Pro M. Tullio

Formerly, O judges, I had determined to conduct this cause in a different manner, thinking that our adversaries would deny that their household was implicated in such a violent and atrocious murder. Accordingly, I came with a mind free from care and anxiety, because I was aware that I could easily prove that by witnesses. But now, when it has been confessed, not only by that most honourable man, Lucius Quinctius, but when Publius Fabius himself has not hesitated to admit the facts which are the subject of this trial, I come forward to plead this cause in quite a different manner from that in which I was originally prepared to argue it. For then my anxiety was to be able to prove what I asserted had been done. Now all my speech is to be directed to this point, to prevent our adversaries from being in a better position, merely because they have admitted what they could not possibly deny though they greatly wished to do so.

Therefore, as matters stood at first your decision was more difficult, but my defence was easy. For I originally rested my whole case on the evidence; now I rest it on the confession of my adversary; and to oppose his audacity in acts of violence, his impudence in a court of justice, may fairly be considered as the task of your power, not of my abilities.— For what is easier than to decide on the case of a man who confesses the fact? But it is difficult for me to speak with sufficient force of that which cannot be by language made out worse than it is in reality, and cannot be made more plain by my speech than it is by the confession of the parties actually concerned.

As, therefore, on account of the reasons which I have stated, my system of defence must be changed, I must also forget for a little time, in the case of Publius Fabius, that lenity of mine which I practiced at the previous trial, when I restrained myself from using any arguments which might have the appearance of attacking him, so much that I seemed to be defending his reputation with no less care than the cause of Marcus Tullius. Now, since Quinctius has thought it not foreign to the subject to introduce so many statements, false for the most part and most wickedly invented, concerning the life and habits and character of Marcus Tullius, Fabius must pardon me for many reasons, if I do not now appear to spare his character so much, or to show the same regard for it now as I did previously.

At the former trial I kept all my stings sheathed; but since, in that same previous trial, he thought it a part of his duty to show no forbearance whatever to his adversary, how ought I to act, I, a Tullius for another Tullius, a man kindred to me in disposition not less than in name? And it seems to me, O judges, that I have more need to feel anxious as to whether my conduct will be approved in having said nothing against him before, than blamed for the reply I now make to him.

But I both did at that time what I ought to have done, and I shall do now what I am forced to do. For when it was a dispute about money matters, because we said that Marcus Tullius had sustained damage, it appeared foreign to my character to say anything of the reputation of Quintus Fabius; not because the case did not open the door to such statements. What is my conduct then? Although the cause does require it, still, unless when he absolutely compels me against my will, I am not inclined to condescend to speak ill of him. Now that I am speaking under compulsion, if I say anything strong, still I will do even that with decency and moderation, and only in such a way that, as he could not consider me hostile to him at the former trial, so he may now know that I am a faithful and trustworthy friend to Marcus Tullius.

One thing, O Lucius Quinctius, I should wish to obtain from you, which, although I desire because it is useful for me, still I request of you because it is reasonable and just,—that you would regulate the time that you take to yourself for speaking, so as to leave the judges some time for coming to a decision. For the time before, there was no end to your speech in his defence; night alone set bounds to your oration. Now, if you please, do not do the same; this I beg of you. Nor do I beg it on this account, because I think it desirable for me that you should pass over some topics, or that you should fail to state them with sufficient elegance, and at sufficient length; but because I do think it enough for you to state each fact only once. And if you do that, I have no fear that the whole day will be taken up in talking.

The subject of this trial which comes before you, O judges, is, What is the pecuniary amount of the damage inflicted on Marcus Tullius by the malice of the household of Quintus Fabius, by men armed and banded together in a violent manner. Those damages we have taxed; the valuation is yours; the decision given is that the amends shall be fourfold.

As all laws and all legal proceedings which seem at all harsh and severe have originated in the dishonesty and injustice of wicked men, so this form of procedure also has been established within these few years on account of the evil habits and excessive licentiousness of men. For when many families were said to be wandering armed about the distant fields and pasture lands, and to be committing murders, and as that fact appeared to concern not merely the estates of individuals, but the main interests of the republic, Marcus Lucullus, who often presided as judge with the greatest equity and wisdom, first planned this tribunal, and had regard to this object, that all men should so restrain their households that they should not only not go about armed to inflict damage on any one, but, even if they were attacked, should defend themselves by law, rather than by arms;

and though he knew that the Aquilian law [*](The Lex Aquilia provided for the damages which any one was to pay to the owner, in the case of his having unlawfully killed any slave or quadruped. Actions under this law were limited to damage done by actual contact, though the subject of them was extended afterwards. Vide Smith, Dict. Ant. p. 313, in voc. Damni injuria Actio.)about damage existed, still he thought, that, as in the time of our ancestors both men's estates and their desires were less, and as their families, not being very numerous, were restrained by fear of important consequences, it very seldom happened that a man would be killed, and it was thought a nefarious and unprecedented atrocity; and therefore, that there was at that time no need of a system of judicial procedure with reference to bodies of men collected in a violent manner and armed; (for he thought that if any one established a law or a tribunal for matters which were not usual, he seemed not so much to forbid them as to put people in mind of them.)

In these times, when after a long civil war our manners had so far degenerated that men used arms with less scruple, he thought it necessary to establish a system of judicial procedure, with reference to the whole of a man's household, in the formula, “Which was said to have been done by the household,” and to assign judges,

in order that the matter might be decided as speedily as possible; and to affix a severe punishment, in order that audacity might be repressed by fear, and to take away that outlet, “Damage unjustly caused.”

That which in other causes ought to have weight, and which has weight by the Aquilian law, namely, that damage had been caused by armed slaves in a violent manner, ---

Men must decide themselves when they could lawfully take arms, collect a band, and put men to death. When an action was assigned, this alone was to be the point at issue, “whether it appeared that damage had been inflicted by the malice of the household, by men collected and armed acting in a violent manner,” and the word “unjustly” was not to be added; he thought that he had put an end to the audacity of wicked men when he had left them no hope of being able to make any defence.

Since, then, you have now heard what this judicial procedure is, and with what intention it was established, now listen, while I briefly explain to you the case itself, and its attendant circumstances.

Marcus Tullius had a farm, inherited from his father, in the territory of Thurium, O judges, which he was never sorry to have, till he got a neighbor who preferred extending the boundaries of his estate by arms, to defending them by law. For Publius Fabius lately purchased a farm of Caius Claudius, a senator,—a farm bordering on that of Marcus Tullius,—dear enough, for nearly half as much again (though in a wretched state of cultivation, and with all the buildings burnt down) as Claudius himself had given for it when it was in a good and highly ornamented condition, though he had paid an extravagant price for it. ---

I will add this also, which is very important to the matter. When the commander-in-chief died, though he wished to invest a sum of money, got I know not how, in a farm, he did not so invest it, but he squandered it. I do not very greatly wonder that, hampered as he was by his own folly, he wished to extricate himself how he could. But this I cannot marvel at sufficiently, this I am indignant at, that he strives to remedy his own folly at the expense of his neighbours, and that he endeavoured to pacify his own ill-temper by the injury of Tullius.

There is in that farm a field of two hundred acres, which is called the Popilian field, O judges, which had always belonged to Marcus Tullius, and which even his father had possessed. That new neighbour of his, full of wicked hope, and the more confident because Marcus Tullius was away, began to wish for this field, as it appeared to him to lie very conveniently for him, and to be a convenient addition to his own farm. And at first, because he repented of the whole business and of his purchase, he advertised the farm for sale. But he had had a partner in the purchase, Cnaeus Acerronius a most excellent man. He was at Rome, when on a sudden messengers came to Marcus Tullius from his villa, to say that Publius Fabius had advertised that neighbouring farm of his for sale, offering a much larger quantity of land than he and Cnaeus Acerronius had lately purchased.

He applies to the man. He, arrogantly enough, answers just what he chooses. And he had not yet pointed out the boundaries. Tullius sends letters to his agent and to his bailiff, to go to the procurator of Caius Claudius, in order that he might point out the boundaries to purchasers in their presence. But he --- refused to do this. He pointed out the boundaries to Acerronius while they were absent; but still he did not give them up this Popilian field. Acerronius excused himself from the whole business as well as he could, and as soon as he could; and he immediately revoked any agreement which he had with Fabius, (for he preferred losing his money to losing his character,)

and dissolved partnership with such a man, being only slightly scorched. Fabius in the meantime brings on the farm picked men of great courage and strength, and prepares arms such as were suitable and fit for each of them; so that any one might see that those men were equipped, not for any farming work, but for battle and murder.

In a short time they murdered two men of Quintus Catius Aemilianus, an honourable man, whom you all are acquainted with. They did many other things; they wandered about everywhere armed; they occupied all the fields and roads in an hostile manner, so that they seemed not obscurely but evidently to be aware of what business they were equipped for. In the meantime Tullius came to Thurium. Then that worthy father of a family, that noble Asiaticus, that new farmer and grazier, while he was walking in the farm, notices in this very Popilian field a moderate-sized building, and a slave of Marcus Tullius, named Philinus.

“What business have you,” says he, “in my field?” The slave answered modestly and sensibly, that his master was at the villa; that he could talk to him if he wanted anything. Fabius asks Acerronius (for he happened to be there at the time) to go with him to Tullius. They go. Tullius was at the villa. Fabius says that either he will bring an action against Tullius, or that Tullius must bring one against him. Tullius answers that he will bring one, and that he will exchange securities with Fabius at Rome. Fabius agrees to this condition. Presently he departs.