Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1863-06-25
NATIONAL INTELLIGE NCER.
/. SILENT LEGEs INFER ARMA."

In view of the events passing before Us ho ui0-
tum perhaps is more frequently cited 10 current
discussions than the maxim silent leg smfer dr"sa
And yet the frequency with which the saying Is
cited does not prove that it is always understood
nv tbose who quote it, or that in having obtained
the currency of proverb it has thereby obtained
passport which entities it to be received without
question in all its applications.
Il is generally known that the saying takes its
origin from Cicero, having been used by that great
lawyer in the argument made in defence of Milo
when on trial for the killing Of Clodius. As the
meaning and application of the phrase clearly APP
pears from the circumstances under which it was
used let us inquire what these circumstances were.
In the year 700 from the founding of Rome,
when parties ran high in that city, Titus Annius
Milo was a candidate for the Office Of Consul, and
Publus Clodius, representing another faction a
candidate for the post of Prator Personal AMI
mosities combined with political rivaries to set
these two men at variance, and it SO happened that
one day as they accidentally met on the Appian
way. not far from the city, (each attended with an
escort and retinue of servants,) they became en-
broed in personal conflict, which, beginning with
their attendants, did not close until Milo had killed
his antagonist
A special commission was thereupon appointed
by Pompey (who was then charged by the Senate
with the chief control Of aars) to inquire into the
circumstances of the homicide Cicero, who was
the warm personal and political friend Of Milo, ap
peared as his advocate before the judges selected
to try him, and the great orator determined TO rest
his case on the theory that his client had killed
Clodius in self-defence under circumstances which
rendered the killing of the latter justifable or ex
cusable homicide.
Having 10 the exordium Of his argument briefly
unfoded this view of the case and excluded the idea
that all acts Of homicide were necessarily criminal
he proceeded to say:
There is then judges, law of this kind-not written,
but iubo,n-wbch have apprehended, drunk in, and
from Nature herself in conformity to which We
have not been taught but made which we have been not
educated but this law is, that if life
fall under peril from any ambush, violence, or wea-
whether of robbers of personal enemies
should be had to every honorable of safety For the
lans are silent the midst Of Silent enim ieges
inter ar,na Nor do they bid that one should wait for
them when be who may be willing to wait would, by SO
doing, tuner SOME Unjust uaniaso Dooi0 ni' Ju' sA
could be vndcated.''
Cicero, we know, wrote to his friend Marcus
Marius. while the trial of Milo was depending,
that the legal conviction of one Bursa, political
enemy of Milo, had given him much more satisfac-
t;on than the violent fall Of Clodius. And the
;llnstrious orator added the following weighty
words: "Much rather, indeed, would | see my
ohoJ br bapI &c afio
q than of violence, l would choose it should be
q in a way that does honor to the friends of my
/" cause. without exposing them at the same time
to any uneasy consequences"
It is manifest from the foregoing that this now
famous proposition, instead of declaring that the
laws voluntarily remain mute where arms inter
veue. simply afrms that where the laws are in fact
slenced by arms are there and then RENTED to
their natural rights 1t is the assertion Of the right
of selfdefence-a right which man surrenders in
society in order to obtain the protection of the
laws. and which the laws restore to him whenever
they cannot give the protection they promise 1t
was the plea of Milo, who, in defending his own
life had slain his assailant; it was not urged by
Clodius as justification for attacking Milo; nor
did the Roman Pretor set it up to excuse his
failure to protect Milo. 1t was Milo who, with
the assassin's dagger at his throat, cried out that
the laws could not speak to save him, and that there
fore he saved himself with his own right hand.
The true sense of Cicero was well understood
by England's greatest lawyer, who, with the
rare perspicacity Of genius, has perceived and
shown its application to another branch Of law.
1t was the doctrine Of the English Common Law
that if one was expelled by force from his own
land. and failed to re-enter in the lifetime of the
intruder, he lost his right of entry as against the
heir, unless it were in time of war, and then his
right was not lost. In commenting upon this
doctrine Lord Coke (Cok. Lift. 249 b. defines
what is judicially, state of war, and what q
state Of peace and under what circumstances in
civil action may plead in his own behalf
that the laws were silent and failed to protect him.
On these points he says that "when the courts
of Justice be open and the judges aud ministers
of the same may by law protect men from wrong
and violence and distribute justice to ALL it is
said to be time of peace. So when, by invasion,
instruction, rebellion such like, the peaceabe
course Of justice is disturbed and stopped SO as
the courts Of justice be as it were shut up e
silent leges int arma, then it is said to be time