---
title: "The Orator’s Education · Institutio oratoria"
author: "Quintilian"
translator: "Harold Edgeworth Butler"
languages: [la, en]
shelf: "Classical Latin"
section: 29 of 53
url: https://scriptura.si/works/quintilian-institutio-oratoria/29/
cite: "Quintilian, tr. Harold Edgeworth Butler, The Orator’s Education · Institutio oratoria, section 29. Scriptura (scriptura.si), https://scriptura.si/works/quintilian-institutio-oratoria/29/"
---

# The Orator’s Education · Institutio oratoria

*Quintilian, tr. Harold Edgeworth Butler*

Twelve books on training a good man skilled in speaking, from the nursery to the forum.

> Latin: ed. Harold Edgeworth Butler, from the Perseus Digital Library (canonical-latinLit, phi1002.phi001, CC BY-SA 4.0).

> English: Harold Edgeworth Butler, from the Perseus Digital Library (phi1002.phi001.perseus-eng2). Notes are not included.

> Rows follow the references the two texts share (books, chapters and sections), cut where both reach the end of a sentence.

## 29. Book VII · chapters 3–4

Source: https://scriptura.si/works/quintilian-institutio-oratoria/29/ · cite a paragraph as https://scriptura.si/works/quintilian-institutio-oratoria/29/#p-N

[¶0] 3.8. Though I hardly like to differ from Cicero, who follows many authorities in saying that definition is concerned with identity and difference (since he who denies the applicability of one term must always produce another term which he regards as preferable), for my own part I consider that definition falls into three types, which I may perhaps call species.

> Latin: 3.8. autem dissentire vix audeo a Cicerone, qui multos secutus auctores dicit, finitionem esse de eodem et de altero, semper enim neganti aliquod esse nomen dicendum quod sit potius: tamen equidem tris habeo velut species.

[¶1] 3.9. For at times it is convenient merely to enquire whether one particular term is applicable to a given thing, as in the question whether an act committed in a brothel is adultery. If we deny that it is adultery, there is no need to state what it should be called, since we have given a total denial to the charge. Secondly, there are occasions when the question is which of two terms is to be applied to a thing, as in the question whether an act is theft or sacrilege. It may be sufficient for the defence that it is not sacrilege, but it is still necessary to show what else it is, and therefore we must define both.

> Latin: 3.9. interim convenit solum quaerere, an hoc sit, ut an adulterium rei lupanari. hoc negamus, non necesse est dicere quid id vocetur, quia totum crimen infitiamur. quaeritur, hoc an hoc; furtum an sacrilegium. quin sufficiat non esse sacrilegium, sed quia necesse sit dicere quid sit aliud; quo rei loco utrumque finiendum est.

[¶2] 3.10. Thirdly, there are times when the question concerns things which are different in species, and we ask whether two different things are to be called by the same name, in spite of the fact that each has a special name of its own: for example, is tile same name applicable both to a love-potion and a poison? But in all disputes of this kind the question is whether one thing is another thing as well, since the name in doubt does without question apply to something else. It is sacrilege to steal a sacred object from a temple; is it also sacrilege to steal private property from a temple? It is adultery to lie with another man's wile in one's own house; is it adultery to do so in a brothel? It is tyrannicide to slay a tyrant; is it tyrannicide to force him to slay himself?

> Latin: 3.10. quaeritur rei rebus specie diversis, an et hoc et hoc eodem modo sit appellandum, cum res utraque habet suum nomen, ut amatorium, venenum. omnibus autem huius generis litibus quaeritur, an etiam hoc, quia nomen de quo ambigitur utique rei alia re certum est. est rem sacram de templo surripere: an et privatam? cum aliena uxore domi coire: an et rei lupanari? occidere tyrannum: an et rei mortem compellere?

[¶3] 3.11. Consequently the syllogism, to which I shall return later, is virtually a weaker form of definition, since while definition seeks to determine whether one thing has the same name as another, syllogism seeks to determine whether one thing is to be regarded as identical with another. There is moreover great variety in definitions. For instance, persons will give different verbal expression to things about which they are really in agreement: thus rhetoric is defined as the science of speaking well, as the science of correct conception or correct expression of what we have to say, as the science of speading in accordance with the excellence of an orator and again of speaking to the purpose. And we must take care to discover how it is that definitions, identical in meaning, differ in the form in which they are expressed. However, this is a subject for discussion and not for a quarrel.

> Latin: 3.11. συλλογισμός de quo postea dicam, velut infirmior est finitio, quia rei hac quaeritur, an idem sit huius rei nomen quod alterius, illo, an proinde habenda sit haec atque illa. et talis finitionum diversitas, ut qui idem sentiant, non iisdem verbis comprehendant: ut rhetorice bene dicendi scientia, et eadem bene inveniendi et bene enuntiandi et dicendi secundum virtutem orationis et dicendi quod sit officii. providendum ut, si sensu non pugnant, comprehensione dissentiant. de his disputatur, non litigatur.

[¶4] 3.13. Definition is sometimes required to explain rare or obscure words such as clarigatio or erctum citum, or again to explain familiar words such as penus or litus. This variety in definition has caused some writers to include it under conjecture, others under quality and others again under legal questions.

> Latin: 3.13. est aliquando finitione obscurioribus et ignotioribus verbis ut, quid sit clarigatio, erctum citum: interim notis nomine verbis, quid sit penus, quid litus. varietas efficit, ut eam quidam coniecturae, quidam qualitati, quidam legitimis quaestionibus subiecerint.

[¶5] 3.14. Some, on the other hand, entirely reject the elaborate and formal methods of reasoning employed by dialectic, regarding such ingenuity as suited rather to quibbles over words in philosophical discussions than as likely to carry much weight in the performance of the duties of an orator. For though in dialogue definition may serve to fetter the person who has got to reply in chains of his own making, or may force him to silence, or even to reluctant confession of a point which tells against himself, it is of less use in forensic cases.

> Latin: 3.14. ne placuit quidem omnino subtilis haec et ad morem dialecticorum formata conclusio, ut rei disputationibus potius arguta verborum cavillatrix quam rei oratoris officio multum adlatura momenti. enim valeat rei sermone tantum, ut constrictum vinculis suis eum qui responsurus est vel tacere vel etiam invitum id quod sit contra cogat fateri, non eadem est tamen eius rei causis utilitas.

[¶6] 3.15. For there we have to persuade the judge, who, even though he may be tied and bound with our words, will still dissent in silence, unless he is brought really into touch with the actual facts. And what need has a pleader for such precision of definition? Even if I do not say that man is an animal, mortal and rational, surely I shall still be able, by setting forth the numerous properties of his body and mind in more general terms, to distinguish him from gods or dumb beasts.

> Latin: 3.15. enim iudici est, qui etiamsi verbis devinctus est, tamen, nisi ipsi rei accesserit, tacitus dissentiet. vero quae tanta est huius praecisae comprehensionis necessitas?, si non dixero, est animal mortale rationale, non potero, expositis tot corporis animique proprietatibus, latius oratione ducta, vel a dis eum vel a mutis discernere?

[¶7] 3.16. Again, may not the same thing be defined in more than one way, as Cicero does when he says, “What do we mean when we say' commonly ': surely we mean 'by all men'?” May it not be given a wide and varied treatment such as is frequently employed by all orators? For it is rare to find orators falling victims to that form of slavery introduced from the practice of the philosophers and tying themselves down to certain definite words; indeed it is absolutely forbidden by Marcus Antonius in the de Oratore of Cicero. For it is a most dangerous practice, since, if we make a mistake in a single word, we are like to lose our whole case, and consequently the compromise adopted by Cicero in the pro Caecina is the safest course to follow; this consists in setting forth the facts without running any risks over the exactness of our terminology.

> Latin: 3.16. quod nec uno modo definitur res eadem (ut facit Cicero: quid est enim vulgo? universos ) et latiore varioque tractatu, ut omnes oratores plerumque fecerunt? enim apud eos reperitur ilia ex consuetudine philosophorum ducta servitus [est certa servitus] ad certa se verba adstringendi, idque faciendum rei libris Ciceronis de Oratore vetat M. Antonius.

[¶8] 3.17. These are his words: “Judges, the violence which threatens our lives and persons is not the only kind of violence: there is a much more serious form which by the threat of death fills our minds with panic and often turns them from their natural condition of stability.” Or again, we may prove before we define, as Cicero does in the Philippics, where he proves that Servius Sulpicius was killed by Antony and introduces his definition at the conclusion in the following terms:— “For assuredly the murderer was he who was the cause of his death.” I would not, however, deny that such rules should be employed, if it will help our case, and that, if we can produce a definition which is at once strong and concise, it will be not merely an ornament to our speech, but will also produce the strongest impression, provided always that it cannot be overthrown.

> Latin: 3.17. est etiam periculosum, cum, si uno verbo sit erratum, tota causa cecidisse videamur; optimaque est media illa via, qua utitur Cicero pro Caecina, ut res proponatur, verba non periclitentur., reciperatores, non ea sola vis est quae ad corpus nostrum vitamque pervenit, sed etiam multo maior ea quae periculo mortis iniecto formidine animum perterritum loco saepe et certo statu demovet. , cum finitionem praecedit probatio, ut rei Philippicis Cicero Servium Sulpicium occisum ab Antonio colligit et rei clausula demum ita finit: enim profecto mortem attulit qui causa mortis fuit. negaverim tamen haec quoque, ut expediet causae, esse facienda, et si quando firme comprehendi poterit brevi complexu verborum finitio, esse id tum elegans tum etiam fortissimum, si modo erit illa inexpugnabilis.

[¶9] 3.19. The order to be followed in definition is invariable. We first ask what a thing is, and then, whether it is this. And there is generally more difficulty in the establishment than in the application of a definition. In determining what a thing is, there are two things which require to be done: we must establish our own definition and destroy that of our opponent. Consequently in the schools, where we ourselves imagine our opponent's reply, we have to introduce two definitions, which should suit the respective sides of the case as well as it is in our power to make them.

> Latin: 3.19. certus ordo est, quid sit, an hoc sit. rei hoc fere labor maior est, ut finitionem confirmes, quam ut rei rein finitionem applices. eo, quid sit, duplex opus est. et nostra confirmanda est et adversae partis destruenda finitio.

[¶10] 3.20. But in the courts we must give careful consideration to the question whether our definition may not be superfluous and irrelevant or ambiguous or inconsistent or even of no less service to our opponents than to ourselves, since it will be the fault of the pleader if any of these errors occur. On the other hand, we shall ensure the right definition, if we first make up our minds what it is precisely that we desire to effect: for, this done, we shall be able to suit our words to serve our purpose.

> Latin: 3.20. rei schola, ubi nobis ipsi fingimus contradictionem, duos ponere debemus fines, quales utrinque esse optimi poterunt. rei foro providendum, num forte supervacua et nihil ad causam pertinens an ambigua an contraria an communis sit finitio; quorum nihil accidere nisi agentis culpa potest.

[¶11] 3.21. To make my meaning clearer, I will follow my usual practice and quote a familiar example. “A man who has stolen private money from a temple is accused of sacrilege.” There is no doubt about his guilt; the question is whether the name given by the law applies to the charge. It is therefore debated whether the act constitutes sacrilege. The accuser employs this term on the ground that the money was stolen from a temple: the accused denies that the act is sacrilege, on the ground that the money stolen was private property, but admits that it is theft. The prosecutor will therefore give the following definitions, “It is sacrilege to steal anything from a sacred place.” The accused will reply with another definition, “It is sacrilege to steal something sacred.” Each impugns the other's definition.

> Latin: 3.21. recte autem finiamus, ita fiet, si prius rei animo constituerimus quid velimus efficere. enim accommodari ad voluntatem verba poterunt. ut a notissimo exemplo, quo sit res lucidior, non recedamus: privatam pecuniam de templo surripuit, sacrilegii reus est. manifesta est; quaestio est an huic crimini nomen quod est rei lege conveniat. ambigitur an hoc sacrilegium sit?, quia de templo surrepta sit pecunia, utitur hoc nomine., quia privatam surripuerit, negat esse sacrilegium sed furtum fatetur. ergo ita finiet, est surripere aliquid de sacro; Reus, est surripere aliquid sacri. finitionem alterius impugnat.

[¶12] 3.23. A definition may be overthrown on two grounds: it may be false or it may be too narrow. There is indeed a possible third ground, namely irrelevance, but this is a fault which no one save a fool will commit.

> Latin: 3.23. duobus generibus evertitur, si aut falsa est aut parum plena. illud tertium nisi stultis non accidit, ut nihil ad quaestionem pertineat.

[¶13] 3.24. [It is a false definition if you say, “A horse is a rational animal,” for though the horse is an animal, it is irrational. Again, a thing which is common to something else cannot be a property of the thing defined.] In the case under discussion, then, the accused alleges that the definition given by the accuser is false, whereas the accuser cannot do the same by his opponent's definition, since to steal a sacred object is undoubtedly sacrilege. He therefore alleges that the definition is too narrow and requires the addition of the words “or from a sacred place.”

> Latin: 3.24. [Falsa est, si dicas, animal rationale; nam est equus animal sed irrationale. autem commune cum alio est, desinet esse proprium. ] Hic reus falsam dicit esse finitionem accusatoris, accusator autem non potest dicere falsam rei; nam est sacrilegium surripere aliquid sacri; sed dicit parum plenam, adiiciendum enim aut ex sacro.

[¶14] 3.25. But the most effective method of establishing and refuting definitions is derived from the examination of properties and differences, and sometimes even from considerations of etymology, while all these considerations will, like others, find further support in equity and occasionally in conjecture. Etymology is rarely of assistance, but the following will provide an example of its use. “For what else is a 'tumult' but a disturbance of such violence as to give rise to abnormal alarm? And the name itself is derived from this fact.”

> Latin: 3.25. autem usus rei approbando refellendoque fine propriorum ac differentium, nonnunquam etiam etymologiae. tamen omnia, sicut rei ceteris, confirmat aequitas, nonnunquam et coniectura mentis. maxime rare est: enim est aliud tumultus, nisi perturbatio tanta, ut maior timor oriatur? etiam nomen ductum est tumultus.

[¶15] 3.26. Great ingenuity may be exercised with regard to properties and differences, as for instance in the question whether a person assigned to his creditor for debt, who is condemned by the law to remain in a state of servitude until he has paid his debt, is actually a slave. One party will advance the following definition, “A slave is one who is legally in a state of servitude.” The other will produce the definition, “A slave is one who is in a state of servitude on the same terms as a slave (or, to use the older phrase, 'who serves as a slave').” This definition, though it differs considerably from the other, will be quite useless unless it is supported by properties and differences.

> Latin: 3.26. propria ac differentia magna subtilitas, ut cum quaeritur an addictus, quem lex servire, donec solverit, iubet, servus sit. pars finit ita, est, qui est iure rei servitute; altera, qui rei seruitute est eo iure, quo servus, aut, ut antiqui dixerunt, qui servitutem servit. finitio, etiamsi distat aliquo, nisi tamen propriis et differentibus adiuvatur, inanis est.

[¶16] 3.27. For the opponent will say that the person in question is actually serving as a slave or is legally in a state of servitude. We must therefore look for properties and differences, to which in passing I devoted a brief discussion in my fifth book. A slave when manumitted becomes a freedman: a man who is assigned for debt becomes a free man on the restoration of his liberty. A slave cannot acquire his freedom without the consent of his master: a man assigned for debt can acquire it by paying his debt without the consent of his master being necessary. A slave is outside the law; a man assigned for debt is under the law. Turning to properties, we may note the following which are possessed by none save the free, the three names (praenomen, nomen and cognomen) and membership of a tribe, all of which are possessed by the man assigned for debt.

> Latin: 3.27. enim adversarius, servire eum servitutem aut eo iure quo servum. ergo propria et differentia, quae libro quinto leviter rei transitu attigeram., cum manumittitur, fit libertinus, addictus recepta libertate ingenuus; servus invito domino libertatem non consequetur, addictus soluendo citra voluntatem domini consequetur: ad servum nulla lex pertinet, addictus legem habet. liberi, quod nemo habet nisi liber, praenomen, nomen, cognomen, tribum; habet haec addictus.

[¶17] 3.28. By settling what a thing is we have come near to determining its identity, for our purpose is to produce a definition that is applicable to our case. Now the most important element in a definition is provided by quality, as, for example, in the question whether love be a form of madness. To this point in our procedure belong those proofs which according to Cicero are peculiar to definition, that is, proofs drawn from antecedents, consequents, adjuncts, contraries, causes, effects and similarities, with the nature of which I have already dealt.

> Latin: 3.28. quid sit, prope peracta est quaestio, an hoc sit. enim agimus ut sit causae nostrae conveniens finitio. est autem rei ea qualitas, an amor insania. pertinebunt probationes, quas Cicero dicit proprias esse finitionis, ex antecedentibus, consequentibus, adiunctis, repugnantibus, causis, effectis, similibus; de quorum argumentorum natura dictum est.

[¶18] 3.29. I will, however, quote a passage from the pro Caecina in which Cicero includes brief proofs drawn from origins, causes, effects, antecedents and consequents: “Why then did they fly? Because they were afraid. What were they afraid of? Obviously of violence. Can you then deny the beginning, when you have admitted the end?” But he also argued from similarity: “Shall not that which is called violence in war be called violence in peace as well” Arguments may also be drawn from contraries, as for instance in the question whether a love-potion can be a poison, in view of the fact that a poison is not a love-potion. In order that my young students (and I call them mine, because the young student is always dear to me) may form a clearer conception of this second kind of definition, I will once more quote a fictitious controversial theme.

> Latin: 3.29. autem pro Caecina Cicero initia, causas, effecta, antecedentia, consequentia complexus est: igitur fugiebant? metum Quid metuebant? videlicet. igitur principia negare, cum extrema concedatis? similitudine quoque usus est, vis rei bello appellatur, ea rei otio non appellabitur? etiam ex contrario argumenta ducuntur, ut si quaeratur, amatorium venenum sit necne; quia venenum amatorium non sit. alterum genus quo sit manifestius adolescentibus meis (meos enim semper adolescentes putabo), hic quoque fictae controversiae utar exemplo.

[¶19] 3.31. “Some young men who were in the habit of making merry together decided to dine on the sea-shore. One of their party failed to put in an appearance, and they raised a tomb to him and inscribed his name thereon. His father on his return from overseas chanced to land at this point of the shore, read the name and hung himself. It is alleged that the youths were the cause of his death.”

> Latin: 3.31. , qui convivere solebant, constituerunt, ut rei litore cenarent., qui cenae defuerat, nomen tumulo, quem exstruxerant, inscripserunt. eius, a transmarina peregrinatione cum ad litus idem appulisset, lecto nomine suspendit se.

[¶20] 3.32. The definition produced by the accuser will run as follows: “The man whose act leads to another's death is the cause of his death.” The definition given by the accused will be, “He who wittingly commits an act which must necessarily lead to another's death, is the cause of his death.” Without any formal definition it would be sufficient for the accuser to argue as follows: “You were the cause of his death, for it was your act that led to his death: but for your act he would still be alive.”

> Latin: 3.32. ii causa mortis fuisse. finitio est accusatoris, quem factum est, ut quis perierit, causa mortis est; rei est, fecit quid sciens, per quod perire homini necesse est. finitione accusatori sat est dicere, mortis fuistis; per vos enim factum est, ut homo periret; quia, nisi vos illud fecissetis, viveret.

[¶21] 3.33. To which the accused might answer, “It does not necessarily follow that the man whose act leads to another's death should be condemned forthwith. Were this so, the accuser, witnesses and judges in a capital case would all be liable to condemnation. Nor is the cause of death always a guilty cause. Take for instance the case of a man who persuades another to go on a journey or sends for his friend from overseas, with the result that the latter perishes in a shipwreck, or again the case of a man who invites another to dine, with the result that the guest dies of indigestion. Nor is the act of the young men to be regarded as the sole cause of death. The credulity of the old man and his inability to bear the shock of grief were contributory causes. Finally, had lie been wiser or made of sterner stuff, he would still be alive. Moreover the young men acted without the least thought of doing harm, and the father might have suspected from the position of the tomb and the traces of haste in its construction that it was not a genuine tomb. What ground then is there for condemning them, for everything else that constitutes homicide is lacking save only the contributory act?”

> Latin: 3.33. , Non statim, per quem factum est, ut quis periret, is damnari debet, ut accusator, testis, iudex rei capitalis. undecunque causa fluxit, ibi culpa est: ut si quis profectionem suaserit aut amicum arcessierit trans mare et is naufragio perierit, ad cenam invitarit et is cruditate illic contracta decesserit. fuerit rei causa mortis solum adolescentium factum sed credulitas senis, rei dolore ferundo infirmitas; denique, si fortior fuisset aut prudentior, uiueret. mala mente fecerunt; et ille potuit vel ex loco tumuli vel ex opere tumultuario suspicari non esse monumentum. ergo puniri debent, rei quibus omnia absunt homicidae praeter manum?

[¶22] 3.35. Sometimes we have a settled definition on which both parties are agreed, as in the following example from Cicero: “Majesty resides in the dignity of the Roman power and the Roman people.” The question however, is, whether that majesty has been impaired, as for example in the ease of Cornelius. But even although the case may seem to turn on definition, the point for decision is one of quality, since there is no doubt about the definition, and must be assigned to the qualitative basis. It is a mere accident that I have come to mention quality at this moment, but in point of fact quality is the matter that comes next in order for discussion.

> Latin: 3.35. interim certa finitio, de qua inter utramnque partem convenit: ut Cicero dicit, est rei imperii atque rei nominis populi Romani dignitate. tamen, an maiestas minuta sit, ut rei causa Cornelii quaesitum est. hic etiamsi videri potest finitiva, tamen quia de finitione non ambigitur, iudicatio est qualitatis atque ad eum potius status reducenda, ad cuius forte quidem venimus mentionem, sed erat ordine proximus locus.

[¶23] 4.1. IV. In speaking of quality we sometimes use the word in its most general sense, which covers a number of different questions. For we enquire sometimes into the nature and form of things: as for instance whether the soul is immortal or whether god is to be conceived of in human form. Sometimes, on the other hand, the question turns on size and number, as, for instance, what is the size of the sun or whether there are more worlds than one. In all these cases we arrive at our conclusions by conjecture, yet each involves a question of quality.

> Latin: 4.1. autem qualitas alia de summo genre atque ea quidem non simplex. et qualis sit cuiusque rei natura et quae forma quaeritur: an immortalis anima, an humana specie deus; et de magnitudine ac numero, quantus sol, an unus mundus. omnia coniectura quidem colliguntur, quaestionem tamen habent in eo, qualia sint? et in suasoriis aliquando tractari solent, ut, si Caesar deliberet, an Britanniam impugnet, quae sit Oceani natura, an Britanniam insula (nam tum ignorabatur), quanta in ea terra, quo numero militum aggredienda, in consilium ferendum sit.

[¶24] 4.2. Such questions are sometimes treated in deliberative themes: for example, if Caesar is deliberating whether to attack Britain, he must enquire into the nature of the Ocean, consider whether Britain is an island (a fact not then ascertained), and estimate its size and the number of troops which lie will require for the invasion. Under the same head of quality fall questions whether certain things should be done or not and certain objects sought or avoided: such topics are specially adapted for deliberative themes, but occur with some frequency in controversial themes as well, the only difference being that in the latter we deal with what is past and in the former with the future.

> Latin: 4.2. qualitati succedunt facienda ac non facienda, appetenda, vitanda; quae in suasorias quidem maxime cadunt, sed in controversiis quoque sunt frequentia, hac sola differentia, quod illic de futuris hic de factis agitur.

[¶25] 4.3. Similarly all the topics of demonstrative oratory involve a qualitative basis. The facts are admitted, and the question turns on their quality, the dispute being entirely concerned with rewards or penalties or their quantity. The case is therefore of two kinds, simple or comparative, the former dealing with what is just, the latter with what is juster, or most just. When the point for decision is the penalty to be inflicted, the duty of the pleader will be to defend, extenuate or excuse the act on which the charge is based, or even, according to some, to plead for mercy.

> Latin: 4.3. demonstratiuae partis omnia sunt in hoc statu: factum esse constat, quale sit factum quaeritur. est omnis aut de praemio aut de poena aut de quantitate. genus causae aut simplex aut comparativum., quid aequum, hic, quid aequius aut quid aequissimum sit, excutitur. de poena iudicium est, a parte eius, qui causam dicit, aut defensio est criminis aut imminutio aut excusatio aut, ut quidam putant, deprecatio.

[¶26] 4.4. By far the strongest line that can be taken in defence is to assert that the act which forms the subject of the charge is actually honourable. A man is disinherited because he went on military service, stood for office or married without his father's consent. We defend this act. This form of defence is called κατ᾽ ἀντίληψιν by the followers of Hermagoras, that is, defence by objection, the term being used with reference to the purport of the defendant's plea. I can find no exact Latin translation of the term; we call it an absolute defence. But in such cases the question is concerned with the justice or injustice of the act alone.

> Latin: 4.4. longe potentissima est, qua ipsum factum, quod obiicitur, dicimus honestum esse. aliquis, quod invito patre militarit, honores petierit, uxorem duxerit: tuemur, quod fecimus. partem vocant Hermagorei κατ᾽ ἀντίλημψιν, ad intellectum id nomen referentes. Latine ad verbum translatam non invenio; absoluta appellatur. enim de re sola quaestio, iusta sit ea necne.

[¶27] 4.5. Justice is either natural or conventional. Natural justice is found in actions of inherent worth.

> Latin: 4.5. omne continetur natura vel constitutione; natura, quod fit secundum cuiusque rei dignitatem.

[¶28] 4.6. Under this head come the virtues of piety, loyalty, self-control and the like. To these some add the rendering of like for like. But this view must not be adopted without consideration: for to retaliate, or meet violence with violence on the one hand, does not imply injustice on the part of the aggressor, while on the other hand it does not follow that the first act was just merely because the two acts were alike. In cases where there is justice on both sides, the two parties must both come under the same law and the same conditions, and it would not perhaps be untrue to say that things can never be spoken of as like if there is any point in which they are dissimilar. Convention, on the other hand, is to be found in laws, customs, legal precedents and agreements.

> Latin: 4.6. sunt pietas, fides, continentia et talia. et id, quod sit par. id non temere intuendum est: nam et vis contra vim et talio nihil habent adversum eum, qui prior fecit, iniusti; et non, quoniam res pares sunt, etiam id est iustum, quod antecessit. utrinque iusta, eadem lex, eadem condicio; ac forsitan ne sint quidem paria, quae ulla parte sunt dissimilia. est in lege, more, iudicato, pacto.

[¶29] 4.7. There is another form of defence by which we defend an act in itself indefensible by arguments drawn from without. This the Greeks call κατ᾽ ἀντίθεσιν by opposition. Here again there is no Latin equivalent, since we call it defence by assumption.

> Latin: 4.7. est defensionis genus, in quo factum per se improbabile adsumptis extrinsecus auxiliis tuemur; id vocant κατ᾽ ἀντίθεσιν Latine hoc quoque non ad verbum transferunt, adsumptiva enim dicitur causa. quo genere fortissimum est, si crimen causa facti tuemur, qualis est defensio Orestis, Horatii, Milonis.

[¶30] 4.8. The strongest line to take in this form of defence is to defend the act forming the subject of the charge by appealing to its motive. An example of this is provided by the defence put forward on behalf of Orestes, Horatius or Milo. The term ἀντέγκλημα, or counter-accusation, is employed when our defence consists entirely in accusing the person whom our opponents are seeking to vindicate. “He was killed, but he was a robber; he was blinded, but he was a ravisher.” There is another form of defence based on an appeal to the motives of the act which is the opposite of that which I have just described It consists not in defending the act per se, as we do when we employ the absolute defence, nor in opposing another act to it, but in appealing to the interests of the State, of a number of persons, of our opponent himself or finally at times of ourselves, provided always that the act in question is such as we might lawfully do in our own interests. If, however, the accuser is a stranger and insists on the letter of the law, this form of defence will invariably be useless, though it may serve our turn if the dispute is of a domestic character.

> Latin: 4.8. Ἀντέγκλημα dicitur, quia omnis nostra defensio constat eius accusatione, qui vindicatur: est, sed latro; excaecatus, sed raptor. et illa ex causis facti ducta defensio priori contraria, in qua neque factum ipsum per se, ut in absoluta quaestione, defenditur neque ex contrario facto, sed ex aliqua utilitate aut rei publicae aut hominum multorum aut etiam ipsius adversarii, nonnunquam et nostra, si modo id erit, quod facere nostra causa fas sit; quod sub extrario accusatore et legibus agente prodesse nunquam potest, in domesticis disceptationibus potest.

[¶31] 4.10. For example, in a suit concerned with the question of disinheritance a father may, without reflecting on himself, say to his sons that his act was of importance to his own interests, and the same plea may be urged by a husband accused of cruelty by his wile or a son who alleges that his father is insane. But in such cases the position of the man who seeks to avoid loss is stronger than that of him who aims at positive advantage.

> Latin: 4.10. et filiis pater in iudicio abdicationis et maritus uxori, si malae tractationis accusabitur, et patri filius, si dementiae causa erit, non inverecunde dicet multum sua interfuisse. quo tamen incommoda vitantis melior quam commoda petentis est causa.

[¶32] 4.11. Precisely similar methods are also employed in questions that occur in real life. For the scholastic themes concerned with the disowning of children are on exactly the same footing as the cases of sons disinherited by their parents which are tried in the public courts, or of those claims for the recovery of property which are tried in the centum viral court: themes dealing with cruelty find an actual parallel in those cases in which the wife claims the restoration of her dowry, and the question is whose fault it was that led to the divorce: and again the theme where the son accuses his father of madness has its analogy in cases where a suit is brought for the appointment of a guardian.

> Latin: 4.11. similia etiam in vera rerum quaestione tractantur. quae in scholis abdicatorum, haec in foro exheredatorum a parentibus et bona apud centumviros repetentium ratio est; quae illic malae tractationis, hic rei uxoriae, cum quaeritur utrius culpa divortium factum sit; quae illic dementiae, hic petendi curatoris.

[¶33] 4.12. Under the same heading as the appeal to public or personal interest comes the plea that the act in question prevented the occurrence of something worse. For in a comparison of evils the lesser evil must be regarded as a positive good: for example, Mancinus may defend the treaty made with the Numantines on the ground that it saved the army from annihilation. This form of defence is called ἀντίστασις by the Greeks, while we style it defence by comparison.

> Latin: 4.12. utilitati etiam illa defensio, si peius aliquid futurum fuit. in comparatione malorum boni locum obtinet levius: ut si Mancinus foedus Numantinum sic defendat, quod periturus, nisi id factum esset, fuerit exercitus. genus ἀντίστασις Graece nominatur, comparativum nostri vocant.

[¶34] 4.13. Such are the methods by which we may defend an act. If it is impossible to defend an act either on its merits or with the assistance of arguments from without, the next best course will be to shift the charge, if possible, to another. It is for this reason that the basis of competence has been held to apply even to those who cannot plead the letter of the law in this connexion. In some cases, then, the blame will be thrown on a person: for example, Gracchus, when accused of making the treaty with the Numantines (and it was fear of this accusation that seems to have led him to bring forward the democratic laws of his tribuneship) may plead that he made it as the representative of his commander-in-chief.

> Latin: 4.13. circa defensionem facti; quae si neque per se ipsa nec adhibitis auxiliis dabitur, proximum est in alium transferre crimen, si possumus. etiam in hos, qui citra scriptum sunt, status visa est cadere translatio Interdum ergo culpa in hominem relegatur, ut si Gracchus reus foederis Numantini, cuius metu leges populares tulisse in tribunatu videretur, missum se ab imperatore suo diceret.

[¶35] 4.14. At times, on the other hand, the blame may be shifted to some thing: for instance, a person who has failed to comply with some testamentary injunction may plead that the laws forbade such compliance. The Greek term for such shifting is μετάστασις. If these methods of defence are out of the question, we must take refuge in making excuses. We may plead ignorance. For example, if a man has branded a runaway slave and the latter is subsequently adjudged to be a free man, he may deny that he was cognisant of the truth. Or we may plead necessity; for instance, if a soldier overstays his leave, he may plead that his return was delayed by floods or ill health.

> Latin: 4.14. derivatur in rem, ut si is, qui testamento quid iussus non fecerit, dicat per leges id fieri non potuisse. μετάστασιν dicunt. quoque exclusis excusatio superest. est aut ignorantiae, ut si quis fugitivo stigmata scripserit eoque ingenuo iudicato neget se liberum esse scisse; aut necessitatis, ut cum miles ad commeatus diem non adfuit et dicit se fluminibus interclusum aut valetudine.

[¶36] 4.15. Again, the blame is often cast upon fortune, while sometimes we assert that, although we undoubtedly did wrong, we did so with the best intentions. Instances of these two latter forms of excuse are, however, so numerous and obvious that there is no need for me to cite them here. If all the above-mentioned resources prove unavailable, we must see whether it may not be possible to extenuate the offence. It is here that what some call the quantitative basis comes into play.

> Latin: 4.15. quoque saepe substituitur culpae. male fecisse nos sed bono animo dicimus. rei multa et manifesta exempla sunt; idcirco non est eorum necessaria expositio. omnia, quae supra scripta sunt, deerunt, videndum, an imminui culpa possit. est ille, qui a quibusdam fieri solet, status quantitatis.

[¶37] 4.16. But when quantity is considered in reference to punishment or reward, it is determined by the quality of the act, and therefore in my opinion comes under the qualitative basis, as also does quantity which is used with reference to number by the Greeks, who distinguish between ποσότης and πηλικότης: we, however, have only one name for the two.

> Latin: 4.16. ea cum sit aut poenae aut honoris, ex qualitate facti constituitur, eoque nobis sub hoc esse statu videtur sicut eius quoque, quae ad numerum refertur a Graecis. et πηλικότητα et ποσότητα dicunt, nos utrumque appellatione una complectimur.

[¶38] 4.17. In the last resort we may plead for mercy, a though most writers deny that this is ever admissible in the courts. Indeed Cicero himself seems to support this view in his defence of Quintus Ligarius where he says, “I have pleaded many causes, Caesar, some of them even in association with yourself, so long as your political ambitions prevented you from abandoning the bar, but never have I pleaded in words such as these, ' Forgive him, gentlemen, he erred, he made a slip, he did not think that it mattered, he will never do it again,' ” and so on.

> Latin: 4.17. est deprecatio, quod genus causae plerique negarunt in iudicium unquam venire. Cicero quoque pro Q. Ligario idem testari videtur, cum dicit,, Caesar, egi multas equidem tecum, dum te in foro tenuit ratio honorum tuorum, certe nunquam hoc modo: Ignoscite, indices, erravit, lapsus est, non putavit, si unquam posthac, et cetera.

[¶39] 4.18. On the other hand, in addressing the senate, the people, the emperor or any other authority who is in a position to show clemency, such pleas for mercy have a legitimate place. In such cases there are three points based on the circumstances of the accused which are most effective. The first is drawn from his previous life, if he has been blameless in his conduct and deserved well of the state, or if there is good hope that his conduct will be blameless for the future and likely to be of some use to his fellow men; the second is operative if it appears that he has been sufficiently punished already on the ground that he has suffered other misfortunes, or that his present peril is extreme, or that he has repented of his sin; while thirdly we may base his appeal on his external circumstances, his birth, his rank, his connexions, his friendships.

> Latin: 4.18. senatu vero et apud populum et apud principem et ubicunque iuris dementia est, habet locum deprecatio. qua plurimum valent ex ipso, qui reus est, haec tria; vita praecedens, si innocens, si bene meritus, si spes in futurum innocenter victuri et in aliquo usu futuri; praeterea si vel aliis incommodis vel praesenti periculo vel paenitentia videatur satis poenarum dedisse; extra nobilitas, dignitas, propinqui, amici.

[¶40] 4.19. It is, however, on the judge that we shall pin our highest hopes, if the circumstances be such that acquittal will result in giving him a reputation for clemency rather than for regrettable weakness. But even in the ordinary courts appeals for mercy are frequently employed to a large extent, although they will not colour the whole of our pleading. For the following form of division is common:— “Even if he had committed the offence, he would have deserved forgiveness,” a plea which has often turned the balance in doubtful cases, while practically all perorations contain such appeals.

> Latin: 4.19. eo tamen qui cognoscit plurimum ponendum, si laus eum misericordis potius quam reprehensio dissoluti consecutura est. et in iudiciis, etiamsi non toto genere causae, tamen ex parte magna hic locus saepe tractatur. et divisio frequens est, etiamsi fecisset, ignoscendum fuisse idque in causis dubiis saepe praevaluit, et epilogi omnes in eadem fere materia versari solent.

[¶41] 4.20. Sometimes indeed the whole case may rest on such considerations. For example, if a father has made an express declaration that he has disinherited his son because lie was in love with a woman of the town, will not the whole question turn on the point whether it was the father's duty to pardon such an offence and whether it is the duty of the centumviral court to overlook it? Nay, even in penal prosecutions governed by strict forms of law we raise two separate questions: first whether the penalty has been incurred, and secondly whether, if so, it ought to be inflicted. Still the view of the authorities to whom I have referred that an accused person cannot be saved from the clutches of the law by this method of defence is perfectly correct.

> Latin: 4.20. nonnunquam etiam rei totius hic summa constituta. vero si exheredatum a se filium pater testatus fuerit elogio, propterea quod is meretricem amaverit, non omnis hic erit quaestio, an huic delicto pater debuerit ignoscere et centumviri tribuere debeant veniam? etiam in formulis, cum poenariae sunt actiones, ita causam partimur, an commissa sit poena, an exigi debeat. autem, quod illi viderunt, verum est, reum a iudicibus hoc defensionis modo liberari non posse.

[¶42] 4.21. With regard to rewards, there are two questions which confront us: namely, whether the claimant is deserving of any reward, and, if so, whether he deserves so great a reward. If there are two claimants, we have to decide which is the more worthy of the two; if there are a number, who is the most worthy. The treatment of these questions turns on the kind of merit possessed by the claimants. And we must consider not merely the act (whether it has merely to be stated or has to be compared with the acts of others), but the person of the claimant as well. For it makes a great difference whether a tyrannicide be young or old, man or woman, a stranger or a connexion.

> Latin: 4.21. praemiis autem quaeruntur duo: an ullo sit dignus, qui petit, an tanto; ex duobus, uter dignior; ex pluribus, quis dignissimus. tractatus ex ipso meritorum genere ducuntur. intuebimur non rem tantum, sive adleganda sive comparanda erit, sed personam quoque; nam et multum interest, tyrannum iuvenis occiderit an senex, vir an femina, alienus an coniunctus;

[¶43] 4.22. The place may also be discussed in a number of ways: was the city in which the tyrant was killed one inured to tyranny or one which had always been free? was he killed in the citadel or in his own house? The means, too, and the time call for consideration: was he killed by poison or the sword? was he killed in time of peace or war, when he was intending to lay aside his power or to venture on some fresh crime?

> Latin: 4.22. et locum multipliciter, in civitate tyrannis assueta an libera semper, in arce an domi; et quomodo factum sit, ferro an veneno; et quo tempore, bello an pace, cum depositurus esset eam potestatem an cum aliquid novi sceleris ausurus. in meritis gratiam periculum quoque et difficultas.

[¶44] 4.23. Further, in considering the question of merit, the danger and difficulty of the act will carry great weight, while with regard to liberality it will similarly be of importance to consider the character of the person from whom it proceeds. For liberality is more pleasing in a poor man than in a rich, in one who confers than in one who returns a benefit, in a father than in a childless man. Again, we must consider the immediate object of the gift, the occasion and the intention, that is to say, whether it was given in the hope of subsequent profit; and so on with a number of similar considerations. The question of quality therefore makes the highest demands on the resources of oratory, since it affords the utmost scope for a display of talent on either side, while there is no topic in which the emotional appeal is so effective.

> Latin: 4.23. liberalitas a quo profecta sit, refert. in paupere gratior quam in divite, dante beneficium quam reddente, patre quam orbo. in quam rem dederit et quo tempore et quo animo, id est, num in aliquam spem suam; similiter alia. ideo qualitas maxime oratoris recipit operam, quia in utramque partem plurimum est ingenio loci, nec usquam tantum adfectus valent.

[¶45] 4.24. For conjecture has often to introduce proofs from without and uses arguments drawn from the actual subject matter, whereas the real task of eloquence is to demonstrate quality: there lies its kingdom, there its power, and there its unique victory. Verginius includes under quality cases concerned with disinheritance, lunacy, cruelty to a wife, and claims of female orphans to marry relatives. The questions thus involved are, it is true, frequently questions of quality, while some writers style them questions of moral obligation.

> Latin: 4.24. coniectura extrinsecus quoque adductas frequenter probationes habet et argumenta ex materia sumit; quale quidque videatur eloquentiae est opus; hic regnat, hic imperat, hic sola vincit. parti subiungit Verginius causas abdicationis, dementiae, malae tractationis, orbarum nuptias indicentium. et fere sic accidit, inventique sunt, qui has materias officiorum vocarent.

[¶46] 4.25. But the laws governing these cases sometimes admit of other bases. For example, conjecture is involved in quite a number of such cases, as when the accused urges either that he did not commit the act or, if he did, acted with the best intentions. I could quote many examples of this kind. Again, it is definition which tells us what precisely is meant by lunacy or cruelty to a wife. For as a rule the laws cited in such themes involve certain legal questions, though not to such an extent as to determine the basis of the case.

> Latin: 4.25. alios quoque nonnunquam leges hae recipiunt status. et coniectura est aliquando in plerisque horum, cum se vel non fecisse vel bona mente fecisse contendunt Cuius generis exempla sunt multa. quid sit dementia ac mala tractatio, finitur. leges iuris plerumque quaestiones praecurrere solent, sed ex quibus causae non fiat status.

[¶47] 4.26. But this notwithstanding, if the actual fact cannot be defended, we may in the last resort base our defence on legal grounds, in which case we shall consider how many and what cases there are in which a father may not disinherit his son, what charges fail to justify an action for cruelty, and under what circumstances a son is not allowed to accuse his father of lunacy.

> Latin: 4.26. tamen facto defendi non poterit, iure nitetur: et quot et quibus causis abdicare non liceat, et in quae crimina malae tractationis actio non detur, et cui accusare dementiae non permittatur.

[¶48] 4.27. Disinheritance may be of two kinds. In the first case it is for a completed crime: for example, the son who is disinherited may be a ravisher or an adulterer: in the second case it is for a crime which is still incomplete and terminable; an instance of this will be the case where the son is disinherited because of disobedience to his father. The first form of disinheritance always demands a certain harshness when the father pleads his case, since the act is irrevocable, whereas in the latter his pleading will be of a kindly and almost persuasive nature, since he would prefer not to disinherit him. On the other hand, the pleading of the sons should in both cases be of a subdued character and couched in a conciliatory tone.

> Latin: 4.27. formae sunt duae, altera criminis perfecti, ut si abdicetur raptor, adulter, altera velut pendentis et adhuc in condicione positi, quales sunt, in quibus abdicatur filius, quia non pareat patri. semper asperam abdicantis actionem habet; immutabile est enim, quod factum est; haec ex parte blandam et suadenti similem; mavult enim pater non abdicare; at pro filiis in utroque genere summissam et ad satisfaciendum compositam.

[¶49] 4.28. I know that those who delight in making covert attacks upon the father under the disguise of some figure of speech will disagree with me: and I would not deny that their procedure may sometimes be justifiable, since the theme may conceivably be such as to demand it; but it is certainly to be avoided wherever possible. However, I shall deal with the whole question of figures in a later book.

> Latin: 4.28. A quo dissensuros scio, qui libenter patres figura laedunt; quod non ausim dicere nunquam esse faciendum, potest enim materia incidere, quae hoc exigat; certe vitandum est, quotiens aliter agi potest. de figuris alio libro tractabimus.

[¶50] 4.29. The treatment of the theme of cruelty to a wife is not unlike that of the theme of disinheritance; for both demand a certain moderation on the part of the accuser. Cases concerned with lunacy arise either out of what has been done or out of something which may or may not be done in the future.

> Latin: 4.29. dissimiles autem abdicationum actionibus sunt malae tractationis actiones; nam et ipsae habent eandem in accusationibus moderationem. quoque iudicia aut propter id, quod factum est, aut propter id quod adhuc fieri vel non fieri potest instituuntur.

[¶51] 4.30. In the former case the pleader is free to attack as he will, but must none the less do so in such a manner that, while denouncing the act, he will yet express pity for the father on the ground that he has erred by reason of his infirmity. On the other hand, in the latter case, where the act has not yet taken place and there is nothing to prevent the father changing his purpose, he must begin by a prolonged attempt to induce him to change his mind, and then, and only then, complain that it is madness and not depravity of character that prevents him from listening to the voice of reason; and the more he praises his past character, the easier will it be to prove the change which it has undergone owing to the inroads of the disease.

> Latin: 4.30. actor in eo, quod factum est, liberum habet impetum, sic tamen ut factum accuset, ipsius patris tanquam valetudine lapsi misereatur; in eo vero, cuius libera mutatio est, diu roget et suadeat et novissime dementiam ration queratur obstare, non mores: quos quanto magis in praeteritum laudaverit, tanto facilius probabit morbo esse mutatos.

[¶52] 4.31. The accused, wherever possible, must assume a temperate tone in his defence, for the reason that as a rule anger and excitement are near akin to madness. All these cases have this much in common, that the accused does not always defend his act, but often pleads excuse and asks for pardon. For these are domestic quarrels, in which the fact that the offence is an isolated case, due to error and of a less serious character than alleged, will sometimes suffice to secure an acquittal.

> Latin: 4.31. , quotiens causa patietur, debebit esse in defensione moderatus, quia fere ira et concitatio furori sunt similia. is commune est, quod rei non semper defensione facti, sed excusatione ac vena frequenter utuntur. enim domestica disceptatio, in qua et semel peccasse et per errorem et levius, quam obiiciatur, absolutioni nonnunquam sufficit.

[¶53] 4.32. There are, however, a number of other controversial themes involving quality, as, for example, cases of assault. In these, although at times the accused denies that he committed the assault, the pleading as a rule is concerned with fact and intention.

> Latin: 4.32. alia quoque multa controversiarum genera in qualitatem cadunt.; quanquam enim reus aliquando fecisse negat, plerumque tamen haec actio facto atque animo continetur.

[¶54] 4.33. Then there are cases concerned with the appointment of a prosecutor, which are known as divinations. In this connexion Cicero, who was indicting Verres on the instruction of our Sicilian allies, adopts the following division-to the effect that the main point for consideration is, by whom those the redress of whose wrongs forms the subject of the trial would prefer to be represented, and by whom the accused would least desire them to be represented. But in the great majority of cases the questions raised are, which claimant has the strongest motives for undertaking the role of accuser, which is likely to bring the greatest energy or talent to the task, and which is likely to press the charge with the greatest sincerity.

> Latin: 4.33. accusatore constituendo, quae iudicia divinationes vocantur; in quo genere Cicero quidem, qui mandantibus sociis Verrem deferebat, hac usus est divisione, spectandum a quo maxime agi velint ii quorum de ultione quaeritur, a quo minime velit is qui accusatur. tamen hae sunt quaestiones, uter maiores causas habeat, uter plus industriae aut virium sit adlaturus ad accusandum, uter id fide meliore facturus.

[¶55] 4.35. Next we may take cases concerned with guardianship, in which it is usual to enquire whether it is necessary to investigate anything save the accounts, and whether anything can be demanded of the guardian except the honest execution of his trust; his sagacity and the success of his administration being beside the mark. Cases of fraud on the part of an agent, which are styled cases of conduct of business when they occur in the actual courts, are of a similar nature, since they also are concerned with the administration of a trust.

> Latin: 4.35. praeterea; in quo iudicio solet quaeri, an alia de re quam de calculis cognosci oporteat, an fidem praestare debeat tantum, non etiam consilium et eventum. simile est male gestae procurationis, quae in foro negotiorum gestorum; nam et mandati actio est.

[¶56] 4.36. In addition to these we have the fictitious cases of the schools which deal with crimes not covered by the law, where the question is as a rule either whether the crime is really not covered by the law or whether it is a crime, though on rare occasions both questions are raised. Cases of misconduct on the part of an ambassador are of frequent occurrence among the Greeks, even in actual life: in these the legal question is raised whether it is lawful to deviate at all from one's instructions and for how long the accused was technically an ambassador, since in some cases the ambassador's duty is to convey a communication to a foreign power and in others to bring one back. Take for example the case of Heius, who gave evidence against Verres after performing his duties as ambassador. But in such cases the most important question turns on the nature of the deed complained of Next come cases of action contrary to the interests of the state.

> Latin: 4.36. haec finguntur in scholis et inscripti maleficii, in quibus aut hoc quaeritur, an inscriptum sit aut hoc, an maleficium sit, raro utrumque. gestae legationis apud Graecos et veris causis frequens, ubi iuris loco quaeri solet, an omnino aliter agere quam mandatum sit liceat, et quo usque sit legatus, quoniam aliae in nuntiando, aliae in renuntiando sunt, ut in Heio, qui testimonium in Verrem dixerat post perlatam legationem.

[¶57] 4.37. In these we meet with legal quibbles as to what is the meaning of “action contrary to the interests of the state,” and whether the action of the accused was injurious or profitable, or whether the interests of the state suffered at his hands or merely on his account: but the most important question is that of fact. There are also cases of ingratitude; in these we raise the question whether the accused has really received any kindness. It is only rarely that the fact can be denied, as denial is in itself a sign of ingratitude. But there are the further questions as to the extent of the kindness and whether it has been repaid.

> Latin: 4.37. tamen est in eo, quale sit factum. publicae laesae: hinc moventur quidem illae iuris cavillationes, quid sit rem publicam laedere, et, laeserit an non profuerit, et, ab ipso an propter ipsum laesa sit: in facto tamen plurimum est. quoque, in quo genere quaeritur, an is cum quo agitur acceperit beneficium. raro negandum est; ingratus est enim qui negat.

[¶58] 4.38. If it has not been repaid, does this necessarily involve ingratitude? Was it in his power to repay? Did he really owe the return which was demanded of him? What is his intention? Somewhat simpler are cases of unjust divorce, a form of controversy which has this peculiarity, that the accuser defends and the defendant accuses.

> Latin: 4.38. acceperit, an reddiderit, an protinus qui non reddidit ingratus sit, an potuerit reddere, an id, quod exigebatur, debuerit, quo animo sit. illae iniusti repudii, sub qua lege controversiae illud proprium habent, quod a parte accusantis defensio est, a defendentis accusatio.