Pro M. Tullio

The next night, when it was near day-break, the slaves of Publius Fabius come armed and in crowds to that house which I have already mentioned, which was in the Popilian field. They make themselves an entrance by force. They attack the slaves of Marcus Tullius, men of great value, unawares, which was very easy to do; and as these were few in number and offered no resistance, they, being a numerous body well armed and prepared, murdered them. And they behaved with such rancour and cruelty that they left them all with their throats cut, lest, if they left any one only half dead and still breathing, they should get the less credit. And besides this, they demolish the house and villa.

Philinus, whom I have already mentioned, and who had himself escaped from the massacre severely wounded, immediately reports this atrocious, this infamous, this unexpected attack to Marcus Tullius. Tullius immediately sends round to his friends, of whom in that neighbourhood he had a numerous and honourable body.

The matter appears scandalous and infamous to them all. ---

Listen, I entreat you, to the evidence of honest men touching those affairs which I am speaking of those things which my witnesses state, our adversary confesses that they state truly. Those things which my witnesses do not state, because they have not seen them and do not know them, those things our adversary himself states. Our witnesses say that they saw the men lying dead; that they saw blood in many places; that they saw the building demolished. They say nothing further. What says Fabius? He denies none of these things. What then further does he add?

He says that his own household of slaves did it. How? By men armed, with violence. With what intention? That that might be done which was done. What is that? That the men of Marcus Tullius might be slain. If, then, they contrived all these circumstances with this intention, so that men assembled in one place, and armed themselves, and then marched with fixed resolution to an appointed place, chose a suitable time, and committed a massacre,—if they intended all this and planned it, and effected it,—can you separate that intention, that design, and that act from malice?

But those words “with malice” are added in this form of procedure with reference to the man who does the deed, not to him to whom it is done. And that you may understand this, O judges, attend, I beg of you, carefully. And, in truth, you will not doubt that this is the case.

If the trial were assigned to proceed on this ground, that the fact to be proved was, “That it had been done by the household,” then if any household itself had been unwilling to appear personally in the slaughter, and had either compelled or hired the assistance of other men, whether slaves or free men, all this trial, and the severe justice of the praetor, would be at an end. For no one can decide that, if the household were not present at a transaction, in that transaction the household itself committed damage with men armed, in a violent manner. Therefore, because that could be done, and done easily too, on that account it was not thought sufficient for investigation to be made as to what the household itself had done, but as to this point also, “What had been done by the malice of the household.”

For when the household itself does anything, men being collected together and armed, in a violent manner, and inflicts damage on any one, that must be done by malice. But when it forms a plan to procure such a thing to be done, the household itself does not do it, but it is done by its malice. And so by the addition of the words “by malice” the cause of both plaintiff and defendant is made more comprehensive. For whichever point he can prove, whether that the household itself did him the damage, or that it was done by the contrivance and assistance of that household, he must gain his cause.

You see that the praetors in these last years have interposed between me and Marcus Claudius with the insertion of this clause,—“From which, O Marcus Tullius, Marcus Claudius, or his household, or his agent, was driven by violence.” find what follows is according to the formula in the terms in which the praetor's interdict ran, and in which the securities were drawn up. If I were to defend myself before a judge in this way,—to confess that I had driven men out by violence— to deny that there was malice in it,—who would listen to me? No one, I suppose; because, if I drove out Marcus Claudius by violence, I drove him out by malice; for malice is a necessary ingredient in violence; and it is sufficient for Claudius to prove either point,—either that he was driven out with violence by me myself, or that I contrived a plan to have him driven out with violence.

More, therefore, is granted to Claudius when the interdict runs thus, “from which he was driven by violence, by my malice,” than if it had merely said, “whence he was driven by me by violence.” For, in this latter case, unless I had myself driven him out, I should gain my cause. In the former case, when the word “malice” is added, whether I had merely originated the design, or had myself driven him out, it is inevitable that it should be decided that he had been violently driven out by me with malice.

The case in this trial, O judges, is exactly like this, and, indeed, identical with it. For I ask of you, O Quinctius, if the point in question were, “What appeared to be the pecuniary amount of the damage done by the household of Publius Fabius, by armed men, to Marcus Tullius,” what would you have to say? Nothing, I suppose; for you confess everything, both that the household of Publius Fabius did this, and that they did it violently with armed men. As to the addition, “with malice,” do you think that that avails you, that by which all your defence is cut off and excluded?

for, if that addition had not been made, and if you had chosen to urge, in your defence, that your household had not done this, you would have gained your cause if you had been able to prove this. Now, whether you had chosen to use that defence, or this one which you are using, you must inevitably be convicted; unless we think that a man is brought before the court who has formed a plan, but that one who has actually done an action is not; since a design may be supposed to exist without any act being done, but an act cannot exist without a design. Or, because the act is such that it could not be done without a secret design, without the aid of the darkness of night, without violence, without injury to another, without arms, without murder, without wickedness, is it on that account to be decided to have been done without malice? Or, will you suppose that the pleading has been rendered more difficult for me in the very case in which the praetor intended that a scandalous plea in defence should be taken from him?

Here, now, they do seem to me to be men of very extraordinary talent, when they seize themselves on the very thing which was granted to me to be used against them; when they use rocks and reefs as a harbour and an anchorage. For they wish the word “malice” to be kept in the shade; by which they would be caught and detected, not only since they have done the things themselves which they admit having done, but even if they had done them by the agency of others.

I say that malice exists not in one action alone, (which would be enough for me,) nor in the whole case, only, (which would also be enough for me,) but separately in every single item of the whole business. They form a plan for coming, upon the slaves of Marcus Tullius: they do that with malice. They take arms: they do that with malice. They choose a time suitable for laying an ambush and for concealing their design: they do that with malice. They break open the house with violence: in the violence itself there is malice. They murder men, they demolish buildings: it is not possible for a man to be murdered intentionally, or for damage to be done to another intentionally, without malice. Therefore, if every part of the business is such that the malice is inherent in each separate part, will you decide that the entire business and the whole transaction is untainted with malice?

What will Quinctius say to this? Surely he has nothing to say, no one point, I will not say on which he is able to stand, but on which he even imagines that he is able. For, first of all, he advanced this argument, that nothing can be done by the malice of a household. By this topic he was tending not merely to defend Fabius, but to put an end utterly to all judicial proceedings of this sort. For if that is brought before the court with reference to a household, which a household is absolutely incapacitated from doing, there is evidently no trial at all; all must inevitably be acquitted for the same reason.

If this were the only case, (it would be well, indeed, if it were,) but if it were, the only case, still you, O judges, being such as you are, ought to be unwilling that an affair of the greatest importance, affecting not only the welfare of the entire republic but also the fortunes of individuals—that a most dignified tribunal, one established with the greatest deliberation, and for the weightiest reasons, should appear to be put an end to by you. But this is not the only thing at stake. --- the decision in this case is waited for with so much anxiety as shows that it is expected to rule not one case only, but all cases. --- Shall I say that violence was done by the household of Publius Fabius? Our adversaries do not deny it. That damage was done to Marcus Tullius? You grant that—I have carried one point. That this violence was done by armed men? You do not deny that—I have carried a second point. You deny that it was done with malice; on this point we join issue. --- Nor, indeed, do I see any need of looking for arguments by which that trivial and insignificant defence of his may be refuted and done away with.

And yet I must speak to the statements which Quinctius has made; not that they have anything to do with the matter, but that it may not be thought that anything has been granted by me, merely because it has been overlooked.

You say that inquiry ought to be instituted whether the men of Marcus Tullius were slain wrongfully or no. This is the first inquiry that I make about the matter,—whether that matter has come before the court or not. If it has not come, why then need we say anything about it, or why need they ask any questions about it? But if it has, what was your object in making such a long speech to the praetor, to beg him to add to the formula the word “wrongfully,” and because you had not succeeded, to appeal to the tribunes of the people, and here before the court to complain of the injustice of the praetor because he did not add the word “wrongfully.”

When you were requesting this of the praetor,—when you were appealing to the tribunes, you said that you ought to have an opportunity given to you of persuading the judges, if you could, that damage had not been done to Marcus Tullius wrongfully. Though, therefore, you wish that to be added to the formula of the trial, in order to be allowed to speak to that point before the judges; though it was not added, do you nevertheless speak to it as if you had gained the very thing which was refused to you?

But the same words which Metellus used in making his decree, the others, whom you appealed to, likewise used. Was not this the language of them all,—that although that which a household was said to have done by means of men armed and collected in a violent manner, could not possibly be done rightly, still they would add nothing, And they ware right, O judges. For if, when there is a refuge open to them, still slaves commit these wickednesses with the greatest audacity, and masters avow them with the greatest shamelessness, what do you think would be the case if the praetor were to decide that it is possible that such murders should be committed lawfully? Does it make any difference whether the magistrates establish a defence for a crime, or give people power and liberty to commit crime?