---
title: "For Caecina · Pro A. Caecina"
author: "Cicero"
translator: "Charles Duke Yonge"
languages: [la, en]
shelf: "Classical Latin"
section: 2 of 3
url: https://scriptura.si/works/cicero-pro-caecina/2/
cite: "Cicero, tr. Charles Duke Yonge, For Caecina · Pro A. Caecina, section 2. Scriptura (scriptura.si), https://scriptura.si/works/cicero-pro-caecina/2/"
---

# For Caecina · Pro A. Caecina

*Cicero, tr. Charles Duke Yonge*

A disputed farm and the meaning of the praetor’s interdict.

> Latin: ed. Albert Curtis Clark, from the Perseus Digital Library (canonical-latinLit, phi0474.phi008, CC BY-SA 4.0).

> English: Charles Duke Yonge, from the Perseus Digital Library (phi0474.phi008.perseus-eng2). Notes are not included.

> Rows follow the references the two texts share (chapters and sections), cut where both reach the end of a sentence.

## 2. Sections 36–70

Source: https://scriptura.si/works/cicero-pro-caecina/2/ · cite a paragraph as https://scriptura.si/works/cicero-pro-caecina/2/#p-N

[¶0] 36. In the mean time, shall the praetor, 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 praetor 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?

> Latin: 36. interea, Piso, tanta de re tacebit? quem ad modum te restituat in aedis tuas non habebit? dies totos aut vim fieri vetat aut restitui factam iubet, qui de fossis, de cloacis, de minimis aquarum itinerumque controversiis interdicit, is repente obmutescet, in atrocissima re quid faciat non habebit? et C. Pisoni domo tectisque suis prohibito, ⟨prohibito⟩ inquam, per homines coactos et armatos, praetor quem ad modum more et exemplo opitulari possit non habebit? enim dicet, aut quid tu tam insigni accepta iniuria postulabis? “Vnde vi prohibitus?” nemo umquam interdixit; novum est, non dico inusitatum, verum omnino inauditum. “Vnde deiectus?” proficies, cum illi hoc respondebunt tibi quod tu nunc mihi, armatis se tibi obstitisse ne in aedis accederes; deici porro nullo modo potuisse qui non accesserit?

[¶1] 37. 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.

> Latin: 37. “ego,” inquis, “si quis meorum deicitur omnino.” bene agis; a verbis enim recedis et aequitate uteris. verba quidem ipsa si sequi volumus, quo modo tu deiceris, cum servus tuus deicitur? ita est uti dicis; te deiectum debeo intellegere, etiam si tactus non fueris.? nunc, si ne tuorum quidem quisquam loco motus erit atque omnes in aedibus adservati ac retenti, tu solus prohibitus et a tuis aedibus vi atque armis proterritus, utrum hanc actionem habebis qua nos usi sumus, an aliam quampiam, an omnino nullam? esse actionem dicere in re tam insigni tamque atroci neque prudentiae neque auctoritatis tuae est; alia si quae forte est quae nos fugerit, dic quae sit; cupio discere.

[¶2] 38. 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 Caecina 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?

> Latin: 38. si est qua nos usi sumus te iudice vincamus necesse est. enim vereor ne hoc dicas, in eadem causa eodem interdicto te oportere restitui, Caecinam non oportere. cui non perspicuum est ad incertum revocari bona, fortunas, possessiones omnium, si ulla ex parte sententia huius interdicti deminuta aut infirmata sit, si auctoritate virorum talium vis armatorum hominum iudicio approbata videatur, in quo iudicio non de armis dubitatum sed de verbis quaesitum esse dicatur? apud vos obtinebit causam suam qui se ita defenderit: “reieci ego te armatis hominibus, non deieci,” ut tantum facinus non in aequitate defensionis, sed in una littera latuisse videatur?

[¶3] 39. 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? 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?

> Latin: 39. rei vos statuetis nullam esse actionem, nullum experiendi ius constitutum, qui obstiterit armatis hominibus, qui multitudine coacta non introitu, sed omnino aditu quempiam prohibuerit? ergo? hoc quam habet vim, ut distare aliquid aut ex aliqua parte differre videatur, utrum, pedem cum intulero atque in possessione vestigium fecero, tum expellar ac deiciar, an eadem vi et isdem armis mihi ante occurratur, ne non modo intrare verum aspicere aut aspirare possim? hoc ab illo differt, ut ille cogatur restituere qui ingressum expulerit, ille qui ingredientem reppulerit non cogatur?

[¶4] 40. 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.

> Latin: 40. , per deos immortalis! quod ius nobis, quam condicionem vobismet ipsis, quam denique civitati legem constituere velitis. generis una est actio per hoc interdictum quo nos usi sumus constituta; ea si nihil valet aut si ad hanc rem non pertinet, quid neglegentius aut quid stultius maioribus nostris dici potest, qui aut tantae rei praetermiserint actionem aut eam constituerint quae nequaquam satis verbis causam et rationem iuris amplecteretur? est periculosum, dissolvi hoc interdictum, est captiosum omnibus rem ullam constitui eius modi quae, cum armis gesta sit, rescindi iure non possit; verum tamen illud est turpissimum, tantae stultitiae prudentissimos homines condemnari, ut vos iudicetis huius rei ius atque actionem in mentem maioribus nostris non venisse.

[¶5] 41. We may complain then, he says. Still Aebutius is not touched by this interdict. How so? Because violence was not offered to Caecina. 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.

> Latin: 41. “,” inquit, “licet; tamen hoc interdicto Aebutius non tenetur.” ita? “vis Caecinae facta non est.” in hac causa potest, ubi arma fuerint, ubi coacta hominum multitudo, ubi instructi et certis locis cum ferro homines conlocati, ubi minae, pericula terroresque mortis, ibi vim non fuisse? “,” inquit, “occisus est neque saucius ⟨factus⟩.” ais? cum de possessionis controversia et de privatorum hominum contentione iuris loquamur, tu vim negabis factam, si caedes et occisio facta non erit? exercitus maximos saepe pulsos et fugatos esse dico terrore ipso impetuque hostium sine cuiusquam non modo morte verum etiam volnere.

[¶6] 42. 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.

> Latin: 42. , recuperatores, non ea sola vis est quae ad corpus nostrum vitamque pervenit, sed etiam multo maior ea quae periculo mortis iniecto formidine animum perterritum loco saepe et certo de statu demovet. saucii saepe homines cum corpore debilitantur, animo tamen non cedunt neque eum relinquunt locum quem statuerunt defendere; at alii pelluntur integri; ut non dubium sit quin maior adhibita vis ei sit cuius animus sit perterritus quam illi cuius corpus volneratum sit.

[¶7] 43. 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?

> Latin: 43. si vi pulsos dicimus exercitus esse eos qui metu ac tenui saepe suspicione periculi fugerunt, et si non solum impulsu scutorum neque conflictu corporum neque ictu comminus neque coniectione telorum, sed saepe clamore ipso militum aut instructione aspectuque signorum magnas copias pulsas esse et vidimus et audivimus, quae vis in bello appellatur, ea in otio non appellabitur? et, quod vehemens in re militari putatur, id leve in iure civili iudicabitur? et, quod exercitus armatos movet, id advocationem togatorum non videbitur movisse? et volnus corporis magis istam vim quam terror animi declarabit? et sauciatio quaeretur, cum fugam factam esse constabit?

[¶8] 44. 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?

> Latin: 44. enim testis hoc dixit, metu perterritis nostris advocatis locum se qua effugerent demonstrasse. non modo ut fugerent sed etiam ipsius fugae tutam viam quaesiverunt, his vis adhibita non videbitur? igitur fugiebant? metum. metuebant? videlicet. igitur principia negare, cum extrema conceditis? perterritos confitemini; causam fugae dicitis eandem quam omnes intellegimus, arma, multitudinem hominum, incursionem atque impetum armatorum; haec ubi conceduntur esse facta, ibi vis facta negabitur?

[¶9] 45. 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 praetor.” 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?

> Latin: 45. vero hoc quidem iam vetus est et maiorum exemplo multis in rebus usitatum, cum ad vim faciendam veniretur, si quos armatos quamvis procul conspexissent, ut statim testificati discederent, ⟨cum⟩ optime sponsionem facere possent, ni adversvs edictvm praetoris vis facta esset. vero? scire esse armatos satis est ut vim factam probes; in manus eorum incidere non est satis? aspectus armatorum ad vim probandam valebit; incursus et impetus non valebit? qui abierit, facilius sibi vim factam probabit quam qui effugerit?

[¶10] 46. But I say this. If, when first Aebutius told Caecina, when in the castle, that he had collected men and armed them, and that, if he came thither, he would never go away again, Caecina had at once departed, you ought not to have doubted whether violence had been offered to Caecina. But if, as soon as he had beheld the armed men, he had then departed, you would have doubted still less. For everything is violence, which, by means of danger, either compels us to depart from any place, or prevents our approaching any place. But if you determine otherwise, take care lest what you determine 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.

> Latin: 46. ego hoc dico, si, ut primum in castello Caecinae dixit Aebutius se homines coegisse et armasse neque eum, si illo accessisset, abiturum, statim Caecina discessisset, dubitare vos non debuisse quin Caecinae facta vis esset; si vero simul ac procul conspexit armatos recessisset eo minus dubitaretis. enim vis est quae periculo aut decedere nos alicunde cogit aut prohibet accedere. si aliter statuetis, videte ne hoc vos statuatis, qui vivus discesserit, ei vim non esse factam, ne hoc omnibus in possessionum controversiis praescribatis, ut confligendum sibi et armis decertandum putent, ne, quem ad modum in bello poena ignavis ab imperatoribus constituitur, sic in iudiciis deterior causa sit eorum qui fugerint quam qui ad extremum usque contenderint.

[¶11] 47. As we are speaking of law and of legal disputes between men, when in these matters we speak of violence, a very little violence must be considered enough. I have seen armed men—as few as you please—that is great violence. I departed, being alarmed at the weapon of one individual; I was driven away and put to flight. If you establish this rule, there will not only be no instance here after of any one wishing to have a battle for the sake of possession, but there will be no instance even of any one resisting. But if you 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.

> Latin: 47. Cum de iure et legitimis hominum controversiis loquimur et in his rebus vim nominamus, pertenuis vis intellegi debet. armatos quamvis paucos; magna vis est. unius hominis telo proterritus; deiectus detrususque sum. si ita statuetis, non modo non erit cur depugnare quisquam posthac possessionis causa velit, sed ne illud quidem cur repugnare. autem vim sine caede, sine volneratione, sine sanguine nullam intellegetis, statuetis homines possessionis cupidiores quam vitae esse oportere.

[¶12] 48. Come now, in the matter of violence I will make you yourself the judge, O Aebutius. Answer, if you please. Was Caecina 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.

> Latin: 48. vero, de vi te ipsum habebo iudicem, Aebuti., si tibi videtur. fundum Caecina utrum tandem noluit, an non potuit accedere? Cum te obstitisse et reppulisse dicis, certe hunc voluisse concedis. igitur dicere non ei vim fuisse impedimento cui, cum cuperet eoque consilio venisset, per homines coactos licitum non sit accedere? enim id quod maxime voluit nullo modo potuit, vis profecto quaedam obstiterit necesse est; aut tu dic quam ob rem, cum vellet accedere, non accesserit.

[¶13] 49. 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 praetors 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?

> Latin: 49. vim factam negare non potes; deiectus quem ad modum sit, qui non accesserit, id quaeritur. enim et depelli de loco necesse est eum qui deiciatur. autem accidere ei qui potest qui omnino in eo loco unde se deiectum esse dicit numquam fuit?? si fuisset et ex eo loco metu permotus fugisset, cum armatos vidisset, diceresne esse deiectum?. ain tu? qui tam diligenter et tam callide verbis controversias non aequitate diiudicas, et iura non utilitate communi sed litteris exprimis, poterisne dicere deiectum esse eum qui tactus non erit?? detrusum dicesne? nam eo verbo antea praetores in hoc interdicto uti solebant. ais? potestne detrudi quisquam qui non attingitur? nonne, si verbum sequi volumus, hoc intellegamus necesse est, eum detrudi cui manus adferantur? est, inquam, si ad verbum rem volumus adiungere, neminem statui detrusum qui non adhibita vi manu demotus et actus praeceps intellegatur.

[¶14] 50. 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. 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?

> Latin: 50. vero qui potest esse quisquam nisi in inferiorem locum de superiore motus? pulsus, fugatus, eiectus denique; illud vero nullo modo potest, non modo qui tactus non sit sed ne in aequo quidem et plano loco. ergo? hoc interdictum putamus eorum esse causa compositum qui se praecipitatos ex locis superioribus dicerent—eos enim vere possumus dicere esse deiectos— an, cum voluntas et consilium et sententia interdicti intellegatur, impudentiam summam aut stultitiam singularem putabimus in verborum errore versari, rem et causam et utilitatem communem non relinquere solum sed etiam prodere?

[¶15] 51. 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 end 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?

> Latin: 51. hoc dubium est quin neque verborum tanta copia sit non modo in nostra lingua, quae dicitur esse inops, sed ne in alia quidem ulla, res ut omnes suis certis ac propriis vocabulis nominentur, neque vero quicquam opus sit verbis, cum ea res cuius causa verba quaesita sint intellegatur? lex, quod senatus consultum, quod magistratus edictum, quod foedus aut pactio, quod, ut ad privatas res redeam, testamentum, quae iudicia aut stipulationes aut pacti et conventi formula non infirmari ac convelli potest, si ad verba rem deflectere velimus, consilium autem eorum qui scripserunt et rationem et auctoritatem relinquamus?

[¶16] 52. 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 glass 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?

> Latin: 52. hercule familiaris et cotidianus non cohaerebit, si verba inter nos aucupabimur; denique imperium domesticum nullum erit, si servolis hoc nostris concesserimus ut ad verba nobis oboediant, non ad id quod ex verbis intellegi possit obtemperent. nunc uti videlicet mihi necesse est harum rerum omnium; non occurrit uni cuique vestrum aliud alii in omni genere exemplum quod testimonio sit non ex verbis aptum pendere ius; sed verba servire hominum consiliis et auctoritatibus.

[¶17] 53. 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; 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.

> Latin: 53. et copiose L. Crassus, homo longe eloquentissimus, paulo ante quam nos in forum venimus, iudicio cvirali hanc sententiam defendit et facile, cum contra eum prudentissimus homo, Q. Mucius, diceret, probavit omnibus, M’. Curium, qui heres institutus esset ita: mortvo postvmo filio, cum filius non modo non mortuus sed ne natus quidem esset, heredem esse oportere.? verbis hoc satis erat cautum?. res igitur valuit?, quae si tacitis nobis intellegi posset, verbis omnino non uteremur; quia non potest, verba reperta sunt, non quae impedirent sed quae indicarent voluntatem.

[¶18] 54. 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.

> Latin: 54. usum et auctoritatem fundi iubet esse biennium; at utimur eodem iure in aedibus, quae in lege non appellantur. via sit immunita, iubet qua velit agere iumentum; potest hoc ex ipsis verbis intellegi, licere, si via sit in Bruttiis immunita, agere si velit iumentum per M. Scauri Tusculanum. Actio est in auctorem praesentem his verbis: qvandoqve te in ivre conspicio. actione Appius ille Caecus uti non posset, si ita in iure homines verba consectarentur ut rem cuius causa verba sunt non considerarent. si recitatus heres esset pupillus Cornelius isque iam annos xx haberet, vobis interpretibus amitteret hereditatem.

[¶19] 55. 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.

> Latin: 55. in mentem mihi permulta, vobis plura, certo scio. ne nimium multa complectamur atque ab eo quod propositum est longius aberret oratio, hoc ipsum interdictum quo de agitur consideremus; intellegetis enim in eo ipso, si in verbis ius constituamus, omnem utilitatem nos huius interdicti, dum versuti et callidi velimus esse, amissuros. Vnde tv avt familia avt procvrator tvvs. me vilicus tuus solus deiecisset, non familia deiecisset, ut opinor, sed aliquis de familia. igitur diceres te restituisse?; quid enim facilius est quam probare eis qui modo Latine sciant, in uno servolo familiae nomen non valere? vero ne habeas quidem servum praeter eum qui me deiecerit, clames videlicet: “habeo familiam, a familia mea fateor te esse deiectum.” enim dubium est quin, si ad rem iudicandam verbo ducimur, non re, familiam intellegamus quae constet ex servis pluribus; quin unus homo familia non sit; verbum certe hoc non modo postulat, sed etiam cogit, at vero ratio iuris interdictique vis et praetorum voluntas et hominum prudentium consilium et auctoritas respuit hanc defensionem et pro nihilo putat.

[¶20] 56. 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 praetor, and the wisdom and authority of prudent men, reject this defence and treat it as worthless. 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.

> Latin: 56. ergo? isti homines Latine non loquuntur? vero tantum loquuntur quantum est satis ad intellegendam voluntatem, cum sibi hoc proposuerint ut, sive me tu deieceris sive tuorum quispiam sive servorum sive amicorum, servos non numero distinguant sed appellent uno familiae nomine;

[¶21] 57. 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 matter, 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.

> Latin: 57. de liberis autem quisquis est, procuratoris nomine appelletur; non quo omnes sint aut appellentur procuratores qui negoti nostri aliquid gerant, sed in hac re cognita sententia interdicti verba subtiliter exquiri omnia noluerunt. enim alia causa est aequitatis in uno servo et in pluribus, non alia ratio iuris in hoc genere dumtaxat, utrum me tuus procurator deiecerit, is qui legitime procurator dicitur, omnium rerum eius qui in Italia non sit absitve rei publicae causa quasi quidam paene dominus, hoc est alieni iuris vicarius, an tuus colonus aut vicinus aut cliens aut libertus aut quivis qui illam vim deiectionemque tuo rogatu aut tuo nomine fecerit.

[¶22] 58. 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.

> Latin: 58. re, si ad eum restituendum qui vi deiectus est eandem vim habet aequitatis ratio, ea intellecta certe nihil ad rem pertinet quae verborum vis sit ac nominum. restitues si tuus me libertus deiecerit nulli tuo praepositus negotio, quam si procurator deiecerit; non quo omnes sint procuratores qui aliquid nostri negoti gerunt, sed quod ⟨hoc⟩ in hac re quaeri nihil attinet. restitues si unus servolus, quam si familia fecerit universa; non quo idem sit servolus unus quod familia, verum quia non quibus verbis quidque dicatur quaeritur, sed quae res agatur., ut longius a verbo recedamus, ab aequitate ne tantulum quidem, si tuus servus nullus fuerit et omnes alieni ac mercennarii, tamen ei ipsi tuae familiae genere et nomine continebuntur.

[¶23] 59. 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 he 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.”

> Latin: 59. Perge porro hoc idem interdictum sequi. hominibvs coactis. coegeris, ipsi convenerint sua sponte; certe cogit is qui congregat homines et convocat; coacti sunt ei qui ab aliquo sunt unum in locum congregati. non modo convocati non sunt, sed ne convenerunt quidem, sed ei modo fuerunt qui etiam antea non vis ut fieret, verum colendi aut pascendi causa esse in agro consuerant, defendes homines coactos non fuisse, et verbo quidem superabis me ipso iudice, re autem ne consistes quidem ullo iudice. enim multitudinis restitui voluerunt, non solum convocatae multitudinis; sed, quia plerumque ubi multitudine opus est homines cogi solent, ideo de coactis compositum interdictum est; quod etiam si verbo differre videbitur, re tamen erit unum et omnibus in causis idem valebit, in quibus perspicitur una atque eadem causa aequitatis. armatisve. dicemus?

[¶24] 60. 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.

> Latin: 60. armatos, si Latine loqui volumus, quos appellare vere possumus? eos qui scutis telisque parati ornatique sunt. igitur? si glebis aut saxis aut fustibus aliquem de fundo praecipitem egeris iussusque sis, quem hominibus armatis deieceris, restituere, restituisse te dices? si valent, si causae non ratione sed vocibus ponderantur, me auctore dicito. profecto non fuisse armatos eos qui saxa iacerent quae de terra ipsi tollerent, non esse arma caespites neque glebas; non fuisse armatos eos qui praetereuntes ramum defringerent arboris; arma esse suis nominibus alia ad tegendum, alia ad nocendum; quae qui non habuerint, eos inermos fuisse vinces.

[¶25] 61. Yes, 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 meager 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.

> Latin: 61. si quod erit armorum iudicium, tum ista dicito; iuris iudicium cum erit et aequitatis, cave in ista tam frigida, tam ieiuna calumnia delitiscas. enim reperies quemquam iudicem aut recuperatorem qui, tamquam si arma militis inspicienda sint, ita probet armatum; sed perinde valebit quasi armatissimi fuerint, si reperientur ita parati fuisse ut vim vitae aut corpori potuerint adferre.

[¶26] 62. 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.

> Latin: 62. ut magis intellegas quam verba nihil valeant, si tu solus aut quivis unus cum scuto et gladio impetum in me fecisset atque ego ita deiectus essem, auderesne dicere interdictum esse de hominibus armatis, hic autem hominem armatum unum fuisse?, opinor, tam impudens esses. vide ne multo nunc sis impudentior. tum quidem omnis mortalis implorare posses, quod homines in tuo negotio Latine obliviscerentur, quod inermi armati iudicarentur, quod, cum interdictum esset de pluribus, commissa res esset ab uno, unus homo plures esse homines iudicaretur.

[¶27] 63. 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 neighbor 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.

> Latin: 63. in his causis non verba veniunt in iudicium, sed ea res cuius causa verba haec in interdictum coniecta sunt. quae ad caput ac vitam pertineret restitui sine ulla exceptione voluerunt. fit plerumque per homines coactos armatosque; si alio consilio, eodem periculo facta sit, eodem iure esse voluerunt. enim maior est iniuria si tua familia quam si tuus vilicus, non si tui servi quam si alieni ac mercennarii, non si tuus procurator quam si vicinus aut libertus tuus, non si coactis hominibus quam si voluntariis aut etiam adsiduis ac domesticis, non si armatis quam si inermibus qui vim armatorum haberent ad nocendum, non si pluribus quam si uno armato. enim rebus plerumque vis fit eius modi, eae res appellantur in interdicto. per alias res eadem facta vis est, ea tametsi verbis interdicti non concluditur, sententia tamen iuris atque auctoritate retinetur.

[¶28] 64. 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 narrower 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.

> Latin: 64. nunc ad illud tuum: “non deieci; non enim sivi accedere.” te ipsum, Piso, perspicere quanto ista sit angustior iniquiorque defensio quam si illa uterere: “non fuerunt armati, cum fustibus et cum saxis fuerunt.” me hercule mihi, non copioso homini ad dicendum, optio detur, utrum malim defendere non esse deiectum eum cui vi et armis ingredienti sit occursum, an armatos non fuisse eos qui sine scutis sineque ferro fuerint, omnino ad probandum utramque rem videam infirmam nugatoriamque esse, ad dicendum autem in altera videar mihi aliquid reperire posse, non fuisse armatos eos qui neque ferri quicquam neque scutum ullum habuerint; hic vero haeream, si mihi defendendum sit eum qui pulsus fugatusque sit non esse deiectum.

[¶29] 65. 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 tricky 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.

> Latin: 65. illud in tota defensione tua mihi maxime mirum videbatur, te dicere iuris consultorum auctoritati obtemperari non oportere. ego tametsi non nunc primum neque in hac causa solum audio, tamen admodum mirabar abs te quam ob rem diceretur. ceteri tum ad istam orationem decurrunt cum se in causa putant habere aequum et bonum quod defendant; si contra verbis et litteris et, ut dici solet, summo iure contenditur, solent eius modi iniquitati aequi et boni nomen dignitatemque opponere. illud quod dicitur, sive nive, inrident, tum aucupia verborum et litterarum tendiculas in invidiam vocant, tum vociferantur ex aequo et bono, non ex callido versutoque iure rem iudicari oportere; scriptum sequi calumniatoris esse bonique iudicis voluntatem scriptoris auctoritatemque defendere.

[¶30] 66. 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 praetor'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.”

> Latin: 66. ista vero causa cum tu sis is qui te verbo litteraque defendas, cum tuae sint hae partes: “unde deiectus es? an inde quo prohibitus es accedere? reiectus es, non deiectus,” cum tua sit haec oratio: “fateor me homines coegisse, fateor armasse, fateor tibi mortem esse minitatum, fateor hoc interdicto praetoris vindicari, si voluntas et aequitas valeat; sed ego invenio in interdicto verbum unum ubi delitiscam: non deieci te ex eo loco quem in locum prohibui ne venires”—in ista defensione accusas eos qui consuluntur, quod aequitatis censeant rationem, non verbi haberi oportere?

[¶31] 67. 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 mid that Scaevola 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 be 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.

> Latin: 67. hoc loco Scaevolam dixisti causam apud cviros non tenuisse; quem ego antea commemoravi, cum idem faceret quod tu nunc—tametsi ille in aliqua causa faciebat, tu in nulla facis—tamen probasse nemini quod defendebat, quia verbis oppugnare aequitatem videbatur. Cum id miror, te hoc in hac re alieno tempore et contra quam ista causa postulasset defendisse, tum illud volgo in iudiciis et non numquam ab ingeniosis hominibus defendi mihi mirum videri solet, nec iuris consultis concedi nec ius civile in causis semper valere oportere.

[¶32] 68. 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.

> Latin: 68. hoc qui disputant, si id dicunt non recte aliquid statuere eos qui consulantur, non hoc debent dicere iuris consultis, sed hominibus stultis obtemperari non oportere; sin illos recte respondere concedunt et aliter iudicari dicunt oportere, male iudicari oportere dicunt; neque enim fieri potest ut aliud iudicari de iure, aliud responderi oporteat, nec ut quisquam iuris numeretur peritus qui id statuat esse ius quod non oporteat iudicari.

[¶33] 69. 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 Scaevola 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.

> Latin: 69. “est aliquando contra iudicatum.” utrum recte, an perperam? recte, id fuit ius quod iudicatum est; sin aliter, non dubium est utrum iudices an iuris consulti vituperandi sint., si de iure vario quippiam iudicatum est, ⟨non⟩ potius contra iuris consultos statuunt, si aliter pronuntiatum est ac Mucio placuit, quam ex eorum auctoritate, si, ut Manilius statuebat, sic est iudicatum. ipse Crassus non ita causam apud cviros egit ut contra iuris consultos diceret, sed ut hoc doceret, illud quod Scaevola defendebat, non esse iuris, et in eam rem non solum rationes adferret, sed etiam Q. Mucio, socero suo, multisque peritissimis hominibus auctoribus uteretur.

[¶34] 70. 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.

> Latin: 70. qui ius civile contemnendum putat, is vincula revellit non modo iudiciorum sed etiam utilitatis vitaeque communis; qui autem interpretes iuris vituperat, si imperitos iuris esse dicit, de hominibus, non de iure civili detrahit; sin peritis non putat esse obtemperandum, non homines laedit, sed leges ac iura labefactat; quod vobis venire in mentem profecto necesse est, nihil esse in civitate tam diligenter quam ius civile retinendum. hoc sublato nihil est qua re exploratum cuiquam possit esse quid suum aut quid alienum sit, nihil est quod aequabile inter omnis atque unum omnibus esse possit.