§3.11.15alterius etiam status quaestionem, alterius iudicationem putant.
They think also that the question belongs to one basis, and the point of judgment to another.
quaestio qualitatis, an recte Clodium Milo occiderit.
The question is of quality, whether Milo killed Clodius rightly.
§3.11.16iudicatio coniecturalis, an Clodius insidias fecerit.
The point of judgment is conjectural, whether Clodius set an ambush.
ponunt et illud, saepe causam in aliquam rem dimitti, quae non sit propria quaestionis, et de ea iudicati.
They also lay down this, that a case is often dismissed into some matter which is not proper to the question, and that judgment is made concerning that matter.
A quibus multum dissentio.
From whom I dissent much.
nam et illa quaestio, an omnes, qui paterna bona consumpserint, contione sint prohibendi, habeat oportet suam iudicationem.
For even that question, whether all who have squandered their paternal goods should be prohibited from the assembly, must have its own point of judgment.
ergo non alia quaestio alia iudicatio erit, sed plures quaestiones et plures iudicationes.
Therefore, there will not be one question and another point of judgment, but multiple questions and multiple points of judgment.
§3.11.17quid? non in causa Milonis ipsa coniectura refertur ad qualitatem? nam si est insidiatus Clodius, sequitur, ut recte sit occisus.
What of it? Is not, in the case of Milo, the conjecture itself referred to the quality? For if Clodius set an ambush, it follows that he was rightly killed.
cum vero in aliquam rem missa causa recessum est a quaestione, quae erat, et hic constituta quaestio, ubi iudicatio est.
But when, a case having been sent into some other matter, there is a departure from the question which was there, a question is also established here, where the point of judgment is.
§3.11.18paulum in his secum etiam Cicero dissentit.
On these matters, Cicero also dissents a little from himself.
nam in Rhetoricis (quemadmodum supra dixi) Hermagoran est secutus; in Topicis ex statu effectam contentionem κρινόμενον existimat, idque Trebatio, qui iuris erat consultus, adludens qua de re agitur appellat; quibus id contineatur, continentia, quasi firmamenta defensionis, quibus sublatis defensio nulla sit; §3.11.19at in Partitionibus oratoriis firmamentum, quod opponitur defensioni, quia continens, quod primum sit, ab accusatore dicatur, ratio a reo, ex rationis et firmamenti quaestione disceptatio sit iudicationum.
For in his Rhetorica (as I said above) he followed Hermagoras; in his Topica he considers the dispute arising from the basis to be the κρινόμενον, and, playing upon Trebatius who was a jurisconsult, calls it 'the matter in question'; and that in which this is contained he calls the 'containing points', as if they were the supports of the defense, which being removed, there is no defense; but in the Partitiones oratoriae, the support is that which is opposed to the defense, because the containing point, which is first, is spoken by the accuser, the reason by the defendant, and from the question of the reason and the support arises the debate of the points of judgment.
verius igitur et brevius ii, qui statum et continens et iudicationem idem esse voluerunt; continens autem id esse, quo sublato lis esse non possit.
Therefore, those who have wished the basis, the containing point, and the point of judgment to be the same thing have spoken more truly and briefly; and that the containing point is that which, being removed, a lawsuit cannot exist.
§3.11.20hoc mihi videntur utramque causam complexi, et quod Orestes matrem et quod Clytaemnestra Agamemnonem occiderit.
By this they seem to me to have embraced both cases, both that Orestes killed his mother and that Clytaemnestra killed Agamemnon.
iidem iudicationem et statum consentire semper existimarunt, neque enim aliud eorum rationi conveniens fuisset.
The same writers also thought that the point of judgment and the basis always agree, for indeed nothing else would have been consistent with their reasoning.
§3.11.21verum haec adfectata subtilitas circa nomina rerum ambitiose laborat, a nobis in hoc assumpta solum, ne parum diligenter inquisisse de opere, quod aggressi sumus, videremur; simplicius autem instituenti non est necesse per tam minutas rerum particulas rationem docendi concidere.
But this affected subtlety labors ambitiously around the names of things, assumed by us for this purpose alone, lest we should seem to have inquired with too little diligence into the work which we have undertaken; but for one instructing more simply, it is not necessary to cut up the method of teaching into such minute particles of things.
§3.11.22quo vitio multi quidem laborarunt, praecipue tamen Hermagoras, vir alioqui subtilis et in plurimis admirandus, tantum diligentiae nimium sollicitae, ut ipsa eius reprehensio laude aliqua non indigna sit.
From which vice indeed many have suffered, but especially Hermagoras, a man otherwise subtle and to be admired in most things, only of too anxious diligence, so that his very reprehension is not unworthy of some praise.
§3.11.23haec autem brevior et vel ideo lucidior multo via neque discentem per ambages fatigabit nec corpus orationis in parva momenta diducendo consumet.
But this shorter and, even for that reason, much clearer path will neither weary the learner with detours nor consume the body of the speech by dividing it into small parts.
nam qui viderit, quid sit, quod in controversiam veniat, quid in eo et per quae velit efficere pars diversa, quid nostra, quod in primis est intuendum, nihil eorum ignorare, de quibus supra diximus, poterit.
For he who sees what it is that comes into controversy, what the opposing party wishes to achieve in it and by what means, and what our party wishes—which is to be looked at among the first things—will not be able to be ignorant of any of those things of which we have spoken above.
§3.11.24neque est fere quisquam modo non stultus atque ab omni prorsus usu dicendi remotus, quin sciat, et quid litem faciat, (quod ab illis causa vel continens dicitur) et quae sit inter litigantes quaestio, et de quo iudicari oporteat;
Nor is there almost anyone, provided he is not stupid and entirely removed from all practice of speaking, who does not know both what makes the lawsuit (which is called by them the cause or containing point), and what the question is between the litigants, and about what judgment ought to be made; all of which are the same.
quae omnia idem sunt. nam et de eo quaestio est, quod in controversiam venit, et de eo iudicatur, de quo quaestio est.
For the question is about that which comes into controversy, and judgment is made about that which is the question.
§3.11.25sed non perpetuo intendimus in haec animum et cupiditate laudis utcunque acquirendae vel dicendi voluptate evagamur, quando uberior semper extra causam materia est, quia in controversia pauca sunt, extra omnia, et hic dicitur de his, quae accepimus, illic, de quibus volumus.
But we do not perpetually direct our minds to these things, and we wander away through the desire of acquiring praise in whatever way or through the pleasure of speaking, since there is always richer material outside the case, because in the controversy there are few things, but outside it are all things; and here we speak of those things which we have received, there of those which we wish.
§3.11.26nec tam hoc praecipiendum est, ut quaestionem, continens, iudicationem inveniamus (nam id quidem facile est), quam ut intueamur semper, aut certe si digressi fuerimus saltem respiciamus, ne plausum adfectantibus arma excidant.
Nor must this be so much taught, that we should find the question, the containing point, and the point of judgment (for that indeed is easy), as that we should always look at them, or certainly, if we have digressed, at least look back at them, lest weapons fall from those who affect applause.
§3.11.27Theodori schola, ut dixi, omnia refert ad capita.
The school of Theodorus, as I said, refers everything to heads.
his plura intelliguntur: uno modo summa quaestio item ut status, altero ceterae quae ad summam referuntur, tertio propositio cum adfirmatione; ut dicimus, caput rei est, apud Menandrum κεφάλαιόν ἐστιν.
By these several things are understood: in one way the supreme question just like the basis, in another the other things which are referred to the supreme question, in a third the proposition with affirmation; as we say, it is the head of the matter, and in Menander it is κεφάλαιόν ἐστιν.
in universum autem, quidquid probandum est, erit caput; sed id maius aut minus.
In general, moreover, whatever is to be proved will be a head, but either greater or lesser.
et quoniam, quae de his erant a scriptoribus artium tradita, §3.11.28verbosius etiam quam necesse erat exposuimus, praeterea, quae partes essent iudicialium causarum, supra dictum est, proximus liber a prima, id est exordio incipiet.
And since those things which had been handed down about these by the writers of arts, we have explained even more wordily than was necessary, and besides, what the parts of judicial cases were has been said above, the next book will begin from the first part, that is, the introduction.