THE ORATION OF M. T. CICERO IN BEHALF OF AULUS CÆCINA.

TRANSLATED BY C.D. YONGE

THE ARGUMENT.

Marcus Fulcinius, of Tarquinii, who had lived as a banker at Rome, had died, leaving his property to his wife Cæsennia and his son; the son also died, and divided his property between his wife and his mother. The property was sold, and Cæsennia employed Sextus Æbutius, her agent, to buy one of the farms for her. She afterwards married Cæcina, and died, bequeathing her property to him. When Cæsennia was dead, Æbutius pretended that he had bought the farm in question for himself. Cæcina endeavours to enter on the land, but is driven off by Æbutius at the head of a band of armed slaves. He applies to the prætor, and obtains an interdict;¹ Æbutius defends himself on many pleas, and especially on the ground that Cæcina being a municeps of Volaterra, a town which had been disfranchised by Sylla, could not become the heir of Cæsennia. This trial took place A. U. C. 689.

I. IF shameless impudence had as much power in the forum and in the courts of law, as audacity has in the country and in desolate places, then Aulus Cæcina would now, in this trial, yield to the impudence of Sextus Æbutius as much as he has already yielded to his audacity in committing deeds of violence. But he thought that it became a considerate man not to contend in arms about a matter which ought to be decided by law; and he thought that it became an honest man, to defeat by law and judicial proceedings the man with whom he had declined contending in arms and violence. And Æbutius appears to me to have been most especially audacious 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; unless, perhaps, his idea was this,—if ordinary² 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 Cæcina fled in alarm with his friends. And so in this count, if he defends his cause according to the custom and established 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, O judges, I come now to plead the cause in this trial on a very different 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; and if credit be not given to them, then credit is refused to the witnesses of our adversary.

II. But when I consider the way in which they are conducting 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 you cause to deliberate, and inspire you with proper hesitation and scrupulousness in deciding: and also, though that is a most scandalous thing, they thought that the trial in this case would appear to be not about the dishonesty of Sextus Æbutius, but about the civil law. And in this case, if I had to plead the cause of Aulus Cæcina alone, I should profess myself a sufficiently capable defender of it, because I had behaved with the greatest good faith and diligence; and when these qualities are found in an advocate, there is no reason, especially in a plain and simple matter, for requiring any extraordinary 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 important 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, O judges that you have not now doubted about the same cause twice, on account of the obscure and uncertain state of the law, so much as because this trial appears to affect that man’s personal character; and on that account you have delayed condemning him, and have also given him time to recollect himself. And since that 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? 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 infamous action.” See, then, how iniquitously it happens, that because an action is infamous, therefore a discreditable reputation should attach to it, but that a scandalous 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 be afraid himself to give his decision in a matter which was brought before him. In truth, if the prætor, who allows the trials to proceed, never prescribes to a claimant what form of action he wishes him to adopt, consider how scandalous a thing it must be, when the matter is so far settled, for a judge to ask 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 different 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 moderate way of proceeding in so atrocious a case? In the case of offences of such a nature, that, as they keep crying out, criminal trials and capital trials have been established on their account, 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 prætor’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 our 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 compels me to, I beseech you to pardon me; for Aulus Cæcina is not less anxious to appear to have acted according to the strictest law, than he is to obtain what by strict law is his due.

There was a man named Marcus Fulcinius, O judges, of the municipality 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 Cæsennia, a woman of the same municipality, 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 Cæsennia 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 wife, which he had received in ready money, he took care, in order that she, being a woman, might have 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 farm of his wife’s. Fulcinius dies; (for I will pass over many circumstances of the case, because they are unconnected with the subject of this action;) in his will he makes his son, whom he had by Cæsennia, his heir; he bequeaths Cæsennia 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 Publius Cæsennius 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, Æbutius, who had long been supported by Cæsennia 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) all the business which the woman had to transact, and all her disputes—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 Cæsennia of opinion, that she, being a woman unskilled in business, could not get on well in any matter in which Æbutius was not concerned. 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 Æbutius. For all this was Æbutius to Cæsennia. In case you should ask, Was he any relation? no one could be more entirely unconnected with her—Was he a friend, recommended to her by her father or her husband? Nothing of the sort. Who then was he? He was such a man as I have just been depicting—a voluntary 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 Rome, the friends and relations of Cæsennia 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 Æbutius.

VI. Æbutius is present at the sale—he bids—many purchasers are deterred, some from goodwill to Cæsennia, some by the price—the farm is knocked down to Æbutius; Æbutius 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 as if there were at the time any one who doubted that it had been bought for Cæsennia, when most men actually knew, nearly all had heard, and when even these judges might conjecture, that, as money was due to Cæsennia from that inheritance, it was exceedingly advantageous for her that it should be invested in farms; and since those farms which were especially desirable for the woman were being sold, and since he was bidding whom no one wondered to see acting for Cæsennia, no one could possibly suspect was buying them for himself. When this purchase had been made, the money was paid by Cæsennia; 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 money is entered as having been paid by 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, Cæsennia took possession of the farm and let it; and not long afterwards she married Aulus Cæcina. To cut the matter short, the woman died, having made a will. She makes Cæcina her heir to the extent of twenty-three twenty-fourths of her fortune; of the remaining twenty-fourth she leaves two-thirds to Marcus Fulcinius, a freedman of her first husband, and one-third she leaves to Æbutius. 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.

VII. In the first place he ventured to say that Cæcina could not be the heir of Cæsennia, because he had not the same rights as the rest of the citizens, on account of the disasters and civil calamities of the Volaterrans. Did he, therefore, 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? did he yield to Æbutius, and allow him to retain as much as he pleased of the property of Cæsennia? No; he, as became a brave and wise man, put down and crushed the folly and calumny of his adversary. As he was in possession of the estate, and as Æbutius was exaggerating his seventy-second share unduly, Cæcina, as heir, demanded an arbitrator, for the purpose of dividing the inheritance. And in a few days, when Æbutius saw that he could not pare anything off from Cæcina’s property by the terror of a law-suit, he gives him notice, in the forum at Rome, that that farm which I have already mentioned, and of which I have shown that he had become the purchaser on Cæsennia’s commission, was his own, and that he had bought it for himself. What are you saying? you will say to me;—does that farm belong to Æbutius which Cæsennia 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? Yes, for the life-interest in that farm, and its produce, belonged to Cæsennia, by the will of her husband. As he was thus artfully planning this singular kind of action, Cæcina 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 farm. They confer on the subject; a day is agreed on to suit the convenience of both parties; Cæcina, 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 Æbutius has collected and armed a great number of men, both free-men and slaves. While some marvelled at this, and some did not believe it, lo! Æbutius himself comes to the castle. He gives notice to Cæcina that he has armed men with him, and that, if he comes on the property he shall never go away again. Cæcina and his friends agreed that it was best to try how far they could proceed without personal danger. Then they descend from the castle—they go to the farm. It seems to some to have been done rashly; but, as I think, this was the reason,—no one supposed that Æbutius would really behave as rashly as he had threatened.

VIII. Accordingly Æbutius 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. Cæcina being repulsed from that spot, still went as he could towards that farm, 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 boundary of that farm. When they came near them, Æbutius 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 line of olives. Cæcina, a most prudent man in my opinion, appears nevertheless to have shown in this affair more courage than wisdom. For though he saw that multitude of armed men, and though he had heard that expression of Æbutius 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 by the darts and onset of 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 prætor 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 Cæcina. 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 Cæcina, O 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 folly assists us almost as much as his wickedness 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 Cæcina; 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, O 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 confesses, and confesses so willingly, that he seems not only to admit it, but even to boast of it, O judges? “I summoned men; I collected them; I armed them; I prevented you from entering on the farm 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 witnesses? Publius Vetilius, a relation of Æbutius, says that he was with Æbutius as his assistant, with several armed slaves. What more does he say?—That there were many armed men there. What more?—That Æbutius threatened Cæcina. What shall I say of this witness, O 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? Aulus Terentius, a second witness, convicts not only Æbutius but himself also. He says this against Æbutius, that there were armed men; but concerning himself he makes this statement, that he ordered Antiochus, the slave of Æbutius, to attack Cæcina 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 Cæcina to do so, that I might not seem to accuse him of a capital crime; but now I am in doubt how to speak of him, or how to be silent about him; since he, on his oath, makes this statement about himself. After them, Lucius Cælius not only stated that Æbutius was there with a large force of armed men, but also that Cæcina 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 Cæcina, in giving them a passage through his brother’s farm, 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 merciful 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 Æbutius was threatening Cæcina, Cæcina then and there required of him to let his ejection be accomplished in the regular form. Publius Rutilius 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 farm. There was Publius Cæsennius, the seller of the farm 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 violently that he not only attacked Cæcina with his perjuries, but seemed to be angry with me also, I made him so tranquil and gentle that he did not dare, as you recollect, to say a second time even how many miles his farm was distant from the city. For when he had said that it was fifty-three miles³ 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 tribunal, 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 still 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 conviction. 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? Or, can any allegation be made against a man on more certain grounds than one which even he, against whom it is made, cannot attempt to invalidate, not even 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 Æbutius, said, (though he stood alone in his statement,) that there were no armed men at all. At first, I thought that the cunning 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 statement, 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, O 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 multitude 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 not? In what circumstances can violence be possibly understood to exist, if it does not exist in these? Or did that defence of his seem to you a very sufficient 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 understand that, if you set your foot on the farm, you would immediately perish?” 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 Cæcina, 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 affair I wish to take you for my master. I ask whether there is any legal proceeding 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 be armed for the sake of preserving a right; nor is there anything 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 tranquillity 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 off, 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 everything 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 prætor?” Is it so, O judges? Will you listen to this? and will you permit such a thing to be said before you more than once? 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? I am not yet arguing the particular case of Cæcina, I am not yet speaking of our own particular right of possession. I am resting my complaint wholly on your defence, O Caius Piso. Since you make this statement, and lay down this principle, “that, if Cæcina, 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 interdict;” I ask you, if, this day, when you are returning home, men collected in a body, and armed, not only prevent you from crossing the threshhold and from coming under the roof of your own house, but keep you off from approaching it—from even entering the court yard,—what will you do? My friend Lucius Calpurnius 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? 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 with it, even if successful, 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 prætor, O Piso, be silent in so important a matter? Shall he have no power to restore you to the possession of your own house? He who is occupied 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 on a sudden be struck dumb? 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 roof,—prevented, I say, by men collected in a body and armed,—shall the prætor have no power of assisting him according to established regulations and precedents? For what will he say? or what will 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 unusual 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 you, if any one of my slaves is driven out. Now you are right, for you are altering your language, and appealing to justice. For if we choose to adhere to the words themselves, how are you driven out when your servant is driven out? But it is as you say—I ought to consider you yourself as driven out, even if you were never touched. Is it not so? 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? It neither becomes your prudence nor your character to say that, in 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, tell 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 Cæcina ought not. In truth, who is there to whom it is not clear, that the property, and possessions, and fortunes of all men will 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, under 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, “I drove you away with armed men, I did not drive you out;” so that the fact 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 established 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?—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 the same violence, and the same weapons, not only before I can enter on the land, but before I can see it, or breathe its atmosphere? What is the difference between one case and the other? Can there be such a difference, that he, who has expelled 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? See, I entreat you in the name of the immortal gods, what a law you are proceeding to establish for us,—what a condition for yourselves, and 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 careless 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 language either the fact, or the principle of law applicable to the case. It is a dangerous thing for this interdict to be dissolved. 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 proceeding as is requisite, never once occurred to the minds of our ancestors.

We may complain then, he says. Still Æbutius is not touched by this interdict. How so? Because violence was not offered to Cæcina. Can it be said in this cause, where there were arms, where there was a multitude of men collected, 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?

“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 private 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 the death of any one, but even without one single person being wounded.

XV. In truth, O 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 succumb as to their courage, and do not leave the place which they have determined to defend; but others, though unwounded, 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 shout 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 affairs, be considered gentle in transactions of civil law? And shall that which has its influence on armed battalions, not appear to move a body of men in the garb of peace? And shall a wound of the body be a greater proof of that violence which we complain of, than alarm of mind? And shall we inquire strictly what wounds were inflicted, when it is notorious that people were put to the rout? 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 offered to men who not only fled, but who even asked of a stranger which way they could flee with safety? Why, then, did they flee? Out of fear. What did they fear? 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. When all this is admitted to have taken place, shall violence be denied to have been offered?

XVI. But all this is common enough, and there is plenty of precedent for it in transactions of our ancestors’ time; that, when people came to assert their rights by 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 fact; 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 prætor.” Is it so? 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 sight 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? But I say this. If, when first Æbutius told Cæcina, when in the castle, that he had collected men and armed them, and that, if he came thither, he would never go away again, Cæcina had at once departed, you ought not to have doubted whether violence had been offered to Cæcina. 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 amounts 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 disputes 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 hereafter 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 refuse to think anything violence where there has been no slaughter, no wounding, no bloodshed, then it will follow that men ought to be more anxious about establishing their ownership, than about saving their lives.

XVII. Come now, in the matter of violence I will make you yourself the judge, O Æbutius. Answer, if you please. Was Cæcina 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? 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 the 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 shall 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? 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? What! Will you say that he has been thrust down from his place? For that was the word which the prætors used formerly to use in their interdicts. What do you say? Can any one be thrust 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 laid? 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, unless he be understood to have had hands laid on him, and so to have 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 ground. 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? for those are the only people who can properly be said to have been driven down.⁴

XVIII. Shall we not, when the intention, and design, and meaning of the interdict is thoroughly understood, think it the most excessive impudence, or the most extraordinary folly, to haggle about a verbal mistake? 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 circumstance 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 men’s private affairs,) 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 facts to words, and leave out of the question the intention, and design, and authority of those who wrote them? In truth, even our familiar and daily discourse will cease to have any coherence, if we are to spend all our time in word catching. 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 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 elegant and fluent manner did Lucius Crassus, by far the most eloquent of all men, a little before we came into the forum, defend this opinion in a trial before the centumviri;⁵ and with great ease, too, though that very sagacious man, Quintus Mucius, 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 born. What? was this case sufficiently provided for by the terms of the will? Certainly not. What was the thing, then, that influenced the judges? The intention; and if it could be understood 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 determined 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 burden wherever he likes. Can it be understood from this, that if a road in the Bruttii be out of repair, a man may, if he pleases, drive his beast through the Tusculan farm 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 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 far from where we set out, let us consider this very interdict which is now before the court; for by that very document you will understand, that if we determine 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 household, I will admit that you were driven away by my household.” 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 all consideration of law, and the effect of the interdict, and the intention of the prætor, 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 their intentions understood. As their object was that you should replace me in my property, whether it was you yourself who drove me away, or any one of your relations, or of your servants, or of your friends, they did not specify the number of servants, but classed them all under one name as your household. But if it were any one of your children 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 business, 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 neighbours, 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 prevail 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 household, but because the question is, what action has been done, not, in what language every point is expressed. Even (to depart still further 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 all who did it, but if they were all strangers or hired people, still they will be comprehended under 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 assembles 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 committing violence, but because they were used to be there for the sake of tilling the ground or tending the flocks. You will urge in your defence that men were not collected; and, as far as mere words go, you will gain your cause, even if I myself am the judge; but as to facts, you will have no ground to stand on before any judge whatever. For the intention of our legislators 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 are 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 fact 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? 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? 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 everything,—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 they 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 small value 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? I do not believe you would be so impudent. And yet see if you are not far 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 fact 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 then they intended that the law should be the same. For the injury is not greater if inflicted 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 agent did it, than if your neighbour 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 voluntarily, or of your regular 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 facts are in an interdict expressed by the circumstances under which violence usually takes place. If the same violence has been committed under other circumstances, 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 argument of yours, “I did not drive him away, if I never allowed him to approach.” I think that you yourself, O Piso, perceive how much narrowed and how much more unreasonable that defence is, than if you were even to employ that other one, “They were not armed,—they had only bludgeons and stones.” If, 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 driven 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 far as proving my case goes, I should consider both the positions equally trifling and worthless; but as for making a speech about them, I think that I might find some 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 this sort of exhortation when they think they have 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 authority 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 from? Do you mean to say that you were driven from a place which you were prevented from approaching? You were kept off, 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 is punishable by the prætor’s interdict, if his intention and if equity is to prevail; but I find in the interdict one word under which I can shelter myself. I did not drive you from 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 Scævola had not succeeded in his case before the centumviri, whom I mentioned before on the occasion of his doing the 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 that you should have made this statement in this case, at an unfavourable time, and having an effect 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 sometimes 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 that wrong decisions ought to be given; for it is quite impossible that a decision of the judge on a point of law should 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? If they were given rightly, that was the law which was decided to be so. If they were wrong, then it cannot be doubtful 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 Mucius, any more than they would be deciding in compliance with their authority, if sentence were given according to the precedent of Manilius. Forsooth, Crassus himself did not plead his cause before the centumviri in such a way as to speak against the lawyers; but he urged that the arguments which Scævola brought forward in his defence were not law; and he not only brought forward good arguments to that point, but he also quoted Quintus Mucius, his father-in-law, and many other most learned men, as precedents.

XXV. For he who thinks the civil law is to be despised, he is tearing asunder the bonds, not only of all courts of justice, but of all usefulness 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 his own property or what belongs to another; there is nothing which can be equal to all men, or is the 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 false; 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, O judges: there are no forged documents, no dishonest witnesses; 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 scrupulous as he is influential; “Decide, I pray you, that this has been done or planned; give credit to this witness; establish the genuineness of these documents;”—but this cannot be said, “Decide that if a man has a posthumous son born to him, his will is not thereby invalidated; decide that a thing 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 fact,—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 yours who dared to say “that he had been seen to do . . . .” in a case where he could by no possibility know even of what the man was accused—even he would not venture to decide that a dowry was due to a husband which the woman had promised without the consent of her trustee. Oh admirable principle, and worthy of being maintained by you on this account, O 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 children. For what is the advantage of having a house or a farm left one by one’s father, or in any way legitimately acquired, if it be uncertain whether you will be able to retain those things which are yours by every right of property? if law be but little fortified? 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 farm, 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 inheritance in respect of his property, from 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 farm may come to me; but it cannot be ensured to me, except by the civil law, that I shall be able to retain what has become my own. A farm can be left me by my father, but the enjoyment of the farm—that is to say, freedom from all anxiety and danger of law-suits—is not left to me by my father, but by the laws. Aqueducts, supply of water, roads, a right of way, comes from my father; but the ratified possession of all these things is derived from the civil law. Wherefore you ought to maintain and preserve that public inheritance of law which you have received from your ancestors with no less care than your private patrimony and property, not only because this last is fenced round and protected by the civil law, but also because if a 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, O 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 violence by armed men,—Cæcina will not lose his property, which, however, he would bear the loss of with a brave spirit, if the occasion required it; he will only 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 uncertain and doubtful. This will be established, this will be settled by your authority; that, if you hereafter have a dispute with any one about ownership, if you drive him away when he has once entered on his property, you must make restitution; but if, as he is coming to enter, you meet 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, unless 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 according to their literal expressions. Do you, I say, O 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 little while ago, and who has frequently been present during this trial; (for if he were present, I should be more afraid to speak of his 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 has 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 willing to hear expressed before 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 the benefit of his abilities, his industry, and his good faith, which have been always ready and 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 offspring 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 unfavourable 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? “In whatever terms a law is framed and drawn up * * *”

XXVIII. I met a man of that body of lawyers; as I believe, 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, saying that it could not be admitted that a man had been driven from any place unless he had previously been in it, he confessed that the facts and the intention of the interdict were on my side; but he said that I was cut off 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 prevailed 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 carefully. “How so?” said I.—“Because,” said he, “undoubtedly Cæcina 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 prætor,” 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 Æbutius, who confesses that Cæcina was driven away from some place or other, must clearly have forfeited his security, since he falsely says that he has replaced him.”

What is the matter, Piso? do you choose to fight about words? 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 ancestors; 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 considered 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, I 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 prætor has not commanded me to be replaced only in the case of my having been driven away from that particular farm, but he has ordered me to be replaced in the place from which I was driven away. I was driven away from the adjoining 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 prætor’s decree. What do we say to this? Your 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 farm was meant when Æbutius 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 defence; 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 drove 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 corners of letters. You shall yourself be hemmed in and caught in those very 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 prætor 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 according to his decree. I wish, O 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 originally 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 behalf 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 prætor 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 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 where 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 already mentioned, that this interdict was so framed, not only as to facts, and as to its meaning, but also as to its expressions, that nothing appeared to require any alteration? Listen carefully, O judges, 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 descriptions 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, O 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 farm, or from my farm, 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? From the Capitol. Whence were they driven who were with Gracchus? 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 prætor orders me to be replaced in that place, he orders me to be so on this understanding, just as if the Gauls had demanded of our ancestors to be replaced in the 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, by which they had attacked the Capitol, but in the Capitol itself. For this is understood—“Replace 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 this 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 country, to be restored to his former position. What he would wish, I imagine, would be this,—that fortune would restore 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 circumstances,) 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 interdict which we have been employing. What now, if, when you are returning home from the forum, any one shall with armed men prevent you from entering your own house, what will you do? You will avail yourself of the same interdict. When, therefore, the prætor has issued his interdict commanding 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 courtyard, as if you have been driven out from the inmost chambers of the house.

But in order, O 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 and rendered useless, another argument in defence, that a man can be driven away, who is at the time in possession, but that a man who is not in possession cannot possibly be so. Therefore, if I have been driven away from your house, I ought not to be replaced there; but, if you yourself have, you ought. Just count up how many false arguments there are in that defence, O Piso. And first of all, notice this, that you are by this driven from that assertion which you made, that no one could be driven away from a place, unless he was in the place previously; now you allow that a man who is the owner of a place can be driven away from it, even if he is not actually in it at the moment, but you say that a man who is not the owner cannot be driven away. Why, then, in that interdict which is of almost daily occurrence, “whence he drove me by violence,” is this added, “when I was in possession,” if no one can be driven away who is not in possession; or why is not the same addition made to the interdict “about armed men,” if inquiry ought to be made whether a man was the owner or no? You say that no man can be driven away, but one who is the owner. I assert that, if any one be driven away without men being collected and armed, then he who confesses that he has driven him away must gain his cause, if he can show that he was not the owner. You say that a man cannot be driven away unless he is the owner. I prove from this interdict “about armed men,” that he, who can prove that the man who has been driven away was not the owner, still must inevitably lose his cause, if he confesses that he was driven away at all.

XXXII. Men are driven away in two ways, either without the employment of men collected together and armed, or by means of them, and by violence. There are two separate interdicts for two dissimilar cases. In the first and formal kind of violence, it is not enough for a man to be able to prove that he was driven away, unless he is also able to show that he was driven away when he was in possession. And even that is not enough, unless he can show that he was in possession, having become so neither by violence, nor by underhand practices, nor by having begged the property. Therefore, he who said that he had replaced him is often accustomed to avow loudly that he drove him away by violence; but he adds this, “He was not in possession.” Or again, when he has admitted even this still he gains his cause 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 himself 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, O Piso, between these interdicts? Does it make any difference whether the words “As Aulus Cæcina 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 Cæcina. For, O judges, Cæcina 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 Cæsennia had a life-interest in the farm. As the same farmer who rented it of Cæsennia continued to hold it on the same tenure, is there any doubt, that if Cæsennia 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 Cæcina, when he was going the round of his estates, came to that farm. He received his accounts from the farmer. There is evidence to that point. After that, why, O Æbutius, did you give notice to Cæcina to give up that farm, rather than some others, if you could find any other, unless Cæcina was in possession of it? Moreover, why did Cæcina consent to be ejected in a regular and formal manner? and why did he make you the answer he did by the advice of his friends, and of Caius 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 statute was to have no validity.” What is there which is contrary to law which the Roman people is unable to command or to prohibit? Not to digress too far, this very additional clause proves that there is something. For unless 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? 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? And I, when quite a young man, established this principle when I was pleading against Cotta, the most eloquent man of our city. When I 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 deliberated 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 the same circumstances 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 magistrate 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 urge? What shall I say of a man whom the chief of the fetiales⁶ has given up, or whom his own father or his people have sold? By what law does he lose his right of citizenship? In order that the city may be released from some religious obligation, a Roman citizen is surrendered; and when he is accepted, he then belongs to those men to whom he has been surrendered. If they refuse to receive him, as the people of Numantia refused to receive Mancinus,⁷ 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 born, 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 the 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? For, as they have produced these arguments from 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 refuge 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 avoid imprisonment, execution, or infamy, which are penalties appointed by the laws, they flee to banishment 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, O 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 new⁸ 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 from 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 legal 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 eighteen⁹ 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 Cæcina, still it would be more natural for us and all good men now to inquire by what means we could relieve 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 found, except one like to you, O Sextus, in folly and impudence, who should venture to say that his rights of citizenship have been taken from him. And since, O judges, he has never abandoned his full 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 faith and conscientious decision.

XXXVI. That man has always desired the good 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 struggling 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 Æbutius 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 before you of eminent modesty, of tried virtue, of well-proved loyalty, known both in good and bad fortune to the most honourable men of all Etruria by many proofs of virtue and humanity. If we must find fault 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 the law is against him, and that the authority of the wisest men is on our side; that the question before the court is not whether Cæcina 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 Cæcina 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 violence, what our decision with respect to justice, and what the terms of the interdict respecting right, admonish you to decide.

Endnotes

[1 ] An interdict was a sort of provisional decree obtained from the prætor, chiefly in cases where the dispute is about possession, or quasi possession. The terms which he uses are called decretum when he orders any thing to be done, and interdictum when he forbids anything to be done. The mode of proceeding was, for the party aggrieved to state his case to the prætor, which was the foundation of his demand of an interdict. If the defendant admitted the plantiff’s case before the interdict was granted, or submitted to it after it was granted, the dispute was at an end. If he was dissatisfied with the interdict, he also might in his turn apply to the prætor. Whenever the prætor’s original interdict did not terminate the case, he directed a further inquiry before a judex or recuperators. There were also one or two other causes for, and descriptions of, interdict. Vide Smith, Dict. Ant. p. 521, v. Interdictum.

[2 ] The usual course on claiming possession of disputed property was for the claimant to present himself with his friends in the land, and then to be driven off by the occupant. This violence was vis moribus facta. On this the claimant appealed to the prætor. But Æbutius had driven Cæcina off with armed men, and had used unnecessary and actual violence. This was vis contra jus moremque.

[3 ] Some think that the number of miles here ought to be 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.

[4 ] The whole of this is quite untranslateable, so as to give in English the sense which the Latin bears. The truth is, that it is a sort of play on the word dejicio, 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.

[5 ] The origin, constitution, and powers of the centumviri are exceedingly obscure; they were judges, but they differed from other judges in being a definite body or collegium. According to Festus three centumviri were chosen out of each tribe, so that their actual number must have been a hundred and five. 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 centumviri were sitting, and accordingly the word hasta or hasta centumviralis, is sometimes used as equivalent to judicium centumvirale. Vide Smith. Dict. Ant. p. 212, v. Centumviri.

[6 ] “The Latin here is pater patratus. When an injury had been sustained by the state, four fetiales were deputed to seek redress, who again elected one of their number to act as their representative; this individual was called pater patratus populi Romani.”—Smith, Dict. Ant. p. 416, v. Fetiales.

[7 ] 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 annual the peace legally, but they refused to receive him.

[8 ] The new citizens are those who had been made citizens of Rome at the termination of the Social War a few years before.

[9 ] The old editions usually have “twelve,” but eighteen is the correction of Savigny, which Orellius calls “certissima.” In the second Punic War, A.U.C. 543, of the thirty colonies of the Roman people, twelve declared that they had no means of supplying the consuls with men of money. The other eighteen remained faithful to their allegiance, and of these eighteen Ariminum was one. Vide Livy, xxvii. 9, 10.