§50Furem, hoc est praedonem et latronem, luce occidi vetant xii tabulae; cum intra parietes tuos hostem certissimum teneas, nisi se telo defendit, inquit, etiam si cum telo venerit, nisi utetur telo eo ac repugnabit, non occides; quod si repugnat, '
"endoplorato"
,' hoc est conclamato, ut aliqui audiant et conveniant. quid ad hanc clementiam addi potest, qui ne hoc quidem permiserint, ut domi suae caput suum sine testibus et arbitris ferro defendere liceret?
The Twelve Tables forbid a thief, that is a robber and bandit, to be killed by day; although you hold a most certain enemy within your walls, "unless he defends himself with a weapon," it says, "even if he came with a weapon, unless he uses that weapon and fights back, you shall not kill him; but if he fights back, '"cry out"', that is, call out aloud, so that some people may hear and gather." What can be added to this mercy, of those who did not even permit this, that one should be allowed to defend one's own life with iron at one's own home without witnesses and arbiters?
§51quis est cui magis ignosci conveniat, quoniam me ad xii tabulas revocas, quam si quis quem imprudens occiderit? nemo, opinor.
Since you recall me to the Twelve Tables, let me ask: who is there whom it is more fitting to pardon than one who kills another unintentionally? No one, I think.
haec enim tacita lex est humanitatis ut ab homine consili, non fortunae poena repetatur.
For this is the silent law of humanity, that punishment should be exacted from a person for design, not for fortune.
tamen huiusce rei veniam maiores non dederunt.
Yet our ancestors did not grant pardon for this very thing.
nam lex est in xii tabulis:
"si telvm manv fvgit ma gis qvam iecit" §52si qui furem occiderit, iniuria occiderit.
For there is a law in the Twelve Tables: '"If a weapon flew from the hand rather than was thrown"' If anyone kills a thief, he kills him unlawfully.
quam ob rem? quia ius constitutum nullum est.
For what reason? Because there is no established right.
quid, si se telo defenderit? non iniuria.
What if he defends himself with a weapon? Not unlawfully.
quid ita? quia constitutum est.
Why so? Because it has been established.
§53. . tamen per vim factum esset, tamen in eo ipso loco qui tuus esset, non modo servos M. Tulli occidere iure non potuisti verum etiam, si tectum hoc insciente aut per vim demolitus esses quod hic in tuo aedificasset et suum esse defenderet, id vi aut clam factum iudicaretur.
... yet even if it had been done by force, nevertheless, on that very spot which was yours, not only could you not lawfully kill the slaves of M. Tullius, but even if you had demolished this roof, without his knowledge or by force, which he had built on your land and claimed to be his, that would be judged as done by force or secretly.
tu ipse iam statue quam verum sit, cum paucas tegulas deicere impune familia tua non potuerit, maximam caedem sine fraude facere potuisse.
Now decide for yourself how true it is, when your household could not throw down a few tiles with impunity, that they could commit a massive slaughter without penalty.
ego ipse tecto illo disturbato si hodie postulem, quod vi aut clam factum sit, tu aut per arbitrum restituas aut sponsione condemneris necesse est; nunc hoc probabis viris talibus, cum aedificium tuo iure disturbare non potueris quod esset, quem ad modum tu vis, in tuo, homines qui in eo aedificio fuerint te tuo iure potuisse occidere?
If I myself, that roof having been destroyed, should today claim for what was done by force or secretly, you would necessarily either restore it through an arbiter or be condemned by a judicial wager; now will you persuade such men of this: although you could not by your own right destroy a building which was, as you claim, on your land, you could by your own right kill the men who were in that building?
§54'at servus meus non comparet, qui visus est cum tuis; at casa mea est incensa a tuis. ' quid ad haec respondeam? ostendi falsa esse;
"But my slave, who was seen with yours, does not appear; but my cottage was burned by yours." What should I reply to this?
verum tamen confitebor.
I have shown that these are false; but nevertheless I will concede them.
quid postea? hoc sequitur, ut familiam M. Tulli concidi oportuerit? vix me hercule ut corium peti, vix ut gravius expostulari; verum ut esses durissimus, agi quidem usitato iure et cotidiana actione potuit.
What then? Does it follow from this that the household of M. Tullius ought to have been cut to pieces? By Hercules, it would scarcely follow that a flogging should be demanded, or that a more serious complaint should be made; but even if you were extremely harsh, action could indeed have been taken by customary law and everyday lawsuit.
quid opus fuit vi, quid armatis hominibus, quid caede, quid sanguine?
What need was there for force, what for armed men, what for slaughter, what for blood?
§55'at enim oppugnatum me fortasse venissent. ' haec est illorum in causa perdita extrema non oratio neque defensio, sed coniectura et quasi divinatio.
"But indeed they would perhaps have come to attack me." This is their last argument in a lost cause—not a speech nor a defense, but a conjecture and, as it were, divination.
illi oppugnatum venturi erant? quem? Fabium.
Were they going to come to attack? Whom? Fabius.
quo consilio? Vt occiderent.
With what plan? To kill.
quam ob causam? quid ut proficerent? qui comperisti? et ut rem perspicuam quam paucissimis verbis agam, dubitari hoc potest, recuperatores, utri oppugnasse videantur, qui ad villam venerunt, an qui in villa manserunt?
For what reason? What would they gain? How did you find out? And to plead this obvious matter in as few words as possible: can it be doubted, recuperators, which of the two seem to have attacked, those who came to the villa, or those who remained in the villa?
§56qui occisi sunt, an ei ex quorum numero saucius factus est nemo? qui cur facerent, causa non fuit, an ei qui fecisse se confitentur? verum ut hoc tibi credam, metuisse te ne oppugnarere, quis hoc statuit umquam, aut cui concedi sine summo omnium periculo potest, ut eum iure potuerit occidere a quo metuisse se dicat ne ipse posterius occideretur?
Those who were killed, or those from whose number no one was wounded? Those who had no reason to do it, or those who confess that they did it? But even if I believe you in this, that you feared you would be attacked, who has ever established this, or to whom can it be conceded without the greatest danger to everyone, that one could lawfully kill a person from whom one claims to have feared lest one should later be killed oneself?