuB and C. Curio 502
for M. iBmilius Scaurus 505
y
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CICEEO'S ORATIONS.
TEE FBAGMENTS WHICH REMAIN OP THE SPEECH OP M. T. CICERO ON BEHALF OP MARCUS TULLIUS.*
THB AKOUMEKT.
Marcus Tallins had a &rm ; and a man of the name of Pablius Fabiu9 had bought another farm bordering on it. On the £urm of Tulliae there was a large field which Pabius 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 bum the villa which he had there. After all this, TuUius prosecutes Pabius for the damage done. So that, as it seems, this speech ought rather to be called a speech against Pablius Pabius than a speech on behalf of Marcus Tullius.
FoBMEBLY, 0 judges, I had determined to condnct 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 Quintius, 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
* This Oration is in a veiy 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, i^ho has, how- ever, gone rather beyond the province of an editor in fiuipg up lacunce 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 re^it on no authority, and aa this work professes only to be a translation of Cicero himself. VOL. II. B
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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. 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 adver- sary; and to oppose hi? audacity in acts of violence, his impu- dence in a court of justice, may fiiirly 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 fiict 1 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.
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 hinr, so much that I seemed to be defending his reputation with no less care than the cause of Marcus Tullius. Now, since Quintius has thought it not foreign to the subject to introduce so msu^ statements, fidse 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 r^ard for it now as I did previously. 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 what- ever 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 1 And it seems to me, 0 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. 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
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sustained damage, it tippeared foreign to my character to €ay anything of the reputation of Quintus Fabius; not because the case did not open the door to such statements. What is my conduct then) Although the cause does re- quire 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 imder compulsion, if I say anything strong, still I will do even that with decency ajid moderation, 4md 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 Mend to Marcus Tullius.
One thing, 0 Lucius Quintius, 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 speak- ing, so as to leave the judges some time for coming to a deci- sion. 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 accoimt, because I think it desirable for me that you should pass over some topics, or that you should hjl to state them witii suf&cient elegance, and at sufficient length; but because I do think it enough for you to stat« each feet only once. And if you do that, I have no fear that the whole <iay will be taken up in talking.
The subject of this trial which comes before you, 0 judges, is, What is the pecuniary amount of the damage inflicted on Marcus Tullius by the malice of the household of Quintus Fabius, by men armed and banded together in a violent man- ner. Those damages we have taxed ; the valuation is yours ; the decision given is that the amends shall be fourfold. 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 estab- lished within these few years on accoimt of the evU habits and excessive licentiousness of men. For when many femihes 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,
b2
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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; and though he knew that the Aquilian law ^ 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 fiimilies, not being very nume- rous, were restiuined by fear of important consequences, it very seldom happened that a man would be killed, and it was thought a ne&rious and unprecedented atrocity ; and there- fore, that there was at that time no need of a system of judi- cial procediure 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.) In these times, when after a long civil war our manners had so fax degenerated that men used arms with less scruple, he thought it necessary to establish a sy^ tem of judicial procedure, with reference to the whole of a man's household, in the formida, " Which was said to have been done by the household," and to assign judges, in order that the matter might be decided as speedily as possible ; and to affix a severe pimishment, 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,
« « « « « «
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 vio- lent manner," and the word " unjustly" was not to be added;
1 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 afberwarda. Vide SUn^th. Diet. Ant. p. 818, in voc Damni injuria Actio,
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he thought that he bad put an end to the audacity of wicked men when he had left them no hope of being able to make any defence.
Since, then, you have now heard what this judicial proce- dure is, and with what intention it was established, now listen, while I briefly explain to you the case itself, and its attendant circumstances.
Marcus Tullius had a farm, inherited from his father, in the
territory of Thurium, 0 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 &rm 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.
« « » « « *
I will add this also, which is very important to the matter. When the commander-in-chief cQed, though he wished to invest a sum of money, got I know not how, in a &rm, 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.
There is in that farm a field of two hundred acres, which is called the Popilian field, 0 judges, which had always be- longed to Marcus Tullius, and which even his fiither hod 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
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Publius Fabius had advertised that neighbouring farm of hia for sale^ offering a much larger quantity of land than he an(v Onseus Acerronius had lately purchased. He applies to the man. He, arrogantly enough, answers just what he chooses. And he had not yet pointed out the boimdaries. Tullius sends letters to his agent and to his bailiff to go to the pro- curator 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, being only shghtly scorched. Fabius in the meantime brings on the ferm 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. In a short time tbey murdered two men of Quintus Catius JEmilianus, an honourable man, whom you all are acquainted with. They did many other things; they wandered about everywhere armed ; they occupied aU the fields and r9ads 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. 'Oien that worthy father of a family, that noble Asiatious, that new farmer and grazier, while he was walking in the ferm, notices in this very Popilian field a moderate-sized building, and a slave of Marcus Tullius, named Philinus. "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 hap- pened 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.
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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 Tnllius, 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 nimierous body well armed and prepared, murdered them ^ And they behaved with such rancour and cruelty that they left them aU 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. Philinus, whom I have already mentioned, and who had him- self escaped from the massacre severely wounded, immediately reports this atrocious, this infiimous, 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. The matter appears scandalous and
infamous to them all.
******
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. TheJ^ say nothing^ further. What says Fabius ? He denies none of these things. What then further does he add? 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 TuUius might be slain. If, then, they contrived aU these cir- cumstances 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 ? But those words " with malice " are added in this form of procedure with reference to the man
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who does the deed, not to him to whom it is done. And that you may understand this, 0 judges, attend, I beg of you, carefully. And, in truth, you will not doubt that this is the
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 com- pelled or hired the assistance of other men, whether slaves or 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 transac- tion 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 suffi- cient 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." For when the house- hold itself does anything, men being collected together and armed, in a violent maniier,^ atid inflicts damage on any one, that must be done by malice. But when it forms a plan to procure such a thing to be donej the household itself does not do it, but it is done by its malice. And so by the addi- tion 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.
You see that the praetors in these last yeai-s have inter- posed between me and Marcus Claudius with the insertion of this clause, — '^ From which, 0 Marcus Tullius, Marcus Clau- dius, &r Ms 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 1 No one, I suppose ; because, if I drove out Marcus Claudius by violence, I drove him out l^ malice ; for malice is a neces- sary ingredient in violence ; and it is sufficient for Claudius to prove either point, — either that he was driven out with vio-
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lence by me myself, or that I contrived a plan to have hiin driven out with violence. More, therefore, is granted to Clau- dius 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.
The case in this trial, 0 judges, is exactly like this, and, indeed, identical with it. For I ask of you, 0 Quintius, if the point in qtiestion were, "What appeared to be the pecuniary amoimt 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 1 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 accoimt to be decided to have been done without malice ? Or, will you suppose that the pleading has been ren- dered more difficult for me in the very case in which the prsBtor intended that a scandalous plea in defence should be taken from him ? 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
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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.
I say that maUce 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 th^ 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 conceal- ing 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 1 What will Quhitius 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 ad- vanced 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 pro- ceedings 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. If this were the only case, (it would be well, indeed, if it were,) but if it were the only case, still you, 0 judges, being such as you are, ought to be unwilling that an affair of the greatest import- ance, aSecting not only the welfere of the entire republic but also the fortunes of individuals — that a most dignified tribimal, 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 1 Our adversaries do not deny it. That
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FOB M. TULLIUa II
damage was done to Marcus Tullius 1 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 tnvial and insignificant defence of his may be re- futed and done away with. And yet I must speak to the state- ments which Quintius 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.
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 1 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 coiurt to complain of the injustice of the prsetor because he did not add |;he word "wrongfully." 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 ? But the same words which MeteUus used in making his decree, the others, whom you appealed to, likewise used Was not this the language of them aU, — ^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, 0 judges. For if, when there is a refuge open to them, still slaves commit these wickednesses with the greatest audlicity, and masters avow them with the greatest
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shamelessness, what do you think would be the case if the preetor 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 1 In truth, O ju(^es, the magistrates are not influenced by the extent ot the damage, to assign a trial in this formula. For i? it were the case, the magistrates would not give recuperators rather than a judex,* — ^not an action against the whole family, but against the one who was proceeded against by name ; nor would the damages be estimated at fomfold, 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 Aquihan law about other damage, in cases in which nothing is at issue except the damage. And to this point the prsetor ought to turn his attention.
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 ques- tion of right and wrong. 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
* We are not acquainted with the difference between J^he judex and the recuperatores. Vide Smith, Diet Ant p. 529, y. Judex in init
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FOB M. TULLIU8. IS
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.
The same prohibitory law about violence existed in the time of our ancestors which exists now. " From which you, or your housel^old, 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." 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.
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.
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.
And now I, for the first time in this aflto, ask this ques- tion : — What connexion the reading of these laws had with this trial 1 Had the slaves of Marcus TuUius 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, cer- tainly that man's household had no right to slay the slaves of Marcus Tullius. •
" Ob-*' says he, " I did not read it because of its bearing on
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14 CICEBO'S OBATZONB.
that subject, but that you might understand this, that it did not appear to our ancestors to be anything so utterly intolera- ble 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. The Twelve Tables forbid a thief — that is to say, a plunderer and a robber — to be slain by day, «ven when you catch him, a self-evideiit 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, eindo- ploratOj* 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 lawftd for a man to defend his own life in his own house without witnesses and umpires ?
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 1 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 an- cestors did not pardon even this. For there is a law in the Twelve Tables, " If a weapon escapes from the hand" * * 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 day him wrongftilly. Why so 1 Because there is a law * * » ♦ *
Still it would have been done by violence. * * Still in that very spot which belonged to you, you not only could not law- fully day 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 groimd of its being his, it would be decided to have been done by violence, or secretly. Now, do you yoiuBelf decide how true it is, that, when your household had no power to
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lOB X. TULUUB. 15
I
throw down a few tiles with impunity, he had power to com- mit an extensiye massacre without violating the law. I( 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 resti- tution 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 1
" But my slave is not to be found, who was seen with your daves. But my cottage was burnt by your slaves." What reply am I to make to this f I have proved that it was Mse. Still I will admit it. What comes next ? Does it follow from this that the household of Marcus Tullius ought to be mur- dered 1 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 tiiaL What was the need of violence 1 what was the need of armed men, of slaughter, and of bloodshed %
" 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 1 Fabiua With what intention ? To kill him. Why? to gain what ? how did you find it out I And that I may set forth a plain case as briefly as possible, is it possible to doubt, 0 judges, which side seems to have been the attacking party 1 — Those who came to the house, or those who remained in the house 1 Those who were slain, or those, of whose number not one man was wounded 1 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.]
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16 OICEBO'S ORATIONS.
THE FRAGMENTS WHICH REMAIN OF THE SPEECH OP M. T. CICERO ON BEHALF OF MARCUS FONTEHJS,
TBI ARGUXEKT.
Fonteius bad been praetor of Gallia Narbonenaia for three years, and was accused now by the people of the province, and by Induciomarus, one of their princes, of great oppression and exaction in his govern- ment, and especially of imposing an arbitrary tax upon their wines. There were two hearings of this cause, but we have only this one speech of Cicero's with reference to it remaining; and this is in a very mutilated state.
I. * * For I defend Marcus Fonteius, 0 judges, on this ground, and I assert that after the passing of the Valerian law, from the time that Marcus Fonteius was quaestor till the time when Titus Crispinus was qucestor, no one paid it other- wise. I say that he followed the example of all his prede- cessors, and that all those who came after him, followed his. What, then, do you accuse 1 what do you find fault with ? For because in these accounts, which he says were begun by Hirtuleius, he misses the assistance of Hirtuleius, I cannot think that he either does wrong himself, or wishes you to do wrong. For I ask you, 0 Marcus Ploetorius, whether you will consider our case established, if Marcus Fonteius, in the matter respecting which he is now accused by you, has the man whom you praise above all others, namely Hirtuleius, for his ex- ample ; and if Fonteius is found to have done exactly the same as Hirtuleius in the matters in which you commend Hirtuleius ? You find fieiult with the description of payment. The public registers prove that Hirtuleius paid in the same manner. You praise him for having established these pecu- liar accounts. Fonteius established the same, with reference to the same kind of money. For, that you may not ignorantly imagine that these accounts refer to some different description of debt, know that they were established for one and the same reason, and with reference to one and the same sort of money. For when ♦ # ■# # #
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FOR M. FONTEIUS. 17
II. ***** No one — no one, I say, 0 judges — ^will be found, to say that he gave Marcus Fonteius one sesterce during his prsetorship, or that he appropriated one out of that money which was paid to him on account of the treasury. In no account-books is there any hint of such a robbery ; among all the items contained in them there will not be found one trace of any loss or diminution of such monies. But all those men whom we ever see accused and found fault with by this sort of inquiry, are overwhelmed with witnesses ; for it is difi&cult for him who has given money to a magistrate to avoid being either induced by dislike of him, or compelled by scrupulousness, to mention it ; and in the next place, if the witnesses are deterred from appearing by any influence, at all events the account-books remain imcorrupted and honest. Suppose that every one was ever so friendly to Fonteius ; that such a number of men to whom he was perfectly imknown, and with whom he was utterly unconnected, spared his life, and consulted his character ; still, the facts of the case itself, the consideration of the documents, and the composition of the account-books, have this force, that from them, when they are once given in and received, everything that is forged, or stolen, or that has disappeared, is detected. All those men made entries qf sums of money having been received for the use of the Koman people ; if they immediately either paid or gave to others equally large sums, so that what was received for the Eoman people was paid to some one or other, at all events nothing can have been embezzled. If any of them took any money home * * *
III. Oh, the good faith of gods and men ! no witness is found in a case involving a sum of three million two hundred thousand sesterces ! Among how many men ? Among more than six himdred. In what countries did this transaction take place 1 In this place, in this very place which you see. Was the money given irregularly? No money at all was touched without many memoranda. What, then, is the meaning of this accusation, which finds it easier to ascend the Alps than a few steps of the treasury ; which defends the treasury of the Ruteni with more anxiety than that of the Roman people ; which prefers using imknown witnesses to known ones, foreign witnesses to citizens ; which thinks that it is establishing a charge more plainly by the capricious evi-
VOL. II. 0
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18 OIOERO'S ORATIONS.
dence of barbarians than by documents written by our fellow- citizens 1 Of two magistracies, each of which is occupied in handling and dealing with large sums of money, the trium- virate* and the qusestorship, such accurate accounts have been rendered, that in those things which were done in the sight of men, which affected many men's interests, and which were set
• forth both in public and private registers, no hint of robbery, no suspicion of any offence can possibly arise. The embassy to
[ Spain followed, in a most disturbed time of the republic ;
' when, on the arrival of Lucius Sylla in Italy, great armies
quarrelled about the tribunals and the laws; and in this
desperate state of the republic * * *
If no money was paid, of what sum is that fiftieth a part? ******
Since his cause is not the same as that of Verres » * * » * *
a great quantity of com from Gaul ; infantry, and a most numerous army from Gaul, a great number of cavalry from Gaul * * *
That after this the Gauls would drink their wine more diluted, because they thought that there was poison in it
I * * * * ^i^g^^ ijj ^i^Q ^jjjjQ q£ ^jjjg prsetor GauP was^ overwhelmed with debt. From whom do they say that loans of such sums were procured] From the Gauls? By no means. From whom then 1 From Roman citizens who are
^ There were several sorts of triumviri who were concerned in the pecuniary afiaird of the state : the triumviri mensariif who were a sort of bankers, but who seem to have been permanently employed by the state, in whose hands we read, that not only the serarium, but iJso private individuals deposited sums of money which they had to dispose of; {Vide Smith, Diet. Ant. p. 613, y. Mensarii ;) the triumviri monetalee, who had the whole superintendence of the mint, and of the money that was coined in it ; and the triumviri capitcUes, who, among their other duties, enforced the payment of fines due to the state, and the triumviri sacria conquirendia donisque perseqaendis, who seem to have had to take care that all property given or consecrated to the gods was applied to that purpose, and who must therefore have been responsible for its application. Vide Smith, Diet. Ant. p. 1009, v. Triumviri,
* The passages preceding this figure do not occur in old editions ; they were found in the Vatican by Niebuhr, and published by him in 1820. They are still in a very corrupt state. The Roman figures at the heads of the subsequent chapters are those which occur in aU older editions, in which the oration began here.
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FOR M. FONTEIUS. 19
trading in Gaul. Why do we not hear what they have got t > say? Why are no accounts pf theirs produced? I mysoli* pursue and press the prosecutor, 0 judges ; I pursue him, I say, and I demand witnesses. In this cause I am taking more pains and trouble to get them to produce their wit- nesses, than other advocates for the defence usually take to refute them. I say this boldly, 0 judges, but I do not assert it rashly. All Gaul is filled with traders, — is full of Roman citizens. No Gaul does any business without the aid of a Roman citizen ; not a single sesterce in Gaul ever changes hands without being entered in the account-books of Roman citizens. See how I am descending, 0 judges, how far I seem to be departing from my ordinary habits, from my usual caution and diligence. Let one set of accounts be produced, in which there is any trace whatever which gives the least hint of money having been given to Fonteius; let them produce out of the whole body of traders, of colonists, of publicans, of agriculturists, of graziers, but one witness, and I will allow that this accusation is true. 0 ye immortal gods ! what sort of a cause is this ] what sort of a defence t Marcus ^Fonteius was governor of the province of Gaul, which consists of those tribes of men and of cities, some of whom (to say nothing of old times) have in the memory of the present generation carried on bitter and protracted wars with the Roman people ; some have been lately subdued by our generals, lately conquered in war, lately made remai'kable by the triumphs which we have celebrated over them, and the monuments which we have erected, and lately mulcted, by the senate, of their lands and cities : some, too, who have fought in battle against Marcus Fonteius himself, have by his toil and labour been reduced under the power and dominion of the Roman people. There is in the same province Narbo Martins,* a colony of our citizens, set up as a watch-tower of the Roman people, and opposed as a bulwark to the attacks of those very natives. There is also the city of Massilia, which I have already mentioned, a city of most gallant and faithful allies, who have made amends to the Roman people for the dangers to which they have been exposed in the Grallic wars, by their service and a^istance ; there is, besides, a large number of Roman citizens, and most honourable men.
^ Narbo Kartias is the present town of Narbonne. o2
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20 Cicero's orations.
II. Of this province, consisting of this variety of people, Marcus Fonteius, as I have said, was governor. Those who were enemies, he subdued ; those who had lately been so, he compelled to depart from the lands of which they had been deprived by the senate. From the rest, who had been often conquered in great wars, on purpose that they might be ren- dered obedient for ever to the Roman people, he exacted large troops of cavalry to serve in those wars which at that time were being carried on all over the world by the Roman people, and large sums of money for their pay, and a great quantity of com to support our armies in the Spanish war. The man who has done all these things is now brought before a court of law. You who were not present at the transactions are, with the Roman people, taking cognisance of the cause ; those men are our adversaries who were compelled to leave their lands by the command of Cnseus Pompeius ; those men are our adversaries who having escaped from the war, and the slaughter which was made of them, for the first time dare to stand a^inst Marcus Fonteius, now that he is imarmed. What of the colonists of Narbo ? what do they wish 1 what do they think V They wish this man's safety to be ensured by you ; they think that theirs has been ensured by him. What of the state of the Massilians? They distinguished him while he was among them by the greatest honours which they had to bestow ; and now, though absent from this place, they pray and entreat you that their blameless character, their panegyric, and their authority may appear to have some weight with you in forming your opinions. What more shall I say ] What is the inclination of the Roman citizens 1 There is no one of that immense body who does not consider this man to have deserved well of the province, of the empire, of our allies, and of the citizens.
III. Since, therefore, you now know who wish Marcus Fonteius to be attacked, and who wish him to be defended, decide now what your own regard for equity, and what the dignity of the Roman people requires ; whether you prefer trusting your colonists, your traders, your most friendly and ancient allies, and consulting their interests, or the interests of those men, whom, on account of their passionate dis- position, you ought not to trust ; on accoimt of their dis- loyalty you ought not to honour. What, if I produce also a
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FOR M. FONTBIUS. 21
still greater number of most honourable men to bear testi- mony to this man*s .virtue and innocence ? Will the una- nimity of the Gauls still be of more wdght than that of men of such great authority 1 When Fonteius was governor of Gaul, you know, 0 judges, that there were very large armies of the Koman people in the two Spains, and very illustrious generals. How many Roman knights were there, how many military tribimes, how many ambassadors came to them ! what eminent men they were, and how frequently did they come 1 Besides that, a very large and admirably appointed army of Cn»us Pompeius wintered in Gaul while Marcus Fonteius was governor. Does not Fortune herself appear to have intended that they should be a sufficient number of sufficiently competent witneases of those things which were done in Gaul while Marcus Fonteius was prsetor ) Out of all that number of men what witness can you produce in this cause] Who is there of all that body of men whose authority you are willing to cite ? We will use that very man as our panegyrist and our witnesa Will you doubt any longer, 0 judges, that that which I stated to you at the beginning is most true, that there is another object in this prosecution, beyond causing others, after Marcus Fonteius has been over- whelmed by the testimonies of these men, from whom many contributions have been exacted, greatjy against their will, for the sake of the republic, to be for the friture more lax in governing, when they see these men attacked, who are such men that, if they are crushed, the empire of the Roman people cannot be maintained in safety.
IV. A charge has also been advanced that Marcus Fonteius has made a profit from the making of roads; taking money either for not compelling people to make roads, or for not disapproving of roads which had been made. If all the cities have been compelled to make roads, and if the works of many of them have not been passed, then certainly both charges are felse, — ^the charge that money has been given for exemp- tion, when no one was exempted; and for approval, when many were disapproved of What if we can shift this charge on other most unimpeachable names 1 not so as to transfer any blame to others, but to show that these men were appointed to superintend that road-making, who are easily able to show that their duty was performed, and performed
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22 OICE^O'S ORATIONS.
well. Will you still urge all these charges against Marcus Fonteius, relying on angry witnesses? When Marcus Fonteius was hindered by more important affairs of the republic, and when it concerned the republic that the Domitian road should be made, he entrusted the business to his lieutenants, men of the highest characters, Caius Annius, BeUienus, and Caius Fonteius. So they superintended it; they ordered what seemed necessary, as became their dignity, and they sanc- tioned what seemed well done. And you have at all events had opportunities of knowing these things, both from our documents, from documents which you yoiurselves have writ- ten, and from others which have been sent to you, and produced before you; and if you have not already read them, now hear us read what Fonteius wrote about those matters to his lieutenants, and what they wrote to him in answer.
[The letters sent to Caius Annius the Lievtenanty and to Caius Fonteius tJie Lieutenant ; alsoj the letters received from Caius Annius the Lieutenant, and from Caius Fonteius the Lieu- tenant, are readi\
I think it is plain enough, 0 judges, that this question about the road-making does not concern Mai-cus Fonteius, and that the business was managed by these men, with whom no one can find &ult.
V. Listen now to the facts relating to the charge about wine, which they meant to be the most odious, and the most important charge. The charge, 0 judges, has been thus stated by Plaetorius : that it had not occurred to Fonteius for the first time when he was in Gaul to establish a transit duty on wine, but that he had thought of the plan in Italy, before he departed from Rome. Accordingly, that Titurius had exacted at Tolosa fourteen denarii for every amphora* of wine, under the name of transit duty ; that Fortius and Numius at Crodunum had exacted three vic- toriati ; that Serveus at Vulchalo had exacted two victoriati ; and in those districts they believe that transit duty was exacted by these men at Vulchalo, in case of any one turning
1 The amphora contained nearly six gallons ; a denarius, as has been said before, was about eightpence-halfpenny ; so that this duty was, as nearly as may be, one and eightpence a-gallon. A victoriatus was half ft denarius.
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FOR M. FOKTBIUS. 23
tusdde to Cobiamachus, which is a small town between Tolosa and Narbo, and not wishing to proceed so &r as Tolosa. Elesiodnlus eisuded only six denarii &om those who were taking wine to the enemj.^ I see, 0 judges, that this is 3, charge, important both from the sort of crime imputed, (for a tax is said to have been imposed on our produce, and I confess that a very large sum of money might have been amassed by that means,) and from its unpopular nature; for our adversaries have endeavoured to make this charge as widely known as possible, by making it the subject of their conversatiop. But I think that the more serious a charge is, which is proved to be feJse, the greater is the wickedness of that man who invented it; for he wishes by the magnitude of the accusation to prejudice the minds of those who hear it, 4S0 that the truth may afterwards iind a difficult entrance into them. * * * * *
[Everything relating to the charge ahotU the wine, to the war
toith the*Vocontii, and the arrangement of winter quarters, is
wanting."]
VI. * * * But the Gauls deny this. But the circumstances of the case and the force of arguments prove it. Can jbhen a judge refuse belief to witnesses ? He not only can, but he ought, if they are covetous men, or angry men, or conspira- tors, or men utterly void of religion and conscience. In fact, if Marcus Fonteius is to' be considered guilty just because the Gauls say so, what need have I of a wise judge ? what need have I of an impartial judge? what need is there of an intelligent advocate 1 For the Gfauls say so. We cannot deny it. If you think this is the duty of an able and experienced and impartial judge, that he must without the slightest hesi- tation believe a thing because the witnesses say it ; then the Goddess of Safety herself cannot protect the innocence of brave men. But if, in coming to a decision on such matters, ' the wisdom of the judge has a wide field for its exercise in ) considering every circumstance, and in weighing each accord- -^ ing to its importance, then in truth your part in considering the case is a more important and serious one than mine is in
* The whole of this passage is very corrupt ; the last line or two so hopelessly so, and so unintelligible, that pe.'haps it would have been l>etter to have marked them with asterisks instead of attempting to translate them.
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24 OIOEBO'S ORATIONS.
stating it For I have only to question the witness as to each oircumstance once, and that, too, briefly, and often indeed I have not to question him at all ; lest I should seem to be giving an angry man an opportimity of making a speech, or to be attributing an imdue weight to a covetous man. You can revolve the same matter over and over again in your minds, you can give a long consideration to the evidence of one witness ; and, if we Imve shown an imwillingness to ex- amine any witness, you are boimd to consider what has been our reason for keeping silence. Wherefore, if you think that to believe the witnesses implicitly is enjoined to a judge, either by the law or by his duty, thei-e is no reason at all why one man should be thought a better or a wiser judge than another. For judgment formed by the mere ears is single and simple enough ; it is a power given promiscuously to all in common, whether they are fools or wise men. What, then, are the opportunities which wisdom has of distinguishing itself? When can a foolish and credulous auditor be distinguished fi*om^ a scrupulous and discerning judge? When, forsooth, the statements which are made by the witnesses are com- mitted to his conjectures, to his opinion, as to the authority, the impartiality of mind, the modesty, the good feith, the scrupulousness, the regard for a fair reputation, the care, and the fear with which they are made.
VII. Or will you, in the case of the testimonies of bar- barians, hesitate to do what very often within obr recollection and that of our fathers, the wisest judges have not thought that they ought to hesitate to do with respect to the most illustrious men of our state ? For they reused belief to the evidence of Cn»us and Quintus Caepio, and to Lucius and Quintus Metellus, when they were witnesses against Quintus Pompeiiis, a new man ; for virtuoiis, and noble, and valiant as they were, still the suspicion of some private object to be gained^ and some private grudge to be gratified, detracted from their credibility and aufiiority as witnesses. Have wo seen any man, can we with truth speak of any man, as having been equal in wisdom, in dignity, in consistency, in all other virtues, in all the distinguishing qualities of honour, and genius, and splendid achievements, to Marcus iEmilius Scau- rus ? And yet, though, when he was not on his oath, almdst the whole world was governed by his nod, yet, when he was
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FOR K. FONTBIUS. 25
on his oath, his evidence was not believed against Cains Fim- bria, nor against Cains Memmius. They, who were the judges, were imwiUing that such a road should be opened to enmities, as for every man to be able to destroy by his evidence who- ever he hated. Who is there who does not know how great was the modesty, how great the abilities, how great the influ- ence of Lucius Crassus 1 And yet he, whose mere conversa- tion had the authority of evidence, could not, by his actual evidence, establish the things which he had stated against Marcus Marcellus with hostile feelings. There was — there was in the judges of those times, 0 judges, a divinely-inspired and singular acuteness, as they thought that they were judges, not only of the defendant, but also of the accuser and of the witness, as to what was invented, what was brought into the case by chance or by the opportunity, what was imported into it throu^ corruption, what was distorted by hope or by fear, what appeared to proceed from any private desire, or any private enmity. And if the judge does not embrace all these considerations in his dehberation, if he does not survey and comprehend them all in his mind, — if he thinks that whatever is said from that witness-box, proceeds from some oracle, then in truth it will be sufficient, as I have said before, for any judge to preside over this court, and to discharge this duty, who is not deaf. There will be no reason in the world for requiring any one, whoever he may be, to be either able or experienced, to qualify him for judging causes.
YIII. Had then those Roman knights, whom we ourselves have seen, who have lately flourished in the repubhc, and in the courts, so much courage and so much vigour as to refuse belief to Marcus Scaurus when a witness; and are you afraid to disbelieve the evidence of the Volc« and of the AJlobrogesI If it was not right to give credence to a hostile witness, was Crassus more hostile to Marcellus, or Scaurus to Fimbria, on account of any political differences, or any domestic quarrels, than the Gauls are to Fonteius ? For of the Gauls, those even who stand on the best ground have been compelled once and again, and sorely against their will, to ftimish cavalry, money, and com ; and of the rest, some have been deprived of their land in ancient wars, some have been overwhelmed and subdued in war by this very man. If those men ought not to be believed who appear to say anything covetously
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26 OIOBRO'S ORATIONS.
with a view tio some private gain, I think that the Caepios and Metelli proposed to themselves a greater gain &om the con- demnation of Quintns Pompeius, as by that they would have got rid of a formidable adversary to all their views, than all the Gauls hoped for from the diasister of Marcus Fonteius, in which that province believed that all its safety and hhertj -consisted.
If it is proper to have a regard to the men themselves, (a thing which in truth in the case of witnesses ought to be of the greatest weight,) is any one, the most honourable man in all Gaul to be compared, I will not say with the most honour- able men of our city, but even with the meanest of Roman citizens 1 Does Induciomarus know what is the meaning of giving evidence 1 Is he affected with that awe which moves «very individual among us when he is brought into that box ?
IX. Recollect, 0 judges, with how much pains you are accustomed to labour, considering not only what you are going to state in your evidence, but even what words you shall use, lest any word should appear to be used too mode- rately, or lest on the other hand any expression should appear to have escaped you from any private motive. You take pains even so to mould your coimtenances, that no suspicion oi any private motive may be excited ; that when you come forward there may be A sort of silent opinion of your modesty and scrupulousness, and that, when you leave the box, that reputation may appear to have been careMly preserved and retained. I suppose Induciomarus, when he gave his evidence, had all these fears and all these thoughts ; he, who left out of lus whole evidence that most considerate word, to which we are all habituated, " I think," a word which we use even when we are relating on our oath what we know of our own know- ledge, what we ourselves have seen ; and said that he knew everything he was stating. He feared, forsooth, lest he should lose any of his reputation in your eyes and in those of the Roman people ; lest any such report should get abroad that Induciomarus, a man of such rank, had spoken with such partiality, with such rashness. The truth was, he did not understand that in giving his evidence there was anything which he was bound to display either to his own countrymen or to our accusers, except his voice, his countenance, and his «.udacity. Do you think that those nations are influenced in
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giving their evidence by the sanctity of an oath, and by the fear of the immortal gods, which are so widely different jQx>m other nations in their habits and natural disposition ? For other nations undertake wars in defence of their religious feelings ; they wage war against the religion of every people : other nations when waging war beg for sanction and pardon from the immortal gods ; they have waged war with the im- mortal gods themselves.
X. These are the nations which formerly marched to such a distance from their settlements, as far as Delphi, to attack and pillage the Pythian Apollo, and the oracle of the whole world. By these same nations, so pious, so scrupu- lous in giving their evidence, was the Capitol besieged, and that Jupiter, under the obligations of whose name our ances- tors decided that the good faith of all witnesses should be pledged. Lastly, can anything appear holy or solemn in the eyes of those men, who, if ever they are so much influenced by any fear as to think it necessary to propitiate the immortal ^ gods, defile their altars and temples with human victims 1 So that they cannot pay proper honour to religion itself without first violating it with wickedness. For who is ignorant that, to this very day, they retain that savage and barbarous custom of sacrificing men 1 What, therefore, do you suppose is the good foith, what the piety of those men, who think that even the immortal gods can be most easily propitiated by the wickedness and murder of men 1 Will you connect your own religious ideas with these witnesses 1 Will you think that anything is said holily or moderately by these men 1 Will your minds, pure and upright as they are, bring themselves into such a state that, when all our ambassadors who for the last three years have arrived in GaxH, when all the Roman knights who have been in that province, when all the traders of that province, when, in shOTt, all the allies and friends of the Roman people who are in Gaul, wish Marcus Fonteius to be safe, and extol him on their oaths both in public and in private, you should still prefer to give your decision in unison with the Gauls 1 Appearing to comply with what 1 With the wishes of men ? Is then the wish of our enemies to have more authority in your eyes than that of our countrymen ? With the d%nity of the witnesses? Can you then possibly pref(n: strangers to people whom you know, imjust men to
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just ones, foreigners to countrymen, covetous men to mode- rate ones, mercenary men to disinterested ones, impious men to conscientious ones, men who are the greatest enemies to our dominions and to our name, to good and loyal allies and citizens f
XI. Are you then hesitating, 0 judges, when all these nations have an innate hatred to and wage incessant war with the name of the Roman people f Do you think that, with their military cloaks and their breeches, they come to us in a lowly and submissive spirit, as these do, who having suffered injuries fly to us as suppliants and inferiors to beg Qie aid of the judges ? Nothing is further from the truth. On the con- trary, they are strolling in high spirits and with their heads up, all over the forum^ uttering threatening expressions, ard terrifying men with barbarous and ferocious language ; which, in truth, I should not believe, 0 judges, if I had not repeatedly heard such things from the mouths of the accusers themselves in your presence, — when they warned you to take care, lest, by acquitting this man, you should excite some new GaUic war. If, 0 judges, everytlung was wanting to Marcus Fonteius in this cause ; if he appeared before the court, having passed a disgraceful youth and an in&mous life, having b^n con- victed by the evidence of virtuous men of having discharged his duties as a magistrate (in which his conduct has been under your own eye) and as a lieutenant, in a most scan- dalous manner, and being hated by all his acquaintances ; if in his trial he were overwhelmed with the oral and documen- tary evidence of the Narbonnese colonists of the Roman people, of our most faithful allies the Massilians, and of all the citizens of Rome ; still it would be your duty to take the greatest care, lest you should appear to be afraid of those men, and to be influenced by their threats and menaced terrors, who were so prostrate and subdued in the times of your fethers and forefisithers, as to be contemptible. But now, when no good man says a word against him, but all your citizens and allies extol him ; when those men attack him who have repeatedly attacked this city and this empire ; and when the enemies of Marcus Fonteius threaten you and the Roman people ; when his friends and relations come to you as suppliants, will you hesitate to show not only to your own citizens, who are mainly influenced by glory and praise.
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but also to foreign tribes and nations, that you, in giving your votes, prefer sparing a citizen to yielding to an enemy ?
XII. Among other reasons, this, 0 judges, is a very great reason for his acquittal, to prevent any notable stain and dis- grace from falling on our dominion, by news going to Gaul, that the senate and knights of the Eoman people gave their decisions in a criminal trial just as the Gauls pleased ; being influenced not by their evidence, but by their threats. But in that case, if they attempt to make war upon us, we must sum- mon up Caius Marius from the shades below, in order that he may be equal in war to that great man, that threatening and arrogE^nt Induciomarus. Cnseus Domitius and Quintus Maxi- mus must be raised from the dead, that they may again sub- due and crush the nation of the Allobroges and the other tribes by their arms ; or, since that indeed is impossible, we must beg my friend Marcus Plsetorius to deter his new clients from making war, and to oppose by his entreaties their angry feelings and formidable violence ; or, if he be not able to do so, we will ask Marcus Fabius, his junior counsel, to pacify the Allobroges, since among their tribe the name of Fabius is held in the highest honoiu*, and induce them either to be willing to remain quiet, as defeated and conquered nations usually are, or else to make them understand that they are holding out to the Roman people not a terror of war, but a hope of triumph.
And if, even in the case of an ignoble defendant, it would not be endurable that those men should think they had effected anything by their threats, what do you think you ought to do in the case of Marcus Fonteius? concerning whom,
0 judges, (for I think that I am entitled to say this now, when
1 have almost come to the termination of two trials,) concern- ing whom, I say, you have not only not heard any disgraceful charge invented by his enemies, but you have not even heard any really serious reproach. Was ever any defendant, espe- cially when he had moved in such a sphere as this man, as a candidate for honours, as ^ officer in command, and as a governor, accused in such a way, that no disgraceful act, no deed of violence, no baseness originating either in lust or inso- lence or audacity, was attributed to him, if not with truth, at least with some suspicious circumstances giving a reasonable colouring to the invention ?
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XIII. We know that Marcus iEmilius Scaurus, the most eminent man of our city, was accused by Marcus Brutus. The orations are extant by which it can be seen that many things are alleged. against Scaurus himself; no doubt falsely ; but still they were alleged against him and urged against him by an enemy. How many things were said against Mar- cus AquiUius on his trial 1 How many against Lucius Cotta 1 and, lastly, against Publius Kutilius 1 who, although he was condemned, still appears to me to deserve to be reckoned among the most virtuous and innocent men. Yet that most upright and temperate man had many things attributed to him on his trial, which involved suspicion of adultery, and great licentiousness. There is an oration ex- tant of a man, by far (in my opinion, that is,) the ablest and most eloquent of all our countrymen, Caius Gracchus ; in which oration Lucius Piso is accused of many base and wicked actions. What a man to be so ^accused ! A man who was of such virtue and integrity, that even in those most admirable times, when it was not possible to find a thoroughly worthless man, still he alone was called Thrifty. And when Gracchus was ordering him to be summoned before the assembly, and his lictor asked him which Piso, because there were many of the name, " You are compelling me," says he, " to call my enemy, Thrifty." That very man then, whom even his enemy could not point out with sufficient clearness without first praising him ; whose one surname pointed not only who he was, but what sort of man he was ; that very man was, nevertheless, ex- posed to a false and imjust accusation of disgracefcd conduct. Marcus Fonteius has been accused in two trials, in such a way, that nothing has been alleged against him from which the slightest taint of lust, or caprice, or cruelty, or audacity can be infeiTed. They not only have not mentioned any atrocious deed of his, but they have not even found fe,ult with any ex- pression used by him.
XIV. But if they had either had as much courage to tell a lie, or as mucb ingenuity to invent one, as they feel eagerness to oppress Fonteius, or as they have displayed licence in abusing him ; then he would have had no better fortune, as far as relates to not having disgraceful acts alleged against him, than those men whom I have just mentioned.
You see then another Thrifty, — a thrifty man, I say, 0 judges^
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and a- man moderate and temperate in every particular of his life ; a man full of modesty, full of a sense of duty, fiill of reli- gion, depending on your good faith and power, and placed in your power in such a way as to be committed wholly to the protection of your good faith.
Consider, therefore, whether it is more just that a most honourable and brave man, that a most virtuous citizen, diould be given up to the most hostile and ferocious nations, or restored to his jfreedom, especially when there are so many circumstances which cooperate in entreating your feivourable disposition in aid of this man's safety. First of all, there i& the antiquity of his family, which we are aware proceeds from Tusoulum, a most illustrious municipality, and whose fame is engraved and handed down on monuments of the exploits ot its members ; secondly, there have been continual prsetorships in that femily, which have been distinguished by every sort of honour, and especially by the credit of unimpeachable inno- ^ cence ; besides that, there is the recent memory of his father^ by whose blood, not only the troop of Asculum, by whom he was slain, but the whole of that social war has been stained with the deep dye of wickedness ; lastly, there is the man himself, honourable and upright in every particular of his life, and in military affairs not only endued with the greatest wisdom, and the most brilliant comage, but also skilful through pergonal experience in carrying on war, beyond almost any man of the present agd.
XV. Wherefore, if you do require to be reminded at all by me, 0 judges, (which, in truth, you do not,) it seems to me I may, witiiout presuming too much on my authority, give you ^is gentle hint, — that you ought to consider that those men are careftdly to be preserved by you, whose valour, and energy, and good fortune in military affairs have been tried and ascertained. There has been a greater abundance of such men in the repubhc than there is now ; and when there was, people consulted not only their safety, but their honour also. What, then, ought you to do now, when military studies have become obsolete among our youth, and when our best men and our greatest generals have been taken from us, partly by age, and partly by the dissensions of the state and ^e ill- fortune of the republic 1 When so many wars are necessarily- undertaken by us, when so many arise suddenly and imex*
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pectedly, do you not think that you ought to preserve this man for the critical occasions of the republic, and to excite others by his example to the pursuit of honour and virtue 1 Recollect what lieutenants Lucius Julius, and Publius Rutilius, and Lucius Cato, and Cnseus Pompeius have lately had in war. You will see that at that time there existed also Marcus Cor- nutus, Lucius Cinna, and Lucius Sylla, men of praetorian rank, and of the greatest skill in war; and, besides them, Caius Marius, PubHus Didius, Quintus Catulus, and Publius Crassus, men not learned in the science of war through books, but accomplished and renowned by their achievements and their victories. Come now, cast your eyes over the senate- house, look thoroughly into every part of the republic; do you see no possible event in which you may require men like those? or, if any such event should arise, do you think that the Roman people is at this moment rich in such men 1 And if you carefully consider all these circumstances, you will rather, 0 judges, retain at home, for yourselves and for your children, a man energetic in undertaking the toils of war, gallant in encountering its dangers, skilful in its practice and its discipline, prudent in his designs, fortunate and successful in their accomplishment, than deliver him over to nations most hostile to the Roman people, and most cruel, by con- demning him.
XVI. But the Gauls are attacking Fonteius with hostile standards as it were ; they pursue him, and press upon him with the most extreme eagerness, with the most extreme audacity. I see it. But we, 0 judges, you being our helpers, with many and strong defences, will resist that savage and in- tolerable band of barbarians. Our first bulwark against their attacks is Macedonia, a province loyal and well affected to the Roman people, which says, that itself and its cities were pre- served, not only by the wisdom, but even by the hand of Fonteius, and which now repels the attacks and dangers of the Gauls from his head, as it was defended itself from the invasion and desolation of the Thracians. On the opposite . side stands the further Spain, which is able in this case not only to withstand the eagerness of the accusers by its own honest disposition, but which can even refute the perjuries of wicked men by its testimonies and by its panegyrics. And even from GaiQ itself most &ithful and most important assist*
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ance 18 derived. As an assistance to this unhappy and inno- cent man, the city of the Massilians has come forward, which is labouring now, not only in order to appear to requite with proper gratitude the exertions of the man by whom it has been preserved, but which also believes that it has been placed in those districts for that very object, and with that express destiny, to prevent those nations from being able to injure our countrymen. The colony of Narbonhe fights equally on behalf of the safety of Marcus Fonteius, which, having been lately delivered from the blockade of the enemy by this man, is now moved at his misery and danger. Lastly, as is right . in a Gallic war — as the principles and customs of our ancestors enjoin — ^there is not one Boman citizen who thinks he requires any excuse for being eager in this man's behalf All the pubhcans of that province, all the farmers, all the graziers, all the traders, with one heart and one voice, defend Marcus Fonteius.
XVII. But if Induciomarus himself, the leader of the Allo- broges, and of all the rest of the Gaids, despise such powerful aid as this which we have, shall he still tear and drag away this man from the embrace of his mother, a most admirable and most miserable woman, and that, too, while you are look- ing on 1 especially when a vestal virgin on the other side is holding her own brother in her embraces, and imploring, 0 judges, your good feith, and that of the Roman people; she who has been, on behalf of you and of your children, occupied for so many years in propitiating the immortal gods, in oixier now to be able to propitiate you when supplicating for her own safety and that of her brother. What protection, what comfort, will that mihappy maiden have left, if she loses this her brother ? For other women can bring forth protec- tors for themselves — can have in their homes a companion and a partner in all their fortunes ; but to this maiden, what is there that can be agreeable or dear, except her brother 1 Do not, 0 judges, allow the altars of the immortal gods, and of our motiier Vesta, to lie reminded of your tribuiml by the claily lamentations of a holy virgin. Beware lest that eternal flame, which is now preserved by the nightly toils and vigils of Fonteia, should be said to have been extinguished* by the tears of your priestess. A vestal virgin is stretching out to- wards you her suppliant hands, those same hands which she VOL. n. D
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is accustomed to stretch out, on your behalf, to the immortal gods. Consider how dangerous, how arrogant a deed it would be for you to reject her entreaties, when, if the immortal gods were to despise her prayers, all these things which we see around us could not be preserved. Do not you see, 0 judges, that all of a sudden, Marcus Fonteius himself, brave as he is, is moved to shed tears at the mention of his parent and his sister ? — he who never has known fear in battle, he who in arms has often thrown himself on the ranks and numbers of the enemy, thinking, while he was facing such dangers, that he left behind him the same consolation to his relatives that his own father had left to him ; yet now, for aU that, is agitated and alarmed, lest he should not only cease to be an ornament and an assistant to his family, but lest he shoTild even leave them eternal disgrace and ignominy, together with the bitterest grief Oh how unequal is thy for- tune, 0 Marcus Fonteius ! If you could have chosen, how much would you have preferred perishing by the weapons of the GaTils rather than by their perjuries ! For then virtue would have been the companion of your life, glory your com- rade in death; but now, what agony is it for you to endure the sufferings caused by their power and victory over you, at their pleasure, who have before now been either conquered by your arms, or forced to submit against their will to your authority. From this danger, 0 judges, defend a brave and innocent citizen: take care to be seen to place more confi- dence in our own witnesses than in foreigners; to have more regard for the safety of our citizens than for the pleasure of our enemies; to think the entreaties of her who presides over your sacrifices of more importance than the audacity of those men who have waged war against the sacrifices and temples of all nations. Lastly, take care, 0 judges, (the dignity of the Koman people is especially concerned in this,) to show that the prayers of a vestal virgin have more influence over you than the threats of Gaul.
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THE ORATION OF M. T. CICERO IN BEHALF OP AULUS CiECINA.
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36 OICERO'S ORATIONS.
man, to defeat by law and judicial proceedings the man with whom he had declined contending in arms and violence. And ^butins appears to me to have been most especially auda- cious in assembling and arming men, and most especially impudent in his legal measures. Not only in that he has dared to come before the court, (for that, although it is a scandalous thing to do in a clear case, still is an ordinary course for wicked and artful men to adopt,) but because he has not hesitated to avow the very act which he is accused of; imless, perhaps, his idea was this, — ^if ordinary^ violence according to precedent had been used, he would not have had any superior right of possession ; but as the violence was committed in a way contrary to all law and precedent, Aulus Csecina fled in alann with his Mends. And so in this count, if he defends his cause according to the custom and esta- blished principles of all men, he thinks that we shall not be his inferiors in managing our case; but if he departs from all usage, the more impudently he conducts himself, the more likely to succeed shall he be : as if dishonesty had as much influence in a court of justice as confidence in a scene of violence, or as if we had not yielded at that time the more willingly to his audacity, in order now with the greater ease to resist his impudence. Therefore, 0 judges, I come now to plead the cause in this trial on a very (Afferent plan from the one I adopted at first. For then the hope of our cause depended on the arguments I could use in our defence ; now it rests on the confession of our adversary; — ^then I relied on our witnesses; now I rely on theirs. And about them I was formerly anxious, lest, if they were wicked men, they should speak falsely, — lest, if they were thought honest men, they should establish their case ; now I am very much at ease on the subject. For, if they are good men, they assist me by saying that on their oaths^ which I, not being on my oath, am urging in accusation. But if they are not so respectable, they do me no injury, since, if they are believed, then the very facts which we urge in accusation are believed ;
^ The usual course on claiming possession of disputed property was for the claimant to present himself with his Mends in the land, and then to be driven off by the occupant This violence was via moribuB facia. On this the claimant appealed to the praetor. But iBbutius had driven Caecina off with armed men, and had used unnecessary and actual vio- lence. This was via contra jus moremque.
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and if credit be not given to them, then credit is refused to the witnesses of onr adversary.
II. But when I consider the way in which they are con- ducting their case, I do not see what more impudent thing can be said ; when I consider your hesitation in giving your decision, I am afraid that what they seem to have been doing shamelessly, may have been done cunningly and wisely ; for if they had denied that violence had been committed by armed men, they would easily have been convicted in a plain case by most unimpeachable witnesses : if they had confessed it, and defended a deed which can never be rightfully done, as having been done by them at that time legally, they hoped — what, indeed, they gained — ^that they should give yqu cause to deliberate, and inspire you with proper hesitation and scrupu- lousness in deciding : and also, though that is a most scan- dalous thing, they thought that the trial in this case would appear to be not about the dishonesty of Sextus iEbutius, but about th^ civil law. And in this case, if I had to plead the cause of Aulus Ceecina alone, I should profess myself a sufficiently capable defender of it, because I had behaved with the greatest good feith and diligence ; and when these qualities are found in an advocate, there is no reason, espe- cially in a plain and simple matter, for requiring any ex- traordinary ability. But as I have now to speak of those rights which concern all men, — which were established by our ancestors, and have been preserved to this time; while, if they were taken away, not only would some part of our rights be diminished, but also that violence, which is the greatest enemy to law, would seem to be strengthened by that decision, — I see that the cause is one requiring the greatest abilities, not in order to demonstrate what is before men's eyes, but to prevent (if any mistake is made by you in so im- portant a matter) every one from thinking that I have been wanting to the cause, rather than that you have to your religious obligations.
Although I am persuaded, 0 judges, that you have not now doubted about the same cause twice, on accoimt of thB obscure and imcertain state of the law, so much as because this trial appears to affect that man's personal character; and on that accoimt you have delayed condemning him, and have also given him time to recollect himsel£ And since that
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custom has now become a usual one, and since good men, — men like yourselves,— do the same when sitting as judges, it is, perhaps, less blameable. But still it appears a thing to be complained of, because all judicial proceedings have been devised either for the sake of putting an end to disputes, or of punishing crimes, of which the first is the least important object, because it is less severe on individuals, and because it is often terminated by some friendly mediator. The other is most formidable, because it relates to more important matters, and requires not the honorary assistance of some friend, but the severity and vigour of a judge. That which was the more important, and on account of which judicial proceedings were most especially instituted, has been long abolished by evil customs. For the more disgraceful a thing is, the more severely and the more promptly ought it to be punished ; and yet those things which involve danger to a man's character are the slowest to be punished.
III. How, then, can it be right, that the same cause which prompted the institution of legal proceedings, should also cause the delay that exists in coming to a decision 1 If any one, when he has given security, — when he has bound himself by one word, does not do what he has rendered himself liable to do, then he is condemned by the natural course of justice without any appeal to the severity of the judge. If a man, as a guardian, or as a partner, or as a person in a place of trust, or as any one's agent, has cheated any one, the greater his offence is, the slower is his punishment. "Yes, for the sentence is a sentence of infamy." " Ay, if it arise from an in&mous action." See, then, how iniquitously it happens, that because an action is infamous, therefore a discreditable reputation should attach to it, but that a scan- dalous action is not to be punished, because, if it were, it would involve a loss of reputation. It is just as if any judex or recuperator were to say to me, " Why, you might have tried it in an Inferior court, — you might have obtained your rights by an easier and more convenient process ; therefore, either change your form of action, or else do not press me to give my decision." And yet he would appear more timid than a bold judge ought to appear, or more covetous than it is right for a wise judge to be, if he were either to prescribe to me how I should follow up my own rights^ or if he were to
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be afraid himself to give liis decision in a matter which was brought before him. In truth, if the praetor, who allows the laialfl to proceed, never prescribes to a claimant what form of action he widies him to adopt, consider how scandalous a thing it must be, when the matter is so far settled, for a judge to afik what might have been done, or what can be done now, and not what has been done. However, in this case we should be complying too much with your good nature if we were willing to recover our rights by any process di£ferent from that which we are adopting. For now, what man is there who thinks that violence offered by armed men ought to be passed over ; or who can show us a more mode- rate way of proceeding in so atrocious a case 1 In the case of offences of such a nature, that, as they keep crying out, criminal trials and capital trials have been established on th&i accoimt, can you find fault with our severity when you see that we have done nothing more than claim possession of our property by virtue of the praetor's interdict ?
IV. But whether you have as yet had your reputation endangered, or whether the doubts about the law have hitherto made the judges slow in giving their decision ; the former reason you yourselves have already removed, by the frequent adjournments of the trial ; the other I will myself this day take away, that you may not hesitate any longer about om- disputing about the common law. And if I shall appear to go rather further back in tracing the origin of the business than either the state of the law which is involved in this trial, or the nature of the case c6mpels me to, I beseech you to pardon me ; for Aulus Csecina is not less anxious to appear to have acted according to the strictest law, than he is to ob- tain what by strict law is his due.
There was a man named Marcus Fulcinius, 0 judges, of the mimicipality of Tarquinii, who, in his own city, was reckoned one of the most honourable men, and also had a splendid business at Rome as a banker. He was married to Csesennia^ a woman of the same mimicipality, a woman of the highest rank and most unimpeachable character, as he both showed while he was alive by many circumstances, and declared also by his will at his death. To this Csesennia he had sold a farm in the district of Tarquinii, at a time of great commercial embarrassment; for as he was employing the dowry of his
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wife, which he had received in ready money, he took care, in order that she, being a woman, might liave abundant security, to charge her dowry on that farm. Some time afterwards, having given up his banking business, Fulcinius buys some lands which are contiguous, and adjacent to this &rm of his wife's. Fulcinius dies ; (for I will pass over many circum- stances of the case, because they are unconnected with the subject of this action ;) in his will he makes his son, whom he had by Csesennia^ his heir ; he bequeaths Csesennia a life- interest in all his property, which she is to enjoy with his son. The great honour paid her by her husband would have been very agreeable to the woman, if she had been allowed to enjoy it long ; for she would have been enjoying her property in common with him whom she wished to be the heir of her property, and from whom she herself was receiving the greatest enjoyment of which she was capable. But of this enjoyment she was prematurely deprived by the act of God ; for in a short time the young man, Marcus Fulcinius, died ; he left Publios Ceesennius his heir; he bequeathed to his wife an immense sum of money, and to his mother the greater part of his landed property; and, accordingly, the women divided the inheritance.
V. When the auction of the inheritance was appointed to take place, -^butius, who had long been supported by Ceesennia though a widowed and solitary woman, and who had insinuated himself into her confidence by the system of undertaking (not without some profit to himself) dl the business which the woman had to transact, and all her dis- putes— was employed at that time also in this transaction of selling and dividing the property. And he always pushed and thrust himself in in such a way as to make Caesennia of opinion, that she, being a woman unskilled in business, could not get on well in any matter in which ^butius was not con- cerned. The character that you know, from daily experience, O judges, belongs to a flatterer of women, an agent of widows, an over-litigious defender, eager for strife, ignorant and stupid among men, but a shrewd and clever lawyer- among women ; this was the character of JEbutius. For all this was -^butius to Ceesennia. In case you should ask. Was he any relation 1 no one could be more entirely unconnected with her — ^Was he a friend, recommended to her by her
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father or her husband? Nothing of the sort. Who then was he ? He was such a man as I have just been depicting — a Toluntary friend of the woman, united with her, not by any relationship, but by a pretended officiousness, and a deceitful eagerness in her behalf; by an occasional assistance, seasonable rather than faithful. When; as I had begun to say, the auction was fixed to take place at Eome, the friends and rela- tions of Csesennia advised her — as, indeed, had occurred to her of her own accord, — that, since she had an opportunity of buying that farm of Fulcinius's which was contiguous to her own ancient property, there would be no wisdom in letting such an opportunity slip, especially as money was owing to her from the division of the inheritance, which could never be invested better. Therefore the woman determines to do so ; she gives a commission to buy the farm — to whom ? to whom do you suppose ] Does it not at once occur to every one that this was the natural business of the man who was ready to transact all the woman's business, of the man without whom nothing could be done with proper skill and wisdom ] You are quite right— the business is entrusted to JEbutius.
VI. iEbutius is present at the sale — ^he bids — many pur-
, chasers are deterred, some from goodwill to Csesennia, some by the price — ^the form is knocked down to -^butius ; -^bu- tius promises the money to the banker, which piece of evidence that excellent man is using now to prove that the purchase was made for himself As if we either denied that it had been knocked down to him, or aa if there were at the time any one who doubted that it had been bought for CsBsennia, when most men actually knew, nearly all had heard, and when even these judges might conjecture, that, as money was due to Csesennia from that inheritance, it was exceedingly advantageous for her that it should be invested in forms ; and since those fisirms which were especially desirable for the woman were being sold, and since he was bidding whom no one wondered to see acting for Ceesennia, no one could
. possibly suspect was buying l£em for himself When this purchase had been made, the money was paid by Csesennia ; and of this that man thinks that no account can be produced, because he himself has detained her account-books, and because he has the account-books of the banker in which the
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money is entered as having been paid Jjy him, and credit is given to him for it, as having been received from him ; as if it could have been properly done in any other manner. When everything had been settled in this way, as we are now stating in this defence of ours, Csesennia took possession of the farm and let it ; and not long afterwards she married Aulus Csecina. To cut ^ the matter short,, the woman died, having made a will. She makes Csecina her heir to the extent of twenty-three twenty-fourths of her fortune ; of the re- maining twenty-fourth she leaves two-thirds to Marcus Ful- cinius, a freedman of her first husband, and one-third she leaves to iEbutius. This seventy-second part of her property she meant to be a reward to him for the interest he had taken in her affairs, and for any trouble that they might have caused him. But he thinks that he can make this small fraction a handle for disputing the whole.^
VIT. In the first place he ventured to say that Csecina coidd not be the heir of Csesennia, because he had not the same rights as the rest of the citizens, on account of the dis- asters and civil calamities of the Volaterrans. Did he, there- fore, like a timid and ignorant man, who had neither courage enough, nor wisdom enough, not think it worth while to enter on a doubtful contest about his rights as a citizen 'i did he yield to iEbutius, and allow him to retain as much as he pleased of the property of Ceesennia ? No ; he, as became a brave and wise man, put down and crushed the folly and calimmy of his adversary. .As he was in possession of the estate, and as -^butius was exaggerating his seventy-second share unduly, Csecina, as heir, demanded an arbitrator, for the purpose of dividing the inheritance. And in a few days, when iEbutius saw that he could not pare anything off from CfiBcina's property by the terror of a law-suit, he gives him notice, in the forum at Eome, that that ferm which I have already mentioned, and of which I have shown that he had become the purchaser on Ceesennia's conmiission, was his own, and that he had bought it for himsel£ What are you saying ? you will say to me ;— -does that farm belong to ^butius which Ceesennia had possession of without the least dispute for four years, that is to say, ever since the farm was sold, as long as she lived 1 Yes, for the life-interest in that farm, and its produce, belonged to Ceesennia, by the will of her husband.
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Ab he was thus artfully planning this singular kind of action, CfiDcina determined, by the advice of his friends, to fix a day on which he would go to offer to take possession, and be formally driven off the form. They confer on the subject; a day is agreed on to suit the convenience of both parties ; CfiBcina, with his friends, comes on the appointed day to the castle of Axia, from which place the farm which is now in question is not far distant. There he is informed by many people that -^butius has collected and armed a great number of men, both fi-ee-men and slaves. While some marvelled at this, and some did not believe it, lo ! -^butius himself comes to the castle. He gives notice to Caecina that he has armed . men with him, and that, if he comes on the property, he^shall never go away again. Caecina and his friends agreed that it was best to try how fex they could proceed without personal danger. Then th^ descend from the castle — ^they go to the ferm. It seems to some to have been done rashly; but, as I think, this was the reason, — no one supposed that -^butius would really behave as rashly as he had threatened.
YIII. Accordingly iEbutius places armed men at every entrance by which people could pass, not only to that farm about which there was the dispute, but also to the next farm, about which there was no dispute at all. And therefore, at the first step, when he was about to enter on his ancient farm, because from that one he could come very near to the other, armed men in crowds opposed him. Csecina being repulsed from that spot, still went as he could towards that ferm, from which, according to their agreement, he was to be formally ejected by force. A row of olive-trees in a straight line marks the extreme boimdary of that farm. When they came near them, ^Ebutius was there with all his forces, and he summoned his slave, by name Antiochus, to him, and with a loud voice ordered him to kill any one who entered within that hne of oHves. Csecina, a most prudent man in my opinion, appears nevertheless to have shown in this affair more courage than wisdom. For though he saw that miilti- tude of armed men, and though he had heard that expression of iBbutius which I have mentioned, still he came nearer, and was entering within the boundaries of that section which the olive-trees marked out, when he was put to flight by the assault of Antiochus in arms, and hf the darts and onset of
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the rest. At the same time his friends and assistants all take to flight with him ; being greatly alarmed, as you heard one of them state in his evidence. When these things had been done in this manner, Publius Dolabella the preetor issued his interdict, as is the custom, " concerning violence, and armed men," ordering, without any exception, that he should restore the property from which he had ejected Csecina. He said, that he had restored it. Securities were entered into to stand a trial. The cause is now before you for your decision.
IX. It was most especially desirable for Csecina, 0 judges, to have no dispute at all ; and, in the next place, not to have one with so wicked a man ; and, in the third place, if he had a dispute at all, not to have it with so foolish a man as this. For, in truth, his foUy assists us almost as much as his wicked- ness injures us. He was wicked, inasmuch as he collected men, armed them, and, with them collected and armed, committed deeds of violence. In that he injured Csecina ; but by the same conduct also he benefited him. For he took with him evidence of the very deeds which he did so wickedly, and that very evidence he brings forward in this case. Therefore I have made up my mind, 0 judges, before I come to make my defence, and to summon my own witnesses, to make use of his confession and his witnesses. What is it that he con- fesses, and confesses so willingly, that he seems not only to admit it, but even to boast of it, 0 judges ] "I summoned men ; I collected them ; I armed them ; I prevented you from entering on the feirm by fear of death, by threatening you with personal danger ; by the sword," says he, " by the sword." (And he says this in open court.) " I drove you away and routed you." What more ] What say the wit- nesses ] Publius Vetilius, a relation of JEbutius, says that he was with -^butius as his assistant, with several armed slaves. What more does he say 1 — That there were many armed men there. What more ] — ^That JSbutius threatened Csecina. What shall I say of this witness, 0 judges, except this, that you must not believe him the less because he does not seem to be a thoroughly respectable man, but that you must believe^ him, because his evidence goes to establish the very facts that are most unfavourable to his cause 1 xiulus Terentius, a second witness, convicts not only iEbutius, but himself also. He says this against iBbutius, that there were
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armed men ; but concemiDg himself he makes this state- ment, that he ordered Antiochus, the slave of jEbutius, to attack Csecina with the sword if he came on the land. What more shall I say of this man ? against whom, indeed, I did not wish to say anything, though I was begged by Csecina to do so, that I might not seem to accuse him of a capital crime; but now T am in doubt how to speak of him, or how to be silent about him; since he, on his oath, makes this state- ment about himself. After them, Lucius Cselius not only stated that JEbutius was there with a large force of armed men, but also that Csecina had come thither with a very limited train.
X. Shall I at all disparage this witness? I beg you to believe him as much as you believe my witnesses. Publius Memmius followed ; who mentioned his having done a great kindness to the friends of Ceecina, in giving them a passage through his brother's fiirm, by which they could escape, when they were all in a state of great alarm and consternation. I will here give my public thanks to this witness for having shown himself xjaercifiil in his conduct, and conscientious in giving his evidence. Aulus Atilius and his son Lucius Atilius stated that there were armed men there, and that they also brought their slaves armed. They said this also ; that when ^butius was threatening Csecina, Csecina then and there required of him to let his ejection be accomplished in the regular form. Publius Rutihus stated the same thing, and he stated it the more willingly, in order to have credit attached to his evidence in a court of justice. Besides these, two more witnesses gave evidence^ saying nothing about the violence, but speaking only of the original business and of the purchase of the &rm. There was Publius Osesennius, the seller of the fiurm, a man with a body of greater weight than his character ; and Sextus Clodius, a banker, whose surname is Phormio, a man no less black and no less presuming than that Phormio in Terence ; neither of these said anything about violence, nor about anything else which had any reference to this trial But the tenth witness, the one who had been reserved for the last, a senator of the Roman people, the pride of his order, the flower and ornament of the courts of justice, the model of ancient piety, Fidiculanius Falcula, gave his evidence also. But though he came forward so eagerly and
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violently that he not only attacked Csecinawith his perjuries, but seemed to be angry with me also, I made him so tran- quil and gentle that he did not dare, as you recollect, to say a second time even how many miles his fitrm was distant from the city. For when he had said that it was fifty-three miles^ off, the people cried out with a laugh, that that was exactly the distance. For all men recollected how much he had received on the trial of Albius. What shall I say against him except that which he cannot deny? — that he came on the bench during a criminal trial, though he was not a member of that tribimal, and that, while sitting on that bench, though he had not heard a word of the cause, and though there was an opportunity of adjourning the decision, he stiU gave his sentence, " that the case was proved ;" that as he chose to decide without having inquired into the matter, he preferred condemning to acquitting ; and that, inasmuch as, if there had been one damnatory vote fewer, the defendant could not have been condemned, he came forward, not so much for the purpose of investigating the case, as of insuring a con- viction. Can anything worse be said against any man, than that he was induced by a bribe to condemn a man whom he had never seen nor even heard of 1 Or, can any allegation be made against a man on more certaiil grounds than one which even he, against whom it is made, cannot attempt to invalidate, not oven by signs ? However that witness, (in order that you might easily understand that he was not present in mind while their case was being stated by that party, and while their witnesses were giving their evidence, but that he was thinking of some criminal,) though every witness before him had stated that there were many armed men with Mhn- tius, said, (though he stood alone in his statement,) that there were no armed men at all. At first, I thought that the cim- ning fellow was well aware of what the cause was in need of, and only made a mistake because he was contradicting all the witnesses who had spoken before him ; when all of a sudden, according to his usual custom, he forgets his previous state-
' Some think that the number of miles here ought to he forty. In the trial of Cluentius, Cicero imputes to all the judges that they had been bribed with forty thousand sesterces ; and of these judges Falcula was one ; so that the laughter of the people must have been excited by a similarity of number between the sesterces and the miles.
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ment, and says that his slaves were the only armed men there.
XI. What can you do with such a man as this? Must you not grant to him sometimes to escape from the odium due to his excessive wickedness by the excuse of his prodigious stupidity] Did you not, 0 judges, believe these witnesses when you considered the case not proved ? But there was no question that they were speaking the truth. When there was a mTiltitude collected together, and arms, and weapons, and instant fear of death, and visible danger of murder, was it doubtful to you whether there seemed to have been any violence committed, or noti In what circumstances can violence be possibly understood to exist, if it does not exist in these 1 Or did that defence of his seem to you a very suffi- cient one, " I did not drive you out, I opposed your entrance; I did not suffer you to come on the farm at all, but I opposed armed men to you, in order that you might imderstand that, if you set your foot on the farm, you would immediately perish V What do you say ? Does not the man who was terrified and put to flight, and driven away by force of arms, appear to have been turned out ? We will examine hereafter into the appropriate expression ; at present let us prove the fact, which they do not deny, and let us inquire into the law of the case, and the proper method of proceeding by law under such circumstances.
This fact is proved, which is not denied by the -opposite party, — that Csecina, when he had come on the appointed day, and at the appointed time, in order that a formal and regular ejectment might take place, was driven away and prevented from entering by open violence, by men collected together in arms. As this is proved, I, a man unskilled in law, ignorant of matters of business and of law-suits, think that I can proceed in this way, that I can obtain my rights and prosecute you for the injury I have sustained, by means of the interdict which I have obtained. Suppose that I am mistaken in this, and that I cannot possibly obtain what I wish by means of this interdict. In this afl&ir T wish to take you for my master. I ask whether there is any legal pro- ceeding open to me in this case, or whether there is not. It is not right for men to be summoned together on account of a dispute about possession ; it is not right for a multitude to
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be armed for the sake of preserving a right ; nor is there any- thing so contrary to law as violence ; nor is there anything so irreconcilable with justice as men collected together and armed.
XII. And as the law is such, and the circumstances of the case such, that it appears above all others worthy of being brought under the notice of the magistrates, I ask again whether there is any legal proceeding open to me in this case, or whether there is not Will you say that there is not ? I wish to hear. Is a man, who in time of peace and tran- quillity has collected a band, prepared his forces, got together a great number of men, armed them, equipped them, — ^who has repelled, put to flight and driven o^ by arms, and armed men, and terror, and danger of death, unarmed men who had come at a time agreed upon to go through an ordinary legal form ; — ^is such a man to say, " Yes, indeed, I have done eveiything which you say ; and my conduct was turbulent, and rash, and hazardous. What then; I did it all with impunity ; for you have no means of proceeding against me by civil action before the prsetor?" Is it so, 0 judges? Will you listen to this 1 and will you permit such a tiling to be said before you more than once 1 When our ancestors were men of such diligence and prudence as to establish every requisite law, not only for such important cases as this, but for even the most trivial matters, and to prosecute all offences against them, will you allow that they overlooked this class of cases, the most important of all; so that, if people had compelled me to depart from my home by force of arms, I should have had a right of action, but as they only prevented me from entering my home, I have none 1 1 am not yet arguing the particular case of Ceecina, I am not yet speaking of our own particular right of possession. I am resting my complaint wholly on your defence, 0 Caius Piso. Since you make this statement, and lay down this principle, " that, if Caecina, when he was actually in his farm, had been driven from it, then it would have been right for him to be restored by means of this interdict ; but now he can by no means be said to have been from a place where he has not been ; and, therefore, we have gained nothing by this inter- dict ;" I ask you, i^ this day, when you are returning home, mep collected in a body, and armed, not only prevent you
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from crossing the threshhold and from coming imder the roof of your own house, but keep you off from approaching it — from even entering the court yard, — ^what will you do 1 My friend Lucius Calpumius reminds you to say the same thing that he said before, namely that you would bring an action for the injury. But what has this to do with possession ) What has this to do with restoring a man who ought to be restored 1 or with the civil law ] ♦ ♦ ♦ ♦ I will grant you even more. I will allow you not only to bring your action, but also to succeed in it. Will you be any the more in possession of your property for that! For an action for injury done does not carry wi^ it, even if success- frd, any right of possession ; but merely makes up to a man for the loss he sustains through the diminution of his liberty, by the trial and penalty imposed upon the offender.
XIII. In the mean time, shall the prsetor, 0 Piso, be silent in so important a matter ? ShaU he have no power to restore you to the possession of your own house 1 He who is occu- pied for whole days in repressing deeds of violence, and in ordering the restitution of what has been obtained by such deeds ; he who issues interdicts about ditches, about sewers, in the most trifling disputes about water or roads, shall he qn a sudden be struck dumb 1 Shall he in a most atrocious case have nothing which he can do ] And when Caius Piso is prevented from entering his own house, from coming under his own roo^ — prevented, I say, by men collected in a body and armed, — shaQ the praetor have no power of assisting him according to established regulations and precedents? For what wiU he sayl or what wiU you demand after having sustained such a notable injury? No one ever issued an interdict in the terms, "whether you were prevented by violence from coming." That is a new form ; I will not say an imusual one, but a form absolutely unheard of ^' Whence you were driven." What will you gain by this, when they make you the same answer that they now make me ; that , armed men opposed you and prevented you from entering your house ; moreover, that a man cannot possibly be driven out of a place, who has not entered into it ? I am driven out, say yo^ if aiiy one of my slaves is driven out. Now you are right, for you are altering your language, and appealing te justice. For if we choose to adhere te the words themselves,
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how are you driven out when your servant is drive^^ out? But it is as you say — I ought to consider you yovi olf as driven out, even if you were never touched. Is it not so 1 Come now, suppose not even one of your slaves was driven from his place, if they were all kept and retained in the house; if you alone were prevented from entering, and frightened away from your house by violence and arms ; will you in that case have this right of action which we have adopted, or some other form, or will you have no action at all 1 It neither becomes your prudence nor your character to say that, \a so notable and so atrocious a case, there is no right of action. If there be any other kind of action which has escaped our notice, teU us what it is. I wish to learn. If this be the proper form, which we have employed, then, if you are the judge, we must gain our cause. For I have no fear of your saying in the same cause, and with the same interdict, that you ought to be restored, but that Csecina ought not. In truth, who is there to whom it is not clear, that the property, and possessions, and fortunes of all men wiU be again brought back into a state of uncertainty if the effect of this interdict is made in any particular more obscure, or less vigorous? if, imder the authority of such men as these judges, the violence of armed men should appear to be approved by a judicial decision ? in a trial in which it can be said that there was no question at issue about arms, but that inquiry was only made into the language of the interdict. Shall that man gain his cause before your tribunal, who defends himself in this manner, " 1 drove you away with armed men, I did not drive you out ;" so that the fexst is not to depend on the equity of the defence, but on the correctness of a single expression ? Will you lay it down that there is no right of action in such a case as this ? that there is no method estabhshed for inquiring who has opposed a person with armed men, who has collected a multitude, and so prevented a man not only from effecting an entrance, but even from all access to a property ?
XIV. What, then, shall we say ? What force is there in this, or what difference is there between the cases 1 — whether, when I have got my foot within the boundaries, and taken possession as it were by planting a footstep on the ground, I am then expelled and driven out ; or whether I am met with
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the same yiolence, and the same weapons, not only before I can enter on the land,- but before I can see it, or breathe i.s atmosphere ? What is the difference between one case and the other i Can there be such a difference, that he, who has ex- pelled a man who has once entered, can be compelled to make restitution, but that he who has driven a person back when seeking to enter, cannot be compelled f See, I entreat yon in the name of the immortal gods, what a law you are pro< ceeding to establish for us, — ^what a condition for yourselves, jmd what a code for the whole state. In injuries of this kind there is one form of proceeding established, the one which we have- adopted, that by interdict If that is of no avail, or has no reference to this matter, what can be imagined more care- less or more stupid than our ancestors, who either omitted to institute any form of proceeding in so atrocious a business, or else did institute one which fails to embrace in proper lan- guage either the fact, or the principle of law applicable to the case. It is a dangerous thing for this interact to be dis- solved. It is a perilous thing for all men, that there should be any case of such a nature that, when deeds of violence have been committed in it, the injustice should not be able to be repaired by law. But this is the most disgraceful thing of all, that most prudent men should be convicted of such egregious folly, as they would be if you were to decide that such a case as this, and such a form of legal proceed- ing as is requisite, never once occurred to the minds of our ancestors.
We may complain then, he says. Still -^butius is not touched by this interdict. How so ? Because violence was not offered to Csecina. Can it be said in this cause, where there were arms, where there was a multitude of men col- lected, where there were men carefully equipped and placed in appointed places with swords, where there were threats, dangers, and terrors of death, that there was no violence 1
" No one,'* says he, " was slain, or even wounded.*' What are you saying ? When we are speaking of a dispute about a right of possession, and about an action at law between pri- vate individuals, will you say that no violence was done, if actual murder and slaughter did not take place ? I say that mighty armies have often been put to flight and routed by the mere terror and charge of the enemy, not only without
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the death of any one, but even i;?ithout one single person being wounded.
XV. In truth, 0 judges, that is not the only violence which reaches our persons and our lives, but that is even a much greater one, which, by threatening us with the danger of death, often drives our minds, agitated by fear as they are, from their steady position and condition. Therefore, wounded men often, when they are enfeebled in body, still do not suc- cumb as to their courage, and do not leave the place which they have determined to defend; but others, though un- woimded, are driven away : so that there is no doubt but that the violence which is done to a man whose mind is frightened, is much greater than that which is done to him whose body is wounded. And if we say that those armies have been routed by force, which have fled through fear, and often from only some slight suspicion of danger ; and if we have both seen and heard of troops being put to flight, not only by the dash of shield against shield, nor by bodily conflict, nor by blows interchanged hand to hand, nor by the showering of missile weapons from a distance, but often by the mere E^iout of the soldiers, by their warlike array, and the sight of the hostile standards ; shall that, which is called violence in war, not be called violence in peace ? And shall that which is thought vigorous conduct in military aflairs, be considered gentle in transactions of civil law 1 And shall that which has its influ- ence Cji armed battalions, not appear to move a body of men in the garb of peace ] And shall a woimd of the body be a greater proof of that violence which we complain o^ than alarm of mind 1 And shall we inquire strictly what wounds were inflicted, when it is notorious that people were put to the rout 1 For your own witness stated this, that when our party were flying through fear, he had pointed them out the way by which they might escape. Does no violence appear to have been ofifered to men who not only fled, but who even asked of a stranger which way they could flee with safety 1 Why, then, did they flee ? Out of fear. What did they fear 1 Violence, of course. Can you then deny the first facts when you admit the last? You confess, that they fled because they were frightened ; you say the cause of their flight was that which we all understand, — ^namely, arms, a multitude of men, an attack and onset of armed men. Wlien all this is admitted to
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have taken place, shall violence be denied to have been offered 1
XVI. But all this is common enough, and there is plenty of precedent for it in transactions of our ancestors' time j that, when people came to assert their rights bj force, if either party beheld armed men ever so far off, they should at once depart, having called on their companions to bear witness to the fsuot ; and then they had a right to proceed to trial, and to require the securities to be given according to the following formula : — " If no violence had been offered contrary to the edict of the praetor." Is it so 1 Is it enough for proving violence to have been offered, to know that there are armed men ; but not enough for proof, to fall into their hands ? Shall the aght of armed men avail to prove violence, and shall their onset and attack not avail ? Shall a man who departs quietly find it more easy to prove that violence has been offered to him, than a man who has fled from it 1 But I say this. If, when first iEbutius told Csecina, when in the castle, that he had collected men and armed them, and that, if he came thither, he would never go away again, Caecina had at once'departed, you ought not to have doubted whether vio- lence had been offered to Caecina. But if, as soon as he had beheld the armed men, he had then departed, you would have doubted still less. For everything is violence, which, by means of danger, either compels us to depart from any place, or prevents our approaching any place. But if you determine otherwise, take care lest what you determine amoimts to this, that no violence has been offered to a man who goes away alive, — ^take care lest you prescribe this to all men, in all dis- putes about possession, to think that they have a right to do battle, and to engage in actual combat, lest, just as in battle punishments are appointed for cowards by the generals, so, in courts of justice, the cause of those men who have fled may have a worse appearance than that of those men who have striven on to the last. As we are speaking of law, and of legal disputes between men, when in these matters we speak of violence, a very little violence must be considered enough, I have seen armed men — ^as few as you please — ^that is great violence. I departed, being alarmed at the weapon of one individual ; I was driven away and put to flight. If you establish this rule, there will not only be no instance here-
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after of any one wishing to have a battle for the sake of possession, but there will be no instance even of any one resisting. But if you refiise to think anytljdng violence where there has been no slaughter, no wounding, no bloodshed, then it will follow that men ought to be more anxious about esta- blishing their ownership, than about saving their lives.
XVII. Come now, in the matter of violence I wiU make you yourself the judge, 0 JEbutius. Answer, if you please. Was Csecina unwilling to come on his farm, or was he unable? As you say that you opposed and repelled him, surely you will admit that he wished to do so. Can you then say that it was not violence which hindered him, when, by reason of armed men, he was unable to come to a place, when he wished to come there, and had gone out with that intention 1 For, if he was by no means able to do what he was exceedingly desirous to do, beyond all question some violence or other hindered him, or else tell me why, when he wished to come on ihe land, he did not come. Now, then, you cannot deny that violence was offered. The question now is, how he was driven away who was prevented from approaching. For a man who is driven away must manifestly be removed and thrust down from the place which he is occupying. And how can that happen to a man who absolutely never was in the place at all from which he says that he was driven ? What shdl we say ? If he had been there, and if, under the influence of fear, he had fled from the place when he saw the armed men, would you then say that he had been driven away 1 I think so. Will you then, who decide disputes with such care and such subtlety, by expressions and not by equity, — ^you who interpret laws, not by the common advantage of the citizen, but by their letter, — ^will you be able to say that a man has been driven away who has never been touched 1 What ! Will you say that he has been thrust down fix)m his place 1 For that was the word which the prsetors used formerly to use in their interdicts. What do you say 1 Can any one be thiiist down who is not touched ? Must we not, if we will stick to the strict letter, understand that that man only is thrust down on whom hands are kid ? It is quite inevitable, I say, if we wish to make words and facts tally exactly with each other, that no one should be decided to have been thrust down, imless he be understood to have had hands laid on him, and so to have
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been removed and pushed headlong down by personal violence. But how can any one have been treated so^ unless he has been removed from a higher place to a lower one ? A man may have been driven away, he may have been put to flight, he may have been cast out ; but it is absolutely impossible for any one to have been pushed down, not only who has never been touched, but who, if he has been touched, has been touched on even and level groxmd. What then ] Are we to think that this interdict was framed for the sake of those men alone, who could say that they had been precipitated from high ground 1 for tiiose are the only people who can properly be said to have been driven down,*
XYIII. Shall we not, when the intention, and design, and meaning of the interdict is thoroughly imderstood, think it the most excessive impudence, or the most extraordinary folly, to haggle about a verbal mistake 1 and not only to pass over, but even to desert and betray the real merits of the case, and the common advantage of all the citizens ? Is this doubtful, that there is not such an abundance of words, — I will not say in our language, which is confessedly poor, but not in any other language either, — ^as to enable every imaginable thing and circupastance to be expressed by its own fixed and appropriate name ? Is it doubtful that we have no need of words when the matter, for the sake of which words were first invented, is thoroughly understood ? What law, what resolution of the senate, what edict of a magistrate, what treaty, or covenant, (to return to m^s private afl&drs,) what will, what judicial decision, what bond, what formula of bargain or agreement cannot be invalidated and torn to pieces, if we choose to bend &cts to words, and leave out of the question the intention, and design, and authority of those who wrote themi In truth, even our familiar and daily discourse will cease to have any coherence, if we are to spend all our time in word catch- ing. Lastly, there will be no such thing at all as any domestic rule, if we grant this to our slaves, that they are to obey the letter of our commands, and not attend to what may be
* The whole of this is quite untranslateable, bo aa to give in Bnglirii the sense which the Latin bears. The truth is, that it is a sort of play on the word dejidOj which is the Latin word used, and which not only means to drive away, its technical and proper meaning here, but also to throw down, which is the meaning which Cicero harps upon.
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gathered from the spirit of our expressions. Must I produce instances of all these things ? Do not different examples in each separate class occur to every one of you, which may be a proof that right does not depend only on the strict words of the law, but that words are meant to be subservient to the intentions and purposes of men ? In a most el^ant and fluent manner did Lucius Crassus, by &r the most eloquent of all men, a little before we came into the forum, defend this opinion in a trial before the centumviri j' and with great ease, too, though that very sagacious man, Quintus Mucins, was arguing against him, did he prove to every one that Marcus Curius, who had been left a certain person's heir in the case of the death of a posthumous son who was expected, ought to be the heir, though the son was not dead, never, in fact, having been bom. Whati was this case sufficiently provided for by the terms of the will 1 Certainly not. What was the thing, then, that influenced the judges? The intention; and if it could be imderstood though we were silent, we should not employ words at all : because it could not, words have been invented, not to hinder people's intentions, but to point them out
XIX. The law commands the property in land to be de- termined by two years' possession. But we adopt the same principle also in the case of houses, which are not mentioned at all in the law. If a road is not properly made, the law allows a man to drive a beast of biurden wherever he likes. Can it be imderstood from this, that if a road in the Bruttii be out of repair, a man may, if he pleases, drive his b^ast through the Tusculan ferm of Marcus Scaurus? There is a right of action against a vendor who is present, according to this formula, " Since I behold you before the court." . . . Now the blind Appius could never have availed himself of this
^ The orig^ constitation, and powers of the centmnyiri are exceed- ingly obscure; they were judges, but they differed from other judges in being a definite body or colle^um. According to Festus three centum- Tiri were chosen out of each tribe, so that their actual number must have been a hundred and fire. Their powers were probably limited to Rome, and at all events to Italy. It appears that they had cognisance of both civil and criminal matters. It was the practice to set up a spear in the place where the oentumviri were sitting, and accordingly the word haeta or ?ui8ta centunmralis, is sometimes used as equivsJent to judicium cerUumvirale, - Vide Smithy Diet. Ant. p. 232, v. Centumviri,
51
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form of action, if men adhered to words with such strictness, as not to consider the matter for the sake of which the words are used. If a person's heir had been stated in his will to be the minor Cornelius, and if Cornelius were twenty years old, according to your interpretation he would lose his inheritance. Many such cases occur to me at present, and still more to you, I am quite sure. But not to dwell on too many such points, and not to wander too fer from where we set out, let us con- sider this very interdict which is now before the court; for by that very document you will understand, that if we deter- mine that the law depends on its precise words, we shall lose all the advantage of this interdict, while we wish to be very acute and clever. " Whence you, or your household, or your agent . . ." Suppose your steward by himself had driven me away, your household would not, as I suppose, have driven me away, but only a member of your household. Would you then have a right to say that you had made the necessary restitution? No doubt; for what can be more easy than to prove to all those who understood the Latin language, that the name of a household does not apply to one single slave ? But suppose you have not. even one slave besides the one who drove me away; then you would cry out, " If I have a house- hold, I will admit that you were driven away by my house- hold." Nor is there any doubt, that, if we are influenced in our decisions by the mere letter of the law, and not by the facts, we must understand a household to consist of many slaves, and we must admit that one slave is not a household. The expression certainly does not only require this, but even compels it. But let til consideration of law, and the effect of the interdict, and the intention of the praetor, and the wisdom and authority of prudent men, reject this defence and treat it as worthless.
XX. What, then, are we to think ? Cannot those men speak Latin ? Yes, they speak it sufficiently to make -^ir inten- tions xmderstood. As their object was that you /should re- place me in my property, whether it was you yQurself who drove me away, or any one of your relations, or of your ser- vants, or of your friends, they did not specify the number of servants, but classed them all \mder one name a^ your house- hold. But if it were any one of your childr^ who did it, he is called your agent; not that every one is, or is called our agent, who is employed in the transaction of some of our hjm*
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ness, but because in this matter, where the intention of the interdict was clearly ascertained, they did not think it worth while to examine too curiously into the exact applicability of every word. For the principles of equity are not different in the case of one servant from what they are in the case of many; there is no different law for this single case, according to whether it was your agent who drove me away, — such a man as is legitimately considered the agent of one who is not in Italy, who is absent on business of the state, being for the time a sort of master, that is, a deputy possessing the rights of another, or whether it was one of your labourers, or neigh- bours, or clients, or freedmen, — or any one else who committed that violence and wrought that expulsion at your request, or in your name. Wherefore, if the same principles of law pre- vail with respect to replacing a man in his property who has been driven from it by violence, when that is once understood, it certainly has nothing to do with the matter, what is the exact force of each word and name. You must replace me just as much if your freedman drove me away, though he was not appointed to manage any of your business, as if your%agent did it; not that every one is an agent who transacts any of our business, but because it is of no importance to the matter to inquire into that point. You must replace me just as much if one slave of yours drove me away, as if your whole household did it; not that one slave is the same as a house- hold, but because the question is, what action has been done, not, in what language every point is expressed. Even (to depart still ftirther from the exact wording of the law, though there is not the least atom of departure from equity,) if it was no slave of yours at aU who did it, but if they were all strangers or hired people, still they will be comprehended imder the description and name of your household.
XXI. Continue, now, to follow up the examination of this interdict. "With men collected together." Suppose you collected none, but they all came together of their own accord. Certainly he does collect men together who assem- bles men and invites them. Those men are collected who are brought together by any one into one place ; if they not only were never invited, but if they did not even assemble on purpose at all ; if there was no one there who was not there previously, not for the purpose of committii% violence, but because they were used to be there for the sake of tilling
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the ground or tending the flocks. You will urge in your defence that men were not collected j and, as &r as mere words go, you will gain your cause, even if I myself am the judge ; but as to fitcts, you will have no ground to stand on before any judge whatever. For the intention of our legis- lators was, that restitution should be made in cases where violence had been committed by a multitude, and not by a multitude only if expressly collected for the purpose ; but because generally, if there is need of a multitude, men axe used to be collected, therefore, the interdict has been framed so as expressly to mention men when collected. And even if there does seem to be any verbal difference, the feet is the same, and the same rule will apply in all cases in which the principle of justice is seen to be one and the same. " Or armed." What shall we say 1 Whom, if we wish to speak good Latin, can we properly call armed ? Those, I imagine, who are prepared and equipped with shields and swords. What then 1 Suppose you drive any one headlong from his farm with clods of earth, and stones, and sticks ; and if you are ordered to replace a man whom you have driven away with armed men, will you say that you have complied with the terms of the interdict ? If words are to govern every- thing,— if causes are to be settled not by reason but by accidental expressions, then you may say that you have done so, and I will agree. You will establish the point, no doubt, that those were not armed men who only threw stones which they took up from the ground; that lumps of turf and clods of earth were not arms ; that those men were not armed, who, as they passed by, had broken off a bough of a tree ; that arms have their appropriate classification, some for defending, others for wounding ; and all who have not those arms, you will prove to have been unarmed. Ay, and when there is a trial about arms, then urge all these arguments ; but when there is a trial about law and justice, do not take shelter in such tame and meagre evasions. For you will not find any judge or recuperator who will decide on a man's being armed as if it were his duty to inspect the arms of a trooper ; but it will have just the same weight in his mind as if l5iey were most completely armed, if they are found to have been equipped in such a manner as to be able to do violence to life or limb.
XXII. And, that you may more clearly understand of how
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small Talue words are, — ^if you by yourself, or if any one person had made an onset on me with shield and sword, and I had been driven away by these means, would you venture to say that the interdict spoke of armed men, but that in this case there had only been one armed man 1 I do not believe you would be so impudent. And yet see if you are not fer more impudent now. For then, indeed, you might implore the assistance of all men, because men, in deciding on your case, were forgetting the native language ; because unarmed men were being decided to be armed ; because though an interdict had been framed expressly about many men, the deed had been done by one man only — one man was being decided to be many men. But in causes like this words are not brought before the court, but that feet on account of which these words have been introduced into the interdict. Our legislators intended that restitution should be made, without exception, in every case in which violence had been offered, threatening life or limb. That generally takes place by the agency of men collected together and armed ; but though the operation be different, still, if the danger is the same, the case is the same ; and IJien they intended that the law diould be the same. For the injury is not greater if in- flicted by your household than if inflicted by your steward ; nor if it was your own slaves who wrought it, is it greater than if the slaves of others, or people hired on purpose, had done so. It is no worse if your agsnt did it, than if your neigh- bour or your freedman was the person ; nor if it was the work of men collected together on purpose, than if it was the deed of men who offered themselves volimtarily, or of your regu- lar day-labourers. It is not a more serious injury if inflicted by armed men, than by unarmed men who had as much power to injure as if they had been armed ; nor if it were caused by many, than if it were the work of one single armed man. For the hjcta are in an interdict expressed by the circumstances xmder which violence usually takes place. If the same violence has been committed xmder other circimi- stances, although it may not be comprehended in the strict language of the interdict, it still comes under the meaning and intention, and authority of the law.
XXIII. I now come to that aigument of yours, " I did not drive him away, if I never allowed him to approach." I think that you yourself 0 Piso, perceive how much na;rrower
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and how much more imreasonable that dq^nce is, than if you were even to employ that other one, "They were not armed, — they had only bludgeons and stones." I^ in truth, the option were given to me, who do not profess to be a very fluent speaker, which argument I would prefer advancing in defence, either that a man had not been dnven away who had been met on his entrance with violence and arms, or, that those men were not armed, who had neither .swords nor shields; as fer as proving my case goes, I should consider both the positions equally trifling and worthless ; but as for making a speech ab^out them, I think that I might find somo arguments to make it appear that those men were not armed who had no shield nor any description of iron weapon; but I should be wholly at a loss if I had to maintain that a man who had been repulsed and put to flight had not been driven away. And in the whole of your defence, that appeared to me the most marvellous thing, that you. said there was no necessity for being guided by the authority of lawyers. And although this is not the first time that, nor this the only cause in which, I have heard it, still, I did wonder exceedingly why it was said by you. For other men have recourse to thw sort of exhortation when tiiey think they hme in their case some reasonable and good point which they are defending. If people are arguing against them relying on the letter and exact words, and (as people say) on the strict law, they are in the habit of opposing to injustice of that sort the name and dignity of virtue and justice. Then they laugh at that expression, — "if, or if not" Then they seek to bring alL word-catching, all traps and snares made up of the strict letter of the law, into odium. Then they say loudly that the case ought to be decided by considerations of what is honest and just, and not of cunning and trickey law; that to adhere to the mere text is the part of a false accuser, but that it is the duty of a good judge to uphold the intention and autho- rity of him who framed the law. But in this cause, when you are defending yourself by the wording and letter of the law, — when this is your argument, " Where were you driven froni ? Do you mean to say that you were driven from a place whicn you were prevented from approaching ] You were kept ofl^, not driven away ;" — ^when this is what you say, "I confess that I collected men, — I confess that I armed them, — I confess that I threatened you with death, — I confess that this conduct
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is punidiable by the prsBtor's interdict, if his intention and if equity is to prevail ; but I find in the interdict one word tinder which I can shelter myself. I did not drive you fi:om that place when I only prevented you from coming to it."
XXIV. Are you, in making this defence, accusing those who are sitting on the bench, because they think it right . to regard justice rather than the letter of the law ? And, while speaking on this point, you said that Sceevola had not succeeded in his case before the centumviri, whom I men- tioned before on the occasion of his doing ihe same thing which you are doing now, (though he had some reason for what he was doing, while you have none,) still he did not succeed in any one's opinion in proving the point that he was maintaining, because he appeared by his language to be opposing justice. I marvel tiat you should have made this statement in- this case, at an imfavourable time, and having an efiect exactly contrary to what your cause required; and it also appears strange to me that a statement should often be advanced in courts of justice, and should be some- times even defended by able men, that one ought not to be always guided by lawyers, and that the civil law ought not always to prevail in the decision of causes. For those who argue in this way, if they mean that those who sit on the bench have given some wrong decisions, should not say that we ought not to be guided by the civil law, but by stupid men. If they admit that the lawyers give proper answers, and still say that different decisions ought to be given, that is saying tiiat wrong decisions ought to be given ; for it is quite impossible that a decision of the judge on a point of law shoiild be correct when given one way, and an answer of a counsel should be right too when given the other way. It is quite clear that no one has any right to be accounted learned in the law, who decides that an incorrect decision is conformable to law. But sometimes contrary decisions have been given. In the first place, have they been given rightly, or wrongly 1 If they were given rightly, tiiat was the law which was decided to be so. K they were wrong, then it cannot be doubtftd which are to be blamed, the judges or the lawyers. Besides, if any decision has been given on a disputed point, they are not deciding against the opinion of the lawyers, if they give sentence contrary to the decision of Mucins, any more than they would be deciding in
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compliance with their authority, if sentence were given ac- cording to the precedent of Manilius. Forsooth, Ciassu» himself did not plead his cause before the centumyiri in such a way as to speak against the lawyers ; but he urged that the arguments which Scsevola brought forward in his defence were not law; and he not only brought forward good argu- ments to that point, but he also quoted Quintus Mucins, liis father-in-law, and many other most learned men, aa precedents.
XXV. For he who thinks th^ civil law is to be despised, he is tearing asunder the bonds, not only of all courts of justice, but of all usefiilness and of our common life ; but he who finds fault with the interpreters of the law, if he says that they are ignorant of the law, is only disparaging the men, and not the civil law itself. If he thinks we ought not to be guided by learned men, then he is not injuring the men, but he is undermining the laws and justice. So that you must feel that nothing is to be maintained in a state with such care as the civil law. In truth, if this is taken away, * there is no possibility of any one feeling certain what is has own property or what belongs to another ; there is nothing which can be equal to all men, or is tiie same in every case. Therefore in other disputes and trials, when the question at issue is, whether a thing has been done or not, whether what is alleged be true or &lse; and when false witnesses are sometimes suborned, and false documents foisted in ; it is possible that sometimes a virtuous judge may be led into error by a seemingly honourable and probable pretence ; or that an opportunity may be given to a dishonest judge, of appearing to be guided by the witnesses, or by the documents produced, though in reality he has knowingly given a wrong decision. For questions of law there is nothing of this sort, 0 judges : there are no forged docimaents, no dishonest wit- nesses ; even that overgrown power, which has sway in this state, is dormant with respect to cases of this sort ; it has no means of attacking the judge, or of moving a finger. For this can be said to a judge by some man who is not so scru- pulous as he is influential ; " Decide, I pray you, that this has been done or planned ; give credit to this witness ; esta- blish the genuineness of these documents ;" — but this cannot be said, " Decide that if a man has a posthumous son bom to him, his will is not thereby invalidated ; decide that a thing
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is due whicH a woman has promised without the sanction of her trustee." There is no opening for transactions of this sort, nor for any one's power or influence ; in feet, — ^and this gives questions of law a more important and a more holy- character, — a judge cannot be corrupted even by a bribe in cases of this sort. That very witness of yoiuB who dared to say " that he had been seen to do . . . ." in a case where he coidd by no possibility know even of what the man waa accused — even he would not venture to decide that a dowry was due to a husband which the woman had promised with- out the consent of her trustee. Oh admirable principle, and worthy of being maintained by you on this account, 0 judges !
XXVI. For, indeed, what is the civil law ? A thing which can neither be bent by influence, nor broken down by power, nor adulterated by corruption ; which, if it be, I will not say overwhelmed, but even neglected or carelessly upheld, there will then be no ground for any one feeling sure either that he possesses anything, or that he shall leave anything to his chil- dren. For what is the advantage of having a house or a form left one by one's father, or in any way legitimately ac- quired, if it be uncertain whether you will be able to retain tiiose things which are yours by every right of property ? if law be but little fortified 1 if nothing can be upheld by public and civil law, in opposition to the influence of any powerful man? What is the advantage, I say, of having a mrm, if all the laws which have been most properly laid down by our ancestors about boundaries, about possession, and water, and roads, may all be disturbed and changed in any manner? Believe me, every one of you has received a greater inherit- ance in respect of his property, fi:om justice and from the laws, than from those from whom he received the property itself. For it can happen, in consequence of anybody's will, that a form may come tome ; but it cannot be ensured to me, except by the civil law, that I shall be able to retiBn what has become my own. A farm can be left me by my father, but the enjoyment of the ferm — ^that is to say, freedom from all anxiety and danger of law-suits — is not left to me by my fether, but by the laws. Aqueducts, supply of water, roads, a right of way, comefif from my father ; but the ratified pos- session of all these things is derived from the civil law. Wherefore you ought to maintain and preserve that public
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iiJieTitance of law whioh you have received from your ances- tors with no less care than your private patrimony and pro- perty, not only because this last is fenced round and protected by the civil law, but also because if Na man loses his patrimony, it is only an individual who suffers, but if the law be lost, the disaster affects the whole state.
XXVII. In this very cause, 0 judges, if we do not succeed in establishing this point, that a man is driven away, — ^if it is evident that he has been repelled and put to flight with vio- lence by armed men, — Csecina will not lose his property, which, however, he would bear the loss of with a brave spirit, if the occasion required it ; h^ will caily not be restored to the possession of it immediately ; nothing more. But the cause of the Roman people, the laws of the state, all the property, fortune, and possessions of every one will again become uncer- tain and doubtful. This will be established, this will be settled by your authority j that, if you hereafter have a dis- pute with any one about ownership, if you drive him away when he has once entered on his property, you must inake restitution ; but if, as he is coming to enter, you taeet him with an armed multitude, and repel him, put him to flight, and beat him off while still only on his road, then you shall not make restitution. Then you will establish this principle as law and justice, that violence can only exist where there is murder, that it has nothing to do with the intention or the will ; that, imless blood be spilt, there has been no violence offered ; that it is wrong to say that a man has been driven away, who has been prevented from entering ; that no man can be driven away except from a place where he has planted his footsteps. Decide therefore now, whether it is of the greatest importance for the spirit of the law to be adhered to, and for equity to prevail, or for all laws to be twisted accord- ing to their literal expressions. Do you, I say, 0 judges, now decide which of these things appears to you the most desirable. While speaking of this, it happens very conveniently that Caius Aquillius, that most accomplished man, is not here now, who was here a httle while ago, and who has frequently been present during this trial ; (for if he were present, I should be more afraid to speak of hist virtue and prudence ; because he himself would feel a degree of modesty at hearing his oWn praises, and a similar kind of modesty would cramp me while praising a man to his face;) and whose authority, it baa
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been said, ought not to be too much deferred to in this cause. I am not afraid of saying more in praise of such a man than you yourselves either feel, or are wilhng to hear expressed be- fore you. Wherefore I will say this, that too much weight cannot be given to the authority of that man whose prudence the Roman people has seen proved in taking precautions, not in deceiving men ; who has never made a distinction between the principles of civil law and equity; who for so many years has given the Roman people fiie benefit of his abilities, his industry, and his good faith, which have been always ready &ad at their service ; who is so just and virtuous a man, that he appears to be a lawyer by nature, not by education ; so skilful and prudent a man, that not only some learning, but that even goodness appears to be the oflspring of civil law ; whose abilities are so great, whose good faith is so pure, that, whatever you draw from thence, you feel you are drawing in a pure and clear state. So that you are entitled to great gratitude from us when you say that that man is the author of our defence. But I marvel why you, when you say that any one has formed an opinion xmfavourable to me, produce the man who is my authority for my arguments, but say nothing of him who is yours. But, however, what does the man on whom you rely say 1 " In whatever terms a law is framed and drawn up * * * "
XXVIII. I met a man of that body of lawyers ; as I be- lieve, the very same man by whose advice you say that you are conducting this cause, and arranging your arguments in defence. And when he began that discussion with me, say- ing that it could not be admitted that a man had been driven from any place unless he had previously been in it, he con- fessed that the facts and the intention of the interdict were on my side ; but he said that I was cut ofiF by its terms, and he did not think it possible to depart from its precise language. When I produced many instances, and alleged even the very grounds of all justice, to prove that in many cases all right and the principles of justice and reason were at variance with the words of the written law ; and that that had always pre- vailed most, which had most authority and justice in it ; he comforted me, and showed me that in this cause I had no reason for anxiety, for that the actual words in which the securities were drawn ^ up were on my side, if I considered them carefuUy. " How so ?" said I. — " Because," said he.
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*' undoubtedly Csecina was driven away by armed men with violence from some place or other ; if ^ not from the place to which he desired to come, at all events from that place from which he fled." What then ?— " The praetor," says he, " has enjoined in his interdict that he shall be replaced in that place from which he was driven away, whatever that place may be from which he was driven away. But ^Ebutius, who coiiesses that Csecina was driven away from some place or other, must clearly have forfeited his security, since he Sdsely says that he has replaced him."
What is the matter, Piso 1 do you choose to fight about words 1 Do you think it fit to make the cause of justice and equity, the cause not of our property only, but of every man's property, to depend on a word ? I showed what my opinion was ; what had been the course pursued by our an- ^ cestors ; what was worthy of the authority of those men by whom the cause was to be decided ; that that was honest, and just, .and expedient for all men, that it should, be con- sidered with what design and with what intention a law had been established, not in what words it was framed. You pin me to the words. I will not be so pinned without objecting. I say that it is not right, •! say that this point cannot be maintained, I say that there is no single thing which can be included in a law with sufficient accuracy, or guarded against, or excepted against, if through some word being overlooked or placed in an ambiguous position, though the intention and the truth is completely ascertained, that which is intended is not to prevail, but that which is expressed, is.
XXIX. And since I have now stated my objection plainly enough, I will follow you where you invite me. I ask of you. Was I driven away? not from the farm of Fulcinius, for the praetor has not commanded me to be replaced only in the tjase of my having been driven away from that particular ferm, but he has ordered me to be replaced in the place from which I was driven away. I was driven away from the ad- / joining farm belonging to my neighbours, across which I was going to that farm ; I was driven away from the road ; I was certainly driven away from some place or other, from some ground, either private or public. I am ordered to be replaced there. You have said that you have replaced me; I say that I have not been replaced in compliance with the terms of the praetor's decree. What do we say to this?
p2
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Yonr defence must be destroyed either by your own sword (as men say) or by mine. If you take refuge in the intention of the interdict, and say that inquiry must be made into what ferm was meant when ^butius was ordered to replace me, and if you think it not right for the justice of the case to be caught in a trap made of words, then you come into my camp, you are fighting under my standard. That is my de- fence; mine. I assert this loudly; I call all the gods and men to witness, that, as our ancestors would allow no legal defence to be pleaded for armed violence, the question before the court is not, where were the footsteps of the man who was driven away, but what was the act of the man who di*ove him away ; I say loudly, that the man who was put to flight was driven away, that violence was offered to the man who was put in danger of his life. That topic you avoid and dread ; and you try to call me back from the wide field, if I may so say, of justice, to these narrow passes of words, and to all the comers of letters. You shall yourself be hemmed in and caught in those Yery toils which you try to oppose to me. " I did not drive him away ; I drove him off." This seems to you a very clever idea. This is the edge of your defence. On that edge your own cause must inevitably fall. For I reply to you in this way : — If I was not driven away from the place which I was prevented from approaching, at all events I was driven away from the place which I did approach, and from which I fled. If the prsetor did not clearly define the place in which he ordered me to be replaced, and merely ordered me to be replaced, I have not been replaced accord- ing to his decree. I wish, 0 judges, if all this appears to you to be a more cunning system of defence than I usually adopt, that you would consider, first of all, that another ori- ginally devised it, and not I ; in the next place, that not only I was not the originator of the system, but that I do not even approve of it, and that I did not bring it forward for the purposes of my own defence, but that I used it as a reply to their defence ; that I can speak in behaK of my own rights, and that in this matter which I have brought forward, what ought to be inquired into is not, in what terms the prsetor framed his interdict, but what was the place intended when he framed it ; and that in a case of violence offered by armed men, the thing to be inquired into is not, where the violence was offered^ but whether it was offered or not ; and that you
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cannot possibly urge in your defence, that where you wish it to be done, the words of the interdict ought to be regarded, but that yfhere you do not wish it, they ought not to be considered.
XXX. But is any answer given to me with reference to that which I have abready mentioned, that this interdict was so framed, not only as to &ct8, and as to its meaning, but also as to its expressions, that nothing appeared to require any alteration ? Listen carefiilly, 0 judg^ I beseech you, for it becomes your wisdom to recognise, not my prudence, but- that of our ancestors; for I am not going to mention what I myself have discovered, but a thing which did not escape their notice. When an interdict is issued respecting acts of violence, they were aware that there are two descrip- tions of causes to which the interdict had reference : one, if a man had been driven by violence from the place in which he was ; the other, if he was driven from the place to which he was coming; and either of these may take place, and nothing else can, 0 judges. Consider this then, if you please. If any one has driven my household away from my farm, he has driven me too from that place. If any one came up to me with armed men, outside my farm, and prevented me from entering, then he has driven me, not out of that place, but from that place. For these two classes of actions they invented one phrase which sufficiently expressed them both ; so that, whether I had been driven out of my form, or from my &rm, still I should be replaced by one and the same interdict, containing the words " from which you . . . ." These words " from which " comprehend either case : both out of which place, and from which place. Whence was Cinna driven ? Out of the city. Whence was Carbo driven ? From the city. Whence were the Gauls driven 1 From the Capitol. Whence were they driven who were with Gracchus 1 Out of the CapitoL You see, therefore, that by this one phrase two things are signified, both out of what place, and from what place ; and when the prsetor orders me to be replaced in that place, he orders me to be so on this imderstanding, just as if the Gauls had demanded of our ancestors to be replaced in jthe situation from which they had been driven, and if by any force they had been able to obtain it, it would not, I imagine, have been right for them to be replaced in the mine, bv which they had attacked the Capitol, but in the
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Capitol itself.' For this is understood — " Eeplace him in the place from which you drove him away/* whether you drove him out of the place, or from the place. This now is plain enough; replace him in that place; if you drove him out of tins place, replace him in it ; if you drove him from this place, replace him in that place, not out of which, but from which he was driven. Just as if a person at sea, when he had come near to his own country, were on a sudden driven off by a storm, and were to wish, as he had been driven off from his coimtry, to be restored to his former position. What he would wish, I imagine, would be this,^that fortune would re- store him to the place from which he had been driven ; not so as to replace him in the sea, but in the city which he was on his way to. So too, (since now we are necessarily hunting out the meaning of words from the similarity of the circum- stances,) he who demands to be restored to the place from which he was driven, — that is to say, whence he was driven, —demands to be restored to that very place itself
XXXI. As the words lead us to this conclusion, so too the case itself forces us to think and understand the same thing. In truth, Piso, (I am returning now back to the. first points of my defence,) if any one drives you out of your own house with violence, by means of armed men, what will you do? I suppose you will prosecute him by means of this same in- terdict which we have been employing. What now, if, when you are returning home from ihe forum, any one shall with armed men prevent you from entering your own house, what will you do ? You wiU avail yourself of the same interdict. When, therefore, the praetor has issued his interdict com- manding you to be replaced in the place from which you were driven, you will interpret that interdict just as I do now, and as it is plain it should be interpreted. As that phrase " from which place " is of equal power in both cases, and as you are ordered to be replaced in that place, you will interpret it that you are just as much entitled to be replaced in your own house if you have been driven out of the court- yard, as if you have been driven out from the inmost cham- bers of the house.
But in order, 0 judges, that there should be no doubt on your part, whether you choose to regard the fact, or the words, that you ought to decide in our favour, there arises now, when every one of their expedients has been defeated
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if he can prove that the man had obtained possession from him either by violence, or by underhand practices, or by begging for it Do you not perceive how many defensive pleas our ancestors allowed a man to be able to employ who had done this violence without arms and without a multitude? But as for the man who, neglecting right, and duty, and proper customs, has betaken lumself to the sword, to arms, and to murder, him you see naked and defenceless in the cause ; so that the man who has contended in arms for the possession, must clearly contend unarmed in the court of justice. Is there, then, any real difference, 0 Piso, between these interdicts 1 Does it make any difference whether the words *^ As Aulus Csecina was in possession** be added, or not? Does the consideration of right, — does the dissimilarity of the interdicts, — does the authority of your ancestors, at all influence you? If the addition had been made,' inquiry must have been made as to this point. The addition has not^ been made. Must that inquiry still be instituted ? And in this particular I do not defend Csecina. For, 0 judges, Csecina was in possession ; and although it is foreign to this cause, still I will briefly touch upon this point, to make you as desirous to protect the man himself, as the common rights of all men. You do not deny that Csesennia had a Hfe- interest in the farm. As the same former who rented it of Csesennia continued to hold it on the same tenure, is there any doubt, that if Csesennia was the owner while the farmer was tenant of the farm, so after her death her heir was the owner by the same right ? Afterwards Csecina, when he was going the roimd of his estates, came to that form. He received his accounts from the farmer. There is evidence to that point. After that, why, 0 jEbutius, did you give notice to Csecina to give up that farm, rather than some others, if you could find any other, imless Csecina was in jossessian of it! Moreover, why did Csecina consent to be egected in a regular and formal manner? and why did he make you the answer he did by the advice of his friends, and of Cains Aquillius himself ?
XXXIII. Oh, but Sylla passed a law. Without wasting time in making any complaints about that time, and about the disasters of the republic, I make you this answer, — ^that Sylla also added to that same law, "that if anything were enacted in this statute contrary to law, to that extent this
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statute was to have no validity." Whatns there which is coutrary to law which the Roman people is unable to com- mand or to prohibit? Not to digress too &r, this very additional clause proves that there is something. For imless there were, this would not be appended to all statutes. But I ask of you whether you think, if the people ordered me to be your slave, or, on the other hand, you to be mine, that that order would be authoritative and valid 1 You see that such an order is worthless. * * * *
First of all, you allow this, — ^that it does not follow that whatever the people orders ought to be ratified. In the next place, you allege no reason why, if liberty cannot possibly be taken away, citizenship may. . For we have received our traditions about each in the same way ; and if citizenship can once be taken away, liberty cannot be preserved. For how can a man be free by the rights of the Quirites, who is not included in the number of the Quirites 1 vind I, when quite a young man, established this principle when I was pleading against Cotta, the most eloquent man of our city. When T was defending the liberty of a woman of Arretium, and when Cotta had suggested a scruple to the decemvirs that our action was not a regular one, because the rights of citizenship had been taken from the Arretines, and when I argued rather vehemently that rights of citizenship could not be taken away, at the first hearing the decemvirs gave no decision ; afterwards, when^ they had inquired into, and deli- berated on, the subject, they decided that our action was quite regular. And this was decided, though Cotta spoke in opposition to it, and while Sylla was alive. But now on the other cities, why need I tell you how all men who are in Ihe same circimistances proceed by law, and prosecute their rights, and all avail themselves of the civil law without the slightest hesitation on the part of any one, whether magis- trate or judge, learned man or ignorant one? There is not one of you who doubts this. At all events, I am well aware that this is frequently asked, (as I must remind you of those things which do not occur to yourself,) how it is, if the right of citizenship cannot be taken away, that our citizens have often gone to the Latin colonies. They have gone either of their own accord, or in consequence of some penalty inflicted by the law ; though if they would have submitted to the penalty, they might have remained in the city.
XXXIV. What more need I ui^? What shall I say of a
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man whom the chief of the fetiales ^ has given up, or whom his own father or his people have sold? By what law does l;ie lose his right of citizenship 1 In order that the city may be released from some religious obligation, a Roman citizen is surrendered ; and when he is accepted, he then beloDgs to those men to whom he has been surrendered. If they refuse to receive him, as the people of Nimiantia refused to receive Mancinus,* he then retains his original rights of citizenship unimpaired. If his father has sold him, he discharges him from all subjection to his power, whom, when he was bom, he had had absolute power over. When the people sells a man who has not become a soldier, it does not take his liberty from him, but decides that he is not a free man who is afraid to encounter danger in order to be free ; but when it sells a man whose name is not on the register, it judges in this way, — that as a man who is in just slavery is not on the register, a man who, though a free man, is unwilling to be on th^ register, has, of his own accord, repudiated his freedom. But if it is chiefly in those ways that freedom, or the rights of citizenship, can be taken from a man, do not they who mention these things understand that if our ancestors' chose that those rights should be taken away for these reasons, they chose also that they should not be taken away in any other manner 1 For, as they have produced these arguments fix)m the civil law, I wish they would also produce any case of men having had either their rights of citizenship or their freedom taken away by law. For as to banishment, it is very easy to be understood what sort of thing that is. For banishment is not a punishment, but is a reftige and harbour of safety from punishment. For those who are desirous to avoid some punishment or some calamity, turn to banishment alone, — that is to say, they change their residence and their situation, and, therefore, there will not be found in any law of ours, as there is in the laws of other states, any mention of any crime being punished with banishment. But as men wished to
^ " The Latin here is pater patrattia. When an injury had been sua- tained by the state, four fetiales were deputed to seek redress, who again elected one of their number to act as their representative ; this indi- vidual was called pcUer pcUratus poptUi JRomanV*Sunih, Diet Ant. p. 416, V. FeHalea,
' Caius Hostilius Mancinus had been defeated by the Numantines, and had made a disgraceful peace with them, which the senate refused to ratify, and delivered up Mancinus to the Numantines, in order to annul the peace legally, but they refused to receive him.
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avoid imprisonment, execution, or infitmy, which are penalties appointed by the laws, they flee to banidiment as to an altar, though, if they chose to remain in the city and to submit to the rigour of the law, they would not lose their rights of citizenship sooner than they lost their lives; but because they do not so choose, their rights of citizenship are not taken from them, but are abandoned and laid aside by them. For as, according to our law, no one can be a citizen of two cities, the rights of citizenship here are lost when he who has fled, is received into banishment, — ^that is to say, into another city.
XXXV. I am not unaware, 0 judges, although I pass over many things bearing on this right, that still I have dwelt on it at greater length than the plan of your tribunal requires. ' But I did so, not because I thought that there was any need of urging this defence to you, but in order that all men might understand that the rights of citizenship never had been taken, away from any one, and could not be taken away. As I wished those men, whom Sylla desired to injure, to know this, so I wished, also, all the other citizens, both new and old, to be acquainted with it For no reason can be produced why, if the rights of citizenship could be taken from any new* citizen, they cannot also be taken away from all the patricians, from all the very oldest citizens. For that, with respect to this cause, I had no alarm, may be understood in the first place frx)m this consideration, — ^that you have no business to decide on that matter ; and in the second place, that Sylla himself passed a law respecting the rights of citizenship, avoiding any taking away of the le^ obligations and rights of inheritance of these men. For he orders the people of Ariminum to be under the same law that they have been. And who is there who does not know that they were one of the eighteen ^ colonies, and that they were able to receive inheritances from Roman citizens ? But if the rights of citizenship could by law be taken from Aulus Csecina, still it would be more natural for us and all good men now
^ The new citizens are those who had been made citizens of Eome at the termination of the Social War a few years before.
2 The old editions nsually have ** twelve," but eighteen is the correc- tion of Savigny, which Orellius calls " certissima." In the second Punic War, A.U.C. 643, of the thirty colonies of the Roman people, twelve declared that they had no means of supplying the consuls with men or money. The other eighteen remained faithful to their allegiance, and of these eighteen Ariminum was one. Vide Livy, xxvii. 9, 10.
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to inquire by what means we could reliere from injustice, and retain as a citizen, a most well-tried and most virtuous man, a man of the greatest wisdom, of the greatest virtue, of the greatest authority at home, than now, when he could not lose any particle of his right of citizenship, for any man to be foimd, except one hke to you, 0 Sextus, in folly and impu- dence, who should venture to say that his rights of citizenrfiip have been taken from him. And since, 0 judges, he has never abandoned his fiill rights, and has never yielded any point to their audacity and insolence, I will say nothing more about the common cause, and I leave the rights of the Roman people to the protection of your good &ith and conscientious decision.
XXXVI. That man has always desired the gooa opinion of you and of men like you so much that that is one of the points about which he has been most anxious in this cause ; nor has he been strugghng for anything else than not to seem to abandon his right in an indifferent manner ; he has not been more afraid of being thought to despise ^butius than of being supposed to be despised by him.
Wherefore, if, without entering on the merits of the case for a moment, I may speak of the man ; you have a man be- fore you of eminent modesty, of tried virtue, of well-proved loyalty, known both in good and bad fortime to the most honourable men of all Etruria by many proofe of virtue and humanity. It we must find feult with the opposite side, you have a man before you, to say no more, who admits that he collected armed men together, if, without reference to the individuals, you inquire into the case ; as this is a trial about violence, — as he who is accused admits that he committed violence with the aid of armed men, — as he endeavours to, defend himself by the letter of the law, not by the justice of his cause, — ^as you see that even the letter of liie law is i^inst him, and that the authority of the wisest men is on our side ; that the question before the court is not whether CfiBcina was in possession or not, and yet that it can be proved that he /was in possession ; that still less is it^ the question whether the farm belonged to Aulus Csecina or 'not, and yet that I myself have proved that it did belong to him ; — as all this is the case, decide what the interests of the republic with reference to armed men, what his own confession of vio- lence, what our decision with respect to justice, and what the terms of the interdict respecting right, admonish you to d«ci/l«.
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THE SPEECH OF M. T. CICERO IN DEFENCE OF THE PROPOSED MANILIAN LAW.
THI AB6VMBNT.
In the year b.c. 67, Anlus Gkbinins had obtained the passing of a decree by "which Pompey was invested for three years with the supreme command over all the Mediterranean, and oyer all the coasts of that sea, to a distance of four hundred furlongs from the sea. And in this command he had acted with great vigour and with complete succeKs ; destroying all the pirates' strongholds, and distributing the men themselves as colonists among the inland towns of Asia Minor and Greece. After this achievement he did not return to Kome, but remained in Asia, making various regulations for the towns which he had conquered.
During this period Lucnllus had been prosecuting the war against Mithridates, and proceeding gradually in the reduction of Pontus; he had penetrated also into Mesopotamia, but had subsequently been distressed by seditions in his army, excited by Clodius, his brother- in-law ; and these seditions had given fresh courage to Mithridates, who had fallen on Gains Triarius, one of his lieutenants, and routed his army with great slaughter. At the time that Pompey commenced his campaign against the pirates, the consul Marcus Aqnillius Glabrio was sent to supersede Lucullus in his command ; but he was perfectly incompetent to oppose Mithridates, who seemed likely with such an enemy to recover all the power of which Lucullug had deprived him. So* in the year b. c. 66, while Glabrio was still in Bithynia, and Pompey in Asia Minor, Gains Manilius, a tribune of the people, brought forward a proposition^ that, in addition to the command which Pompey already possessed, he should be invested with unlimited power in Bithynia, Pontus, and Armenia, for the purpose of conducting the war against Mithridates. The measure was strongly opposed by Gatulus and by Hortensius, but it was sup- ported by Gaesar, and by Gicero in the following speech, which is the first which he ever addressed to the people; and the proposition was carried.
I. Although, 0 Romans, your numerous assembly has always seemed to me the most agreeable body that any one can ^dress, and this place, which is most honourable to plead in, has also seemed always the most distinguished place for de- livering an oration in, still I have been prevented from trying this road to glory, which has at all times been entirely open
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to every virtuous man, not indeed by my own will, but by the system of life which I have adopted from my earliest years. For as hitherto I have not dared, on account of my youth, to intrude upon the authority of this place, and as I considered that no arguments ought to be brought to this place except such as were the fruit of great ability, and worked up with the greatest industry, I have thought it fit to dpvote all my time to the necessities of my friends. And accordingly, this place has never been unoccupied by men who were defending your cause, and my industry, which has been virtuously and honestly employed about the dangers of private individuals, has received its most honourable reward in your approbation. For when, on accoimt of the adjourn- ment of the comitia, I was three times elected the first prae- tor by all the centuries, I easily perceived, 0 Romans, what your opinion of me was, and what conduct you enjoined, to others. Now, when there is that authority in me which you, by conferring honours on me, have chosen that there should be, and all that fecility in pleading which almost daily practice in speaking can give a vigilant man who has habituated himself to the forum, at all events, if I have any authority, I will employ it before those who have given it to me ; and if I can accomplish anything by speaking, I will display it to those men above all others, who have thought fit, by tiieir decision, to confer honours on that qualification. And, above all things, i.^ee that I have reason to rejoice on this account, that, since I am speaking' in this place, to which I am so entirely unac- customed, I have a cause to advocate in which eloquence can hardly fail any one ; for I have to speak of the eminent and extraordinary virtue of Cnseus Pompey ; and it is harder for me to find out how to end a discourse on such a subject, than how to begin one. So that what I have to seek for is not so much a variety of arguments, as modemtion in employing them.
II. And, that my oration may take its origin from the same source from which all this cause is to be maintained ; an important war, and one perilous to your revenues and to your allies, is being waged against you by two most powerfril kings, Mithridates and Tigranes. One of these having been left to himself, and the other having been attacked, thinks that an opportunity offers itself to him to occupy all Asia. Letters are brought from Asia every day to Roman knights, most honourable men, who have great property at stake,
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which is all employed in the collectidn of your revenues ; and they, in consequence of the intimate connexion which I have witii their order, have come to me and entrusted me with the task of pleading the cause of the republic, and warding off danger from their private fortunes. They say that many of the villages of Bithynia, which is at present a province belonging to you, have been burnt ; that the kingdom of Ariobarzanes, which borders on those districts from which you derive a reve- nue, is whoUy in the power of the enemy ; that Lucullus, after having performed great exploits, is departing from that war ; that it is not enough that whoever succeeds him should be prepared for the conduct of so important a war; that one general is demanded and required by all men, both allies and citizens, for that war ; that he alone is feared by the enemy, and that no one else is. .
You see what the case is ; now consider what you ought to do. It seems to me that I ought to speak in the first place of the sort of war that exists ; in the second place, of its importance ; and lastly, of the selection of a general. The kind of war is such as ought above all others to excite and inflame your minds to a determination to persevere in it. It is a war in which the ^ory of the Roman people is at stake ; that glory which has been handed down to you from your ancestors, great indeed in everything, but most especially in military affairs. The safety of our friends and allies is at stake, in behalf of which your waoeKkKXCB have waged many most important wars. The most certain and the largest revenues of the Roman people are at stake ; and if they be lost, you will be at a loss for the luxuries of peace, and the sinews of war. The property of many citizens is at stake, which you ought greatly to regard, both for your own sake, and for that of the republic. -
III. And since you have at all times been covetous of glory and greedy of praise beyond all other nations, you have to wipe out that stain, received in the former Mithridatic War, which has now fixed itself deeply and eaten its way into the Roman name, the stain arising from the fact that he, who in one day marked down by one order, and one single letter, all the Roman citizens in all Asia, scattered as they were over so many cities, for slaughter and butchery, has not only never yet suffered any chastisement worthy of Ins wicked- ness, but now, twenty-three years after that time, is stiU a
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king, aud a king in such a way that he is not content to , hide himself in Pontus, or in the recesses of Cappadocia, but he seeks to emerge &om his hereditary kingdom, and to range among your revenues, in the broad light of Asia. Indeed up to this time your generab have been contending with the king so as to carry off tokens of victory rather than actual victory. Lucius Sylla has triumphed, Lucius Murena has triumphed over Mithridates, two most gallant men, and most consummate generals ; but yet they havo triumphed in such a way that he, though routed and defeated, was still king. Not but what praise is to be given to those generals for what they did. Pardon must be conceded to them for what they left undone ; because the republic recalled Sylla from that war into Italy, and Sylla recalled Murena.
IV. But Mithridates employed all the time which he had left to him, not in forgetting the old war, but in preparing for a new one ; and, after he had built and equipped very large fleets, and had got together mighty armies from every nation he could, and had pretended to be preparing war against the tribes of the Bosphorus, his neighbours, sent ambassadors and letters as far as Spain to those chiefs with whom we were at war at the time, in order that, as you would by that means have war waged against you in the two parts of the world the furthest separated and most remote of all from one an- other, by two separate enemies warring against you with one imiform plan, you, hampered by the double enmity, might find that you were fighting for ihe empire itself However, the danger on one side, the danger from Sertorius and from Spain, which had much the most solid foundation and the most formidable strength, was warded off by the divine wis* dom and extraordinary valour of Cnseus Pompeius. And on the other side of the empire, affairs were so managed by Lucius Lucullus, that most illustrious of men, that the be- ginning of all those achievements in those countries, great aud eminent as they were, deserve to be attributed not to his good fortune but to his valour ; but the latter events which have taken place lately, ought to be imputed not to his fault, but to his ill-fortune. However, of Lucullus I will speak hereafter, and I will speak, 0 Romans, in such a manner, that his true glory shall not appear to be at all disparaged by my pleading, nor, on the other hand, shall any undeserved credit seem to be given to him. At present, when we are
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