§3.6.84hinc illae quaestiones sive actiones sive translationes.
From here arise those questions or actions or transfers.
sunt enim quaedam non laudabilia non natura sed iure concessa, ut in XII tabulis debitoris corpus inter creditores dividi licuit, quam legem mos publicus repudiavit; et aliquid aequum sed prohibitum iure, ut libertas testamentorum.
For there are certain things not praiseworthy by nature but permitted by law, as in the Twelve Tables it was permitted that the body of the debtor be divided among the creditors, which law public custom rejected; and something equitable but prohibited by law, as the freedom of wills.
§3.6.85accusatori nihilo plura intuenda sunt, ut probet factum esse, hoc esse factum, non recte factum, iure se intendere.
The accuser has to look at no more things, so that he may prove that the deed was done, that this was the deed, that it was not done rightly, and that he brings his action lawfully.
ita circa species easdem lis omnis versabitur translatis tantum aliquando partibus, ut in causis, quibus de praemio agitur, recte factum petitor probat.
Thus, all dispute will turn around the same species, only with the parts being sometimes transferred, as in causes in which reward is claimed, the claimant proves that the deed was done rightly.
§3.6.86haec quattuor velut proposita formaeque actionis, quae tum generales status vocabam, in duo (ut ostendi) genera discedunt rationale et legale.
These four, as propositions and forms of action, which I then called general states, part (as I showed) into two genera, the rational and the legal.
rationale simplicius est, quia ipsius tantum naturae contemplatione constat.
The rational is simpler, because it consists in the contemplation of nature itself alone.
itaque in eo satis est ostendisse coniecturam, finitionem, qualitatem.
Therefore, in it it is sufficient to have shown conjecture, definition, and quality.
§3.6.87legalium plures sint species necesse est, propterea quod multae sunt leges et varias habent formas.
Of the legal states, there must be more species, because laws are many and have various forms.
alia est cuius verbis nitimur, alia cuius voluntate, alias nobis, cum ipsi nullam habeamus, adiungimus, alias inter se comparamus, alias in diversum interpretamur.
There is one law on whose words we rely, another on whose intention; some we join to ourselves when we ourselves have none; some we compare with one another; some we interpret in a different sense.
§3.6.88sic nascuntur haec velut simulacra ex illis tribus, interim simplicia, interim et mixta, propriam tamen faciem ostendentia, ut scripti et voluntatis, quae sine dubio aut qualitate aut coniectura continentur, et syllogismos, qui est maxime qualitatis, et leges contrariae, quae iisdem, quibus scriptum et voluntas, constant, et ἀμφιβολία, quae semper coniectura explicatur.
Thus are born these as it were likenesses from those three, sometimes simple, sometimes also mixed, yet showing their own proper face, as that of the written text and intention, which without doubt are contained in either quality or conjecture; and syllogism, which is especially of quality; and contrary laws, which consist of the same things as the written text and intention; and ambiguity, which is always explained by conjecture.
§3.6.89finitio quoque utrique generi, quodque rerum quodque scripti contemplatione constat, communis est.
Definition also is common to both genera, consisting both in the contemplation of things and in that of the written text.
haec omnia, etiamsi in illos tres status veniunt, tamen, quia (ut dixi) habent aliquid velut proprium, videntur demonstranda discentibus, et permittendum ea dicere vel status legales vel quaestiones vel capita quaedam minora, dum sciant, nihil ne in his quidem praeter tria, quae praediximus, quaeri.
All these, although they come into those three states, yet because (as I said) they have something as it were proper, seem necessary to be shown to learners, and it should be permitted to call them either legal states, or questions, or certain minor heads, as long as they know that not even in these is anything sought besides the three which we have mentioned before.
§3.6.90at
"quantum?"
et
"quam multum?"
et
"ad aliquid"
et, ut nonnulli putarunt, comparativus non eandem rationem habent; sunt enim haec non ad varietatem iuris sed ad solam rationem referenda, ideoque semper in parte aut coniecturae aut qualitatis ponenda sunt, ut
"qua mente?"
et
"quo tempore?"
et
"quo loco?"
But 'how much?' and 'how many?' and 'relation' and, as some have thought, comparison, do not have the same reason; for these are to be referred not to the variety of law but to sole reason, and therefore they must always be placed in the part of either conjecture or quality, as 'with what mind?' and 'at what time?' and 'in what place?'.
§3.6.91sed de singulis dicemus quaestionibus, cum tractare praecepta divisionis coeperimus.
But we shall speak of individual questions when we begin to treat the precepts of division.
hoc inter omnes convenit, in causis simplicibus singulos status esse causarum, quaestionum autem, quae velut subiacent his et ad illud, quo iudicium continetur, referuntur, saepe in unam cadere plures posse;
This is agreed among all, that in simple causes there are single states of causes, but of questions, which as it were lie under these and are referred to that which contains the judgment, many can often fall into one.
§3.6.92etiam credo aliquando dubitari, quo statu sit utendum, cum adversus unam intentionem plura opponuntur; et sicut in colore dicitur narrationis, eum esse optimum, quem actor optime tueatur, ita hic quoque posse dici, eum statum esse faciendum, in quo tuendo plurimum adhibere virium possit orator; §3.6.93ideoque pro Milone aliud Ciceroni agenti placuit aliud Bruto, cum exercitationis gratia componeret orationem, cum ille iure tanquam insidiatorem occisum et tamen non Milonis consilio dixerit, ille etiam gloriatus sit occiso malo cive:
I also believe that it is sometimes doubted which state should be used when many things are opposed to one intention; and just as in the color of a narration, that is said to be the best which the speaker can best defend, so here also it can be said that that state must be made in defending which the orator can apply the most strength; and therefore, for Milo, one thing pleased Cicero when pleading, and another pleased Brutus when he composed a speech for the sake of exercise, since the former said that Clodius was killed lawfully as an insidiator, and yet not by Milo’s design, while the latter even boasted of a bad citizen having been killed.
§3.6.94in coniunctis vero posse duos et tris inveniri vel diversos, ut si quis aliud se non fecisse, aliud recte fecisse defendat, vel generis eiusdem, ut si quis duo crimina neget.
But in joined causes, two and three can be found, either different, as if someone should defend that he did not do one thing and did another rightly, or of the same kind, as if someone should deny two charges.
§3.6.95quod accidit etiam, si de una re quaeratur aliqua sed eam plures petant, vel eodem iure ut proximitatis vel diverso, ut cum hic testamento, ille proximitate nitetur.
Which happens also if some single thing is inquired about but many claim it, either by the same right, as of proximity, or by a different one, as when this man relies on a will, and that on proximity.
quotiens autem aliud alii petitori opponitur, dissimiles esse status necesse est, ut in illa controversia:
But as often as one thing is opposed to one claimant and another to another, it is necessary that the states be dissimilar, as in that controversy: