§4.2.66et quatenus etiam forte quadam pervenimus ad difficilius narrationum genus, iam de iis loquamur, in quibus res contra nos erit, quo loco nonnulli praetereundam narrationem putaverunt.
And since we have also arrived, by some chance, at a more difficult class of statements of facts, let us now speak of those in which the case will be against us; in which situation some have thought that the statement of facts should be omitted.
et sane nihil est facilius, nisi prorsus totam causam omnino non agere.
And indeed nothing is easier, unless one is to abandon the entire case altogether.
sed si aliqua iusta ratione huiusmodi susceperis litem, cuius artis est malam esse causam silentio confiteri? nisi forte tam hebes futurus est iudex, ut secundum id pronuntiet, quod sciet narrare te noluisse.
But if you have undertaken a lawsuit of this kind for some just reason, what kind of art is it to confess by silence that your case is bad? Unless by chance the judge is to be so dull as to pronounce according to what he knows you did not want to relate.
§4.2.67neque infitias eo in narratione, ut aliqua neganda, aliqua adiicienda, aliqua mutanda, sic aliqua etiam tacenda; sed tacenda, quae tacere oportebit et liberum erit.
Nor do I deny that in a statement of facts, just as some things are to be denied, some to be added, some to be changed, so also some things are to be passed over in silence; but those should be passed over which it will be proper and permitted to keep silent about.
quod fit nonnunquam brevitatis quoque gratia, quale illud est, respondit quae ei visum est. §4.2.68distinguamus igitur genera causarum.
This is done sometimes also for the sake of brevity, such as that: "He answered what seemed good to him." Let us therefore distinguish the genres of cases.
namque in iis, in quibus non de culpa quaeretur sed de actione, etiamsi erunt contra nos themata, confiteri nobis licebit: pecuniam de templo sustulit sed privatam, ideoque sacrilegus non est. §4.2.69virginem rapuit, non tamen optio patri dabitur. ingenuum stupravit et stupratus se suspendit, non tamen ideo stuprator capite ut causa mortis punietur, sed decem milia, quae poena stupratori constitute est, dabit. verum in his quoque confessionibus est aliquid, quod de invidia, quam expositio adversarii fecit, detrahi possit, cum etiam servi nostri de peccatis suis mollius loquantur.
For in those in which the question will be not about the fault but about the action, even if the themes are against us, it will be permitted for us to confess: "He took money from the temple, but it was private property, and therefore he is not a temple-robber." "He ravished a virgin, yet the choice will not be given to the father." "He ravished a freeborn youth, and the ravished one hanged himself; yet the ravisher will not on that account be punished capitally as the cause of death, but he will pay ten thousand, which is the penalty established for a ravisher." But even in these confessions there is something that can be subtracted from the unpopularity which the opponent's exposition has created, since even our slaves speak more softly of their own misdeeds.
§4.2.70quaedam enim quasi non narrantes mitigabimus: non quidem, ut adversarius dicit, consilium furti in templum attulit nec diu captavit eius rei tempus; sed occasione et absentia custodum corruptus et pecunia, quae nimium in animis hominum potest, victus est.
For we shall mitigate some things as if we were not narrating them: "He did not indeed, as the opponent says, bring a design of theft into the temple, nor did he long watch for an opportunity for that deed; but corrupted by the occasion and the absence of the guards, and overcome by money, which has too much power over the minds of men, he was vanquished." But what does it matter?
sed quid refert? peccavit et fur est; nihil attinet id defendere, cuius poenam non recusamus.
He sinned and is a thief; it is of no purpose to defend that, the punishment of which we do not refuse.
§4.2.71interim quasi damnemus ipsi: vis te dicam vino impulsum? errore lapsum? nocte deceptum? vera sunt ista fortasse;
Sometimes let us condemn them ourselves, as it were: "Do you wish me to say that you were driven by wine? slipped by error? deceived by the night?
tu tamen ingenuum stuprasti, solve decem milia. nonnunquam praepositione praemuniri potest causa, deinde exponi.
Those things are perhaps true; yet you ravished a freeborn youth; pay ten thousand." Sometimes a case can be fortified by a preliminary proposition, and then exposed.
§4.2.72contraria sunt omnia tribus filiis, qui in mortem patris coniurarant: sortiti nocte singuli per ordinem cum ferro cubiculum intrarunt patre dormiente; cum occidere eum nemo potuisset, excitato omnia indicarunt.
All things are against the three sons who had conspired for the death of their father: having drawn lots, each in turn entered the bedchamber at night with a sword while the father was sleeping; when no one had been able to kill him, they woke him and disclosed everything.
§4.2.73si tamen pater, qui divisit patrimonium et reos parricidii defendit, sic agat: quod contra legem sufficit, parricidium obiicitur iuvenibus, quorum pater vivit atque etiam liberis suis adest.
Yet if the father, who divided the patrimony and defends those accused of parricide, should plead thus: "What is sufficient against the law, parricide is charged against the young men, whose father lives and is even present to help his children.
ordinem rei narrare quid necesse est, cum ad legem nihil pertineat? sed si confessionem culpae meae exigitis, fui pater durus et patrimonii, quod iam melius ab his administrari poterat, tenax custos; §4.2.74deinde subiiciat stimulatos ab iis, quorum indulgentiores parentes erant, semper tamen habuisse eum animum, qui sit eventu deprehensus, ut occidere patrem non possent; neque enim iureiurando opus fuisse, si alioqui hoc mentis habuissent, nec sorte, nisi quod se quisque eximi voluerit, omnia haec qualiacunque placidioribus animis accipientur, illa brevi primae propositionis defensione mollita.
What need is there to narrate the order of the affair, since it pertains nothing to the law? But if you demand a confession of my fault, I was a harsh father and a tenacious guardian of the patrimony, which could already have been better administered by them;" then let him add that they were stimulated by those whose parents were more indulgent, yet that they always had that mind which was detected by the event, so that they could not kill their father; for there would have been no need of an oath, if they had otherwise had this mind, nor of drawing lots, unless because each wished himself to be exempted; all these things, of whatever kind they are, will be received with calmer minds, softened by that brief defense of the first proposition.
§4.2.75at cum quaeritur an factum sit vel quale factum sit, licet omnia contra nos sint, quomodo tamen evitare expositionem salva causae ratione possumus? narravit accusator neque ita ut, quae essent acta, tantum indicaret, sed adiecit invidiam, rem verbis exasperavit, accesserunt probationes, peroratio incendit et plenos irae reliquit.
But when the question is whether it was done or what kind of thing was done, although all things are against us, how can we nevertheless avoid an exposition while saving the reason of the case? The accuser has narrated, and not in such a way as merely to indicate what had been done, but he added unpopularity, exasperated the matter with words, proofs were added, the peroration inflamed and left them full of anger.
exspectat naturaliter iudex, §4.2.76quid narretur a nobis.
The judge naturally expects what may be narrated by us.
si nihil exponimus, illa esse quae adversarius dixit et talia qualia dixit credat necesse est.
If we expose nothing, he must of necessity believe those things to be which the opponent said, and such as he said they were.
quid ergo? eadem exponemus? si de qualitate agitur, cuius tum demum quaestio est, cum de re constat, eadem sed non eodem modo; alias causas, aliam mentem, aliam rationem dabo.
What then? Shall we expose the same things? If it is treated concerning the quality, of which there is only then an inquiry when the fact is established, I shall expose the same things, but not in the same manner; I shall give other causes, another mind, another reason.