6.6. Suppose it should be asserted that sound is the conflict between two bodies, the statement would in my opinion be erroneous. For sound is not the actual conflict, but a result of the conflict. The error is, however, of small importance: for the sense is clear, whatever the expression. But this trivial mistake has given rise to a very serious error in the minds of those who have not understood what was meant: for on reading that the essential basis was the first conflict, they immediately concluded that the basis was always to be taken from the first question, which is a grave mistake.
6.6. si enim dicat quis, sons est duorum inter se corporum conflictio: erret, ut opinor, non enim sonus est conflictio sed ex conflictione. hoc levius; intelligitur enim utcunque dictum. vero ingens male interpretantibus innatus est error, qui, quia primam conflictionem legerant, crediderunt statum semper ex prima quaestione ducendum; quod est vitiosissimum.
6.7. For every question has its basis, since every question is based on assertion by one party and denial by another. But there are some questions which form an essential part of causes, and it is on these that we have to express an opinion; while others are introduced from without and are, strictly speaking, irrelevant, although they may contribute something of a subsidiary nature to the general contention. It is for this reason that there are said to be several questions in one matter of dispute.
6.7. quaestio nulla non habet utique statum, constat enim ex intentione et depulsione; sed aliae sunt propriae causarum, de quibus ferenda sententia est, aliae adductae extrinsecus, aliquid tamen ad summam causae conferentes, velut auxilia quaedam, quo fit ut in controversia una plures quaestiones esse dicantur.
6.8. Of these questions it is often the most trivial which occupies the first place. For it is a frequent artifice to drop those points in which we place least confidence, as soon as we have dealt with them; sometimes we make a free gift of them to our opponents, while sometimes we are content to use them as a step to arguments which are of greater importance.
6.8. porro plerumque levissima quaeque primo loco fungitur. et illud frequens est, ut ea, quibus minus confidimus, cum tractata sunt, omittamus, interim sponte nostra velut donantes, interim ad ea quae sunt potentiora gradum ex iis fecisse contenti.
6.9. A simple cause, however, although it may be defended in various ways, cannot have more than one point on which a decision has to be given, and consequently the basis of the cause will be that point which the orator sees to be the most important for him to make and on which the judge sees that he must fix all his attention. For it is on this that the cause will stand or fall. On the other hand questions may have more bases than one.
6.9. autem causa etiamsi varie defenditur, non potest habere plus uno, de quo pronuntietur, atque inde erit status causae, quod et orator praecipue sibi obtinendum et iudex spectandum maxime intelligit; in hoc enim causa consistet. quaestionum possunt esse diversi.
6.10. A brief example will show what I mean. When the accused says “Admitting that I did it, I was right to do it,” he makes the basis one of quality; but when he adds “but I did not do it,” he introduces an element of conjecture. But denial of the facts is always the stronger line of defence, and therefore I conceive the basis to reside in that which I should say, if I were confined to one single line of argument.
6.10. ut brevissimo pateat exemplo: cum dicit reus, feci, recte feci, qualitatis utitur statu; cum adiicit, sed non feci, coniecturam movet. autem firmius est non fecisse, ideoque in eo statum esse iudicabo, quod dicerem, si mihi plus quam unum dicere non liceret.
6.11. We are right therefore in speaking of the first conflict of causes in contradistinction to the conflict of questions. For instance in the first portion of his speech on behalf of Rabirius Postumus Cicero contends that the action cannot lie against a Roman knight, while in the second he asserts that no money ever came into his client's hands. Still I should say that the basis was to be found in the latter as being the stronger of the two.
6.11. igitur est appellata causarum prima conflictio non quaestionum. et pro Rabirio Postumo Cicero prima parte orationis in hoc intendit, ut actionem competere in equitem Romanum neget; secunda, nullam ad eum pecuniam pervenisse confirmat. tamen in eo dicam fuisse, quod est potentius.
6.12. Again in the case of Milo I do not consider that the conflict is raised by the opening questions, but only when the orator devotes all his powers to prove that Clodius lay in wait for Milo and was therefore rightly killed. The point on which above all the orator must make up his mind, even although he may be going to take up various lines of argument in support of his case, is this: what is it that he wishes most to impress upon the mind of the judge? But although this should be the first point for his consideration, it does not follow that it should be the first that he will make in his actual speech.
6.12. in causa Milonis circa primas quaestiones iudicabo conflixisse causam, sed ubi totis viribus insidiator Clodius ideoque iure interfectus ostenditur. hoc est, quod ante omnia constituere in animo suo debeat orator, etiamsi pro causa plura dicturus est, quid maxime liquere iudici velit. tamen ut primum cogitandum, ita non utique primum dicendum erit.
6.13. Others have thought that the basis lay in the first point raised by the other side in its defence. Cicero expresses this view in the following words:— “the argument on which the defence first takes its stand with a view to rebutting the charge.” This involves a further question as to whether the basis can only be determined by the defence. Cornelius Celsus is strongly against this view, and asserts that the basis is derived not from the denial of the charge, but from him who affirms his proposition. Thus if the accused denies that anyone has been killed, the basis will originate with the accuser, because it is the latter who desires to prove: if on the other hand the accused asserts that the homicide was justifiable, the burden of proof has been transferred and the basis will proceed from the accused and be affirmed by him. I do not, however, agree.
6.13. statum crediderunt primam eius, cum quo ageretur, deprecationem. sententiam his verbis Cicero complectitur: in quo primum insistit quasi ad repugnandum congressa defensio. rursus alia quaestio, an eum semper is faciat qui respondet. rei praecipue repugnat Cornelius Celsus dicens non a depulsione sumi, sed ab eo qui propositionem suam confirmet; ut, si hominem occisum reus negat, status ab accusatore nascatur, quia is velit probare; si iure occisum reus dicit, translata probationis necessitate idem a reo fiat, et sit eius intentio.
6.14. For the contrary is nearer to the truth, that there is no point of dispute if the defendant makes no reply, and that consequently the basis originates with the defendant.
6.14. non accedo equidem; nam est vero propius quod contra dicitur, nullam esse litem, si is, cum quo agatur, nihil respondeat, ideoque fieri statum a respondente.
6.15. But in my opinion the origin of the basis varies and depends on the circumstances of the individual case. For instance in conjectural causes the affirmation may be regarded as determining the basis, since conjecture is employed by the plaintiff rather than the defendant, and consequently some have styled the basis originated by the latter negative. Again in any syllogism the whole of the reasoning proceeds from him who affirms.
6.15. tamen sententia varium id est, et accidit pro condicione causarum, quia et videri potest propositio aliquando statum facere, ut in coniecturalibus causis; utitur enim coniectura magis qui agit, (quo moti quidam eundem a reo infitialem esse dixerunt) et in syllogismo tota ratiocinatio ab eo est qui intendit.
6.16. But on the other hand he who in such cases denies appears to impose the burden of dealing with such bases upon his opponent. For if he says “I did not do it,” he will force his opponent to make use of con- jecture, and again, if he says “The law is against you,” he will force him to employ the syllogism. Therefore we must admit that a basis can originate in denial. All the same we are left with our previous conclusion that the basis is determined in some cases by the plaintiff, in some by the defendant.
6.16. quia videtur illic quoque necessitatem hos status exsequendi facere qui negat, (is enim si dicat, non feci, coget adversarium coniectura uti; et si dicat, non habes legem, syllogismo) concedamus ex depulsione nasci statum. enim res eo revertetur, ut modo is qui agit, modo is cum quo agitur, statum faciat.
6.17. Suppose the accuser to affirm that the accused is guilty of homicide: if the accused denies the charge, it is he who will determine the basis. Or again, if he admits that he has killed a man, but states that the victim was an adulterer and justifiably killed (and we know that the law permits homicide under these circumstances), there is no matter in dispute, unless the accuser has some answer to make. Suppose the accuser does answer however and deny that the victim was guilty of adultery, it will be the accuser that denies, and it is by him that the basis is determined. The basis, then, will originate in the first denial of facts, but that denial is made by the accuser and not the accused.
6.17. enim accusatoris intentio, occidisti. negat reus, faciat statum qui negat. si confitetur, sed iure a se adulterum dicit occisum? nempe legem esse certum est quae permittat. aliquid accusator respondet, nulla lis est., inquit, adulter; ergo depulsio incipit esse actoris, ille statum faciet. erit quidem status ex prima depulsione, sed ea fiet ab accusatore non a reo.
6.18. Again the same question may make the same person either accuser or accused. “He who has exercised the profession of an actor, is under no circumstances to be allowed a seat in the first fourteen rows of the theatre.” An individual who had performed before the praetor in his private gardens, but had never been presented on the public stage, has taken his seat in one of the fourteen rows.
6.18. ? quod eadem quaestio potest eundem vel accusatorem facere vel reum: Qui artem ludicram exercuerit, in quattuordecim primis ordinibus ne sedeat; qui se praetori in hortis ostenderat neque erat productus, sedit in quattuordecim ordinibus.
6.19. The accuser of course affirms that he has exercised the profession of an actor: the accused denies that he has exercised the profession. The question then arises as to the meaning of the “exercise of the profession of actor.” If he is accused under the law regarding the seats in the theatre, the denial will proceed from the accused; if on the other hand he is turned out of the theatre and demands compensation for assault, the denial will be made by the accuser.
6.19. intentio est: ludicram exercuisti; depulsio: exercui artem ludicram; quaestio: sit artem ludicram exercere? accusabitur theatrali lege, depulsio erit rei; si excitatus fuerit de spectaculis et aget iniuriarum, depulsio erit accusatoris.
6.20. The view of the majority of writers on this subject will, however, hold good in most cases. Some have evaded these problems by saying that a basis is that which emerges from affirmations and denials, such as “You did it,” “I did not do it,” or “I was justified in doing it.”
6.20. tamen illud accidet, quod est a plurimis traditum. has quaestiones qui dixerunt, status esse id, quod appareat ex intentione et depulsione, ut, feci aut feci.
6.21. But let us see whether this is the basis itself or rather that in which the basis is to be found. Hermagoras calls a basis that which enables the matter in question to be understood and to which the proofs of the parties concerned will also be directed. My own opinion has always been that, whereas there are frequently different bases of questions in connexion with a cause, the basis of the cause itself is its most important point on which the whole matter turns. If anyone prefers to call that the general question or general head of the cause, I shall not quarrel with him, any more than I have done hitherto if he produced a different technical term to express the same thing, although I know that whole volumes have been written on such disputes. I prefer however to call it the basis.
6.21. tamen, utrum id sit status an in eo status. Hermagoras statum vocat, per quem subiecta res intelligatur et ad quem probationes etiam partium referantur. opinio semper haec fuit: cum essent frequenter in causa diversi quaestionum status, in eo credere status causae, quod esset in ea potentissimum et in quo maxime res verteretur. si quis generalem quaestionem vel caput generale dicere malet cum hoc mihi non erit pugna, non magis, quam si aliud adhuc, quo idem intelligatur, eius rei nomen invenerit, quanquam tota volumina in hanc disputationem impendisse multos sciam; nobis statum dici placet.
6.22. There is the greatest possible disagreement among writers about this as about everything else, but in this case as elsewhere they seem to me to have been misled by a passion for saying something different from their fellow-teachers. As a result there is still no agreement as to the number and names of bases, nor as to which are general and which special. To begin with Aristotle lays down that there are ten categories on which every question seems to turn.
6.22. cum in aliis omnibus inter scriptores summa dissensio est, tum in hoc praecipue videtur mihi studium quoque diversa tradendi fuisse; adeo, nec qui sit numerus nec quae nomina nec qui generales quive speciales sint status, convenit.
6.23. First there is οὐσία which Plautus calls essence, the only available translation: under this category we inquire whether a thing is. Secondly there is quality, the meaning of which is self-evident. Third comes quantity, which was subdivided by later philosophers as dealing with two questions as to magnitude and number. Next relation, involving questions of competence and comparison. This is followed by when and where. Then come doing, suffering and possessing, which for example are concerned with a person's being armed or clothed.
6.23. primum Aristoteles elementa decem constituit, circa quae versari videatur omnis quaestio. οὐσίαν, quam Plautus essentiam vocat, neque sane aliud est eius nomen Latinum; sed ea quaeritur, an sit., cuius apertus intellectus est., quae dupliciter a posterioribus divisa est, quam magnum et quam multum sit? aliquid, unde ducta est translatio et comparatio.
6.24. Lastly comes κεῖσθαι or position, which means to be in a certain position, such for instance as being warm, standing or angry. Of these categories the first four concern bases, the remainder concern only certain topics for argument.
6.24. haec et; deinde,,, quod est quasi armatum esse, vestitum esse. κεῖσθαι, quod est compositum esse quodam modo, ut calere, stare, irasci. ex iis omnibus prima quattuor ad status pertinere, cetera ad quosdam locos argumentorum videntur.
6.25. Others make the number of categories to be nine. Person, involving questions concerning the mind, body or external circumstances, which clearly has reference to the means by which we establish conjecture or quality. Time, or χρόνος, from which we get questions such as whether a child is born a slave, if his mother is delivered of him while assigned to her creditors. Place, from which we get such disputes as to whether it is permissible to kill a tyrant in a temple, or whether one who has hidden himself at home can be regarded as an exile.
6.25. novem elementa posuerunt, Personam, in qua de animo, corpore, extra positis quaeratur, quod pertinere ad coniecturae et qualitatis instrumenta video., quod χρόνον vocant, ex quo quaestio, an is quem, dum addicta est, mater peperit, servus sit natus., unde controversia videtur, an fas fuerit tyrannum in templo occidere. exulaverit, qui domi latuit. iterum, quod καιρόν appellant;
6.26. Then comes time in another sense, called καιρός by the Greeks, by which they refer to a period of time, such as summer or winter; under this heading come problems such as that about the man who held high revel in a time of pestilence. Action or πρᾶξις, to which they refer questions as to whether an act was committed wittingly or unwittingly, by accident or under compulsion and the like. Number, which falls under the category of quantity, under which come questions such as whether the state owes Thrasybulus thirty talents for ridding it of the same number of tyrants.
6.26. hanc autem videri volunt speciem illius temporis, ut aestatem vel hiemem; huic subiicitur ille in pestilentia comissator., id est πρῆξιν, quod eo referunt, sciens commiserit an insciens? necessitate an casu? et talia., qui cadit in speciem quantitatis, an Thrasybulo triginta praemia debeantur, quia tot tyrannos sustulerit?
6.27. Cause, under which heading come a large number of disputes, whenever a fact is not denied, but the defence pleads that the act was just and reasonable. τρόπος or manner, which is involved when a thing is said to have been done in one way when it might have been done in another: under this category come cases of such as that of the adulterer who is scourged with thongs or starved to death. Opportunity for action, the meaning of which is too obvious to need explanation or illustration: the Greeks however call it ἔργων ἀφορμαί These authorities like Aristotle hold that no question can arise which does not come under one of these heads.
6.27. , cui plurimae subiacent lites, quotiens factum non negatur, sed quia iusta ratione sit factum, defenditur. τρόπον, cum id, quod alio modo fieri licet, alio dicitur factum; hinc est adulter loris caesus vel fame necatus. factorum, quod est apertius, quam ut vel interpretandum vel exemplo sit demonstrandum, tamen ἀφορμὰς ἔργων vocant.
6.28. Some subtract two of them, namely number and opportunity, and substitute for what I have called action, things, or in Greek πράγματα. I have thought it sufficient to notice these doctrines, for fear someone might complain of their omission. Still I do not consider that bases are sufficiently determined by these categories, nor that the latter cover every possible kind of topic, as will be clear to any that read carefully what I have to say on both points. For there will be found to be many topics that are not covered by these categories.
6.28. quoque nullam quaestionem extra haec putant. detrahunt duas partes, numerum et occasionem, et pro illo quod dixi actum subiiciunt res, id est πράγματα. ne praeterisse viderer, satis habui attingere. his nec status satis ostendi nec omnes contineri locos credo, quod apparebit diligentius legentibus, quae de utraque re dicam. enim plura multo, quam quae his elementis comprehenduntur.
6.29. I find it stated in many authors that some rhetoricians only recognise one kind of basis, the con- jectural. But they have not mentioned who these rhetoricians are nor have I been able to discover. They are however stated to have taken this view on the ground that all our knowledge is a matter of inference from indications. On this line of reasoning they might regard all bases as qualitative, because we inquire into the nature of the subject in every case. But the adoption of either view leads to inextricable confusion.
6.29. plures auctores legi, placuisse quibusdam, unum omnino statum esse coniecturalem. quibus placuerit, neque illi tradiderunt neque ego usquam reperire potui. tamen hanc secuti dicuntur, quod res omnis signis colligeretur. modo licet qualitatis quoque solum statum faciant, quia ubique, qualis sit cuiusque rei natura, quaeri potest. utrocunque modo sequetur summa confusio.
6.30. Nor does it matter whether one recognises only one kind of basis or none at all, if all causes are of the same nature. Coniectura is derived from conicere “to throw together,” because it implies the concentration of the reason on the truth. For this reason interpreters of dreams and all other phenomena are called coniectores “conjecturers.” But the conjectural basis has received more names than one, as will appear in the sequel.
6.30. interest, unum quis statum faciat an nullum, si omnes causae sunt condicionis eiusdem. dicta est a coniectu, id est directione quadam rationis ad veritatem, unde etiam somniorum atque ominum interpretes coniectores vocantur. tamen est hoc genus varie, sicut sequentibus apparebit.
6.31. Some have recognised only two bases. Archedemus for instance admits only the conjectural and definitive and refuses to admit the qualitative, since he held that questions of quality take the form of “What is unfair? what is unjust? what is disobedience?” which he terms questions about identity and difference.
6.31. , qui duos status facerent: Archedemus coniecturalem et finitivum, exclusa qualitate, quia sic de ea quaeri existimabat, quid esset iniquum, quid iniustum, quid dicto audientem non esse; quod vocat de eodem et alio.
6.32. A different view was held by those who likewise only admitted two bases, but made them the negative and juridical. The negative basis is identical with that which we call the conjectural, to which some give the name of negative absolutely, others only in part, these latter holding that conjecture is employed by the accuser, denial only by the accused.
6.32. diversa sententia eorum fuit, qui duos quidem status esse voluerunt, sed unum infitialem, alterum iuridicialem. est, quem dicimus coniecturalem, cui ab infitiando nomen alii in totum dederunt, alii in partem, quia accusatorem coniectura, reum infitiatione uti putaverunt.
6.33. The juridical is that known in Greek as δικαιολογικός But just as Archedemus would not recognise the qualitative basis, so these reject the definitive which they include in the juridical, holding that in these questions we have to enquire whether it is just that the act with which the accused is charged should be called sacrilege or theft or madness.
6.33. est qui Graece dicitur δικαιολογικός Sed quemadmodum ab Archedemo qualitas exclusa est, sic ab his repudiata finitio. subiiciunt eam iuridiciali, quaerendumque arbitrantur iustumne sit, sacrilegium appellari quod obiiciatur vel furtum vel amentiam.
6.34. Pamplihlus held this opinion but subdivided quality into several different species. The majority of later writers have classified bases as follows, involving however no more than a change of names:— those dealing with ascertained facts and those dealing with matters where there is a doubt. For a thing must either be certain or uncertain: if it is uncertain, the basis will be conjectural; if certain, it will be some one of the other bases.
6.34. in opinione Pamphilus fuit, sed qualitatem in plura partitus est; plurimi deinceps, mutatis tantum nominibus, in rem de qua constet, et in rem de qua non constet. est verum nec aliter fieri potest, quam ut aut certum sit factum esse quid aut non sit; si non est certum, coniectura sit, si certum est, reliqui status.
6.35. Apollodorus says the same thing when he states that a question must either lie in things external, which give play to conjecture, or in our own opinions: the former he calls πραγματικός the latter περὶ ἐννοίας The same is said by those who employ the terms ἀπροληπτὸς and προληπτικός, that is to say doubtful and presumptive, by this latter term meaning those facts which are beyond a doubt.
6.35. idem dicit Apollodorus, cum quaestionem aut in rebus extra positis, quibus coniectura explicatur, aut in nostris opinionibus existimat positam, quorum illud πραγματικόν, hoc περὶ ἐννοίας vocat; idem, qui ἀπρόληπτον et προλημπτικόν dicunt, id est dubium et praesumptum, quo significatur de quo liquet.
6.36. Theodorus agrees with them, for he holds that the question is either as to whether such and such a thing is really so, or is concerned with the accidents of something which is an admitted fact: that is to say it is either περὶ οὐσίας or περὶ συμβεβηκότων For in all these cases the first basis is conjectural, while the second belongs to one of the other classes. As for these other classes of basis, Apollodorus holds that there are two, one concerned with quality and the other with the names of things, that is to say a definitive basis. Theodorus makes them four, concerned with existence, quality, quantity and relation.
6.36. Theodorus, qui de eo, an sit, et de accidentibus ei quod esse constat, id est περὶ οὐσίας καὶ συμβεβηκότων existimat quaeri. in his omnibus prius genus coniecturam habet, sequens reliqua. haec reliqua Apollodorus duo vult esse, qualitatem et de nomine, id est finitivam; Theodorus, quid, quale, quantum, ad aliquid.
6.37. There are some too who make questions of identity and difference come under the head of quality, others who place it under the head of definition. Posidonius divides them into two classes, those concerned with words and those concerned with things. In the first case he thinks that the question is whether a word has any meaning; if so, what is its meaning, how many meanings has it, and how does it come to mean what it means? In the latter case, we employ conjecture, which he calls κατ᾽ αἴσθησιν, or inference from perception, quality, definition which he calls κατ᾽ ἔννοιαν, or rational inference, and relation. Hence also comes the division into things written and unwritten.
6.37. et qui de eodem et de alio modo qualitatem esse modo finitionem velint. In duo et Posidonius dividit, vocem et res. voce quaeri putat an significet, quid, quam multa, quo modo? in rebus coniecturam, quod κατ᾽ αἴσθησιν vocat, et qualitatem, et finitionem, cui nomen dat κατ᾽ ἔννοιαν, et ad aliquid. et illa divisio est, alia esse scripta, alia inscripta.
6.38. Even Cornelius Celsus stated that there were two general bases, one concerned with the question whether a thing is, the other with the question of what kind it is. He included definition under the first of these, because enquiry may equally be made as to whether sacrilege has been committed, when a man denies that he has stolen anything from a temple, and when he admits that he has stolen private money from a temple. He divides quality into fact and the letter of the law. Under the head of the letter of the law he places four classes, excluding questions of competence: quantity and intention he places under the head of conjecture.
6.38. Celsus Cornelius duos et ipse fecit status generales, an sit? quale sit? subiecit finitionem, quia aeque quaeratur an sit sacrilegus, qui nihil se sustulisse de templo dicit et qui privatam pecuniam confitetur sustulisse. in rem et scriptum dividit. quattuor partes legales, exclusa translatione; quantitatem et mentis quaestionem coniecturae subiecit.
6.39. There is also another method of dividing bases into two classes: according to this disputes are either about substance or quality, while quality is treated either in its most general sense or in its special senses.
6.39. etiam alia in duos dividendi status ratio, quae docet, aut de substantia controversiam esse, aut de qualitate; ipsam porro qualitatem aut in summo genere consistere aut in succedentibus.
6.40. Substance is dealt with by conjecture: for in enquiring into anything, we ask whether it has been done, is being done, or is likely to be done, and sometimes also consider its intention: this method is preferable to that adopted by those who style the conjectural basis a basis of fact, as though we only enquired into the past and what has actually been done.
6.40. substantia est coniectura. enim tractatur rei, an facta sit? an fiat? an futura sit? interdum etiam mentis; idque melius, quam quod iis placuit, qui statum eundem facti nominaverunt, tanquam de praeterito tantum et tantum de facto quaereretur.
6.41. The consideration of quality under its most general aspect rarely comes up in the courts; I refer to questions such as “whether that is honourable which is generally praised.” With regard to the special aspects of quality, questions sometimes occur about some common term, such as whether sacrilege has been committed when a man has stolen private money from a temple, or about some act with a definite name, when there is no doubt either as to the commission or the nature of the act. Under this heading come all questions about what is honourable, just or expedient.
6.41. qualitatis, quae est de summo genere, raro in iudicium venit, quale est, idne sit honestum, quod vulgo laudatur; succedentium autem aliae de communi appellatione, ut sitne sacrilegus, qui pecuniam privatam ex templo furatus est; aut de re denominata, ubi et factum esse certum est nec dubitatur, quid sit quod factum est. subiacent omnes de honestis, iustis, utilibus quaestiones.
6.42. These bases are said to contain others as well, because quantity is sometimes concerned with conjectural bases, as in the question whether the sun is bigger than the earth, and sometimes with qualitative bases, as in the question what reward or punishment it would be just to assign to some particular person, while questions of competence undoubtedly are concerned with quality, and definition with questions of competence.
6.42. etiam ceteri status contineri dicuntur, quia et quantitas modo ad coniecturam referatur, ut maiorne sol quam terra? modo ad qualitatem, quanta poena quempiam quantove praemio sit affici iustum? et translatio versetur circa qualitatem, et definitio pars sit translationis;
6.43. ratiocinative basis or syllogism and the majority of questions dealing with the letter of the law and intention are based on equity, with the exception that this last question sometimes admits of conjecture as, for instance, concerning the intentions of the legislator: ambiguity, however, must always be explained by conjecture, because as it is clear that the words admit of two interpretations the only question is as to the intention.
6.43. quin et contrariae leges et ratiocinativus status, id est syllogismos, et plerumque scripti et voluntatis aequo nitantur (nisi quod hic tertius aliquando coniecturam accipit, quid senserit legis constitutor); ambiguitatem vero semper coniectura explicari necesse sit, quia, cum sit manifestum, verborum intellectum esse duplicem, de sola quaeritur voluntate.
6.44. A large number of writers recognise general bases; Cicero adopts them in his Orator, and holds that everything that can form the subject of dispute or discussion is covered by the three questions, whether it is, what it is, and of what kind it is. The names of these three bases are too obvious for mention. The same view is asserted by Patrocles.
6.44. A plurimis tres sunt facti generales status, quibus et Cicero in Oratore utitur, et omnia, quae aut in controversiam aut in contentionem veniant, contineri putat, Sitne? sit? sit? quorum nomina apertiora sunt, quam ut dicenda sint.
6.45. Marcus Antonius stated that there were three bases in the following words:— “The things which form the ground of every speech are few and are as follows:—' Was a thing done or not done? 'Was it just or unjust?' 'Was it good or bad?' ” But since, when we are said to have been justified in doing anything, this does not merely mean that our action was legal, but further implies that it was just, those who follow Antonius attempt to differentiate these bases with greater exactness. They therefore called them conjectural, legal and juridical, a division which meets with the approval of Verginius as well.
6.45. Patrocles sentit. fecit et M. Antonius his quidem verbis: res sunt, quibus ex rebus omnes orationes nascuntur, factum non factum, ius iniuria, bonum malum. quoniam, quod iure dicimur fecisse, non hunc solum intellectum habet, ut lege, sed illum quoque, ut iuste fecisse videamur, secuti Antonium apertius voluerunt eosdem status distinguere. dixerunt coniecturalem, legalem, iuridicialem; qui et Verginio placent.
6.46. These they then subdivided into species, placing definition under the head of the legal basis, together with all others which are concerned with the letter of the law: such as that of contradictory laws, or ἀντινομία that which rests on the letter of the law and on meaning or intention (which the Greeks call κατὰ ῥητὸν καὶ διάνοιαν and μετάληψις to which latter we give various names, styling it the translative, transumptive or transpositive basis; the syllogism, which we call the ratiocinative or deductive basis; and those which turn on ambiguity or ἀμφιβολία. I mention these because they are called bases by most writers, though some prefer to call them legal questions.
6.46. deinde fecerunt species, ita ut legali subiicerent finitionem et alios, qui ex scripto ducuntur, legum contrariarum, quae ἀντινομία dicitur, et scripti et sententiae vel voluntatis, id est κατὰ ῥητὸν καὶ διάνοιαν et μετάλημψιν, quam nos varie translativam, transumptivam, transpositivam vocamus, συλλογισμόν quem accipimus ratiocinativum vel collectivum, ambiguitatis, quae ἀμφιβολία nominatur; quos posui, quia et ipsi a plerisque status appellantur, cum quibusdam legales potius quaestiones eas dici placuerit.
6.47. Athenaeus laid down that there were four bases: the προτρεπτικὴ or παρορμητική, that is, the hortative, which is peculiar to deliberative themes; the συντελική which is shown to be the conjectural, not so much from the name itself, but from what follows; the ὑπαλλακτική or definitive, for it consists in a change of terms.; and the juridical to which he gives the name employed by other Greek writers.
6.47. fecit Athenaeus, προτρεπτικὴν στάσιν vel παρορμητικήν, id est exhortativum, qui suasoriae est proprius; συντελικήν, qua coniecturam significari magis ex his, quae sequuntur, quam ex ipso nomine apparet; ὑπαλλακτικήν ea finitio est, mutatione enim nominis constat; iuridicialem, eadem appellatione Graeca qua ceteri usus. est, ut dixi, multa in nominibus differentia.
6.48. For, as I have said, there is a great variety in the names employed. There are some who, arguing from its meaning of change, hold that ὑπαλλακτική is the translative basis, which is concerned with competence. Others, Caecilius and Theon for instance, hold that there are the same number of bases, but make them of a different kind, namely, those covered by the questions whether a thing is, what it is, of what kind it is and how great it is.
6.48. qui ὑπαλλακτικήν translationem esse existiment, secuti hanc mutationis significationem. alii totidem status, sed alios, sit? sit? sit? sit? ut Caecilius et Theon.
6.49. Aristotle in his Rhetoric states that all enquiry turns on the questions whether a thing is, of what kind it is, how great it is, and of how many parts it consists. In one place however he recognises the force of definition as well, saying that certain points are defended on the following lines:— “I took it, but did not steal it.” “I struck him, but did not commit an assault.”
6.49. Aristoteles in rhetoricis, sit,,, et multum sit? quaerendum putat. tamen loco finitionis quoque vim intelligit, quo dicit quaedam sic defendi,, sed non furtum feci; Percussi, sed non iniuriam feci.
6.50. Cicero again in his Rhetorica makes the number of bases to be four, namely those concerned with fact, names, kinds, and legal action, that is to say conjecture is concerned with fact, definition with names, quality with kinds, and law with action: under this latter head of law he included questions of competence. But in another passage he treats legal questions as a species of action. Some writers have held that there are five bases:
6.50. et Cicero in libris rhetoricis, facti, nominis, generis, actionis; ut in facto coniectura, in nomine finitio, in genere qualitas, in actione ius intelligeretur. iuri subiecerat translationem. hic legales quoque quaestiones alio loco tractat ut species actionis.
6.51. the conjectural, definitive, qualitative, quantitative and relative. Theodorus, also, as I have said, adopts the same number of general heads, whether a thing is, what it is, of what kind it is, how great it is, and to what it refers. The last he considers to be chiefly concerned with comparison, since better and worse, greater and less are meaningless terms unless referred to some standard.
6.51. qui facerent quinque, coniecturam, finitionem, qualitatem, quantitatem, ad aliquid. Theodorus quoque, ut dixi, iisdem generalibus capitibus utitur. sit? sit? sit? sit? aliquid. ultimum maxime in comparativo genere versari putat, quoniam melius ac peius, maius et minus nisi alio relata non intelliguntur.
6.52. But questions of relation, as I have already pointed out, enter also into translative questions, that is, questions of competence, since in cases such as “Has this man a right to bring an action?” or “Is it fitting that he should do such and such a thing, or against this man, or at this time, or in this manner?” For all these questions must be referred to a certain standard.
6.52. in illas quoque translativas, ut supra significavi, quaestiones incidit, An huic ius agendi sit? vel, facere aliquid conveniat? contra hunc? hoc tempore? sic? omnia enim ista referri ad aliquid necesse est.
6.53. Others hold that there are six bases: conjecture or γένεσις, quality, particularity or ἰδιότης by which word they mean definition, quantity or ἀξία, comparison and competence, for which a new term has been found in μετάστασις I call it new when applied to a basis, for Hermagoras employs it to describe a species of juridical question.
6.53. sex status putant, coniecturam, quam γένεσιν vocant, et qualitatem, et proprietatem, id est μετάστασις quo verbo finitio ostenditur, et quantitatem, quam μετάστασις; dicunt, et comparationem, et translationem, cuius adhuc novum nomen inventum est μετάστασις novum, inquam, in statu, alioqui ab Hermagora inter species iuridiciales usitatum.
6.54. Others think there are seven, while refusing to recognise competence, quantity or comparison, in place of which they substitute four legal bases, completing the seven by the addition of those three which they call rational.
6.54. septem esse placuit; a quibus nec translatio nec quantitas nec comparatio recepta est, sed in horum trium locum subditae quattuor legales adiectaeque tribus illis rationalibus.
6.55. Others again make eight by the addition of competence to the above-mentioned seven. Some on the other hand have introduced a fresh method of division, reserving the name of bases for the rational, and giving the name of questions to the legal, as I mentioned above, since in the former the problem is concerned with facts, in the latter with the letter of the law. Some on the contrary reverse this nomenclature calling the legal questions bases and the rational grounds questions.
6.55. pervenerunt usque ad octo, translatione ad septem superiores adiecta. A quibusdam deinde divisa ratio est, ut status rationales appellarent, quaestiones (quemadmodum supra dixi) legales, ut in illis de re, in his de scripto quaereretur. in diversum hos status esse, illas quaestiones maluerunt.
6.56. But others have thought that there are only three rational bases, covered by the questions whether a thing is, what it is, and of what kind it is? Hermagoras is alone in thinking that there are four, namely conjecture, particularity, competence, and quality: to the latter he appends the phrase κατὰ συμβεβηκός “according to its accidents,” illustrating his meaning by putting a case where it is enquired whether a man happen to be good or bad. He then subdivides quality into four species: first that which is concerned with things to he sought or avoided, which belongs to deliberative oratory:
6.56. alii rationales tres putaverunt, An sit? sit? sit? Hermagoras solus quattuor, coniecturam, proprietatem, translationem, qualitatem, quam per accidentia, id est κατὰ συμβεβηκός vocat, hac interpretatione, an illi accidat viro bono esse, vel malo. ita dividit, de appetendis et fugiendis, quae est pars deliberativa;
6.57. secondly those concerned with persons, by which he indicates panegyric: thirdly the practical or pragmatic, which is concerned with things in general without reference to persons, and may be illustrated by questions such as whether he is free who is claimed as a slave and waiting the trial of his case, whether riches beget insolence, and whether a thing is just or good; lastly there is the juridical species, under which practically the same questions arise, but in relation to certain definite persons, as for instance when it is asked whether that particular man has done well or ill.
6.57. de persona, ea ostenditur laudativa; negotialem, quam πραγματικήν vocat, in qua de rebus ipsis quaeritur, remoto personarum complexu, ut, Sitne liber qui est in assertione, an divitiae superbiam pariant, an iustum quid, an bonum sit., in qua fere eadem sed certis destinatisque personis quaerantur: an ille iuste hoc fecerit, vel bene me fallit, in primo Ciceronis rhetorico aliam esse loci negotialis interpretationem, cum ita scriptum sit: est, in qua, quid iris ex civili more et aequitate sit, consideratur;
6.58. I am aware that another explanation is given by Cicero in the first book of his Rhetorica of the species known as practical, where he says that it is “the department under which we consider what is right according to civil usage and equity: this department is regarded by us as the special sphere of the lawyer.” But I have already mentioned what his opinion was about this particular work. The Rhetorica are simply a collection of school-notes on rhetoric which he worked up into this treatise while quite a young man. Such faults as they possess are due to his instructor. In the present instance he may have been influenced by the fact that the first examples given by Hermagoras of this species are drawn from legal questions, or by the fact that the Greeks call interpreters of the law πραγματικοί.
6.58. cui diligentiae praeesse apud nos iurisconsulti existimantur. quod ipsius de his libris iudicium fuerit, supra dixi. enim velut regestae in hos commentarios, quos adolescens deduxerat, scholae, et si qua est in his culpa, tradentis est, sive eum movit id, quod Hermagoras prima in hoc loco posuit exempla ex quaestionibus iuris, sive quod Graeci πραγματικούς vocant iuris interpretes.
6.60. But for these early efforts Cicero substituted his splendid de Oratore and therefore cannot be blamed for giving false instruction. I will now return to Hermagoras. He was the first rhetorician to teach that there was a basis concerned with competence, although the elements of this doctrine are found in Aristotle, without however any mention of the name.
6.60. Cicero quidem his pulcherrimos illos de Oratore substituit, ideoque culpari, tanquam falsa praecipiat, non potest. ad Hermagoran. lationem hic primus omnium tradidit, quanquam semina eius quaedam citra nomen ipsum apud Aristotelen reperiuntur.
6.61. The legal questions were according to Hermagoras of five kinds. First the letter of the law and its intention; the names which he gives to these are κατὰ ῥητόν and ὑπεξαίρεσις, that is to say the letter of the law and the exceptions thereto: the first of these classes is found in all writers, but the term exception is less in use. The number is completed by the ratiocinative basis and those dealing with ambiguity and contradictory laws.
6.61. autem quaestiones has fecit, scripti et voluntatis (quam ipse vocat κατὰ ῥητὸν καὶ ὑπεξαίρεσιν, id est dictum et exceptionem, quorum prius ei cum omnibus commune est, exceptionis nomen minus usitatum), ratiocinativum, ambiguitatis, legum contrariarum.
6.62. Albutius adopts this classification, but eliminates competence, including it under the juridical basis. Further he holds that in legal questions there is no ratiocinative basis. I know that those who are prepared to read ancient writers on rhetoric more carefully than I have, will be able to discover yet more on this subject, but I fear that I may have been too lengthy even in saying what I have said.
6.62. Albutius eadem divisione usus detrahit translationem, subiiciens eam iuridiciali. legalibus quoque quaestionibus nullum putat esse, qui dicatur ratiocinativus. plura inventuros adhuc, qui legere antiquos studiosius volent, sed ne haec quoque excesserint modum vereor.
6.63. I must admit that I am now inclined to take a different view from that which I once held. It would perhaps be safer for my reputation if I were to make no modification in views which I not only held for so many years, but of which I expressed my open approbation.
6.63. me paulum in alia, quam prius habuerim, opinione nunc esse confiteor. fortasse tutissimum erat famae modo studenti nihil ex eo mutare, quod multis annis non sensissem modo, verum etiam approbassem.
6.64. But I cannot bear to be thought guilty of concealment of the truth as regards any portion of my views, more especially in a work designed for the profit of young men of sound disposition. For Hippocrates, the great physician, in my opinion took the most honourable course in acknowledging some of his errors to prevent those who came after from being led astray, while Cicero had no hesitation about condemning some of his earlier works in books which he published later: I refer to his condemnation of his Lucullus and Catulus and the books on rhetoric which I have already mentioned.
6.64. non sustineo esse conscius mihi dissimulati (in eo praesertim opere, quod ad bonorum iuvenum aliquam utilitatem componimus) in ulla parte iudicii mei. et Hippocrates, clarus arte medicinae, videtur honestissime fecisse, quod quosdam errores suos, ne posteri errarent, confessus est; et M. Tullius non dubitavit aliquos iam editos libros aliis postea scriptis ipse damnare, sicut Catulum atque Lucullum et hos ipsos, de quibus modo sum locutus, artis rhetoricae.
6.65. Indeed we should have no justification for protracting our studies if we were forbidden to improve upon our original views. Still none of my past teaching was superfluous: for the views which I am now going to produce will be found to be based on the same principles, and consequently no one need be sorry to have attended my lectures, since all that I am now attempting to do is to collect and rearrange my original views so that they may be somewhat more instructive. But I wish to satisfy everybody and not to lay myself open to the accusation that I have allowed a long time to elapse between the formation and publication of my views.
6.65. supervacuus foret in studiis longior labor, si nihil liceret melius invenire praeteritis. tamen quidquam ex iis, quae tum praecepi, supervacuum fuit; ad easdem enim particulas haec quoque, quae nunc praecipiam, revertentur; ita neminem didicisse paeniteat, colligere tantum eadem ac disponere paulo significantius conor. autem satisfactum volo, non me hoc serius demonstrare aliis, quam mihi ipse persuaserim.
6.66. I used to follow the majority of authorities in adhering to three rational bases, the conjectural, qualitative and definitive, and to one legal basis. These were my general bases. The legal basis I divided into five species, dealing with the letter of the law and intention, contradictory laws, the syllogism, ambiguity and competence.
6.66. plurimos auctores servabam tris rationales status, coniecturam, qualitatem, finitionem, unum legalem. mihi status generales erant. in quinque species partiebar, scripti et voluntatis, legum contrariarum, collectivum, ambiguitatis, translationis.
6.67. It is now clear to me that the fourth of the general bases may be removed, since the original division which I made into rational and legal bases is sufficient. The fourth therefore will not be a basis, but a kind of question; if it were not, it would form one of the rational bases.
6.67. quartum ex generalibus intelligo posse removeri; sufficit enim prima divisio, qua diximus alios rationales, alios legales esse; ita non erit status, sed quaestionum genus; alioqui et rationalis status esset.
6.68. Further I have removed competence from those which I called species. For I often asserted, as all who have attended my lectures will remember, and even those discourses which were published against my will included the statement, that the basis concerned with competence hardly ever occurs in any dispute under such circumstances that it cannot more correctly be given some other name, and that consequently some rhetoricians exclude it from their list of bases.
6.68. iis etiam, quos speciales vocabam, removi translationem, frequenter quidem (sicut omnes qui me secuti sunt meminisse possunt) testatus et in ipsis etiam illis sermonibus me nolente vulgatis hoc tamen complexus, vix in ulla controversia translationis statum posse reperiri, ut non et alius in eadem recte dici videretur, ideoque a quibusdam eum exclusum.
6.69. I am, however, well aware that the point of competence is raised in many cases, since in practically every case in which a party is said to have been ruled out of court through some error of form, questions such as the following arise: whether it was lawful for this person to bring an action, or to bring it against some particular person, or under a given law, or in such a court, or at such a time, and so on But the question of competence as regards persons, times, legal actions and the rest originates in some pre-existent cause: the question turns therefore not on competence itself, but on the cause with which the point of competence originates. “You ought to demand the return of a deposit not before the praetor but before the consuls, as the sum is too large to come under the praetor's jurisdiction.” The question then arises whether the sum is too large, and the dispute is one of fact.
6.69. ferri, cum in omnibus fere causis, in quibus cecidisse quis formula dicitur, hae sint quaestiones, an huic, an cum hoc, an hac lege, an apud hunc, an hoc tempore liceat agere? et si qua sunt talia. personae, tempora, actiones ceteraque propter aliquam causam transferuntur; ita non est in translatione quaestio sed in eo, propter quod transferuntur: debes apud praetorem petere fidei commissum, sed apud consules, maior enim praetoria cognitione summa est., an maior summa sit, facti controversia est.
6.71. “You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff.” It then has to be decided whether he could have been so appointed. “You ought not to have proceeded by interdict, but to have put in a plea for possession.” The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions.
6.71. licet tibi agere mecum, cognitor enim fieri non potuisti: iudicatio, an potuerit. debuisti interdicere sed petere: an recte interdictum sit, ambigitur. omnia succedunt legitimis quaestionibus.
6.72. not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is really concerned with the name of a given act, with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues.
6.72. non praescriptiones (etiam in quibus maxime videtur manifesta translatio) easdem omnes species habent, quas eae leges, quibus agitur, ut aut de nomine aut scripto et sententia vel ratiocinatione quaeratur? status ex quaestione oritur; translatio non habet quaestionem, de qua contendit orator, sed propter quam contendit.
6.73. An example will make this clearer. “You have killed a man.” “I did not kill him.” The question is whether he has killed him; the basis is the conjectural. But the following case is very different. “I have the right to bring this action.” “You have not the right.” The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision.
6.73. apertius, hominem, occidi; quaestio, an occiderit, status coniectura. est tale, ius actionis, habes, ut sit quaestio, an habeat, et inde status. enim actionem necne, ad eventum pertinet, non ad causam, et ad id, quod pronuntiat iudex, non id, propter quod pronuntiat.
6.74. The following is a similar example. “You ought to be punished.” “I ought not.” The judge will decide whether he should be punished, but it is not with this that the question or the basis is concerned. Where then does the question lie? “You ought to be punished, for you have killed a man.” “I did not kill him.” The question is whether he killed him. “I ought to receive some honour.” “You ought not.” Does this involve a basis? I think not. “I ought to receive some honour for killing a tyrant.” “You did not kill him.” Here there is a question and a basis as well.
6.74. illi simile est, es, sum; videbit iudex, an puniendus sit. non hic erit quaestio nec hic status. ergo? es, hominem occidisti; occidi: occiderit. sum, es; num statum habet? non, ut puto. sum, quia tyrannum occidi; occidisti; quaestio et status.
6.75. So, too, “You are not entitled to bring this action,” “I have,” involves no basis. Where then is it to be found? “You have no right to bring this action, because you have been deprived of civil rights.” In this case the question is whether he has been so deprived, or whether loss of civil rights debars a person from bringing an action. Here on the other hand we find both questions and bases. It is therefore to kinds of causes, not to bases that the term competence applies: other kinds of cause are the comparative and the recriminatory.
6.75. , recte agis, ago non habet statum. est ergo? recte agis ignominiosus., an ignominiosus sit; aut, an agere ignominioso liceat; quaestiones et status. translativum genus causae ut comparativum et mutuae accusationis.
6.76. “But,” it is urged, “the case 'I have a right,' 'You have not,' is similar to 'You have killed a man,' 'I was justified in so doing.' ” I do not deny it, but this does not make it a basis. For these statements are not propositions until the reasons for them are added. If they were propositions as they stand, the case could not proceed. “Horatius has committed a crime, for he has killed his sister.” “He has not committed a crime, since it was his duty to kill her for mourning the death of an enemy.” The question is whether this was a justifiable reason, and the basis is one of quality. So too as regards competence.
6.76. enim simile est illi ius, habes,, occidi. nego, sed nec haec res status facit. enim sunt hae propositiones (alioqui causa non explicabitur), sed, cum suis rationibus. commisit Horatius, sororem enim occidit. commisit, debuit enim occidere eam, quae hostis mortem maerebat., an haec iusta causa; ita qualitas.
6.77. “You have no right to disinherit, since a person who has been deprived of civil rights is not allowed to take legal action.” “I have the right, since disinheriting is not legal action.” The question here is what is legal action. And we shall arrive at the conclusion that the son's disinheritance is unlawful, by use of the syllogism. The case will be similar with all the rational and legal bases.
6.77. similiter in translatione, habes ius abdicandi, quia ignominioso non est actio. ius, quia abdicatio actio non est., quid sit actio: finiemus licet abdicare filium syllogismo. cetera per omnes et rationales et legales status.
6.78. I am aware that there have been some who placed competence among rational bases, using as illustrations cases such as, “I killed a man under orders from my general,” “I gave the votive offerings in a temple to a tyrant under compulsion,” “I deserted owing to the fact that storms or floods or ill health prevented me from rejoining.” That is to say it was not due to me, but some external cause.
6.78. ignoro fuisse quosdam, qui translationem in rationali quoque genere ponerent hoc nodo, occidi, iussus ab imperatore. templi cogenti tyranno dedi. tempestatibus, luminibus, valetudine impeditus. est, non per me stetit, sed per illud. A quibus etiam liberius dissentio.
6.79. From these writers I differ even more widely: for it is not the nature of the legal action itself which is involved in the question of competence, but the cause of the act; and this is the case in almost every defence. Finally he who adopts this line of defence, does not thereby abandon the qualitative basis; for he states that he himself is free from blame, so that we really should differentiate between two kinds of quality one of which comes into play when both the accused person and his act are defended, and the other when the accused person alone is defended.
6.79. enim actio transfertur sed causa facti, quod accidit paene in omni defensione. is, qui tali utitur patrocinio, non recedit a forma qualitatis, dicit enim, se culpa vacare; ut magis qualitatis duplex ratio facienda sit, altera qua et factum defenditur, altera qua tantum reus.
6.80. We must therefore accept the view of the authorities followed by Cicero, to the effect that there are three things on which enquiry is made in every case: we ask whether a thing is, that it is, and of that kind it is. Nature herself imposes this upon us. For first of all there must be some subject for the question, since we cannot possibly determine what a thing is, or of what kind it is, until we have first ascertained whether it is, and therefore the first question raised is whether it is. But even when it is clear that a thing is, it is not immediately obvious what it is.
6.80. est igitur his, quorum auctoritatem secutus est Cicero, tria esse, quae in omni disputatione quaerantur, an sit, quid sit, quale sit? quod ipsa nobis etiam natura praescribit. primum oportet subesse aliquid, de quo ambigitur; quod, quid sit et quale sit, certe non potest aestimari, nisi prius esse constiterit, ideoque ea prima quaestio.
6.81. And when we have decided what it is, there remains the question of its quality. These three points once ascertained, there is no further question to ask. These heads cover both definite and indefinite questions. One or more of them is discussed in every demonstrative, deliberative or forensic theme.
6.81. non statim, quod esse manifestum est, etiam quid sit, apparet. quoque constituto novissima qualitas superest, neque his exploratis aliud est ultra. infinitae quaestiones, his finitae continentur; horum aliqua in demonstrativa, deliberativa, iudiciali materia utique tractatur.
6.82. These heads again cover all cases in the courts, whether we regard them from the point of view of rational or legal questions. For no legal problem can be settled save by the aid of definition, quality and conjecture.
6.82. rursus iudiciales causas et rationali parte et legali continent; neque enim ulla iuris disceptatio nisi finitione, qualitate, coniectura potest explicari.
6.83. Those, however, who are engaged in instructing the ignorant will find it useful at first to adopt a slightly less rigid method: the road will not be absolutely straight to begin with, but it will be more open and will provide easier going. I would have them therefore learn above all things that there are four different methods which may be employed in every case, and he who is going to plead should study them as first essentials. For, to begin with the defendant, far the strongest method of self-defence is, if possible, to deny the charge. The second best is when it is possible to reply that the particular act with which you are charged was never committed. The third and most honourable is to maintain that the act was justifiable. If none of these lines of defence are feasible, there remains the last and only hope of safety: if it is impossible either to deny the charge or justify the act, we must evade the charge with the aid of some point of law, making it appear that the action has been brought against us illegally Hence arise those questions of legal action or competence.
6.83. instituentibus rudes non erit inutilis latius primo fusa ratio et, si non statim rectissima linea tensa, facilior tamen et apertior via. igitur ante omnia quadripertitam in omnibus causis esse rationem, quam primam intueri debeat qui acturus est., ut a defensore potissimum incipiam, longe fortissima tuendi se ratio est, si quod obiicitur negari potest; proxima, si non id, quod obiicitur, factum esse dicitur; tertia honestissima, qua recte factum defenditur. si deficiamur, ultima quidem sed iam sola superest salus aliquo iuris adiutorio elabendi ex crimine, quod neque negari neque defendi potest, ut non videatur iure actio intendi.