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Institutio Oratoria (Quintilian)
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Institutio Oratoria

Author: Quintilian
Translator: Harold Edgeworth Butler
1217
Nam
qui
obscurare
vult
,
narrat
falsa
pro
veris
,
et
in
iis
quae
narrat
debet
laborare
,
ut
videantur
quam
evidentissima
.
For he who desires to obscure the situation, will state what is false in lieu of the truth, but must still strive to secure an appearance of palpability for the facts which he narrates.
1218
Et
quatenus
etiam
forte
quadam
pervenimus
ad
difficilius
narrationum
genus
,
iam
de
iis
loquamur
,
in
quibus
res
contra
nos
erit
,
quo
loco
nonnulli
praetereundam
narrationem
putaverunt
.
Et
sane
nihil
est
facilius
,
nisi
prorsus
totam
causam
omnino
non
agere
.
Sed
si
aliqua
iusta
ratione
huiusmodi
susceperis
litem
,
cuius
artis
est
malam
esse
causam
silentio
confiteri
?
nisi
forte
tam
hebes
futurus
est
iudex
,
ut
secundum
id
pronuntiet
,
quod
sciet
narrare
te
noluisse
.
A chance turn of the discussion has led us to a difficult type of statement of facts. I will therefore proceed to speak of those in which the facts are against us. Under such circumstances some have held that we should omit the statement of facts altogether. Nothing can be more easy, except perhaps to throw up the case altogether. But suppose you undertake a case of this kind with some good reason. It is surely the worst art to admit the badness of the case by keeping silence. We can hardly hope that the judge will be so dense as to give a decision in favour of a case which he knows we were unwilling to place before him.
1219
Neque
infitias
eo
in
narratione
,
ut
aliqua
neganda
,
aliqua
adiicienda
,
aliqua
mutanda
,
sic
aliqua
etiam
tacenda
;
sed
tacenda
,
quae
tacere
oportebit
et
liberum
erit
.
Quod
fit
nonnunquam
brevitatis
quoque
gratia
,
quale
illud
est
,
Respondit
quae
ei
visum
est
.
I do not of course deny that just as there may be some points which you should deny in your statement of facts, others which you should add, and yet again others that you should alter, so there may be some which you should pass over in silence. But still only those points should be passed over which we ought and are at liberty to treat in this way. This is sometimes done for the sake of brevity, as in the phrase "He replied as he thought fit."
1220
Distinguamus
igitur
genera
causarum
.
Namque
in
iis
,
in
quibus
non
de
culpa
quaeretur
sed
de
actione
,
etiamsi
erunt
contra
nos
themata
,
confiteri
nobis
licebit
:
Pecuniam
de
templo
sustulit
sed
privatam
,
ideoque
sacrilegus
non
est
.
We must therefore distinguish between case and case. In those where there is no question of guilt but only of law, we may, even though the facts he against us, admit the truth. " He took money from the temple, but it was private property, and therefore he is not guilty of sacrilege. He abducted a maiden, but the father can have no option as to his fate.
1221
Virginem
rapuit
,
non
tamen
optio
patri
dabitur
.
Ingenuum
stupravit
et
stupratus
se
suspendit
,
non
tamen
ideo
stuprator
capite
ut
causa
mortis
punietur
,
sed
decem
milia
,
quae
poena
stupratori
constitute
est
,
dabit
.
Verum
in
his
quoque
confessionibus
est
aliquid
,
quod
de
invidia
,
quam
expositio
adversarii
fecit
,
detrahi
possit
,
cum
etiam
servi
nostri
de
peccatis
suis
mollius
loquantur
.
He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime. " But even in making these admissions we may to some extent lessen the odium caused by the statement of our opponent. For even our slaves extenuate their own faults.
1222
Quaedam
enim
quasi
non
narrantes
mitigabimus
:
Non
quidem
,
ut
adversarius
dicit
,
consilium
furti
in
templum
attulit
nec
diu
captavit
eius
rei
tempus
;
sed
occasione
et
absentia
custodum
corruptus
et
pecunia
,
quae
nimium
in
animis
hominum
potest
,
victus
est
.
Sed
quid
refert
?
peccavit
et
fur
est
;
nihil
attinet
id
defendere
,
cuius
poenam
non
recusamus
.
In some cases, too, we may mitigate a bad impression by words which avoid the appearance of a statement of facts. We may say, for instance, " He did not, as our opponent asserts, enter the temple with the deliberate intention of theft nor seek a favourable occasion for the purpose, but was led astray by the opportunity, the absence of custodians, and the sight of the money (and money has always an undue influence on the mind of man), and so yielded to temptation. What does that matter? He committed the offence and is a thief. It is useless to defend an act to the punishment of which we can raise no objection. "
1223
Interim
quasi
damnemus
ipsi
:
Vis
te
dicam
vino
impulsum
?
errore
lapsum
?
nocte
deceptum
?
vera
sunt
ista
fortasse
;
tu
tamen
ingenuum
stuprasti
,
solve
decem
milia
.
Nonnunquam
praepositione
praemuniri
potest
causa
,
deinde
exponi
.
Again we may sometimes go near condemning our client ourselves. "Do you wish me to say that you were under the influence of wine? that you made a mistake? that the darkness deceived you? That may be true. But still you committed an assault on a freeborn boy; pay your 10,000 sesterces. " Sometimes we may fortify our case in advance by a preliminary summary, from which we proceed to the full statement of facts.
1224
Contraria
sunt
omnia
tribus
filiis
,
qui
in
mortem
patris
coniurarant
:
sortiti
nocte
singuli
per
ordinem
cum
ferro
cubiculum
intrarunt
patre
dormiente
;
cum
occidere
eum
nemo
potuisset
,
excitato
omnia
indicarunt
.
All the evidence points to the guilt of three sons who had conspired against their father. After drawing lots they entered their father's bedroom while he slept, one following the other in the order predetermined and each armed with a sword. None of them had the heart to kill him, he woke and they confessed all.
1225
Si
tamen
pater
,
qui
divisit
patrimonium
et
reos
parricidii
defendit
,
sic
agat
:
Quod
contra
legem
sufficit
,
parricidium
obiicitur
iuvenibus
,
quorum
pater
vivit
atque
etiam
liberis
suis
adest
.
Ordinem
rei
narrare
quid
necesse
est
,
cum
ad
legem
nihil
pertineat
?
sed
si
confessionem
culpae
meae
exigitis
,
fui
pater
durus
et
patrimonii
,
quod
iam
melius
ab
his
administrari
poterat
,
tenax
custos
;
If, however, the father, who has divided his estate among them and is defending them when accused of parricide, pleads as follows: " As regards my defence against the law, it suffices to point out, that these young men are charged with parricide in spite of the fact that their father still lives and is actually appearing on behalf of his children. What need is there for me to set forth the facts as they occurred since the law does not apply to them? But if you desire me to confess my own guilt in the matter, I was a hard father to them and watched over my estate, which would have been better managed by them, with miserly tenacity. "
1226
deinde
subiiciat
stimulatos
ab
iis
,
quorum
indulgentiores
parentes
erant
,
semper
tamen
habuisse
eum
animum
,
qui
sit
eventu
deprehensus
,
ut
occidere
patrem
non
possent
;
neque
enim
iureiurando
opus
fuisse
,
si
alioqui
hoc
mentis
habuissent
,
nec
sorte
,
nisi
quod
se
quisque
eximi
voluerit
,
omnia
haec
qualiacunque
placidioribus
animis
accipientur
,
illa
brevi
primae
propositionis
defensione
mollita
.
And if he then should add, " they were spurred to attempt the crime by others who had more indulgent fathers; but their real feelings towards their father have been proved by the result; they could not bring themselves to kill him. It would have been quite unnecessary for them to take an oath to kill him, if they had really had the heart to do the deed, while the only explanation of their drawing lots is that each of them wished to avoid the commission of the crime. " If such were his pleading, all these pleas would, such as they are, find the judges all the more disposed to mercy, since the brief defence offered in the first summary statement would have paved the way for them.
1227
At
cum
quaeritur
an
factum
sit
vel
quale
factum
sit
,
licet
omnia
contra
nos
sint
,
quomodo
tamen
evitare
expositionem
salva
causae
ratione
possumus
?
Narravit
accusator
neque
ita
ut
,
quae
essent
acta
,
tantum
indicaret
,
sed
adiecit
invidiam
,
rem
verbis
exasperavit
,
accesserunt
probationes
,
peroratio
incendit
et
plenos
irae
reliquit
.
Exspectat
naturaliter
iudex
,
But if the question is whether an act has been committed or what its nature may be, even though everything be against us, how can we avoid a statement of facts without gross neglect of our case? The accuser has made a statement of facts facts, and has done so not merely in such a way as to indicate what was done, but has added such comments as might excite strong prejudice against us and made the facts seem worse than they are by the language which he has used. On the top of this have come the proofs, while the peroration has kindled the indignation of the judges and left them full of anger against us.
1228
quid
narretur
a
nobis
.
Si
nihil
exponimus
,
illa
esse
quae
adversarius
dixit
et
talia
qualia
dixit
credat
necesse
est
.
Quid
ergo
?
eadem
exponemus
?
Si
de
qualitate
agitur
,
cuius
tum
demum
quaestio
est
,
cum
de
re
constat
,
eadem
sed
non
eodem
modo
;
alias
causas
,
aliam
mentem
,
aliam
rationem
dabo
.
The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case.
1229
Verbis
elevare
quaedam
licebit
;
luxuria
liberalitatis
,
avaritia
parsimoniae
,
negligentia
simplicitatis
nomine
lenietur
;
vultu
denique
,
voce
,
habitu
vel
favoris
aliquid
vel
miserationis
merebor
.
Solet
nonnunquam
movere
lacrimas
ipsa
confessio
.
Atque
ego
libenter
interrogem
,
sint
illa
defensuri
,
quae
non
narraverint
,
necne
?
Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity, avarice into economy, carelessness into simplicity, and I shall seek to win a certain amount of favour or pity by look, voice and attitude. Sometimes a frank confession is of itself sufficient to move the jury to tears. And I should like to ask those who differ from me whether they are prepared to defend what they have refused to state, or no.
1230
Nam
si
neque
defenderint
neque
narraverint
,
tota
causa
prodetur
;
at
si
defensuri
sunt
,
proponere
certe
plerumque
id
,
quod
confirmaturi
sumus
,
oportet
.
Cur
ergo
non
exponamus
,
quod
et
dilui
potest
et
,
ut
hoc
contingat
,
utique
indicandum
est
?
For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible?
1231
Aut
quid
inter
probationem
et
narrationem
interest
,
nisi
quod
narratio
est
probationis
continua
propositio
,
rursus
probatio
narrationi
congruens
confirmatio
?
Videamus
ergo
,
num
haec
expositio
longior
demum
debeat
esse
et
paulo
verbosior
praeparatione
et
quibusdam
argumentis
(
argumentis
dico
,
non
argumentatione
) ,
cui
tamen
plurimum
confert
frequens
adfirmatio
effecturos
nos
quod
dicimus
;
non
posse
vim
rerum
ostendi
prima
expositione
;
exspectent
et
opiniones
suas
differant
et
bene
sperent
.
Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best.
1232
Denique
utique
narrandum
est
,
quidquid
aliter
quam
adversarius
exposuit
narrari
potest
,
aut
etiam
prooemia
sunt
in
his
causis
supervacua
;
quae
quid
magis
agunt
,
quam
ut
cognitioni
rerum
accommodatiorem
iudicem
faciant
?
Atque
constabit
,
nusquam
esse
eorum
maiorem
usum
,
quam
ubi
animus
iudicis
ab
aliqua
contra
nos
insita
opinione
flectendus
est
.
Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if not to make the judge better disposed for the investigation of the case? And yet it will be agreed that the exordium is never more useful than when it is necessary to divert the judge from some prejudice that he has formed against us.
1233
Coniecturales
autem
causae
,
in
quibus
de
facto
quaeritur
,
non
tam
saepe
rei
,
de
qua
indicium
est
,
quam
eorum
,
per
quae
res
colligenda
est
,
expositionem
habent
.
Quae
cum
accusator
suspiciose
narret
,
reus
levare
suspicionem
debeat
,
aliter
ab
hoc
atque
ab
illo
ad
iudicem
perferri
oportet
.
Conjectural cases, on the other hand—that is to say questions of fact—require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter.
1234
At
enim
quaedam
argumenta
turba
valent
,
diducta
leviora
sunt
.
Id
quidem
non
eo
pertinet
,
ut
quaeratur
an
narrandum
,
sed
quomodo
narrandum
sit
.
Nam
et
congerere
plura
in
expositione
quid
prohibet
,
si
id
utile
est
causae
,
et
promittere
,
sed
et
dividere
narrationem
et
probationes
subiungere
partibus
atque
ita
transire
ad
sequentia
?
But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said?
1235
Nam
ne
iis
quidem
accedo
,
qui
semper
eo
putant
ordine
,
quo
quid
actum
sit
,
esse
narrandum
,
sed
eo
malo
narrare
,
quo
expedit
.
Quod
fieri
plurimis
figuris
licet
.
Nam
et
aliquando
nobis
excidisse
simulamus
,
cum
quid
utiliore
loco
reducimus
,
et
interim
nos
reddituros
reliquum
ordinem
testamur
,
quia
sic
futura
sit
causa
lucidior
;
interim
re
exposita
subiungimus
causas
quae
antecesserunt
.
Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice; occasionally, too, we may inform the judge that we shall adhere to the natural order for the remainder of our statement, since by so doing we shall make our case clearer, while at times after stating a fact, we may append the causes which preceded it.
1236
Neque
enim
est
una
lex
defensionis
certumque
praescriptum
;
pro
re
,
pro
tempore
intuenda
quae
prosint
,
atque
ut
erit
vulnus
,
ita
vel
curandum
protinus
vel
,
si
curatio
differri
potest
,
interim
deligandum
.
For there is no single law or fixed rule governing the method of defence. We must consider what is most advantageous in the circumstances and nature of the case, and treat the wound as its nature dictates, dressing at once or, if the dressing can be delayed, applying a temporary bandage.
1237
Nec
saepius
narrare
duxerim
nefas
,
quod
Cicero
pro
Cluentio
fecit
;
estque
non
concessum
modo
,
sed
aliquando
etiam
necessarium
,
ut
in
causis
repetundarum
omnibusque
quae
simplices
non
sunt
.
Amentis
est
enim
superstitione
praeceptorum
contra
rationem
causae
trahi
.
Again I do not regard it as a crime to repeat a statement of a fact more than once, as Cicero does in the pro Cluentio. It is not merely permissible, but sometimes necessary, as in trials for extortion and all complicated cases; and only a lunatic will allow a superstitious observance of rules to lead him counter to the interests of his case.
1238
Narrationem
ideo
ante
probationes
ponere
est
institutum
,
ne
iudex
,
qua
de
re
quaeratur
,
ignoret
.
Cur
igitur
,
si
singula
probanda
aut
refellenda
erunt
,
non
singula
etiam
narrentur
?
Me
certe
,
quantacunque
nostris
experimentis
habenda
est
fides
,
fecisse
hoc
in
foro
,
quotiens
ita
desiderabat
utilitas
,
probantibus
et
eruditis
et
iis
,
qui
iudicabant
,
scio
;
et
(
quod
non
arroganter
dixerim
,
quia
sunt
plurimi
,
quibuscum
egi
,
qui
me
refellere
possint
,
si
mentiar
)
fere
ponendae
a
me
causae
officium
exigebatur
.
The reason for placing the statement of facts before the proof is to prevent the judge from being ignorant of the question at issue. Why then, if each individual point has to be proved or refuted, should not each individual point be stated as well? If my own experience may be trusted, I know that I have followed this practice in the courts, whenever occasion demanded it, and my procedure has been approved both by learned authorities and the judges themselves, while the duty of setting forth the case was generally entrusted to me. I am not boasting, for there are many with whom I have been associated as counsel, who can bring me to book if I lie.
1239
Neque
ideo
tamen
non
id
saepius
facere
oportebit
,
ut
rerum
ordinem
sequamur
.
Quaedam
vero
etiam
turpiter
convertuntur
,
ut
si
peperisse
narres
,
deinde
concepisse
;
apertum
testamentum
,
deinde
signatum
;
in
quibus
si
id
,
quod
posterius
est
,
dixeris
,
de
priore
tacere
optimum
;
palam
est
enim
praecessisse
.
On the other hand this is no reason for not following the order of events as a general rule. Indeed inversion of the order has at times a most unhappy effect, as for example if you should mention first that a woman has brought forth and then that she has conceived, or that a will has been read and then that it has been signed. In such cases, if you should happen to have mentioned the later incident, it is better to say nothing about the former, which must quite obviously have come first.
1240
Sunt
quaedam
et
falsae
expositiones
,
quarum
in
foro
duplex
genus
est
:
alterum
,
quod
instrumentis
adiuvatur
,
ut
P
.
Clodius
fiducia
testium
,
qua
nocte
incestum
Romae
commiserat
,
Interamnae
se
fuisse
dicebat
;
alterum
,
quod
est
tuendum
dicentis
ingenio
.
Id
interim
ad
solam
verecundiam
pertinet
,
unde
etiam
mihi
videtur
dici
color
,
interim
ad
quaestionem
.
Sometimes, too, we get false statements of facts; these, as far as actual pleading in the courts is concerned, fall into two classes. In the first case the statement depends on external support; Publius Clodius, for instance, relied on his witnesses when he stated that he was at Interamna on the night when he committed abominable sacrilege at Rome. The other has to be supported by the speaker's native talent, and sometimes consists simply in an assumption of modesty, which is, I imagine, the reason why it is called a gloss, while at other times it will be concerned with the question at issue.
1241
Sed
utrumcunque
erit
,
prima
sit
curarum
,
ut
id
quod
fingemus
fieri
possit
;
deinde
,
ut
et
personae
et
loco
et
tempori
congruat
et
credibilem
rationem
et
ordinem
habeat
;
si
continget
,
etiam
verae
alicui
rei
cohaereat
aut
argumento
,
quod
sit
in
causa
,
confirmetur
.
Nam
quae
tota
extra
rem
petita
sunt
,
mentiendi
licentiam
produnt
.
Whichever of these two forms we employ, we must take care, first that our fiction is within the bounds of possibility, secondly that it is consistent with the persons, dates and places involved and thirdly that it presents a character and sequence that are not beyond belief: if possible, it should be connected with something that is admittedly true and should be supported by some argument that forms part of the actual case. For if we draw our fictions entirely from circumstances lying outside the case, the liberty which we have taken in resorting to falsehood will stand revealed.
1242
Curandum
praecipue
, (
quod
fingentibus
frequenter
excidit
)
ne
qua
inter
se
pugnent
;
quaedam
enim
partibus
blandiuntur
,
sed
in
summam
non
consentiunt
;
praeterea
,
ne
iis
,
quae
vera
esse
constabit
,
adversa
sint
;
in
schola
etiam
,
ne
color
extra
themata
quaeratur
.
Above all we must see that we do not contradict ourselves, a slip which is far from rare on the part of spinners of fiction: for some things may put a most favourable complexion on portions of our case, and yet fail to agree as a whole. Further, what we say must not be at variance with the admitted truth. Even in the schools, if we desire a gloss, we must not look for it outside the facts laid down by our theme.
1243
Utrobique
autem
orator
meminisse
debebit
actione
tota
,
quid
finxerit
,
quoniam
solent
excidere
quae
falsa
sunt
,
In either case the orator should bear clearly in mind throughout his whole speech what the fiction is to which he has committed himself, since we are apt to forget our falsehoods, and there is no doubt about the truth of the proverb that a liar should have a good memory.
1244
verumque
est
illud
,
quod
vulgo
dicitur
,
mendacem
memorem
esse
oportere
.
Sciamus
autem
,
si
de
nostro
facto
quaeratur
,
unum
nobis
aliquid
esse
dicendum
;
si
de
alieno
,
mittere
in
plura
suspiciones
licere
.
Est
tamen
quibusdam
scholasticis
controversiis
,
in
quibus
ponitur
aliquem
non
respondere
quod
interrogator
,
libertas
omnia
enumerandi
,
quae
responderi
potuissent
.
But whereas, if the question turns on some act of our own, we must make one statement and stick to it, if it turns on an act committed by others, we may cast suspicion on a number of different points. In certain controversial themes of the schools, however, in which it is assumed that we have put a question and received no reply, we are at liberty to enumerate all the possible answers that might have been given.
1245
Fingenda
vero
meminerimus
ea
,
quae
non
cadant
in
testem
.
Sunt
autem
haec
,
quae
a
nostro
dicuntur
animo
,
cuius
ipsi
tantum
conscii
sumus
;
item
quod
a
defunctis
,
nec
hoc
enim
est
qui
neget
;
itemque
ab
eo
cui
idem
expediet
,
is
enim
non
negabit
;
ab
adversario
quoque
,
quia
non
est
habiturus
in
negando
fidem
.
But we must remember only to invent such things as cannot be checked by evidence: I refer to occasions when we make our own minds speak (and we are the only persons who are in their secret) or put words in the mouth of the dead (for what they say is not liable to contradiction) or again in the mouth of someone whose interests are identical with ours (for he will not contradict), or finally in the mouth of our opponent (for he will not be believed if he does deny).
1246
Somniorum
et
superstitionum
colores
ipsa
iam
facilitate
auctoritatem
perdiderunt
.
Non
est
autem
satis
in
narratione
uti
coloribus
,
nisi
per
totam
actionem
consentiant
,
cum
praesertim
quorundam
probatio
sola
sit
in
adseveratione
et
perseverantia
;
Glosses drawn from dreams and superstitions have long since lost their value, owing to the very ease with which they can be invented. But it will avail us little to use glosses in a statement of fact, unless they are consistent throughout the whole of our speech, more especially as certain things can only be proved by persistent assertion.
1247
ut
ille
parasitus
,
qui
ter
abdicatum
a
divite
iuvenem
et
absolutum
tanquam
suum
filium
asserit
,
habebit
quidem
colorem
,
quo
dicat
et
paupertatem
sibi
causam
exponendi
fuisse
et
ideo
a
se
parasiti
personam
esse
susceptam
,
quia
in
illa
domo
filium
haberet
;
et
ideo
illum
ter
innocentem
abdicatum
,
quia
filius
abdicantis
non
esset
.
Take for instance the case of the parasite who claims as his son a young man who has been thrice disinherited by a wealthy father and thrice restored to his own. He will be able to put forward as a gloss or plea that poverty was the reason why he exposed the child, that he assumed the role of a parasite because his son was in the house in question and, lastly, that the reason why the young man was thrice disinherited was simply that he was not the son of the man who disinherited him.
1248
Nisi
tamen
in
omnibus
verbis
et
amorem
patrium
atque
hunc
quidem
ardentissimum
ostenderit
et
odium
divitis
et
metum
pro
invene
,
quem
periculose
mansurum
in
illa
domo
,
in
qua
tam
invisus
sit
,
sciat
,
suspicione
subiecti
petitoris
non
carebit
.
But unless every word that he utters reveals an ardent paternal affection, hatred for his wealthy opponent and anxiety on behalf of the youth, who will, he knows, be exposed to serious danger if he remains in the house where he is the victim of such dislike, he will be unable to avoid creating the suspicion that he has been suborned to bring the action.
1249
Evenit
aliquando
in
scholasticis
controversiis
,
quod
in
foro
an
possit
accidere
dubito
,
ut
eodem
colore
utraque
pars
utatur
,
deinde
eum
pro
se
quaeque
defendat
,
ut
in
ilia
controversia
:
It sometimes happens in the controversial themes of the schools, though I doubt whether it could ever occur in the courts, that both sides employ the same gloss and support it on their own behalf.
1250
Uxor
marito
dixit
,
appellatam
se
de
stupro
a
privigno
et
sibi
constitutum
tempus
et
locum
;
eadem
contra
filius
detulit
de
noverca
,
edito
tantum
alio
tempore
ac
loco
;
pater
in
eo
,
quem
uxor
praedixerat
,
filium
invenit
,
in
eo
,
quem
filius
,
uxorem
;
illam
repudiavit
,
qua
tacente
filium
abdicat
.
Nihil
dici
potest
pro
iuvene
,
quod
non
idem
sit
pro
noverca
.
An example of this may be found in the theme which runs as follows. " A wife has stated to her husband that her stepson has attempted to seduce her and that a time and place have been assigned for their meeting: the son has brought the same charge against his stepmother, with the exception that a different time and place are mentioned. The father finds the son in the place mentioned by the wife, and the wife in the place mentioned by the son. He divorces her, and then, as she says nothing in her own defence, disinherits the son. " No defence can be put forward for the son which is not also a defence of the stepmother.
1251
Ponentur
tamen
etiam
communia
;
deinde
ex
personarum
comparatione
et
indicii
ordine
et
silentio
repudiatae
argumenta
ducentur
.
However, what is common to both sides of the case will be stated, and then arguments will be drawn from a comparison of the characters of the two parties, from the order in which they laid information against each other and from the silence of the divorced wife.
1252
Ne
illud
quidem
ignorare
oportet
,
quaedam
esse
quae
colorem
non
recipiant
,
sed
tantum
defendenda
sint
,
qualis
est
ille
dives
,
qui
statuam
pauperis
inimici
flagellis
cecidit
et
reus
est
iniuriarum
;
nam
factum
eius
modestum
esse
nemo
dixerit
,
fortasse
ut
sit
tutum
obtinebit
.
Still we must not ignore the fact that there are some cases which do not admit of any form of gloss, but must be defended forthright. An example is provided by the case of the rich man who scourged the statue of a poor man who was his enemy, and was subsequently indicted for assault. Here no one can deny that the act was outrageous, but it may be possible to maintain that it is not punishable by law.
1253
Quodsi
pars
expositionis
pro
nobis
,
pars
contra
nos
erit
,
miscenda
sit
an
separanda
narratio
,
cum
ipsa
condicione
causae
deliberandum
est
.
Nam
si
plura
sunt
quae
nocent
,
quae
prosunt
obruuntur
.
Itaque
tunc
dividere
optimum
erit
,
et
iis
,
quae
partem
nostram
adiuvabunt
,
expositis
et
confirmatis
,
adversus
reliqua
uti
remediis
,
de
quibus
supra
dictum
est
Si
plura
proderunt
,
If, however, part of the statement of facts tells in our favour and part against us, we must consider whether in view of the circumstances of the case the parts in question should be blent or kept apart. If the points which are damaging to our case be in the majority, the points which are in its favour will be swamped. Under those circumstances it will be best to keep them apart and, after setting forth and proving the points which help our case, to meet the rest by employing the remedies mentioned above.
1254
etiam
coniungere
licebit
,
ut
quae
obstant
in
mediis
velut
auxiliis
nostris
posita
minus
habeant
virium
.
Quae
tamen
non
erunt
nuda
ponenda
,
sed
ut
et
nostra
aliqua
argumentatione
firmemus
et
diversa
cur
credibilia
non
sint
adiiciamus
;
quia
,
nisi
distinxerimus
,
verendum
est
,
ne
bona
nostra
permixtis
malis
inquinentur
.
If, on the other hand, it be the points in our favour which predominate, we may even blend them with the others, since thus the traitors in our camp will have less force. None the less these points, both good and bad, must not be set forth naked and helpless: those in our favour must be supported by some argument, and then reasons must be added why the points which tell against us should not be believed; since if we do not distinguish clearly between the two, it is to be feared that those which are favourable may suffer from their bad company.