§27si ita iudicium daretur ut id concluderetur quod a familia factum esset, si quae familia ipsa in caede interesse noluisset et homines aut servos aut liberos coegisset aut conduxisset, totum hoc iudicium et praetoris severitas dissolveretur.
If the trial were so granted that what was done by the household was concluded, if any household itself had been unwilling to take part in the slaughter and had assembled or hired men, either slaves or free, this whole trial and the severity of the praetor would be dissolved.
nemo enim potest hoc iudicare, qua in re familia non interfuisset, in ea re eam ipsam familiam vi armatis hominibus damnum dedisse.
For no one can judge this, that in a matter in which a household had not taken part, that very household gave damage by force with armed men.
ergo, id quia poterat fieri et facile poterat, idcirco non satis habitum est quaeri quid familia ipsa fecisset, verum etiam illud, quid familiae dolo malo factum esset.
Therefore, because that could happen and could easily happen, for that reason it was not held sufficient to inquire what the household itself had done, but also this, what had been done by the malice of the household.
§28nam cum facit ipsa familia vim armatis coactisve hominibus et damnum cuipiam dat, id dolo malo fieri necesse est; cum autem rationem init ut ea fiat, familia ipsa non facit, fit autem dolo malo eius.
For when the household itself commits violence with armed or assembled men and gives damage to anyone, that must be done with malice; but when it enters into a plan so that it may be done, the household itself does not do it, but it is done by its malice.
ergo addito '
"dolo malo"
' actoris et petitoris fit causa copiosior.
Therefore, with the addition of "with malice", the cause of the actor and petitioner becomes more abundant.
Vtrum enim ostendere potest, sive eam ipsam familiam sibi damnum dedisse, sive consilio et opera eius familiae factum esse, vincat necesse est.
For whichever he can show, whether that that very household gave him damage, or that it was done by the plan and agency of that household, he must win.
§29videtis praetores per hos annos interdicere hoc modo, velut inter me et M. Claudium:
"Vnde dolo malo tvo, M. Tvlli, M. Clavdivs avt familia avt procvrator eivs vi detrvsvs est"
, cetera ex formula.
You see the praetors interdicting during these years in this manner, as for example between me and M. Claudius: "From where by your malice, M. Tullius, M. Claudius or his household or his agent was driven out by force", and the rest from the formula.
si, ubi ita interdictum est et sponsio facta, ego me ad iudicem sic defendam ut vi me deiecisse confitear, dolo malo negem, ecquis me audiat? non opinor equidem, quia, si vi deieci M. Claudium, dolo malo deieci; in vi enim dolus malus inest, et Claudio utrumvis satis est planum facere, vel se a me ipso vi deiectum esse vel me consilium inisse ut vi deiceretur.
If, when it has been so interdicted and a wager made, I should defend myself before the judge in such a way that I confess that I ejected him by force, but deny malice, would anyone listen to me? I indeed do not think so, because, if I ejected M. Claudius by force, I ejected him with malice; for in force malice is inherent, and it is sufficient for Claudius to make either of the two plain, whether that he himself was ejected by me by force, or that I entered into a plan so that he might be ejected by force.
§30plus igitur datur Claudio, cum ita interdicitur, unde dolo malo meo vi deiectus sit, quam si daretur, unde a me vi deiectus esset.
Therefore, more is given to Claudius when it is so interdicted, from where he was ejected by force by my malice, than if it were given, from where he was ejected by force by me.
nam in hoc posteriore, nisi ipse egomet deiecissem, vincerem sponsionem; in illo priore, ubi dolus malus additur, sive consilium inissem, sive ipse deiecissem, necesse erat te dolo malo meo vi deiectum iudicari.
For in this latter case, unless I myself had ejected him, I would win the wager; in that former case, where malice is added, whether I had entered into a plan, or had myself ejected him, it was necessary for it to be judged that you were ejected by force by my malice.
§31hoc persimile atque adeo plane idem est in hoc iudicio, recuperatores.
This is very similar and indeed clearly the same in this trial, recuperators.
quaero enim abs te, si ita iudicium datum esset:
"Qvantae pecvniae paret a familia P. Fabii vi hominibvs armatis damnvm M. Tvllio datvm"
, quid haberes quod diceres? nihil, opinor.
For I ask of you, if the trial had been so granted: "What amount of money it appears that damage was given to M. Tullius by the household of P. Fabius by force with armed men", what would you have to say? Nothing, I think.
fateris enim omnia et familiam P. Fabi fecisse et vi hominibus armatis fecisse.
For you confess all things, both that the household of P. Fabius did it and did it by force with armed men.
quod additum est '
"dolo malo"
,' id te adiuvare putas in quo opprimitur et excluditur omnis tua defensio?
Do you think that the addition "with malice" helps you, in which all your defense is oppressed and excluded?
§32nam si additum id non esset ac tibi libitum esset ita defendere, tuam familiam non fecisse, vinceres, si id probare potuisses.
For if that had not been added and it had pleased you to defend yourself in this way, that your household did not do it, you would win, if you could prove that.
nunc, sive illa defensione uti voluisses sive hac qua uteris, condemneris necesse est; nisi putamus eum in iudicium venire qui consilium inierit, illum qui fecerit non venire, cum consilium sine facto intellegi possit, factum sine consilio non possit.
Now, whether you had wished to use that defense or this one which you are using, you must be condemned; unless we think that he who entered into a plan comes into trial, but he who did it does not come, since a plan can be understood without a deed, but a deed cannot be understood without a plan.
an, quod factum eius modi est ut sine occulto consilio, sine nocte, sine vi, sine damno alterius, sine armis, sine caede, sine maleficio fieri non potuerit, id sine dolo malo factum iudicabitur? an, qua in re praetor illi improbam defensionem tolli voluit, in ea re mihi difficiliorem actionem factam putabitis?
Or, since the deed is of such a kind that it could not be done without a secret plan, without night, without force, without damage to another, without arms, without slaughter, without crime, will it be judged to have been done without malice? Or, in a matter in which the praetor wished a dishonest defense to be taken away from him, will you think that a more difficult action has been made for me?