13.
[31]
The case in this trial, O judges, is exactly like this, and, indeed, identical with it. For
I ask of you, O Quinctius, if the point in question were, “What appeared to be the
pecuniary amount of the damage done by the household of Publius Fabius, by armed men, to
Marcus Tullius,” what would you have to say? Nothing, I suppose; for you confess
everything, both that the household of Publius Fabius did this, and that they did it violently
with armed men. As to the addition, “with malice,” do you think that that
avails you, that by which all your defence is cut off and excluded?
[32]
for, if that addition had not been made, and if you had chosen to urge, in
your defence, that your household had not done this, you would have gained your cause if you
had been able to prove this. Now, whether you had chosen to use that defence, or this one
which you are using, you must inevitably be convicted; unless we think that a man is brought
before the court who has formed a plan, but that one who has actually done an action is not;
since a design may be supposed to exist without any act being done, but an act cannot exist
without a design. Or, because the act is such that it could not be done without a secret
design, without the aid of the darkness of night, without violence, without injury to another,
without arms, without murder, without wickedness, is it on that account to be decided to have
been done without malice? Or, will you suppose that the pleading has been rendered more
difficult for me in the very case in which the praetor intended that a scandalous plea in
defence should be taken from him?
[33]
Here, now, they do seem
to me to be men of very extraordinary talent, when they seize themselves on the very thing
which was granted to me to be used against them; when they use rocks and reefs as a harbour
and an anchorage. For they wish the word “malice” to be kept in the shade;
by which they would be caught and detected, not only since they have done the things
themselves which they admit having done, but even if they had done them by the agency of
others.
[34]
I say that malice exists not in one action alone, (which would be enough for me,) nor in the
whole case, only, (which would also be enough for me,) but separately in every single item of
the whole business. They form a plan for coming, upon the slaves of Marcus Tullius: they do
that with malice. They take arms: they do that with malice. They choose a time suitable for
laying an ambush and for concealing their design: they do that with malice. They break open
the house with violence: in the violence itself there is malice. They murder men, they
demolish buildings: it is not possible for a man to be murdered intentionally, or for damage
to be done to another intentionally, without malice. Therefore, if every part of the business
is such that the malice is inherent in each separate part, will you decide that the entire
business and the whole transaction is untainted with malice?
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