11.21. Similar to these is that class of proverb which may be regarded as an abridged fable and is understood allegorically: “The burden is not mine to carry,” he said, “the ox is carrying panniers.”
11.21. confine est παροιμίας genus illud, quod est velut fabella brevior et per allegorian accipitur: nostrum inquit onus; bos clitellas.
11.22. Simile has a force not unlike that of example, more especially when drawn from things nearly equal without any admixture of metaphor, as in the following case: “Just as those who have been accustomed to receive bribes in the Campus Martius are specially hostile to those whom they suspect of having withheld the money, so in the present case the judges came into court with a strong prejudice against the accused.”
11.22. exempli vires habet similitudo, praecipue illa, quae ducitur citra ullam translationum mixturam ex rebus paene paribus:, qui accipere in Campo consuerunt, iis candidatis, quorum nummos suppressos esse putant, inimicissimi solent esse, sic eiusmodi indices infesti tum reo venerunt.
11.23. For παραβολή, which Cicero translates by “comparison,” is often apt to compare things whose resemblance is far less obvious. Nor does it merely compare the actions of men as Cicero does in the pro Murena: “But if those who have just come into harbour from the high seas are in the habit of showing the greatest solicitude in warning those who are on the point of leaving port of the state of the weather, the likelihood of falling in with pirates, and the nature of the coasts which they are like to visit (for it is a natural instinct that we should take a kindly interest in those who are about to face the dangers from which we have just escaped), what think you should be my attitude who am now in sight of land after a mighty tossing on the sea, towards this man who, as I clearly see, has to face the wildest weather?” On the contrary, similes of this kind are sometimes drawn from dumb animals and inanimate objects.
11.23. παραβολή quam Cicero collationem vocat, longius res quae comparentur repetere solet. hominum modo inter se opera similia spectantur, ut Cicero pro Murena facit: e portu solventibus, qui iam in portum ex alto invehuntur, praecipere summo studio solent et tempestatum rationem et praedonum et locorum (quod natura adfert, ut iis faveamus, qui eadem pericula, quibus nos perfuncti sumus, ingrediantur), quo me tandem animo esse oportet, prope iam ex magna iactatione terram videntem, in hunc, cui video maximas tempestates esse subeundas? sed et a mutis atque etiam inanimis interim simile huiusmodi ducitur.
11.24. Further, since similar objects often take on a different appearance when viewed from a different angle, I feel that I ought to point out that the kind of comparison which the Greeks call εἰκών, and which expresses the appearance of things and persons (as for instance in the line of Cassius —Who is he yonder that doth writhe his faceLike some old man whose feet are wrapped in wool?)should be more sparingly used in oratory than those comparisons which help to prove our point. For instance, if you wish to argue that the mind requires cultivation, you would use a comparison drawn from the soil, which if neglected produces thorns and thickets, but if cultivated will bear fruit; or if you are exhorting someone to enter the service of the state, you will point out that bees and ants, though not merely dumb animals, but tiny insects, still toil for the common weal.
11.24. quoniam similium alia facies in alia ratione, admonendum est rarius esse in oratione illud genus, quod εἰκόνα Graeci vocant (quo exprimitur rerum aut personarum imago, ut Cassius: istam faciem planipedis senis torquens? ) quam id, quo probabilius fit quod intendimus: ut, si animum dicas excolendum, similitudine utaris terrae, quae neglecta spinas ac dumos, culta fructus creat; aut si ad curam rei publicae horteris, ostendas apes etiam formicasque, non modo muta, sed etiam parva animalia, in commune tamen laborare.
11.25. Of this kind is the saying of Cicero: “As our bodies can make no use of their members without a mind to direct them, so the state can make no use of its component parts, which may be compared to the sinews, blood and limbs, unless it is directed by law.” And just as he draws this simile in the pro Cluentio from the analogy of the human body, so in the pro Cornelio he draws a simile from horses, and in the pro Archia from stones.
11.25. hoc genere dictum illud est Ciceronis: corpora nostra sine mente, ita civitas sine lege suis partibus, ut nervis ac sanguine et membris, uti non potest. ut hac corporis humani pro Cluentio, ita pro Cornelio equorum, pro Archia saxorum quoque usus est similitudine.
11.26. As I have already said, the following type of simile comes more readily to hand: “As oarsmen are useless without a steersman, so soldiers are useless without a general.” Still it is always possible to be misled by appearances in the use of simile, and we must therefore use our judgment in their employment. For though a new ship is more useful than one which is old, this simile will not apply to friendship: and again, though we praise one who is liberal with her money, we do not praise one who is liberal with her embraces. In these cases there is similitude in the epithets old and liberal, but their force is different, when applied to ships and friendship, money and embraces.
11.26. (ut dixi) propiora: ut remiges sine gubernatore, sic milites sine imperatore nihil valere. tamen fallere similitudinum species, ideoque adhibendum est iis iudicium. enim, ut navis utilior nova quam vetus, sic amicitia; vel, ut laudanda, quae pecuniam suam pluribus largitur, ita, quae formam. sunt in his similia uetustatis et largitionis, vis quidem longe diversa navis et amicitiae, pecuniae et pudicitiae.
11.27. Consequently, it is allimportant in this connexion to consider whether the simile is really applicable. So in answering those Socratic questions which I mentioned above, the greatest care must be taken to avoid giving an incautious answer, such as those given by the wife of Xenophon to Aspasia in the dialogue of Aeschines the Socratic: the passage is translated by Cicero as follows:
11.27. in hoc genere maxime quaeritur, an simile sit, quod infertur. in illis interrogationibus Socratis, quarum paulo ante feci mentionem, cavendum, ne incaute respondeas; ut apud Aeschinen Socraticum male respondit Aspasiae Xenophontis uxor, quod Cicero his verbis transfert: Dic mihi, quaeso, Xenophontis uxor, si vicina tua melius habeat aurum, quam tu habes: utrumne illud an tuum malis?, inquit.
11.28. “Tell me, pray, wife of Xenophon, if your neighbour has finer gold ornaments than you, would you prefer hers or yours?” “Hers,” she replied. “Well, then, if her dress and the rest of her ornaments are more valuable than yours, which would you prefer, hers or yours?” “Hers,” she replied. “Come, then,” said she, “if her husband is better than yours, would you prefer yours or hers?” At this the wife of Xenophon not unnaturally blushed; for she had answered ill in replying that she would prefer her neighbour's gold ornaments to her own, since it would be wrong to do so. If on the other hand she had replied that she would prefer her ornaments to be of the same quality as those of her neighbour, she might have answered without putting herself to the blush that she would prefer her husband to be like him who was his superior in virtue.
11.28. si uestem et ceterum ornatum muliebrem pretii maioris habeat, quam tu, tuumne an illius malis?, Illius vero. sis, inquit, si virum illa meliorem habeat, quam tu> habes, utrumne tuum virium malis an illius? mulier erubuit, merito; male enim responderat se malle alienum aurum quam suum; nam est hoc improbum., si respondisset malle se aurum suum tale esse, quale illud esset, potuisset pudice respondere malle se virum suum talem esse, qualis melior esset.
11.30. I am aware that some writers have shown pedantic zeal in making a minute classification of similes, and have pointed out that there is lesser similitude (such as that of a monkey to a man or a statue when first blocked out to its original), a greater similitude (for which compare the proverb “As like as egg to egg” ), a similitude in things dissimilar (an elephant, for instance, and an ant both belong to the genus animal ), and dissimilitude in things similar (puppies and kids, for example, are unlike the parents, for they differ from them in point of age).
11.30. quosdam inani diligentia per minutissimas ista partes secuisse, et esse aliquid minus simile, ut simia homini et marmora deformata prima manu, aliquid plus, ut illud, ovum tam simile ovo; et dissimilibus inesse simile, ut formicae et elephanto genus, quia sunt animalia; et similibus dissimile, ut canibus catulos et matribus haedos, differunt enim aetate; contrariorum quoque aliter accipi opposita, ut noctem luci, aliter noxia, ut aquam frigidam febri, aliter repugnantia, ut verum falso, aliter disparata, ut dura non duris;
11.31. So too they distinguish between contraries: some are opposites, as night to day, some hurtful, as cold water to a fever, some contradictory, as truth to falsehood, and some negative, as things which are not hard when contrasted with things which are hard. But I cannot see that such distinctions have any real bearing on the subject under discussion.
11.31. sed, quid haec ad praesens propositum magnopere pertineant, non reperio. Illud est adnotandum magis, argumenta duci ex iure simili: ut Cicero in Topicis,, cui domus usus fructus relictus sit, non restituturum heredi, si corruerit, quia non restituat servum, si is decesserit;
11.32. It is more important for our purpose to note that arguments may be drawn from similar, opposite, and dissimilar points of law. As an example of the first, take the following passage from the Topica of Cicero, where he argues that a man to whom the usufruct of a house has been left will not restore it in the interests of the heir if it collapses; just as lie would not replace a slave if he should die. The following will provide an example of an argument drawn from opposite points of law: “The absence of a formal contract is no bar to the legality of a marriage, provided the parties cohabit by mutual consent, since the signing of a formal document will count for nothing in the absence of such mutual consent.” An instance of an argument drawn from dissimilar points of law occurs in the pro Caecina of Cicero: “If anyone had driven me from my house by armed violence, I should have ground for action against him. Have I then no ground, if he has prevented me from entering my house?” Dissimilar points may be illustrated by the following example: “Because a man has bequeathed all his silver to a given person and this bequest is regarded as including silver coin as well as plate, it does not follow that he intended all outstanding debts to be paid to the legatee.”
11.32. ex contrario: Nihil obstat quo minus iustum matrimonium sit mente coeuntium, etiamsi tabulae signatae non fuerint. enim proderit signasse tabulas, si mentem matrimonii non fuisse constabit; ex dissimili, quale est Ciceronis pro Caecina: , si qui me exire domo coegisset armis, haberem actionem, si qui introire prohibuisset, non haberem? sic deprehenduntur, Non si, qui argentum omne legarit, videri potest signatam quoque pecuniam reliquisse, ideo etiam, quod est in nominibus, dari voluisse creditur.
11.34. Some draw a distinction between analogy and similarly, but personally I regard the former as included under the latter. For the statement that the relation of 1 to 10 is the same as that of 10 to certainly involves similarity, just as does the statement that a bad citizen may be compared to an actual enemy. But arguments of this kind are carried still further: “If connexion with a male slave is disgraceful to the mistress of the house, so is the connexion of the master with a female slave. If pleasure is an end sought by dumb animals, so also must it be with men.”
11.34. Ἀναλογίαν quidam a simili separaverunt, nos eam subiectam huic generi putamus., ut unum ad decem, ita decem ad centum simile certe est; et ut hostis, sic malus civis. haec ulterius quoque procedere solent: si turpis dominae consuetudo cum servo, turpis domino cum ancilla; si mutis animalibus finis voluptas, idem homini.
11.35. But these arguments may readily be met by arguments from dissimilars: “It is not the same thing for the master of the house to have intercourse with a female slave as for the mistress to have intercourse with a male slave; nor does it follow that because dumb animals pursue pleasure, reasoning beings should do likewise.” Or they may even be met by arguments from opposites; as for instance, “Because pleasure is an end sought by dumb animals, it should not be sought by reasoning beings.”
11.35. rei facillime occurrit ex dissimilibus argumentatio: idem est dominum cum ancilla coisse, quod dominam cum servo; nec, si mutis finis voluptas, rationalibus quoque; immo ex contrario: mutis, ideo non rationalibus.
11.36. Authority also may be drawn from external sources to support a case. Those who follow the Greeks, who call such arguments κρίσεις, style them judgments or adjudications, thereby referring not to matters on which judicial sentence has been pronounced (for such decisions form examples or precedents), but to whatever may be regarded as expressing the opinion of nations, peoples, philosophers, distinguished citizens, or illustrious poets. Nay, even common sayings and popular beliefs may be found to be useful.
11.36. extrinsecus in causam et auctoritas. secuti Graecos, a quibus κρίσεις dicuntur, iudicia aut indicationes vocant, non de quibus ex causa dicta sententia est (nam ea quidem in exemplorum locum cedunt), sed si quid ita visum gentibus, populis, sapientibus viris, claris civibus, illustribus poetis referri potest.
11.37. For they form a sort of testimony, which is rendered all the more impressive by the fact that it was not given to suit special cases, but was the utterance or action of minds swayed neither by prejudice or influence, simply because it seemed the most honourable or honest thing to say or do.
11.37. haec quidem vulgo dicta et recepta persuasione populari sine usu fuerint. sunt enim quodammodo vel potentiora etiam, quod non causis accommodata, sed liberis odio et gratia mentibus ideo tantum dicta factaque, quia aut honestissima aut verissima videbantur.
11.38. For instance, if I am speaking of the misfortunes of this mortal life, surely it will help me to adduce the opinion of those nations who hold that we should weep over the new-born child and rejoice over the dead. Or if I am urging the judge to shew pity, surely my argument may be assisted by the fact that Athens, the wisest of all states, regarded pity not merely as an emotion, but even as a god. Again, do we not regard the precepts of the Seven Wise Men as so many rules of life?
11.38. vero me de incommodis vitae disserentem non adiuvabit earum persuasio nationum, quae fletibus natos, laetitia defunctos prosecuntur? si misericordiam commendabo iudici, nihil proderit, quod prudentissima civitas Atheniensium non eam pro adfectu sed pro numine accepit?
11.39. If an adulteress is on her trial for poisoning, is she not already to be regarded as condemned by the judgment of Marcus Cato, who asserted that every adulteress was as good as a poisoner? As for reflexions drawn from the poets, not only speeches, but even the works of the philosophers, are full of them; for although the philosophers think everything inferior to their own precepts and writings, they have not thought it beneath their dignity to quote numbers of lines from the poets to lend authority to their statements.
11.39. illa septem praecepta sapientium nonne quasdam vitae leges existimamus? causam ueneficii dicat adultera, non M. Catonis iudicio damnata videatur, qui nullam adulteram non eandem esse veneficam dixit? sententiis quidem poetarum non orationes modo sunt refertae sed libri etiam philosophorum, qui quanquam inferiora omnia praeceptis suis ac litteris credunt, repetere tamen auctoritatem a plurimis versibus non fastidierunt.
11.40. Again, a remarkable example of the weight carried by authority is provided by the fact that when the Megarians disputed the possession of Salamis with the Athenians, the latter prevailed by citing a line from Homer, which is not however found in all editions, to the effect that Ajax united his ships with those of the Athenians.
11.40. est ignobile exemplum, Megarios ab Atheniensibus, cum de Salamine contenderent, victos Homeri versu, qui tamen ipse non in omni editione reperitur, significans Aiacem naves suas Atheniensibus iunxisse. quoque, quae vulgo recepta sunt, hoc ipso, quod incertum auctorem habent, velut omnium fiunt: quale est, amici, ibi opes, et, mille testes, et apud Ciceronem, autem ( ut est in vetere proverbio ) cum paribus maxime congregantur;
11.41. Generally received sayings also become common property owing to the very fact that they are anonymous, as, for instance, “Friends are a treasure,” or “Conscience is as good as a thousand witnesses,” or, to quote Cicero, “In the words of the old proverb, birds of a feather flock together.” Sayings such as these would not have acquired immortality had they not carried conviction of their truth to all mankind. Some include under this head the supernatural authority that is derived from oracles, as for instance the response asserting that Socrates was the wisest of mankind: indeed, they rank it above all other authorities. Such authority is rare, but may prove useful. It is employed by Cicero in his speech on the Replies of the Soothsayers and in the oration in which he denounced Catiline to the people, when he points to the statue of Jupiter crowning a column, and again in the pro Ligario, where lie admits the cause of Caesar to be the better because the gods have decided in his favour. When such arguments are inherent in the case itself they are called supernatural evidence; when they are adduced from without they are styled supernatural arguments.
11.41. neque enim durassent haec in aeternum, nisi vera omnibus, uiderentur. a quibusdam et quidem in parte prima deorum auctoritas, quae est ex responsis, ut, Socraten esse sapientissimum. rarum est, non sine usu tamen. eo Cicero in libro de aruspicum responsis et in contione contra Catilinam,cum signum Iovis columnae impositum populo ostendit, et pro Ligario, cum causam C. Caesaris meliorem, quia hoc dii iudicaverint, confitetur. cum propria causae sunt, divina testimonia vocantur; cum aliunde arcessuntur, argumenta.
11.43. Sometimes, again, it may be possible to produce some saying or action of the judge, of our adversary or his advocate in order to prove our point. There have therefore been some writers who have regarded examples and the use of authorities of which I am speaking as belonging to inartificial proofs, on the ground that the orator does not discover them, but receives them readymade. But the point is of great importance.
11.43. contingit iudicis quoque aut adversarii aut eius, qui ex diverso agit, dictum aliquid aut factum adsumere ad eorum, quae intendimus, fidem. quod fuerunt, qui exempla et has auctoritates inartificialium probationum esse arbitrarentur, quod ea non inveniret orator, sed acciperet.
11.44. For witnesses and investigation and the like all make some pronouncement on the actual matter under trial, whereas arguments drawn from without are in themselves useless, unless the pleader has the wit to apply them in such a manner as to support the points which he is trying to make.
11.44. autem refert. testis et quaestio et his similia de ipsa re, quae in iudicio est, pronuntiant; extra petita, nisi ad aliquam praesentis disceptationis utilitatem ingenio applicantur, nihil per se valent.
12.1. Such in the main are the views about proof which I have either heard from others or learned by experience. I would not venture to assert that this is all there is to be said; indeed I would exhort students to make further researches on the subject, for I admit the possibilities of making further discoveries. Still anything that may be discovered will not differ greatly from what I have said here. I will now proceed to make a few remarks as to how proofs should be employed.
12.1. fere de probatione vel ab aliis tradita vel usu percepta in hoc tempus sciebam. mihi fiducia est, ut ea sola esse contendam, quin immo hortor ad quaerendum et inveniri posse fateor; quae tamen adiecta fuerint, non multum ab his abhorrebunt. breviter, quemadmodum sit utendum iis, subiungam.
12.2. It has generally been laid down that an argument to be effective must be based on certainty; for it is obviously impossible to prove what is doubtful by what is no less doubtful. Still some things which are adduced as proof require proof themselves. “You killed your husband, for you were an adulteress.” Adultery must first be proved: once that is certain it can be used as an argument to prove what is uncertain. “Your javelin was found in the body of the murdered man.” He denies that it was his. If this point is to serve as a proof, it must itself be proved. It is, however, necessary in this connection to point out that there are no stronger proofs than those in which uncertainty has been converted into certainty.
12.2. fere est argumentum oportere esse confessum; dubiis enim probari dubia qui possunt Quaedam tamen, quae in alterius rei probationem ducimus, ipsa probanda sunt. virum, eras enim adultera. de adulterio convincendum est ut, cum id coeperit esse pro certo, fiat incerti argumentum. tuum in corpore occisi inventum est; negat suum: ut probationi prosit, probandum est.
12.3. You committed the murder, for your clothes were stained with blood. 'This argument is not so strong if the accused admits that his clothes were bloodstained as if the fact is proved against his denial. For if he admits it, there are still a number of ways in which the blood could have got on to his clothes: if on the other hand he denies it, lie makes his whole case turn on this point, and if his contention is disproved, he will he unable to make a stand on any subsequent ground. For it will be thought that he would never have told a lie in denying the allegation, unless he had felt it a hopeless task to justify himself if he admitted it.
12.3. hoc loco monere inter necessaria est, nulla esse firmiora quam quae ex dubiis facta sunt certa. a te commissa est, cruentam enim vestem habuisti; non est tam grave argumentum, si fatetur quam si convincitur. si fatetur, multis ex causis potuit cruenta esse vestis; si negat, hic causae cardinem ponit, in quo si victus fuerit, etiam in sequentibus ruit. enim videtur in negando mentiturus fuisse, nisi desperasset id posse defendi, si confiteretur.
12.4. In insisting on our strongest arguments we must take them singly, whereas our weaker arguments should be massed together: for it is undesirable that those arguments which are strong in themselves should have their force obscured by the surrounding matter, since it is important to show their true nature: on the other hand arguments which are naturally weak will receive mutual support if grouped together.
12.4. argumentorum singulis instandum, infirmiora congreganda sunt, quia illa per se fortia non oportet circumstantibus obscurare, ut qualia sunt appareant, haec imbecilla natura mutuo auxilio sustinentur.
12.5. Consequently arguments which have no individual force on the ground of strength will acquire force in virtue of their number, since all tend to prove the same thing. For instance, if one man is accused of having murdered another for the sake of his property, it may be argued as follows: “You had expectations of succeeding to the inheritance, which was moreover very large: you were a poor man, and at the time in question were specially hard pressed by your creditors: you had also offended him whose heir you were, and knew that he intended to alter his will.” These arguments are trivial and commonplace in detail, but their cumulative force is damaging. They may not have the overwhelming force of a thunderbolt, but they will have all the destructive force of hail.
12.5. quae non possunt valere, quia magna sint, valebunt, quia multa sunt; utique vero ad eiusdem rei probationem omnia spectant., si quis hereditatis gratia hominem occidisse dicatur: sperabas et magnam hereditatem, et pauper eras et tum maxime a creditoribus appellabaris; et offenderas eum, cuius eras heres, et mutaturum tabulas sciebas. levia sunt et communia, universa vero nocent etiamsi non ut fulmine, tamen ut grandine.
12.6. There are certain arguments, which must not merely be stated, but supported as well. If we say, “The motive for the crime was greed,” we must show the force of greed as a motive: if we say that anger was the motive, we must show the sway that this passion has over the minds of men. Thus our arguments will not only be strengthened, but will be more ornamental as well, since we shall have produced something more than a mere fleshless skeleton. It also makes an enormous difference, supposing that we allege hatred as the motive for a crime, whether such hatred was due to envy, injury or unlawful influence, whether it was recent or of long standing, whether it was directed against an inferior, an equal or a superior, against a stranger or a relative.
12.6. argumenta ponere satis non est, adiuvanda sunt: cupiditas causa sceleris fuit, quae sit vis eius: ira, quantum efficiat in animis hominum talis adfectio; ita et firmiora erunt ipsa et plus habebunt decoris, si non nudos et velut carne spoliatos artus ostenderint.
12.7. There are special methods for the treatment of all these arguments, and tile treatment to be selected will depend on the interests of the case which we are defending. On tile other hand we must not always burden the judge with all the arguments we have discovered, since by so doing we shall at once bore him and render him less inclined to believe us. For he will hardly suppose those proofs to be valid which we ourselves who produce them regard as insufficient. On the other hand, where the facts are fairly obvious, it would be as foolish to argue about them as to bring some artificial light into broad sunlight.
12.7. etiam refert, si argumento nitemur odii, utrum hoc ex invidia sit an ex iniuria an ex ambitu, vetus an novum, adversus inferiorem, parem, superiorem, alienum, propinquum. habent omnia ista tractatus et ad utilitatem partis eius quam tuemur referenda sunt. tamen omnibus semper, quae invenerimus, argumentis onerandus est iudex, quia et taedium adferunt et fidem detrahunt. enim potest iudex credere satis esse ea potentia, quae non putamus ipsi sufficere qui diximus. rebus vero apertis argumentari tam sit stultum quam in clarissimum solem mortale lumen inferre.
12.9. To these proof's some authorities would add those which they call pathetic or emotional. Aristotle indeed holds that the strongest argument in support of a speaker is that he is a good man. This no doubt is the best support, but to seem good is also of value, though the semblance is but a bad second to the reality.
12.9. quidam probationes adiiciunt, quas παθητικάς vocant, ductas ex adfectibus. Aristoteles quidem potentissimum putat ex eo, qui dicit, si sit vir bonus; quod ut optimum est, ita longe quidem, sed sequitur tamen, videri.
12.10. Of this nature is the noble defence of Scaurus. “Quintus Varius of Sucro asserts that Aemilius Scaurus has betrayed the interests of the Roman people: Aemilius Scaurus denies it.” A similar defence is said to have been employed by Iphicrates: he asked Aristophon who was accusing him on a similar charge of treason whether lie would consent to betray his country for a bribe: when Aristophon replied in the negative, he continued, “Have I then done what you would have refused to do?”
12.10. enim ilia nobilis Scauri defensio: Q. Varius Sucronensis ait Aemilium Scaurum rem publicam populi Romani prodidisse; Aemilius, Scaurus negat. simile quiddam fecisse Iphicrates dicitur, qui cum Aristophontem, quo accusante similis criminis reus erat, interrogasset, an is accepta pecunia rem publicam proditurus esset; isque id negasset: igitur, inquit, tu non fecisses, ego feci?
12.11. We must however take the character of the judge into consideration and seek out such arguments as will appeal to him. I have already spoken of this in the rules which I laid down for the exordium and for deliberative oratory.
12.11. autem et qui sit apud quem dicimus, et id quod illi maxime probabile videatur requirendum; qua de re locuti sumus in prohoemii et suasoriae praeceptis.
12.12. Another form of proof is provided by asseveration as in “I did this,” “You told me this,” or “O outrageous crime!” and the like. Every pleading should contain some such asseverations; if it does not, the loss will be considerable. Still asseverations must not be regarded as supports of the first importance, since they can be produced by either party in the same case with the same emphasis.
12.12. ex adfirmatione probatio est: hoc feci; Tu mihi hoc dixisti; et O facinus indignum! et similia; quae non debent quidem deesse orationi et, si desunt, multum nocent; non tamen habenda sunt inter magna praesidia, cum hoc in eadem causa fieri ex utraque parte similiter possit. firmiores ex sua cuique persona probationes, quae credibilem rationem subiectam habeant: ut vulneratus aut filio orbatus non fuerit alium accusaturus quam nocentem, quando, si negotium innocenti facit, liberet eum noxa qui admiserit.
12.13. A more forcible kind of proof is that drawn from character and supported by some plausible reason, as for instance, “It is not likely that a wounded man or one who has lost his son would accuse anyone who is not guilty, since if he accused an innocent man, he would free the real offender from all risk of punishment.” It is from such arguments that fathers seek support when pleading against their sons or one relative against another. The further question has been raised as to whether the strongest arguments should be placed first, to take possession of the judge's mind, or last, to leave an impression on it; or whether they should be divided between the commencement and close of the proof, adopting the Homeric disposition of placing the weakest in the centre of the column, so that they may derive strength from their neighbours. But in the disposition of our arguments we must be guided by the interests of the individual case: there is only one exception to this general rule in my opinion, namely, that we should avoid descending from the strongest proofs to the weakest.
12.13. et patres adversus liberos et adversus suos quisque necessarios auctoritatem petunt. etiam, potentissima argumenta primone ponenda sint loco, ut occupent animos, an summo, ut inde dimittant, an partita primo summoque, quod Homerica dispositione in medio sint infirma, ut ab aliis crescant? prout ratio causae cuiusque postulabit, ordinabuntur, uno, ut ego censeo, excepto, ne a potentissimis ad levissima decrescat oratio.
12.15. I have been content to give a brief outline of my views concerning these points, and have put them forward in such a way as to show as clearly as was in my power the various topics and kinds of arguments. Others have dealt with the subject at greater length, preferring to deal with the whole subject of commonplaces and to show how each topic may be treated.
12.15. haec breviter demonstrasse contentus ita posui, ut locos ipsos et genera quam possem apertissime ostenderem. exsecuti sunt verbosius, quibus placuit,proposita locorum communium materia, quo quaeque res modo dici posset, ostendere; sed mihi supervacuum videbatur.
12.16. This seems to me unnecessary, since it is as a rule obvious what should be said against the injurious conduct or avarice of our opponents, or against a hostile witness or powerful friends; to say everything on all these subjects is an endless task, as endless in fact as if I were to attempt to lay down rules for dealing with every dispute that can ever occur and all the questions, arguments and opinions thereby involved. I do not venture to suppose that I have pointed out all the circumstances that may give rise to arguments, but I think that I have done so in the majority of cases. This was a task which required all the more careful handling because the declamations, which we used to employ as foils wherewith to practise for the duels of the forum, have long since departed from the true form of pleading and, owing to the fact that they are composed solely with the design of giving pleasure, have become flaccid and nerveless: indeed, declaimers are guilty of exactly the same offence as slave-dealers who castrate boys in order to increase tile attractions of their beauty.
12.16. et fere apparet, quid in iniuriam, quid in avaritiam, quid in testem inimicum, quid in potentes amicos dicendum sit; et de omnibus his omnia dicere infinitum est, tam hercule quam si controversiarum, quae sint quaeque futurae sint, quaestiones, argumenta, sententias tradere velim. autem argumentorum velut sedes non me quidem omnes ostendisse confido, plurimas tamen. eo diligentius faciendum fuit, quia declamationes, quibus ad pugnam forensem velut praepilatis exerceri solebamus, olim iam ab illa vera imagine orandi recesserunt atque ad solam compositae voluptatem nervis carent, non alio medius fidius vitio dicentium, quam quo mancipiorum negotiatores formae puerorum virilitate excisa lenocinantur.
12.18. For just as the slave-dealer regards strength and muscle, and above all, the beard and other natural characteristics of manhood as blemishes, and softens down all that would be sturdy if allowed to grow, on the ground that it is harsh and hard, even so we conceal the manly form of eloquence and power of speaking closely and forcibly by giving it a delicate complexion of style and, so long as what we say is smooth and polished, are absolutely indifferent as to whether our words have any power or no.
12.18. ut illi robur ac lacertos barbamque ante omnia et alia, quae natura proprie maribus dedit, parum existimant decora, quaeque fortia, si liceret, forent ut dura molliunt, ita nos habitum ipsum orationis virilem et illam vim stricte robusteque dicendi tenera quadam elocutionis cute operimus et, dum levia sint ac nitida, quantum valeant, nihil interesse arbitramur.
12.19. But I take Nature for my guide and regard any man whatsoever as fairer to view than a eunuch, nor can I believe that Providence is ever so indifferent to what itself has created as to allow weakness to be an excellence, nor again can I think that the knife can render beautiful that which, if produced in the natural course of birth, would be regarded as a monster. A false resemblance to the female sex may in itself delight lust, if it will, but depravity of morals will never acquire such ascendancy as to succeed in giving real value to that to which it has succeeded in giving a high price.
12.19. mihi naturam intuenti nemo non vir spadone formosior erit, nec tam aversa unquam videbitur ab opere suo providentia, ut debilitas inter optima inventa sit, nec id ferro speciosum fieri putabo, quod, si nasceretur, monstrum erat. iuvet ipsum effeminati sexus mendacium, numquam tamen hoc continget malis moribus regnum ut, si qua pretiosa fecit, fecerit et bona.
12.20. Consequently, although this debauched eloquence (for I intend to speak with the utmost frankness) may please modern audiences by its effeminate and voluptuous charms, I absolutely refuse to regard it as eloquence at all: for it retains not the slightest trace of purity and virility in itself, not to say of these qualities in the speaker.
12.20. eloquentiam, licet hanc (ut sentio enim, dicam) libidinosam resupina voluptate auditoria probent, nullam esse existimabo, quae ne minimum quidem in se indicium masculi et incorrupti, ne dicam gravis et sancti viri, ostentet.
12.21. When the masters of sculpture and painting desired to carve or paint forms of ideal beauty, they never fell into the error of taking some Bagoas or Megabyzus as models, but rightly selected the well-known Doryphorus, equally adapted either for the fields of war or for the wrestling school, and other warlike and athletic youths as types of physical beauty. Shall we then, who are endeavouring to mould the ideal orator, equip eloquence not with weapons but with timbrels?
12.21. vero statuarum artifices pictoresque clarissimi, cum corpora quam speciosissima fingendo pingendove efficere cuperent, numquam in hunc inciderunt errorem, ut Bagoam aut Megabyzum aliquem in exemplum operis sumerent sibi, sed Doryphoron illum aptum vel militiae vel palaestrae, aliorum quoque iuvenum bellicosorum et athletarum corpora decora vere existimaverunt: nos, qui oratorem studemus effingere, non arma sed tympana eloquentiae demus?
12.22. Consequently, let the youth whom we are training devote himself, as far as in him lies, to the imitation of truth and, in view of the fact that the battles of the forum that await him are not few, let him strive for victory in the schools and learn how to strike the vitals of his foe and protect his own; and let his instructor insist on his doing this above all else and reserve his special approval for the mastery of this art. For though young men may be lured to evil practices by praise, they still prefer to be praised for what is right.
12.22. et ille, quem instituimus, adolescens, quam maxime potest, componat se ad imitationem veritatis, initurusque frequenter forensium certaminum pugnam iam in schola victoriam spectet et ferire vitalia ac tueri sciat; et praeceptor id maxime exigat, inventum praecipue probet., ut ad peiora iuvenes laude ducuntur, ita laudari in bonis malent. illud male est, quod necessaria plerumque silentio transeunt, nec in dicendo videtur inter bona utilitas.
12.23. At the present time the misfortune is that teachers more often than not pass over what is necessary in silence, and utility is not accounted one of the good qualities of eloquence. But I have dealt with these points in another work, and shall often have to recur to them in this. I will now return to my prescribed course. Refitation may be understood in two senses. For the duty of the defence consists wholly in refutation, while whatever is said by our opponents must be rebutted, whether we are speaking for the defence or the prosecution. It is in this sense that refutation is assigned the fourth place in pleadings, but the methods required in either case are identical. For the principles of argument in refutation can only be drawn from the same sources as those used in proof, while topics and thoughts, words and figures will all be on the same lines.
12.23. haec et in alio nobis tractata sunt opere et in hoc saepe repetenda. ad ordinem inceptum. dupliciter accipi potest. et pars defensoris tota est posita in refutatione, et quae dicta sunt ex diverso debent utrinque dissolvi. hoc est proprie, cui in causis quartus adsignatur locus. utriusque similis condicio est. vero ex aliis locis ratio argumentorum in hac parte peti potest quam in confirmatione, nece locorum aut sententiarum aut verborum et figurarum alia condicio est.
13.2. As a rule no strong appeal to the emotions is made in refutation. It is not, however, without reason that, as Cicero so often testifies, the task of defence has always been considered harder than that of prosecution. In the first place accusation is a simpler task: for the charge is put forward in one definite form, but its refutation may take a number of different forms, since as a rule it is sufficient for the accuser that his charge should be true, whereas counsel for the defence may deny or justify the facts, raise the question of competence, make excuses, plead for mercy, soften, extenuate, or divert the charge, express contempt or derision. The task of the accuser is consequently straightforward and, if I may use the phrase, vociferous; but the defence requires a thousand arts and stratagems.
13.2. plerumque haec pars mitiores habet. sine causa tamen difficilius semper est creditum, quod Cicero saepe testatur, defendere quam accusare., quod est res illa simplicior, proponitur enim uno modo, dissolvitur varie, cum accusatori satis sit plerumque, verum esse id, quod obiecerit, patronus neget, defendat, transferat, excuset, deprecetur, molliat, minuat, avertat, despiciat, derideat. inde recta fere atque, ut sic dixerim, clamosa est actio; hinc mille flexus et artes desiderantur.
13.3. Moreover the prosecutor generally produces a speech which he has prepared at home, while the counsel for the defence has frequently to deal with quite unexpected points. The prosecutor brings forward his witnesses, while counsel for the defence has to refute the charge by arguments drawn from the case itself. The prosecutor draws his material from the odium excited by the charges, even though it have no justification, denouncing parricide, sacrilege, or treason, whereas counsel for the defence can only deny them. Consequently quite moderate speakers have proved adequate in prosecution, while no one can be a good counsel for the defence unless he possesses real eloquence. In a word, it is just so much easier to accuse than to defend as it is easier to inflict than to heal a wound.
13.3. accusator praemeditata pleraque domo adfert, patronus etiam inopinatis frequenter occurrit. dat testem, patronus ex re ipsa refellit. e criminum invidia, etsi falsa sit, materiam dicendi trahit, de parricidio, sacrilegio, maiestate; quae patrono tantum neganda sunt. accusationibus etiam mediocres in dicendo suffecerunt; bonus defensor nemo nisi qui eloquentissimus fuit. ut, quod sentio, semel finiam, tanto est accusare quam defendere, quanto facere quam sanare vulnera, facilius.
13.4. The nature of the arguments put forward by our opponent and the manner in which he produces them will, however, make an enormous difference to our task. We must therefore first consider what it is to which we have to reply, whether it is part and parcel of the actual case or has been introduced from circumstances lying outside the case. For in the former case we must deny or justify the facts or raise the question of competence: for these are practically the sole methods of defence available in the courts. Pleas for mercy, which are not in any sense a method of actual defence, can rarely be used, and only before judges who are not limited to some precise form of verdict.
13.4. autem refert, et quid proposuerit adversarius et quomodo. igitur intuendum est, id, cui responsuri sumus, proprium sit eius iudicii an ad causam extra arcessitum. si est proprium, aut negandum aut defendendum aut transferendum; extra haec in iudiciis fere nihil est.
13.5. Even those speeches delivered before Gaius Caesar and the triumvirs on behalf of members of the opposite party, although they do employ such pleas for mercy, also make use of the ordinary methods of defence. For I think you will agree with me that the following passage contains arguments of a strongly defensive character: “What was our object, Tubero, save that we might have the power that Caesar has now” But if, when pleading before the emperor or any other person who has power either to acquit or condemn, it is incumbent on us to urge that, while our client has committed an offence that deserves the death penalty, it is still the duty of a merciful judge to spare him despite his sins, it must be noted in the first place that we have to deal, not with our adversary, but with the judge, and secondly that we shall have to employ the deliberative rather than the forensic style.
13.5. quidem, quae est sine ulla specie defensionis, rara admodum et apud eos solos indices, qui nulla certa pronuntiandi forma tenentur. illae quoque apud C. Caesarem et triumuiros pro diuersarum partium hominibus actiones, etiamsi precibus utuntur, adhibent tamen patrocinia; nisi hoc non fortissime defendentis est dicere, aliud egimus, Tubero, nisi ut, quod hic potest, nos possemus?
13.6. For we shall urge the judge to fix his desire rather on the glory that is won by clemency than on the pleasure that is given by vengeance. On the other hand, when we are pleading before judges who have to give their verdict in accordance with the prescriptions of law, it would be absurd to give them advice as to how they should deal with a criminal who admits his guilt. Consequently, when it is impossible either to deny the facts or to raise the question of competence, we must attempt to justify the facts as best we can, or else throw up the case. I have pointed out that there are two ways in which a fact can be denied: it can be denied absolutely, or it may be denied that a fact is of the nature alleged. When it is impossible to plead justification or to raise the question of competence, we must deny the facts, and that not merely when a definition of the facts will serve our case, but even when nothing except an absolute denial is left for us.
13.6. quando apud principem aliumve, cui utrum velit liceat, dicendum erit, dignum quidem morte eum, pro quo loquemur, clementi tamen servandum esse vel talem, primum omnium non erit res nobis cum adversario sed cum iudice, deinde forma deliberativae magis materiae quam iudicialis utemur. enim ut laudem humanitatis potius quam voluptatem ultionis concupiscat. indices quidem secundum legem dicturos sententiam de confessis praecipere ridiculum est., quae neque negari neque transferri possunt, utique defendenda sunt, qualiacunque sunt, aut causa cedendum. duplicem ostendimus formam, aut non esse factum aut non hoc esse, quod factum sit. neque defendi neque transferri possunt, utique neganda, nec solum si finitio potest esse pro nobis, sed etiam si nuda infitiatio superest.
13.8. If witnesses are produced, there is much that may be said to discredit them; if a document is put forward, we may hold forth on the similarity of the handwritings. In any case there can be no worse course than confession of guilt. When denial and justification are both impossible, we must as a last resort base our defence on the legal point of competence.
13.8. erunt, multa in eos dicere licet; chirographum, de similitudine litterarum disseremus. nihil erit peius quam confessio. est actionis controversia, cum defendendi negandive non est locus, id est translatio.
13.9. Still, there are some cases in which none of these three courses is possible. “She is accused of adultery on the ground that after a widowhood of twelve months she was delivered of a child.” In this case there is no ground for dispute. Consequently I regard as the height of folly the advice that is given in such cases, that what cannot be defended should be ignored and passed over in silence, at any rate if the point in question is that on which the judge has to give his decision.
13.9. Atqui quaedam sunt, quae neque negari neque defendi neque transferri possunt. rea est quae, cum anno vidua fuisset, enixa est; lis non erit. illud stultissime praecipitur, quod defendi non possit, silentio dissimulandum: siquidem est id, de quo iudex pronuntiaturus est.
13.10. On the other hand, if the allegation is irrelevant to the actual case and no more than accessory, I should prefer simply to state that it has nothing to do with the question at issue, that it is not worth our attention, and that it has not the importance given to it by our opponent, though in such a case I should be prepared to pardon a policy of ignoring the charge such as I have just mentioned. For a good advocate ought not to be afraid of incurring a trivial censure for negligence, if such apparent negligence is likely to save his client.
13.10. si extra causam sit adductum et tantum coniunctum, malim quidem dicere, nihil id ad quaestionem nec esse in iis morandum et minus esse quam adversarius dicat; tamen velut huic simulationi oblivionis ignoscam. enim bonus advocatus pro rei salute brevem negligentiae reprehensionem non pertimescere. etiam, simul nobis plura aggredienda sint an amolienda singula.
13.11. We must further consider whether we should attack our opponent's arguments en masse or dispose of them singly. We shall adopt the former course if the arguments are so weak that they can be overthrown simultaneously, or so embarrassing that it would be inexpedient to grapple with them individually. For in such a case we must fight with all the force at our disposal and make a frontal attack. Sometimes, if it is difficult to refute the statements made by our opponents, we may compare our arguments with theirs, at least if by such a procedure it is possible to prove the superiority of our own.
13.11. simul invadimus, si aut tam infirma sunt, ut pariter impelli possint, aut tam molesta, ut pedem conferre cum singulis non expediat; tum enim toto corpore obnitendum et, ut sic dixerim, directa fronte pugnandum est., si resolvere ex parte diversa dicta difficilius erit, nostra argumenta cum adversariorum argumentis conferemus, si modo haec ut valentiora videantur effici poterit.
13.12. On the other hand, those arguments which rely on their cumulative force must be analysed individually, as for example in the case which I cited above: “You were the heir, you were poor and were summoned by your creditors for a large sum: you had offended him and knew that he intended to change his will.”
13.12. vero turba ualebunt, diducenda erunt, ut, quod paulo ante dixi: eras et pauper et magna pecunia appellabaris a creditoribus et offenderas et mutaturum tabulas testamenti sciebas.
13.13. The cumulative force of these arguments is damaging. But if you refute them singly, the flame which derived its strength from the mass of fuel will die down as soon as the material which fed it is separated, just as if we divert a great stream into a number of channels we may cross it where we will. We shall therefore adapt our method of refutation to the exigencies of our case, now dealing with individual arguments and now treating them in bulk.
13.13. universa; at si singula quaeque dissolveris, iam illa flamma, quae magna congerie convaluerat, diductis quibus alebatur, concidet, ut, si vel maxima flumina in rivos diducantur, qualibet transitum praebent. propositio quoque secundum hanc utilitatem accommodabitur, ut ea nunc singula ostendamus, nunc complectamur universa.
13.14. For at times we may include in a single proposition the refutation of an argument which our opponent has constructed of a number of different points. For instance, if the accuser allege that the accused had a number of motives for committing a crime, we may make a general denial of the fact without dealing singly with each alleged motive, because the fact that a man has had a motive for committing a crime does not prove that he has actually committed it.
13.14. interim quod pluribus collegit adversarius, sat est semel proponere; ut, si multas causas faciendi, quod arguit, reo dicet accusator fuisse, nos, non enumeratis singulis, semel hoc in totum negemus, quia non, quisquis causam faciendi sceleris habuit, et fecerit.
13.15. It will however as a rule be expedient for the prosecution to employ massed arguments, and for the accused to refute them in detail. We must, however, also consider the manner in which we should refute the arguments of our opponent. If his statements be obviously false, it will be sufficient to deny them. This is done by Cicero in the pro Cluentio, where he denies that the man alleged by the accuser to have fallen dead on the spot after drinking the contents of the cup, died on the same day.
13.15. tamen accusatori congerere argumenta, reo dissolvere expediet. autem, quod erit ab aduersario dictum, quomodo refutari debeat, intuendum est. si erit palam falsum, negare satis est, ut pro Cluentio Cicero eum, quem dixerat accusator epoto poculo concidisse, negat eodem die mortuum.
13.16. Again, it requires no skill to rebut arguments which are obviously contradictory, superfluous or foolish, and consequently I need give no examples nor instructions as to the method to be employed. There is also the type of charge which is known as obscure, where it is alleged that an act was committed in secret without witnesses or any evidence to prove it: this suffers from an inherent weakness, since the fact that our opponent can produce no proof is sufficient for our purpose: the same applies to arguments which are irrelevant to the case.
13.16. etiam contraria et supervacua et stulta reprehendere nullius est artis, ideoque nec rationes eorum nec exempla tradere necesse est. quoque (quod obscurum vocant), quod secreto et sine teste aut argumento dicitur factum, satis natura sua infirmum est; sufficit enim, quod adversarius non probat; item si ad causam non pertinet.
13.17. It is, however, sometimes an orator's duty to make it appear that some argument of his opponent is contradictory or irrelevant or incredible or superfluous or really favourable to his own client. Oppius is charged with having embezzled the supplies intended to feed the troops. It is a serious charge, but Cicero shows that it contradicts other charges, since the same accusers also charged Oppius with desiring to corrupt the army by bribes.
13.17. tamen interim oratoris efficere, ut quid aut contrarium esse aut a causa diversum aut incredibile aut supervacuum aut nostrae potius causae videatur esse coniunctum. Oppio, quod de militum cibariis detraxerit; asperum crimen, sed id contrarium ostendit Cicero, quia iidem accusatores obiecerint Oppio, quod is voluerit exercitum largiendo corrumpere.
13.18. The accuser of Cornelius offers to produce witnesses to show that he read out the law when tribune: Cicero makes this argument superHuous by admitting it. Quintus Caecilius demands to be entrusted with the task of accusing Verres on the ground that he had been the latter's quaestor: Cicero actually makes this argument tell in his own favour.
13.18. in Cornelium accusator lecti a tribuno codicis pollicetur; facit hoc Cicero supervacuum, quia ipse fateatur. accusationem in Verrem Q. Caecilius, quod fuerat quaestor eius; ipsum Cicero ut pro se videretur effecit.
13.19. As regards other charges, they may all be dealt with by very similar methods. For they may be demolished either by conjecture, when we shall consider whether they are true, by definition, when we shall examine whether they are relevant to the case, by quality, when we shall consider whether they are dishonourable, unfair, scandalous, inhuman, cruel, or deserve any other epithet coming under the head of quality.
13.19. , quae proponuntur, communis locus habet. enim coniectura excutiuntur, an vera sint; aut finitione, an propria; aut qualitate, an inhonesta, iniqua, improba, inhumana, crudelia et cetera, quae ei generi accident.
13.20. Such questions have to be considered, not merely in connection with the statement of the charges or the reasons alleged, but with reference to the nature of the case in its entirety. For instance, the question of cruelty is considered with regard to the charge of high treason brought against Rabirius by Labienus; of inhumanity in the case of Tubero who accused Ligarius when he was an exile and attempted to prevent Caesar from pardoning him; of arrogance as in the case of the charge brought against Oppius on the strength of a letter of Cotta.
13.20. non modo in propositionibus et rationibus sed in toto genere actionis intuenda: an sit crudelis, ut Labieni in Rabirium lege perduellionis; inhumana, ut Tuberonis Ligarium exulem accusantis atque id agentis ne ei Caesar ignoscat;
13.21. Similarly, it may be shown that charges are hasty, insidious or vindictive. The strongest argument, however, which can be brought against a charge is that it involves peril to the community or to the judges themselves; we find an example of the former in the pro Tullio, where Cicero says “Who ever laid down such a principle as this, or who could be allowed, without grave peril to the community, to kill a man, just because he asserts that he feared that he himself might be killed by him?” An instance of the latter occurs in the pro Oppio, where Cicero warns the judges at some length not to permit such an action to be brought against the equestrian order.
13.21. superba, ut in Oppium ex epistola Cottae reum factum. praecipites, insidiosae, impotentes deprehenduntur. quibus tamen fortissime invaseris, quod est aut omnibus periculosum, ut dicit Cicero pro Tullio: hoc statuit unquam, aut cui concedi sine summo omnium periculo potest, ut eum iure potuerit occidere, a quo metuisse se dicat, ne ipse posterius occideretur? aut ipsis iudicibus, ut pro Oppio monet pluribus, ne illud actionis genus in equestrem ordinem admittant.
13.22. On the other hand there are certain arguments which at times may best be treated with contempt, as being trivial or irrelevant. This course is frequently pursued by Cicero, indeed this affectation of indifference is sometimes carried so far that we trample disdainfully under foot arguments which we should never succeed in refuting by counter-argument.
13.22. tamen quaedam bene et contemnuntur vel tanquam levia vel tanquam nihil ad causam pertinentia. hoc locis fecit Cicero; et haec simulatio interim huc usque procedit, ut, quae dicendo refutare non possumus, quasi fastidiendo calcemus.
13.23. Since, however, the majority of such arguments are based on similarity, we must make diligent search to discover if any discrepancy is to be found in what is put forward. It is easy to do this where points of law are concerned. For the law was drafted to cover cases quite other than the present, and consequently it is all the easier to show the difference between case and case. As to parallels drawn from dumb animals or inanimate objects, they are easy to make light of.
13.23. vero maxima pars eorum similibus constat, rimandum erit diligentissime, quid sit in quoque, quod adsumitur, dissimile. iure facile deprehenditur. enim scriptum de rebus utique diversis, tantoque magis ipsarum rerum differentia potest esse manifesta. vero similitudines, quae ducuntur ex mutis animalibus aut inanimis, facile est eludere.
13.24. Examples drawn from facts, if damaging to our case, must be treated in various ways: if they are ancient history, we may call them legendary, while if they are undoubted, we may lay stress on their extreme dissimilarity. For it is impossible for two cases to be alike in every detail. For instance, if the case of Ahala,2 by whom Maelius was killed, is quoted to justify Nasica for the slaying of Tiberius Gracchus, we may argue that Maelius was endeavouring to make himself king, while all that Gracchus had done was to bring forward laws in the interest of the people, and that while Ahala was Master of the Horse, Nasica was a private citizen. In the last resort, if all else prove unavailing, we must see if we can show that the action adduced as a parallel was itself unjustifiable. These remarks as to examples apply also to previous decisions in the courts.
13.24. rerum varie tractanda sunt, si nocebunt; quae si vetera erunt, fabulosa dicere licebit; si indubia, maxime quidem dissimilia. enim fieri potest, ut paria sint per omnia, ut si Nasica post occisum Gracchum defendatur exemplo Ahalae, a quo Maelius est interfectus, Maelium regni adfectatorem fuisse, a Graccho leges modo latas esse populares, Ahalam magistrum equitum fuisse, Nasicam privatum esse dicatur. defecerint omnia, videndum erit, an obtineri possit, ne illud quidem recte factum. de exemplis, idem etiam de iudicatis observandum. autem posui, referre, quo quidque accusator modo dixerit, huc pertinet, ut, si est minus efficaciter elocutus, ipsa eius verba ponantur; si acri et vehementi fuerit usus oratione, eandem rem nostris verbis mitioribus proferamus, ut Cicero de Cornelio, attigit;