Marcus Fulcinius, of Tarquinii, who had lived as a banker at Rome, had died, leaving his property to his wife Caesennia and his son, the son also died, and divided his property between his wife and his mother. The property was sold, and Caesennia employed Sextus Aebutius, her agent, to buy one of the farms for her. She afterwards married Caecina, and died, bequeathing her property to him. When Caesennia was dead, Aebutius pretended that he had bought the farm in question for himself. Caecina endeavours to enter on the land, but is driven off by Aebutius at the head of a band of armed slaves. He applies to the praetor, and obtains an interdict; Aebutius defends himself on many pleas, and especially on the ground that Caecina being a municeps of Volaterra, a town which had been disfranchised by Sulla, could not become the heir of Caesennia. This trial took place A. U. C. 689. 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 Caecina would now, in this trial, yield to the impudence of Sextus Aebutius 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 Aebutius 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 ordinary violence according to precedent had been used, he would not have had any superior right of possession; but as the violence was committed in a way contrary to all law and precedent, Aulus Caecina 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.
, quantum in agro locisque desertis audacia potest, tantum in foro atque in iudiciis impudentia valeret, non minus nunc in causa cederet A. Caecina Sex. Aebuti impudentiae, quam tum in vi facienda cessit audaciae. et illud considerati hominis esse putavit, qua de re iure disceptari oporteret, armis non contendere, et hoc constantis, quicum vi et armis certare noluisset, eum iure iudicioque superare. mihi quidem cum audax praecipue fuisse videtur Aebutius in convocandis hominibus et armandis, tum impudens in iudicio, non solum quod in iudicium venire ausus est—nam id quidem tametsi improbe fit in aperta re, tamen malitia est iam usitatum—sed quod non dubitavit id ipsum quod arguitur confiteri; nisi forte hoc rationis habuit, quoniam, si facta vis esset moribus, superior in possessione retinenda non fuisset, quia contra ius moremque facta sit, A. Caecinam cum amicis metu perterritum profugisse; nunc quoque in iudicio si causa more institutoque omnium defendatur, nos inferiores in agendo non futuros; sin a consuetudine recedatur, se, quo impudentius egerit, hoc superiorem discessurum. vero aut idem possit in iudicio improbitas quod in vi confidentia, aut nos non eo libentius tum audaciae cesserimus quo nunc impudentiae facilius obsisteremus.
3. 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.
3. longe alia ratione, recuperatores, ad agendam causam hac actione venio atque initio veneram. enim nostrae causae spes erat posita in defensione mea, nunc in confessione adversarii, tum in nostris, nunc vero in illorum testibus; de quibus ego antea laborabam ne, si improbi essent, falsi aliquid dicerent, si probi existimarentur, quod dixissent probarent; nunc sum animo aequissimo. enim sunt viri boni, me adiuvant, cum id iurati dicunt quod ego iniuratus insimulo; sin autem minus idonei, me non laedunt, cum eis sive creditur, ⟨creditur⟩ hoc ipsum quod nos arguimus, sive fides non habetur, de adversarii testium fide derogatur.
4. 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 airing 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 Aebutius, but about the civil law.
4. tamen cum illorum actionem causae considero, non video quid impudentius dici possit, cum autem vestram in iudicando dubitationem, vereor ne id quod videntur impudenter fecisse astute et callide fecerint., si negassent vim hominibus armatis esse factam, facile honestissimis testibus in re perspicua tenerentur; sin confessi essent et id quod nullo tempore iure fieri potest tum ab se iure factum esse defenderent, sperarunt, id quod adsecuti sunt, se iniecturos vobis causam deliberandi et iudicandi iustam moram ac religionem. illud quod indignissimum est futurum arbitrati sunt, ut in hac causa non de improbitate Sex. Aebuti, sed de iure civili iudicium fieri videretur. in re, si mihi esset unius A.
5. And in this case, if I had to plead the cause of Aulus Caecina 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.
5. Caecinae causa agenda, profiterer satis idoneum esse me defensorem, propterea quod fidem meam diligentiamque praestarem; quae cum sunt in actore causae, nihil est in re praesertim aperta ac simplici quod excellens ingenium requiratur. cum de eo mihi iure dicendum sit, quod pertineat ad omnis, quodque constitutum sit a maioribus, conservatum usque ad hoc tempus, quo sublato non solum pars aliqua iuris deminuta, sed etiam vis ea quae iuri maxime est adversaria iudicio confirmata esse videatur, video summi ingeni causam esse, non ut id demonstretur quod ante oculos est sed ne, si quis vobis error in tanta re sit obiectus, omnes potius me arbitrentur causae quam vos religioni vestrae defuisse. ego mihi sic persuadeo, recuperatores, non vos tam propter iuris obscuram dubiamque rationem bis iam de eadem causa dubitasse quam, quod videtur ad summam illius existimationem hoc iudicium pertinere, moram ad condemnandum quaesisse simul et illi spatium ad sese conligendum dedisse.
6. 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 blamable. 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.
6. quoniam iam in consuetudinem venit et id viri boni vestri similes in iudicando faciunt, reprehendendum fortasse minus, querendum vero magis etiam videtur, ideo quod omnia iudicia aut distrahendarum controversiarum aut puniendorum maleficiorum causa reperta sunt, quorum alterum levius est, propterea quod et minus laedit et persaepe disceptatore domestico diiudicatur, alterum est vehementissimum, quod et ad graviores res pertinet et non honorariam operam amici, sed severitatem iudicis ac vim requirit.
7. 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. 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.
7. est gravius, et cuius rei causa maxime iudicia constituta sunt, id iam mala consuetudine dissolutum est. ut quaeque res est turpissima, sic maxime et maturissime vindicanda est, at eadem, quia existimationis periculum est, tardissime iudicatur. igitur convenit, quae causa fuerit ad constituendum iudicium, eandem moram esse ad iudicandum? quis quod spopondit, qua in re verbo se uno obligavit, id non facit, maturo iudicio sine ulla religione iudicis condemnatur; qui per tutelam aut societatem aut rem mandatam aut fiduciae rationem fraudavit quempiam, in eo quo delictum maius est, eo poena est tardior?
8. “Yes, for the sentence is a sentence of infamy.” “Yes, if it arises 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 praetor, 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.
8. “enim turpe iudicium.” facto quidem turpi. igitur quam inique accidat, quia res indigna sit, ideo turpem existimationem sequi; quia turpis existimatio sequatur, ideo rem indignam non vindicari. si qui mihi hoc iudex recuperatorve dicat: “potuisti enim leviore actione confligere, potuisti ad tuum ius faciliore et commodiore iudicio pervenire; qua re aut muta actionem aut noli mihi instare ut iudicem tamen,” is aut timidior videatur quam fortem, aut cupidior quam sapientem iudicem esse aequum est, si aut mihi praescribat quem ad modum meum ius persequar, aut ipse id quod ad se delatum sit non audeat iudicare. si praetor is qui iudicia dat numquam petitori praestituit qua actione illum uti velit, videte quam iniquum sit constituta iam re iudicem quid agi potuerit aut quid possit, non quid actum sit quaerere.
9. 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 praetor's interdict. 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.
9. tamen nimiae vestrae benignitati pareremus, si alia ratione ius nostrum recuperare possemus. vero quis est qui aut vim hominibus armatis factam relinqui putet oportere aut eius rei leviorem actionem nobis aliquam demonstrare possit? quo genere peccati, ut illi clamitant, vel iniuriarum vel capitis iudicia constituta sunt, in eo potestis atrocitatem nostram reprehendere, cum videatis nihil aliud actum nisi possessionem per interdictum esse repetitam?, sive vos existimationis illius periculum sive iuris dubitatio tardiores fecit adhuc ad iudicandum, alterius rei causam vosmet ipsi iam vobis saepius prolato iudicio sustulistis, alterius ego vobis hodierno die causam profecto auferam, ne diutius de controversia nostra ac de communi iure dubitetis.
10. 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 Caecina 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 Caesennia, 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.
10. si forte videbor altius initium rei demonstrandae petisse quam me ratio iuris eius de quo iudicium est et natura causae coegerit, quaeso ut ignoscatis. enim minus laborat A. Caecina ne summo iure egisse quam ne certum ius non obtinuisse videatur. M. Fulcinius fuit, recuperatores, e municipio Tarquiniensi; qui et domi suae cum primis honestus existimatus est et Romae argentariam non ignobilem fecit. habuit in matrimonio Caesenniam, eodem e municipio summo loco natam et probatissimam feminam, sicut et vivus ipse multis rebus ostendit et in morte sua testamento declaravit.
11. To this Caesennia 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 Caesennia, his heir; he bequeaths Caesennia a life interest in all his property, which she is to enjoy with his son.
11. Caesenniae fundum in agro Tarquiniensi vendidit temporibus illis difficillimis solutionis; cum uteretur uxoris dote numerata, quo mulieri res esset cautior, curavit ut in eo fundo dos conlocaretur. post iam argentaria dissoluta Fulcinius huic fundo uxoris continentia quaedam praedia atque adiuncta mercatur. Fulcinius—multa enim, quae sunt in re, quia remota sunt a causa, praetermittam—testamento facit heredem quem habebat e Caesennia filium; usum et fructum omnium bonorum suorum Caesenniae legat ut frueretur una cum filio.
12. 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 or 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 Caesennius 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.
12. Magnus honos viri iucundus mulieri fuisset, si diuturnum esse licuisset; frueretur enim bonis cum eo quem suis bonis heredem esse cupiebat et ex quo maximum fructum ipsa capiebat. hunc fructum mature fortuna ademit. brevi tempore M. Fulcinius adulescens mortuus est; heredem P. Caesennium fecit; uxori grande pondus argenti matrique partem maiorem bonorum legavit. in partem mulieres vocatae sunt.
13. When the auction of the inheritance was appointed to take place, Aebutius, who had long been supported by Caesennia 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 Caesennia of opinion, that she, being a woman unskilled in business, could not get on well in any matter in which Aebutius was not concerned.
13. Cum esset haec auctio hereditaria constituta, Aebutius iste, qui iam diu Caesenniae viduitate ac solitudine aleretur ac se in eius familiaritatem insinuasset, hac ratione ut cum aliquo suo compendio negotia mulieris, si qua acciderent, controversiasque susciperet, versabatur eo quoque tempore in his rationibus auctionis et partitionis atque etiam se ipse inferebat et intro dabat et in eam opinionem Caesenniam adducebat ut mulier imperita nihil putaret agi callide posse, ubi non adesset Aebutius.
14. The character that you know, from daily experience, O judges, belongs to a flatterer of women, all 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 Aebutius. For all this was Aebutius to Caesennia. In case you should ask, is 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.
14. personam iam ex cotidiana vita cognostis, recuperatores, mulierum adsentatoris, cognitoris viduarum, defensoris nimium litigiosi, contriti ad, inepti ac stulti inter viros, inter mulieres periti iuris et callidi, hanc personam imponite Aebutio. enim Caesenniae fuit Aebutius—ne forte quaeratis, num propinquus?—nihil alienius—amicus a patre aut a viro traditus? —nihil minus—quis igitur? ille, ille quem supra deformavi, voluntarius amicus mulieris non necessitudine aliqua, sed ficto officio simulataque sedulitate coniunctus magis opportuna opera non numquam quam aliquando fideli.
15. When, as I had begun to say, the auction was fixed to take place at Rome, the friends and relations of Caesennia 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 Aebutius.
15. Cum esset, ut dicere institueram, constituta auctio Romae, suadebant amici cognatique Caesenniae, id quod ipsi quoque mulieri veniebat in mentem, quoniam potestas esset emendi fundum illum Fulcinianum, qui fundo eius antiquo continens esset, nullam esse rationem amittere eius modi occasionem, cum ei praesertim pecunia ex partitione deberetur; nusquam posse eam melius conlocari. hoc mulier facere constituit; mandat ut fundum sibi emat,—cui tandem? —cui putatis? an non in mentem vobis venit omnibus illius hoc munus esse ad omnia mulieris negotia parati, sine quo nihil satis caute, nihil satis callide posset agi?
16. Aebutius is present at the sale—he bids—many purchasers are deterred, some from goodwill to Caesennia, some by the price—the farm is knocked down to Aebutius; Aebutius 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 Caesennia, when most men actually knew, nearly all had heard, and when even these judges might conjecture, that, as money was due to Caesennia 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 Caesennia, no one could possibly suspect was buying them for himself.
16. attenditis. Aebutio negotium datur. ad tabulam, licetur Aebutius; deterrentur emptores multi partim gratia Caesenniae, partim etiam pretio. addicitur Aebutio; pecuniam argentario promittit Aebutius; quo testimonio nunc vir optimus utitur sibi emptum esse. vero aut nos ei negemus addictum aut tum quisquam fuerit qui dubitaret quin emeretur Caesenniae, cum id plerique scirent, omnes fere audissent, ⟨qui non audisset,⟩ is coniectura adsequi posset, cum pecunia Caesenniae ex illa hereditate deberetur, eam porro in praediis conlocari maxime expediret, essent autem praedia quae mulieri maxime convenirent, ea venirent, liceretur is quem Caesenniae dare operam nemo miraretur, sibi emere nemo posset suspicari. emptione facta pecunia solvitur a Caesennia;
17. When this purchase had been made, the money was paid by Caesennia; 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 thus way, as we are now stating in this defence of ours, Caesennia took possession of the farm and let it; and not long afterwards she married Aulus Caecina. To cut the matter short, the woman died having made a will. She makes Caecina 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 Aebutius. 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.
17. cuius rei putat iste rationem reddi non posse quod ipse tabulas averterit; se autem habere argentarii tabulas in quibus sibi expensa pecunia lata sit acceptaque relata. id aliter fieri oportuerit. Cum omnia ita facta essent, quem ad modum nos defendimus, Caesennia fundum possedit locavitque; neque ita multo post A. Caecinae nupsit. Vt in pauca conferam, testamento facto mulier moritur; facit heredem ex deunce et semuncia Caecinam, ex duabus sextulis M. Fulcinium, libertum superioris viri, Aebutio sextulam aspergit. sextulam illa mercedem isti esse voluit adsiduitatis et molestiae si quam ceperat. autem hac sextula se ansam retinere omnium controversiarum putat.
18. In the first place he ventured to say that Caecina could not be the heir of Caesennia, 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 Aebutius, and allow him to retain as much as he pleased of the property of Caesennia? No; he, as became a brave and wise man, put down and crushed the folly and calumny of his adversary.
18. principio ausus est dicere non posse heredem esse Caesenniae Caecinam, quod is deteriore iure esset quam ceteri cives propter incommodum Volaterranorum calamitatemque civilem. homo timidus imperitusque, qui neque animi neque consili satis haberet, non putavit esse tanti hereditatem ut de civitate in dubium veniret; concessit, credo, Aebutio, quantum vellet de Caesenniae bonis ut haberet., ut viro forti ac sapienti dignum fuit, ita calumniam stultitiamque eius obtrivit ac contudit.
19. As he was in possession of the estate, and as Aebutius was exaggerating his seventy-second share unduly, Caecina, as heir, demanded an arbitrator, for the purpose of dividing the inheritance. And in a few days, when Aebutius saw that he could not pare anything off from Caecina'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 Caesennia'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 Aebutius which Caesennia 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 Caesennia, by the will of her husband.
19. possessione bonorum cum esset, et cum iste sextulam suam nimium exaggeraret, nomine heredis arbitrum familiae herciscundae postulavit. illis paucis diebus, postea quam videt nihil se ab A. Caecina posse litium terrore abradere, homini Romae in foro denuntiat fundum illum de quo ante dixi, cuius istum emptorem demonstravi fuisse mandatu Caesenniae, suum esse seseque sibi emisse. ais? istius ille fundus est quem sine ulla controversia quadriennium, hoc est ex quo tempore fundus veniit, quoad vixit, possedit Caesennia? “Vsus enim,” inquit, “eius fundi et fructus testamento viri fuerat Caesenniae.”
20. As he was thus artfully planning this singular kind of action, Caecina 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; Caecina, 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 Aebutius 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! Aebutius himself comes to the castle. He gives notice to Caecina that he has armed men with him, and that, if he comes on the property, he shall never go away again. Caecina and his friends agreed that it was best to try how far they could proceed without personal danger.
20. Cum hoc novae litis genus tam malitiose intenderet, placuit Caecinae de amicorum sententia constituere, quo die in rem praesentem veniretur et de fundo Caecina moribus deduceretur.; dies ex utriusque commodo sumitur. Caecina cum amicis ad diem venit in castellum Axiam, a quo loco fundus is de quo agitur non longe abest. certior fit a pluribus homines permultos liberos atque servos coegisse et armasse Aebutium. Cum id partim mirarentur, partim non crederent, ecce ipse Aebutius in castellum venit; denuntiat Caecinae se armatos habere; abiturum eum non esse, si accessisset. Caecinae placuit et amicis, quoad videretur salvo capite fieri posse, experiri tamen.
21. 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 Aebutius would really behave as rashly as he had threatened. Accordingly Aebutius 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.
21. castello descendunt, in fundum proficiscuntur. temere commissum, verum, ut opinor, hoc fuit causae: tam temere istum re commissurum quam verbis minitabatur nemo putavit. iste ad omnis introitus qua adiri poterat non modo in eum fundum de quo erat controversia, sed etiam in illum proximum de quo nihil ambigebatur armatos homines opponit. primo cum in antiquum fundum ingredi vellet, quod ea proxime accedi poterat, frequentes armati obstiterunt.
22. Caecina 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, Aebutius 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. Caecina, 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 Aebutius 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.
22. loco depulsus Caecina tamen qua potuit ad eum fundum profectus ⟨est⟩ in quo ex conventu vim fieri oportebat; eius autem fundi extremam partem oleae derecto ordine definiunt. eas cum accederetur, iste cum omnibus copiis praesto fuit servumque suum nomine Antiochum ad se vocavit et voce clara imperavit ut eum qui illum olearum ordinem intrasset occideret. mea sententia prudentissimus Caecina tamen in hac re plus mihi animi quam consili videtur habuisse. cum et armatorum multitudinem videret et eam vocem Aebuti quam commemoravi audisset, tamen accessit propius et iam ingrediens intra finem eius loci quem oleae terminabant impetum armati Antiochi ceterorumque tela atque incursum refugit. tempore se in fugam conferunt amici advocatique eius metu perterriti, quem ad modum illorum testem dicere audistis.
23. When these things had been done in this manner, Publius Dolabella the praetor 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 Caecina. He said, that he had restored it. Securities were entered into to stand a trial. The cause is now before you for your decision. It was most especially desirable for Caecina, 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 Caecina; 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.
23. rebus ita gestis P. Dolabella praetor interdixit, ut est consuetudo, de vi hominibvs ar matis sine ulla exceptione, tantum ut unde deiecisset restitueret. se dixit. ⟨facta est. de⟩ sponsione vobis iudicandum est. fuit optandum Caecinae, recuperatores, ut controversiae nihil haberet, secundo loco ut ne cum tam improbo homine, tertio ut cum tam stulto haberet. non minus nos stultitia illius sublevat quam laedit improbitas. fuit, quod homines coegit, armavit, coactis armatisque vim fecit. in eo Caecinam, sublevat ibidem; nam in eas ipsas res quas improbissime fecit testimonia sumpsit et eis in causa testimoniis utitur.
24. 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 Aebutius, says that he was with Aebutius as his assistant, with several armed slaves. What more does he say?—That there were many armed men there. What more?—That Aebutius threatened Caecina. 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?
24. mihi certum est, recuperatores, ante quam ad meam defensionem meosque testis venio, illius uti confessione et testimoniis; qui confitetur atque ita libenter confitetur ut non solum fateri sed etiam profiteri videatur, recuperatores: “convocavi homines, coegi, armavi, terrore mortis ac periculo capitis ne accederes obstiti; ferro,” inquit, “ferro”—et hoc dicit in iudicio—“te reieci atque proterrui.”? testes quid aiunt? P. Vetilius, propinquus Aebuti, se Aebutio cum armatis servis venisse advocatum. praeterea? compluris armatos. aliud? esse Aebutium Caecinae. ego de hoc teste dicam nisi hoc, recuperatores, ut ne idcirco minus ei credatis quod homo minus idoneus habetur, sed ideo credatis quod ex illa parte id dicit quod illi causae maxime sit alienum? A.
25. Aulus Terentius, a second witness, convicts not only Aebutius, but himself also. He says this against Aebutius, that there were armed men; but concerning himself he makes this statement, that he ordered Antiochus, the slave of Aebutius, to attack Caecina 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 Caecina 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.
25. Terentius, alter testis, non modo Aebutium sed etiam se pessimi facinoris arguit. Aebutium hoc dicit, armatos homines fuisse, de se autem hoc praedicat, Antiocho, Aebuti servo, se imperasse ut in Caecinam advenientem cum ferro invaderet. loquar amplius de hoc homine? quem ego hoc dicere, cum rogarer a Caecina, numquam volui, ne arguere illum rei capitalis viderer, de eo dubito nunc quo modo aut loquar aut taceam, cum ipse hoc de se iuratus praedicet.
26. After them, Lucius Caelius not only stated that Aebutius was there with a large force of armed men, but also that Caecina had come thither with a very limited train. 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 Caecina, 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.
26. L. Caelius non solum Aebutium cum armatis dixit fuisse compluribus verum etiam cum advocatis perpaucis eo venisse Caecinam. hoc ego teste detraham? cui aeque ac meo testi ut credatis postulo. P. Memmius secutus est qui suum non parvum beneficium commemoravit in amicos Caecinae, quibus sese viam per fratris sui fundum dedisse dixit qua effugere possent, cum essent omnes metu perterriti. ego testi gratias agam, quod et in re misericordem se praebuerit et in testimonio religiosum.
27. 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 Aebutius was threatening Caecina, Caecina 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 Caesennius, 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.
27. A. Atilius et eius filius L. Atilius et armatos ibi fuisse et se suos servos adduxisse dixerunt; etiam hoc amplius: cum Aebutius Caecinae malum minaretur, ibi tum Caecinam postulasse ut moribus deductio fieret. idem P. Rutilius dixit, et eo libentius dixit ut aliquando in iudicio eius testimonio creditum putaretur. praeterea testes nihil de vi, sed de re ipsa atque emptione fundi dixerunt; P. Caesennius, auctor fundi, non tam auctoritate gravi quam corpore, et argentarius Sex. Clodius cui cognomen est Phormio, nec minus niger nec minus confidens quam ille Terentianus est Phormio, nihil de vi dixerunt, nihil praeterea quod ad vestrum iudicium pertineret.
28. 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 Caecina 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 miles off, the people cried out with a laugh, that that was exactly the distance. For all men recollected how much he had received on the trial of Albius.
28. Decimo vero loco testis exspectatus et ad extremum reservatus dixit, senator populi Romani, splendor ordinis, decus atque ornamentum iudiciorum, exemplar antiquae religionis, Fidiculanius Falcula; qui cum ita vehemens acerque venisset ut non modo Caecinam periurio suo laederet sed etiam mihi videretur irasci, ita eum placidum mollemque reddidi, ut non auderet, sicut meministis, iterum dicere quot milia fundus suus abesset ab urbe. cum dixisset minus iↄↄↄ, populus cum risu adclamavit ipsa esse. enim omnes quantum in Albiano iudicio accepisset.
29. 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?
29. eum quid dicam nisi id quod negare non possit, venisse in consilium publicae quaestionis, cum eius consili iudex non esset, et in eo consilio, cum causam non audisset et potestas esset ampliandi, dixisse sibi liquere; cum de incognita re iudicare voluisset, maluisse condemnare quam absolvere; cum, si uno minus damnarent, condemnari reus non posset, non ad cognoscendam causam sed ad explendam damnationem praesto fuisse? Vtrum gravius aliquid in quempiam dici potest quam ad hominem condemnandum quem numquam vidisset neque audisset adductum esse pretio? an certius quicquam obici potest quam quod is cui obicitur ne nutu quidem infirmare conatur?
30. 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 Aebutius, 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. 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?
30. tamen is testis, —ut facile intellegeretis eum non adfuisse animo, cum causa ab illis ageretur testesque dicerent, sed tantisper de aliquo reo cogitasse—cum omnes ante eum dixissent testes armatos cum Aebutio fuisse compluris, solus dixit non fuisse. est mihi primo veterator intellegere praeclare quid causae obstaret, et tantum modo errare, quod omnis testis infirmaret qui ante eum dixissent: cum subito, ecce idem qui solet, duos solos servos armatos fuisse dixit. huic tu homini facias? nonne concedas interdum ut excusatione summae stultitiae summae improbitatis odium deprecetur?
31. 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?
31. Vtrum, recuperatores, his testibus non credidistis, cum quid liqueret non habuistis? at controversia non erat quin verum dicerent. in coacta multitudine, in armis, in telis, in praesenti metu mortis perspicuoque periculo caedis dubium vobis fuit inesse vis aliqua videretur necne? igitur in rebus vis intellegi potest, si in his non intellegetur? vero illa defensio vobis praeclara visa est: “deieci, sed obstiti; non enim sum passus in fundum ingredi, sed armatos homines opposui, ut intellegeres, si in fundo pedem posuisses, statim tibi esse pereundum?” ais? is qui armis proterritus, fugatus, pulsus est, non videtur esse deiectus?
32. 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 Caecina, 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.
32. de verbo videbimus; nunc rem ipsam ponamus quam illi non negant et eius rei ius actionemque quaeramus. haec res posita quae ab adversario non negatur, Caecinam, cum ad constitutam diem tempusque venisset ut vis ac deductio moribus fieret, pulsum prohibitumque esse vi coactis hominibus et armatis. Cum hoc constet, ego, homo imperitus iuris, ignarus negotiorum ac litium, hanc puto me habere actionem, ut per interdictum meum ius teneam atque iniuriam tuam persequar. in hoc errare me nec ullo modo posse per hoc interdictum id adsequi quod velim; te uti in hac re magistro volo.
33. I ask whether there is any legal proceeding open to me in this ease, 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. 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:
33. sitne aliqua huius rei actio an nulla. homines propter possessionis controversiam non oportet, armari multitudinem iuris retinendi causa non convenit; nec iuri quicquam tam inimicum quam vis nec aequitati quicquam tam infestum est quam convocati homines et armati. cum ita sit resque eius modi sit ut in primis a magistratibus animadvertenda videatur, iterum quaero sitne eius rei aliqua actio an nulla. esse dices? cupio, qui in pace et otio, cum manum fecerit, copias pararit, multitudinem hominum coegerit, armarit, instruxerit, homines inermos qui ad constitutum experiendi iuris gratia venissent armis, viris, terrore periculoque mortis reppulerit, fugarit, averterit, hoc dicat:
34. “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 praetor?” 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 Caecina, I am not yet speaking of our own particular right of possession. I am resting my complaint wholly on your defence, O Caius Piso.
34. “equidem quae dicis omnia, et ea sunt et turbulenta et temeraria et periculosa. ergo est? impune feci; nam quid agas mecum ex iure civili ac praetorio non habes.” vero? recuperatores, hoc vos audietis et apud vos dici patiemini saepius? Cum maiores nostri tanta diligentia prudentiaque fuerint ut omnia omnium non modo tantarum rerum sed etiam tenuissimarum iura statuerint persecutique sint, hoc genus unum vel maximum praetermitterent, ut, si qui me exire domo mea coegisset armis, haberem actionem, si qui introire prohibuisset, non haberem? de Caecinae causa disputo, nondum de iure possessionis nostrae loquor; tantum de tua defensione, C.
35. Since you make this statement, and lay down this principle, “that, if Caecina, when he was actually in his farm, had been driven from it, then it would have been right for him to be restored by means of this interdict; but now he can by no means be said to have been from a place where he has not been; and, therefore, we have gained nothing by this 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 threshold 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.
35. Piso, quaero. ita dicis et ita constituis, si Caecina, cum in fundo esset, inde deiectus esset, tum per hoc interdictum eum restitui oportuisse; nunc vero deiectum nullo modo esse inde ubi non fuerit; hoc interdicto nihil nos adsecutos esse: quaero, si te hodie domum tuam redeuntem coacti homines et armati non modo limine tectoque aedium tuarum sed primo aditu vestibuloque prohibuerint, quid acturus sis. amicus meus te, L. Calpurnius, ut idem dicas quod ipse antea dixit, iniuriarum. ad causam possessionis, quid ad restituendum eum quem oportet restitui, quid denique ad ius civile, aut ad praetoris notionem atque animadversionem? iniuriarum. tibi ego largiar; non solum egeris verum etiam condemnaris licet; num quid magis possidebis? actio enim iniuriarum non ius possessionis adsequitur sed dolorem imminutae libertatis iudicio poenaque mitigat.