§5.2.1iam praeiudiciorum vis omnis tribus in generibus versatur: rebus, quae aliquando ex paribus causis sunt iudicatae, quae exempla rectius dicuntur, ut de rescissis patrum testamentis vel contra filios confirmatis; iudiciis ad ipsam causam pertinentibus, unde etiam nomen ductum est, qualia in Oppianicum facta dicuntur et a senatu adversus Milonem; aut cum de eadem causa pronuntiatum est, ut in reis deportatis et assertione secunda et partibus centumviralium, quae in duas hastas divisae sunt.
Now, all the force of previous judgments is active in three classes: first, in things which have at some time been decided from similar causes, which are more correctly called precedents, such as concerning the rescinded wills of fathers or those confirmed against their sons; second, in judgments pertaining to the cause itself, from which also the name is derived, such as those said to have been made against Oppianicus, and by the senate against Milo; third, or when judgment has been pronounced concerning the same cause, as in the case of exiled defendants, a second assertion of freedom, and those parts of centumviral lawsuits which have been divided into two tribunals.
§5.2.2confirmantur praecipue duobus: auctoritate eorum, qui pronuntiaverunt, et similitudine rerum, de quibus quaeritur;
They are supported chiefly by two things: the authority of those who pronounced them, and the similarity of the matters under inquiry.
refelluntur autem raro per contumeliam iudicum, nisi forte manifesta in iis culpa erit.
But they are rarely refuted by an insult to the judges, unless by chance there shall be an obvious fault in them.
vult enim cognoscentium quisque firmam esse alterius sententiam, et ipse pronuntiaturus, nec libenter exemplum, quod in se fortasse recidat, facit.
For everyone of those who conduct an inquiry wishes the opinion of another to be firm, being himself also about to pronounce judgment, nor does he willingly establish a precedent which might perhaps recoil upon himself.
§5.2.3confugiendum ergo est in duobus superioribus, si res feret, ad aliquam dissimilitudinem causae; vix autem ulla est per omnia alteri similis.
Therefore, in the two former classes, if the circumstances permit, recourse must be had to some dissimilarity in the cause; but there is scarcely any case that is similar to another in all respects.
si id non continget aut eadem causa erit, actionum incusanda negligentia aut de infirmitate personarum querendum, contra quas erit iudicatum, aut de gratia, quae testes corruperit, aut de invidia aut de ignorantia, aut videndum, quid causae postea accesserit.
If that does not happen, or if it is the same cause, the negligence of the advocacy must be blamed, or complaint must be made of the weakness of the persons against whom judgment was given, or of the influence that corrupted the witnesses, or of prejudice, or of ignorance, or it must be observed what has subsequently been added to the cause.
quorum si nihil erit, licet tamen dicere multos iudiciorum casus ad inique pronuntiandum valere ideoque damnatum Rutilium, absolutos Clodium atque Catilinam.
If there is none of these, it is still permitted to say that many chance events of trials contribute to unjust decisions, and that for this reason Rutilius was condemned, and Clodius and Catiline acquitted.
rogandi etiam iudices, ut rem potius intueantur ipsam, quam iuri iurando alieno suum donent.
The judges must also be asked to look at the case itself, rather than give up their own oath to someone else's.
§5.2.5adversus consulta autem senatus et decreta principum vel magistratuum remedium nullum est, nisi aut inventa quantulacunque causae differentia aut aliqua vel eorundem vel eiusdem potestatis hominum posterior constitutio, quae sit priori contraria; quae si deerunt, lis non erit.
But against the decrees of the senate and the decisions of emperors or magistrates there is no remedy, unless either some difference in the cause, however small, is found, or some subsequent constitution, either of the same persons or of those of the same authority, which is contrary to the former; if these are lacking, there will be no lawsuit.