Pro M. Tullio

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?