§3.11.1his inventis, intuendum deinceps Hermagorae videtur, quid sit quaestio, ratio, iudicatio, continens, vel, ut alii vocant, firmamentum.
After these have been found, it next seems to Hermagoras that we must consider what are question, reason, point of judgment, and containing point (or, as others call it, support).
quaestio latius intelligitur omnis, de qua in utramque partem vel in plures partes dici credibiliter potest.
In a wider sense, a question is understood as everything about which it is possible to speak credibly on either side or on several sides.
§3.11.2in iudiciali autem materia dupliciter accipienda est: altero modo, quo dicimus multas quaestiones habere controversiam, quo etiam minores omnes complectimur, altero, quo significamus summam illam, in qua causa vertitur; de hac nunc loquor, ex qua nascitur status, an factum sit, §3.11.3quid factum sit, an recte factum sit.
In judicial matter, however, it must be understood in two ways: in one way, when we say that a controversy contains many questions, in which we also include all the minor ones; in another way, when we signify that supreme question on which the case turns; of this latter I am now speaking, from which the basis arises: whether it was done, what was done, and whether it was done rightly.
has Hermagoras et Apollodorus et alii plurimi scriptores proprie quaestiones vocant, Theodorus, ut dixi, capita generalia, sicut illas minores aut ex illis pendentes specialia.
These, Hermagoras, Apollodorus, and many other writers properly call questions, while Theodorus, as I said, calls them general heads, and those minor ones or those depending on them special heads.
nam et quaestionem ex quaestione nasci et speciem in species dividi convenit.
For it is natural both for a question to be born from a question and for a species to be divided into species.
§3.11.4hanc igitur quaestionem veluti principalem vocant ζήτημα.
Therefore, they call this, as it were, principal question ζήτημα.
ratio autem est, qua id, quod factum esse constat, defenditur.
On the other hand, the reason is that by which what is agreed to have been done is defended.
et cur non utamur eodem, quo sunt usi omnes fere, exemplo? Orestes matrem occidit, hoc constat;
And why should we not use the same example that almost everyone has used? Orestes killed his mother; this is agreed.
dicit se iuste fecisse: status erit qualitatis; quaestio, an iuste fecerit, ratio, quod Clytaemnestra maritum suum, patrem Orestis, occidit; hoc αἴτιον dicitur.
He says that he did so justly: the basis will be one of quality; the question is whether he did so justly; the reason is that Clytemnestra killed her own husband, the father of Orestes; this is called αἴτιον.
κρινόμενον autem iudicatio, an oportuerit vel nocentem matrem a filio occidi.
Moreover, the κρινόμενον, that is, the point of judgment, is whether it was right for even a guilty mother to be killed by her son.
§3.11.5quidam diviserunt αἴτιον et αἰτίαν ut esset altera, propter quam iudicium constitutum est, ut occisa Clytaemnestra, altera, qua factum defenditur, ut occisus Agamemnon.
Some have distinguished αἴτιον and αἰτία, so that one is that on account of which the trial is established, such as the killing of Clytemnestra, and the other is that by which the deed is defended, such as the killing of Agamemnon.
sed tanta est circa verba dissensio, ut alii αἰτίαν causam iudicii, αἴτιον autem facti vocent, alii eadem in contrarium vertant.
But there is so much disagreement about the words that some call αἰτία the cause of the trial and αἴτιον the cause of the deed, while others reverse them.
Latinorum quidam haec initium et rationem vocaverunt, quidam utrumque eodem nomine appellant.
Some of the Latin writers have called these the beginning and the reason, while some call both by the same name.
§3.11.6causa quoque ex causa, id est αἴτιον ἐξ αἰτίου nasci videtur, quale est: Occidit Agamemnonem Clytaemnestra, quia ille filiam communem immolaverat et captivam pellicem adducebat. iidem putant et sub una quaestione plures esse rationes, ut si Orestes et alteram adferat causam matris necatae, quod responsis sit impulsus; quot autem causas faciendi, totidem iudicationes; nam et haec erit iudicatio, an responsis parere debuerit.
A cause also seems to be born from a cause, that is, αἴτιον ἐξ αἰτίου, such as: "Clytemnestra killed Agamemnon because he had sacrificed their common daughter and was bringing back a captive mistress." The same writers also think that there can be several reasons under a single question, as if Orestes should bring forward also another cause for killing his mother, that he was urged by the oracles; and however many causes there are of the action, there are just as many points of judgment; for this too will be a point of judgment: whether he ought to have obeyed the oracles.
§3.11.7sed et una causa plures habere quaestiones et iudicationes (ut ego arbitror) potest, ut in eo, qui, cum adulteram deprehensam occidisset, adulterum, qui tum effugerat, postea in foro occidit.
But even a single cause can have (as I think) several questions and points of judgment, as in the case of him who, having killed his wife caught in adultery, later killed in the forum the adulterer who had then escaped.
causa enim est una, adulter fuit; quaestiones et iudicationes, an illo tempore, an illo loco licuerit occidere.
For the cause is one—he was an adulterer; but the questions and points of judgment are whether it was lawful to kill at that time, or in that place.
§3.11.8sed sicut, cum sint plures quaestiones omnesque suos status habeant, causae tamen status unus sit, ad quem referuntur omnia, ita iudicatio maxime propria, de qua pronuntiatur.
But just as, although there are several questions and all have their own bases, there is nevertheless only one basis of the case to which everything is referred, so there is one most proper point of judgment on which the decision is pronounced.
§3.11.9συνέχον autem (quod, ut dixi, continens alii, firmamentum alii putant, Cicero firmissimam argumentationem defensoris et adpositissimam ad iudicationem) quibusdam id videtur esse, post quod nihil quaeritur, quibusdam id quod ad iudicationem firmissimum adfertur.
Moreover, the συνεχον (which, as I said, some think is the containing point, others the support, and Cicero "the strongest argument of the defender and the most appropriate to the point of judgment") seems to some to be that after which nothing is asked, and to others that which is brought forward as the strongest support for the point of judgment.
§3.11.10causa facti non in omnes controversias cadit.
The cause of the deed does not apply to all controversies.
nam quae fuerit causa faciendi, ubi factum negatur? at ubi causa tractetur, negant eodem loco esse iudicationem quo quaestionem, idque et in Rhetoricis Cicero et in Partitionibus dicit.
For what could be the cause of doing where the deed is denied? But where a cause is treated, they deny that the point of judgment is in the same place as the question, and Cicero says this both in his Rhetorica and in his Partitiones.
§3.11.11nam in coniectura est quaestio ex illo factum, non factum an factum sit.
For in conjecture, the question is "was it done by him or not done," that is, whether it was done.
ibi ergo iudicatio, ubi quaestio, quia in eadem re prima quaestio et extrema disceptatio.
Therefore, the point of judgment is there where the question is, because in the same matter is the first question and the final debate.
at in qualitate, matrem Orestes occidit: recte, non recte, an recte occiderit, quaestio nec statim iudicatio.
But in quality: "Orestes killed his mother; rightly or not rightly"; "whether he killed her rightly" is the question, but not immediately the point of judgment.
quando ergo? ilia patrem meum occiderat;
When is it then?
sed non ideo tu matrem debuisti occidere; an debuerit, hic iudicatio.
"She had killed my father"; "but you ought not on that account to have killed your mother"; "whether he ought to have," here is the point of judgment.
§3.11.12Firmamentum autem verbis ipsius ponam: si velit Orestes dicere eiusmodi animum matris suae fuisse in patrem suum, in se ipsum ac sorores, in regnum, in famam generis et familiae, ut ab ea poenas liberi potissimum sui petere debuerint. §3.11.13utuntur alii et talibus exemplis: qui bona paterna consumpserit, ne contionetur; in opera publica consumpsit; quaestio, an, quisquis consumpserit, prohibendus sit: iudicatio, an, qui sic.
But I will present the support in his own words: "if Orestes should wish to say that the disposition of his mother toward his father, toward himself and his sisters, toward the kingdom, and toward the reputation of their race and family was of such a kind that her own children should have most of all sought punishment from her." Others use also such examples: "He who has squandered his paternal estate shall not address the assembly." "He squandered it on public works." The question is whether anyone who has squandered it should be prohibited; the point of judgment is whether he who did so should be.
§3.11.14vel, ut in causa militis Arrunti, qui Lusium tribunum vim sibi inferentem interfecit, quaestio, an iure fecerit, ratio, quod is vim afferebat; iudicatio, an indemnatum, an tribunum a milite occidi oportuerit.
Or, as in the case of the soldier Arruntius, who killed the tribune Lusius when the latter offered violence to him: the question is whether he did so lawfully; the reason is that he was offering violence; the point of judgment is whether it was right for an uncondemned man, or a tribune, to be killed by a soldier.