Pro M. Tullio

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?