Institutio Oratoria |
Translator: Harold Edgeworth Butler
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| 2129 |
Alterum est defensionis genus , in quo factum per se improbabile adsumptis extrinsecus auxiliis tuemur ; id vocant κατ᾽ ἀντίθεσιν Latine hoc quoque non ad verbum transferunt , adsumptiva enim dicitur causa . In quo genere fortissimum est ,
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There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without. This the Greeks call κατ᾽ ἀντίθεσιν by opposition. Here again there is no Latin equivalent, since we call it defence by assumption. |
| 2130 |
si crimen causa facti tuemur , qualis est defensio Orestis , Horatii , Milonis . Ἀντέγκλημα dicitur , quia omnis nostra defensio constat eius accusatione , qui vindicatur : Occisus est , sed latro ; excaecatus , sed raptor .
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The strongest line to take in this form of defence is to defend the act forming the subject of the charge by appealing to its motive. An example of this is provided by the defence put forward on behalf of Orestes, Horatius or Milo. The term ἀντέγκλημα, or counter-accusation, is employed when our defence consists entirely in accusing the person whom our opponents are seeking to vindicate. "He was killed, but he was a robber; he was blinded, but he was a ravisher." |
| 2131 |
Est et illa ex causis facti ducta defensio priori contraria , in qua neque factum ipsum per se , ut in absoluta quaestione , defenditur neque ex contrario facto , sed ex aliqua utilitate aut rei publicae aut hominum multorum aut etiam ipsius adversarii , nonnunquam et nostra , si modo id erit , quod facere nostra causa fas sit ; quod sub extrario accusatore et legibus agente prodesse nunquam potest , in domesticis disceptationibus potest .
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There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may serve our turn if the dispute is of a domestic character. |
| 2132 |
Nam et filiis pater in iudicio abdicationis et maritus uxori , si malae tractationis accusabitur , et patri filius , si dementiae causa erit , non inverecunde dicet multum sua interfuisse . In quo tamen incommoda vitantis melior quam commoda petentis est causa .
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For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wile or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage. |
| 2133 |
Quibus similia etiam in vera rerum quaestione tractantur . Nam quae in scholis abdicatorum , haec in foro exheredatorum a parentibus et bona apud centumviros repetentium ratio est ; quae illic malae tractationis , hic rei uxoriae , cum quaeritur utrius culpa divortium factum sit ; quae illic dementiae , hic petendi curatoris .
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Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centum viral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian. |
| 2134 |
Subiacet utilitati etiam illa defensio , si peius aliquid futurum fuit . Nam in comparatione malorum boni locum obtinet levius : ut si Mancinus foedus Numantinum sic defendat , quod periturus , nisi id factum esset , fuerit exercitus . Hoc genus ἀντίστασις Graece nominatur , comparativum nostri vocant .
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Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison. |
| 2135 |
Haec circa defensionem facti ; quae si neque per se ipsa nec adhibitis auxiliis dabitur , proximum est in alium transferre crimen , si possumus . Ideoque etiam in hos , qui citra scriptum sunt , status visa est cadere translatio Interdum ergo culpa in hominem relegatur , ut si Gracchus reus foederis Numantini , cuius metu leges populares tulisse in tribunatu videretur , missum se ab imperatore suo diceret .
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Such are the methods by which we may defend an act. If it is impossible to defend an act either on its merits or with the assistance of arguments from without, the next best course will be to shift the charge, if possible, to another. It is for this reason that the basis of competence has been held to apply even to those who cannot plead the letter of the law in this connexion. In some cases, then, the blame will be thrown on a person: for example, Gracchus, when accused of making the treaty with the Numantines (and it was fear of this accusation that seems to have led him to bring forward the democratic laws of his tribuneship) may plead that he made it as the representative of his commander-in-chief. |
| 2136 |
Interim derivatur in rem , ut si is , qui testamento quid iussus non fecerit , dicat per leges id fieri non potuisse . Hoc μετάστασιν dicunt . Hinc quoque exclusis excusatio superest . Ea est aut ignorantiae , ut si quis fugitivo stigmata scripserit eoque ingenuo iudicato neget se liberum esse scisse ; aut necessitatis , ut cum miles ad commeatus diem non adfuit et dicit se fluminibus interclusum aut valetudine .
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At times, on the other hand, the blame may be shifted to some thing: for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is μετάστασις. If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health. |
| 2137 |
Fortuna quoque saepe substituitur culpae . Nonnunquam male fecisse nos sed bono animo dicimus . Utriusque rei multa et manifesta exempla sunt ; idcirco non est eorum necessaria expositio . Si omnia , quae supra scripta sunt , deerunt , videndum , an imminui culpa possit . Hic est ille , qui a quibusdam fieri solet , status quantitatis .
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Again, the blame is often cast upon fortune, while sometimes we assert that, although we undoubtedly did wrong, we did so with the best intentions. Instances of these two latter forms of excuse are, however, so numerous and obvious that there is no need for me to cite them here. If all the above-mentioned resources prove unavailable, we must see whether it may not be possible to extenuate the offence. It is here that what some call the quantitative basis comes into play. |
| 2138 |
Sed ea cum sit aut poenae aut honoris , ex qualitate facti constituitur , eoque nobis sub hoc esse statu videtur sicut eius quoque , quae ad numerum refertur a Graecis . Nam et πηλικότητα et ποσότητα dicunt , nos utrumque appellatione una complectimur .
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But when quantity is considered in reference to punishment or reward, it is determined by the quality of the act, and therefore in my opinion comes under the qualitative basis, as also does quantity which is used with reference to number by the Greeks, who distinguish between ποσότης and πηλικότης : we, however, have only one name for the two. |
| 2139 |
Ultima est deprecatio , quod genus causae plerique negarunt in iudicium unquam venire . Quin Cicero quoque pro Q . Ligario idem testari videtur , cum dicit , Causas , Caesar , egi multas equidem tecum , dum te in foro tenuit ratio honorum tuorum , certe nunquam hoc modo : Ignoscite , indices , erravit , lapsus est , non putavit , si unquam posthac , et cetera .
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In the last resort we may plead for mercy, a though most writers deny that this is ever admissible in the courts. Indeed Cicero himself seems to support this view in his defence of Quintus Ligarius where he says, " I have pleaded many causes, Caesar, some of them even in association with yourself, so long as your political ambitions prevented you from abandoning the bar, but never have I pleaded in words such as these, ' Forgive him, gentlemen, he erred, he made a slip, he did not think that it mattered, he will never do it again,' " and so on. |
| 2140 |
In senatu vero et apud populum et apud principem et ubicunque iuris dementia est , habet locum deprecatio . In qua plurimum valent ex ipso , qui reus est , haec tria ; vita praecedens , si innocens , si bene meritus , si spes in futurum innocenter victuri et in aliquo usu futuri ; praeterea si vel aliis incommodis vel praesenti periculo vel paenitentia videatur satis poenarum dedisse ; extra nobilitas , dignitas , propinqui , amici .
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On the other hand, in addressing the senate, the people, the emperor or any other authority who is in a position to show clemency, such pleas for mercy have a legitimate place. In such cases there are three points based on the circumstances of the accused which are most effective. The first is drawn from his previous life, if he has been blameless in his conduct and deserved well of the state, or if there is good hope that his conduct will be blameless for the future and likely to be of some use to his fellow men; the second is operative if it appears that he has been sufficiently punished already on the ground that he has suffered other misfortunes, or that his present peril is extreme, or that he has repented of his sin; while thirdly we may base his appeal on his external circumstances, his birth, his rank, his connexions, his friendships. |
| 2141 |
In eo tamen qui cognoscit plurimum ponendum , si laus eum misericordis potius quam reprehensio dissoluti consecutura est . Verum et in iudiciis , etiamsi non toto genere causae , tamen ex parte magna hic locus saepe tractatur . Nam et divisio frequens est , etiamsi fecisset , ignoscendum fuisse idque in causis dubiis saepe praevaluit , et epilogi omnes in eadem fere materia versari solent .
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It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:— "Even if he had committed the offence, he would have deserved forgiveness," a plea which has often turned the balance in doubtful cases, while practically all perorations contain such appeals. |
| 2142 |
Sed nonnunquam etiam rei totius hic summa constituta . An vero si exheredatum a se filium pater testatus fuerit elogio , propterea quod is meretricem amaverit , non omnis hic erit quaestio , an huic delicto pater debuerit ignoscere et centumviri tribuere debeant veniam ? Sed etiam in formulis , cum poenariae sunt actiones , ita causam partimur , an commissa sit poena , an exigi debeat . Id autem , quod illi viderunt , verum est , reum a iudicibus hoc defensionis modo liberari non posse .
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Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because lie was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct. |
| 2143 |
De praemiis autem quaeruntur duo : an ullo sit dignus , qui petit , an tanto ; ex duobus , uter dignior ; ex pluribus , quis dignissimus . Quorum tractatus ex ipso meritorum genere ducuntur . Et intuebimur non rem tantum , sive adleganda sive comparanda erit , sed personam quoque ; nam et multum interest , tyrannum iuvenis occiderit an senex , vir an femina , alienus an coniunctus ;
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With regard to rewards, there are two questions which confront us: namely, whether the claimant is deserving of any reward, and, if so, whether he deserves so great a reward. If there are two claimants, we have to decide which is the more worthy of the two; if there are a number, who is the most worthy. The treatment of these questions turns on the kind of merit possessed by the claimants. And we must consider not merely the act (whether it has merely to be stated or has to be compared with the acts of others), but the person of the claimant as well. For it makes a great difference whether a tyrannicide be young or old, man or woman, a stranger or a connexion. |
| 2144 |
et locum multipliciter , in civitate tyrannis assueta an libera semper , in arce an domi ; et quomodo factum sit , ferro an veneno ; et quo tempore , bello an pace , cum depositurus esset eam potestatem an cum aliquid novi sceleris ausurus . Habent in meritis gratiam periculum quoque et difficultas .
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The place may also be discussed in a number of ways: was the city in which the tyrant was killed one inured to tyranny or one which had always been free? was he killed in the citadel or in his own house? The means, too, and the time call for consideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime? |
| 2145 |
Similiter liberalitas a quo profecta sit , refert . Nam in paupere gratior quam in divite , dante beneficium quam reddente , patre quam orbo . Item in quam rem dederit et quo tempore et quo animo , id est , num in aliquam spem suam ; similiter alia . Et ideo qualitas maxime oratoris recipit operam , quia in utramque partem plurimum est ingenio loci , nec usquam tantum adfectus valent .
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Further, in considering the question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side, while there is no topic in which the emotional appeal is so effective. |
| 2146 |
Nam coniectura extrinsecus quoque adductas frequenter probationes habet et argumenta ex materia sumit ; quale quidque videatur eloquentiae est opus ; hic regnat , hic imperat , hic sola vincit . Huic parti subiungit Verginius causas abdicationis , dementiae , malae tractationis , orbarum nuptias indicentium . Nam et fere sic accidit , inventique sunt , qui has materias officiorum vocarent .
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For conjecture has often to introduce proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate quality: there lies its kingdom, there its power, and there its unique victory. Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently questions of quality, while some writers style them questions of moral obligation. |
| 2147 |
Sed alios quoque nonnunquam leges hae recipiunt status . Nam et coniectura est aliquando in plerisque horum , cum se vel non fecisse vel bona mente fecisse contendunt Cuius generis exempla sunt multa . Et quid sit dementia ac mala tractatio , finitur . Nam leges iuris plerumque quaestiones praecurrere solent , sed ex quibus causae non fiat status .
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But the laws governing these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife. For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case. |
| 2148 |
Quod tamen facto defendi non poterit , iure nitetur : et quot et quibus causis abdicare non liceat , et in quae crimina malae tractationis actio non detur , et cui accusare dementiae non permittatur .
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But this notwithstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy. |
| 2149 |
Abdicationum formae sunt duae , altera criminis perfecti , ut si abdicetur raptor , adulter , altera velut pendentis et adhuc in condicione positi , quales sunt , in quibus abdicatur filius , quia non pareat patri . Illa semper asperam abdicantis actionem habet ; immutabile est enim , quod factum est ; haec ex parte blandam et suadenti similem ; mavult enim pater non abdicare ; at pro filiis in utroque genere summissam et ad satisfaciendum compositam .
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Disinheritance may be of two kinds. In the first case it is for a completed crime: for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still incomplete and terminable ; an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disinheritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons should in both cases be of a subdued character and couched in a conciliatory tone. |
| 2150 |
A quo dissensuros scio , qui libenter patres figura laedunt ; quod non ausim dicere nunquam esse faciendum , potest enim materia incidere , quae hoc exigat ; certe vitandum est , quotiens aliter agi potest . Sed de figuris alio libro tractabimus .
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I know that those who delight in making covert attacks upon the father under the disguise of some figure of speech will disagree with me: and I would not deny that their procedure may sometimes be justifiable, since the theme may conceivably be such as to demand it; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book. |
| 2151 |
Non dissimiles autem abdicationum actionibus sunt malae tractationis actiones ; nam et ipsae habent eandem in accusationibus moderationem . Dementiae quoque iudicia aut propter id , quod factum est , aut propter id quod adhuc fieri vel non fieri potest instituuntur .
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The treatment of the theme of cruelty to a wife is not unlike that of the theme of disinheritance; for both demand a certain moderation on the part of the accuser. Cases concerned with lunacy arise either out of what has been done or out of something which may or may not be done in the future. |
| 2152 |
Et actor in eo , quod factum est , liberum habet impetum , sic tamen ut factum accuset , ipsius patris tanquam valetudine lapsi misereatur ; in eo vero , cuius libera mutatio est , diu roget et suadeat et novissime dementiam ration queratur obstare , non mores : quos quanto magis in praeteritum laudaverit , tanto facilius probabit morbo esse mutatos .
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In the former case the pleader is free to attack as he will, but must none the less do so in such a manner that, while denouncing the act, he will yet express pity for the father on the ground that he has erred by reason of his infirmity. On the other hand, in the latter case, where the act has not yet taken place and there is nothing to prevent the father changing his purpose, he must begin by a prolonged attempt to induce him to change his mind, and then, and only then, complain that it is madness and not depravity of character that prevents him from listening to the voice of reason; and the more he praises his past character, the easier will it be to prove the change which it has undergone owing to the inroads of the disease. |
| 2153 |
Reus , quotiens causa patietur , debebit esse in defensione moderatus , quia fere ira et concitatio furori sunt similia . Omnibus is commune est , quod rei non semper defensione facti , sed excusatione ac vena frequenter utuntur . Est enim domestica disceptatio , in qua et semel peccasse et per errorem et levius , quam obiiciatur , absolutioni nonnunquam sufficit .
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The accused, wherever possible, must assume a temperate tone in his defence, for the reason that as a rule anger and excitement are near akin to madness. All these cases have this much in common, that the accused does not always defend his act, but often pleads excuse and asks for pardon. For these are domestic quarrels, in which the fact that the offence is an isolated case, due to error and of a less serious character than alleged, will sometimes suffice to secure an acquittal. |
| 2154 |
Sed alia quoque multa controversiarum genera in qualitatem cadunt . Iniuriarum ; quanquam enim reus aliquando fecisse negat , plerumque tamen haec actio facto atque animo continetur .
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There are, however, a number of other controversial themes involving quality, as, for example, cases of assault. In these, although at times the accused denies that he committed the assault, the pleading as a rule is concerned with fact and intention. |
| 2155 |
De accusatore constituendo , quae iudicia divinationes vocantur ; in quo genere Cicero quidem , qui mandantibus sociis Verrem deferebat , hac usus est divisione , spectandum a quo maxime agi velint ii quorum de ultione quaeritur , a quo minime velit is qui accusatur . Frequentissimae tamen hae sunt quaestiones ,
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Then there are cases concerned with the appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was indicting Verres on the instruction of our Sicilian allies, adopts the following division-to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be represented. |
| 2156 |
uter maiores causas habeat , uter plus industriae aut virium sit adlaturus ad accusandum , uter id fide meliore facturus .
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But in the great majority of cases the questions raised are, which claimant has the strongest motives for undertaking the role of accuser, which is likely to bring the greatest energy or talent to the task, and which is likely to press the charge with the greatest sincerity. |
| 2157 |
Tutelae praeterea ; in quo iudicio solet quaeri , an alia de re quam de calculis cognosci oporteat , an fidem praestare debeat tantum , non etiam consilium et eventum . Cui simile est male gestae procurationis , quae in foro negotiorum gestorum ; nam et mandati actio est .
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Next we may take cases concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anything save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are styled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust. |
| 2158 |
Praeter haec finguntur in scholis et inscripti maleficii , in quibus aut hoc quaeritur , an inscriptum sit aut hoc , an maleficium sit , raro utrumque . Male gestae legationis apud Graecos et veris causis frequens , ubi iuris loco quaeri solet , an omnino aliter agere quam mandatum sit liceat , et quo usque sit legatus , quoniam aliae in nuntiando , aliae in renuntiando sunt , ut in Heio , qui testimonium in Verrem dixerat post perlatam legationem .
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In addition to these we have the fictitious cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life: in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communication to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained |
| 2159 |
Plurimum tamen est in eo , quale sit factum . Rei publicae laesae : hinc moventur quidem illae iuris cavillationes , quid sit rem publicam laedere , et , laeserit an non profuerit , et , ab ipso an propter ipsum laesa sit : in facto tamen plurimum est . Ingrati quoque , in quo genere quaeritur , an is cum quo agitur acceperit beneficium . Quod raro negandum est ; ingratus est enim qui negat .
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of Next come cases of action contrary to the interests of the state. In these we meet with legal quibbles as to what is the meaning of " action contrary to the interests of the state, " and whether the action of the accused was injurious or profitable, or whether the interests of the state suffered at his hands or merely on his account: but the most important question is that of fact. There are also cases of ingratitude; in these we raise the question whether the accused has really received any kindness. It is only rarely that the fact can be denied, as denial is in itself a sign of ingratitude. But there are the further questions as to the extent of the kindness and whether it has been repaid. |
| 2160 |
Quantum acceperit , an reddiderit , an protinus qui non reddidit ingratus sit , an potuerit reddere , an id , quod exigebatur , debuerit , quo animo sit . Simpliciores illae iniusti repudii , sub qua lege controversiae illud proprium habent , quod a parte accusantis defensio est , a defendentis accusatio .
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If it has not been repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Somewhat simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the defendant accuses. |
| 2161 |
Praeterea , cum quis rationem mortis in senatu reddit , ubi una quaestio est iuris , an is demum prohibendus sit , qui mori vult ut se legum actionibus subtrahat ; cetera qualitatis . Finguntur et testamenta , in quibus de sola qualitate quaeratur , ut in controversia , quam supra exposui , in qua de parte patrimonii quarta , quam pater dignissimo ex filiis reliquerat , contendunt philosophus , medicus , orator . Quod idem accidit , si orbae nuptias indicant pares gradu , et si inter propinquos de idoneo quaeratur .
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Further there are cases where a senator sets forth to the senate the reasons which determine him to commit suicide, in which there is one legal question, namely, whether a man who desires to kill himself in order to escape the clutches of the law ought to be prevented from so doing, while the remaining questions are all concerned with quality. There are also fictitious cases concerned with wills, in which the only question raised is one of quality, as, for instance, in the controversial theme quoted above, where the philosopher, physician and orator all claim the fourth share which their father had left to the most worthy of his sons. The same is true of cases where suitors of equal rank claim the hand of an orphan and the question confronting her relatives is which is the most suitable. |
| 2162 |
Sed mihi nec omnes persequi materias in animo est , fingi enim adhuc possunt ; nec omnes earum quaestiones , quia positionibus mutantur . Hoc tantum admiror Flavum , cuius apud me summa est auctoritas , cum artem scholae tantum componeret , tam anguste materiam qualitatis terminasse .
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I do not, however, intend to discuss every possible theme, since fresh ones can always be invented, nor yet to deal with all the questions to which they give rise, since these vary with circumstances. But I cannot help expressing my astonishment that Flavus, for whose authority I have the highest respect, restricted the range of quality to such an extent in the text-book which he composed for the special guidance of the schools. |
| 2163 |
Quantitas quoque , ut dixi , etiamsi non semper , plerumque tamen eidem subiacet , seu modi est seu numeri . Sed modus aliquando constat aestimatione facti , quanta sit culpa , quantumve beneficium , aliquando iure , cum id in controversiam venit , qua quis lege puniendus vel honorandus sit :
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Quantity also, as I have already stated, falls as a rule, though not always, under the head of quality, whether it is concerned with measure or number. Measure, however, sometimes consists in the valuation of a deed with a view to determining the amount of guilt or the amount of benefit involved, while, on the other hand, it sometimes turns on a point of law, when the dispute is under what law a man is to be punished or rewarded. |
| 2164 |
stuprator decem milia dare debeat , quae poena huic crimini constitute est , an , quia se stupratus suspendit , capite puniri tanquam causa mortis . Quo in genere falluntur , qui ita dicunt , tanquam inter duas leges quaeratur : nam de decem milibus nulla controversia est , quae non petuntur .
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For example is a ravisher to pay 10,000 sesterces because that is the penalty appointed by law, or is he liable to capital punishment as a murderer because his victim hanged himself? In such cases those who plead as if there were a question between two laws, are wrong: for there is no dispute about the fine of 10,000, since it is not claimed by the prosecution. |
| 2165 |
iudicium redditur , an reus causa sit mortis . In coniecturam quoque eadem species cadit , cum , perpetuo an quinquennali sit exilio multandus , in controversiam venerit ; nam an prudens caedem commiserit quaeritur .
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The point on which judgment has to be delivered is whether the accused is guilty of causing his victim's death. The same type of case will also bring conjecture into play, when, for example, the question in dispute is whether the accused shall be punished with banishment for life or for five years. For the question then is whether he caused his death willingly or not. |
| 2166 |
Illa quoque , quae ex numero ducitur , pendet ex iure , an Thrasybulo triginta praemia debeantur , et , cum duo fures pecuniam abstulerint , separatim quadruplum quisque an duplum debeat . Sed hic quoque factum aestimatur et , tamen ius ipsum pendet ex qualitate .
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Again, there are questions concerned with numerical quantity which turn on a point of law, such as the questions whether thirty rewards are due to Thrasybulus, or whether, when two thieves have stolen a sum of money, they are each to be required to refund fourfold or twofold. But in these cases, too, valuation of the act is necessary, and yet the point of law also turns on quality. |