In truth, O judges, the magistrates are not influenced by the extent or the damage, to assign a trial in this formula. For if it were the case, the magistrates would not give recuperators rather than a judex, We are not acquainted with the difference between the judex and the recuperatores. Vide Smith, Dict. Ant. p. 529, v. Judex in init. —not an action against the whole family, but against the one who was proceeded against by name; nor would the damages be estimated at fourfold, but at double; and to the word “damage” would be added the word “wrongfully.” Nor, indeed, does the magistrate who has assigned this trial depart from the provisions of the Aquilian law about other damage, in cases in which nothing is at issue except the damage. And to this point the praetor ought to turn his attention.

In this trial, you see the question is about violence; you see the question is about armed men; you see that the demolition of houses, the ravaging of lands, the murders of men, fire, plunder, and massacre are brought before the court. And do you wonder that those who assigned this trial thought it sufficient that it should be inquired whether these cruel, and scandalous, and atrocious actions had been done or not; not whether they had been done rightly or wrongfully? The praetors, then, have not departed from the Aquilian law which was passed about damage; but they appointed a very severe course of proceeding in the case of armed men acting with violence. Not that they thought that no inquiry was ever to be made as to the right or the wrong; but they did not think it fit that they who preferred to manage their business by arms rather than by law should argue the question of right and wrong.

Nor did they refuse to add the word “wrongfully” because they would not add it in other cases; but they did not think that it was possible for slaves to take arms and collect a band rightfully. Nor did they refuse because they thought, that if this addition were made, it would be possible to persuade such men as these judges that it had not been wrongfully done, but because they would not appear to put a shield in the hands of those men in a court of justice, whom they had summoned before the court for talking those arms which they did take.

The same prohibitory law about violence existed in the time of our ancestors which exists now. “From which you, or your household, or your agent have this year driven him, or his household, or his agent, by violence.” Then there is added, with reference to the man who is being proceeded against, “When he was the owner;” and this further addition also, “Of what he possessed, having acquired it neither by violence, nor secretly, nor as a present.”

The man who is said to have driven another away by violence has many pleas of defence allowed him, (and if he can prove any one of them to the satisfaction of the judge, then, even if he confesses that he drove him out by violence, he must gain his cause,) either that he who has been driven out was not the owner, or that he had got possession from him himself by violence, or by stealth, or as a present. Our ancestors left so many pleas of defence, by which he might gain his cause, even to the man who confessed himself guilty of violence.

Come, now, let us consider another prohibitory law, which has also been now established on account of the iniquity of the times, and the excessive licentiousness of men.

And he read me the law out of the Twelve Tables, which permits a man to kill a thief by night, and even by day if he defends himself with a weapon; and an ancient law out of the sacred laws, which allows any one to be put to death with impunity who has assaulted a tribune of the people. I imagine I need say no more about the laws.

And now I, for the first time in this affair, ask this question: —What connection the reading of these laws had with this trial? Had the slaves of Marcus Tullius assaulted any tribune of the people? I think not. Had they come by night to the house of Publius Fabius to steal? Not even that. Had they come by day to steal, and then had they defended themselves with a weapon? It cannot be affirmed. Therefore, according to those laws which you have read, certainly that man's household had no right to slay the slaves of Marcus Tullius.

“Oh,” says he, “I did not read it because of its bearing on that subject, but that you might understand this, that it did not appear to our ancestors to be anything so utterly intolerable for a man to be slain.” But, in the first place those very laws which you read, (to say nothing of other points,) prove how utterly our ancestors disapproved of any man being slain unless it was absolutely unavoidable. First of all, there is that holy law which armed men petitioned for, that unarmed men might be free from danger. Wherefore it was only reasonable for them to wish the person of that magistrate to be hedged round with the protection of the laws, by whom the laws themselves are protected.

The Twelve Tables forbid a thief— that is to say, a plunderer and a robber—to be slain by day, even when you catch him, a self-evident enemy, within your walls. “Unless he defends himself with a weapon,” says the law; not even if he has come with a weapon; unless he uses it, and resists; “you shall not kill him. If he resists, endoplorato,” that is to say, raise an outcry, that people may hear you and come to your aid. What can be added more to this merciful view of the case, when they did not allow that it might be lawful for a man to defend his own life in his own house without witnesses and umpires?

Who is there who ought more to be pardoned, (since you bring me back to the Twelve Tables,) than a man who without being aware of it kills another? No one, I think. For this is a silent law of humanity, that punishment for intentions, but not for fortune, may be exacted of a man. Still our ancestors did not pardon even this. For there is a law in the Twelve Tables, “If a weapon escapes from the hand”

If any one slays a thief, he slays him wrongfully. Why? Because there is no law established by which he may do so. What? suppose he defended himself with a weapon? Then he did not slay him wrongfully. Why so? Because there is a law

Still it would have been done by violence. Still in that very spot which belonged to you, you not only could not lawfully slay the slaves of Marcus Tullius, but even if you had demolished the house without his knowledge, or by violence, because he had built it in your land and defended his act on the ground of its being his, it would be decided to have been done by violence, or secretly. Now, do you yourself decide how true it is, that, when your household had no power to throw down a few tiles with impunity, he had power to commit an extensive massacre without violating the law. If, now that that building has been demolished, I myself were this day to prosecute him on the ground “that it was done by violence, or secretly,” you must inevitably either make restitution according to the sentence of an arbitrator, or you must be condemned in the amount of your security. Now, will you be able to make it seem reasonable to such men as these judges, that, though you had no power of your own right to demolish the building, because it was, as you maintain, on your land, you had power of your own right to slay the men who were in that edifice?

“But my slave is not to be found, who was seen with your slaves. But my cottage was burnt by your slaves.” What reply am I to make to this? I have proved that it was false. Still I will admit it. What comes next? Does it follow from this that the household of Marcus Tullius ought to be murdered? Scarcely, in truth, that they ought to be flogged, scarcely, that they ought to be severely reprimanded. But granting that you were ever so severe; the matter could be tried in the usual course of law, by an everyday sort of trial. What was the need of violence? what was the need of armed men, of slaughter, and of bloodshed?

“But perhaps they would have proceeded to attack me.” This, in their desperate case, is neither a speech nor a defence, but a mere guess, a sort of divination. Were they coming to attack him? Whom? Fabius. With what intention? To kill him. Why? to gain what? how did you find it out? And that I may set forth a plain case as briefly as possible, is it possible to doubt, O judges, which side seems to have been the attacking party?—

Those who came to the house, or those who remained in the house? Those who were slain, or those, of whose number not one man was wounded? Those who had no imaginable reason for acting so, or those who confess that they did act so? But suppose I were to believe that you were afraid of being attacked, who ever laid down such a principle as this, or who could have this granted him without extreme danger to the whole body of citizens, that he might lawfully kill a man, if he only said that he was afraid of being hereafter killed by him? [The rest of this oration is lost.]