2.3. In the law courts past time is of most importance, since all accusations are concerned with what has actually been done, while what is being done or is likely to be done is inferred from the past. We also enquire into origins. For instance, we enquire whether a pestilence be due to the anger of heaven, the inclement weather, the pollution of the water-supply, or the noxious vapours emitted by the earth. Again, we seek for the motives of an act. For example, we enquire whether the fifty kings who sailed against Troy did so because they were bound by their oath, or were moved to do so by righteous indignation, or merely desired to gratify the sons of Atreus. There is no very great difference between these two classes of question.
2.3. iudiciis praeteritum tempus maxime valet; nemo enim accusat, nisi quae facta sunt. quae fiant et quae futura sint ex praeteritis colliguntur. et unde quid ortum? ut pestilentia ira deum an intemperie caeli an corruptis aquis an noxio terrae halitu. quae causa facti? ut, quare ad Troiam quinquaginta reges navigaverint iure iurando adacti an exemplo moti an gratificantes Atridis. duo genera non multum inter se distant.
2.4. As regards facts falling within the present, if they can be detected by the eye without any reference to their logical antecedents being required, there will be no need of conjecture: let us suppose, for instance, that the Lacedaemonians are enquiring whether the Athenians are erecting fortifications. But although conjecture may seem entirely foreign to this class of question, there are cases in which it it necessary, as in questions of personal identity, which may be illustrated by the action brought against the heirs of Urbinia, where the question was whether the man who claimed the property as being the son of the deceased, was Figulus or Sosipater.
2.4. vero, quae sunt praesentis temporis, si non argumentis, quae necesse est praecessisse, sed oculis deprehendenda sunt, non egent coniectura, ut si apud Lacedaemonios quaeratur, an Athenis muri fiant. et illud, quod potest videri extra haec positum, coniecturae genus, cum de aliquo homine quaeritur, qui sit; ut est quaesitum contra Urbiniae heredes, is qui tanquam filius petebat bona, Figulus esset an Sosipater.
2.5. In this case the actual person was before the eyes of the court, so that there could be no question whether he existed (as there is, for instance, when we ask whether there exists any land beyond the Ocean) nor what he was nor of what kind. The question was simply, who he was. But this kind of dispute also depends on past time. The problem is whether this man Clusinius Figulus was born of Urbinia. Such disputes have arisen even in our own day, indeed I myself have pleaded in such. On the other hand, conjecture as to intention is obviously concerned with all three times.
2.5. et substantia eius sub oculos venit, ut non possit quaeri, an sit, quomodo an ultra oceanum; nec quid sit nec quale sit, sed quis sit? hoc quoque genus litis ex praeterito pendet, an hic sit ex Urbinia natus Clusinius Figulus. autem tales nostris etiam temporibus controversiae, atque aliquae in meum quoque patrocinium inciderunt.
2.6. We ask with what purpose Ligarius went to Africa, with what purpose Pyrrhus is asking for a treaty, and how Caesar will take it if Ptolemy kills Pompey. We may also employ conjecture to enquire into quality in questions dealing with size, species and number, such as whether the sun is greater than the earth, whether the moon is spherical, flat or conical, whether there is one universe or several, or, to go outside these physical speculations, whether the Trojan or the Peloponnesian war was the greatest, what was the nature of the shield of Achilles, or whether there was more than one Hercules.
2.6. coniectura non dubie in omnia tempora cadit, qua mente Ligarius in Africa fuerit, qua mente Pyrrhus foedus petat, quomodo laturus sit Caesar, si Ptolemaeus Pompeium occiderit. per coniecturam et qualitas circa modum, speciem, numerum, an sol maior quam terra, luna globosa an plana an acuta, unus mundus an plures. extra naturales quaestiones, maius bellum Troianum an Peloponnesium, qualis clipeus Achillis, an unus Hercules.
2.7. In forensic cases, however, which consist of accusation and defence, there is one kind of conjecture by which we enquire both about an act and about its author. This sometimes treats the two questions together, as, for example, when both the act and the identity of the author are denied, and sometimes separately, as when the first enquiry, whether the act was committed, is followed by a second, where, the act being admitted, the question is by whom it was committed.
2.7. iis autem, quae accusatione ac defensione constant, unum est genus, in quo quaeritur et de facto et de auctore; quod interim coniunctam quaestionem habet, cum utrumque pariter negatur, interim separatam, cum et factum sit necne, et si de facto constet, a quo factum sit ambigitur.
2.8. The act itself again sometimes involves a single question, as, for example, whether a man is dead, and sometimes two, as, for instance, whether he died of poison or of some internal disease. Another form of conjecture is concerned with the act alone, it being admitted that if the act was really committed, there can be no doubt as to its author. A third form is concerned solely with the author, the act being admitted and the dispute turning on the question as to who committed it. This third form is complex.
2.8. quoque factum aliquando simplicem quaestionem habet, an homo perierit, aliquando duplicem, veneno an cruditate perierit. est genus de facto tantum, cum, si id certum sit, non potest de auctore dubitari; tertium de auctore tantum, cum factum constat, sed a quo sit factum in controversiam venit. hoc, quod tertio loco posui, non est simplex.
2.9. For the accused either confines himself to denying that he did it or accuses another of having done it. Further, there is more than one way of transferring the charge to another. At times this results in mutual accusation, which the Greeks call ἀντικατηγορία, and some of our own authors concertative accusation. At times, on the other hand, the charge is transferred to some person who cannot be brought to trial, and may be either known or unknown: again, if the person is known, he may be someone outside the case or the victim himself, who may be alleged to have committed suicide.
2.9. enim reus fecisse tantummodo se negat aut alium fecisse dicit. ne in alterum quidem transferendi criminis una forma est. Interdum enim substituitur mutua accusatio, quam Graeci ἀντικατηγορίαν vocant, nostrorum quidam concertativam. Interdum in aliquam personam, quae extra discrimen iudicii est, transfertur, et alias certam, alias incertam;
2.10. In such cases we compare characters, motives and other circumstances in the same way as in eases of mutual accusation. Cicero, for instance, in the pro Vareno diverts the charge from the accused to the slaves of Ancharius and in the pro Scauro throws the suspicion of Bostar's murder upon his mother.
2.10. et, cum certam, aut in extrariam aut in ipsius qui periit voluntatem. quibus similis atque in ἀντικατηγορίᾳ personarum, causarum, ceterorum comparatio est, ut Cicero pro Vareno in familiam Ancharianam, pro Scauro circa mortem Bostaris in matrem avertens crimen facit.
2.11. There is also a different form of comparison, which comes into play when both parties claim the credit of some act, and yet another kind, when the question is not as between two persons, but as between two acts; that is to say, the question is not which of the two committed an act, but which of two acts was committed. Finally, if the act and the identity of the author are both admitted, we may still raise the question of his intention. I shall now proceed to detail. As an example of joint denial covering both the act and the identity of the author we may take the following statements, “I have not committed adultery,” “I have not sought to establish myself as tyrant.” In cases of murder or poisoning the denial is often divided as follows:
2.11. etiam illud huic contrarium comparationis genus, in quo uterque a se factum esse dicit; et illud in quo non personae inter se sed res ipsae colliduntur, id est, non uter fecerit, sed utrum factum sit. de facto et de auctore constat, de animo quaeri potest. de singulis. pariter negatur, hoc modo: non commisi; tyrannidem non adfectavi. caedis ac veneficii causis frequens est illa divisio: est factum; et si est factum, ego non feci.
2.12. “The act was not committed, and, if it was committed, it was not by me.” But if the defence say, “Prove that the man was killed,” the burden falls solely on the accuser, for the accused can say nothing more against the charge except perhaps in the way of casting certain suspicions, which he should throw out in the vaguest terms, since if you make one definite assertion, you will have to prove it or run the risk of losing your case. For when the question lies between our statement and that of our opponent, one or other will be regarded as true. Thus when the point on which we relied for our defence is overthrown, there is nothing left but the points that tell against us.
2.12. , cum dicimus, hominem occisum, accusatoris tantum partes sunt; a reo nihil dici contra praeter aliquas fortasse suspiciones potest, quas spargere quam maxime varie oportebit, quia, si unum aliquid adfirmaris, probandum est aut causa periclitandum. cum inter id quod ab adversario et id quod a nobis propositum est quaeritur, videtur utique alterum verum; ita everso quo defendimur, reliquum est quo premimur, ut cum quaerimus de ambiguis signis cruditatis et veneni, nihil tertium est ideoque utraque pars, quod proposuit, tuetur.
2.13. For example, when the question turns on symptoms, which may point either to poisoning or internal disease, there is no third course left open and consequently each party sticks to his statement. At times the question turns on the nature of the fact, whether, for instance, death was due to poisoning or internal disease, and arguments are introduced which are drawn from the circumstances alone without any reference to the person concerned. For example, it makes a difference whether the deceased was cheerful or depressed, had been working or taking his ease, had been awake or sleeping previous to the festive gathering that was followed by his death. The age of the deceased is also an important factor, and it is desirable to know whether he died suddenly or after a long period of ill health. If the question turns only on his sudden death, both parties will have still freer scope for discussion.
2.13. autem ex re quaeritur, veneficium fuerit an cruditas; cum aliqua ex ipsa citra personam quoque argumenta ducuntur. enim, convivium praecesserit laetitia an tristitia, labor an otium, vigilia an quies. Aetas quoque eius, qui periit, discrimen facit; interest, subito defecerit an longiore valetudine consumptus sit. adhuc in utramque partem disputatio, si tantum subita mors in quaestionem venit.
2.15. At times the character of the accused may be adduced to prove the fact, and to make it likely that it was or was not a case of poisoning because the accused is or is not a likely person to have committed such an act. When, on the other hand, the enquiry concerns both the accused and the act, the natural order for the accuser to pursue is to commence by proving that the act has been committed and then to go on to show that it was committed by the accused. If, however, proofs of the authorship of the crime are more in number than the proofs of the commission, this order may be reversed.
2.15. ex persona probatio rei petitur, ut propterea credibile sit venenum fuisse, quia credibile est ab hoc factum veneficium, vel contra. vero de reo et de facto quaeritur, naturalis ordo est, ut prius factum esse accusator probet, deinde a reo factum. tamen plures in persona probationes habuerit, conuertit hunc ordinem.
2.16. On the other hand, the accused will always begin by denying the act, since if this can be successfully proved, there is no need to say anything more, while if it is not proved, there remain other means of defence. Similarly, when the dispute turns solely on the act and, the act being proved, there can be no doubt as to the author, arguments may be drawn in like manner both from the person and the facts, although with reference to the question of fact alone.
2.16. autem semper prius negabit esse factum, quia, si in hac parte vicerit, reliqua non necesse habet dicere; victo superest, ut tueri se possit. quoque, ubi de facto tantum controversia est, quod si probetur non possit de auctore dubitari, similiter argumenta et ex persona et ex re ducuntur, sed in unam facti quaestionem, sicut in illa controversia: (utendum est enim et his exemplis, quae sunt discentibus magis familiaria) medicinae studuit.
2.17. Take the following controversial theme as an example, for it is best to employ scholastic themes as illustrations since they are more familiar to the student. “A man who had been disinherited by his father took to the study of medicine. His father fell sick and, his life being despaired of by the other doctors, the son was called in, and said he would cure him if he would take a draught prescribed by himself. The father after drinking part of the draught said that he had been poisoned: the son drank the remainder of the draught. The father died and the son is accused of parricide.”
2.17. pater eius aegrotaret, desperantibus de eo ceteris medicis, adhibitus sanaturum se dixit, si is potionem a se datam bibisset., acceptae potionis epota parte, dixit uenenum sibi datum; filius quod reliquum erat exhausit: pater decessit, ille parricidii reus est.
2.18. There is no doubt who administered the draught, and, if it was poison, there is no question as to the author: but the problem as to whether the draught was poison can only be decided by arguments drawn from the character of the accused. There remains a third type of conjectural case where the fact is admitted, and the only question is as to the author. It is unnecessary for me to quote examples, since such cases are of frequent occurrence. For example, it may be clear that a man has been killed or that sacrilege has been committed, but the person accused of the crime may deny his guilt. It is from such circumstances that cases of mutual accusation arise, where it is admitted that the crime has been committed, but each party charges the other with being the author.
2.18. , quis potionem dederit, quae si veneni fuit, nulla quaestio de auctore; tamen, an venenum fuerit, ex argumentis a persona ductis colligetur. tertium, in quo factum esse constat aliquid, a quo sit factum, quaeritur. rei supervacuum est ponere exemplum, cum plurima sint huiusmodi iudicia, ut hominem occisum esse manifestum sit vel sacrilegium commissum, is autem, qui arguitur fecisse, neget. hoc nascitur ἀντικατηγορία; utique enim factum esse convenit, quod duo invicem obiiciunt.
2.19. With regard to this class of case Celsus points out that they cannot actually occur in the courts, a fact which I imagine is familiar to all: for the jury is empanelled to try one accused person only, and even though the defence and the prosecution may accuse each other of tile crime, the first case must be tried before the second.
2.19. quo quidem genere causarum admonet Celsus fieri id in foro non posse; quod neminem ignorare arbitror. uno reo consilium cogitur, et etiam si qui sunt, qui invicem accusent, alterum iudicium praeferre necesse est.
2.20. Apollodorus again stated that mutual accusation involved two separate disputes, and this is of course in conformity with the practice of the courts, which insists on two separate trials. On the other hand, mutual accusation is possible in cases tried before the senate or the emperor, and even in the courts the fact of mutual accusation will involve no difference in the pleadings, since the same methods will be required whether the verdict is given on both charges simultaneously or only on one.
2.20. Apollodorus quoque ἀντικατηγορίαν duas esse controversias dixit, et sunt revera secundum forense ius duae lites. tamen hoc genus in cognitionem venire senatus aut principis. in iudicio quoque nihil interest actionum, utrum simul de utroque pronuntietur an sententia de uno feratur.
2.21. In such cases the defence must always come first for three reasons. In the first place, we naturally prefer to secure our own safety than to injure our opponent, while secondly, our accusation will carry greater weight if we have first proved our own innocence, and thirdly, we shall thus secure a double line of defence. For the man who says, “I did not kill him,” is then free to go on to say, “You killed him,” whereas it is superfluous for the man who says, “You killed him,” to go on to say, “I did not kill him.”
2.21. Quo in genere semper prior debebit esse defensio, primum quia natura potior est salus nostra quam adversarii pernicies, deinde quod plus habebimus in accusatione auctoritatis, si prius de innocentia nostra constiterit, postremum, quod ita demum duplex causa erit. qui dicit, non occidi, habet reliquam partem, ut dicat, occidisti; at qui dicit, occidisti, supervacuum habet postea dicere, non occidi.
2.22. Further, such cases consist of comparison, which may be effected in different ways. For we may either compare our case in its entirety with that of our adversary, or we may compare individual arguments. The choice between these two methods can only be determined by the requirements of the case. For example, in the pro Vareno, Cicero, in dealing with the first charge, compares the individual arguments: for it would have been rash in connexion with the second charge to compare the position of a stranger with that of a mother. It is therefore best, if possible, to refute argument by individual argument: if, however, our individual arguments are weak, we shall try to secure success by comparison of case with case as a whole. But whether the case is one of mutual accusation, or the accused throws the guilt upon his opponent without making any formal accusation (as Roscius did without indicting his accusers), or the responsibility for the deed be placed on the victims themselves, whom we allege to have perished by their own hand, the arguments for both sides of the case will be compared in exactly the same way as in cases of mutual accusation.
2.22. porro actiones constant comparatione; ipsa comparatio non una via ducitur. enim totam causam nostram cum tota adversarii causa componimus aut singula argumenta cum singulis. utrum sit faciendum, non potest nisi ex ipsius litis utilitate cognosci: ut Cicero singula pro Vareno comparat in primo crimine; etenim in posteriore crimine persona alieni cum persona matris temere compararetur. optimum est, si fieri poterit, ut singula vincantur a singulis; sed si quando in partibus laborabimus, universitate pugnandum est. sive invicem accusant, sive crimen reus citra accusationem in adversarium vertit (ut Roscius in accusatores suos, quamvis reos non fecisset), sive in ipsos, quos sua manu periisse dicemus, factum deflectitur, lion aliter quam in iis quae mutuam accusationem habent utriusque partis argumenta inter se comparantur.
2.24. The class of case last mentioned by me is, however, not merely of frequent occurrence in the schools, but sometimes actually occurs in the courts. For example, the sole question in the case of Naevius of Arpinum was whether he threw his wife out of the window or she threw herself. My speech in this case is the only one of all my pleadings that I have so far published, and I admit that I was led to do so merely by a youthful desire for glory. For the other speeches which circulate as mine have little in them that actually fell from my lips, having been corrupted by the carelessness of the shorthand-writers who took them down with a view to making money out of them.
2.24. autem genus de quo novissime dixi non solum in scholis saepe tractatur, sed etiam in foro. id est in causa Naevii Arpiniani solum quaesitum, praecipitata esset ab eo uxor an se ipsa sua sponte iecisset. actionem et quidem solam in hoc tempus emiseram, quod ipsum me fecisse ductum iuvenali cupiditate gloriae fateor. ceterae, quae sub nomine meo feruntur, negligentia excipientium in quaestum notariorum corruptae minimam partem mei habent.
2.25. There is also another type of conjectural case which, though it involves two questions, is different from cases of mutual accusation; such cases are concerned with rewards and may be illustrated by the following controversial theme. “A tyrant, suspecting that his physician had given him poison, tortured him and, since he persisted in denying that he had done so, sent for a second physician. The latter asserted that poison had been administered, but that he would provide an antidote; he gave him a draught: the tyrant drank it and died. Both physicians claim a reward for slaying the tyrant.” Now just as in cases of mutual accusation where each party shifts the guilt to his opponent, so in this case we compare the characters, motives, means, opportunities, instruments and evidence of the persons who claim the reward.
2.25. et alia duplex coniectura huic ἀντικατηγορίᾳ diversa, de praemiis, ut in illa controversia, suspicatus a medico suo datum sibi venenum torsit eum et, cum is dedisse se pernegaret, arcessit alterum medicum; ille datum ei venenum dixit, sed se antidotum daturum, et dedit ei potionem, qua epota tyrannus decessit. praemio duo medici contendunt. ut illic factum in adversarium transferentium, ita hic sibi vindicantium personae, causae, facultates, tempora, instrumenta, testimonia comparantur.
2.26. There is yet another type of case which, though not one of mutual accusation, is treated in the same way: I mean a case in which we enquire, without accusing anyone, which of two acts has taken place. For both parties make and defend their own statement of the case. Thus in the suit concerning the estate of Urbinia the claimant says that Clusinius Figulus, the son of Urbinia, on the defeat of the army in which he was serving, fled and after various misfortunes, being even even kept in captivity by the king, at length returned to Italy and his own home in the Marrucine district, where he was recognised. To this Pollio replies that he had been a slave to two masters at Pisaurum, that he had practised medicine, and finally, after receiving his freedom, inserted himself into a gang of slaves who were for sale and was at his own request purchased by himself.
2.26. quoque, etiamsi non est ἀντικατηγορία, simili tamen ratione tractatur, in quo citra accusationem quaeritur, utrum factum sit. enim pars suam expositionem habet atque eam tuetur, ut in lite Urbiniana petitor dicit, Clusinium Figulum filium Vrbiniae acie victa, in qua steterat, fugisse, iactatumque casibus variis, retentum etiam a rege, tandem in Italiam ac patriam suam Marrucinos venisse atque ibi agnosci; Pollio contra, servisse eum Pisauri dominis duobus, medicinam factitasse, manumissum alienae se familiae venali immiscuisse, a se rogantem, ut ei serviret, emptum.
2.27. Does not the whole suit consist of comparison between the two cases and of two different and opposite sets of conjecture? But the method to be followed is identical whether the case be one of accusation and defence or of claim and denial of the claim. Conjecture is, in the first place, based on what is past, under which I include persons, causes and intent. For in dealing with a case we first ask what the accused intended to do, next what he was in a position to do, and lastly what he actually did. Consequently the first point on which we must fix our attention is the character of the accused.
2.27. tota lis constat duarum causarum comparatione et coniectura duplici atque diversa? autem accusantium ac defendentium, eadem petentium et infitiantium ratio est. coniectura primum a praeteritis. his sunt personae, causae, consilia. is ordo est, ut facere voluerit, potuerit, fecerit. intuendum ante omnia, qualis sit de quo agitur.
2.28. It is the business of the accuser to make any charge that he may bring against the accused not merely discreditable, but as consistent as possible with the crime for which he is arraigned. For example, if he calls a man accused of murder a debauchee or an adulterer, the discredit attaching to such charges will no doubt tell against the accused, but will, on the other hand, do less to prove the case than if he shows him to be bold, insolent, cruel or reckless.
2.28. autem est efficere ut, si quid obiecerit non solum turpe sit, sed etiam crimini, de quo est iudicium, quam maxime conveniat. si reum caedis impudicum vel adulterum vocet, laedat quidem infamia, minus tamen hoc ad fidem valeat quam si audacem, petulantem, crudelem, temerarium ostenderit.
2.29. On the other hand, counsel for the defence must, as far as possible, aim at denying, excusing or extenuating such charges, or, if that be impossible, show that they are not relevant to the case. For there are many charges which not only have no mutual resemblance, but may even at times contradict each other, as for instance if a man accused of theft is called prodigal or careless. For it is not likely that one and the same man should at once despise money and covet it.
2.29. , si fieri poterit, id agendum est ut obiecta vel neget vel defendat vel minuat; proximum est ut a praesenti quaestione separet. enim pleraque non solum dissimilia, sed etiam aliquando contraria: ut si reus furti prodigus dicatur aut negligens. enim videtur in eundem et contemptus pecuniae et cupiditas cadere.
2.30. If such means of defence are not available, we must take refuge with the plea that the charges made are not relevant to the case, that because a man has committed certain sins, it does not follow that he has committed all, and that the accusers ventured to make such false charges merely because they hoped by injuring and insulting the accused to be able to overwhelm him with the unpopularity thus created.
2.30. deerunt haec remedia, ad illa declinandum est, non de hoc quaeri nec eum, qui aliquando peccaverit, utique commisisse omnia, et hanc fiduciam fuisse accusatoribus falsa obiiciendi, quod laesum et vulneratum reum speraverint hac invidia opprimi posse.
2.31. There are also other topics which arise from and against the statement of the case by the prosecution. The defence may begin by drawing arguments from the person involved, and will at times urge on general grounds that it is incredible that a father has been killed by his son or that a commander has betrayed his country to the enemy. The answer to such arguments is easy, for we may urge that bad men are capable of every crime, as is shown by every-day occurrences, or that the atrocious nature of a crime is but a poor argument against its having been committed. At times we may base our arguments on the special circumstances of the person involved. This may be done in various ways: rank, for example, may be pleaded in defence of the accused, or at times, on the other hand, may be employed to prove his guilt on the ground that he trusted to his rank to secure impunity. Similarly poverty, humble rank, wealth may be used as arguments for or against the accused according to the talent of the advocate.
2.31. a propositione accusatoris contraque eam loci oriuntur. a persona prior ducit argumenta defensor et interim generaliter, incredibile esse a filio patrem occisum, ab imperatore proditam hostibus patriam. respondetur vel quod omnia scelera in malos cadant ideoque saepe deprehensa sint, vel quod indignum sit crimina ipsa atrocitate defendi. proprie, quod est varium. dignitas et tuetur reum et nonnunquam ipsa in argumentum facti convertitur, tanquam inde fuerit spes inpunitatis; proinde paupertas, humilitas, opes, ut cuique ingenio vis est, in diversum trahuntur.
2.33. Upright character, however, and the blamelessness of his past life are always of the utmost assistance to the accused. If no charge is made against his character, counsel for the defence will lay great stress on this fact, while the accuser will attempt to restrict the judge to the sole consideration of the actual issue which the court has to decide, and will say that there must always be a first step in crime and that a first offence is not to be regarded as the occasion for celebrating a feast in honour of the defendant's character.
2.33. vero mores et anteactae vitae integritas nunquam non plurimum profuerint. nihil obiicietur, patronus quidem in hoc vehementer incumbet, accusator autem ad praesentem quaestionem, de qua sola iudicium sit, cognitionem adligabit dicens neminem non aliquando coepisse peccare, nec per encaenia ducendum scelus primum.
2.34. So much for the methods of reply which will be employed by the prosecution. But he will also in his opening speech endeavour to dispose the judges to believe that it is not so much that he is unable, as that he is unwilling to bring any charge against the character of the accused. Consequently it is better to abstain from casting any slur on the past life of the accused than to attack him with slight or frivolous charges which are manifestly false, since such a proceeding discredits the rest of our argument. Further, the advocate who brings no charges against the accused may be believed to have omitted all reference to past offences on the ground that such reference was not necessary, while the advocate who heaps up baseless charges thereby admits that his only argument is to be found in the past life of the accused, and that he has deliberately preferred to risk defeat on this point rather than say nothing at all about it.
2.34. in respondendo. autem praeparabit actione prima iudicum animos, ut noluisse potius obiicere quam non potuisse credatur. satius est omni se ante actae vitae abstinere convicio quam levibus aut frivolis aut manifesto falsis reum incessere, quia fides ceteris detrahitur; et qui nihil obiicit, omisisse credi potest maledicta tanquam supervacua; qui vana congerit, confitetur unum in anteactis argumentum, in quibus vinci quam tacere maluerit.
2.35. As regards the other arguments derived from character, I have already discussed them in connexion with “places” of argument. The next type of proof is derived from causes or motives, such as anger, hatred, fear, greed or hope, since all motives can be classified as species of one or other of these. If any of these motives can be plausibly alleged against the accused, it is the duty of the accuser to make it appear that such motives may lead a man to commit any crime, and to exaggerate the particular motives which he selects for the purpose of his argument.
2.35. , quae a personis duci solent, in argumentorum locis exposuimus. est ex causis probatio, in quibus haec maxime spectantur, ira, odium, metus, cupiditas, spes; nam reliqua in horum species cadunt. si quid in reum conveniet, accusatoris est efficere ut ad quidquid faciendum causae valere videantur, easque quas in argumentum sumet augere; si minus, illuc conferenda est oratio, aut aliquas fortasse latentes fuisse aut nihil ad rem pertinere cur fecerit, si fecit, aut etiam dignius esse odio scelus, quod non habuerit causam.
2.36. If no such motive can be alleged, he must take refuge in suggesting that there must have been some hidden motive, or in asserting that, if he committed the act, all enquiry into motive is irrelevant or that a motiveless crime is even more abominable than one which has a motive. Counsel for the defence, on the other hand, will, wherever it be possible, emphasise the point that it is incredible that any act should be committed without a motive. Cicero develops this point with great energy in a number of his speeches, but more especially in his defence of Varenus, who had everything else against him and was as a matter of fact condemned.
2.36. vero, quotiens poterit, instabit huic loco, ut nihil credibile sit factum esse sine causa. Cicero vehementissime multis orationibus tractat, praecipue tamen pro Vareno, qui omnibus aliis premebatur; nam et damnatus est., si proponitur, cur factum sit, aut falsam causam aut levem aut ignotam reo dicet.
2.37. But if the prosecution do allege some motive, he will either say that the motive alleged is false or inadequate or unknown to the accused. For it is possible that a man may be quite ignorant of motives imputed to him. He may not, for example, have known whether the man whom he is accused of having killed had appointed him his heir or intended to prosecute him. All else failing, we may urge that motives are not necessarily of importance. For what man is there who is not liable to the emotions of fear, hatred or hope, and yet numbers of persons act on these motives without committing crime?
2.37. autem esse aliquae interim ignotae, an heredem habuerit, an accusaturus fuerit eum, a quo dicitur occisus. alia defecerint, non utique spectandas esse causas; nam quem posse reperiri, qui non metuat, oderit, speret?
2.38. Nor should we neglect the point that all motives do not apply to all persons. For example, although poverty may in certain cases be a motive for theft, it will not have the same force with men such as Curius or Fabricius.
2.38. plurimos tamen haec salva innocentia facere. illud est omittendum, non omnes causas in omnibus personis valere. ut alicui sit furandi causa paupertas, non erit idem in Curio Fabricioque momentum.
2.39. The question has been raised as to whether we should deal first with persons or motives, and different orators have given different answers: Cicero as a rule prefers to treat motives first. For my own part, if the circumstances of the case do not point strongly in either direction, I consider that the most natural course is to begin by dealing with persons. For the enquiry whether any crime can credibly be imputed to such a man as the accused is of a more general character than the question whether some one particular crime can be imputed, and in addition involves a greater correctness in division.
2.39. causa prius an de persona dicendum sit, quaeritur, varieque est ab oratoribus factum, a Cicerone etiam praelatae frequenter causae., si neutro litis condicio praeponderet, secundum naturam videtur incipere a persona. hoc magis generale est rectiorque divisio, an ullum crimen credibile, an hoc.
2.40. Still, in many cases expediency may make it desirable to reverse the order. Further, we have to seek not merely motives affecting the will, but also causes leading to error, such as drunkenness or ignorance. For just as such considerations lessen the guilt of a crime when regarded from the point of view of its quality, so they tell heavily against the criminal as far as the question of fact is concerned.
2.40. tamen id ipsum, sicut pleraque, vertere utilitas. tantum causae voluntatis sunt quaerendae, sed interim et erroris, ut ebrietas, ignorantia. ut haec in qualitate crimen elevant, ita in coniectura premunt.
2.41. I should imagine that there could never be a case, or at any rate an actual case in the courts, in which neither side said anything about the character of the persons involved; but this is not true of causes and motives, for it is often wholly unnecessary to trouble ourselves about them, as, for example, in cases of theft or adultery, crimes which carry their motives on the face of them.
2.41. persona quidem nescio an unquam, utique in vero actu rei, possit incidere, de qua neutra pars dicat; de causis frequenter quaeri nihil attinet, ut in adulteriis, ut in furtis, quia illas per se ipsa crimina secum habent.
2.42. Next we must consider the intention, a term which involves a number of questions, such as whether it is probable that the accused hoped that he would be able to carry such a crime into effect, or that it would escape detection when committed, or that, even if detected, it would be pardoned or punished but lightly or after considerable lapse of time, or that the inconvenience involved by the penalty would be outweighed by the pleasure resulting from the crime: or again, whether it was worth while incurring the penalty;
2.42. haec intuenda videntur et consilia, quae late patent; an credibile sit, reum sperasse id a se scelus effici posse, an ignorari, cum fecisset, an, etiamsi ignoratum non esset, absolvi vel poena levi transigi vel tardiore vel ex qua minus incommodi consecuturus quam ex facto gaudii videretur, an etiam tanti putaverit poenam subire;
2.43. and further, whether he could have done the deed at some other time and in some other way, or with greater ease or security, as Cicero says in the pro Milone, where he mentions the numerous occasions when his client could have killed Clodius with impunity. There is also the question why the accused should have chosen that particular place or time or means for the commission of the crime, a topic to which Cicero gives a thorough treatment in the same passage;
2.43. post haec, an alio tempore et aliter facere vel facilius vel securius potuerit, ut dicit Cicero pro Milone enumerans plurimas occasiones, quibus ab eo Clodius impune occidi potuerit; praeterea, cur potissimum illo loco, illo tempore, illo modo sit aggressus, (qui et ipse diligentissime tractatur pro eodem locus) an, etiamsi nulla ratione ductus est, impetu raptus sit et absque sententia, (nam vulgo dicitur scelera non habere consilium) an etiam consuetudine peccandi sit ablatus.
2.44. or whether, without having the least reason for the deed, he was carried away by the impulse of the moment and acted without deliberate purpose (for it is a common saying that crimes are irrational), or finally, whether he was led astray by the fact that crime had become a habit with him. Having dealt with the question whether he intended to commit the crime, we proceed to the question whether he was in a position to commit it. Under this head we discuss the place and occasion of the offence. For instance, in a case of theft we ask whether it was committed in a secluded or frequented spot, in the daytime, when witnesses are more numerous, or by night, when success is more difficult. Consequently we shall consider all the circumstances rendering the act difficult or easy of accomplishment; these require no illustration, being numerous and familiar. This second topic is of such importance that, if it is impossible to give it satisfactory treatment, the case falls to the ground; if, however, we succeed in dealing with it adequately, we must proceed to consider whether the accused actually committed the act. But this topic involves conjecture as to intention, for it is from these facts that we infer whether he hoped for success or not. Therefore we must also consider the question of the means at his disposal, such, for example, as the retinues of Clodius and Milo.
2.44. prima parte, an voluerit, sequitur, an potuerit. tractatur locus, tempus, ut furtum in loco cluso, frequenti, tempore vel diurno, cum testes plures, vel nocturno, cum maior difficultas. itaque difficultates occasionesque, quae sunt plurimae ideoque exemplis non egent. sequens locus talis est, ut, si fieri non potuit, sublata sit lis; si potuit, sequatur quaestio an fecerit. haec etiam ad animi coniecturam pertinent, nam et ex his colligitur an speraverit. spectari debent et instrumenta, ut Clodii ac Milonis comitatus., an fecerit, incipit a secundo tempore, id est praesenti, deinde coniuncto, quorum sunt sonus, clamor, gemitus;
2.46. The question whether he actually did the deed belongs, in the first place, to the second division of time, namely the present, and secondly to time that is almost, though not actually contemporary: under this latter head come circumstances such as noise, cries or groans, while concealment, fear and the like belong to subsequent time. To these must be added indications, which we have already discussed elsewhere, and words and acts antecedent or subsequent to the crime.
2.46. insequentis latitatio, metus, similia. accedunt signa, de quibus tractatum est, verba etiam et facta, quaeque antecesserunt quaeque insecuta sunt.
2.47. These words and acts are either our own or those of others. With regard to words, our own do us greater harm and bring us less profit than do those of others, while those of others bring us greater profit and do us less harm than our own. On the other hand, with regard to deeds, it is sometimes from our own and sometimes from those of others that we derive the greatest advantage, as, for example, when our opponent has done something which tells in our favour: but our own acts are always more injurious to our case than are those of others.
2.47. aut nostra sunt aut aliena. verba nobis magis nocent et minus prosunt nostra quam aliena; magis prosunt et minus nocent aliena quam nostra. autem interim magis prosunt nostra, interim aliena, ut si quid, quod pro nobis sit, adversarius fecit; semper vero magis nocent nostra quam aliena.
2.48. Again, with regard to words, we must distinguish between those whose meaning is clear and those whose significance is doubtful. The latter will necessarily give less assistance to either side, be they our own words or another's. On the other hand, any ambiguity in our own words will always tell against us, as, for example, in the following controversial theme. “A son, on being asked where his father was, replied: 'Wherever he is, he is alive.' But the father was found dead at the bottom of a well.”
2.48. et illa in verbis differentia, quod aut aperta sunt aut dubia. nostra seu aliena sunt, infirmiora in utrumque sint necesse dubia; tamen nostra saepe nobis nocent, ut in illa controversia: filius, ubi esset pater, dixit, Ubicunque est, vivit; at ille in puteo mortuus est inventus., quae sunt dubia, nunquam possunt nocere nisi aut incerto auctore aut mortuo.
2.49. When the ambiguity lies in words used by others, they can never do us any harm, unless he who uttered them be unknown or dead; I will give two illustrations of my meaning: “A cry was heard at night, 'Be on your guard against the establishment of a tyranny';” and, “on being asked who had poisoned him, he replied: 'It is not fit that you should know.'” For if the speaker is available for examination, he will clear up the ambiguity.
2.49. audita vox est, cauete tyrannidem; et,, cuius veneno moreretur respondit, Non expedit tibi scire. si est, qui possit interrogari, solvet ambiguitatem.
2.50. Finally, whereas our own words and deeds can only be justified by their intention, the deeds and words of others can be disposed of in a number of different ways. My remarks on this subject have, I think, been confined to one very important class of conjectural cases, but something of what I have said will apply to all cases. For example, in cases concerned with theft, deposits and loans, arguments are derived both from possibilities (as when we enquire whether there was any money to deposit), and from persons, as when we raise the question whether it is credible that anyone deposited money with this man or trusted him with a loan, or that the claimant is bringing a false accusation, or that the accused repudiates his debt or is a thief.
2.50. autem dicta factaque nostra defendi solo animo possint, aliena varie refutantur. uno quidem maximo genere coniecturalium controversiarum locuti videmur, sed in omnes aliquid ex his cadit. furti, depositi, creditae pecuniae et a facultatibus argumenta veniunt, an fuerit, quod deponeretur, et a personis, an ullum deposuisse apud hunc, vel huic credidisse credibile sit, an petitorem calumniari, an reum infitiatorem esse vel furem.
2.51. But even in the case of an accusation of theft, just as in an accusation of murder, we enquire both into the act and the author, while in cases concerned with loans and deposits there are also two questions (though these are always distinct from one another), namely, whether the money was delivered and whether it has been repaid. Cases of adultery are marked by the following peculiarity, that, as a rule, the safety of two persons is involved, and it is necessary to say something of the past life of both, although some have raised the question whether both parties should be defended together. The line to be taken must depend on the circumstances of the individual case: if the defence of one party lends support to the defence of the other, I should defend them conjointly; if the reverse is the case, I should treat the two cases separately.
2.51. etiam in furti reo sicut in caedis quaeritur de facto et de auctore. et depositi duae quaestiones, sed nunquam iunctae, an datum sit, an redditum. aliquid proprii adulterii causae, quod plerumque duorum discrimen est et de utriusque vita dicendum, quanquam et id quaeritur, an utrumque pariter defendi oporteat. rei consilium nascetur ex causa; nam si adiuvabit pars altera, coniungam; si nocebit, separabo. quis autem mihi putet temere excidisse, quod plerumque duorum crimen esse adulterium, non semper dixerim: potest accusari sola mulier incerti adulterii: domi inventa sunt;
2.52. However, that no one may think me somewhat hasty in saying that two persons are as a rule involved in charges of adultery, I would point out that I would not assert that this is always the case. The woman alone may be accused of adultery with a person unknown: we may say, “Gifts were found in the house, and money from some unknown source, and love-letters whose destination cannot be ascertained.” The case is similar in accusations of forgery: for either there are several accused or only one. The writer of a document always regards it as necessary to support the signatory, but the signatory does not always support the writer of the document, for it is always possible that he has been deceived on the matter. On the other hand, the man who is said to have called in their services, and for whom the document is alleged to have been written, will always defend both writer and signatories. The arguments employed in cases of treason or attempted tyranny will be drawn from the same sources.
2.52. pecunia, cuius auctor non exstat; codicilli, dubium ad quem scripti In falso quoque ratio similis; aut enim plures in culpam vocantur aut unus. scriptor quidem semper tueri signatorem necesse habet, signator scriptorem non semper, nam et decipi potuit. autem, qui hos adhibuisse et cui id factum dicitur, et scriptorem et signatores defendet. argumentorum loci in causis proditionis et adfectatae tyrannidis.
2.54. But the custom prevalent in the schools of regarding everything not definitely stated in the theme as being in the speaker's favour, is likely to prove harmful to students destined for practice in the courts. You bring a charge of adultery. “Who is your witness? who is your informer?” You charge me with treason. “What was my reward? who was my accomplice?” You charge me with poisoning. “Where did I buy the poison, and from whom? When did I buy it, what was the price, and whom did I employ to administer it?” Or in defence of one charged with attempting to establish himself as tyrant, the declaimer will cry, “Where are my weapons, and what bodyguards have I ever collected?”
2.54. illa scholarum consuetudo ituris in forum potest nocere, quod omnia, quae in themate non sunt, pro nobis ducimus. obiicis; quis testis? quis index?, quod pretium? quis conscius?; ubi emi? a quo? quando? quanti? per quem dedi? reo tyrannidis adfectatae; ubi sunt arma?
2.55. I do not deny that these questions should be asked, or that we should use them as far as is permitted by the rôle which we have assumed; for even in the courts I feel that it will be desirable to put such questions, if my opponent is not in a position to reply effectively; but we have often felt the lack of such freedom in the courts, whereas in the schools there is scarcely a case where one or more examples of this method are not to be found.
2.55. quos contraxi satellites? haec nego esse dicenda, et ipsis utendum pro parte suscepta. et in foro aliqua, quando adversarius probare non poterit, desiderabo. in foro tantam illam facilitatem olim desiderauimus, ubi non fere causa agitur, ut non aliquid ex his aut plura ponantur.
2.56. Similar to this is the practice which some declaimers allow themselves in their perorations of assigning children, parents and nurses to their characters at will, though it is more reasonable to call for evidence which is not explicitly mentioned in the statement of the theme than to introduce it ourselves. With regard to the method to be followed when we enquire into intention, I have said enough in dividing the subject into three questions, namely, whether the accused intended to do the deed, whether he was in a position to do it and whether he actually did it. For the method of enquiring into the purpose with which an act was committed is identical with that employed in enquiring whether the deed was intended, since it amounts to asking whether a criminal act was intended.
2.56. simile est, quod in epilogis quidam, quibus volunt, liberos, parentes, nutrices accommodant, nisi quod magis concesseris ea, quae non sint posita, desiderare quam adiicere. animo quomodo quaeratur, satis dictum est, cum ita diviserimus, an voluerit, an potuerit, an fecerit. qua via tractatur, an voluerit, eadem, quo animo fecerit; id enim est, an male facere voluerit.
2.57. Further, the order in which the facts are stated may either contribute to or detract from the credibility of our case; for consistency and the reverse depend to a very great extent on the way the circumstances are arranged. But we shall be unable to detect these qualities unless we consider the circumstances in connexion with the case as a whole. None the less, it will always be necessary to consider what are best suited to be placed together.
2.57. quoque rerum aut adfert aut detrahit fidem; multo scilicet magis res, prout ponuntur, congruunt aut repugnant. haec nisi in ipso complexu causarum non deprehenduntur. tamen semper, quid cuique connectatur et quid consentiat.
3.1. III. Conjecture is followed by definition. For the man who cannot assert that he has done nothing, must needs take refuge in the assertion that lie has not committed the act which is alleged against him. Consequently the laws which govern definition are for the most part the same as those which govern conjecture, the only difference lying in the method to be employed in defence in cases such as those concerned with theft, deposits or adultery. For just as we say, “I have not committed theft, I never received a deposit, I am not guilty of adultery,” so we say, “This is not theft, this is not a deposit, this is not adultery.”
3.1. coniecturam finitio., qui non potest dicere nihil fecisse, proximum habebit, ut dicat, non id fecisse, quod obiiciatur. pluribus legibus rei iisdem quibus coniectura versatur, defensionis tantum genere mutato, ut rei furtis, depositis, adulteriis., quemadmodum dicimus, feci furtum, non accepi depositum, non commisi adulterium, ita, est hoc furtum, non est hoc depositum, non est hoc adulterium.
3.2. Sometimes we may pass from quality to definition, as in actions concerned with lunacy, cruelty and offences against the State. In such cases if it is impossible to assert that the acts alleged were right, we are left with such pleas as, “To use bad language to one's wife does not amount to cruelty.” Definition is the statement of the fact called in question in appropriate, clear and concise language.
3.2. a qualitate ad finitionem descenditur, ut rei actionibus dementiae, malae tractationis, rei publicae laesae; rei quibus si recte facta esse, quae obiiciuntur, dici non potest, illud succurrit, est male tractare uxorem verbis laedere. igitur est rei propositae propria et dilucida et breviter comprehensa verbis enuntiatio. maxime, sicut est dictum, genere, specie, differentibus, propriis: ut si finias equum, (noto enim maxime utar exemplo) genus est animal, species mortale, differentia irrationale, (nam et homo mortale erat) proprium hinniens.
3.3. As I have already said, it consists mainly in the statement of genus, species, difference and property. For example, if you wish to define a horse (for I will take a familiar example), the genus is animal, the species mortal, the diffrence irrational (since man also is mortal) and the properly neighing. Definition is employed by the orator for a number of different reasons. For sometimes, though there may be no doubt as to a term, there is a question as to what it includes, or, on the other hand, there may be no doubt about the thing, but no agreement as to the term to be applied to it. When the term is agreed, but the thing doubtful, conjecture may sometimes come into play, as, for instance, in the question, “What is god?”
3.3. adhibetur orationi pluribus causis. tum est certum de nomine, sed quaeritur quae res ei subiicienda sit, tum res est manifesta, sed de nomine non constat. de nomine constat, de re dubium est, interim coniectura est: ut si quaeratur, quid sit deus.
3.5. For the man who denies that god is a spirit permeating all things, assuredly asserts that the epithet “divine” is falsely applied to his nature, like Epicurus, who gives him a human form and makes him reside in the intermundane space. While both use the same term god, both have to employ conjecture to decide which of the two meanings is consistent with fact.
3.5. qui neget deum esse spiritum omnibus partibus immixtum, non hoc dicat falsam esse divinae illius naturae appellationem, sicut Epicurus, qui humanam ei formam locumque inter mundos dedit? uterque uno utitur;
3.6. Sometimes again we have recourse to quality, as in the question, “What is rhetoric? Is it the power to persuade or the science of speaking well?” This form of question is of frequent occurrence in the courts. For instance, the question may arise whether a man caught in a brothel with another man's wife is an adulterer. Here there is no doubt about the name; it is the significance of the act which is in doubt, since the question is whether he has committed any sin at all. For if he has sinned, his sin can only be adultery.
3.6. utrum sit rei re, coniectat. qualitas tractatur, ut quid sit rhetorice, vis persuadendi an bene dicendi scientia. genus est rei iudiciis frequentissimum. enim quaeritur, an deprehensus rei lupanari cum aliena uxore adulter sit: quia non de appellatione, sed de vi facti eius ambigitur, an omnino peccaverit. si peccavit, non potest esse aliud quam adulter.
3.7. There is a different type of question where the dispute is concerned with the term to be applied, which depends on the letter of the law: it is a form of question which can only arise in the courts from the actual words on which the dispute turns. Take as examples the questions, whether suicide is a form of homicide, or whether the man who forces a tyrant to kill himself can be considered a tyrannicide, or whether magical incantations are equivalent to the crime of poisoning. In all these cases there is no doubt about the facts, for it is well known that there is a difference between killing oneself and killing another, between slaying a tyrant and forcing him to suicide, between employing incantations and administering a deadly draught, but we enquire whether we are justified in calling them by the same name.
3.7. est genus, cum controversia consistit rei nomine, quod pendet ex scripto, nec versatur rei iudiciis nisi propter verba quae litem faciunt: an, qui se interficit, homicida sit; an, qui tyrannum rei mortem compulit, tyrannicida; an carmina magorum veneficium. enim manifesta est, sciturque non idem esse occidere se quod alium, non idem occidere tyrannum quod compellere ad mortem, non idem carmina ac mortiferam potionem; quaeritur tamen, an eodem nomine appellanda sint.