Pro A. Caecina

If shameless impudence had as much power in the forum and in the courts of law, as audacity has in the country and in desolate places, then Aulus Caecina would now, in this trial, yield to the impudence of Sextus Aebutius as much as he has already yielded to his audacity in committing deeds of violence. But he thought that it became a considerate man not to contend in arms about a matter which ought to be decided by law; and he thought that it became an honest man, to defeat by law and judicial proceedings the man with whom he had declined contending in arms and violence.

And Aebutius appears to me to have been most especially audacious in assembling and arming men, and most especially impudent in his legal measures. Not only in that he has dared to come before the court, (for that, although it is a scandalous thing to do in a clear case, still is an ordinary course for wicked and artful men to adopt,) but because he has not hesitated to avow the very act which he is accused of; unless, perhaps, his idea was this,—if ordinary [*](The usual course on claiming possession of disputed property was for the claimant to present himself with his friends in the land, and then to be driven off by the occupant. This violence was vis moribus facta. On this the claimant appealed to the praetor. But Aebutius had driven Caecina off with armed men, and had used unnecessary and actual violence. This was vis contra jus moremque.) violence according to precedent had been used, he would not have had any superior right of possession; but as the violence was committed in a way contrary to all law and precedent, Aulus Caecina fled in alarm with his friends. And so in this count, if he defends his cause according to the custom and established principles of all men, he thinks that we shall not be his inferiors in managing our case; but if he departs from all usage, the more impudently he conducts himself, the more likely to succeed shall he be: as if dishonesty had as much influence in a court of justice as confidence in a scene of violence, or as if we had not yielded at that time the more willingly to his audacity, in order now with the greater ease to resist his impudence.

Therefore, O judges, I come now to plead the cause in this trial on a very different plan from the one I adopted at first. For then the hope of our cause depended on the arguments I could use in our defence; now it rests on the confession of our adversary;—then I relied on our witnesses; now I rely on theirs. And about them I was formerly anxious, lest, if they were wicked men, they should speak falsely,—lest, if they were thought honest men, they should establish their case; now I am very much at ease on the subject. For, if they are good men, they assist me by saying that on their oaths, which I, not being on my oath, am urging in accusation. But if they are not so respectable, they do me no injury, since, if they are believed, then the very facts which we urge in accusation are believed; and if credit be not given to them, then credit is refused to the witnesses of our adversary.

But when I consider the way in which they are conducting their case, I do not see what more impudent thing can be said; when I consider your hesitation in airing your decision, I am afraid that what they seem to have been doing shamelessly, may have been done cunningly and wisely; for if they had denied that violence had been committed by armed men, they would easily have been convicted in a plain case by most unimpeachable witnesses: if they had confessed it, and defended a deed which can never be rightfully done, as having been done by them at that time legally, they hoped— what, indeed, they gained—that they should give you cause to deliberate, and inspire you with proper hesitation and scrupulousness in deciding: and also, though that is a most scandalous thing, they thought that the trial in this case would appear to be not about the dishonesty of Sextus Aebutius, but about the civil law.

And in this case, if I had to plead the cause of Aulus Caecina alone, I should profess myself a sufficiently capable defender of it, because I had behaved with the greatest good faith and diligence; and when these qualities are found in an advocate, there is no reason, especially in a plain and simple matter, for requiring any extraordinary ability. But as I have now to speak of those rights which concern all men,—which were established by our ancestors, and have been preserved to this time; while, if they were taken away, not only would some part of our rights be diminished, but also that violence, which is the greatest enemy to law, would seem to be strengthened by that decision,—I see that the cause is one requiring the greatest abilities, not in order to demonstrate what is before men's eyes, but to prevent (if any mistake is made by you in so important a matter) every one from thinking that I have been wanting to the cause, rather than that you have to your religious obligations.

Although I am persuaded, O judges, that you have not now doubted about the same cause twice, on account of the obscure and uncertain state of the law, so much as because this trial appears to affect that man's personal character; and on that account you have delayed condemning him, and have also given him time to recollect himself. And since that custom has now become a usual one, and since good men,— men like yourselves.—do the same when sitting as judges, it is, perhaps, less blamable. But still it appears a thing to be complained of, because all judicial proceedings have been devised either for the sake of putting an end to disputes, or of punishing crimes, of which the first is the least important object, because it is less severe on individuals, and because it is often terminated by some friendly mediator. The other is most formidable, because it relates to more important matters, and requires not the honorary assistance of some friend, but the severity and vigour of a judge.

That which was the more important, and on account of which judicial proceedings were most especially instituted, has been long abolished by evil customs. For the more disgraceful a thing is, the more severely and the more promptly ought it to be punished; and yet those things which involve danger to a man's character are the slowest to be punished. How, then, can it be right that the same cause which prompted the institution of legal proceedings, should also cause the delay that exists in coming to a decision? If any one, when he has given security,—when he has bound himself by one word, does not do what he has rendered himself liable to do, then he is condemned by the natural course of justice without any appeal to the severity of the judge. If a man, as a guardian, or as a partner, or as a person in a place of trust, or as any one's agent, has cheated any one, the greater his offence is, the slower is his punishment.

“Yes, for the sentence is a sentence of infamy.” “Yes, if it arises from an infamous action.” See, then, how iniquitously it happens, that because an action is infamous, therefore a discreditable reputation should attach to it, but that a scandalous action is not to be punished, because, if it were, it would involve a loss of reputation. It is just as if any judex or recuperator were to say to me, “Why, you might have tried it in an inferior court,—you might have obtained your rights by an easier and more convenient process; therefore, either change your form of action, or else do not press me to give my decision.” And yet he would appear more timid than a bold judge ought to appear, or more covetous than it is right for a wise judge to be, if he were either to prescribe to me how I should follow up my own rights, or if he were to be afraid himself to give his decision in a matter which was brought before him. In truth, if the praetor, who allows the trials to proceed, never prescribes to a claimant what form of action he wishes him to adopt, consider how scandalous a thing it must be, when the matter is so far settled, for a judge to ask what might have been done, or what can be done now, and not what has been done.

However, in this case we should be complying too much with your good nature if we were willing to recover our rights by any process different from that which we are adopting. For now, what man is there who thinks that violence offered by armed men ought to be passed over; or who can show us a more moderate way of proceeding in so atrocious a case? In the case, of offences of such a nature, that, as they keep crying out, criminal trials and capital trials have been established on their account, can you find fault with our severity when you see that we have done nothing more than claim possession of our property by virtue of the praetor's interdict. But whether you have as yet had your reputation endangered, or whether the doubts about the law have hitherto made the judges slow in giving their decision; the former reason you yourselves have already removed, by the frequent adjournments of the trial; the other I will myself this day take away, that you may not hesitate any longer about our disputing about the common law.

And if I shall appear to go rather further back in tracing the origin of the business than either the state of the law which is involved in this trial, or the nature of the case compels me to, I beseech you to pardon me; for Aulus Caecina is not less anxious to appear to have acted according to the strictest law, than he is to obtain what by strict law is his due. There was a man named Marcus Fulcinius, O judges, of the municipality of Tarquinii; who, in his own city, was reckoned one of the most honourable men, and also had a splendid business at Rome as a banker. He was married to Caesennia, a woman of the same municipality, a woman of the highest rank and most unimpeachable character, as he both showed while he was alive by many circumstances, and declared also by his will at his death.

To this Caesennia he had sold a farm in the district of Tarquinii, at a time of great commercial embarrassment; for as he was employing the dowry of his wife, which he had received in ready money, he took care, in order that she, being a woman, might have abundant security, to charge her dowry on that farm. Some time afterwards, having given up his banking business, Fulcinius buys some lands which are contiguous, and adjacent to this farm of his wife's. Fulcinius dies; (for I will pass over many circumstances of the case, because they are unconnected with the subject of this action;) in his will he makes his son, whom he had by Caesennia, his heir; he bequeaths Caesennia a life interest in all his property, which she is to enjoy with his son.

The great honour paid her by her husband would have been very agreeable to the woman, if she had been allowed to enjoy it long; for she would have been enjoying her property in common with him whom she wished to be the heir of her property, and from whom she herself was receiving the greatest enjoyment of which she was capable. But or this enjoyment she was prematurely deprived by the act of God; for in a short time the young man, Marcus Fulcinius, died; he left Publius Caesennius his heir; he bequeathed to his wife an immense sum of money, and to his mother the greater part of his landed property; and, accordingly, the women divided the inheritance.

When the auction of the inheritance was appointed to take place, Aebutius, who had long been supported by Caesennia though a widowed and solitary woman, and who had insinuated himself into her confidence by the system of undertaking (not without some profit to himself) all the business which the woman had to transact, and all her disputes —was employed at that time also in this transaction of selling and dividing the property. And he always pushed and thrust himself in in such a way as to make Caesennia of opinion, that she, being a woman unskilled in business, could not get on well in any matter in which Aebutius was not concerned.

The character that you know, from daily experience, O judges, belongs to a flatterer of women, all agent of widows, an over-litigious defender, eager for strife, ignorant and stupid among men, but a shrewd and clever lawyer among women; this was the character of Aebutius. For all this was Aebutius to Caesennia. In case you should ask, is he any relation? no one could be more entirely unconnected with her—Was he a friend, recommended to her by her father or her husband? Nothing of the sort. Who then was he? He was such a man as I have just been depicting— a voluntary friend of the woman, united with her, not by any relationship, but by a pretended officiousness, and a deceitful eagerness in her behalf; by an occasional assistance, seasonable rather than faithful.

When, as I had begun to say, the auction was fixed to take place at Rome, the friends and relations of Caesennia advised her—as, indeed, had occurred to her of her own accord,—that, since she had an opportunity of buying that farm of Fulcinius's which was contiguous to her own ancient property, there would be no wisdom in letting such an opportunity slip, especially as money was owing to her from the division of the inheritance, which could never be invested better. Therefore the woman determines to do so; she gives a commission to buy the farm—to whom? to whom do you suppose? Does it not at once occur to every one that this was the natural business of the man who was ready to transact all the woman's business, of the man without whom nothing could be done with proper skill and wisdom? You are quite right—the business is entrusted to Aebutius.

Aebutius is present at the sale—he bids—many purchasers are deterred, some from goodwill to Caesennia, some by the price—the farm is knocked down to Aebutius; Aebutius promises the money to the banker, which piece of evidence that excellent man is using now to prove that the purchase was made for himself. As if we either denied that it had been knocked down to him, or as if there were at the time any one who doubted that it had been bought for Caesennia, when most men actually knew, nearly all had heard, and when even these judges might conjecture, that, as money was due to Caesennia from that inheritance, it was exceedingly advantageous for her that it should be invested in farms; and since those farms which were especially desirable for the woman were being sold, and since he was bidding whom no one wondered to see acting for Caesennia, no one could possibly suspect was buying them for himself.

When this purchase had been made, the money was paid by Caesennia; and of this that man thinks that no account can be produced, because he himself has detained her account-books, and because he has the account-books of the banker in which the money is entered as having been paid by him, and credit is given to him for it, as having been received from him; as if it could have been properly done in any other manner. When everything had been settled in thus way, as we are now stating in this defence of ours, Caesennia took possession of the farm and let it; and not long afterwards she married Aulus Caecina. To cut the matter short, the woman died having made a will. She makes Caecina her heir to the extent of twenty-three twenty-fourths of her fortune; of the remaining twenty-fourth she leaves two-thirds to Marcus Fulcinius, a freedman of her first husband, and one-third she leaves to Aebutius. This seventy-second part of her property she meant to be a reward to him for the interest he had taken in her affairs, and for any trouble that they might have caused him. But he thinks that he can make this small fraction a handle for disputing the whole.

In the first place he ventured to say that Caecina could not be the heir of Caesennia, because he had not the same rights as the rest of the citizens, on account of the disasters and civil calamities of the Volaterrans. Did he, therefore, like a timid and ignorant man, who had neither courage enough, nor wisdom enough, not think it worth while to enter on a doubtful contest about his rights as a citizen? did he yield to Aebutius, and allow him to retain as much as he pleased of the property of Caesennia? No; he, as became a brave and wise man, put down and crushed the folly and calumny of his adversary.

As he was in possession of the estate, and as Aebutius was exaggerating his seventy-second share unduly, Caecina, as heir, demanded an arbitrator, for the purpose of dividing the inheritance. And in a few days, when Aebutius saw that he could not pare anything off from Caecina's property by the terror of a law-suit, he gives him notice, in the forum at Rome, that that farm which I have already mentioned, and of which I have shown that he had become the purchaser on Caesennia's commission, was his own, and that he had bought it for himself What are you saying? you will say to me;—does that farm belong to Aebutius which Caesennia had possession of without the least dispute for four years, that is to say, ever since the farm was sold, as long as she lived? Yes, for the life-interest in that farm, and its produce, belonged to Caesennia, by the will of her husband.

As he was thus artfully planning this singular kind of action, Caecina determined, by the advice of his friends, to fix a day on which he would go to offer to take possession, and be formally driven off the farm. They confer on the subject; a day is agreed on to suit the convenience of both parties; Caecina, with his friends, comes on the appointed day to the castle of Axia, from which place the farm which is now in question is not far distant. There he is informed by many people that Aebutius has collected and armed a great number of men, both free-men and slaves. While some marvelled at this, and some did not believe it, lo! Aebutius himself comes to the castle. He gives notice to Caecina that he has armed men with him, and that, if he comes on the property, he shall never go away again. Caecina and his friends agreed that it was best to try how far they could proceed without personal danger.