by Marcus Tullius Cicero; translated by C. D. Yonge

“ 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. ”

“ For when many families were said to be wandering armed about the distant fields and pasture lands, and to be committing murders, and as that fact appeared to concern not merely the estates of individuals, but the main interests of the republic, Marcus Lucullus, who often presided as judge with the greatest equity and wisdom, first planned this tribunal, and had regard to this object, that all men should so restrain their households that they should not only not go about armed to inflict damage on any one, but, even if they were attacked, should defend themselves by law, rather than by arms ”

“ 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. ”

“ 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? 41In truth, O judges, the magistrates are not influenced by the extent or the damage, to assign a trial in this formula. ”

“ 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. 50The 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 ”

“ 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? ”

“ 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?—56Those 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 things which my witnesses do not state, because they have not seen them and do not know them, those things our adversary himself states. Our witnesses say that they saw the men lying dead; that they saw blood in many places; that they saw the building demolished. They say nothing further. What says Fabius? He denies none of these things. What then further does he add? 25He 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. ”

“ 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? ”

“ 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.
18 42In 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. ”

“ Fabius in the meantime brings on the farm picked men of great courage and strength, and prepares arms such as were suitable and fit for each of them; so that any one might see that those men were equipped, not for any farming work, but for battle and murder. ”

“ He was at Rome, when on a sudden messengers came to Marcus Tullius from his villa, to say that Publius Fabius had advertised that neighbouring farm of his for sale, offering a much larger quantity of land than he and Cnaeus Acerronius had lately purchased. 17He applies to the man. He, arrogantly enough, answers just what he chooses. ”

“ Fabius says that either he will bring an action against Tullius, or that Tullius must bring one against him. Tullius answers that he will bring one, and that he will exchange securities with Fabius at Rome. Fabius agrees to this condition. Presently he departs.
9 21The next night, when it was near day-break, the slaves of Publius Fabius come armed and in crowds to that house which I have already mentioned, which was in the Popilian field. They make themselves an entrance by force. They attack the slaves of Marcus Tullius, men of great value, unawares, which was very easy to do ”