§41etenim, recuperatores, non damno commoventur magistratus ut in haec verba iudicium dent.
For indeed, recuperators, magistrates are not moved by damage to grant a trial in these words.
nam si id esset, nec recuperatores potius darent quam iudicem nec in universam familiam, sed in eum quicum nominatim ageretur, nec in quadruplum, sed in duplum, et ad '
"damnvm"
' adderetur '
"inivria.
For if that were the case, they would not grant recuperators rather than a single judge, nor against the whole household, but against the one with whom the suit was nominatim brought, nor for fourfold, but for double, and to 'damage' would be added 'unlawfully'.
"
' neque enim is qui hoc iudicium dedit, de ceteris damnis ab lege Aquilia recedit, in quibus nihil agitur nisi damnum, qua de re praetor animum debet advertere.
For neither does he who granted this trial depart from the Aquilian law concerning other damages, in which nothing is at issue except damage, a matter to which the praetor ought to turn his attention.
§42in hoc iudicio videtis agi de vi, videtis agi de hominibus armatis, videtis aedificiorum expugnationes, agri vastationes, hominum trucidationes, incendia, rapinas, sanguinem in iudicium venire, et miramini satis habuisse eos qui hoc iudicium dederunt id quaeri, utrum haec tam acerba, tam indigna, tam atrocia facta essent necne, non utrum iure facta an iniuria? non ergo praetores a lege Aquilia recesserunt, quae de damno est, sed de vi et armis severum iudicium constituerunt, nec ius et iniuriam quaeri nusquam putarunt oportere, sed eos qui armis quam iure agere maluissent de iure et iniuria disputare noluerunt.
In this trial you see that force is at issue, you see that armed men are at issue, you see that storming of buildings, devastation of fields, slaughter of men, arsons, rapines, and blood come into court, and do you wonder that those who granted this trial considered it sufficient to inquire whether these deeds, so bitter, so unworthy, so atrocious, had been done or not, rather than whether they had been done by right or unlawfully? Therefore, the praetors did not depart from the Aquilian law, which is about damage, but established a severe trial concerning force and arms; nor did they think that right and injustice ought to be inquired into nowhere, but they were unwilling that those who had preferred to act by arms rather than by right should dispute concerning right and injustice.
§43neque ideo de iniuria non addiderunt quod in aliis rebus non adderent, sed ne ipsi iudicarent posse homines servos iure arma capere et manum cogere, neque quod putarent, si additum esset, posse hoc talibus viris persuaderi non iniuria factum, sed ne quod tamen scutum dare in iudicio viderentur eis quos propter haec arma in iudicium vocavissent.
Nor did they fail to add concerning unlawful action for the reason that they would not add it in other matters, but lest they themselves should judge that slave men could by right take up arms and assemble a band, nor because they thought that, if it were added, such men as you could be persuaded that it was done not unlawfully, but lest they should seem to give any shield in court to those whom they had called into court on account of these arms.
§44fuit illud interdictum apud maiores nostros de vi quod hodie quoque est:
"Vnde tv avt familia avt procvrator tvvs illvm avt familiam avt procvratorem illivs in hoc anno vi deiecisti. "
deinde additur illius iam hoc causa quicum agitur:
"cvm ille possideret"
, et hoc amplius:
"qvod nec vi nec clam nec precario possideret. " §45multa dantur ei qui vi alterum detrusisse dicitur; quorum si unum quodlibet probare iudici potuerit, etiam si confessus erit se vi deiecisse, vincat necesse est vel non possedisse eum qui deiectus sit, vel vi ab se possedisse, vel clam, vel precario.
There was that interdict among our ancestors concerning force which also exists today: "Whence you or your household or your procurator have in this year by force driven him or his household or his procurator." Then this is added, now for the sake of him with whom the suit is brought: "when he was possessing", and this furthermore: "which he was possessing neither by force, nor secretly, nor by precarium." Many defenses are given to him who is said to have thrust out another by force; if he is able to prove any single one of these to the judge, even if he confesses that he drove him out by force, he must win: either that he who was driven out did not possess, or possessed by force from him, or secretly, or by precarium.
ei qui de vi confessus esset tot defensiones tamen ad causam obtinendam maiores reliquerunt.
To him who had confessed concerning force, the ancestors nevertheless left so many defenses for obtaining his case.
§46age illud alterum interdictum consideremus, quod item nunc est constitutum propter eandem iniquitatem temporum nimiamque hominum licentiam boni debent dicere.
Come, let us consider that other interdict, which likewise has now been established on account of the same injustice of the times and the excessive license of men—good men ought to say.
§47atque ille legem mihi de xii tabulis recitavit, quae permittit ut furem noctu liceat occidere et luce, si se telo defendat, et legem antiquam de legibus sacratis, quae iubeat inpune occidi eum qui tribunum pl. pulsaverit.
And he read out to me a law from the Twelve Tables, which permits that it be lawful to kill a thief by night, and by day if he defends himself with a weapon, and an ancient law from the sacred laws, which orders that he who strikes a tribune of the plebs be killed with impunity.
nihil, ut opinor, praeterea de legibus.
Nothing, as I think, besides concerning laws.
§48qua in re hoc primum quaero, quid ad hoc iudicium recitari istas leges pertinuerit.
In which matter I first ask this: what did it pertain to this trial that those laws were read out?
num quem tribunum pl.
Did the slaves of M.
servi M. Tulli pulsaverunt? non opinor.
Tullius strike any tribune of the plebs? I do not think so.
num furatum domum P. Fabi noctu venerunt? ne id quidem.
Did they come by night to steal from the house of P. Fabius? Not even that.
num luce furatum venerunt et se telo defenderunt? dici non potest.
Did they come by day to steal and defend themselves with a weapon? It cannot be said.
ergo istis legibus quas recitasti certe non potuit istius familia servos M. Tulli occidere.
Therefore, by those laws which you read out, that man's household certainly could not kill the slaves of M. Tullius.
§49'non,' inquit, 'ad eam rem recitavi, sed ut hoc intellegeres, non visum esse maioribus nostris tam indignum istuc nescio quid quam tu putas, hominem occidi. ' at primum istae ipsae leges quas recitas, ut mittam cetera, significant quam noluerint maiores nostri, nisi cum pernecesse esset, hominem occidi.
'No,' he says, 'I did not read them for that purpose, but so that you might understand this: that to kill a man did not seem to our ancestors to be so shameful a thing (whatever that is) as you think.' But first, those very laws which you read out, to pass over other things, indicate how unwilling our ancestors were that a man be killed, except when it was absolutely necessary.
ista lex sacrata est, quam rogarunt armati, ut inermes sine periculo possent esse.
That is a sacred law, which they proposed when armed, so that the unarmed might be without danger.
qua re non iniuria, quo magistratu munitae leges sunt, eius magistratus corpus legibus vallatum esse voluerunt.
Wherefore not without reason did they wish that the body of that magistrate, by whom the laws are protected, be protected by laws.