§3.6.11recte igitur est appellata causarum prima conflictio non quaestionum.
Therefore, it was rightly called the first conflict of causes, not of questions.
nam et pro Rabirio Postumo Cicero prima parte orationis in hoc intendit, ut actionem competere in equitem Romanum neget; secunda, nullam ad eum pecuniam pervenisse confirmat.
For in his defense of Rabirius Postumus, Cicero, in the first part of his speech, aims at this: to deny that the action lies against a Roman knight; in the second part, he asserts that no money came into his hands.
statum tamen in eo dicam fuisse, quod est potentius.
Yet I should say that the state of the cause was in that which is the more powerful.
§3.6.12nec in causa Milonis circa primas quaestiones iudicabo conflixisse causam, sed ubi totis viribus insidiator Clodius ideoque iure interfectus ostenditur.
Nor in the case of Milo shall I judge that the cause conflicted around the first questions, but where Clodius is shown with all might to have been an ambusher and therefore rightfully slain.
et hoc est, quod ante omnia constituere in animo suo debeat orator, etiamsi pro causa plura dicturus est, quid maxime liquere iudici velit.
And this is what the orator, even if he is going to say many things for his cause, ought to establish in his mind before all else: what he especially wishes to be clear to the judge.
quod tamen ut primum cogitandum, ita non utique primum dicendum erit.
Yet, though this is to be thought of first, it is not necessarily to be spoken first.
§3.6.13alii statum crediderunt primam eius, cum quo ageretur, deprecationem.
Others have believed that the state is the first plea of him against whom the action is brought.
quam sententiam his verbis Cicero complectitur: in quo primum insistit quasi ad repugnandum congressa defensio. unde rursus alia quaestio, an eum semper is faciat qui respondet.
Which opinion Cicero embraces in these words: "that in which the defense first takes its stand, as if meeting to resist." Whence arises again another question, whether he who responds always makes it.
cui rei praecipue repugnat Cornelius Celsus dicens non a depulsione sumi, sed ab eo qui propositionem suam confirmet; ut, si hominem occisum reus negat, status ab accusatore nascatur, quia is velit probare; si iure occisum reus dicit, translata probationis necessitate idem a reo fiat, et sit eius intentio.
To which view Cornelius Celsus especially objects, saying that it is not taken from the defense, but from him who confirms his own proposition; as, if the accused denies that a man was killed, the state arises from the accuser, because he wishes to prove it; if the accused says he was rightfully killed, the necessity of proof being transferred, the same is done by the accused, and that is his intention.
§3.6.14cui non accedo equidem; nam est vero propius quod contra dicitur, nullam esse litem, si is, cum quo agatur, nihil respondeat, ideoque fieri statum a respondente.
To which indeed I do not agree; for that which is said to the contrary is nearer to the truth: that there is no lawsuit if he against whom the action is brought makes no reply, and therefore the state is made by the respondent.
§3.6.15mea tamen sententia varium id est, et accidit pro condicione causarum, quia et videri potest propositio aliquando statum facere, ut in coniecturalibus causis; utitur enim coniectura magis qui agit, (quo moti quidam eundem a reo infitialem esse dixerunt) et in syllogismo tota ratiocinatio ab eo est qui intendit.
In my opinion, however, this varies, and happens according to the condition of the causes, because even the proposition can sometimes seem to make the state, as in conjectural causes; for he who sues makes greater use of conjecture (moved by which some have said that the same state from the side of the accused is "denying"), and in a syllogism, the whole reasoning is from him who makes the accusation.
§3.6.16sed quia videtur illic quoque necessitatem hos status exsequendi facere qui negat, (is enim si dicat, non feci, coget adversarium coniectura uti; et si dicat, non habes legem, syllogismo) concedamus ex depulsione nasci statum.
But because there too he who denies seems to create the necessity of pursuing these states (for if he says, "I did not do it," he will compel his adversary to use conjecture; and if he says, "you have no law," to use a syllogism), let us concede that the state arises from the defense.
nihilominus enim res eo revertetur, ut modo is qui agit, modo is cum quo agitur, statum faciat.
For nevertheless the matter will return to this, that now he who sues, now he against whom the action is brought, makes the state.
§3.6.17sit enim accusatoris intentio, hominem occidisti. si negat reus, faciat statum qui negat.
For let the accuser's charge be, "you have killed a man." If the accused denies it, let him who denies make the state.
quid si confitetur, sed iure a se adulterum dicit occisum? nempe legem esse certum est quae permittat.
What if he confesses, but says that an adulterer was rightfully killed by him? To be sure, it is certain that there is a law which permits it.
nisi aliquid accusator respondet, nulla lis est.
Unless the accuser makes some reply, there is no lawsuit.
non fuit, inquit, adulter; ergo depulsio incipit esse actoris, ille statum faciet.
"He was not an adulterer," he says; therefore, the defense begins to be the accuser's, and he will make the state.
ita erit quidem status ex prima depulsione, sed ea fiet ab accusatore non a reo.
Thus indeed the state will be from the first defense, but it will be made by the accuser, not by the accused.
§3.6.18quid? quod eadem quaestio potest eundem vel accusatorem facere vel reum: Qui artem ludicram exercuerit, in quattuordecim primis ordinibus ne sedeat; qui se praetori in hortis ostenderat neque erat productus, sedit in quattuordecim ordinibus.
What of the fact that the same question can make the same person either accuser or accused? "He who has exercised the theatrical art shall not sit in the first fourteen rows." A man who had shown himself to the praetor in his gardens, but had not been produced on the stage, sat in the fourteen rows.
§3.6.19nempe intentio est: artem ludicram exercuisti; depulsio: non exercui artem ludicram; quaestio: quid sit artem ludicram exercere? si accusabitur theatrali lege, depulsio erit rei; si excitatus fuerit de spectaculis et aget iniuriarum, depulsio erit accusatoris.
To be sure, the charge is: "You have exercised the theatrical art"; the defense: "I have not exercised the theatrical art"; the question: "What is it to exercise the theatrical art?" If he is accused under the theatrical law, the defense will be the accused's; if he is removed from the spectacles and brings an action for injury, the defense will be the accuser's.
§3.6.20frequentius tamen illud accidet, quod est a plurimis traditum.
Yet that which has been handed down by most writers will happen more frequently.
effugerunt has quaestiones qui dixerunt, status esse id, quod appareat ex intentione et depulsione, ut fecisti, non feci aut recte feci.
Those who said that the state is that which appears from the accusation and the defense, such as "You did it," "I did not do it," or "I did it rightfully," escaped these questions.