1If 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. 2And 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[2] 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. 3Therefore, 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.
4But 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. 5And 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.
6Although 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. 7That 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. 8“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. 9However, 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. 10And 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. 1112