71. Therefore in other disputes and trials, when the question at issue is, whether a thing has been done or not, whether what is alleged be true or false; and when false witnesses are sometimes suborned, and false documents foisted in; it is possible that sometimes a virtuous judge may be led into error by a seemingly honourable and probable pretence; or that an opportunity may be given to a dishonest judge, of appearing to be guided by the witnesses, or by the documents produced, though in reality he has knowingly given a wrong decision. For questions of law there is nothing of this sort, O judges: there are no forged documents, no dishonest witnesses; even that overgrown power, which has sway in this state, is dormant with respect to cases of this sort; it has no means of attacking the judge, or of moving a finger.
71. in ceteris controversiis atque iudiciis cum quaeritur aliquid factum necne sit, verum an falsum proferatur, et fictus testis subornari solet et interponi falsae tabulae, non numquam honesto ac probabili nomine bono viro iudici error obici, improbo facultas dari ut, cum sciens perperam iudicarit, testem tamen aut tabulas secutus esse videatur; in iure nihil est eius modi, recuperatores, non tabulae falsae, non testis improbus, denique nimia ista quae dominatur in civitate potentia in hoc solo genere quiescit; quid agat, quo modo adgrediatur iudicem, qua denique digitum proferat, non habet.
72. For this can be said to a judge by some man who is not so scrupulous as he is influential; “Decide, I pray you, that this has been done or planned; give credit to this witness; establish the genuineness of these documents;”— but this cannot be said, “Decide that if a man has a posthumous son born to him, his will is not thereby invalidated; decide that a thing is due which a woman had promised without the sanction of her trustee.” There is no opening for transactions of this sort, nor for any one's power or influence; in fact,—and this gives questions of law a more important and a more holy character,—a judge cannot be corrupted even by a bribe in cases of this sort.
72. enim potest dici iudici ab aliquo non tam verecundo homine quam gratioso: “iudica hoc factum esse aut numquam esse factum; crede huic testi, has comproba tabulas”; hoc non potest: “statue cui filius agnatus sit, eius testamentum non esse ruptum; iudica quod mulier sine tutore auctore promiserit, deberi.” est aditus ad huiusce modi res neque potentiae cuiusquam neque gratiae; denique, quo maius hoc sanctiusque videatur, ne pretio quidem corrumpi iudex in eius modi causa potest.
73. That very witness of yours who dared to say “that he had been seen to do...” in a case where he could by no possibility know even of what the man was accused—even he would not venture to decide that a dowry was due to a husband which the woman had promised without the consent of her trustee. Oh admirable principle, and worthy of being maintained by you on this account, O judges! For, indeed, what is the civil law? A thing which can neither be bent by influence, nor broken down by power, nor adulterated by corruption; which, if it be, I will not say overwhelmed, but even neglected or carelessly upheld, there will then be no ground for any one feeling sure either that he possesses anything, or that he shall leave anything to his children.
73. vester testis qui ausus est dicere fecisse videri eum de quo ne cuius rei argueretur quidem scire potuit, is ipse numquam auderet iudicare deberi viro dotem quam mulier nullo auctore dixisset. O rem praeclaram vobisque ob hoc retinendam, recuperatores! enim est ius civile? neque inflecti gratia neque perfringi potentia neque adulterari pecunia possit; quod si non modo oppressum sed etiam desertum aut neglegentius adservatum erit, nihil est quod quisquam sese habere certum aut a patre accepturum aut relicturum liberis arbitretur.
74. For what is the advantage of having a house or a farm left one by one's father, or in any way legitimately acquired, if it be uncertain whether you will be able to retain those things which are yours by every right of property? if law be but little fortified? if nothing can be upheld by public and civil law, in opposition to the influence of any powerful man? What is the advantage, I say, of having a farm, if all the laws which have been most properly laid down by our ancestors about boundaries, about possession, and water, and roads, may all be disturbed and changed in any manner? Believe me, every one of you has received a greater inheritance in respect of his property, from justice and from the laws than from those from whom he received the property itself. For it can happen, in consequence of anybody's will, that a farm may come to me; but it cannot be ensured to me, except by the civil law, that I shall be able to retain what has become my own. A farm can be left me by my father, but the enjoyment of the farm—that is to say, freedom from all anxiety and danger of law-suits—is not left to me by my father, but by the laws. Aqueducts, supply of water, roads, a right of way, comes from my father, but the ratified possession of all these things is derived from the civil law.
74. enim refert aedis aut fundum relictum a patre aut aliqua ratione habere bene partum, si incertum est, quae nunc tua iure mancipi sint, ea possisne retinere, si parum est communitum ius civile ac publica lege contra alicuius gratiam teneri non potest? quid, inquam, prodest fundum habere, si, quae diligentissime descripta a maioribus iura finium, possessionum, aquarum itinerumque sunt, haec perturbari aliqua ratione commutarique possunt? credite, maior hereditas uni cuique nostrum venit in isdem bonis a iure et a legibus quam ab eis a quibus illa ipsa nobis relicta sunt. ut perveniat ad me fundus testamento alicuius fieri potest; ut retineam quod meum factum sit sine iure civili fieri non potest. a patre relinqui potest, at usucapio fundi, hoc est finis sollicitudinis ac periculi litium, non a patre relinquitur, sed a legibus; aquae ductus, haustus, iter, actus a patre, sed rata auctoritas harum rerum omnium ab iure civili sumitur.
75. Wherefore you ought to maintain and preserve that public inheritance of law which you have received from your ancestors with no less care than your private patrimony and property, not only because this last is fenced round and protected by the civil law, but also because if a man loses his patrimony, it is only an individual who suffers, but if the law be lost, the disaster affects the whole state. In this very cause, O judges, if we do not succeed in establishing this point, that a man is driven away,—if it is evident that he has been repelled and put to flight with violence by armed Caecina will not lose his property, which, however, he would bear the loss of with a brave spirit, if the occasion required it; he will only not be restored to the possession of it immediately; nothing more.
75. non minus diligenter ea quae a maioribus accepistis, publica patrimonia iuris quam privatae rei vestrae retinere debetis, non solum quod haec iure civili saepta sunt verum etiam quod patrimonium unius incommodo dimittetur, ius amitti non potest sine magno incommodo civitatis. hac ipsa causa, recuperatores, si hoc nos non obtinemus, vi armatis hominibus deiectum esse eum quem vi armatis hominibus pulsum fugatumque esse constat, Caecina rem non amittet, quam ipsam animo forti, si tempus ita ferret, amitteret, in possessionem in praesentia non restituetur, nihil amplius;
76. But the cause of the Roman people, the laws of the state, all the property, fortune, and possessions of every one will again become uncertain and doubtful. This will be established, this will be settled by your authority; that, if you hereafter have a dispute with any one about ownership, if you drive him away when he has once entered on his property, you must make restitution; but if, as he is coming to enter, you meet him with an armed multitude and repel him, put him to flight, and heat him off while still only on his road, then you shall not make restitution. Then you will establish this principle as law and justice, that violence can only exist where there is murder, that it has nothing to do with the intention or the will; that, unless blood be spilt, there has been no violence offered; that it is wrong to say that a man has been driven away, who has been prevented from entering; that no man can be driven away except from a place where he has planted his footsteps.
76. populi Romani causa, civitatis ius, bona, fortunae possessionesque omnium in dubium incertumque revocantur. auctoritate hoc constituetur, hoc praescribetur: quicum tu posthac de possessione contendes, eum si ingressum modo in praedium deieceris, restituas oportebit; sin autem ingredienti cum armata multitudine obvius fueris et ita venientem reppuleris, fugaris, averteris, non restitues. Iuris si haec vox est, esse vim non in caede solum sed etiam in animo, libidinis, nisi cruor appareat, vim non esse factam; iuris, deiectum esse qui prohibitus sit, libidinis, nisi ex eo loco ubi vestigium impresserit deici neminem posse;
77. Decide therefore now, whether it is of the greatest importance for the spirit of the law to be adhered to, and for equity to prevail, or for all laws to be twisted according to their literal expressions. Do you, I say, O judges, now decide which of these things appears to you the most desirable. While speaking of this, it happens very conveniently that Caius Aquillius, that most accomplished man, is not here now, who was here a little while ago, and who has frequently been present during this trial; (for if he were present, I should be more afraid to speak of his virtue and prudence; because he himself would feel a degree of modesty at hearing his own praises, and a similar kind of modesty would cramp me while praising a man to his face;) and whose authority, it has been said, ought not to be too much deferred to in this cause. I am not afraid of saying more in praise of such a man than you yourselves either feel, or are willing to hear expressed before you.
77. iuris, rem et sententiam et aequitatem plurimum valere oportere, libidinis, verbo ac littera ius omne intorqueri: vos statuite, recuperatores, utrae voces vobis honestiores et utiliores esse videantur. loco percommode accidit quod non adest is qui paulo ante adfuit et adesse nobis frequenter in hac causa solet, vir ornatissimus, C. Aquilius; nam ipso praesente de virtute eius et prudentia timidius dicerem, quod et ipse pudore quodam adficeretur ex sua laude et me similis ratio pudoris a praesentis laude tardaret; cuius auctoritati dictum est ab illa causa concedi nimium non oportere. ⟨⟩ vereor de tali viro ne plus dicam quam vos aut sentiatis aut apud vos commemorari velitis.
78. Wherefore I will say this, that too much weight cannot be given to the authority of that man whose prudence the Roman people has seen proved in taking precautions, not in deceiving men; who has never made a distinction between the principles of civil law and equity; who for so many years has given the Roman people the benefit of his abilities, his industry, and his good faith, which have been always ready and at their service; who is so just and virtuous a man, that he appears to be a lawyer by nature, not by education; so skillful and prudent a man, that not only some learning, but that even goodness appears to be the offspring of civil law; whose abilities are so great, whose good faith is so pure, that, whatever you draw from thence, you feel you are drawing in a pure and clear state.
78. hoc dicam, numquam eius auctoritatem nimium valere cuius prudentiam populus Romanus in cavendo, non in decipiendo perspexerit, qui iuris civilis rationem numquam ab aequitate seiunxerit, qui tot annos ingenium, laborem, fidem suam populo Romano promptam expositamque praebuerit; qui ita iustus est et bonus vir ut natura, non disciplina, consultus esse videatur, ita peritus ac prudens ut ex iure civili non scientia solum quaedam verum etiam bonitas nata videatur, cuius tantum est ingenium, ita probata fides ut quicquid inde haurias purum te liquidumque haurire sentias.
79. So that you are entitled to great gratitude from us when you say that that man is the author of our defence. But I marvel why you, when you say that any one has formed an opinion unfavourable to me, produce the man who is my authority for my arguments, but say nothing of him who is yours. But, however, what does the man on whom you rely say? “In whatever terms a law is framed and drawn up … ” I met a man of that body of lawyers; as I believe, the very same man by whose advice you say that you are conducting this cause, and arranging your arguments in defence. And when he began that discussion with me, saying that it could not be admitted that a man had been driven from any place unless he had previously been in it, he confessed that the facts and the intention of the interdict were on my side; but he said that I was cut off by its terms, and he did not think it possible to depart from its precise language.
79. re permagnam initis a nobis gratiam, cum eum auctorem defensionis nostrae esse dicitis. autem miror, quem vos aliquid contra me sentire dicatis, cur eum auctorem vos pro me appelletis, nostrum nominetis. tamen quid ait vester iste auctor? Qvibvs qvidqve verbis actvm pronvntiatvmqve sit. ego ex isto genere consultorum non neminem, ut opinor, istum ipsum quo vos auctore rem istam agere et defensionem causae constituere vos dicitis. cum istam disputationem mecum ingressus esset, non posse probari quemquam esse deiectum nisi ex eo loco in quo fuisset, rem et sententiam interdicti mecum facere fatebatur, verbo me excludi dicebat, a verbo autem posse recedi non arbitrabatur.
80. When I produced many instances, and alleged even the very grounds of all justice, to prove that in many cases all right and the principles of justice and reason were at variance with the words of the written law; and that that had always prevailed most, which had most authority and justice in it; he comforted me, and showed me that in this cause I had no reason for anxiety, for that the actual words in which the securities were drawn up were on my side, if I considered them carefully. “How so?” said I.—“Because,” said he, “undoubtedly Caecina was driven away by armed men with violence from some place or other; if not from the place to which he desired to come, at all events from that place from which he fled.” What then?—“The praetor,” says he, “has enjoined in his interdict that he shall be replaced in that place from which he was driven away, whatever that place may be from which he was driven away. But Aebutius, who confesses that Caecina was driven away from some place or other, must clearly have forfeited his security, since he falsely says that he has replaced him.”
80. Cum exemplis uterer multis ex omni memoria antiquitatis a verbo et ab scripto plurimis saepe in rebus ius et aequi bonique rationem esse seiunctam, semperque id valuisse plurimum quod in se auctoritatis habuisset aequitatisque plurimum, consolatus est me et ostendit in hac ipsa causa nihil esse quod laborarem; nam verba ipsa sponsionis facere mecum, si vellem diligenter attendere. “,” inquam, “modo?” “certe,” inquit, “deiectus est Caecina vi hominibus armatis aliquo ex loco; si non ex eo loco quem in locum venire voluit, at ex eo certe unde fugit.” “tum?” “,” inquit, “interdixit ut, unde deiectus esset, eo restitueretur, hoc est, quicumque is locus esset unde deiectus esset. Aebutius autem qui fatetur aliquo ex loco deiectum esse Caecinam, is quoniam se restituisse dixit,” “necesse est male fecerit sponsionem.”
81. What is the matter, Piso? do you choose to fight about words? Do you think it fit to make the cause of justice and equity, the cause not of our property only, but of every man's property, to depend on a word? I showed what my opinion was; what had been the course pursued by our ancestors; what was worthy of the authority of those men by whom the cause was to be decided; that that was honest, and just, and expedient for all men, that it should be considered with what design and with what intention a law had been established, not in what words it was framed. You pin me to the words. I will not be so pinned without objecting. I say that it is not right, I say that this point cannot be maintained, I say that there is no single thing which can be included in a law with sufficient accuracy, or guarded against, or excepted against, if through some word being overlooked or placed in an ambiguous position, though the intention and the truth is completely ascertained, that which is intended is not to prevail, but that which is expressed, is.
81. est, Piso? placet tibi nos pugnare verbis? placet causam iuris et aequitatis et non nostrae possessionis, sed omnino possessionum omnium constituere in verbo? quid mihi videretur, quid a maioribus factitatum, quid horum auctoritate quibus iudicandum est dignum esset, ostendi; id verum, id aequum, id utile omnibus esse spectari, quo consilio et qua sententia, non quibus quidque verbis esset actum. me ad verbum vocas; non ante veniam quam recusaro. oportere, nego obtineri posse, nego ullam rem esse quae aut comprehendi satis aut caveri aut excipi possit, si aut praeterito aliquo verbo aut ambigue posito re et sententia cognita non id quod intellegitur, sed id quod dicitur valebit.
82. And since I have now stated my objection plainly enough, I will follow you where you invite me. I ask of you, Was I driven away? not from the farm of Fulcinius, for the praetor has not commanded me to be replaced only in the case of my having been driven away from that particular farm, but he has ordered me to be replaced in the place from which I was driven away. I was driven away from the adjoining farm belonging to my neighbours, across which I was going to that farm; I was driven away from the road; I was certainly driven away from some place or other, from some ground, either private or public. I am ordered to be replaced there. You have said that you have replaced me; I say that I have not been replaced in compliance with the terms of the praetor's decree. What do we say to this! Your defence must be destroyed either by your own sword (all men say) or by mine.
82. satis recusavi, venio iam quo vocas. abs te simne deiectus, non de Fulciniano fundo; neque enim praetor, “si ex eo fundo essem deiectus,” ita me restitui iussit, sed “eo unde deiectus essem.” ex proximo vicini fundo deiectus, qua adibam ad istum fundum, sum de via, sum certe alicunde, sive de privato sive de publico; eo restitui sum iussus. te dixti; nego me ex decreto praetoris restitutum esse. ad haec dicimus? tuo, quem ad modum dicitur, gladio aut nostro defensio tua conficiatur necesse est.
83. If you take refuge in the intention of the interdict, and say that inquiry must be made into what farm was meant when Aebutius was ordered to replace me, and if you think it not right for the justice of the case to be caught in a trap made of words, then you come into my camp, you are fighting under my standard. That is my defence; mine. I assert this loudly; I call all the gods and men to witness, that, as our ancestors would allow no legal defence to be pleaded for armed violence, the question before the court is not, where were the footsteps of the man who was driven away, but what was the act of the man who drove him away; I say loudly, that the man who was put to flight was driven away, that violence was offered to the man who was put in danger of his life.
83. ad interdicti sententiam confugis et, de quo fundo actum sit tum cum Aebutius restituere iubebatur, id quaerendum esse dicis neque aequitatem rei verbi laqueo capi putas oportere, in meis castris praesidiisque versaris; mea, mea est ista defensio, ego hoc vociferor, ego omnis homines deosque testor, cum maiores vim armatam nulla iuris defensione texerint, non vestigium eius qui deiectus sit, sed factum illius qui deiecerit, in iudicium venire; deiectum esse qui fugatus sit, vim esse factam cui periculum mortis sit iniectum. hunc locum fugis et reformidas et me ex hoc, ut ita dicam, campo aequitatis ad istas verborum angustias et ad omnis litterarum angulos revocas, in eis ipsis intercludere insidiis quas mihi conaris opponere.
84. That topic you avoid and dread; and you try to call me back from the wide field, if I may so say, of justice, to these narrow passes of words, and to all the corners of letters. You shall yourself be hemmed in and caught in those very toils which you try to oppose to me. “I did not drive him away; I drove him off.” This seems to you a very clever idea. This is the edge of your defence. On that edge your own cause must inevitably fall. For I reply to you in this way:—If I was not driven away from the place which I was prevented from approaching, at all events I was driven away from the place which I did approach, and from which I fled. If the praetor did not clearly define the place in which he ordered me to be replaced, and merely ordered me to be replaced, I have not been replaced according to his decree.
84. “deieci, sed reieci.” hoc tibi videtur, hic est mucro defensionis tuae; in eum ipsum causa tua incurrat necesse est. enim tibi refero: si non sum ex eo loco deiectus quo prohibitus sum accedere, at ex eo sum deiectus quo accessi, unde fugi. praetor non distinxit locum quo me restitui iuberet, et restitui iussit, non sum ex decreto restitutus.
85. I wish, O judges, if all this appears to you to be a more cunning system of defence than I usually adopt, that you would consider, first of all, that another originally devised it, and not I; in the next place, that not only I was not the originator of the system, but that I do not even approve of it, and that I did not bring it forward for the purposes of my own defence, but that I used it as a reply to their defence; that I can speak in behalf of my own rights, and that in this matter which I have brought forward, what ought to be inquired into is not, in what terms the praetor framed his interdict, but what was the place intended when he framed it, and that in a case of violence offered by armed: men, the thing to he inquired into is not, where the violence was offered, but whether it was offered or not; and that you cannot possibly urge in your defence, that where you wish it to be done, the words of the interdict ought to be regarded but that where you do not wish it, they ought not to be considered.
85. , recuperatores, hoc totum si vobis versutius quam mea consuetudo defendendi fert videbitur, sic existimetis; primum alium, non me excogitasse, deinde huius rationis non modo non inventorem, sed ne probatorem quidem esse me, idque me non ad meam defensionem attulisse, sed illorum defensioni rettulisse; me posse pro meo iure dicere neque in hac re quam ego protuli quaeri oportere quibus verbis praetor interdixerit, sed de quo loco sit actum cum interdixit, neque in vi armatorum spectari oportere in quo loco sit facta vis, verum sitne facta; te vero nullo modo posse defendere in qua re tu velis verba spectari oportere, in qua re nolis non oportere.
86. But is any answer given to me with reference to that which I have already mentioned, that this interdict was so framed, not only as to facts, and as to its meaning, but also as to its expressions, that nothing appeared to require any alteration? Listen carefully, O judges, I beseech you, for it becomes your wisdom to recognise, not my prudence, but that of our ancestors; for I am not going to mention what I myself have discovered, but a thing which did not escape their notice. When an interdict is issued respecting acts of violence, they were aware that there are two descriptions of causes to which the interdict had reference: one, if a man had been driven by violence from the place in which he was; the other, if he was driven from the place to which he was coming; and either of these may take place, and nothing else can, O judges.
86. tamen ecquid mihi respondetur ad illud quod ego iam antea dixi, non solum re et sententia sed verbis quoque hoc interdictum ita esse compositum ut nihil commutandum videretur?, quaeso, diligenter, recuperatores; est enim vestri ingeni non meam, sed maiorum prudentiam cognoscere; non enim id sum dicturus quod ego invenerim, sed quod illos non fugerit. Cum de vi interdicitur, duo genera causarum esse intellegebant ad quae interdictum pertineret, unum, si qui ex eo loco ubi fuisset se deiectum diceret, alterum, si qui ab eo loco quo veniret; et horum utrumque neque praeterea quicquam potest accidere, recuperatores.
87. Consider this then, if you please. If any one has driven my household away from my farm, he has driven me too from that place. If any one came up to me with armed men, outside my farm, and prevented me from entering, then he has driven me, not out of that place, but from that place. For these two classes of actions they invented one phrase which sufficiently expressed them both; so that, whether I had been driven out of my farm, or from my farm, still I should be replaced by one and the same interdict, containing the words “from which you...” these words “from which” comprehend either case: both out of which place, and from which place. Whence was Cinna driven? Out of the city. Whence was Carbo driven? From the city. Whence were the Gauls driven?
87. adeo sic considerate. qui meam familiam de meo fundo deiecerit, ⟨ex eo me loco deiecerit⟩; si qui mihi praesto fuerit cum armatis hominibus extra meum fundum et me introire prohibuerit, non ex eo, sed ab eo loco me deiecerit. haec duo genera rerum unum verbum quod satis declararet utrasque res invenerunt, ut, sive ex fundo sive a fundo deiectus essem, uno atque eodem interdicto restituerer vnde tv. verbum vnde utrumque declarat, et ex quo loco et a quo loco. Vnde deiectus est Cinna? urbe. Vnde Telesinus? urbe. Vnde deiecti Galli? A Capitolio. Vnde qui cum Graccho fuerunt?
88. From the Capitol. Whence were they driven who were with Gracchus? Out of the Capitol. You see, therefore, that by this one phrase two things are signified, both out of what place, and from what place; and when the praetor orders me to be replaced in that place, he orders me to be so on this understanding, just as if the Gauls had demanded of our ancestors to be replaced in the situation from which they had been driven, and if by any force they had been able to obtain it, it would not, I imagine, have been right for them to be replaced in the mine, by which they had attacked the Capitol, but in the Capitol itself. For this is understood—“Replace him in the place from which you drove him away,” whether you drove him out of the place, or from the place. This now is plain enough; replace him in that place; if you drove him out of this place, replace him in it; if you drove him from this place, replace him in that place, not out of which, but from which he was driven. Just as if a person at sea, when he had come near to his own country, were on a sudden driven off by a storm, and were to wish, as he had been driven off from his country, to be restored to his former position. What he would wish, I imagine, would be this,—that fortune would restore him to the place from which he had been driven; not so as to replace him in the sea, but in the city which he was on his way to. So too, (since now we are necessarily hunting out the meaning of words from the similarity of the circumstances,) he who demands to be restored to the place from which he was driven,—that is to say, whence he was driven, —demands to be restored to that very place itself.
88. Capitolio. igitur hoc uno verbo vnde significari res duas, et ex quo et a quo. Cum autem eo restitui iubet, ita iubet ut, si Galli a maioribus nostris postularent ut eo restituerentur unde deiecti essent, et aliqua vi hoc adsequi possent, non, opinor, eos in cuniculum qua adgressi erant sed in Capitolium restitui oporteret. enim intellegitur: vnde deiecisti, sive ex quo loco sive a quo loco, eo restitvas. iam simplex est, in eum locum restituas: sive ex hoc loco deiecisti, restitue in hunc locum, sive ab hoc loco, restitue in eum locum, non ex quo, sed a quo deiectus est. Vt si qui ex alto cum ad patriam accessisset, tempestate subito reiectus optaret ut, cum a patria deiectus esset, eo restitueretur, hoc, opinor, optaret ut a quo loco depulsus esset, in eum se fortuna restitueret, non in salum, sed in ipsam urbem quam petebat, sic quoniam verborum vim necessario similitudine rerum aucupamur, qui postulat ut a quo loco deiectus est, hoc est unde deiectus est, eo restituatur, hoc postulat ut in eum ipsum locum restituatur.
89. As the words lead us to this conclusion, so too the case itself forces us to think and understand the same thing. In truth, Piso, (I am returning now back to the first points of my defence,) if any one drives you out of your own house with violence, by means of armed men, what will you do? I suppose you will prosecute him by means of this same interdict which we have been employing. What now, if, when you are returning home from the forum, any one shall with armed men prevent you from entering your own house, what will you do? You will avail yourself of the same interdict. When, therefore, the praetor has issued his interdict commanding you to be replaced in the place from which you were driven, you will interpret that interdict just as I do now, and as it is plain it should be interpreted. As that phrase “from which place” is of equal power in both cases, and as you are ordered to be replaced in that place, you will interpret it that you are just as much entitled to be replaced in your own house if you have been driven out of the courtyard, as if you have been driven out from the inmost chambers of the house.
89. Cum verba nos eo ducunt, tum res ipsa hoc sentire atque intellegere cogit., Piso,—redeo nunc ad illa principia defensionis meae—si quis te ex aedibus tuis vi hominibus armatis deiecerit, quid ages?, hoc interdicto quo nos usi sumus persequere.? si qui iam de foro redeuntem armatis hominibus domum tuam te introire prohibuerit, quid ages? Vtere eodem interdicto. Cum igitur praetor interdixerit, unde deiectus es, ut eo restituaris, tu hoc idem quod ego dico et quod perspicuum est interpretabere, cum illud verbum vnde in utramque rem valeat, eoque tu restitui sis iussus, tam te in aedis tuas restitui oportere, si e vestibulo, quam si ex interiore aedium parte deiectus sis.
90. But in order, O judges, that there should be no doubt on your part, whether you choose to regard the fact, or the words, that you ought to decide in our favour, there arises now, when every one of their expedients has been defeated and rendered useless, another argument in defence, that a man can be driven away, who is at the time in possession, but that a man who is not in possession cannot possibly be. Therefore, if I have been driven away from your house, I ought not to be replaced there; but, if you yourself have, you ought. Just count up how many false arguments there are in that defence, O Piso. And first of all, notice this, that you are by this driven from that assertion which you made, that no one could be driven away from a place, unless he was in the place previously; now you allow that a man who is the owner of a place can be driven away from it, even if he is not actually in it at the moment, but you say that a man who is not the owner cannot be driven away.
90. Vt vero iam, recuperatores, nulla dubitatio sit, sive rem sive verba spectare voltis, quin secundum nos iudicetis, exoritur hic iam obrutis rebus omnibus et perditis illa defensio, eum deici posse qui tum possideat; qui non possideat, nullo modo posse; itaque, si ego sim a tuis aedibus deiectus, restitui non oportere, si ipse sis, oportere. quam multa in ista defensione falsa sint, Piso. primum illud attende, te iam ex illa ratione esse depulsum, quod negabas quemquam deici posse nisi inde ubi tum esset; iam posse concedis; eum qui non possideat negas deici posse.
91. Why, then, in that interdict which is of almost daily occurrence, “whence he drove me by violence,” is this added, “when I was in possession,” if no one can be driven away who is not in possession; or why is not the same addition made to the interdict “about armed men,” if inquiry ought to be made whether a man was the owner or no? You say that no man can be driven away, but one who is the owner. I assert that, if any one be driven away without men being collected and armed, then he who confesses that he has driven him away must gain his cause, if he can show that he was not the owner. You say that a man cannot be driven away unless he is the owner. I prove from this interdict “about armed men,” that he, who can prove that the man who has been driven away was not the owner, still must inevitably lose his cause, if he confesses that he was driven away at all.
91. ergo aut in illud cotidianum interdictum vnde ille me vi deiecit additur cvm ego possiderem, si deici nemo potest qui non possidet, aut in hoc interdictum de hominibvs armatis non additur, si oportet quaeri possederit necne? deici, nisi qui possideat., si sine armatis coactisve hominibus deiectus quispiam sit, eum qui fateatur se deiecisse vincere sponsionem, si ostendat eum non possedisse. deici, nisi qui possideat. ex hoc interdicto de armatis hominibvs, qui possit ostendere non possedisse eum qui deiectus sit, condemnari tamen sponsionis necesse esse, si fateatur esse deiectum.
92. Men are driven away in two ways, either without the employment of men collected together and armed, or by means of them, and by violence. There are two separate interdicts for two dissimilar cases. In the first and formal kind of violence, it is not enough for a man to be able to prove that he was driven away, unless he is also able to show that he was driven away when he was in possession. And even that is not enough, unless he can show that he was in possession, having become so neither by violence, nor by underhand practices, nor by having begged the property. Therefore, he who said that he had replaced him is often accustomed to avow loudly that he drove him away by violence; but he adds this, “He was not in possession.” Or again, when he has admitted even this, still he gains his cause if he can prove that the man had obtained possession from him either by violence, or by underhand practices, or by begging for it.
92. homines deiciuntur, aut sine coactis armatisve hominibus aut per eius modi rationem atque vim. duas dissimilis res duo diiuncta interdicta sunt. illa vi cotidiana non satis est posse docere se deiectum, nisi ostendere potest, cum possideret, tum deiectum. id quidem satis est, nisi docet ita se possedisse ⟨ut⟩ nec vi nec clam nec precario possederit. is qui se restituisse dixit magna voce saepe confiteri solet se vi deiecisse, verum illud addit: “non possidebat” vel etiam, cum hoc ipsum concessit, vincit tamen sponsionem, si planum facit ab se illum aut vi aut clam aut precario possedisse.
93. Do you not perceive how many defensive pleas our ancestors allowed a man to be able to employ who had done this violence without arms and without a multitude? But as for the man who, neglecting right, and duty, and proper customs, has betaken himself to the sword, to arms, and to murder, him you see naked and defenceless in the cause; so that the man who has contended in arms for the possession, must clearly contend unarmed in the court of justice. Is there, then, any real difference, O Piso, between these interdicts? Does it make any difference whether the words “As Aulus Caecina was in possession” be added, or not? Does the consideration of right,—does the dissimilarity of the interdicts,—does the authority of your ancestors, at all influence you? If the addition had been made, inquiry must have been made as to this point. The addition has not been made. Must that inquiry still be instituted?
93. quot defensionibus eum qui sine armis ac multitudine vim fecerit uti posse maiores voluerint? vero qui ab iure, officio, bonis moribus ad ferrum, ad arma, ad caedem confugerit, nudum in causa destitutum videtis, ut, qui armatus de possessione contendisset, inermis plane de sponsione certaret. igitur interest, Piso, inter haec interdicta? ecquid interest utrum in hoc sit additum cvm A. Caecina possideret necne? te ratio iuris, ecquid interdictorum dissimilitudo, ecquid auctoritas maiorum commovet? esset additum, de eo quaeri oporteret; additum non est, tamen oportebit? ego in hoc Caecinam non defendo;
94. And in this particular I do not defend Caecina. For, O judges, Caecina was in possession; and although it is foreign to this cause, still I will briefly touch upon this point, to make you as desirous to protect the man himself, as the common rights of all men. You do not deny that Caesennia had a life interest in the farm. As the same farmer who rented it of Caesennia continued to hold it on the same tenure, is there any doubt, that if Caesennia was the owner while the farmer was tenant of the farm, so after her death her heir was the owner by the same right? Afterwards Caecina, when he was going the round of his estates, came to that farm. He received his accounts from the farmer. There is evidence to that point.
94. possedit enim Caecina, recuperatores; et id, tametsi extra causam est, percurram tamen brevi ut non minus hominem ipsum quam ius commune defensum velitis. Caesenniam possedisse propter usum fructum non negas. colonus habuit conductum de Caesennia fundum, cum idem ex eadem conductione fuerit in fundo, dubium est quin, si Caesennia tum possidebat, cum erat colonus in fundo, post eius mortem heres eodem iure possederit? ipse Caecina cum circuiret praedia, venit in istum fundum, rationes a colono accepit.
95. After that, why, O. Aebutius, did you give notice to Caecina to give up that farm, rather than some others, if you could find any other, unless Caecina was in possession of it? Moreover, why did Caecina consent to be ejected in a regular and formal manner? and why did he make you the answer he did by the advice of his friends, and of Caius Aquillius himself? Oh, but Sulla passed a law. Without wasting time in making any complaints about that time, and about the disasters of the republic, I make you this answer,—that Sulla also added to that same law, “that if anything were enacted in this statute contrary to law, to that extent this statute was to have no validity.” What is there which is contrary to law which the Roman people is unable to command or to prohibit? Not to digress too far, this very additional clause proves that there is something. For unless there were, this would not be appended to all statutes.
95. in eam rem testimonia. cur tu, Aebuti, de isto potius fundo quam de alio, si quem habes, Caecinae denuntiabas, si Caecina non possidebat? porro Caecina cur se moribus deduci volebat idque tibi de amicorum et de Aquili sententia responderat. enim Sulla legem tulit. Vt nihil de illo tempore, nihil de calamitate rei publicae querar, hoc tibi respondeo, ascripsisse eundem Sullam in eadem lege: si qvid ivs non esset rogarier, eivs ea lege nihilvm rogatvm. est quod ius non sit, quod populus iubere aut vetare non possit? Vt ne longius abeam, declarat ista ascriptio esse aliquid; nam, nisi esset, hoc in omnibus legibus non ascriberetur.
96. But I ask of you whether you think, if the people ordered me to be your slave, or, on the other hand, you to be mine, that that order would be authoritative and valid? You see that such an order is worthless. … First of all, you allow this,—that it does not follow that whatever the people orders ought to be ratified. In the next place, you allege no reason why, if liberty cannot possibly be taken away, citizenship may. For we have received our traditions about each in the same way; and if citizenship can once be taken away, liberty cannot be preserved. For how can a man be free by the rights of the Quirites, who is not included in the number of the Quirites?
96. quaero ⟨de⟩ te, putesne, si populus iusserit me tuum aut te meum servum esse, id iussum ratum atque firmum futurum. hoc nihil esse et fateris; qua in re primum illud concedis, non quicquid populus iusserit, ratum esse oportere; deinde nihil rationis adfers quam ob rem, si libertas adimi nullo modo possit, civitas possit. et eodem modo de utraque re traditum nobis est, et, si semel civitas adimi potest, retineri libertas non potest. enim potest iure Quiritium liber esse is qui in numero Quiritium non est?
97. And I, when quite a young man, established this principle when I was pleading against Cotta, the most eloquent man of our city. When I was defending the liberty of a woman of Arretium, and when Cotta had suggested a scruple to the decemvirs that our action was not a regular one, because the rights of citizenship had been taken from the Arretines, and when I argued rather vehemently that rights of citizenship could not be taken away, at the first hearing the decemvirs gave no decision; afterwards, when they had inquired into, and deliberated on, the subject, they decided that our action was quite regular. And this was decided, though Cotta spoke in opposition to it, and while Sulla was alive. But now on the other cities, why need I tell you how all men who are in the same circumstances proceed by law, and prosecute their rights, and all avail themselves of the civil law without the slightest hesitation on the part of any one, whether magistrate or judge, learned man or ignorant one? There is not one of you who doubts this.
97. ego hanc adulescentulus causam cum agerem contra hominem disertissimum nostrae civitatis, ⟨C.⟩ Cottam, probavi. Cum Arretinae mulieris libertatem defenderem et Cotta xviris religionem iniecisset non posse nostrum sacramentum iustum iudicari, quod Arretinis adempta civitas esset, et ego vehementius contendissem civitatem adimi non posse, xviri prima actione non iudicaverunt; postea re quaesita et deliberata sacramentum nostrum iustum iudicaverunt. hoc et contra dicente Cotta et Sulla vivo iudicatum est. vero in ceteris rebus ut omnes qui in eadem causa sunt et lege agant et suum ius persequantur, et omni iure civili sine cuiusquam aut magistratus aut iudicis aut periti hominis aut imperiti dubitatione utantur, quid ego commemorem? Dubium esse nemini vestrum certo ⟨scio⟩.
98. At all events, I am well aware that this is frequently asked, (as I must remind you of those things which do not occur to yourself,) how it is, if the right of citizenship cannot be taken away, that our citizens have often gone to the Latin colonies. They have gone either of their own accord, or in consequence of some penalty inflicted by the law; though if they would have submitted to the penalty, they might have remained in the city. What more need I urge? What shall I say of a man whom the chief of the fetiales has given up, or whom his own father or his people have sold? By what law does he lose his right of citizenship? In order that the city may be released from some religious obligation, a Roman citizen is surrendered; and when he is accepted, he then belongs to those men to whom he has been surrendered. If they refuse to receive him, as the people of Numantia refused to receive Mancinus, he then retains his original rights of citizenship unimpaired. If his father has sold him, he discharges him from all subjection to his power, whom, when he was born, he had had absolute power over.
98. hoc solere me non praeterit—ut ex me ea quae tibi in mentem non veniunt audias—quem ad modum, si civitas adimi non possit, in colonias Latinas saepe nostri cives profecti sint. sua voluntate aut legis multa profecti sunt; quam multam si sufferre voluissent, manere in civitate potuissent.? quem pater patratus dedidit aut suus pater populusve vendidit, quo is iure amittit civitatem? Vt religione civitas solvatur civis Romanus deditur; qui cum est acceptus, est eorum quibus est deditus; si non accipiunt, ⟨ut⟩ Mancinum Numantini, retinet integram causam et ius civitatis. pater vendidit eum quem in suam potestatem susceperat, ex potestate dimittit. populus cum eum vendit qui miles factus non est, non adimit ei libertatem, sed iudicat non esse eum liberum qui, ut liber sit, adire periculum noluit;
99. When the people sell a man who has not become a soldier, it does not take his liberty from him, but decides that he is not a free man who is afraid to encounter danger in order to be free; but when it sells a man whose name is not on the register, it judges in this way,—that as a man who is in just slavery is not on the register, a man who, though a free man, is unwilling to be on the register, has, of his own accord, repudiated his freedom. But if it is chiefly in those ways that freedom, or the rights of citizenship, can be taken from a man, do not they who mention these things understand that if our ancestors chose that those rights should be taken away for these reasons, they chose also that they should not be taken away in any other manner?
99. cum autem incensum vendit, hoc iudicat, cum ei qui in servitute iusta fuerunt censu liberentur, eum qui, cum liber esset, censeri noluerit, ipsum sibi libertatem abiudicavisse. si maxime hisce rebus adimi libertas aut civitas potest, non intellegunt qui haec commemorant, si per has rationes maiores adimi posse voluerunt, alio modo noluisse?
100. For, as they have produced these arguments from the civil law, I wish they would also produce any case of men having had either their rights of citizenship or their freedom taken away by law. For as to banishment, it is very easy to be understood what sort of thing that is. For banishment is not a punishment, but is a refuge and harbour of safety from punishment. For those who are desirous to avoid some punishment or some calamity, turn to banishment alone,— that is to say, they change their residence and their situation, and, therefore, there will not be found in any law of ours, as there is in the laws of other states, any mention of any crime being punished with banishment. But as men wished to avoid imprisonment, execution, or infamy, which are penalties, appointed by the laws, they flee to banishment as to an altar, though, if they chose to remain in the city and to submit to the rigour of the law, they would not lose their rights of citizenship sooner than they lost their lives; but because they do not so choose, their rights of citizenship are not taken from them, but are abandoned and laid aside by them. For as, according to our law, no one can be a citizen of two cities, the rights of citizenship here are lost when he who has fled is received into banishment,—that is to say, into another city.
100. ut haec ex iure civili proferunt, sic adferant velim quibus lege aut rogatione civitas aut libertas erepta sit. quod ad exsilium attinet, perspicue intellegi potest quale sit. enim non supplicium est, sed perfugium portusque supplici. quia volunt poenam aliquam subterfugere aut calamitatem, eo solum vertunt, hoc est sedem ac locum mutant. nulla in lege nostra reperietur, ⟨ut⟩ apud ceteras civitates, maleficium ullum exsilio esse multatum; sed cum homines vincula, neces ignominiasque vitant, quae sunt legibus constitutae, confugiunt quasi ad aram in exsilium. si in civitate legis vim subire vellent, non prius civitatem quam vitam amitterent; quia nolunt, non adimitur eis civitas, sed ab eis relinquitur atque deponitur., cum ex nostro iure duarum civitatum nemo esse possit, tum amittitur haec civitas denique, cum is qui profugit receptus est in exsilium, hoc est in aliam civitatem.
101. I am not unaware, O judges, although I pass over many things bearing on this right, that still I have dwelt on it at greater length than the plan of your tribunal requires. But I did so, not because I thought that there was any need of urging this defence to you, but in order that all men might understand that the rights of citizenship never had been taken away from any one, and could not be taken away. As I wished those men, whom Sulla desired to injure, to know this, so I wished, also, all the other citizens, both new and old, to be acquainted with it. For no reason can be produced why, if the rights of citizenship could be taken from any new citizen, they cannot also be taken away from all the patricians, from all the very oldest citizens.
101. me praeterit, recuperatores, tametsi de hoc iure permulta praetereo, tamen me longius esse prolapsum quam ratio vestri iudici postularit. id feci, non quo vos hanc in hac causa defensionem desiderare arbitrarer, sed ut omnes intellegerent nec ademptam cuiquam civitatem esse neque adimi posse. cum eos scire volui quibus Sulla voluit iniuriam facere, tum omnis ceteros novos veteresque civis. enim ratio adferri potest cur, si cuiquam novo civi potuerit adimi civitas, non omnibus patriciis, omnibus antiquissimis civibus possit.
102. For that, with respect to this cause, I had no alarm, may be understood in the first place from this consideration,—that you have no business to decide on that matter; and in the second place, that Sulla himself passed a law respecting the rights of citizenship, avoiding any taking away of the legal obligations and lights of inheritance of these men. For he orders the people of Ariminum to be under the same law that they have been. And who is there who does not know that they were one of the eighteen colonies and that they were able to receive inheritances from Roman citizens? But if the rights of citizenship could by law be taken from Aulus Caecina, still it would be more natural for us and all good men now to inquire by what means we could relieve from injustice, and retain as a citizen, a most well-tried and most virtuous man, a man of the greatest wisdom, of the greatest virtue, of the greatest authority at home, than now, when he could not lose any particle of his right of citizenship, for any man to be found, except one like to you, O Sextus, in folly and impudence, who should venture to say that his rights of citizenship have been taken from him.
102. ad hanc quidem causam nihil hoc pertinuisse primum ex eo intellegi potest quod vos ⟨ea⟩ de re iudicare non debetis; deinde quod Sulla ipse ita tulit de civitate ut non sustulerit horum nexa atque hereditates. enim eodem iure esse quo fuerint Ariminenses; quos quis ignorat duodecim coloniarum fuisse et a civibus Romanis hereditates capere potuisse? si adimi civitas A. Caecinae lege potuisset, magis illam rationem tamen omnes boni quaereremus, quem ad modum spectatissimum pudentissimumque hominem, summo consilio, summa virtute, summa auctoritate domestica praeditum, levatum iniuria civem retinere possemus, quam uti nunc, cum de iure civitatis nihil potuerit deperdere, quisquam exsistat nisi tui, Sexte, similis et stultitia et impudentia qui huic civitatem ademptam esse dicat.
103. And since, O judges, he has never abandoned his full rights, and has never yielded any point to their audacity and insolence, I will say nothing more about the common cause, and I leave the rights of the Roman people to the protection of your good faith and conscientious decision. That man has always desired the good opinion of you and of men like you so much that that is one of the points about which he has been most anxious in this cause; nor has he been struggling for anything else than not to seem to abandon his right in an indifferent manner; he has not been more afraid of being thought to despise Aebutius than of being supposed to be despised by him.
103. quoniam, recuperatores, suum ius non deseruit neque quicquam illius audaciae petulantiaeque concessit, de reliquo iam communem causam populique ⟨Romani⟩ ius in vestra fide ac religione deponit. homo est, ita se probatum vobis vestrique similibus semper voluit ut id non minus in hac causa laborarit ne inique contendere aliquid quam ne dissolute relinquere videretur, nec minus vereretur ne contemnere Aebutium quam ne ab eo contemptus esse existimaretur.
104. Wherefore, if, without entering on the merits of the case for a moment, I may speak of the man; you have a man before you of eminent modesty, of tried virtue, of well-proved loyalty, known both in good and bad fortune to the most honourable men of all Etruria by many proofs of virtue and humanity. If we must find fault with the opposite side, you have a man before you, to say no more, who admits that he collected armed men together. If, without reference to the individuals, you inquire into the case; as this is a trial about violence,—as he who is accused admits that he committed violence with the aid of armed men, as he endeavours to defend himself by the letter of the law, not by the justice of his cause, as you see that even the letter of the law is against him, and that the authority of the wisest men is on our side; that the question before the court is not whether Caecina was in possession or not, and yet that it can be proved that he was in possession; that still less is it the question whether the farm belonged to Aulus Caecina or net, and yet that I myself have proved that it did belong to him;—as all this is the case, decide what the interests of the republic with reference to armed men, what his own confession of violence, what our decision with respect to justice, and what the terms of the interdict respecting right, admonish you to decide.
104. , si quid extra iudicium est quod homini tribuendum sit, habetis hominem singulari pudore, virtute cognita et spectata fide, amplissimo totius Etruriae nomine, in utraque fortuna cognitum multis signis et virtutis et humanitatis. quid in contraria parte in homine offendendum est, habetis eum, ut nihil dicam amplius, qui se homines coegisse fateatur. hominibus remotis de causa quaeritis, cum iudicium de vi sit, is qui arguitur vim se hominibus armatis fecisse fateatur, verbo se, non aequitate, defendere conetur, id quoque ei verbum ipsum ereptum esse videatis, auctoritatem sapientissimorum hominum facere nobiscum, in iudicium non venire utrum A. Caecina possederit necne, tamen doceri possedisse; multo etiam minus quaeri A. Caecinae fundus sit necne, me tamen id ipsum docuisse, fundum esse Caecinae: cum haec ita sint, statuite quid vos tempora rei publicae de armatis hominibus, quid illius confessio de vi, quid nostra decisio de aequitate, quid ratio interdicti de iure admoneat ut iudicetis.