Institutio Oratoria (Quintilian)

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	Institutio Oratoria Author: Quintilian	Translator: Harold Edgeworth Butler
2015	Si lex omnes complectitur , nihil proderit . Quaeramus ergo num infirmari ex aliquam partem lex possit . Quid aliud ( saepius dicam ) natura permittit quam ut , cum verba contra sint , de voluntate quaeratur ? Generalis igitur quaestio , verbis an voluntate sit standum . Sed hoc ex commune de iure omni disputandum semper nec unquam satis iudicatum est . Quaerendum igitur ex hac ipsa , qua consistimus , an aliquid inveniri possit quod scripto adversetur .	But if the law applies to all men, it will be of no avail to plead lack of education. We must therefore try to discover whether there be not some point on which the law can be invalidated. We turn for guidance to nature (a point on which I cannot insist too often); what does she suggest save that when the letter of the law is against us, we should discuss its intention? This introduces the general question whether we are to stand by the letter or the spirit. But if we argue this question on general grounds with reference to law in the abstract, we shall go on for ever; it is a question that has never been decided. We must therefore restrict our enquiry to the particular law on which our case turns and try to find some argument against adhesion to the strict letter.
2016	Ergo , quisquis non adfuerit , exheres erit ? quisquis sine exceptione ? Iam se illa vel ultro offerent argumenta : Et infans ? filius enim est et non adfuit ; et qui aberat et qui militabat et qui ex legatione erat ? Iam multum acti est : potest aliquis non adfuisse et heres esse . Transeat nunc idem ille ,	Well, then, is everyone who fails to appear in defence of his father to be disinherited? Are there no exceptions to the rule? At this point the following arguments will spontaneously suggest themselves. "Is an infant liable to the law?" For we may imagine a case where the son is an infant and has failed to appear in his father's support. Again " does the law apply to a man who was away from home or absent on military service or on an embassy? " We have gained a considerable amount of ground; for we have established the fact that a man may fail to appear for his father and still inherit.
2017	qui hoc cogitavit , ut ait Cicero , tibicinis Latini modo ad disertum . Ut ista concedam , tu nec infans es nec abfuisti nec militasti . Num aliud occurrit quam illud , Sed rusticus sum ? Contra , quod palam est dici :	Our declaimer, who has thought out this line of argument, must now pass over like a Latin flute-player, as Cicero says, to the side of the eloquent son and reply, " Granted, but you are not an infant, you were not away from home nor absent on military service. " Is there any answer to this except the previous reply, "I am an uneducated man" ?
2018	Ut agere non potueris , adsidere potuisti ; et verum est . Quare redeundum rustico ad animum legumlatoris : Impietatem punire voluit , ego autem impius non sum .	But to this there is the obvious retort, "Even if you could not actually plead, you might have supported him by your presence," which is no more than the simple truth. The uneducated son must therefore return to the intention of the legislator. "He wished to punish unfilial conduct, but I am not unfilial."
2019	Contra quod disertus , Tu impie fecisti , inquit , cum exheredationem meruisti , licet te postea vel paenitentia vel ambitus ad hoc genus optionis adduxerit . Praeterea propter te damnatus est pater , videbaris enim de causa pronuntiasse . Ad haec rusticus : Tu vero ex causa damnationis fuisti , multos offenderas , inimicitias domui contraxeras . Haec coniecturalia ; illud quoque , quod coloris loco rusticus dicit , patris fuisse tale consilium , ne universam domum periculo subiiceret . Haec prima quaestione scripti et voluntatis continentur .	To this the eloquent son will reply, " The action whereby you deserved disinheritance was unfilial, although penitence or desire for display may have subsequently led you to choose this as your reward. Further, it was owing to you that our father was condemned, since by absenting yourself you appeared to imply that you thought him guilty. " The uneducated son replies, " Nay, you contributed to his condemnation, for you had given offence to many and made our family unpopular. " These arguments are based on conjecture, as also will be the excuse put forward by the uneducated son to the effect that his father advised his absence, as he did not wish to emperil his whole family. All these arguments are involved in the preliminary question as to the letter and the intention of the law.
2020	Intendamus ultra animum videamusque , an aliquid inveniri praeterea possit . Quo id modo fiet ? Sedulo imitor quaerentem , ut quaerere doceam , et omisso speciosiore stili genere ad utilitatem me summitto discentium . Omnes adhuc quaestiones ex persona petitoris ipsius duximus ; cur non aliquid circa patrem quaerimus ? dictum non est , Quisquis non adfuerit , exheres erit .	Let us pursue the matter further and see if we can discover any additional arguments. How is that to be done? I am deliberately imitating the actual train of thought of one who is engaged in such an enquiry with a view to showing how such enquiry should be conducted. I shall therefore put aside the more showy kind of composition, and concern myself solely with such as may be of real profit to the student. So far we have derived all our questions from the character of the claimant. But why should we not make some enquiries into the character of the father? Does not the law say that whoever fails to appear for his father is to be disinherited?
2021	Cur non conamur et sic quaerere , Num , cuicunque quis non adfuerit ? Facimus hoc saepe ex iis controversiis , ex quibus petuntur ex vincula qui parentes suos non alunt , ut eam quae testimonium ex filium peregrinitatis reum dixit , eum , qui filium lenoni vendidit . In hoc , de quo loquimur , patre quid apprehendi potest ? Damnatus est .	Why should we not try asking whether this means that he is to be disinherited, whatever the character of the father for whom he failed to appear? Such a course is often adopted in those controversial themes in which we demand that sons who fail to maintain their parents should be cast into prison: take for example the case of the mother who gave evidence against her son when accused of being an alien, or of the father who sold his son to a procurer. What, then, is there in the present case that we lay hold of as regards the character of the father?
2022	Numquid igitur lex ad absolutos tantum patres pertinet ? Dura prima fronte quaestio . Non desperemus ; credibile est hoc voluisse legumlatorem , ne auxilia liberorum innocentibus deessent . Sed hoc dicere rustico verecundum est , quia innocentem fuisse patrem fatetur .	He was condemned. But does the law apply only to those cases where the father is acquitted? At first sight the question is difficult. But let us not despair. It is probable that the intention of the legislator was that innocent parents should secure the support of their children. But the uneducated son will be ashamed to produce this argument, since he acknowledges that his father was innocent.
2023	Dat aliud argumentum controversiae Damnatus proditionis cum advocato exulet . Vix videtur posse fieri , ut poena filio ex eodem patre , et si adfuerit et si non adfuerit , constitute sit . Praeterea lex ad exules nulla pertinet . Non ergo credibile est de advocato damnati scriptum ; an possunt enim bona esse ulla exulis ?	There is, however, another line of argument which may be drawn from the enactment that the person condemned for treason should be banished together with his advocate. It seems almost impossible that in one and the same case a son should incur a penalty, both if he appeared in his father's defence and if he did not appear. Further, exiles are outlaws. Therefore the letter of the law cannot conceivably apply to the advocate of the condemned man.
2024	Rusticus ex utramque partem dubium facit ; disertus et verbis inhaerebit , ex quibus nulla exceptio est , et propter hoc ipsum poenam esse constitutam eis qui non adfuerint , ne periculo exilii deterreantur advocatione , et rusticum innocenti non adfuisse dicet . illud protinus non indignum quod adnotetur , posse ex uno statu duas generales fieri quaestiones , an quisquis ? an cuicunque ?	For how can an exile hold any property? The uneducated son raises a doubt as to the interpretation both of the letter and the spirit of the law. Tile eloquent son will cling to the strict letter of tile law, which makes no exception, and will argue that the reason for enacting a penalty against those who fail to appear for their fathers was to prevent their being deterred from the defence of their fathers by the risk of banishment, and he will assert that his brother failed to appear in defence of his innocent father. It may therefore be worth while pointing out that two general questions may arise out of one basis — for we may ask, "Is everyone who fails to appear liable to disinheritance?" or "Is he bound to appear irrespective of the character of his father?"
2025	Haec ex duabus personis quaesita sunt . Ex tertia autem , quae est adversarii , nulla oriri quaestio potest , quia nulla fit ei de sua parte controversia . Nondum tamen cura deficiat . Ista enim omnia dici possent etiam non restituto patre . Nec statim eo tendamus , quod occurrit ultro , a rustico restitutum . Qui subtiliter quaeret , aliquid spectabit ultra ; nam , ut genus species sequitur , ita species genus praecedit . Fingamus ergo ab alio restitutum :	So far all our questions have been derived from two of the persons involved. With regard to the third, this can give rise to no question, as there is no dispute about his portion of the inheritance. Still the time is not yet come to relax our efforts: for so far all the arguments might have been used even if the father had not been recalled from exile. But we must not betake ourselves at once to the obvious point that he was recalled by the agency of the uneducated son. A little ingenuity will lead us to look further a field: for as species comes after genus, so genus precedes
2026	ratiocinativa seu collectiva quaestio orietur , an restitutio pro sublatione iudicii sit et proinde valeat , ac si iudicium non fuisset . Ubi temptabit rusticus dicere ne impetrare quidem aliter potuisse suorum restitutionem uno praemio nisi patre proinde ac si accusatus non esset revocato , quae res advocati quoque poenam , tanquam is non adfuisset , remiserit .	species. Let us therefore assume that the father was recalled by someone else. This will give rise to a question of the ratiocinative or syllogistic type, namely whether recall from exile cancels the sentence of the court and is tantamount to the trial never having taken place at all. The uneducated son will therefore attempt to argue that, being entitled to not more than one reward, there was no means by which he could have secured the recall of his kin save by the restoration of his father on the same terms as if he had never been accused, and that this fact carries with it the cancellation of the penalty incurred by his advocate, as though he had never defended his father at all.
2027	Tum venimus ad id , quod primum occurrebat , a rustico esse restitutum patrem . Ubi rursus ratiocinamur , an restitutor accipi debeat pro advocate , quando id praestiterit quod advocatus petiit , nec improbum sit pro simili accipi quod plus est .	Our next point will be that which first occurred to us, namely the plea that he was recalled by the agency of the uneducated son. At this point we are confronted by the question whether the son who secured his father's restoration is thereby to be regarded in the light of an advocate, since he secured for him precisely what his original advocate demanded for him, and it is not an unreasonable claim to ask that an action should be regarded as equivalent when it is really more than equivalent.
2028	Reliqua iam aequitatis , utrius iustius sit desiderium . Id ipsum adhuc dividitur ; etiamsi uterque sibi totum vindicaret , nunc utique , cum alter semissem , alter universa fratre excluso . Sed his tractatis etiam habet magnum momentum apud iudices patris memoria , cum praesertim de bonis eius quaeratur . Erit ergo coniectura , qua mente pater intestatus decesserit . Sed ea pertinet ad qualitatem ; alterius status instrumentum est .	The remaining points turn on questions of equity, for we ask which of the two sons makes the juster claim. This question admits of still further division. The claim of the uneducated son would have been the juster even if both had claimed the whole property. How much more so when one claims only a half and the other the whole to the exclusion of his brother. And then, even after we have dealt with all these points, an appeal to the memory of his father will carry great weight with the judges, more especially as the dispute is about the father's estate. This will give rise to conjecture as to what the intentions of the father were at the time of his dying intestate. This conjecture, however, involves a question of quality, and is employed in the service of a different basis.
2029	Plerumque autem ex fine causarum de aequitate tractabitur , quia nihil libentius iudices audiunt . Aliquando tamen hunc ordinem mutabit utilitas , ut , si ex iure minus fiduciae erit , aequitate iudicem praeparemus .	As a rule questions of equity are best introduced at the conclusion of a case, since there is nothing to which the judges give more ready hearing. Sometimes, however, the interests of the case demand a change in this order; for example if we regard our case as weak in point of law, it will be well to secure the good-will of the judge by dealing with the question of equity first.
2030	Nihil habui amplius quod ex universum praeciperem . Nunc eamus per singulas causarum iudicialium partes , quas ut persequi ad ultimam speciem , id est ad singulas lites controversiasque , non possum , ita de generalibus scribere licet , ut , quae ex quemque statum frequentissime incidant , tradam . Et , quia natura prima quaestio est , factumne sit , ab hoc ordiar .	This concludes my general rules on this subject. We will now proceed to consider the several parts of forensic cases, and although I cannot follow them to the ultimate species, that is to say, I cannot deal with individual suits and controversies, I shall be able to discuss them on general lines in such a way as to show what bases most of them involve. And since the first question naturally is whether an alleged fact has taken place, I will begin with this.
2031	Coniectura omnis aut de re aut de animo est . Utriusque tria tempora , praeteritum , praesens , futurum . De re et generales quaestiones sunt et definitae , id est , et quae non continentur personis et quae continentur .	All conjecture is concerned either with facts or intention. Each of these may occur in one of three times, past, present or future. Questions concerning facts are either general or definite, that is to say, those which involve consideration of persons and those which do not.
2032	De animo quaeri non potest , nisi ubi persona est et de facto constat . Ergo cum de re agitur , aut quid factum sit in dubium venit aut quid fiat aut quid sit futurum , ut in generalibus , an atomorum concursu mundus sit effectus , an providentia regatur , an sit aliquando casurus ; in definitis : an parricidium commiserit Roscius , an regnum adfectet Manlius , an recte Verrem sit accusaturus Q . Caecilius .	Concerning intentions there can be no questions which do not involve some person and where the facts of the case are not admitted. Therefore when the question turns on some fact, the point on which doubt arises is either what has been done, or what is being done, or what is likely to be done. For example, in general questions we discuss whether the universe has been formed of a concourse of atoms, or is governed by providence, or is likely some day to come to an end. In definite questions, on the other hand, we discuss whether Roscius has murdered his father, whether Manlius is aiming at making himself king, or Quintus Caecilius will be justified in appearing as the accuser of Verres.
2033	In iudiciis praeteritum tempus maxime valet ; nemo enim accusat , nisi quae facta sunt . Nam quae fiant et quae futura sint ex praeteritis colliguntur . Quaeritur et unde quid ortum ? ut pestilentia ira deum an intemperie caeli an corruptis aquis an noxio terrae halitu . Et quae causa facti ? ut , quare ad Troiam quinquaginta reges navigaverint iure iurando adacti an exemplo moti an gratificantes Atridis . Quae duo genera non multum inter se distant .	In the law courts past time is of most importance, since all accusations are concerned with what has actually been done, while what is being done or is likely to be done is inferred from the past. We also enquire into origins. For instance, we enquire whether a pestilence be due to the anger of heaven, the inclement weather, the pollution of the water-supply, or the noxious vapours emitted by the earth. Again, we seek for the motives of an act. For example, we enquire whether the fifty kings who sailed against Troy did so because they were bound by their oath, or were moved to do so by righteous indignation, or merely desired to gratify the sons of Atreus. There is no very great difference between these two classes of question.
2034	Ea vero , quae sunt praesentis temporis , si non argumentis , quae necesse est praecessisse , sed oculis deprehendenda sunt , non egent coniectura , ut si apud Lacedaemonios quaeratur , an Athenis muri fiant . Sed et illud , quod potest videri extra haec positum , coniecturae genus , cum de aliquo homine quaeritur , qui sit ; ut est quaesitum contra Urbiniae heredes , is qui tanquam filius petebat bona , Figulus esset an Sosipater .	As regards facts falling within the present, if they can be detected by the eye without any reference to their logical antecedents being required, there will be no need of conjecture: let us suppose, for instance, that the Lacedaemonians are enquiring whether the Athenians are erecting fortifications. But although conjecture may seem entirely foreign to this class of question, there are cases in which it it necessary, as in questions of personal identity, which may be illustrated by the action brought against the heirs of Urbinia, where the question was whether the man who claimed the property as being the son of the deceased, was Figulus or Sosipater.
2035	Nam et substantia eius sub oculos venit , ut non possit quaeri , an sit , quomodo an ultra oceanum ; nec quid sit nec quale sit , sed quis sit ? Verum hoc quoque genus litis ex praeterito pendet , an hic sit ex Urbinia natus Clusinius Figulus . Fuerunt autem tales nostris etiam temporibus controversiae , atque aliquae in meum quoque patrocinium inciderunt .	In this case the actual person was before the eyes of the court, so that there could be no question whether he existed (as there is, for instance, when we ask whether there exists any land beyond the Ocean) nor what he was nor of what kind. The question was simply, who he was. But this kind of dispute also depends on past time. The problem is whether this man Clusinius Figulus was born of Urbinia. Such disputes have arisen even in our own day, indeed I myself have pleaded in such. On the other hand,
2036	Animi coniectura non dubie in omnia tempora cadit , qua mente Ligarius in Africa fuerit , qua mente Pyrrhus foedus petat , quomodo laturus sit Caesar , si Ptolemaeus Pompeium occiderit . Quaeritur per coniecturam et qualitas circa modum , speciem , numerum , an sol maior quam terra , luna globosa an plana an acuta , unus mundus an plures . Itemque extra naturales quaestiones ,	conjecture as to intention is obviously concerned with all three times. We ask with what purpose Ligarius went to Africa, with what purpose Pyrrhus is asking for a treaty, and how Caesar will take it if Ptolemy kills Pompey. We may also employ conjecture to enquire into quality in questions dealing with size, species and number, such as whether the sun is greater than the earth, whether the moon is spherical, flat or conical, whether there is one universe or several, or,
2037	maius bellum Troianum an Peloponnesium , qualis clipeus Achillis , an unus Hercules . In iis autem , quae accusatione ac defensione constant , unum est genus , in quo quaeritur et de facto et de auctore ; quod interim coniunctam quaestionem habet , cum utrumque pariter negatur , interim separatam , cum et factum sit necne , et si de facto constet , a quo factum sit ambigitur .	to go outside these physical speculations, whether the Trojan or the Peloponnesian war was the greatest, what was the nature of the shield of Achilles, or whether there was more than one Hercules. In forensic cases, however, which consist of accusation and defence, there is one kind of conjecture by which we enquire both about an act and about its author. This sometimes treats the two questions together, as, for example, when both the act and the identity of the author are denied, and sometimes separately, as when the first enquiry, whether the act was committed, is followed by a second, where, the act being admitted, the question is by whom it was committed.
2038	Ipsum quoque factum aliquando simplicem quaestionem habet , an homo perierit , aliquando duplicem , veneno an cruditate perierit . Alterum est genus de facto tantum , cum , si id certum sit , non potest de auctore dubitari ; tertium de auctore tantum , cum factum constat , sed a quo sit factum in controversiam venit . Et hoc , quod tertio loco posui , non est simplex .	The act itself again sometimes involves a single question, as, for example, whether a man is dead, and sometimes two, as, for instance, whether he died of poison or of some internal disease. Another form of conjecture is concerned with the act alone, it being admitted that if the act was really committed, there can be no doubt as to its author. A third form is concerned solely with the author, the act being admitted and the dispute turning on the question as to who committed it. This third form is complex.
2039	Aut enim reus fecisse tantummodo se negat aut alium fecisse dicit . Sed ne in alterum quidem transferendi criminis una forma est . Interdum enim substituitur mutua accusatio , quam Graeci ἀντικατηγορίαν vocant , nostrorum quidam concertativam . Interdum in aliquam personam , quae extra discrimen iudicii est , transfertur , et alias certam , alias incertam ;	For the accused either confines himself to denying that he did it or accuses another of having done it. Further, there is more than one way of transferring the charge to another. At times this results in mutual accusation, which the Greeks call ἀντικατηγορία, and some of our own authors concertative accusation. At times, on the other hand, the charge is transferred to some person who cannot be brought to trial, and may be either known or unknown: again, if the person is known, he may be someone outside the case or the victim himself, who may be alleged to have committed suicide.
2040	et , cum certam , aut in extrariam aut in ipsius qui periit voluntatem . In quibus similis atque in ἀντικατηγορίᾳ personarum , causarum , ceterorum comparatio est , ut Cicero pro Vareno in familiam Ancharianam , pro Scauro circa mortem Bostaris in matrem avertens crimen facit .	In such cases we compare characters, motives and other circumstances in the same way as in eases of mutual accusation. Cicero, for instance, in the pro Vareno diverts the charge from the accused to the slaves of Ancharius and in the pro Scauro throws the suspicion of Bostar's murder upon his mother.
2041	Est etiam illud huic contrarium comparationis genus , in quo uterque a se factum esse dicit ; et illud in quo non personae inter se sed res ipsae colliduntur , id est , non uter fecerit , sed utrum factum sit . Cum de facto et de auctore constat , de animo quaeri potest . Nunc de singulis . Cum pariter negatur , hoc modo : Adulterium non commisi ; tyrannidem non adfectavi . In caedis ac veneficii causis frequens est illa divisio : Non est factum ; et si est factum , ego non feci .	There is also a different form of comparison, which comes into play when both parties claim the credit of some act, and yet another kind, when the question is not as between two persons, but as between two acts; that is to say, the question is not which of the two committed an act, but which of two acts was committed. Finally, if the act and the identity of the author are both admitted, we may still raise the question of his intention. I shall now proceed to detail. As an example of joint denial covering both the act and the identity of the author we may take the following statements, "I have not committed adultery, "I have not sought to establish myself as tyrant." In cases of murder or poisoning the denial is often divided as follows:
2042	Sed , cum dicimus , Proba hominem occisum , accusatoris tantum partes sunt ; a reo nihil dici contra praeter aliquas fortasse suspiciones potest , quas spargere quam maxime varie oportebit , quia , si unum aliquid adfirmaris , probandum est aut causa periclitandum . Nam cum inter id quod ab adversario et id quod a nobis propositum est quaeritur , videtur utique alterum verum ; ita everso quo defendimur , reliquum est quo premimur ,	"The act was not committed, and, if it was committed, it was not by me." But if the defence say, "Prove that the man was killed," the burden falls solely on the accuser, for the accused can say nothing more against the charge except perhaps in the way of casting certain suspicions, which he should throw out in the vaguest terms, since if you make one definite assertion, you will have to prove it or run the risk of losing your case. For when the question lies between our statement and that of our opponent, one or other will be regarded as true. Thus when the point on which we relied for our defence is overthrown, there is nothing left but the points that tell against us.
2043	ut cum quaerimus de ambiguis signis cruditatis et veneni , nihil tertium est ideoque utraque pars , quod proposuit , tuetur . Interim autem ex re quaeritur , veneficium fuerit an cruditas ; cum aliqua ex ipsa citra personam quoque argumenta ducuntur .	For example, when the question turns on symptoms, which may point either to poisoning or internal disease, there is no third course left open and consequently each party sticks to his statement. At times the question turns on the nature of the fact, whether, for instance, death was due to poisoning or internal disease, and arguments are introduced which are drawn from the circumstances alone without any reference to the person concerned.
2044	Refert enim , convivium praecesserit laetitia an tristitia , labor an otium , vigilia an quies . Aetas quoque eius , qui periit , discrimen facit ; interest , subito defecerit an longiore valetudine consumptus sit . Liberior adhuc in utramque partem disputatio , si tantum subita mors in quaestionem venit .	For example, it makes a difference whether the deceased was cheerful or depressed, had been working or taking his ease, had been awake or sleeping previous to the festive gathering that was followed by his death. The age of the deceased is also an important factor, and it is desirable to know whether he died suddenly or after a long period of ill health. If the question turns only on his sudden death, both parties will have still freer scope for discussion.
2045	Interim ex persona probatio rei petitur , ut propterea credibile sit venenum fuisse , quia credibile est ab hoc factum veneficium , vel contra . Cum vero de reo et de facto quaeritur , naturalis ordo est , ut prius factum esse accusator probet , deinde a reo factum . Si tamen plures in persona probationes habuerit , conuertit hunc ordinem .	At times the character of the accused may be adduced to prove the fact, and to make it likely that it was or was not a case of poisoning because the accused is or is not a likely person to have committed such an act. When, on the other hand, the enquiry concerns both the accused and the act, the natural order for the accuser to pursue is to commence by proving that the act has been committed and then to go on to show that it was committed by the accused. If, however, proofs of the authorship of the crime are more in number than the proofs of the commission, this order may be reversed.
2046	Defensor autem semper prius negabit esse factum , quia , si in hac parte vicerit , reliqua non necesse habet dicere ; victo superest , ut tueri se possit . Illic quoque , ubi de facto tantum controversia est , quod si probetur non possit de auctore dubitari , similiter argumenta et ex persona et ex re ducuntur , sed in unam facti quaestionem ,	On the other hand, the accused will always begin by denying the act, since if this can be successfully proved, there is no need to say anything more, while if it is not proved, there remain other means of defence. Similarly, when the dispute turns solely on the act and, the act being proved, there can be no doubt as to the author, arguments may be drawn in like manner both from the person and the facts, although with reference to the question of fact alone.
2047	sicut in illa controversia : ( utendum est enim et his exemplis , quae sunt discentibus magis familiaria ) Abdicatus medicinae studuit . Cum pater eius aegrotaret , desperantibus de eo ceteris medicis , adhibitus sanaturum se dixit , si is potionem a se datam bibisset . Paler , acceptae potionis epota parte , dixit uenenum sibi datum ; filius quod reliquum erat exhausit : pater decessit , ille parricidii reus est .	Take the following controversial theme as an example, for it is best to employ scholastic themes as illustrations since they are more familiar to the student. " A man who had been disinherited by his father took to the study of medicine. His father fell sick and, his life being despaired of by the other doctors, the son was called in, and said he would cure him if he would take a draught prescribed by himself. The father after drinking part of the draught said that he had been poisoned: the son drank the remainder of the draught. The father died and the son is accused of parricide. "
2048	Manifestum , quis potionem dederit , quae si veneni fuit , nulla quaestio de auctore ; tamen , an venenum fuerit , ex argumentis a persona ductis colligetur . Superest tertium , in quo factum esse constat aliquid , a quo sit factum , quaeritur . Cuius rei supervacuum est ponere exemplum , cum plurima sint huiusmodi iudicia , ut hominem occisum esse manifestum sit vel sacrilegium commissum , is autem , qui arguitur fecisse , neget . Ex hoc nascitur ἀντικατηγορία ; utique enim factum esse convenit , quod duo invicem obiiciunt .	There is no doubt who administered the draught, and, if it was poison, there is no question as to the author: but the problem as to whether the draught was poison can only be decided by arguments drawn from the character of the accused. There remains a third type of conjectural case where the fact is admitted, and the only question is as to the author. It is unnecessary for me to quote examples, since such cases are of frequent occurrence. For example, it may be clear that a man has been killed or that sacrilege has been committed, but the person accused of the crime may deny his guilt. It is from such circumstances that cases of mutual accusation arise, where it is admitted that the crime has been committed, but each party charges the other with being the author.
2049	In quo quidem genere causarum admonet Celsus fieri id in foro non posse ; quod neminem ignorare arbitror . De uno reo consilium cogitur , et etiam si qui sunt , qui invicem accusent , alterum iudicium praeferre necesse est .	With regard to this class of case Celsus points out that they cannot actually occur in the courts, a fact which I imagine is familiar to all: for the jury is empanelled to try one accused person only, and even though the defence and the prosecution may accuse each other of tile crime, the first case must be tried before the second.
2050	Apollodorus quoque ἀντικατηγορίαν duas esse controversias dixit , et sunt revera secundum forense ius duae lites . Potest tamen hoc genus in cognitionem venire senatus aut principis . Sed in iudicio quoque nihil interest actionum ,	Apollodorus again stated that mutual accusation involved two separate disputes, and this is of course in conformity with the practice of the courts, which insists on two separate trials. On the other hand, mutual accusation is possible in cases tried before the senate or the emperor, and even in the courts the fact of mutual accusation will involve no difference in the pleadings, since the same methods will be required whether the verdict is given on both charges simultaneously or only on one.
2051	utrum simul de utroque pronuntietur an sententia de uno feratur . Quo in genere semper prior debebit esse defensio , primum quia natura potior est salus nostra quam adversarii pernicies , deinde quod plus habebimus in accusatione auctoritatis , si prius de innocentia nostra constiterit , postremum , quod ita demum duplex causa erit . Nam qui dicit , Ego non occidi , habet reliquam partem , ut dicat , Tu occidisti ; at qui dicit , Tu occidisti , supervacuum habet postea dicere , Ego non occidi .	In such cases the defence must always come first for three reasons. In the first place, we naturally prefer to secure our own safety than to injure our opponent, while secondly, our accusation will carry greater weight if we have first proved our own innocence, and thirdly, we shall thus secure a double line of defence. For the man who says, "I did not kill him," is then free to go on to say, "You killed him," whereas it is superfluous for the man who says, "You killed him," to go on to say, "I did not kill him."
2052	Hae porro actiones constant comparatione ; ipsa comparatio non una via ducitur . Aut enim totam causam nostram cum tota adversarii causa componimus aut singula argumenta cum singulis . Quorum utrum sit faciendum , non potest nisi ex ipsius litis utilitate cognosci : ut Cicero singula pro Vareno comparat in primo crimine ; etenim in posteriore crimine persona alieni cum persona matris temere compararetur . Quare optimum est , si fieri poterit , ut singula vincantur a singulis ; sed si quando in partibus laborabimus , universitate pugnandum est . Et sive invicem accusant ,	Further, such cases consist of comparison, which may be effected in different ways. For we may either compare our case in its entirety with that of our adversary, or we may compare individual arguments. The choice between these two methods can only be determined by the requirements of the case. For example, in the pro Vareno, Cicero, in dealing with the first charge, compares the individual arguments: for it would have been rash in connexion with the second charge to compare the position of a stranger with that of a mother. It is therefore best, if possible, to refute argument by individual argument: if, however, our individual arguments are weak, we shall try to secure success by comparison of case with case as a whole.