In truth, O judges, the magistrates are not influenced by the extent or the damage, to assign a trial in this formula. For if it were the case, the magistrates would not give recuperators rather than a judex, We are not acquainted with the difference between the judex and the recuperatores. Vide Smith, Dict. Ant. p. 529, v. Judex in init. —not an action against the whole family, but against the one who was proceeded against by name; nor would the damages be estimated at fourfold, but at double; and to the word “damage” would be added the word “wrongfully.” Nor, indeed, does the magistrate who has assigned this trial depart from the provisions of the Aquilian law about other damage, in cases in which nothing is at issue except the damage. And to this point the praetor ought to turn his attention.

In this trial, you see the question is about violence; you see the question is about armed men; you see that the demolition of houses, the ravaging of lands, the murders of men, fire, plunder, and massacre are brought before the court. And do you wonder that those who assigned this trial thought it sufficient that it should be inquired whether these cruel, and scandalous, and atrocious actions had been done or not; not whether they had been done rightly or wrongfully? The praetors, then, have not departed from the Aquilian law which was passed about damage; but they appointed a very severe course of proceeding in the case of armed men acting with violence. Not that they thought that no inquiry was ever to be made as to the right or the wrong; but they did not think it fit that they who preferred to manage their business by arms rather than by law should argue the question of right and wrong.

Nor did they refuse to add the word “wrongfully” because they would not add it in other cases; but they did not think that it was possible for slaves to take arms and collect a band rightfully. Nor did they refuse because they thought, that if this addition were made, it would be possible to persuade such men as these judges that it had not been wrongfully done, but because they would not appear to put a shield in the hands of those men in a court of justice, whom they had summoned before the court for talking those arms which they did take.

The same prohibitory law about violence existed in the time of our ancestors which exists now. “From which you, or your household, or your agent have this year driven him, or his household, or his agent, by violence.” Then there is added, with reference to the man who is being proceeded against, “When he was the owner;” and this further addition also, “Of what he possessed, having acquired it neither by violence, nor secretly, nor as a present.”

The man who is said to have driven another away by violence has many pleas of defence allowed him, (and if he can prove any one of them to the satisfaction of the judge, then, even if he confesses that he drove him out by violence, he must gain his cause,) either that he who has been driven out was not the owner, or that he had got possession from him himself by violence, or by stealth, or as a present. Our ancestors left so many pleas of defence, by which he might gain his cause, even to the man who confessed himself guilty of violence.

Come, now, let us consider another prohibitory law, which has also been now established on account of the iniquity of the times, and the excessive licentiousness of men.

And he read me the law out of the Twelve Tables, which permits a man to kill a thief by night, and even by day if he defends himself with a weapon; and an ancient law out of the sacred laws, which allows any one to be put to death with impunity who has assaulted a tribune of the people. I imagine I need say no more about the laws.

And now I, for the first time in this affair, ask this question: —What connection the reading of these laws had with this trial? Had the slaves of Marcus Tullius assaulted any tribune of the people? I think not. Had they come by night to the house of Publius Fabius to steal? Not even that. Had they come by day to steal, and then had they defended themselves with a weapon? It cannot be affirmed. Therefore, according to those laws which you have read, certainly that man's household had no right to slay the slaves of Marcus Tullius.