1.
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.
[2]
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 1 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.
[3]
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.
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1 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.
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