§5.10.35causae porro non ad convincendum modo, quod obiicitur, sed ad defendendum quoque excuti solent, cum quis se recte fecisse, id est honesta causa, contendit; qua de re latius in tertio libro dictum est.
Furthermore, causes are accustomed to be examined not only for proving what is charged, but also for defending, when someone contends that he acted rightly, that is, from an honorable cause; about which matter it has been spoken more at length in the third book.
§5.10.36finitionis quoque quaestiones ex causis interim pendent.
Questions of definition also sometimes depend on causes.
an tyrannicida, qui tyrannum, a quo deprehensus in adulterio fuerat, occidit? an sacrilegus, qui, ut hostes urbe expelleret, arma templo adfixa detraxit?
Is he a tyrannicide who killed a tyrant by whom he had been caught in adultery? Is he sacrilegious who, in order to expel enemies from the city, took down arms affixed to a temple?
§5.10.37ducuntur argumenta et ex loco.
Arguments are also derived from place.
spectatur enim ad fidem probationis, montanus an planus, maritimus an mediterraneus, consitus an incultus, frequens an desertus, propinquus an remotus, opportunus consiliis an adversus; quam partem videmus vehementissime pro Milone tractasse Ciceronem.
For, with a view to the credibility of the proof, it is observed whether it is mountainous or level, maritime or inland, cultivated or uncultivated, frequented or deserted, near or remote, favorable for designs or unfavorable; which part we see Cicero treated most vehemently in his speech for Milo.
§5.10.38et haec quidem ac similia ad coniecturam frequentius pertinent, sed interim ad ius quoque: privatus an publicus, sacer an profanus, noster an alienus; ut in persona, magistratus, pater, peregrinus.
And indeed these and similar things more frequently pertain to conjecture, but sometimes also to law: whether it is private or public, sacred or profane, our own or belonging to another; just as in the case of a person: a magistrate, a father, a foreigner.
hinc enim quaestiones oriuntur: §5.10.39privatam pecuniam sustulisti; uerum quia de templo, non furtum sed sacrilegium est. occidisti adulterum, quod lex permittit; sed quia in lupanari, caedes est. iniuriam fecisti; sed quia magistratui, maiestatis actio est. §5.10.40vel contra: licuit, quia pater eram, quia magistratus. sed circa facti controuersiam argumenta praestant, circa iuris lites materiam quaestionum.
For from here questions arise: "You took away private money; but because it was from a temple, it is not theft but sacrilege." "You killed an adulterer, which the law permits; but because it was in a brothel, it is murder." "You committed an injury; but because it was against a magistrate, it is an action of treason." Or on the contrary: "It was lawful for me, because I was a father, because I was a magistrate." But concerning a controversy of fact, places supply arguments; concerning disputes of law, they supply the material of questions.
ad qualitatem quoque frequenter pertinet locus, neque enim idem ubique aut licet aut decorum est; quin etiam in qua quidque civitate quaeratur interest, moribus enim et legibus distant.
Place also frequently pertains to quality, for the same thing is not everywhere either lawful or decent; indeed, it even makes a difference in what state each thing is investigated, for they differ in customs and laws.
§5.10.41ad commendationem quoque et invidiam valet.
It is also effective for recommendation and envy.
nam et Aiax apud Ovidium: ante rates, inquit, agimus causam, et mecum confertur Ulixes? et Miloni inter cetera obiectum est, quod Clodius in monumentis ab eo maiorum suorum esset occisus.
For even Ajax in Ovid says: "Is it before the ships that we plead our cause, and is Ulysses compared with me?" and it was objected to Milo, among other things, that Clodius had been killed by him among the monuments of his own ancestors.
§5.10.42ad suadendi momenta idem valet, sicut tempus, cuius tractatum subiungam.
The same is effective for the moments of persuasion, as is time, the treatment of which I will subjoin.
eius autem, ut alio loco iam dixi, duplex significatio est; generaliter enim et specialiter accipitur.
Moreover, of this, as I have already said in another place, the meaning is twofold; for it is accepted both generally and specially.
prius illud est:—nunc, olim, sub Alexandro, cum apud Ilium pugnatum est, denique praeteritum, instans, futurum.
The former is: 'now', 'formerly', 'under Alexander', 'when the battle was fought at Ilium', and finally, 'past', 'present', 'future'.
hoc sequens habet et constituta discrimina:—aestate, hieme, noctu, interdiu; et fortuita:—in pestilentia, in bello, in convivio.
The latter has both established divisions: 'in summer', 'in winter', 'by night', 'by day'; and accidental ones: 'in a pestilence', 'in war', 'at a banquet'.
§5.10.43Latinorum quidam satis significari putaverunt, si illud generale tempus, hoc speciale tempora vocarent.
Some of the Latin writers have thought it sufficiently indicated if they called the former general one 'tempus' and the latter special one 'tempora'.
quorum utrorumque ratio et in consiliis quidem et in illo demonstrativo genere versatur, sed in iudiciis frequentissima est.
The method of both of these is employed indeed both in deliberations and in that demonstrative genre, but is most frequent in judicial trials.
§5.10.44nam et iuris quaestiones facit et qualitatem distinguit et ad coniecturam plurimum confert: ut cum interim probationes inexpugnabiles adferat, quales sunt, si dicatur (ut supra posui) signator, qui ante diem tabularum decessit, aut commisisse aliquid, vel cum infans esset vel cum omnino natus non esset; §5.10.45praeter id, quod omnia facile argumenta aut ex iis, quae ante rem facta sunt, aut ex coniunctis rei aut insequentibus ducuntur.
For it both creates questions of law and distinguishes quality, and contributes very much to conjecture: as when sometimes it brings irrefutable proofs, such as if it is said (as I have set down above) that a signatory died before the date of the tablets, or that someone committed something either when he was an infant or when he was not born at all; Besides the fact that all arguments are easily derived either from those things which were done before the event, or from those connected with the event, or from those following it.
ex antecedentibus: mortem minatus es, noctu existi, proficiscentem antecessisti; causae quoque factorum praeteriti sunt temporis.
From antecedents: "You threatened death," "you went out by night," "you went ahead of the person departing"; the causes of actions are also of past time.
§5.10.46secundum tempus subtilius quidam, quam necesse erat, diviserunt, ut esset iuncti sonus auditus est; adhaerentis clamor sublatus est.
The second time some have divided more subtly than was necessary, so that of the closely joined it was 'a sound was heard', and of the adhering 'a cry was raised'.
insequentis sunt illa latuisti, profugisti, livores et tumores apparuerunt. iisdem temporum gradibus defensor utetur ad detrahendam ei quod obiicitur fidem.
Belonging to the following are those: "you hid yourself," "you fled," "bruises and swellings appeared." The defender will use the same stages of times to take away credibility from what is charged.
§5.10.47in his omnis factorum dictorumque ratio versatur, sed dupliciter.
In these, the whole relation of actions and words turns, but in a twofold manner.
nam fiunt quaedam quia aliud postea futurum est, quaedam quia aliud ante factum est: ut, cum obiicitur reo lenocinii, speciosae marito, quod adulterii damnatam quondam emerit; aut parricidii reo luxurioso, quod dixerit patri, non amplius me obiurgabis. nam et ille non quia emit leno est, sed quia leno erat emit; nec hic, quia sic erat locutus, occidit, sed, quia erat occisurus, sic locutus est.
For some things are done because another thing is to happen afterward, some because another thing was done before: as when it is objected to a defendant of panderism—the husband of a beautiful wife—that he bought a woman formerly condemned for adultery; or to a luxurious defendant of parricide, that he said to his father, "You will not scold me any more." For neither is the former, because he bought her, a pander, but because he was a pander, he bought her; nor did the latter, because he had spoken thus, kill, but because he was going to kill, he spoke thus.