Institutio Oratoria |
Translator: Harold Edgeworth Butler
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| 1939 |
malum quod tacetur . Quare bonus altercator vitio iracundiae careat ; nullus enim rationi magis obstat adfectus et fert extra causam plerumque et deformia convicia facere ac mereri cogit et in ipsos nonnunquam iudices incitat . Melior moderatio ac nonnunquam etiam patientia . Neque enim refutanda tantum quae ex contrario dicuntur , sed contemnenda , elevanda , ridenda sunt ; nec usquam plus loci recipit urbanitas . Hoc , dum ordo est et pudor ; contra turbantes audendum et impudentiae fortiter resistendum .
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Consequently the skilled debater must be able to control his tendency to anger; there is no passion that is a greater enemy to reason, while it often leads an advocate right away from the point and forces him both to use gross and insulting language and to receive it in return; occasionally it will even excite him to such an extent as to attack the judges. Moderation, and sometimes even longsuffering, is the better policy, for the statements of our opponents have not merely to be refuted: they are often best treated with contempt, made light of or held up to ridicule, methods which afford unique opportunity for the display of wit. This injunction, however, applies only so long as the case is conducted with order and decency: if, on the other hand, our opponents adopt turbulent methods we must put on a bold front and resist their impudence with courage. |
| 1940 |
Sunt enim quidam praeduri in hoc oris , ut obstrepant ingenti clamore et medios sermones intercipiant et omnia tumultu confundant , quos ut non imitari sic acriter propulsare oportebit , et ipsorum improbitatem retundendo , et iudices vel praesidentes magistratus appellando frequentius , ut loquendi vices serventur . Non est res animi iacentis et mollis supra modum frontis , fallitque plerumque , quod probitas vocatur , quae est imbecillitas .
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For there are some advocates so brazen-faced that they bluster and bellow at us, interrupt us in the middle of a sentence and try to throw everything into confusion. While, then, it would be wrong to pay them the compliment of imitation, we must none the less repel their onslaughts with vigour by crushing their insolence and making frequent appeals to the judges or presiding magistrates to insist on the observance of the proper order of speaking. The debater's task is not one that suits a meek temper or excessive modesty, and we are apt to be misled because that which is really weakness is dignified by the name of honesty. |
| 1941 |
Valet autem in altercatione plurimum acumen , quod sine dubio ex arte non venit ( natura enim non docetur ) , arte tamen adiuvatur .
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But the quality which is the most serviceable in debate is acumen, which while it is not the result of art (for natural gifts cannot be taught), may none the less be improved by art. |
| 1942 |
In qua praecipuum est , semper id in oculis habere , de quo quaeritur et quod volumus efficere ; quod propositum tenentes nec in rixam ibimus nec causae debita tempora conviciando conteremus gaudebimusque , si hoc adversarius facit .
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In this connexion the chief essential is never for a moment to lose sight either of the question at issue or the end which we have in view. If we bear this in mind, we shall never descend to mere brawling nor waste the time allotted to the case by indulging in abuse, while we shall rejoice if our adversary does so. |
| 1943 |
Omni tempore fere parata sunt meditatis diligenter , quae aut ex adverse dici aut responderi a nobis possunt . Nonnunquam tamen solet hoc quoque esse artis genus , ut quaedam in actione dissimulata subito in altercando proferantur ; est inopinatis eruptionibus aut incursioni ex insidiis factae simillimum . Id autem tum faciendum , cum est aliquid , cui responderi non statim possit , potuerit autem , si tempus ad disponendum fuisset . Nam quod fideliter firmum est a primis statim actionibus arripere optimum est , quo saepius diutiusque dicatur .
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Those who have given a careful study to the arguments that are likely to be produced by their opponents or the replies which may be made by themselves are almost always ready for the fray. There is, however, a further device available which consists in suddenly introducing into the debate arguments which were deliberately concealed in our set speech: it is a procedure which resembles a surprise attack or a sally from an ambush. The occasion for its employment arises when there is some point to which it is difficult to improvise an answer, though it would not be difficult to meet if time were allowed for consideration. For solid and irrefutable arguments are best produced at once in the actual pleading in order that they may be repeated and treated at greater length. |
| 1944 |
Illud vix saltem praecipiendum videtur , ne turbidus et clamosus tantum sit altercator , et quales faceti sunt , qui litteras nesciunt . Nam improbitas , licet adversario molesta sit , iudici invisa est . Nocet etiam diu pugnare in iis quae obtinere non possis .
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I think I need hardly insist on the necessity for the avoidance in debate of mere violence and noise and such forms of pleasantry as are dear to tile uneducated. For unscrupulous violence, although annoying to one's antagonist, makes an unpleasant impression on the judge. It is also bad policy to light hard for points which you cannot prove. |
| 1945 |
Nam , ubi vinci necesse est , expedit cedere ; quia , sive plura sunt de quibus quaeritur , facilior erit in ceteris fides , sive unum , mitior solet poena irrogari verecundiae . Nam culpam praesertim deprehensam pertinaciter tueri culpa altera est .
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For where defeat is inevitable, it is wisest to yield, since, if there are a number of other points in dispute, we shall find it easier to prove what remains, while if there is only one point at issue, surrender with a good grace will generally secure some mitigation of punishment. For obstinacy in the defence of a fault, more especially after detection, is simply the commission of a fresh fault. |
| 1946 |
Dum stat acies , multi res consilii atque artis est , ut errantem adversarium trahas et ire quam longissime cogas , ut vana interim spe exultet . Ideo quaedam bene dissimulantur instrumenta . Instant enim et saepe discrimen omne committunt , quod deesse nobis putant , et faciunt probationibus nostris auctoritatem postulando .
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While the battle still rages, the task of luring on our adversary when he has once committed himself to error, and of forcing him to commit himself as deeply as possible, even to the extent at times of being puffed up with extravagant hopes of success, requires great prudence and skill. It is, therefore, wise to conceal some of our weapons: for our opponents will often press their attack and stake everything on some imagined weakness of our own, and will give fresh weight to our proofs by the instancy with which they demand us to produce them. |
| 1947 |
Expedit etiam dare aliquid adversario quod pro se putet , quod apprehendens maius aliquid cogatur dimittere ; duas interim res proponere quarum utramlibet male sit electurus ; quod in altercatione fit potentius quam in actione , quia in illa nobis ipsi respondemus , in hac adversarium quasi confessum tenemus .
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It may even be expedient to yield ground which the enemy thinks advantageous to himself: for in grasping at the fancied advantage he may be forced to surrender some greater advantage: at times, too, it may serve our purpose to give him a choice between two alternatives, neither of which he can select without damage to his cause. Such a course is more effective in debate than in a set speech, for the reason that in the latter we reply to ourselves, while in the former our opponent replies, and thereby delivers himself into our hands. It is, above all, |
| 1948 |
Est inprimis acuti videre , quo iudex dicto moveatur , quid respuat ; quod et vultu saepissime et aliquando etiam dicto aliquo factove eius deprehenditur . Et instare proficientibus et ab iis , quae non adiuvent , quam mollissime pedem oportet referre . Faciunt hoc medici quoque , ut remedia proinde perseverent adhibere vel desinant , ut illa recipi vel respui vident .
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the mark of a shrewd debater to perceive what remarks impress the judge and what he rejects: this may often be detected from his looks, and sometimes from some action or utterance. Arguments which help us must be pressed home, while it will be wise to withdraw as gently as possible from such as are of no service. We may take a lesson from doctors who continue or cease to administer remedies according as they note that they are received or rejected by the stomach. Sometimes, |
| 1949 |
Nonnunquam , si rem evolvere propositam facile non sit , inferenda est alia quaestio , atque in eam iudex , si fieri potest , avocandus . Quid enim , cum respondere non possis , agendum est , nisi ut aliud invenias , cui adversarius respondere non possit ?
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if we find difficulty in developing our point, it is desirable to raise another question and to divert the attention of the judge to it if this be feasible. For what can you do, if you are unable to answer an argument, save invent another to which your opponent can give no answer? |
| 1950 |
In plerisque idem est , ut dixi , qui circa testes locus et personis modo distat , quod hic patronorum inter se certamen , illic pugna inter testem et patronum . Exercitatio vero huius rei longe facilior . Nam est utilissimum , frequenter cum aliquo , qui sit studiorum eorundem , sumere materiam vel verae vel etiam fictae controversiae , et diversas partes altercationis modo tueri ; quod idem etiam in simplici genere quaestionum fieri potest .
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In most respects the rules to be observed in debate are, as I have said, identical with those for the cross examination of witnesses, the only difference lying in the fact that the debate is a battle between advocates, whereas cross-examination is a fight between advocate and witness. To practise the art of debate is, however, far easier. For it is most profitable to agree with a fellow-student on some subject, real or fictitious, and to take different sides, debating it as would be done in the courts. The same may also be done with the simpler class of questions. |
| 1951 |
Ne illud quidem ignorare advocatum volo , quo quaeque ordine probatio sit apud iudicem proferenda ; cuius rei eadem quae in argumentis ratio est , ut potentissima prima et summa ponantur . Illa enim ad credendum praeparant iudicem , haec ad pronuntiandum .
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I would further have an advocate realise the order in which his proofs should be presented to the judge: the method to be followed is the same as in arguments: the strongest should be placed first and last. For those which are presented first dispose the judge to believe us, and those which come last to decide in our favour. |
| 1952 |
His pro nostra facultate tractatis non dubitassem transire protinus ad dispositionem , quae ordine ipso sequitur , nisi vererer ne , quoniam fuerunt qui iudicium inventioni subiungerent , praeterisse hunc locum quibusdam viderer , qui mea quidem opinione adeo partibus operis huius omnibus connexus ac mixtus est , ut ne a sententiis quidem aut verbis saltem singulis possit separari , nec magis arte traditur quam gustus aut odor .
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V. Having dealt with these points to the best of my ability, I should have had no hesitation in proceeding to discuss arrangement, which is logically the next consideration, did I not fear that, since there are some who include judgment under the head of invention, they might think that I had deliberately omitted all discussion of judgment, although personally I regard it as so inextricably blent with and involved in every portion of this work, that its influence extends even to single sentences or words, and it is no more possible to teach it than it is to instruct the powers of taste and smell. |
| 1953 |
Ideoque nos , quid in quaque re sequendum cavendumque sit , docemus ac deinceps docebimus , ut ad ea iudicium dirigatur . Praecipiam igitur , ne , quod effici non potest , aggrediamur , ut contraria vitemus et communia , ne quid in eloquendo corruptum , obscurum sit ? Referatur oportet ad sensus , qui non docentur .
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Consequently, all I can do is now and hereafter to show what should be done or avoided in each particular case, with a view thereby to guide the judgment. What use then is it for me to lay down general rules to the effect that we should not attempt impossibilities, that we should avoid whatever contradicts our case or is common to both, and shun all incorrectness or obscurity of style? In all these cases it is common sense that must decide, and common sense cannot be taught. |
| 1954 |
Nec multum a iudicio credo distare consilium , nisi quod illud ostendentibus se rebus adhibetur , hoc latentibus et aut omnino nondum repertis aut dubiis . Et iudicium frequentissime certum est , consilium vero est ratio quaedam alte petita et plerumque plura perpendens et comparans habensque in se et inventionem et iudicationem .
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There is no great difference, in my opinion, between judgment and sagacity, except that the former deals with evident facts, while the latter is concerned with hidden facts or such as have not yet been discovered or still remain in doubt. Again judgment is more often than not a matter of certainty, while sagacity is a form of reasoning from deep-lying premises, which generally weighs and compares a number of arguments and in itself involves both invention and judgment. |
| 1955 |
Sed ne de hoc quidem praecepta in universum exspectanda sunt . Nam ex re sumitur cuius locus ante actionem est frequenter ; nam Cicero summo consilio videtur in Verrem vel contrahere tempora dicendi maluisse quam in eum annum , quo erat Q . Hortensius consul futurus , incidere .
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But here again you must not expect me to lay down any general rules. For sagacity depends on circumstances and will often find its scope in something preceding the pleading of the cause. For instance in the prosecution of Verres Cicero seems to have shown the highest sagacity in preferring to cut down the time available for his speech rather than allow the trial to be postponed to the following year when Quintus Hortensius was to be consul. |
| 1956 |
Et in ipsis actionibus primum ac potentissimum obtinet locum ; nam , quid dicendum , quid tacendum , quid differendum sit , exigere consilii est ; negare sit satis an defendere , ubi prooemio utendum et quali , narrandumne et quomodo , iure prius pugnandum an aequo , qui sit ordo utilissimus , tum omnes colores , aspere an leniter an etiam summisse loqui expediat .
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And again in the actual pleading sagacity holds the first and most important place. For it is the duty of sagacity to decide what we should say and what we should pass by in silence or postpone; whether it is better to deny an act or to defend it, when we should employ an exordium and on what lines it should be designed, whether we should make a statement of facts and if so, how, whether we should base our plea on law or equity and what is the best order to adopt, while it must also decide on all the nuances of style, and settle whether it is expedient to speak harshly, gently or even with humility. |
| 1957 |
Sed haec quoque , ut quisque passus est locus , monuimus , idemque in reliqua parte faciemus ; pauca tamen exempli gratia ponam , quibus manifestius appareat quid sit , quod demonstrari posse praeceptis non arbitror .
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But I have already given advice on all these points as far as each occasion permitted, and I shall continue to do the same in the subsequent portions of this work. In the meantime, however, I will give a few instances to make my meaning clearer, since it is not possible, in my opinion, to do so by laying down general rules. |
| 1958 |
Laudatur consilium Demosthenis , quod , cum suaderet bellum Atheniensibus parum id prospere expertis , nihil adhuc factum esse ratione monstrat . Poterat enim emendari negligentia ; at , si nihil esset erratum , melioris in posterum spei non erat ratio .
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We praise Demosthenes for his sagacity because when he urged a policy of war upon the Athenians after they had met with a series of reverses, he pointed out that so far their action had been entirely irrational. For they might still make amends for their negligence, whereas, if they had made no mistakes, they would have had no ground for hopes of better success in the future. Again, |
| 1959 |
Idem , cum offensam vereretur , si obiurgaret populi segnitiam in asserenda libertate rei publicae , maiorum laude uti maluit , qui rem publicam fortissime administrassent . Nam et faciles habuit aures , et natura sequebatur , ut meliora probantes peiorum paeniteret .
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since he feared to give offence if he taxed the people with lack of energy in defending the liberties of their country, he preferred to praise their ancestors for their courageous policy. Thus lie gained a ready hearing, with the natural result that the pride which they felt in the heroic past made them repent of their own degenerate behaviour. |
| 1960 |
Ciceronis quidem vel una pro Cluentio quamlibet multis exemplis sufficiet oratio . Nam quod in eo consilium maxime mirer ? primamne expositionem , qua matri , cuius filium premebat auctoritas , abstulit fidem ? an quod iudicii corrupti crimen transferre in adversarium maluit quam negare propter inveteratam , ut ipse dicit , infamiam ? an quod in re invidiosa legis auxilio novissime est usus , quo genere defensionis etiam offendisset nondum praemollitas iudicum mentes ? an quod se ipsum invito Cluentio facere testatus est ?
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If we turn to Cicero, we shall find that one speech alone, the pro Cluenltio, will suffice to provide a number of examples. The difficulty is to know what special exhibition of sagacity to admire most in this speech. His opening statement of the case, by which he discredited the mother whose authority pressed so hardly on her son? The fact that he preferred to throw the charge of having bribed the jury back upon his opponents rather than deny it on account of what he calls the notorious infamy of the verdict? Or his recourse, last of all, to the support of the law in spite of the odious nature of the affair, a method by which lie would have set the judges against him but for the fact that he had already softened their feelings towards him? Or the skill which lie shows in stating that he has adopted this course in spite of the protests of his client? |
| 1961 |
Quid pro Milone ? quod non ante narravit , quam praeiudiciis omnibus reum liberaret ? quod insidiarum invidiam in Clodium vertit , quanquam revera fuerat pugna fortuita ? quod factum et laudavit et tamen voluntate Milonis removit ? quod illi preces non dedit et in earum locum ipse successit ? Infinitum est enumerare , ut Cottae detraxerit auctoritatem , ut pro Ligario se opposuerit , Cornelium ipsa confessionis fiducia eripuerit .
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What again am I to select as an outstanding instance of his sagacity in the pro Milone? The fact that he refrains from proceeding to his statement of facts until he has cleared the ground by disposing of the previous verdicts against the accused? The manner in which he turns the odium of the attempted ambush against Clodius, although as a matter of fact the encounter was a pure chance? The way in which he at one and the same time praised the actual deed and showed that it was forced upon his client? Or the skill with which he avoided making Milo plead for consideration and undertook the role of suppliant himself? It would be an endless task to quote all the instances of his sagacity, how he discredited Cotta, how he put forward his own case in defence of Ligarius and saved Cornelius by his bold admission of the facts. It is enough, I think, |
| 1962 |
Illud dicere satis habeo , nihil esse non modo in orando , sed in omni vita prius consilio , frustraque sine eo tradi ceteras artes , plusque vel sine doctrina prudentiam quam sine prudentia facere doctrinam . Aptare etiam orationem locis , temporibus , personis est eiusdem virtutis . Sed hic quia latius fusus est locus mixtusque cum elocutione , tractabitur cum praecipere de apte dicendo coeperimus .
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to say that there is nothing not merely in oratory, but in all the tasks of life that is more important than sagacity and that without it all formal instruction is given in vain, while prudence unsupported by learning will accomplish more than learning unsupported by prudence. It is sagacity again that teaches us to adapt our speech to circumstances of time and place and to the persons with whom we are concerned. But since this topic covers a wide field and is intimately connected with eloquence itself, I shall reserve my treatment of it till I come to give instructions on the subject of appropriateness in speaking. |
| 1963 |
Liber VII de inventione , ut arbitror , satis dictum est . Neque enim ea demum , quae ad docendum pertinent , exsecuti sumus , verum etiam motus animorum tractavimus . Sed ut opera exstruentibus satis non est saxa atque materiam et cetera aedificanti utilia congerere , nisi disponendis eis collocandisque artificium manus adhibeatur , sic in dicendo quamlibet abundans rerum copia cumulum tantum habeat atque congestum , nisi illas eadem dispositio in ordinem digestas atque inter se commissas devinxerit .
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Book VII I think that enough has been said on the subject of invention. For I have dealt not merely with the methods by which we may instruct the judge, but also with the means of appealing to his emotions. But just as it is not sufficient for those who are erecting a building merely to collect stone and timber and other building materials, but skilled masons are required to arrange and place them, so in speaking, however abundant the matter may be, it will merely form a confused heap unless arrangement be employed to reduce it to order and to give it connexion and firmness of structure. |
| 1964 |
Nec immerito secunda quinque partium posita est , cum sine ea prior nihil valeat . Neque enim quanquam fusis omnibus membris statua sit , nisi collocetur , et si quam in corporibus nostris aliorumve animalium partem permutes et transferas , licet habeat eadem omnia , prodigium sit tamen . Et artus etiam leviter loco moti perdunt quo viguerunt usum , et turbati exercitus sibi ipsi sunt impedimento .
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Nor is it without good reason that arrangement is treated as the second of the five departments of oratory, since without it the first is useless. For the fact that all the limbs of a statue have been cast does not make it a statue: they must be put together; and if you were to interchange some one portion of our bodies or of those of other animals with another, although the body would be in possession of all the same members as before, you would none the less have produced a monster. Again even a slight dislocation will deprive a limb of its previous use and vigour, and disorder in the ranks will impede the movements of an army. |
| 1965 |
Nec mihi videntur errare qui ipsam rerum naturam stare ordine putant , quo confuso peritura sint omnia . Sic oratio carens hac virtute tumultuetur necesse est et sine rectore fluitet nec cohaereat sibi , multa repetat , multa transeat , velut nocte in ignotis locis errans , nec initio nec fine proposito casum potius quam consilium sequatur . Quapropter totus hic liber serviat dispositioni ,
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Nor can I regard as an error the assertion that order is essential to the existence of nature itself, for without order everything would go to wrack and ruin. Similarly if oratory lack this virtue, it cannot fail to be confused, but will be like a ship drifting without a helmsman, will lack cohesion, will fall into countless repetitions and omissions, and, like a traveller who has lost his way in unfamiliar country, will be guided solely by chance without fixed purpose or the least idea either of starting-point or goal. |
| 1966 |
quae quidem , si certa aliqua via tradi in omnes materias ullo modo posset , non tam paucis contigisset . Sed cum infinitae litium formae fuerint futuraeque sint et tot saeculis nulla reperta sit causa , quae esset tota alteri similis , sapiat oportet actor et vigilet et inveniat et iudicet et consilium a se ipso petat . Neque infitias eo quaedam esse quae demonstrari possint , eaque non omittam .
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The whole of this book, therefore, will be devoted to arrangement, an art the acquisition of which would never have been such a rarity, had it been possible to lay down general rules which would suit all subjects. Put since cases in the courts have always presented an infinite variety, and will continue to do so, and since through all the centuries there has never been found one single case which was exactly like any other, the pleader must rely upon his sagacity, keep his eyes open, exercise his powers of invention and judgment and look to himself for advice. On the other hand, I do not deny that there are some points which are capable of demonstration and which accordingly I shall be careful not to pass by. |
| 1967 |
Sit igitur , ut supra significavi , divisio rerum plurium ex singulas , partitio singularum ex partes discretio , ordo recta quaedam collocatio prioribus sequentia adnectens , dispositio utilis rerum ac partium ex locos distributio .
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Division, as I have already stated, means the division of a group of things into its component parts, partition is the separation of an individual whole into its elements, order the correct disposition of things in such a way that what follows coheres with what precedes, while arrangement is the distribution of things and parts to the places which it is expedient that they should occupy. |
| 1968 |
Sed meminerimus ipsam dispositionem plerumque utilitate mutari nec eandem semper primam quaestionem ex utraque parte tractandam . Cuius rei , ut cetera exempla praeteream , Demosthenes quoque atque Aeschines possunt esse documento ex iudicio Ctesiphontis diversum secuti ordinem , cum accusator a iure , quo videbatur potentior , coeperit , patronus omnia paene ante ius posuerit , quibus iudicem quaestioni legum praepararet .
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But we must remember that arrangement is generally dependent on expediency, and that the same question will not always be discussed first by both parties. An example of what I mean, to quote no others, is provided by Demosthenes and Aeschines, who adopt a different order in the trial of Ctesiphon, since the accuser begins by dealing with the legal question involved, in which he thought he had the advantage, whereas the advocate for the defence treats practically every other topic before coming to the question of law, with a view to preparing the judges for a consideration of the legal aspect of the case. |
| 1969 |
Aliud enim alii docere prius expedit , alioqui semper petitoris arbitrio diceretur ; denique ex accusatione mutua , cum se uterque defendat , priusquam adversarium arguat , omnium rerum necesse est ordinem esse diversum . Igitur , quid ipse sim secutus , quod partim praeceptis partim usurpatum ratione cognoveram , promam nec unquam dissimulavi .
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For it will often be expedient for the parties to place different points first; otherwise the pleading would always be determined by the good pleasure of the prosecution. Finally, in a case of mutual accusation, where both parties have to defend themselves before accusing their antagonist, the order of everything must necessarily be different. I shall therefore set forth the method adopted by myself, about which I have never made any mystery: it is the result in part of instruction received from others, in part of my own reasoning. |
| 1970 |
Erat mihi curae ex controversiis forensibus nosse omnia , quae ex causa versarentur . Nam ex schola certa sunt et pauca et ante declamationem exponuntur , quae themata Graeci vocant , Cicero proposita . Cum haec ex conspectu quodammodo collocaveram , non minus pro adversa parte quam pro mea cogitabam .
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When engaged in forensic disputes I made it a point to make myself familiar with every circumstance connected with the case. (In the schools, of course, the facts of the case are definite and limited in number and are moreover set out before we begin to declaim: the Greeks call them themes, which Cicero translates by propositions. ) When I had formed a general idea of these circumstances, I proceeded to consider them quite as much from my opponent's point of view as from my own. |
| 1971 |
Et primum ( quod non difficile dictu est sed tamen ante omnia intuendum ) constituebam , quid utraque pars vellet efficere , tum per quid , hoc modo . Cogitabam , quid primum petitor diceret . Id aut confessum erat aut controversum .
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The first point which I set myself to determine (it is easy enough to state, but is still all-important) was what each party desired to establish and then what means he was likely to adopt to that end. My method was as follows. I considered what the prosecutor would say first: his point must either be admitted or controversial: if admitted, no question could arise in this connexion. |
| 1972 |
Si confessum , non poterat ibi esse quaestio . Transibam ergo ad responsum partis alterius , idem intuebar ; nonnunquam etiam quod inde obtinebatur confessum erat . Ubi primum coeperat non convenire , quaestio oriebatur . Id tale est : Occidisti hominem ; Occidi .
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I therefore passed to the answer of the defence and considered it from the same standpoint: even there the point was sometimes one that was admitted. It was not until the parties ceased to agree that any question arose. 'fake for example the following case. "You killed a man. "Yes, I killed him." Agreed, I pass to the defence, |
| 1973 |
Convenit ; transeo . Rationem reddere debet reus , quare occiderit . Adulterum , inquit , cum adultera occidere licet .Legem esse certum est . Tertium iam aliquid videndum est , ex quo pugna consistat . Non fuerunt adulteri ; Fuerunt : quaestio ; de facto ambigitur , coniectura est .
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which has to produce the motive for the homicide. "It is lawful," lie urges, "to kill an adulterer with his paramour." Another admitted point, for there is no doubt about the law. We must look for a third point where the two parties are at variance. "They were not adulterers," say the prosecution; "They were," say the defence. Here then is the question at issue: there is a doubt as to the facts, and it is therefore a question of conjecure. Sometimes even the third point may be admitted; |
| 1974 |
Interim et hoc tertium confessum est adulteros fuisse Sed tibi , inquit accusator , illos non licuit occidere ; exul enim eras , aut ignominiosus .De iure quaeritur . At si protinus dicenti Occidisti respondeatur Non occidi , statim pugna est . Si explorandum est , ubi controversia incipiat , et considerari debet , quid primam quaestionem faciat . Intentio simplex , Occidit Saturninum Rabirius ;
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it is granted that they were adulterers. "But," says the accuser, "you had no right to kill them, for you were an exile" or "had forfeited your civil rights." The question is now one of law. On the other hand, if when the prosecution says, "You killed them," the defence at once replies, "I did not," the issue is raised without more delay. If it requires some search to discover where the dispute really begins, we must consider what constitutes the first question. The charge may be simple, |
| 1975 |
coniuncta , Lege de sicariis commisit L . Varenus . Nam C . Varenum occidendum et Cn . Varenum vulnerandum et Salarium item occidendum curavit . Nam sic diuersae propositiones erunt ; quod idem de petitionibus dictum sit . Verum ex coniuncta propositione plures esse quaestiones ac status possunt , si aliud negat reus , aliud defendit , aliud a iure actionis excludit . In quo genere agenti est dispiciendum , quid quoque loco diluat .
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as for example "Rabirius killed Saturninus," or complex like the following: " The offence committed by Lucius Varenus falls under the law of assassination for he procured the murder of Gaius Varenus, the wounding of Gnaeus Varenus and also the murder of Salarius. " In the latter case there will be a number of propositions, a statement which also applies to civil suits as well. But in a complex case there may be a number of questions and bases : for instance the accused may deny one fact, justify another and plead technical grounds to show that a third fact is not actionable. In such cases the pleader will have to consider what requires refutation and where that refutation should be placed. |
| 1976 |
Quod pertinet ad actorem , non plane dissentio a Celso , qui sine dubio Ciceronem secutus instat tamen huic parti vehementius , ut putet primo firmum aliquid esse ponendum , summo firmissimum , imbecilliora medio , quia et initio movendus sit iudex et summo impellendus .
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As regards the prosecutor, I do not altogether disagree with Celsus, who, though no doubt in so doing he is following the practice of Cicero, insists with some vehemence on the view that the first place should be given to some strong argument, but that the strongest should be reserved to the end, while the weaker arguments should be placed in the middle, since the judge has to be moved at the beginning and forcibly impelled to a decision at the end. But with the defence it is different: |