This speech was delivered for A. Caecina, probably in 69 B.C.
The translation is by H.G. Hodge (1927). Click on the L symbols to go to the Latin text of each section. Click on ** to go to the translator's footnotes.
[1.] L [1] If effrontery were as potent before a tribunal of justice as recklessness is effective in the lonely countryside, Aulus Caecina would have as little chance in the conduct of his case to-day against the effrontery of Sextus Aebutius as once he had in the employment of force against his audacity. However he considered that while circumspection forbade him to contend with arms over an issue which ought to be decided at law, resolution also bade him overcome by a legal process one against whom he declined to fight with armed violence. [2] Personally I consider Aebutius to have displayed both conspicuous audacity in collecting and arming his followers and also effrontery in his legal proceedings, not only in daring to take such proceedings (for though the obvious nature of the case made even this a wrong thing to do, such conduct is common enough on the part of a rogue), but in not hesitating openly to admit the very point we seek to prove; unless indeed his idea was this, that - whereas previously had he used the customary amount of force, he would have been at no advantage when it came to retaining possession - because he used a degree of force contrary to law and custom, Aulus Caecina and his friends fled in a panic : so, too, at the present time and in these proceedings, if his defence were to follow universal custom and usage, we should be at no disadvantage in conducting our case, whereas, should precedent be abandoned, the more outrageous his conduct, the greater would be his advantage in the end. As if indeed dishonesty were as efficient in a court of justice as is impudence in an affair of violence; and as if we did not yield the more gladly to his audacity on that occasion in order the more easily to withstand his effrontery on this! [3] And so, gentlemen, my plans for the conduct of my case in these proceedings are very far different from what they were originally ** ; for then the success of our case rested upon my powers in defence, now it rests on the admissions of my adversary : then I was relying upon our witnesses, but now upon theirs. These witnesses of theirs at one time caused me anxiety : if they were dishonest, they might lie; if they succeeded in passing for honest, what they said might be believed. Now I am completely happy about them : if they are good men, they help my case by saying on their oath what I, not on my oath, merely suggest; and if they are not so satisfactory, they do my case no harm: for if the court believes them, it believes the very point we seek to prove ; and if it does not credit them, then my opponent's witnesses are discredited.
[2.] L [4] When, however, I consider my opponent's conduct of the case, I cannot imagine anything more outrageous ; though when I consider your hesitation to pronounce judgement I am afraid that their apparently outrageous conduct may have been a shrewd and clever move. For had they denied the employment of force through armed men, they would have been easily and incontrovertibly met by unimpeachable evidence : but should they admit the fact and then put forward the defence that what can never be done lawfully was on that occasion lawfully done by themselves, they hoped - and their hopes were realised - that they would give you ground for deliberation and make you feel a legitimate scruple about deciding the case at once. And they further reckoned that - scandalous though it is that it should be so - the point at issue in this trial would appear to be, not the depravity of Sextus Aebutius, but a point of law. [5] Now if in this trial I had to maintain the cause of Aulus Caecina and of no one else, I should profess myself sufficiently qualified to defend it as guaranteeing honesty and effort on my part: given these qualities in counsel, there is no cause for exceptional ability, especially in so plain and simple a matter. But since I have to speak about the Law, which affects us all, which was established by our forefathers and has been preserved even to this day, the overthrow of which would not merely impair our rights in some respect but would seem to be lending the support of a legal decision to the use of force, which is the absolute antithesis of law ; I realise that the case demands the highest ability, not to prove what a mere glance can see, but to prevent everyone supposing, should you be induced to take up a false position on so important a question, that it is rather I who have betrayed my cause than you your consciences.
[6] I am, however, persuaded, gentlemen, ** that your reason for having twice shown yourselves reluctant to decide the same case was not any ambiguity or doubt you may have felt about the law, but the fact that this trial, seeming to strike at the very root of the defendant's honour, induced you to postpone your condemnation and so give him time to get his case together. This practice, which is becoming customary and is followed by honest men like yourselves when acting as judges, seems perhaps less reprehensible, though actually more deplorable, just because all legal processes are designed either for the settlement of disputes or the punishment of wrongdoing. Of these functions the former is the less serious, as it inflicts less suffering and is often determined by private arbitration ; whereas the latter is drastic in the extreme, dealing as it does with grave matters and calling, not for the informal assistance of a friend, but for the stern and trenchant action of a judge. [7] And now the weightier function, the chief purpose for which our courts exist, is abrogated by this evil practice. For the more heinous the offence, the greater and the speedier should be the retribution. But that is precisely the case which, because it imperils a man's honour, is the slowest to be decided. [3.] L How can it, then, be right that the very cause responsible for bringing the courts of justice into being should also be responsible for delay in passing judgement? In a case of solemn contract, he who does not perform an obligation which he has taken upon himself by pronouncing a single word, ** is promptly condemned without any scruple on the part of the judge. But in the case of fraud arising over a wardship, a partnership, an informal contract, or the return of a security, the slowness of the punishment is proportionate to the gravity of the offence. [8] "Yes," you say, "for the sentence involves infamy." Of course, because it is passed upon infamous conduct. How unfairly it comes about, then, that whereas dishonour is the penalty for evil conduct, that very conduct should remain unpunished just because dishonour is its penalty !
And if any judge or assessor ** were to say to me: "But you might have brought your action by a less stringent process: you might have secured your rights by an easier and more convenient form of trial; so either adopt a different process or do not press me to pronounce judgement," he would none the less seem either more nervous than a resolute judge ought to be or more presumptuous than a wise one ; for either he is lacking in the courage to try the case himself or he is seeking to prescribe the method which I am to employ in pursuing my rights. For if the praetor, ** he who gives leave to bring an action, never prescribes to a claimant what form of action he wishes him to employ, how unfair it is that, when that leave has definitely been obtained, the judge should consider not the line that is being taken but that which may be or might have been taken! [9] None the less we should gladly take advantage of your excessive kindness, if it were possible for us to recover our rights by any other process. But in the circumstances, is there anyone who either supposes that violence through armed men ought to go unpunished, or can inform us of any less stringent process for dealing with it? When the offence is one of those to which, as our opponents are so fond of asserting, a charge of assault is proper or even a capital charge, can you accuse us of vindictiveness when you see that all we ask is to recover possession through the praetor's injunction ?
[4.] L But whether it is the danger to which the defendant's honour is exposed or your uncertainty on a point of law which has made you hitherto reluctant to deliver judgement - as to the former, you have yourselves removed it by your frequent adjournments of the case ; all grounds for the latter I will this very day remove forthwith, leaving you no further ground for hesitation about either the issue between us or the general right. [10] And if you should think that I am going further back in tracing the origins of the case than I am obliged to do by the principle of law involved, the point of law under dispute or the nature of the case, I crave your indulgence. For my client is as anxious not to seem to be pressing his rights to the uttermost as he is not to fail in obtaining the rights that are manifestly his. There was one M. Fulcinius, gentlemen, a native of Tarquinii, who in his native place enjoyed an eminently honourable reputation and at Rome had a considerable business as a banker. He was married to Caesennia, a lady from the same township, of honourable family and approved character, as he made known in many ways during her life and after his death declared by his will. [11] To this Caesennia he sold an estate in the districts of Tarquinii during those times of financial stringency, ** and as he was using the cash which had comprised his wife's dowry, he took the precaution of charging the dowry on the farm in order to give her, as a woman, better security for it. Some time afterwards Fulcinius gave up his banking business and bought some land in continuation of and next to this estate of his wife's. Fulcinius died - I will pass over many points in the story because they are unconnected with this case - and in his will made his son by Caesennia his heir, subject to a life interest on her part in all his property, to be exercised conjointly with her son. [12] She would have appreciated this great honour done her by her husband could it have been hers for long ; for she would have been sharing her interest in his property with the son whom she hoped would be the heir to her own, and who was her greatest interest in life. But of this interest Fate deprived her prematurely ; for in a short time the young Marcus Fulcinius died, making Publius Caesennius his heir, subject to the payment of a large sum of money to his wife and the greater part of his property to his mother. In these circumstances the two women were notified to take their shares.
[5.] L [13] It was decided to sell by auction ** the property thus bequeathed : whereupon Aebutius there, who had long been battening upon Caesennia's lonely and widowed situation, and had insinuated himself into her confidence through his system of undertaking on her behalf, with some advantage to himself, any business or dispute that might arise, was also engaged at this particular time over this matter of selling and dividing the estate, obtruding himself and pushing himself forward and inducing Caesennia to believe that a woman's inexperience was incapable of conducting a good business transaction without the presence of Aebutius. [14] The character which you know from your daily experience, gentlemen, to belong to a flatterer of women, a widows' champion, a litigious attorney, a frequenter of the Basilica, ** a clumsy fool among men but a shrewd and clever lawyer among women - such is the character which you should ascribe to Aebutius, for such did he prove himself to Caesennia. Perhaps you may ask : "Was he a relation of hers ? " Far from it. "An old friend of her father's or her husband's?" No one less so. "Who was he, then?" Why, the very man whose portrait I have just given you, the lady's self-constituted friend, connected with her by no tie of relationship but by obtrusive kindnesses and feigned good offices and by services which, occasionally undertaken in duty to her, were more often beneficial to himself. [15] When, as I had begun to say, it was settled to hold the auction at Rome, Caesennia's friends and relations began to persuade her (and the same idea was occurring to her independently) that as she had the chance to buy the estate which had belonged to M. Fulcinius and which adjoined her own original farm, there was no reason to let such an opportunity slip, especially as money was owing to her from the division of the property, which could not be better invested. This therefore she decided to do: she gave a commission to buy the farm to - whom indeed? Whom do you think? Does it not occur to every one of you that this was essentially the business of the man who was ready to undertake all the lady's business, without whom no adequate foresight or shrewdness was possible? You are right. The business was entrusted to Aebutius.
[6.] L [16] Aebutius attends at the sale. ** He does the bidding. Many purchasers are deterred, some by consideration for Caesennia, some too, by the value of the property. The estate is knocked down to Aebutius. Aebutius promises the money to the banker ** - a fact which our worthy friend is now using as evidence that he bought the estate for himself. As if indeed we denied that it was knocked down to him! Or as if anyone doubted at the time that it was being purchased for Caesennia; since most people knew it, everyone had heard it, and anyone who had not heard it might have guessed it, inasmuch as money was owing to Caesennia under this will, as far the best investment for this money would be in land, as the particular land which was much best suited to the lady's needs was for sale, as the bidder was one whom no one was ever surprised to find acting for Caesennia and as no one could suppose he was making the purchase for himself. [17] For the purchase thus concluded the money was found by Caesennia, though our friend calculates that no record of the transaction can be produced because he himself has made away with the account books, while retaining in his own possession the banker's book in which the price was entered on the debit side of his account and then carried over to the credit side. As if any other procedure would have been correct ! After the conclusion of the whole affair in the manner I have maintained, Caesennia took possession of the estate and let it. Shortly afterwards she married Aulus Caecina. To bring my story quickly to an end, she died, after making a will in which she bequeathed twenty-three twenty-fourths of her estate to Caecina and one thirty-sixth part to M. Fulcinius, a freedman of her first husband's, throwing in a seventy-second part for Aebutius. ** This seventy-second part she intended as an acknowledgement of his devotion to her affairs and of any trouble they might have caused him. Our friend, however, looks upon this fraction as giving him a handle for raising disputes about everything.
[7.] L [18] He started by having the effrontery to say that Caecina could not be Caesennia's heir, since he had not full rights like other citizens by reason of the disability and the civil degradation to which the Volaterrans were subject. And so I suppose, like a timid and inexperienced man, lacking both in courage and resource, my client did not think it worth while, for the sake of the inheritance, to have any doubts cast on his rights as a citizen, and gave way to Aebutius, letting him keep whatever of Caesennia's estate he wanted! No indeed! He acted like a brave and wise man, and crushed this foolish and dishonest claim. [19] Now as he was in possession of the property, and Aebutius was making out his seventy-second share to be greater than it was, he asked, in his capacity as an heir, for an arbiter to divide the inheritance. In the course of the next few days, realising that nothing could be squeezed out of Caecina by the threat of a lawsuit, Aebutius formally notified him in the forum at Rome that the estate of which I have already spoken and which I showed that the defendant purchased on the instructions of Caesennia, was his own, bought by him for himself. What? Is Aebutius the owner of the estate of which Caesennia was indisputably in possession for four years, that is, from. the day it was sold until she died? His answer is: "Yes; for she had been left a life interest in it under her husband's will."
[20] While Aebutius with such evil intent was planning this singular kind of lawsuit, Caecina decided on the advice of his friends to fix a day on which he should repair to the actual place and be formally ejected from the estate. A conference was held and a day chosen to suit both parties. Caecina came with his friends on the appointed day to the castle of Axia, from which the disputed estate was not far distant. There he was informed by several people that a large band of freedmen and slaves had been collected and armed by Aebutius. While some were astounded at this and others refused to believe it, behold! Aebutius himself came to the castle, gave Caecina notice that he had armed men with him and swore that if he got as far as the property he should never go away again. Caecina and his friends decided to make the attempt notwithstanding, as far as should appear possible without endangering their lives. [21] Leaving the castle they set out for the estate. I think it was rash of them to do so, but the reason for it was, I imagine, that no one supposed that Aebutius would be as rash in his actions as in his threats. [8.] L The defendant, then, stationed armed men at every possible way of approach not only to the estate under dispute but even to the adjoining one about which there was no contention. And so, in the first instance, when Caecina wanted to enter the original estate, because that was the nearest way to the other, he was confronted by a crowd of armed men. [22] Repulsed from this spot, Caecina none the less started to make his way as best he could to the estate on which it had been agreed that he should submit to force: the boundary of this estate is marked by a straight row of olive-trees. When he reached these trees, the defendant was waiting for him with all his forces, and calling to him one of his slaves named Antiochus, he ordered him in a loud voice to kill anyone who came within the row of olive-trees. Caecina, whom I consider a cautious man, seems to have displayed in this instance more spirit than sense. For although he saw the crowd of armed men and heard the remark of Aebutius which I have quoted, he none the less came nearer and was actually passing within the boundary of the land delimitated by the olive-trees, when Antiochus rushed at him sword in hand: the rest threw missiles at him and charged ; and he fled before them. His friends and supporters, panic-stricken, fled simultaneously as you heard my opponent's own witnesses say. [23] Such being the facts of the case, the praetor, P. Dolabella, issued the usual injunction ''concerning force through armed men," ordering Aebutius, without any saving clause, merely to "restore to the place whence he had ejected." Aebutius replied that "he had restored." ** A wager at law ** was concluded: on that wager you have to pass judgement.
[9.] L What Caecina would have most desired, gentlemen, was to have no quarrel with anyone : in the next place, to have no quarrel with such a knave ; and in the last, to have his quarrel with such a fool ! For actually Aebutius's folly does us as much good as his knavery does us harm. A knave he was, in that he collected men together, armed them and "used force by means of men collected together and armed." Therein he did Caecina harm, and therein, too, he does him good ; for he procured evidence of the very deeds which his knavery perpetrated and that evidence he brings forward at this trial. [24] And so I am resolved, gentlemen, before I come to present my case and summon my own witnesses, to make use of his admissions and his witnesses. What is his admission, gentlemen - made with a readiness which suggests that he is not merely making but actually volunteering it? ''I summoned my men: I collected them together, armed them and withstood your approach with the fear of death and by threatening your life." " By the sword," says he, "by the sword," yes, and he says it in a court of law, "I drove you back and routed you."
Again, what say his witnesses? Publius Vetilius, his neighbour, says that he came on the summons of Aebutius with some armed slaves. What further ? That there was a large number of armed men. What else? That Aebutius threatened Caecina. What am I to say about this witness, gentlemen, except that I hope you will not believe him the less because he is little worthy of credence, but will believe him for the very reason that his story, told in my opponent's interest, is most unfavourable to my opponent's case? [25] The second witness, Aulus Terentius, charges not only Aebutius but himself with a heinous crime. Against Aebutius he says that there were armed men there ; but against himself he proclaims that it was he who gave the order to Aebutius's slave Antiochus to attack Caecina with his sword if he came on. What further am I to say about this man? I never meant to say what I have said against him, although Caecina asked me to do so, for fear of seeming to be bringing a capital charge against him ; but now I am wondering how I can either speak or fail to speak about him, inasmuch as he proclaims this information about himself on his oath. [26] Next comes Lucius Caelius, who, in addition to stating that Aebutius was attended by a very large body of armed men, adds that Caecina came to the spot with a very small body of supporters. [10.] L Am I to disparage this witness? No, I demand that you believe him equally with my own witnesses. There followed P. Memmius who recorded the considerable kindness which he had done to Caecina's friends in affording them, as he said, a way of escape through his brother's land when they were all in a state of panic. I will ask this witness to accept my thanks for having shown himself merciful in his conduct and scrupulous in his evidence. [27] Aulus Atilius and his son Lucius Atilius stated both that armed men were there and that they brought thither their own slaves; and they said further that when Aebutius was threatening Caecina with hurt, Caecina then and there demanded that his ejection should take place formally. The same statement was made by P. Rutilius and all the more gladly for the hope of at last securing credence for his evidence in a court of law! Two more witnesses gave evidence, though not about the use of force but only about the original facts and the purchase of the estate. Then came Publius Caesennius, the vendor of the estate, a man of greater physical than moral weight ; and Sextus Clodius, the banker, surnamed Phormio, no less black and no less brazen than the Phormio in Terence ** : they gave no evidence about the use of force - or anything else relevant to your court.
[28] The tenth witness to give evidence, anxiously awaited and reserved for the last, a member of the Roman Senate, the glory of his order, the pride and ornament of the law courts, the model of old-time uprightness, was Fidiculanius Falcula ; and although he came into court in so violent and bitter a spirit as not only to attack Caecina with his perjuries but even to appear enraged against myself, I so far calmed and soothed his feelings that, as you remember, he dared not say a second time how many yards his farm is distant from the city. For when he said "Nearly 50,000," the people laughed and cried out, "The very sum!"** For everyone remembered how much he had received at the trial of Oppianicus. [29] As for him, what am I to say against him save what he cannot deny - that he attended the session of a public tribunal although not one of the jurors at that session ; and that, in the course of it, although he had not heard the case, and an adjournment was possible, he voted "guilty" ; that, since he decided to pronounce judgement on the case without having heard it, he preferred voting "guilty" to voting "not guilty" ; and that, since the accused could not have been convicted had there been one vote less given against him, his purpose there was not to investigate the case but to ensure a conviction ? ** Can anything worse be said against anyone than that he took a bribe to condemn a man whom he had never seen or heard? Or, again, can any allegation be made with more certainty than one which the object of it cannot attempt to dispute even by shaking his head? [30] Yet this is the witness who (as if to convince you that he was not paying attention while my opponent was pleading his case and his witnesses were giving evidence but that his thoughts meanwhile were with the accused ** at some other trial) alone, and despite the statement of all the previous witnesses that there were armed men with Aebutius in large numbers, said that there were none. At first I thought that the old villain clearly realised where his interest lay in the case and was only making the mistake of discrediting all the previous witnesses : but suddenly he was himself again and said that two armed slaves were there. I ask you, Aebutius, what are you to do with a man like that ? Must you not occasionally allow him to escape the reproach of superlative wickedness by pleading his superlative stupidity ?
[11.] L [31] Was it, gentlemen, that you did not believe these witnesses on the occasion when you could not agree on a verdict ? - and yet they were indisputably speaking the truth - or was it that you could not make up your minds to decide whether or no the collection of a numerous body, the presence of arms and missiles, of an instant fear of death and a manifest danger of murder, in any way amounted to the use of force? What circumstances may be understood to amount to force, if not these? Or was it indeed that you were so greatly impressed by my opponent's defence - "I did not eject you; I withstood you; for I did not allow you to enter on the estate, but placed armed men in your way in order to convince you that if you did set foot on it, you must perish forthwith" ? What is this you say? A man who has been by force of arms frightened away, put to flight and driven off - has he not, in your opinion, been ejected ? [32] We will consider the appropriate expression later on; for the moment, let me take for granted the facts of the case which my opponents do not deny, and examine the law and procedure relevant to those facts.
The following fact is taken for granted and not denied by my opponents, that Caecina, arriving on the appointed day and at the appointed hour in order formally to submit to forcible ejection, was driven off and debarred from entry by force, by means of men collected together and armed. As this is agreed, I, unskilled as I am in the law and unversed in the business of litigation, consider that there is a legal process which enables me to maintain my rights and to deal with the injury you have done me by means of an injunction. Suppose that I am mistaken in this and that it is quite impossible for me to attain my ends by this injunction - I am anxious to be your pupil in this matter: [33] I ask you, is there any legal process available in my case or is there none? The collecting of men together because of a disputed ownership is not right: the arming of a mob in order to maintain a right is inexpedient : nothing is so inimical to private rights as force, nor anything so hostile to public justice as that men should be collected together and armed.
[12.] L This being so, and the case appearing preeminently one for cognisance by the magistrates, I ask again: ''Is there any legal process in my case or is there none? " "None," will you say? I am anxious to hear. Is one who has, in a time of peace and quiet, raised a band, levied a force, collected a crowd of men, armed them, drawn them up, and who, by force of arms, by numbers, by fear and by danger of death, has driven away, put to flight, and turned back unarmed men who had come by agreement for the purpose of going through a legal process - is such an one to say: [34] "I did indeed act in all respects as you describe, and such actions are both riotous, reckless, and dangerous. But what of that? I acted with impunity ; for law and equity alike ** give you no remedy against me" ? Does he indeed say that, gentlemen ? Will you listen to such a statement and suffer it to be made in your presence more than once ? Inasmuch as our forefathers displayed such care and foresight as to prescribe and secure every right that everyone possesses, not only in important cases like this, but even in the slightest matters, would they have failed to do so in this single and most important instance, with the result that I have a remedy against the man who compels me to leave my house, but no remedy against the man who prevents me from entering it? I am not yet arguing about my client's case, I am not yet speaking of our right to possession ; what I am objecting to now is your defence, Gaius Piso. ** [35] For your speech and your conclusion amount to this : that, if Caecina had been ejected from the farm when actually on it, in that case he would have had the right to restitution by means of this injunction ; but, as it is, he was in no sense "ejected" from a place in which he was not; and that we have gained nothing by this injunction : I ask you, then, what would you proceed to do if, on your return home to-day, you were prevented by men collected together and armed from entering not merely the door-way and the actual interior of your house but even the forecourt by which it is approached? My friend Lucius Calpurnius advises you to give the same answer as he once gave: "an action for assault." But what has that to do with possession or with restitution of the man who ought to be restored or, indeed, with either the civil code or the praetor's notice and cognisance ? ** Suppose you bring your action for assault: nay, I will grant you more than that, suppose you not only bring your action but win it, you will not be any nearer, will you, to possession? For an action for assault does not seek to establish a right to possession : it merely consoles a man for interference with his liberty by trying and punishing his assailant.
[13.] L [36] Will the praetor, Piso, have nothing to say meanwhile about so important a matter? Will he have no power to restore you to your house? Will the praetor, who spends his whole day either in securing that force shall not be used or in counteracting it if it has been, who issues his injunction in the matter of ditches and drains and trifling disputes over rights of water and of way - will he, I say, be suddenly struck dumb and be found without resource to meet so iniquitous a state of things? Will he be without the means to relieve Gaius Piso, according to usage and precedent, when debarred from entering his own house and home, debarred, I say, by means of men collected together and armed ? What terms will he employ, or what will you, in the face of so notable an injury, demand that he use? "Whencesoever you have been by force debarred" ? No such injunction has ever been issued: it is an innovation not merely unusual but unheard of. "Whence you have been ejected" ? How will that help you when your opponents will give you the same answer as you are now giving me, that they used arms to prevent you entering the house and no one can possibly be ejected from a place he never entered? [37] "I am ejected," you say, "if a member of my household is ejected." By all means. Now this is good pleading; for you are forsaking the wording and appealing to the spirit of the law. For if we choose to abide by the actual words, how is it I who are ejected when your servant is ejected ? But you are right - I am bound to consider you ejected even though you were not touched, am I not? Come now, suppose that not even one member of your household has been removed, but that all of them have been kept safely in the house, and that you alone have been debarred and frightened away from your house by force of arms, will you be en titled to employ either the same procedure which we are now employing, or a different one or none at all ? To say that no procedure is available in so signal and scandalous a case is consistent neither with your common sense nor with your position: if there be some other which I may have failed to notice, pray inform me what it is: I am anxious to learn. [38] But if it be this same procedure which we have employed, your own judgement gives us the verdict. For I have no fear of your saying that in identical cases the same injunction should restore you but not Caecina. Who indeed can fail to see that all men's goods, fortunes and tenures are reduced to insecurity if this injunction be in any respect lessened in scope or weakened in power; if the violence of armed men appear, on the authority of men like yourselves, to be sanctioned by a court of law, a court in which, as will be said, the question of arms was not disputed, discussion being confined to a question of words? Shall your verdict be given to the man who defends himself by saying, "I drove you back by armed men, I did not drive you out," giving the impression that so infamous a deed owed its immunity not to the equity of the defence but to a single letter ** in the law? [39] Shall your decision be that there is no legal process to meet this case, no right prescribed for raising the issue at law, when a man has been debarred by means of armed men, by the collecting together of a multitude, from effecting not merely an entry but even an approach ? [14.] L How now? What force has the contention that there is any sort or kind of difference between my being expelled and ejected after I have entered and taken possession by setting foot inside, and my being attacked by the same force and with the same arms before I do so, and thus prevented from entering, nay, even from beholding or approaching my objective? What difference is there between the two cases such as to enforce the restitution of a man who has been expelled after making entry but not to enforce that of a man who has been expelled as he was making entry? [40] In Heaven's name consider what decision you are minded to impose upon us, what a position upon yourselves, nay, what a law upon the Commonwealth! One process only has been framed to meet a case of this kind, that is, procedure by the injunction which we are now employing. If this process be non-effective or inapplicable to this case, then what negligence or what stupidity could be more gross than that of our forefathers, who either failed to frame any process to deal with so grave a matter or framed one such as to give wholly insufficient expression to the nature of the case or the principle of law involved? Dangerous as it is that this injunction should be annulled ; universal as is the peril if any set of facts be held to preclude the undoing by law of what has been done by arms; even so the greatest shame of all is this - that wise men should be found guilty of such folly as theirs must have been if you decide that no process at law to meet this case occurred to the minds of our forefathers.
[41] "We may, indeed, regret it," says Piso, " but none the less this injunction is not applicable to Aebutius." How so? ''Because force was not used upon Caecina." Can it be said in this case that where there were weapons, a multitude of men collected together, drawn up and stationed at definite positions under arms, where there was menace, peril and fear of death, there was no force ? "No one," he replies, " was either killed or wounded." What? When we are dealing with a dispute over possession, a private action at law, will you say that no force was used unless murder and killing took place? I remind you that great armies have often been routed and put to flight merely by the terror inspired by the enemy's onset without a man being killed or wounded.
[15.] L [42] In truth, gentlemen, force which touches our persons or our lives is not the only form of force : much more serious is the force which removes a man from a definite position or situation by exposing him to the danger of death and striking terror into his mind. Thus there are many cases of wounded men whose minds refuse to give way, though their bodies are weakened, and who do not abandon the position they are resolved to defend ; others, on the contrary, are driven back although unscathed ; which proves that a greater degree of force is brought to bear upon the man whose mind is terror-stricken than on the man whose body is wounded. [43] But if we say of armies which have been put to flight by the fear or sometimes by the vaguest suspicion of danger, that they have been driven back by force; if we have both seen and heard tell of great armies driven back, not by the weight of the enemy's shields nor the shock of impact, not by blows struck in close combat nor missiles hurled from a distance, but often enough just by the shouting of the foe, his battle-array and the sight of his standards, shall not that which is called "force" in war be called the same in peace? Shall that which is termed vigour in the conduct of a soldier be adjudged as mildness under citizen law? Shall not that which dislodges hosts arrayed in arms be held to have dislodged a concourse of citizens in the garb of peace ? Shall we consider a maimed body better evidence of force than a terror-stricken mind? Shall we go looking for wounds when the rout is an accepted fact? [44] For it was one of your own witnesses who stated that he pointed out a way of escape to my client's terror-stricken supporters. Shall it be held that no force was used on those who sought not merely to flee but to find a way by which to flee in safety? Why were they fleeing? Because they were afraid. Afraid of what? Obviously, of force. Can you then deny the cause when you admit the effect? You confess that they fled in terror; the reason for their flight you state to be what we all know it was - arms, a multitude, the furious onset of armed men. When this is an admitted fact, can it be denied that force was used ?
[16.] L [45] And yet this at any rate is a time-honoured principle, supported by the constant practice of our forefathers, that when there was a meeting for the exercise of force, the party which caught sight of armed men, however far away, might secure evidence of the fact and depart immediately, as being perfectly entitled to make a wager at law in the form beginning: "If no force has been used in contravention of the praetor's edict . . ." ** Is this so? Is it enough to be aware that armed men are present, in order to prove the use of force, but not enough to fall into their hands? Shall the sight of armed men constitute a proof of force and shall their furious onset constitute no proof? Shall it be easier for a man to prove that he was subjected to force if he walked away than if he ran away? [46] I go so far as to say that had Caecina immediately departed as soon as Aebutius told him at the castle that he had collected and armed his men and that if Caecina reached the property he would never leave it, you would have had no grounds for doubting that Caecina was subjected to force: still less doubt would you feel, had he withdrawn the moment he saw armed men in the distance. For anything constitutes force which, by the threat of danger, either compels us to leave or prevents us from reaching any place. Should you decide otherwise, beware lest your decision amount to this - that no force has been employed upon a man who goes away alive : beware lest you be directing all men engaged over a disputed right of possession to the conclusion that they must decide their quarrel by an armed conflict : beware lest the punishment meted out by generals to the cowardly in war find its counterpart in the courts, and the weaker case be theirs who have fled rather than theirs who have fought to the last. [47] When we are speaking of rights and disputes at law and in that connexion use the word "force," a very slight degree of force should be understood. I saw armed men, however few: this is an instance of great force. I was frightened away by a missile thrown by a single man : I was ejected and expelled. If you so decide, you will remove all future motive for resorting to battle over possession ; nay more, there will be no motive even for accepting battle. But if you understand by force nothing which is unaccompanied by slaughter, wounds and the shedding of blood, you will be deciding that men ought to think more of possession than of life itself.
[17.] L [48] Come now, Aebutius, you shall yourself pronounce judgement on the question of force. Answer me, if you please. Was Caecina in fact unwilling to enter on the estate or was he unable? In saying that you withstood my client and drove him back you admit that he had the will to enter on it. Can you, then, say that it was not force which hindered him, when he was debarred from entering by a gathering of men although he desired to enter and had come there with that intention ? For if he was absolutely unable to do what he was extremely anxious to do, then some force must inevitably have prevented him ; otherwise, pray tell me why, when he desired to enter, he did not do so.
[49] Nay, but you cannot deny that force was used : the question is how, since he failed to enter, he was "driven out." For if a man is to be driven out he must needs be removed and displaced. But how can he be, if he has never once been in the place out of which he claims to have been driven? Well, suppose he had actually been there and had fled in terror at the sight of armed men, would you say that he had been driven out? I think you would. Will you, then, who show such care and skill in settling disputes by the letter and not the spirit of the law, and who interpret laws in the light rather of their wording than of the general good - will you, I say, bring yourself to state that a man has been driven out without having been touched? Or will you say that he has been "thrust out" - for that was the word the praetors were formerly in the habit of using in this injunction? Well, can anyone be "thrust out" without being touched ? Surely if we mean to go by the words, we must understand that, for a man to be thrust out, hands must be laid on him. I repeat, it is impossible, if we wish to give the word its fair value, to hold that anyone has been thrust out, unless it be clear that he had been dislodged and driven headlong by personal application of force. [50] And how can anyone be literally "ejected" ** unless he has been removed from higher to lower ground ? He may be expelled, put to flight or evicted; but "ejected" he cannot be if he is not touched, or even if the ground is flat and level. What then? Do we imagine that this injunction was framed for the benefit of those who claimed to have been thrown headlong down from a height (for they it is who can rightly be styled "ejected") or shall we rather, since the intention, design and meaning of the injunction is clear to us, reckon it a piece of consummate impudence and of unparalleled stupidity to be concerned over a verbal error while abandoning, nay betraying, the facts of the case and the interests of the public ?
1.(↑) 'Recuperatores' or "recoverers" were originally persons nominated by the praetor peregrinus to settle informally disputes arising between citizens and non-citizens : their presence in this case is probably due to the fact that Caecina's claim to be a citizen was disputed. They were probably three in number.
2.(↑) See note on § 3.
3.(↑) The single word was spondeo, "I pledge myself."
4.(↑) See note on § 3.
5.(↑) Part of the praetor's duty was to decide whether an action should be heard, and when.
6.(↑) i.e. in the time of Sulla.
7.(↑) At such an auction the heir sold so much of the estate as was necessary to enable him to discharge the legacies subject to which he had inherited the whole estate ('universitas').
8.(↑) A colonnade ('basilikē') in the Forum, apparently a common resort of disreputable characters.
9.(↑) Literally, the board to which an announcement of the auction was affixed.
10.(↑) The banker kept a written record of the transactions and, at the conclusion of the sale, received and disbursed all payments due.
11.(↑) A testator's property was looked upon as a unit (as) divisible into twelfths (unciae) which were again subdivisible.
12.(↑) A formal way of denying liability.
13.(↑) 'Sponsio' was the earliest and therefore the most sacred method of making any agreement between citizens, of whatever nature. One party put a question to the other (beginning 'spondesne ?', do you pledge yourself ?) as to whether he undertook the obligation in question. The other replied 'spondeo', I do ; and the agreement was completed. At law, any case might be tried on a 'sponsio', which became a sort of wager. One party would "pledge himself" to pay a certain sum to his opponent if or unless ('sive nive', § 65) his side of the case were found to be true. This sum might be the actual penalty to the loser of the case or a mere formality. A sponsio was the proper procedure when, as in the present case, a man desired to deny his liability to an injunction. Aebutius would make a formal promise to pay a certain sum 'nisi restitisset . . .', "if he had not restored . . ."
14.(↑) The Phormio of Terence takes its name from its leading character, a parasite.
15.(↑) Falcula was supposed to have received 40,000 sesterces to vote Oppianicus "not guilty" and the people were reminded of this by his saying "nearly 50,000" ; his words could be taken as referring either to yards or to sesterces. See the Pro Cluentio, § 103, 104, and 113, where a different view of his character is given.
16.(↑) See the Pro Cluentio, § 74. There were 32 jurors, and the voting must have been 17 to 15 for conviction : had it been equal, the accused would have been given the benefit of the doubt.
17.(↑) Presumably Oppianicus, about whom he had a guilty conscience; see the Pro Cluentio.
18.(↑) The ius civile was based on statute law, available only as between citizens and administered by the praetor urbanus. The ius praetorium was based on custom and equity and was embodied for the benefit of non-citizens in the "perpetual edict" administered by successive provincial governors. Its greater readiness and adaptability caused it to be increasingly preferred even by citizens.
19.(↑) Counsel for Aebutius.
20.(↑) See note on § 34.
21.(↑) The difference between the letters 'r' and 'd'.
22.(↑) See note on § 23.
23.(↑) The point, which it seems impossible to bring out in English, lies in the derivation of the word "deiectus" from 'de' (down) and 'iectus' (thrown).
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