Institutio Oratoria |
Translator: Harold Edgeworth Butler
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| 2053 |
sive crimen reus citra accusationem in adversarium vertit ( ut Roscius in accusatores suos , quamvis reos non fecisset ) , sive in ipsos , quos sua manu periisse dicemus , factum deflectitur , lion aliter quam in iis quae mutuam accusationem habent utriusque partis argumenta inter se comparantur .
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But whether the case is one of mutual accusation, or the accused throws the guilt upon his opponent without making any formal accusation (as Roscius did without indicting his accusers), or the responsibility for the deed be placed on the victims themselves, whom we allege to have perished by their own hand, the arguments for both sides of the case will be compared in exactly the same way as in cases of mutual accusation. |
| 2054 |
Id autem genus de quo novissime dixi non solum in scholis saepe tractatur , sed etiam in foro . Nam id est in causa Naevii Arpiniani solum quaesitum , praecipitata esset ab eo uxor an se ipsa sua sponte iecisset . Cuius actionem et quidem solam in hoc tempus emiseram , quod ipsum me fecisse ductum iuvenali cupiditate gloriae fateor . Nam ceterae , quae sub nomine meo feruntur , negligentia excipientium in quaestum notariorum corruptae minimam partem mei habent .
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The class of case last mentioned by me is, however, not merely of frequent occurrence in the schools, but sometimes actually occurs in the courts. For example, the sole question in the case of Naevius of Arpinum was whether he threw his wife out of the window or she threw herself. My speech in this case is the only one of all my pleadings that I have so far published, and I admit that I was led to do so merely by a youthful desire for glory. For the other speeches which circulate as mine have little in them that actually fell from my lips, having been corrupted by the carelessness of the shorthand-writers who took them down with a view to making money out of them. |
| 2055 |
Est et alia duplex coniectura huic ἀντικατηγορίᾳ diversa , de praemiis , ut in illa controversia , Tyrannus suspicatus a medico suo datum sibi venenum torsit eum et , cum is dedisse se pernegaret , arcessit alterum medicum ; ille datum ei venenum dixit , sed se antidotum daturum , et dedit ei potionem , qua epota tyrannus decessit . De praemio duo medici contendunt . Nam ut illic factum in adversarium transferentium , ita hic sibi vindicantium personae , causae , facultates , tempora , instrumenta ,
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There is also another type of conjectural case which, though it involves two questions, is different from cases of mutual accusation; such cases are concerned with rewards and may be illustrated by the following controversial theme. " A tyrant, suspecting that his physician had given him poison, tortured him and, since he persisted in denying that he had done so, sent for a second physician. The latter asserted that poison had been administered, but that he would provide an antidote; he gave him a draught: the tyrant drank it and died. Both physicians claim a reward for slaying the tyrant. " Now just as in cases of mutual accusation where each party shifts the guilt to his opponent, so in this case we compare the characters, motives, means, opportunities, instruments and evidence of the persons who claim the reward. |
| 2056 |
testimonia comparantur . Illud quoque , etiamsi non est ἀντικατηγορία , simili tamen ratione tractatur , in quo citra accusationem quaeritur , utrum factum sit . Utraque enim pars suam expositionem habet atque eam tuetur , ut in lite Urbiniana petitor dicit , Clusinium Figulum filium Vrbiniae acie victa , in qua steterat , fugisse , iactatumque casibus variis , retentum etiam a rege , tandem in Italiam ac patriam suam Marrucinos venisse atque ibi agnosci ; Pollio contra , servisse eum Pisauri dominis duobus , medicinam factitasse , manumissum alienae se familiae venali immiscuisse , a se rogantem , ut ei serviret , emptum .
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There is yet another type of case which, though not one of mutual accusation, is treated in the same way: I mean a case in which we enquire, without accusing anyone, which of two acts has taken place. For both parties make and defend their own statement of the case. Thus in the suit concerning the estate of Urbinia the claimant says that Clusinius Figulus, the son of Urbinia, on the defeat of the army in which he was serving, fled and after various misfortunes, being even even kept in captivity by the king, at length returned to Italy and his own home in the Marrucine district, where he was recognised. To this Pollio replies that he had been a slave to two masters at Pisaurum, that he had practised medicine, and finally, after receiving his freedom, inserted himself into a gang of slaves who were for sale and was at his own request purchased by himself. |
| 2057 |
Nonne tota lis constat duarum causarum comparatione et coniectura duplici atque diversa ? Quae autem accusantium ac defendentium , eadem petentium et infitiantium ratio est . Ducitur coniectura primum a praeteritis . In his sunt personae , causae , consilia . Nam is ordo est , ut facere voluerit , potuerit , fecerit . Ideoque intuendum ante omnia , qualis sit de quo agitur .
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Does not the whole suit consist of comparison between the two cases and of two different and opposite sets of conjecture? But the method to be followed is identical whether the case be one of accusation and defence or of claim and denial of the claim. Conjecture is, in the first place, based on what is past, under which I include persons, causes and intent. For in dealing with a case we first ask what the accused intended to do, next what he was in a position to do, and lastly what he actually did. Consequently the first point on which we must fix our attention is the character of the accused. |
| 2058 |
Accusatoris autem est efficere ut , si quid obiecerit non solum turpe sit , sed etiam crimini , de quo est iudicium , quam maxime conveniat . Nam si reum caedis impudicum vel adulterum vocet , laedat quidem infamia , minus tamen hoc ad fidem valeat quam si audacem , petulantem , crudelem , temerarium ostenderit .
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It is the business of the accuser to make any charge that he may bring against the accused not merely discreditable, but as consistent as possible with the crime for which he is arraigned. For example, if he calls a man accused of murder a debauchee or an adulterer, the discredit attaching to such charges will no doubt tell against the accused, but will, on the other hand, do less to prove the case than if he shows him to be bold, insolent, cruel or reckless. |
| 2059 |
Patrono , si fieri poterit , id agendum est ut obiecta vel neget vel defendat vel minuat ; proximum est ut a praesenti quaestione separet . Sunt enim pleraque non solum dissimilia , sed etiam aliquando contraria : ut si reus furti prodigus dicatur aut negligens . Neque enim videtur in eundem et contemptus pecuniae et cupiditas cadere .
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On the other hand, counsel for the defence must, as far as possible, aim at denying, excusing or extenuating such charges, or, if that be impossible, show that they are not relevant to the case. For there are many charges which not only have no mutual resemblance, but may even at times contradict each other, as for instance if a man accused of theft is called prodigal or careless. For it is not likely that one and the same man should at once despise money and covet it. |
| 2060 |
Si deerunt haec remedia , ad illa declinandum est , non de hoc quaeri nec eum , qui aliquando peccaverit , utique commisisse omnia , et hanc fiduciam fuisse accusatoribus falsa obiiciendi , quod laesum et vulneratum reum speraverint hac invidia opprimi posse .
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If such means of defence are not available, we must take refuge with the plea that the charges made are not relevant to the case, that because a man has committed certain sins, it does not follow that he has committed all, and that the accusers ventured to make such false charges merely because they hoped by injuring and insulting the accused to be able to overwhelm him with the unpopularity thus created. |
| 2061 |
Alii a propositione accusatoris contraque eam loci oriuntur . Saepe a persona prior ducit argumenta defensor et interim generaliter , incredibile esse a filio patrem occisum , ab imperatore proditam hostibus patriam . Facile respondetur vel quod omnia scelera in malos cadant ideoque saepe deprehensa sint , vel quod indignum sit crimina ipsa atrocitate defendi .
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There are also other topics which arise from and against the statement of the case by the prosecution. The defence may begin by drawing arguments from the person involved, and will at times urge on general grounds that it is incredible that a father has been killed by his son or that a commander has betrayed his country to the enemy. The answer to such arguments is easy, for we may urge that bad men are capable of every crime, as is shown by every-day occurrences, or that the atrocious nature of a crime is but a poor argument against its having been committed. |
| 2062 |
Interim proprie , quod est varium . Nam dignitas et tuetur reum et nonnunquam ipsa in argumentum facti convertitur , tanquam inde fuerit spes inpunitatis ; proinde paupertas , humilitas , opes , ut cuique ingenio vis est , in diversum trahuntur .
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At times we may base our arguments on the special circumstances of the person involved. This may be done in various ways: rank, for example, may be pleaded in defence of the accused, or at times, on the other hand, may be employed to prove his guilt on the ground that he trusted to his rank to secure impunity. Similarly poverty, humble rank, wealth may be used as arguments for or against the accused according to the talent of the advocate. |
| 2063 |
Probi vero mores et anteactae vitae integritas nunquam non plurimum profuerint . Si nihil obiicietur , patronus quidem in hoc vehementer incumbet , accusator autem ad praesentem quaestionem , de qua sola iudicium sit , cognitionem adligabit dicens neminem non aliquando coepisse peccare , nec per encaenia ducendum scelus primum .
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Upright character, however, and the blamelessness of his past life are always of the utmost assistance to the accused. If no charge is made against his character, counsel for the defence will lay great stress on this fact, while the accuser will attempt to restrict the judge to the sole consideration of the actual issue which the court has to decide, and will say that there must always be a first step in crime and that a first offence is not to be regarded as the occasion for celebrating a feast in honour of the defendant's character. |
| 2064 |
Haec in respondendo . Sic autem praeparabit actione prima iudicum animos , ut noluisse potius obiicere quam non potuisse credatur . Eoque satius est omni se ante actae vitae abstinere convicio quam levibus aut frivolis aut manifesto falsis reum incessere , quia fides ceteris detrahitur ; et qui nihil obiicit , omisisse credi potest maledicta tanquam supervacua ; qui vana congerit , confitetur unum in anteactis argumentum , in quibus vinci quam tacere maluerit .
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So much for the methods of reply which will be employed by the prosecution. But he will also in his opening speech endeavour to dispose the judges to believe that it is not so much that he is unable, as that he is unwilling to bring any charge against the character of the accused. Consequently it is better to abstain from casting any slur on the past life of the accused than to attack him with slight or frivolous charges which are manifestly false, since such a proceeding discredits the rest of our argument. Further, the advocate who brings no charges against the accused may be believed to have omitted all reference to past offences on the ground that such reference was not necessary, while the advocate who heaps up baseless charges thereby admits that his only argument is to be found in the past life of the accused, and that he has deliberately preferred to risk defeat on this point rather than say nothing at all about it. |
| 2065 |
Cetera , quae a personis duci solent , in argumentorum locis exposuimus . Proxima est ex causis probatio , in quibus haec maxime spectantur , ira , odium , metus , cupiditas , spes ; nam reliqua in horum species cadunt . Quorum si quid in reum conveniet , accusatoris est efficere ut ad quidquid faciendum causae valere videantur , easque quas in argumentum sumet augere ; si minus , illuc conferenda est oratio ,
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As regards the other arguments derived from character, I have already discussed them in connexion with "places" of argument. The next type of proof is derived from causes or motives, such as anger, hatred, fear, greed or hope, since all motives can be classified as species of one or other of these. If any of these motives can be plausibly alleged against the accused, it is the duty of the accuser to make it appear that such motives may lead a man to commit any crime, and to exaggerate the particular motives which he selects for the purpose of his argument. |
| 2066 |
aut aliquas fortasse latentes fuisse aut nihil ad rem pertinere cur fecerit , si fecit , aut etiam dignius esse odio scelus , quod non habuerit causam . Patronus vero , quotiens poterit , instabit huic loco , ut nihil credibile sit factum esse sine causa . Quod Cicero vehementissime multis orationibus tractat , praecipue tamen pro Vareno , qui omnibus aliis premebatur ; nam et damnatus est . At ,
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If no such motive can be alleged, he must take refuge in suggesting that there must have been some hidden motive, or in asserting that, if he committed the act, all enquiry into motive is irrelevant or that a motiveless crime is even more abominable than one which has a motive. Counsel for the defence, on the other hand, will, wherever it be possible, emphasise the point that it is incredible that any act should be committed without a motive. Cicero develops this point with great energy in a number of his speeches, but more especially in his defence of Varenus, who had everything else against him and was as a matter of fact condemned. |
| 2067 |
si proponitur , cur factum sit , aut falsam causam aut levem aut ignotam reo dicet . Possunt autem esse aliquae interim ignotae , an heredem habuerit , an accusaturus fuerit eum , a quo dicitur occisus . Si alia defecerint , non utique spectandas esse causas ; nam quem posse reperiri , qui non metuat , oderit , speret ?
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But if the prosecution do allege some motive, he will either say that the motive alleged is false or inadequate or unknown to the accused. For it is possible that a man may be quite ignorant of motives imputed to him. He may not, for example, have known whether the man whom he is accused of having killed had appointed him his heir or intended to prosecute him. All else failing, we may urge that motives are not necessarily of importance. For what man is there who is not liable to the emotions of fear, hatred or hope, and yet numbers of persons act on these motives without committing crime? |
| 2068 |
plurimos tamen haec salva innocentia facere . Neque illud est omittendum , non omnes causas in omnibus personis valere . Nam ut alicui sit furandi causa paupertas , non erit idem in Curio Fabricioque momentum .
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Nor should we neglect the point that all motives do not apply to all persons. For example, although poverty may in certain cases be a motive for theft, it will not have the same force with men such as Curius or Fabricius. |
| 2069 |
De causa prius an de persona dicendum sit , quaeritur , varieque est ab oratoribus factum , a Cicerone etiam praelatae frequenter causae . Mihi , si neutro litis condicio praeponderet , secundum naturam videtur incipere a persona . Nam hoc magis generale est rectiorque divisio , an ullum crimen credibile , an hoc .
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The question has been raised as to whether we should deal first with persons or motives, and different orators have given different answers: Cicero as a rule prefers to treat motives first. For my own part, if the circumstances of the case do not point strongly in either direction, I consider that the most natural course is to begin by dealing with persons. For the enquiry whether any crime can credibly be imputed to such a man as the accused is of a more general character than the question whether some one particular crime can be imputed, and in addition involves a greater correctness in division. |
| 2070 |
Potest tamen id ipsum , sicut pleraque , vertere utilitas . Nec tantum causae voluntatis sunt quaerendae , sed interim et erroris , ut ebrietas , ignorantia . Nam ut haec in qualitate crimen elevant , ita in coniectura premunt .
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Still, in many cases expediency may make it desirable to reverse the order. Further, we have to seek not merely motives affecting the will, but also causes leading to error, such as drunkenness or ignorance. For just as such considerations lessen the guilt of a crime when regarded from the point of view of its quality, so they tell heavily against the criminal as far as the question of fact is concerned. |
| 2071 |
Et persona quidem nescio an unquam , utique in vero actu rei , possit incidere , de qua neutra pars dicat ; de causis frequenter quaeri nihil attinet , ut in adulteriis , ut in furtis , quia illas per se ipsa crimina secum habent .
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I should imagine that there could never be a case, or at any rate an actual case in the courts, in which neither side said anything about the character of the persons involved; but this is not true of causes and motives, for it is often wholly unnecessary to trouble ourselves about them, as, for example, in cases of theft or adultery, crimes which carry their motives on the face of them. |
| 2072 |
Post haec intuenda videntur et consilia , quae late patent ; an credibile sit , reum sperasse id a se scelus effici posse , an ignorari , cum fecisset , an , etiamsi ignoratum non esset , absolvi vel poena levi transigi vel tardiore vel ex qua minus incommodi consecuturus quam ex facto gaudii videretur , an etiam tanti putaverit poenam subire ;
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Next we must consider the intention, a term which involves a number of questions, such as whether it is probable that the accused hoped that he would be able to carry such a crime into effect, or that it would escape detection when committed, or that, even if detected, it would be pardoned or punished but lightly or after considerable lapse of time, or that the inconvenience involved by the penalty would be outweighed by the pleasure resulting from the crime: or again, whether it was worth while incurring the penalty; |
| 2073 |
post haec , an alio tempore et aliter facere vel facilius vel securius potuerit , ut dicit Cicero pro Milone enumerans plurimas occasiones , quibus ab eo Clodius impune occidi potuerit ; praeterea , cur potissimum illo loco , illo tempore , illo modo sit aggressus , ( qui et ipse diligentissime tractatur pro eodem locus ) an ,
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and further, whether he could have done the deed at some other time and in some other way, or with greater ease or security, as Cicero says in the pro Milone, where he mentions the numerous occasions when his client could have killed Clodius with impunity. There is also the question why the accused should have chosen that particular place or time or means for the commission of the crime, a topic to which Cicero gives a thorough treatment in the same passage; |
| 2074 |
etiamsi nulla ratione ductus est , impetu raptus sit et absque sententia , ( nam vulgo dicitur scelera non habere consilium ) an etiam consuetudine peccandi sit ablatus . Excussa prima parte , an voluerit , sequitur , an potuerit . Hic tractatur locus , tempus , ut furtum in loco cluso , frequenti , tempore vel diurno , cum testes plures , vel nocturno , cum maior difficultas .
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or whether, without having the least reason for the deed, he was carried away by the impulse of the moment and acted without deliberate purpose (for it is a common saying that crimes are irrational), or finally, whether he was led astray by the fact that crime had become a habit with him. Having dealt with the question whether he intended to commit the crime, we proceed to the question whether he was in a position to commit it. Under this head we discuss the place and occasion of the offence. For instance, in a case of theft we ask whether it was committed in a secluded or frequented spot, in the daytime, when witnesses are more numerous, or by night, when success is more difficult. |
| 2075 |
Inspiciuntur itaque difficultates occasionesque , quae sunt plurimae ideoque exemplis non egent . Hic sequens locus talis est , ut , si fieri non potuit , sublata sit lis ; si potuit , sequatur quaestio an fecerit . Sed haec etiam ad animi coniecturam pertinent , nam et ex his colligitur an speraverit . Ideo spectari debent et instrumenta , ut Clodii ac Milonis comitatus . Quaestio ,
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Consequently we shall consider all the circumstances rendering the act difficult or easy of accomplishment; these require no illustration, being numerous and familiar. This second topic is of such importance that, if it is impossible to give it satisfactory treatment, the case falls to the ground; if, however, we succeed in dealing with it adequately, we must proceed to consider whether the accused actually committed the act. But this topic involves conjecture as to intention, for it is from these facts that we infer whether he hoped for success or not. Therefore we must also consider the question of the means at his disposal, such, for example, as the retinues of Clodius and Milo. |
| 2076 |
an fecerit , incipit a secundo tempore , id est praesenti , deinde coniuncto , quorum sunt sonus , clamor , gemitus ; insequentis latitatio , metus , similia . His accedunt signa , de quibus tractatum est , verba etiam et facta , quaeque antecesserunt quaeque insecuta sunt .
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The question whether he actually did the deed belongs, in the first place, to the second division of time, namely the present, and secondly to time that is almost, though not actually contemporary: under this latter head come circumstances such as noise, cries or groans, while concealment, fear and the like belong to subsequent time. To these must be added indications, which we have already discussed elsewhere, and words and acts antecedent or subsequent to the crime. |
| 2077 |
Haec aut nostra sunt aut aliena . Sed verba nobis magis nocent et minus prosunt nostra quam aliena ; magis prosunt et minus nocent aliena quam nostra . Facta autem interim magis prosunt nostra , interim aliena , ut si quid , quod pro nobis sit , adversarius fecit ; semper vero magis nocent nostra quam aliena .
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These words and acts are either our own or those of others. With regard to words, our own do us greater harm and bring us less profit than do those of others, while those of others bring us greater profit and do us less harm than our own. On the other hand, with regard to deeds, it is sometimes from our own and sometimes from those of others that we derive the greatest advantage, as, for example, when our opponent has done something which tells in our favour: but our own acts are always more injurious to our case than are those of others. |
| 2078 |
Est et illa in verbis differentia , quod aut aperta sunt aut dubia . Seu nostra seu aliena sunt , infirmiora in utrumque sint necesse dubia ; tamen nostra saepe nobis nocent , ut in illa controversia : Interrogatus filius , ubi esset pater , dixit , Ubicunque est , vivit ; at ille in puteo mortuus est inventus . Aliena ,
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Again, with regard to words, we must distinguish between those whose meaning is clear and those whose significance is doubtful. The latter will necessarily give less assistance to either side, be they our own words or another's. On the other hand, any ambiguity in our own words will always tell against us, as, for example, in the following controversial theme. " A son, on being asked where his father was, replied: 'Wherever he is, he is alive.' But the father was found dead at the bottom of a well. " |
| 2079 |
quae sunt dubia , nunquam possunt nocere nisi aut incerto auctore aut mortuo . Nocte audita vox est , cauete tyrannidem ; et , Interrogatus , cuius veneno moreretur respondit , Non expedit tibi scire . Nam si est , qui possit interrogari , solvet ambiguitatem .
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When the ambiguity lies in words used by others, they can never do us any harm, unless he who uttered them be unknown or dead; I will give two illustrations of my meaning: "A cry was heard at night, 'Be on your guard against the establishment of a tyranny';" and, "on being asked who had poisoned him, he replied: 'It is not fit that you should know.'" For if the speaker is available for examination, he will clear up the ambiguity. |
| 2080 |
Cum autem dicta factaque nostra defendi solo animo possint , aliena varie refutantur . De uno quidem maximo genere coniecturalium controversiarum locuti videmur , sed in omnes aliquid ex his cadit . Nam furti , depositi , creditae pecuniae et a facultatibus argumenta veniunt , an fuerit , quod deponeretur , et a personis , an ullum deposuisse apud hunc , vel huic credidisse credibile sit , an petitorem calumniari , an reum infitiatorem esse vel furem .
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Finally, whereas our own words and deeds can only be justified by their intention, the deeds and words of others can be disposed of in a number of different ways. My remarks on this subject have, I think, been confined to one very important class of conjectural cases, but something of what I have said will apply to all cases. For example, in cases concerned with theft, deposits and loans, arguments are derived both from possibilities (as when we enquire whether there was any money to deposit), and from persons, as when we raise the question whether it is credible that anyone deposited money with this man or trusted him with a loan, or that the claimant is bringing a false accusation, or that the accused repudiates his debt or is a thief. |
| 2081 |
Sed etiam in furti reo sicut in caedis quaeritur de facto et de auctore . Crediti et depositi duae quaestiones , sed nunquam iunctae , an datum sit , an redditum . Habent aliquid proprii adulterii causae , quod plerumque duorum discrimen est et de utriusque vita dicendum , quanquam et id quaeritur , an utrumque pariter defendi oporteat . Cuius rei consilium nascetur ex causa ; nam si adiuvabit pars altera , coniungam ; si nocebit , separabo . Ne quis autem mihi putet temere excidisse ,
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But even in the case of an accusation of theft, just as in an accusation of murder, we enquire both into the act and the author, while in cases concerned with loans and deposits there are also two questions (though these are always distinct from one another), namely, whether the money was delivered and whether it has been repaid. Cases of adultery are marked by the following peculiarity, that, as a rule, the safety of two persons is involved, and it is necessary to say something of the past life of both, although some have raised the question whether both parties should be defended together. The line to be taken must depend on the circumstances of the individual case: if the defence of one party lends support to the defence of the other, I should defend them conjointly; if the reverse is the case, I should treat the two cases separately. |
| 2082 |
quod plerumque duorum crimen esse adulterium , non semper dixerim : potest accusari sola mulier incerti adulterii : Munera domi inventa sunt ; pecunia , cuius auctor non exstat ; codicilli , dubium ad quem scripti In falso quoque ratio similis ;
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However, that no one may think me somewhat hasty in saying that two persons are as a rule involved in charges of adultery, I would point out that I would not assert that this is always the case. The woman alone may be accused of adultery with a person unknown: we may say, " Gifts were found in the house, and money from some unknown source, and love-letters whose destination cannot be ascertained. " |
| 2083 |
aut enim plures in culpam vocantur aut unus . Et scriptor quidem semper tueri signatorem necesse habet , signator scriptorem non semper , nam et decipi potuit . Is autem , qui hos adhibuisse et cui id factum dicitur , et scriptorem et signatores defendet . Iidem argumentorum loci in causis proditionis et adfectatae tyrannidis .
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The case is similar in accusations of forgery: for either there are several accused or only one. The writer of a document always regards it as necessary to support the signatory, but the signatory does not always support the writer of the document, for it is always possible that he has been deceived on the matter. On the other hand, the man who is said to have called in their services, and for whom the document is alleged to have been written, will always defend both writer and signatories. The arguments employed in cases of treason or attempted tyranny will be drawn from the same sources. |
| 2084 |
Verum illa scholarum consuetudo ituris in forum potest nocere , quod omnia , quae in themate non sunt , pro nobis ducimus . Adulterium obiicis ; quis testis ? quis index ?Proditionem , quod pretium ? quis conscius ?Venenum ; ubi emi ? a quo ? quando ? quanti ? per quem dedi ?Pro reo tyrannidis adfectatae ; ubi sunt arma ?
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But the custom prevalent in the schools of regarding everything not definitely stated in the theme as being in the speaker's favour, is likely to prove harmful to students destined for practice in the courts. You bring a charge of adultery. "Who is your witness? who is your informer?" You charge me with treason. "What was my reward? who was my accomplice?" You charge me with poisoning. " Where did I buy the poison, and from whom? When did I buy it, what was the price, and whom did I employ to administer it? " Or in defence of one charged with attempting to establish himself as tyrant, the declaimer will cry, "Where are my weapons, and what bodyguards have I ever collected?" |
| 2085 |
quos contraxi satellites ?Neque haec nego esse dicenda , et ipsis utendum pro parte suscepta . Nam et in foro aliqua , quando adversarius probare non poterit , desiderabo . Sed in foro tantam illam facilitatem olim desiderauimus , ubi non fere causa agitur , ut non aliquid ex his aut plura ponantur .
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I do not deny that these questions should be asked, or that we should use them as far as is permitted by the rôle which we have assumed; for even in the courts I feel that it will be desirable to put such questions, if my opponent is not in a position to reply effectively; but we have often felt the lack of such freedom in the courts, whereas in the schools there is scarcely a case where one or more examples of this method are not to be found. |
| 2086 |
Huic simile est , quod in epilogis quidam , quibus volunt , liberos , parentes , nutrices accommodant , nisi quod magis concesseris ea , quae non sint posita , desiderare quam adiicere . De animo quomodo quaeratur , satis dictum est , cum ita diviserimus , an voluerit , an potuerit , an fecerit . Nam qua via tractatur , an voluerit , eadem , quo animo fecerit ; id enim est , an male facere voluerit .
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Similar to this is the practice which some declaimers allow themselves in their perorations of assigning children, parents and nurses to their characters at will, though it is more reasonable to call for evidence which is not explicitly mentioned in the statement of the theme than to introduce it ourselves. With regard to the method to be followed when we enquire into intention, I have said enough in dividing the subject into three questions, namely, whether the accused intended to do the deed, whether he was in a position to do it and whether he actually did it. For the method of enquiring into the purpose with which an act was committed is identical with that employed in enquiring whether the deed was intended, since it amounts to asking whether a criminal act was intended. |
| 2087 |
Ordo quoque rerum aut adfert aut detrahit fidem ; multo scilicet magis res , prout ponuntur , congruunt aut repugnant . Sed haec nisi in ipso complexu causarum non deprehenduntur . Quaerendum tamen semper , quid cuique connectatur et quid consentiat .
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Further, the order in which the facts are stated may either contribute to or detract from the credibility of our case; for consistency and the reverse depend to a very great extent on the way the circumstances are arranged. But we shall be unable to detect these qualities unless we consider the circumstances in connexion with the case as a whole. None the less, it will always be necessary to consider what are best suited to be placed together. |
| 2088 |
Sequitur coniecturam finitio . Nam , qui non potest dicere nihil fecisse , proximum habebit , ut dicat , non id fecisse , quod obiiciatur . Itaque pluribus legibus rei iisdem quibus coniectura versatur , defensionis tantum genere mutato , ut rei furtis , depositis , adulteriis . Nam , quemadmodum dicimus , Non feci furtum , non accepi depositum , non commisi adulterium , ita , Non est hoc furtum , non est hoc depositum , non est hoc adulterium .
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III. Conjecture is followed by definition. For the man who cannot assert that he has done nothing, must needs take refuge in the assertion that lie has not committed the act which is alleged against him. Consequently the laws which govern definition are for the most part the same as those which govern conjecture, the only difference lying in the method to be employed in defence in cases such as those concerned with theft, deposits or adultery. For just as we say, "I have not committed theft, I never received a deposit, I am not guilty of adultery," so we say, "This is not theft, this is not a deposit, this is not adultery." |
| 2089 |
Interim a qualitate ad finitionem descenditur , ut rei actionibus dementiae , malae tractationis , rei publicae laesae ; rei quibus si recte facta esse , quae obiiciuntur , dici non potest , illud succurrit , Non est male tractare uxorem verbis laedere .Finitio igitur est rei propositae propria et dilucida et breviter comprehensa verbis enuntiatio . Constat maxime ,
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Sometimes we may pass from quality to definition, as in actions concerned with lunacy, cruelty and offences against the State. In such cases if it is impossible to assert that the acts alleged were right, we are left with such pleas as, "To use bad language to one's wife does not amount to cruelty." Definition is the statement of the fact called in question in appropriate, clear and concise language. |
| 2090 |
sicut est dictum , genere , specie , differentibus , propriis : ut si finias equum , ( noto enim maxime utar exemplo ) genus est animal , species mortale , differentia irrationale , ( nam et homo mortale erat ) proprium hinniens . Haec adhibetur orationi pluribus causis .
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As I have already said, it consists mainly in the statement of genus, species, difference and property. For example, if you wish to define a horse (for I will take a familiar example), the genus is animal, the species mortal, the diffrence irrational (since man also is mortal) and the properly neighing. Definition is employed by the orator for a number of different reasons. |