§5.13.40nonnunquam elevandae invidiae gratia, quae asperius dicta sunt, eluduntur, ut a Cicerone Triarius.
Sometimes, for the sake of diminishing odium, things which have been spoken rather harshly are eluded, as Triarius was by Cicero.
nam cum Scauri columnas per urbem plaustris vectas esse dixit, ego porro, inquit, qui Albanas habeo columnas, clitellis eas apportavi. et magis hoc in accusatores concessum est, quibus conviciari aliquando patrocinii fides cogit.
For when he said that the columns of Scaurus were carried through the city on wagons, Cicero said, "I, on the other hand, who have Alban columns, brought them in panniers." And this is more allowed against accusers, whom the fidelity of patronage sometimes compels to revile.
§5.13.41illa vero adversus omnes et recepta et non inhumana conquestio, si callide quid tacuisse, breviasse, obscurasse distulisse dicuntur.
Indeed, that complaint is both accepted and not uncivil against all, if they are said to have craftily kept silent, shortened, obscured, or deferred something.
§5.13.42defensionis quoque permutatio reprehenditur saepe, ut Attius adversus Cluentium, Aeschines adversus Ctesiphontem facit, cum ille Ciceronem lege usurum modo, hic minime de lege dicturum Demosthenen queritur.
The alternation of defense is also often censured, as Attius does against Cluentius, and Aeschines against Ctesiphon, when the former complains that Cicero will only use the law, and the latter that Demosthenes will speak very little about the law.
declamatores vero inprimis sunt admonendi, ne contradictiones eas ponant, quibus facillime responderi possit, neu sibi stultum adversarium fingant.
But declaimers especially are to be admonished not to pose those contradictions to which it can be answered very easily, nor to feign a foolish opponent for themselves.
facimus autem (quod maxime uberes loci popularesque sententiae nascuntur materiam dicendi nobis, quod volumus, ducentibus) ut non sit ille inutilis versus:
"
non male respondit, male enim prior ille rogarat.
But we act in such a way (because most fertile commonplaces and popular thoughts arise when we lead the material of speaking, as we wish) that that verse is not useless: "He answered not badly, for the other had first asked badly.
"
Fallet haec nos in foro consuetudo, ubi adversario, §5.13.43non ipsi nobis respondebimus.
"This custom will deceive us in the forum, where, we shall reply to the opponent, not to ourselves.
aiunt Accium interrogatum, cur causas non ageret, cum apud eum in tragoediis tanta vis esset optime respondendi, hanc reddidisse rationem, quod illic ea dicerentur quae ipse vellet, in foro dicturi adversarii essent quae minime vellet.
They say that Accius, when asked why he did not plead causes when there was such a great power of replying excellently in his tragedies, gave this reason: that there those things were said which he himself wished, but in the forum his opponents would say what he least wished.
§5.13.44ridiculum est ergo in exercitationibus, quae foro praeparant, prius cogitare quid responderi quam quid ex diverso dici possit.
Therefore it is ridiculous in exercises which prepare for the forum to think of what can be answered before thinking of what can be said from the opposite side.
et bonus praeceptor non minus laudare discipulum debet, si quid pro diversa quam si quid pro sua parte acriter excogitavit.
And a good preceptor ought to praise a disciple no less if he has sharply devised something on the opposite side than if on his own.
§5.13.45rursus aliud in scholis permittendum semper, in foro rarum.
On the other hand, there is another thing always to be permitted in the schools, but rare in the forum.
nam loco a petitore primo contradictione uti qui possumus, ubi vera res agitur, cum adversarius adhuc nihil dixerit?
For how can we, in the first place as the plaintiff, use a contradiction, where a real matter is being transacted, when the opponent has as yet said nothing?
§5.13.46incidunt tamen plerique in hoc vitium vel consuetudine declamatoria vel etiam cupiditate dicendi, dantque de se respondentibus venustissimos lusus, cum modo, se vero nihil dixisse neque tam stulte dicturos; modo, bene admonitos ab adversario et agere gratias, quod adiuti sint, iocantur; frequentissime vero, id quod firmissimum est, nunquam iis responsurum adversarium fuisse, quae proposita non essent, nisi illa sciret vera esse et ad fatendum conscientia esset impulsus; ut pro Cluentio Cicero: §5.13.47nam hoc persaepe dixisti, tibi sic renuntiari, me habere in animo causam hanc praesidio legis defendere.
Yet most fall into this fault either by declamatory habit or even by eagerness to speak, and offer very elegant opportunities of mockery concerning themselves to those replying, when they joke at one time that they indeed said nothing and would not speak so foolishly, and at another time that they have been well admonished by the opponent and give thanks because they have been helped; but most frequently, which is strongest, that the opponent would never have replied to those things which had not been proposed, unless he knew them to be true and was driven by conscience to confess; as Cicero in his defense of Cluentius: "For you said very often that it was reported to you that I have in mind to defend this cause by the protection of the law.
itane est? ab amicis imprudentes videlicet prodimur? et est nescio quis de iis, quos amicos nobis arbitramur, qui nostra consilia ad adversarium deferat? quisnam hoc tibi renuntiavit? quis tam improbus fuit;
Is it so? Are we betrayed, forsooth, unawares by our friends? And is there someone, I know not who, of those whom we think our friends, who carries our plans to the opponent? Who indeed reported this to you? Who was so wicked?
cui ego autem narravi? nemo, ut opinor, in culpa est;
To whom, moreover, did I tell it?
nimirum tibi istud lex ipsa renuntiarit. §5.13.48at quidam contradictione non contenti totos etiam locos explicant: scire se hoc dicturos adversarios et ita persecuturos. quod factum venuste nostris temporibus elusit Vibius Crispus, vir ingenii iucundi et elegantis: ego vero, inquit, ista non dico; quid enim attinet illa bis dici?
No one, as I think, is in fault; doubtless the law itself reported that to you." But some, not content with a contradiction, even develop whole passages, saying that they know their opponents will say this and will pursue it in this way.
§5.13.49nonnunquam tamen aliquid simile contradictioni poni potest, si quid ab adversario testationibus comprehensum in advocationibus iactatum sit; respondebimus enim rei ab illis dictae, non a nobis excogitatae; aut, si id genus erit causae, ut proponere possimus certa, extra quae dici nihil possit: ut, cum res furtiva in domo deprehensa sit, dicat necesse est reus aut se ignorante illatam aut depositam apud se aut donatam sibi; quibus omnibus, etiamsi proposita non sunt, responderi potest.
Which deed in our times Vibius Crispus, a man of pleasant and elegant genius, elegantly eluded: "But I," he said, "do not say those things; for what does it matter that they be said twice?" Nevertheless, sometimes something similar to a contradiction can be posed, if anything has been included in testimonies by the opponent and bandied about in preliminary meetings; for we shall reply to a thing spoken by them, not devised by ourselves; or, if the kind of cause is such that we can propose certain things outside of which nothing can be said: as, when a stolen thing has been detected in a house, the accused must necessarily say either that it was brought in without his knowledge, or deposited with him, or given to him; to all of which, even if they have not been proposed, it can be answered.