§7.2.19in quo quidem genere causarum admonet Celsus fieri id in foro non posse; quod neminem ignorare arbitror.
In which indeed kind of cases Celsus warns that this cannot happen in the forum; which I think no one is ignorant of.
de uno reo consilium cogitur, et etiam si qui sunt, qui invicem accusent, alterum iudicium praeferre necesse est.
The council is assembled for a single defendant, and even if there are those who accuse each other in turn, it is necessary to prefer one trial over the other.
§7.2.20Apollodorus quoque ἀντικατηγορίαν duas esse controversias dixit, et sunt revera secundum forense ius duae lites.
Apollodorus also said that mutual accusation consists of two controversies, and indeed according to forensic law they are two lawsuits.
potest tamen hoc genus in cognitionem venire senatus aut principis.
Yet this kind can come into the cognizance of the senate or the prince.
sed in iudicio quoque nihil interest actionum, §7.2.21utrum simul de utroque pronuntietur an sententia de uno feratur.
But in a trial as well, it makes no difference to the pleadings whether judgment is pronounced on both at the same time or sentence is passed on one.
Quo in genere semper prior debebit esse defensio, primum quia natura potior est salus nostra quam adversarii pernicies, deinde quod plus habebimus in accusatione auctoritatis, si prius de innocentia nostra constiterit, postremum, quod ita demum duplex causa erit.
In which kind of case the defense must always be prior, first because by nature our safety is preferable to the destruction of our adversary, secondly because we shall have more authority in the accusation if our innocence is first established, and lastly, because only thus will there be a double case.
nam qui dicit, ego non occidi, habet reliquam partem, ut dicat, tu occidisti; at qui dicit, tu occidisti, supervacuum habet postea dicere, ego non occidi. §7.2.22hae porro actiones constant comparatione; ipsa comparatio non una via ducitur.
For he who says, "I did not kill," has the remaining part to say, "You killed"; but he who says, "You killed," finds it superfluous afterward to say, "I did not kill." Furthermore, these pleadings consist in comparison; the comparison itself is not conducted in one way only.
aut enim totam causam nostram cum tota adversarii causa componimus aut singula argumenta cum singulis.
For we either compare our whole case with the whole case of our adversary, or individual arguments with individual ones.
quorum utrum sit faciendum, non potest nisi ex ipsius litis utilitate cognosci: ut Cicero singula pro Vareno comparat in primo crimine; etenim in posteriore crimine persona alieni cum persona matris temere compararetur.
Which of these two should be done cannot be known except from the utility of the lawsuit itself: as Cicero compares individual points for Varenus in the first charge; for indeed in the subsequent charge, the character of a stranger would have been compared rashly with the character of a mother.
quare optimum est, si fieri poterit, ut singula vincantur a singulis; sed si quando in partibus laborabimus, universitate pugnandum est.
Therefore it is best, if it can be done, for individual points to be defeated by individual ones; but if at any time we struggle in the parts, we must fight with the whole.
et sive invicem accusant, §7.2.23sive crimen reus citra accusationem in adversarium vertit (ut Roscius in accusatores suos, quamvis reos non fecisset), sive in ipsos, quos sua manu periisse dicemus, factum deflectitur, lion aliter quam in iis quae mutuam accusationem habent utriusque partis argumenta inter se comparantur.
And whether they accuse each other in turn, or the defendant, without a formal accusation, turns the charge against his adversary (as Roscius did against his accusers, although he had not made them defendants), or the deed is deflected onto those very persons whom we shall say perished by their own hand, the arguments of both sides are compared with each other no otherwise than in those cases which have mutual accusation.
§7.2.24id autem genus de quo novissime dixi non solum in scholis saepe tractatur, sed etiam in foro.
Moreover, this kind of which I have most recently spoken is often treated not only in the schools, but also in the forum.
nam id est in causa Naevii Arpiniani solum quaesitum, praecipitata esset ab eo uxor an se ipsa sua sponte iecisset.
For that was the sole question in the case of Naevius Arpinianus, whether his wife had been thrown down headlong by him, or whether she had cast herself down of her own accord.
cuius actionem et quidem solam in hoc tempus emiseram, quod ipsum me fecisse ductum iuvenali cupiditate gloriae fateor.
The pleading of this case, and indeed the only one up to this time, I had published, which very thing I confess I did led by a youthful desire for glory.
nam ceterae, quae sub nomine meo feruntur, negligentia excipientium in quaestum notariorum corruptae minimam partem mei habent.
For the others, which are circulated under my name, being corrupted by the negligence of shorthand writers who took them down for gain, contain the smallest part of me.
§7.2.25est et alia duplex coniectura huic ἀντικατηγορίᾳ diversa, de praemiis, ut in illa controversia, tyrannus suspicatus a medico suo datum sibi venenum torsit eum et, cum is dedisse se pernegaret, arcessit alterum medicum; ille datum ei venenum dixit, sed se antidotum daturum, et dedit ei potionem, qua epota tyrannus decessit. de praemio duo medici contendunt.
There is also another double conjecture, different from this mutual accusation, concerning rewards, as in that controversy: "A tyrant, suspecting that poison had been given to him by his doctor, tortured him, and when he persistently denied having given it, he summoned another doctor; the latter said that poison had been given to him, but that he would give an antidote, and gave him a potion, which being drunk, the tyrant died." Two doctors contend for the reward.
nam ut illic factum in adversarium transferentium, ita hic sibi vindicantium personae, causae, facultates, tempora, instrumenta, §7.2.26testimonia comparantur.
For just as in the former case the characters, causes, means, times, instruments of those who transfer the deed to their adversary are compared, so here are compared those of those who claim it for themselves, and the testimonies.
illud quoque, etiamsi non est ἀντικατηγορία, simili tamen ratione tractatur, in quo citra accusationem quaeritur, utrum factum sit.
That also, although it is not mutual accusation, is treated by a similar method, in which it is inquired, without an accusation, which of the two facts occurred.
utraque enim pars suam expositionem habet atque eam tuetur, ut in lite Urbiniana petitor dicit, Clusinium Figulum filium Vrbiniae acie victa, in qua steterat, fugisse, iactatumque casibus variis, retentum etiam a rege, tandem in Italiam ac patriam suam Marrucinos venisse atque ibi agnosci; Pollio contra, servisse eum Pisauri dominis duobus, medicinam factitasse, manumissum alienae se familiae venali immiscuisse, a se rogantem, ut ei serviret, emptum.
For each party has its own exposition and defends it, as in the Urbinian lawsuit the claimant says that Clusinius Figulus, the son of Urbinia, after the defeat of the army in which he had stood, fled, and having been tossed about by various fortunes, and even detained by a king, at length came to Italy and his native land among the Marrucini, and is there recognized; Pollio on the contrary argues that he had served two masters at Pisaurum, practiced medicine, and after being manumitted, mingled himself with the slave-gang of another family, and was bought by himself when he begged to serve him.