§5.10.103praesertim, cum plurimae probationes in ipso causarum complexu reperiantur, ita ut sint cum alia lite nulla communes, eaeque sint et potentissimae et minime obviae, quia communia ex praeceptis accepimus, propria invenienda sunt.
Especially since very many proofs are found in the very complication of causes, so that they have nothing in common with any other lawsuit, and these are both the most powerful and the least obvious, because we have received common topics from rules, but specific ones must be found.
§5.10.104hoc genus argumentorum sane dicamus ex circumstantia, quia περίστασιν dicere aliter non possumus, vel ex iis quae cuiusque causae propria sunt: ut in illo adultero sacerdote, qui lege, qua unius servandi potestatem habebat, se ipse servare voluit, proprium controversiae est dicere, non unum nocentem servabas, quia te dimisso adulteram occidere non licebat. hoc enim argumentum lex facit, quae prohibet adulteram sine adultero occidere.
Let us indeed call this class of arguments "from circumstance," since we cannot otherwise translate peristasin, or "from those things which are proper to each cause": as in the case of that adulterous priest, who, by the law which gave him the power of saving one person, wished to save himself, the argument proper to the controversy is to say, "You were not saving one guilty person, because, if you were released, it was not lawful to kill the adulteress." For the law which prohibits killing an adulteress without the adulterer makes this argument.
§5.10.105et illa, in qua lata lex est, ut argentarii dimidium ex eo quod debebant solverent, creditum suum totum exigerent.
And that case in which a law was passed that bankers should pay half of what they owed, but should demand the whole of their own credit.
argentarius ab argentario solidum petit.
A banker demands the whole from a banker.
proprium ex materia est argumentum creditoris, idcirco adiectum esse in lege, ut argentarius totum exigeret; adversus alios enim non opus fuisse lege, cum omnes praeterquam ab argentariis totum exigendi ius haberent.
The argument of the creditor proper to the matter is that for this very reason it was added in the law that the banker should demand the whole; for against others there was no need of a law, since everyone had the right of demanding the whole except from bankers.
§5.10.106cum multa autem novantur in omni genere materiae tum praecipue in iis quaestionibus, quae scripto constant, quia vocum est in singulis ambiguitas frequens et adhuc in coniunctis magis.
But while many new arguments are introduced in every kind of matter, this is especially so in those questions which consist in writing, because there is frequent ambiguity in individual words, and still more in combined ones.
§5.10.107et haec ipsa plurium legum aliorumve scriptorum vel congruentium vel repugnantium complexu varientur necesse est, cum res rei aut ius iuris quasi signum est.
And these very questions must vary by the complication of several laws or other writings, either agreeing or conflicting, when a fact is as it were a sign of a fact, or a right of a right.
non debui tibi pecuniam; nunquam me appellasti, usuram non accepisti, ultro a me mutuatus es. lex est, qui patri proditionis reo non adfuerit, exheres sit. negat filius, nisi si pater absolutus sit.
"I did not owe you money; you never demanded it of me, you received no interest, you even borrowed from me of your own accord." The law: "He who has not assisted his father when accused of treason, let him be disinherited." The son denies it, unless the father has been acquitted.
quid signi? lex altera, proditionis damnatus cum advocato exulet.
What is the sign?
§5.10.108Cicero pro Cluentio Publium Popilium et Tiberium Guttam dicit non iudicii corrupti sed ambitus esse damnatos.
Another law: "He who is convicted of treason, let him go into exile with his advocate." Cicero in Pro Cluentio says that Publius Popilius and Tiberius Gutta were condemned not for bribery of the court, but for bribery at elections.
quid signi? quod accusatores eorum, qui erant ipsi ambitus damnati, e lege sint post hanc victoriam restituti.
What is the sign? That their accusers, who had themselves been condemned for bribery at elections, were restored by the law after this victory.
§5.10.109nec minus in hoc curae debet adhiberi, quid proponendum quam quomodo sit quod proposuerimus probandum.
Nor should less care be applied to this, namely what is to be proposed, than how what we have proposed is to be proved.
hic immo vis inventionis, si non maior, certe prior.
Here indeed is the force of invention, if not greater, certainly prior.
nam ut tela supervacua sunt nescienti, quid petat, sic argumenta, nisi provideris cui rei adhibenda sint.
For as weapons are superfluous to one who does not know what to aim at, so are arguments, unless you have foreseen to what matter they are to be applied.
hoc est, quod comprehendi arte non possit.
This is what cannot be comprehended by art.
§5.10.110Ideoque, cum plures eadem didicerint, generibus argumentorum similibus utentur; alius alio plura, quibus utatur, inveniet.
And therefore, when many have learned the same things, they will use similar kinds of arguments; but one will find more of them to use than another.
sit exempli gratia proposita controversia, quae communes minime cum aliis quaestiones habet: §5.10.111cum Thebas evertisset Alexander, inuenit tabulas, quibus centum talenta mutua Thessalis dedisse 'Thebanos continebatur.
Let there be proposed, for sake of example, a controversy which has very few questions in common with others: When Alexander had destroyed Thebes, he found tablets in which it was contained that the Thebans had lent a hundred talents to the Thessalians.
has, quia erat usus commilitio Thessalorum, donavit his ultro; postea restituti a Cassandro Thebani reposcunt Thessalos.
Since he had used the military alliance of the Thessalians, he gifted these to them of his own accord; afterwards, the Thebans, restored by Cassander, demand them back from the Thessalians.
apud Amphictyonas agitur.
The case is tried before the Amphictyons.
centum talenta et credidisse eos constat et non recepisse.
It is agreed both that they lent the hundred talents and that they have not received them back.
§5.10.112lis omnis ex eo, quod Alexander ea Thessalis donasse dicitur, pendet.
The whole lawsuit depends on this, that Alexander is said to have gifted those tablets to the Thessalians.
constat illud quoque, non esse iis ab Alexandro pecuniam data; quaeritur ergo, an proinde sit, quod datum est, ac si pecuniam dederit?
It is also agreed that money was not given to them by Alexander; the question is, therefore, whether what was given is just as if he had given money.
§5.10.113quid proderunt argumentorum loci, nisi haec prius videro, nihil eum egisse donando, non potuisse donare, non donasse? et prima quidem actio facilis ac favorabilis repetentium iure quod vi sit ablatum; sed hinc aspera et uehemens quaestio exoritur de iure belli, dicentibus Thessalis, hoc regna, populos, fines gentium atque urbium contineri.
What will the topics of arguments profit, unless I have first seen this: that he did nothing by gifting, that he could not gift, that he did not gift? And the first action of those demanding back by right what was taken away by force is indeed easy and favorable; but from this arises a harsh and vehement question concerning the right of war, the Thessalians saying that by this, kingdoms, peoples, boundaries of nations and cities are held.
§5.10.114inveniendum contra est, quo distet haec causa a ceteris, quae in potestatem victoris venirent; nec circa probationem res haeret, sed circa propositionem.
On the contrary, it must be found how this cause differs from others which come into the power of the victor; and the matter does not stick around the proof, but around the proposition.
dicamus inprimis: in eo, quod in iudicium deduci potest, nihil valere ius belli nec armis erepta nisi armis posse retineri; itaque, ubi illa valeant, non esse iudicem; ubi iudex sit, illa nihil valere.
Let us say in the first place: in that which can be brought into judgment, the right of war has no validity, and what is snatched by arms cannot be retained except by arms; and therefore, where those have validity, there is no judge; where there is a judge, those have no validity.