Pro A. Caecina

Then they descend from the castle—they go to the farm. It seems to some to have been done rashly; but, as I think, this was the reason,—no one supposed that Aebutius would really behave as rashly as he had threatened. Accordingly Aebutius places armed men at every entrance by which people could pass, not only to that farm about which there was the dispute, but also to the next farm, about which there was no dispute at all. And therefore, at the first step, when he was about to enter on his ancient farm, because from that one he could come very near to the other, armed men in crowds opposed him.

Caecina being repulsed from that spot, still went as he could towards that farm, from which, according to their agreement, he was to be formally ejected by force. A row of olive-trees in a straight line marks the extreme boundary of that farm. When they came near them, Aebutius was there with all his forces, and he summoned his slave, by name Antiochus, to him, and with a loud voice ordered him to kill any one who entered within that line of olives. Caecina, a most prudent man in my opinion, appears nevertheless to have shown in this affair more courage than wisdom. For though he saw that multitude of armed men, and though he had heard that expression of Aebutius which I have mentioned, still he came nearer, and was entering, within the boundaries of that section which the olive-trees marked out, when he was put to flight by the assault of Antiochus in arms, and by the darts and onset of the rest. At the same time his friends and assistants all take to flight with him; being greatly alarmed, as you heard one of them state in his evidence.

When these things had been done in this manner, Publius Dolabella the praetor issued his interdict, as is the custom, “concerning violence, and armed men,” ordering, without any exception, that he should restore the property from which he had ejected Caecina. He said, that he had restored it. Securities were entered into to stand a trial. The cause is now before you for your decision. It was most especially desirable for Caecina, O judges, to have no dispute at all; and, in the next place, not to have one with so wicked a man; and, in the third place, if he had a dispute at all, not to have it with so foolish a man as this. For, in truth, his folly assists us almost as much as his wickedness injures us. He was wicked, inasmuch as he collected men, armed them, and, with them collected and armed, committed deeds of violence. In that he injured Caecina; but by the same conduct also he benefited him. For he took with him evidence of the very deeds which he did so wickedly, and that very evidence he brings forward in this case.

Therefore I have made up my mind, O judges, before I come to make my defence, and to summon my own witnesses, to make use of his confession and his witnesses. What is it that he confesses, and confesses so willingly, that he seems not only to admit it, but even to boast of it, O judges? “I summoned men; I collected them; I armed them; I prevented you from entering on the farm by fear of death, by threatening you with personal danger; by the sword,“ says he, “by the sword.” (And he says this in open court.) “I drove you away and routed you.” What more? What say the witnesses? Publius Vetilius, a relation of Aebutius, says that he was with Aebutius as his assistant, with several armed slaves. What more does he say?—That there were many armed men there. What more?—That Aebutius threatened Caecina. What shall I say of this witness, O judges, except this, that you must not believe him the less because he does not seem to be a thoroughly respectable man, but that you must believe him, because his evidence goes to establish the very facts that are most unfavourable to his cause?

Aulus Terentius, a second witness, convicts not only Aebutius, but himself also. He says this against Aebutius, that there were armed men; but concerning himself he makes this statement, that he ordered Antiochus, the slave of Aebutius, to attack Caecina with the sword if he came on the land. What more shall I say of this man? against whom, indeed, I did not wish to say anything, though I was begged by Caecina to do so, that I might not seem to accuse him of a capital crime; but now I am in doubt how to speak of him, or how to be silent about him; since he, on his oath, makes this statement about himself.

After them, Lucius Caelius not only stated that Aebutius was there with a large force of armed men, but also that Caecina had come thither with a very limited train. Shall I at all disparage this witness? I beg you to believe him as much as you believe my witnesses. Publius Memmius followed; who mentioned his having done a great kindness to the friends of Caecina, in giving them a passage through his brother's farm, by which they could escape, when they were all in a state of great alarm and consternation. I will here give my public thanks to this witness for having shown himself merciful in his conduct, and conscientious in giving his evidence.

Aulus Atilius and his son Lucius Atilius stated that there were armed men there, and that they also brought their slaves armed. They said this also; that when Aebutius was threatening Caecina, Caecina then and there required of him to let his ejection be accomplished in the regular form. Publius Rutilius stated the same thing, and he stated it the more willingly, in order to have credit attached to his evidence in a court of justice. Besides these, two more witnesses gave evidence, saying nothing about the violence, but speaking only of the original business and of the purchase of the farm. There was Publius Caesennius, the seller of the farm, a man with a body of greater weight than his character; and Sextus Clodius, a banker, whose surname is Phormio, a man no less black and no less presuming than that Phormio in Terence: neither of these said anything about violence, nor about anything else which had any reference to this trial.

But the tenth witness, the one who had been reserved for the last, a senator of the Roman people, the pride of his order, the flower and ornament of the courts of justice the model of ancient piety, Fidiculanius Falcula; gave his evidence also. But though he came forward so eagerly and violently that he not only attacked Caecina with his perjuries, but seemed to be angry with me also, I made him so tranquil and gentle that he did not dare, as you recollect, to say a second time even how many miles his farm was distant from the city. For when he had said that it was fifty-three miles [*](Some think that the number of miles here ought to be forty. In the trial of Cluentius, Cicero imputes to all the judges that they had been bribed with forty thousand sesterces; and of these judges Falcula was one, so that the laughter of the people must have been excited by a similarity of number between the sesterces and the miles.) off, the people cried out with a laugh, that that was exactly the distance. For all men recollected how much he had received on the trial of Albius.

What shall I say against him except that which he cannot deny?—that he came on the bench during a criminal trial, though he was not a member of that tribunal; and that, while sitting on that bench, though he had not heard a word of the cause, and though there was an opportunity of adjourning the decision, he still gave his sentence, “ that the case was proved;” that as he chose to decide without having inquired into the matter, he preferred condemning to acquitting; and that, inasmuch as, if there had been one damnatory vote fewer, the defendant could not have been condemned, he came forward, not so much for the purpose of investigating the case, as of insuring a conviction. Can anything worse be said against any man, than that he was induced by a bribe to condemn a man whom he had never seen nor even heard of? Or, can any allegation be made against a man on more certain grounds than one which even he, against whom it is made, cannot attempt to invalidate, not even by signs?

However that witness, (in order that you might easily understand that he was not present in mind while their case was being stated by that party, and while their witnesses were giving their evidence, but that he was thinking of some criminal,) though every witness before him had stated that there were many armed men with Aebutius, said, (though he stood alone in his statement,) that there were no armed men at all. At first, I thought that the cunning fellow was well aware of what the cause was in need of, and only made a mistake because he was contradicting all the witnesses who had spoken before him; when all of a sudden, according to his usual custom, he forgets his previous statement, and says that his slaves were the only armed men there. What can you do with such a man as this? Must you not grant to him sometimes to escape from the odium due to his excessive wickedness by the excuse of his prodigious stupidity?

Did you not, O judges, believe these witnesses when you considered the case not proved? But there was no question that they were speaking the truth. When there was a multitude collected together, and arms, and weapons, and instant fear of death, and visible danger of murder, was it doubtful to you whether there seemed to have been any violence committed, or not? In what circumstances can violence be possibly understood to exist, if it does not exist in these? Or did that defence of his seem to you a very sufficient one, “I did not drive you out, I opposed your entrance; I did not suffer you to come on the farm at all, but I opposed armed men to you, in order that you might understand that, if you set your foot on the farm, you would immediately perish?” What do you say? Does not the man who was terrified and put to flight, and driven away by force of arms, appear to have been turned out?

We will examine hereafter into the appropriate expression; at present let us prove the fact, which they do not deny, and let us inquire into the law of the case, and the proper method of proceeding by law under such circumstances. This fact is proved, which is not denied by the opposite party,—that Caecina, when he had come on the appointed day, and at the appointed time, in order that a formal and regular ejectment might take place, was driven away and prevented from entering by open violence, by men collected: together in arms. As this is proved, I, a man unskilled in law, ignorant of matters of business and of law-suits, think that I can proceed in this way, that I can obtain my rights and prosecute you for the injury I have sustained, by means of the interdict which I have obtained. Suppose that I am mistaken in this, and that I cannot possibly obtain what I wish by means of this interdict. In this affair I wish to take you for my master.

I ask whether there is any legal proceeding open to me in this ease, or whether there is not. It is not right for men to be summoned together on account of a dispute about possession; it is not right for a multitude to be armed for the sake of preserving a right; nor is there anything so contrary to law as violence; nor is there anything so irreconcilable with justice as men collected together and armed. And as the law is such, and the circumstances of the case such, that it appears above all others worthy of being brought under the notice of the magistrates, I ask again whether there is any legal proceeding open to me in this case, or whether there is not. Will you say that there is not? I wish to hear. Is a man, who in time of peace and tranquillity has collected a band, prepared his forces, got together a great number of men, armed them, equipped them,—who has repelled, put to flight and driven off, by arms, and armed men, and terror, and danger of death, unarmed men who had come at a time agreed upon to go through an ordinary legal form;—is such a man to say:

“Yes, indeed, I have done everything which you say; and my conduct was turbulent, and rash, and hazardous. What then; I did it all with impunity; for you have no means of proceeding against me by civil action before the praetor?” Is it so, O judges? Will you listen to this? and will you permit such a thing to be said before you more than once? When our ancestors were men of such diligence and prudence as to establish every requisite law, not only for such important cases as this, but for even the most trivial matters, and to prosecute all offences against them, will you allow that they overlooked this class of cases, the most important of all; so that, if people had compelled me to depart from my home by force of arms, I should have had a right of action, but as they only prevented me from entering my home, I have none? I am not yet arguing the particular case of Caecina, I am not yet speaking of our own particular right of possession. I am resting my complaint wholly on your defence, O Caius Piso.

Since you make this statement, and lay down this principle, “that, if Caecina, when he was actually in his farm, had been driven from it, then it would have been right for him to be restored by means of this interdict; but now he can by no means be said to have been from a place where he has not been; and, therefore, we have gained nothing by this interdict;” I ask you, if, this day, when you are returning home, men collected in a body, and armed, not only prevent you from crossing the threshold and from coming under the roof of your own house, but keep you off from approaching it— from even entering the court yard,—what will you do? My friend Lucius Calpurnius reminds you to say the same thing that he said before, namely that you would bring an action for the injury. But what has this to do with possession? What has this to do with restoring a man who ought to be restored? or with the civil law? --- I will grant you even more. I will allow you not only to bring your action, but also to succeed in it. Will you be any the more in possession of your property for that? For an action for injury done does not carry with it, even if successful, any right of possession; but merely makes up to a man for the loss he sustains through the diminution of his liberty, by the trial and penalty imposed upon the offender.

In the mean time, shall the praetor, O Piso, be silent in so important a matter? Shall he have no power to restore you to the possession of your own house? He who is occupied for whole days in repressing deeds of violence, and in ordering the restitution of what has been obtained by such deeds; he who issues interdicts about ditches, about sewers, in the most trifling disputes about water or roads, shall he on a sudden be struck dumb? Shall he in a most atrocious case have nothing which he can do? And when Caius Piso is prevented from entering his own house, from coming under his own roof—prevented, I say, by men collected in a body and armed,—shall the praetor have no power of assisting him according to established regulations and precedents? For what will he say? or what will you demand after having sustained such a notable injury? No one ever issued an interdict in the terms, “whether you were prevented by violence from coming.” That is a new form; I will not say an unusual one, but a form absolutely unheard of. ”Whence you were driven.” What will you gain by this, when they make you the same answer that they now make me; that armed men opposed you and prevented you from entering your house; moreover, that a man cannot possibly be driven out of a place, who has not entered into it?

I am driven out, say you, if any one of my slaves is driven out. Now you are right, for you are altering your language, and appealing, to justice. For if we choose to adhere to the words themselves, how are you driven out when your servant is driven out? But it is as you say—I ought to consider you yourself as driven out, even if you were never touched. Is it not so? Come now, suppose not even one of your slaves was driven from his place, if they were all kept and retained in the house; if you alone were prevented from entering, and frightened away from your house by violence and arms; will you in that case have this right of action which we have adopted, or some other form, or will you have no action at all? It neither becomes your prudence nor your character to say that, in so notable and so atrocious a case, there is no right of action. If there be any other kind of action which has escaped our notice, tell us what it is. I wish to learn.

If this be the proper form, which we have employed, then, if you are the judge, we must gain our cause. For I have no fear of your saying in the same cause, and with the same interdict, that you ought to be restored, but that Caecina ought not. In truth, who is there to whom it is not clear, that the property, and possessions, and fortunes of all men will be again brought back into a state of uncertainty if the effect of this interdict is made in any particular more obscure, or less vigorous? if, under the authority of such men as these judges, the violence of armed men should appear to be approved by a judicial decision? in a trial in which it can be said that there was no question at issue about arms, but that inquiry was only made into the language of the interdict. Shall that man gain his cause before your tribunal, who defends himself in this manner, “I drove you away with armed men, I did not drive you out,” so that the fact is not to depend on the equity of the defence, but on the correctness of a single expression?

Will you lay it down that there is no right of action in such a case as this? that there is no method established for inquiring who has opposed a person with armed men, who has collected a multitude, and so prevented a man not only from effecting an entrance, but even from all access to a property? What, then, shall we say? What force is there in this, or what difference is there between the cases?—whether, when I have got my foot within the boundaries, and taken possession as it were by planting a footstep on the ground, I am then expelled and driven out; or whether I am met with the same violence, and the same weapons, not only before I can enter on the land, but before I can see it, or breathe its atmosphere? What is the difference between one case and the other? Can there be such a difference, that he, who has expelled a man who has once entered, can be compelled to make restitution, but that he who has driven a person back when seeking to enter, cannot be compelled?

See, I entreat you in the name of the immortal gods, what a law you are proceeding to establish for us,—what a condition for yourselves, and what a code for the whole state. In injuries of this kind there is one form of proceeding established, the one which we have adopted, that by interdict. If that is of no avail, or has no reference to this matter, what can be imagined more careless or more stupid than our ancestors, who either omitted to institute any form of proceeding, in so atrocious a business, or else did institute one which fails to embrace in proper language either the fact, or the principle of law applicable to the case. It is a dangerous thing for this interdict to be dissolved. It is a perilous thing for all men, that there should be any case of such a nature that, when deeds of violence have been committed in it, the injustice should not be able to be repaired by law. But this is the most disgraceful thing of all, that most prudent men should be convicted of such egregious folly, as they would be if you were to decide that such a case as this, and such a form of legal proceeding as is requisite, never once occurred to the minds of our ancestors.