§7.2.27nonne tota lis constat duarum causarum comparatione et coniectura duplici atque diversa? quae autem accusantium ac defendentium, eadem petentium et infitiantium ratio est.
Does not the whole lawsuit consist in the comparison of two cases and in a double and different conjecture? Moreover, the same relation which exists between accusers and defenders exists also between claimants and deniers.
ducitur coniectura primum a praeteritis.
Conjecture is derived first from the past.
in his sunt personae, causae, consilia.
In these are included persons, causes, intentions.
nam is ordo est, ut facere voluerit, potuerit, fecerit.
For the order is: that he wished to do it, was able to do it, and did do it.
ideoque intuendum ante omnia, qualis sit de quo agitur.
And therefore we must inspect, before all things, what kind of person he is about whom the action is brought.
§7.2.28accusatoris autem est efficere ut, si quid obiecerit non solum turpe sit, sed etiam crimini, de quo est iudicium, quam maxime conveniat.
On the other hand, it is the accuser's part to bring it about that whatever charge he objects is not only disgraceful, but also fits as closely as possible the crime under judgment.
nam si reum caedis impudicum vel adulterum vocet, laedat quidem infamia, minus tamen hoc ad fidem valeat quam si audacem, petulantem, crudelem, temerarium ostenderit.
For if he should call a defendant charged with murder unchaste or an adulterer, he would indeed damage him with infamy, yet this would avail less for credibility than if he showed him to be bold, petulant, cruel, and rash.
§7.2.29patrono, si fieri poterit, id agendum est ut obiecta vel neget vel defendat vel minuat; proximum est ut a praesenti quaestione separet.
The advocate, if it can be done, must endeavor either to deny, defend, or extenuate the charges; the next best thing is to separate them from the present question.
sunt enim pleraque non solum dissimilia, sed etiam aliquando contraria: ut si reus furti prodigus dicatur aut negligens.
For most of them are not only dissimilar, but sometimes even contradictory: as if a defendant charged with theft should be called prodigal or negligent.
neque enim videtur in eundem et contemptus pecuniae et cupiditas cadere.
For the contempt of money and the desire for it do not seem to fall upon the same person.
§7.2.30si deerunt haec remedia, ad illa declinandum est, non de hoc quaeri nec eum, qui aliquando peccaverit, utique commisisse omnia, et hanc fiduciam fuisse accusatoribus falsa obiiciendi, quod laesum et vulneratum reum speraverint hac invidia opprimi posse.
If these remedies are wanting, we must turn to those arguments: that the inquiry is not about this, and that he who has sinned at some time has not therefore committed all crimes, and that the accusers had this confidence in making false charges, because they hoped that the defendant, already damaged and wounded, could be overwhelmed by this prejudice.
§7.2.31alii a propositione accusatoris contraque eam loci oriuntur.
Other topics arise from the proposition of the accuser and in opposition to it.
saepe a persona prior ducit argumenta defensor et interim generaliter, incredibile esse a filio patrem occisum, ab imperatore proditam hostibus patriam.
Often the defender derives arguments first from character, and sometimes generally, that it is incredible that a father should be killed by his son, or the fatherland betrayed to the enemy by a general.
facile respondetur vel quod omnia scelera in malos cadant ideoque saepe deprehensa sint, vel quod indignum sit crimina ipsa atrocitate defendi.
To this it is easily answered, either that all crimes fall upon wicked men and therefore have often been detected, or that it is unworthy that crimes should be defended by their very atrocity.
interim proprie, quod est varium.
Sometimes arguments are drawn from the specific person, which is a varied matter.
nam dignitas et tuetur reum et nonnunquam ipsa in argumentum facti convertitur, tanquam inde fuerit spes inpunitatis; proinde paupertas, humilitas, opes, ut cuique ingenio vis est, in diversum trahuntur.
For dignity both protects a defendant and sometimes is itself turned into an argument for the deed, as if there was a hope of impunity on that account; likewise poverty, humble station, and wealth are drawn in opposite directions according to the force of each speaker's talent.
§7.2.33probi vero mores et anteactae vitae integritas nunquam non plurimum profuerint.
But upright character and the integrity of past life will never fail to be of the greatest advantage.
si nihil obiicietur, patronus quidem in hoc vehementer incumbet, accusator autem ad praesentem quaestionem, de qua sola iudicium sit, cognitionem adligabit dicens neminem non aliquando coepisse peccare, nec per encaenia ducendum scelus primum.
If nothing is objected, the advocate indeed will lean heavily upon this; but the accuser will bind the inquiry to the present question, about which alone is the trial, saying that there is no one who has not at some time begun to sin, and that a first crime is not to be celebrated with a dedication ceremony.
§7.2.34haec in respondendo.
These are the rules for replying.
sic autem praeparabit actione prima iudicum animos, ut noluisse potius obiicere quam non potuisse credatur.
But in his first speech he will so prepare the minds of the judges that he may be believed rather to have been unwilling to bring charges than unable to do so.
eoque satius est omni se ante actae vitae abstinere convicio quam levibus aut frivolis aut manifesto falsis reum incessere, quia fides ceteris detrahitur; et qui nihil obiicit, omisisse credi potest maledicta tanquam supervacua; qui vana congerit, confitetur unum in anteactis argumentum, in quibus vinci quam tacere maluerit.
And therefore it is better to abstain from all abuse of past life than to attack the defendant with light, frivolous, or manifestly false charges, because credibility is withdrawn from the rest; and he who objects nothing may be believed to have omitted abusive words as superfluous; he who heaps up empty charges confesses that his sole argument lies in past conduct, in which he preferred to be defeated rather than to remain silent.
§7.2.35cetera, quae a personis duci solent, in argumentorum locis exposuimus.
The other points which are customarily derived from persons we have set forth in the topics of arguments.
proxima est ex causis probatio, in quibus haec maxime spectantur, ira, odium, metus, cupiditas, spes; nam reliqua in horum species cadunt.
Next is proof from causes, in which these are chiefly regarded: anger, hatred, fear, desire, hope; for the rest fall under the species of these.
quorum si quid in reum conveniet, accusatoris est efficere ut ad quidquid faciendum causae valere videantur, easque quas in argumentum sumet augere; si minus, illuc conferenda est oratio, §7.2.36aut aliquas fortasse latentes fuisse aut nihil ad rem pertinere cur fecerit, si fecit, aut etiam dignius esse odio scelus, quod non habuerit causam.
Of which if any applies to the defendant, it is the accuser's part to make it appear that the causes have power for doing whatever has been done, and to amplify those which he takes for his argument; if not, his speech must be directed thither, that some perhaps were latent, or that it is of no relevance why he did it if he did it, or even that the crime is more worthy of hatred because it had no cause.
patronus vero, quotiens poterit, instabit huic loco, ut nihil credibile sit factum esse sine causa.
The advocate indeed, as often as he can, will press this topic, that it is not credible that anything was done without a cause.
quod Cicero vehementissime multis orationibus tractat, praecipue tamen pro Vareno, qui omnibus aliis premebatur; nam et damnatus est.
Which Cicero treats most vehemently in many speeches, but especially in that for Varenus, who was pressed by all other circumstances; for indeed he was condemned.
at,
But...